Bombay High Court
Shri. Suhas S/O. Rangraoji More vs The State Of Maharashtra, Thr. ... on 21 December, 2023
Author: Anuja Prabhudessai
Bench: Anuja Prabhudessai
2023:BHC-NAG:17683-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.7706 OF 2022
1. Shri Suhas s/o Rangraoji More,
Age: 47 years, Occ: Service,
R/o. Boregaon Meghe, ...Petitioner
Tq. & District Wardha
-Versus-
1. State of Maharashtra,
Through its Secretary, Department of School
Education, Mantralaya,
Mumbai -32
2. Director of Education,
Secondary and Higher Secondary,
Maharashtra State Central
Building, Pune
3. Deputy Director of Education,
Nagpur Division, Nagpur
4. Education Officer (Secondary), ...Respondents
Zilla Parishad, Wardha
5. Shri Shivaji Education Society,
Through its Secretary, Office at Shivaji
Nagar, Amravati.
6. Headmaster,
Kanya Shala, Aanji (Mothi),
District Wardha
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Mr. S.S. Shingane, Advocate for the petitioner.
Ms. Prachi Joshi, AGP for the respondent Nos. 1 to 4.
Mr. K.P. Mahalle,Advocate for respondent Nos. 5 & 6.
--------------------------------------------------------------------------------------------------
CORAM : ANUJA PRABHUDESSAI AND
VRUSHALI V. JOSHI, JJ.
DATE : 21st DECEMBER, 2023
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ORAL JUDGMENT : (Per : ANUJA PRABHUDESSAI, J.)
Heard.
2. Rule. Rule made returnable forthwith. The petition is
heard finally with the consent of the learned counsel for the parties.
3. The petitioner questions the legality of clause 8 of G.R.
dated 10.06.2005 to the extent of payment of honorarium to the
non teaching staff promoted as Shikshan Sevak. The petitioner
seeks declaration that he is entitled to be promoted on the post of
Assistant Teacher on regular pay scale. The petitioner also seeks
direction to respondent No.5 to modify the appointment order to
that extent. Further to send the proposal for approval of the
promotion of petitioner on the post of Assistant Teacher on revised
pay scale with direction to the respondent to consider the said
proposal.
4. On 31.03.1995 the petitioner was appointed as peon in a
school run by respondent No.5. In the course of his employment, in
the year 2001 the petitioner obtained BA degree. In the year 2003,
he acquired post graduate qualification in MA History. He completed
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B.P.Ed in 2004 and in the year 2006, he acquired post graduate
qualification in MA Marathi.
5. The petitioner claims that respondent No.4 Education
Officer, vide communication dated 21.03.2006, had directed
respondent No.5 Management to take steps to appoint him on the
post of Physical Teacher. Inaction on the part of respondent No.5,
Management led to filing a Writ Petition No.3859/2010 seeking
direction against respondent No.5 to appoint him as a Physical
Teacher from 25% quota.
6. The respondent No.4 - Education Officer filed reply stating
that the Management was already informed that as per circular
dated 18.09.1995,25% posts of teacher in private schools can be
filled up by promoting non teaching staff provided they possess
required education qualifications. The Management too in its reply
stated that the claim of the petitioner will be considered as per his
standing in the selection list. The petition came to be disposed of in
view of the said statement.
7. Subsequently, on 29.10.2021, the petitioner came to be
promoted on the post of Physical Education Teacher in OBC
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category. As per Clause-8 of G.R dated 10.06.2005, the honorarium
was fixed at Rs.8,000/- per month. The said appointment has been
approved by respondent No.4.
8. The petitioner claims that his last drawn salary as a peon
was Rs. 43,000/-. With his promotion his salary has been reduced
to Rs. 8,000/- per month, which is arbitrary and unjustified. The
petitioner further claims that other similarly placed peons have been
promoted to the post of Assistant Teacher with pay scale of Rs.
38,600-1,22,800/- as per 7th Pay Commission and that their
promotion with the said pay scale has been approved by the
Education Officer. The petitioner made representation for his pay
fixation on his appointment as Assistant Teacher, in consonance
with circular dated 18.09.1995 and 10.06.2005. Being aggrieved by
the inaction, the petitioner has filed this writ petition for the reliefs
as stated above.
