Bombay High Court
Smt. Jyoti Uttam Shinde vs State Of Maharashtra Through Its ... on 28 July, 2021
Bench: R.D. Dhanuka, R. I. Chagla
9-WP-3208-2021.doc
Shivgan
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.3208 OF 2021
Smt. Jyoti Uttam Shinde ...Petitioner
Versus
State of Maharashtra & Ors. ...Respondents
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Mr. V.S.Talkute with Mr. Graham Francis for the Petitioner.
Mr. A.I.Patel with Ms. Kavita Salunke Additional GP for the
Respondent-State.
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CORAM : R.D. DHANUKA &
R.I. CHAGLA, JJ.
DATE : 28 July 2021
ORDER :
1 Leave to amend is granted to the petitioner to
delete respondent no.3. Amendment shall be carried out
within one week from today.
2 Rule. The learned Additional Government
Pleader waives service for the respondent nos.1 and 2.
Heard fnally with consent of the parties.
9-WP-3208-2021.doc
3 By this petition fled under Article 226 of the
Constitution of India, the petitioner seeks directions against
the respondent no.2-Education Ofcer to modify the
approval order dated 5th February, 2021 and thereby paying
the petitioner the full scale with efect from 15 th June, 2020
along with salary, benefts and other emoluments as
expeditiously as possible as this Court directs.
4 This Court by order dated 26th July, 2021
observed that the Division Bench of this Court (Coram: Nitin
Jamdar and C.V.Bhadang, JJ.), had considered that the issue
regarding transfer within institution and the right of the
institution to efect such transfer from unaided to aided
section has been decided by series of decisions. Further, the
Division Bench had held that this Court from the year 2012,
has settled the issue. These decisions have been set out in
the order dated 19th March, 2021. It was thereafter observed
that the Education Ofcer in February, 2021 had passed an
order contrary to the aforesaid decisions. Accordingly, this
Court directed the Education Ofcer, who passed the
9-WP-3208-2021.doc
impugned order to fle an afdavit as to how this order
came to be passed contrary to the law laid down and why
litigation cost should not be imposed. Thereafter by a
subsequent order dated 5th April, 2021, the said Division
Bench of this Court had considered the earlier order and
observed that the matters of similar nature were being fled
in spite of position being settled by this Court and the
Education Authority are passing the same orders.
5 The present matter was adjourned for the State
to take instructions and fle afdavit-in-reply as and by way
of last indulgence. The respondent-State has fled afdavit-
in-reply of one Shri Shrikant Ramrao Jagdale, Deputy
Education Ofcer, District: Satara dated 27 th July, 2021. In
paragraph 4 of this afdavit, the said Shri Shrikant Jagdale
stated that Respondent No.3 Education Ofcer has granted
sanction to the transfer of the petitioner as per Government
Resolution dated 28th June, 2016 vide order dated 5th
February, 2021. The said order has been annexed with the
afdavit.
6 The learned Assistant Government Pleader
appearing for the State has on instructions stated that
9-WP-3208-2021.doc
inspite of what has been stated in the said afdavit-in-reply
dated 27th July, 2021, he has received instructions to state
that issue arising in this petition has been covered by the
decision of the Division Bench of this Court in the matter of
Shri Sachin Sambhaji Phadtare v. The State of
Maharashtra & Ors. (Coram: S.C.Gupte and Surendra P.
Tavade, JJ.) dated 12th March, 2021. He states that fndings
in the said judgment dated 12th March, 2021 will apply to
this petition. Statement is accepted.
7 In view of above statement, this petition can be
disposed of as it is squarely covered by the judgment dated
12th March, 2021. In the said judgment, the Government
Circular dated 28th June, 2016, which as per Sub-Clause 5(B)
of Clause 3 which provided for the formula/percentage of
proportionate salary to be disbursed by the State
Government and the concerned educational institution was
held not to apply when the management can legally
transfer an Assistant Teacher serving in an unaided school
under the same management to aided school. The said Sub-
Clause 5(B) of Clause 3 of the said Circular can only apply
where the State Government sanctions new post/posts on
aided basis and those are to be flled in afresh by giving
9-WP-3208-2021.doc
fresh appointment/appointments. In the present case, the
petitioner was legally transferred as Assistant Teacher
serving in unaided school under same management to
vacant post in aided school w.e.f. 15 th June, 2020. Hence,
the said Sub-Clause 5(B) of Clause 3 of the Government
Circular dated 28th June, 2016 relied upon in the approval
order dated 5th February, 2021 does not apply. The
Petitioner is entitled to pay at Full Scale w.e.f. 15 th June,
2020 along with salary, benefts and other emoluments.
8 In view thereof, the following order is passed:
(i) The Respondent No.2-Education Ofcer is
directed to grant approval to the petitioner as
'Assistant Teacher' on 100% grant-in-aid in the New
English School, Padegaon (Aided) on regular pay-
scale with efect from her date of appointment
within a period of six weeks from today and release
her arrears of salary within a period of eight weeks
from today.
(ii) The name of the petitioner shall be included
in the shalarth ID within a period of four weeks
from today.
9-WP-3208-2021.doc
(iii) The respondents shall withdraw the approval
order dated 5th February, 2021 in view of the
directions issued in (i) above.
(iv) Writ Petition is, accordingly, disposed of
in the above terms.
(v) Rule made absolute.
(vi) There shall be no order as to costs.
[R.I. CHAGLA J.] [R.D. DHANUKA, J.]