9. Tushar Mahajan, Deputy Secretary in the office of the
School Education and Sports Department, has in his reply stated that
the Regional Authorities were facing difficulties in implementations
the Shikshan Sevak Scheme. Hence, G.R dated 10.06.2005 came to
be issued, which stipulates that if non teaching staff has obtained
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educational qualifications required for secondary or higher
secondary school/Jr. College and if the post of that cadre is
available, in such case, the non teaching staff will be appointed as
Shikshan Sevak. All terms and conditions of service and payment of
Shikshan Sevak will be applicable to the employee. He claims that
as per Clause-8 of the said G.R, the previous service will be
calculated only for the post for retirement benefit. He contends that
there is no provision for promotion of peon to the post of teaching
post and under the existing provision only Clerk can be promoted as
teaching staff on attaining requisite qualifications. He therefore,
contends that the appointment of the petitioner to the post of
Physical Training Teacher is not by way of promotion, but is a fresh
appointment on payment of honorarium payable to Shikshan Sevak.
10. It is pertinent to note that in the previous petition (Writ
Petition No.3859/2010) the petitioner had not claimed right to be
considered for promotion as teaching staff on the strength of
Government Resolution dated 10.06.2005 but had claimed that in
view of the educational qualifications acquired by him, he was
entitled to be considered for the post of Physical Education Teacher
from 25% quota, as per the Circular dated 18.09.1995. The
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respondents had not raised a plea that the petitioner was not
entitled for such promotion on the contrary had made a statement
that his entitlement will be considered against available vacancies as
per his standing in the seniority list.
11. It is to be noted that pursuant to the statement made in the
Writ Petition No.3859/2010, by order dated 29.10.2021, the
petitioner came to be appointed as Physical training teacher.
However, the appointment was not from 25% quota stipulated
under Circular dated 18.09.1995 but was as per Clause 8 of
Government Resolution dated 10.06.2005, as Shikshan Sevak on
payment of honorarium of Rs.8,000/- per month. It is sought to be
contended that it was not a promotion but is a case of fresh
appointment. In this regard, it would be relevant to refer to the
decision in the case of Usha Baliram Masal Vs. Hind Seva Mandal
(Writ Petition No. 3167 of 2019), wherein the Division Bench of this
Court has held that Clause 8 of the G.R, is in the nature of providing
promotional avenue to an employee of non teaching staff and cannot
be considered as fresh appointment. It is thus a case of promotion.
12. In the instant case, the petitioner had rendered over 26
years of service as peon and acquired requisite qualification to be
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appointed as Physical Training Teacher. Moreover, he was appointed
as a teacher after considering his seniority in the seniority list. In
such circumstances, the respondent cannot be heard to say that the
petitioner was not entitled to be promoted as a teacher or that his
appointment has to be treated as fresh appointment.
13. The Government Circular dated 05.09.1980 provides that if
an employee is appointed from lower grade to higher grade in the
same school or other school of the same society and his service is
uninterrupted, then his pay on a new post shall be fixed on the basis
of pay of lower cadre. In other words, the Circular ensures that the
basic pay of such employee, promoted from lower grade to higher
grade, does not fall below the pay drawn by him in previous grade.
14. The question which therefore arises is whether the
petitioner could have been promoted to the post of Physical Training
Teacher/Shikshan Sevak on an honorarium of Rs. 8,000/- per
month, while his last drawn salary was over Rs. 45,000/- per month.
It need not be emphasized that in general parlance promotion refers
to upward movement in job leading to greater additional
responsibility and higher pay scale and allowances. Consequently,
fixing honorarium of Rs.8,000/- as against last drawn salary of
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Rs.45,000/- would be far from promotion and would infact actually
amount to demotion. Hence, reduction of salary from Rs. 45,000/-
per month to below Rs.10,000/- under the garb of fresh
appointment is ridiculously absurd, arbitrary and unjustified.
15. It is contended that the petitioner was appointed as per
Clause 8 of Government Resolution dated 10.06.2005, which
permits the private school to appoint Shikshan Sevak on payment of
honorarium. The said GR was issued to overcome difficulties faced
by the Regional Authorities in implementing the Shikshan Sevak
Scheme. The Scheme contemplates that the appointment of
Shikshan Sevak shall not be less than three years and upon approval
of the appointment by Education Officer, the Government would pay
him a fixed sum as honorarium. On completion of probation of
period of three years Shikshan Sevak is deemed to have been
appointed and confirmed as a teacher. Though, the services of
Shikshan Sevak are no longer contractual, yet their services can be
terminated during the probation period with one month notice, if
during the said period the work or behaviour is not satisfactory.
16. In this regard, it needs to be noted that the petitioner was
appointed as a Peon on a regular permanent post. His promotion as
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Shikshan Sevak deprives him of the pay scale as well as other service
benefits that he enjoyed in the post of lower grade. Evidently, such
promotion does not enhance his prospect but severally prejudices his
interest in every way. This anomaly can only be obliterated by
treating the promotional post as that of the Assistant Teacher and
by granting regular pay scale and other service benefits enjoyed by
Assistant Teacher, albeit, the promotional post is termed as Shikshan
Sevak.
17. The petitioner has placed on record several approval orders
at annexure XII, which indicates that similarly placed employees
were promoted to the post of Assistant Teacher and have been
granted scale of an Assistant Teacher i.e. S-14 38,600-1,22,800/- as
per 7th Pay Commission. It is also pertinent to note that by order
dated 16.01.2023 this court had expressed that respondent No.4
should take appropriate decision to address the grievance of the
petitioner that the approval ought to have been given as Assistant
Teacher and not as Shikshan Sevak. The petitioner filed an
additional affidavit stating that after filing of the petition the
respondent No.4 - Education Officer considered the representation
and granted a fresh approval and protected the pay scale. Curiously
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enough, on the very next date i.e. on 21.04.2023, respondent No.4
directed the petitioner to hand over the original approval stating
that the same has been rescinded.
18. In response, respondent No.4 has filed the counter
affidavit, wherein respondent No.4 has not denied having issued
approval order dated 20.04.2023 protecting the pay scale. He
contends that he was confused and misinterpreted the order of the
Court as direction to issue approval order. He states that he realized
the mistake on discussing the matter with the AGP and hence,
rescinded the order and declined the request of the petitioner to
protect his pay scale.
19. Admittedly, the petitioner was not heard before rescinding
the approval order. Moreover, the petitioner has placed on record
copy of the approval dated 24.03.2023 and further stated that
respondent No.4 has granted similar approval to Mr.Radhakrishnan
Mane. He has placed on record the said approval dated 18.01.2023.
20. The respondent No.4 has not assigned any explanation as
to how other similarly placed employees have been granted approval
to the promotion on the post of Assistant Teacher on pay scale of
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S-14-38600-1,22,800/- as per 7th Pay Commission. Needless to
state, the same post with identical duties and responsibilities ex-
facie cannot have two different pay scales. The anomaly and
discrepancies in fixing the honorarium of Rs. 8,000/- while other
similarly placed employees have been given benefit of 7 th Pay
Commission amounts to invidious discrimination and violates
Article-14 of the Constitution of India.
21. Under the circumstances, it is held that (i) Clause 8 of G.R.
dated 10.06.2005, which stipulates promotion of non teaching staff
as Shikshan Sevak on payment of honorarium is arbitrary and
discriminatory. (ii) The petitioner is entitled to be appointed as
Assistant Teacher with the prescribed pay scale at par with pay scale
of other similarly placed promotees. (iii) Respondent No.5 -
Management to modify the appointment order dated 29.10.2021 to
the extent of appointing/promoting the petitioner as Assistant
Teacher instead of Shikshan Sevak. (iv) Respondent No.5 -
Management, is directed to submit the proposal to respondent No.4
for approval of appointment/promotion of the petitioner as Assistant
Teacher with pay scale of Assistant Teacher within four weeks from
the date of the order. (v) Respondent No.4 to consider the same as
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expeditiously as possible in any event within four weeks from the
date of the receipt of the proposal.
Rule is made absolute in above terms.
(VRUSHALI V. JOSHI, J) (ANUJA PRABHUDESSAI,J)
Signed by: Mrs. Prity Gabhane
Designation: PA To Honourable Judge
Date: 05/01/2024 11:48:25 Prity
