Bombay High Court
Ashok Ramdas Chaudhari vs The State Of Maharashtra Through Its ... on 3 May, 2024
Author: Ravindra V. Ghuge
Bench: Ravindra V. Ghuge
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 4009 OF 2024
Ashok s/o Ramdas Chaudhari .. Petitioner
versus
The State of Maharashtra & others .. Respondents
Mr. R. D. Bhalerao, Advocate for the Petitioner.
Mr. S. K. Tambe, AGP for the State.
CORAM : RAVINDRA V. GHUGE AND
R. M. JOSHI, JJ.
RESERVED ON : 17th APRIL, 2024.
PRONOUNCED ON : 3rd MAY, 2024.
PER COURT : ( Per R. M. Joshi, J.)
1. The Petitioner has filed this Petition with following
prayers :-
B) Record and proceedings of the impugned act of the
respondents under challenge in this Writ Petition may
kindly be called for in order to examine its legality,
validity and propriety from the office of respondent -
Additional Commissioner, Tribal Development
Department, Nashik as well as Project Officer, Integrated
Tribal Development Project, Yawal.
C) By issuing an appropriate writ, order or directions
in the like nature, the respondent No. 2 - Commissioner,
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Tribal Development Department, Nashik may kindly be
directed to consider the petitioner's pending
representation dtd. 1-12-2023 (Annexed at Exh. A), in
accordance to law as well as in its proper perspective as
early as possible and within a stipulated period of time.
D) By issuing an appropriate writ, order or directions
in the like nature, the impugned erroneous approval dtd.
15-1-2009 issued by the respondent no. 3 - Additional
Commissioner, Tribal Development Department, Nashik
(Annexed at Exh. G) is being illegal, improper, unfair and
unjust one may kindly be quashed and set-aside.
2. It is the case of the Petitioner that he is qualified and
appointed as "Primary Ashram School Teacher" and his appointment
is duly approved. The Petitioner is aggrieved by the act of non-
consideration of his pending representation dated 01.12.2023 by
Respondent No. 2- Commissioner, Tribal Development Department,
seeking cognizance of his service proposal dated 18.03.2020, filed by
the school seeking relaxation of the impugned pre-condition of
completion of B.Ed course by order of the Additional Commissioner
on 15.01.2009 while granting approval to the permanency of the
Petitioner.
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3. It is the case of the Petitioner that since 03.06.2000, he
is satisfactorily working as a "Primary Ashram School Teacher" in an
aided educational institution run by Jai Tulja Bhavani Bahu-
Uddeshiya Shikshan Prasarak Mandal, Chalisgaon, Tq. Chalisgaon,
Dist. Jalgaon. The Petitioner claims to have acquired qualification of
D.Ed. (H.S.C. Arts) in 1997. On 29.05.2000, he was appointed as a
Primary Ashram School Teacher. On 28.01.2001, he completed B.A.
(English) and D.Ed. His appointment was duly approved by the
Project Officer on 29.01.2001. The employer-institution promoted the
Petitioner as 'Graduate Primary Ashram School Teacher' with effect
from 07.04.2004. His employment was regularised on 10.10.2006.
4. It is the case of the Petitioner that unwarrantedly, on
15.01.2009, Additional Commissioner imposed pre-condition to
complete additional educational qualification of B.Ed. within 5 years
and temporarily approved the Petitioner's services. As a result of
which, the salary increments though were indicated in his record,
were not actually granted and this has resulted into causing of
injustice to him. He, therefore, filed representation on 27.02.2020,
with the employer-institution. On 18.03.2020, the proposal was
forwarded to the Project Officer. However, since no action was taken
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on the basis of the said proposal, the Petitioner filed representation
dated 27.10.2023 of which, no cognizance was taken. Hence, this
Petition.
5. The learned Advocate for the Petitioner submits that the
Petitioner was holding the requisite qualification for appointment as a
teacher in the primary school and as such, condition imposed by
order of 2009 of acquiring qualification of B.Ed is unwarranted and
illegal. It is his submission that though the said qualification was
not acquired within 5 years, however, in the year 2020, he acquired
the same. Thus, it is his contention that it is a fit case wherein the
Petitioner is required to be given all the benefits of his appointment
as if he was having the requisite qualification for the purpose of
appointment.
6. The learned AGP opposed the said contention by drawing
attention of the Court to the fact that order dated 15.01.2009 has not
been challenged by the Petitioner till date. It is his submission that
the qualification of B.Ed was essential for a "trained graduate
teacher" and in absence thereof, the Petitioner is not entitled to seek
any benefit.
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7. Admittedly, the Petitioner was appointed in a primary
school and by order dated 15.01.2009, he was granted conditional
confirmation with the condition of acquiring B.Ed qualification
within 5 years. The Petitioner has never challenged the said order
and infact has made several attempts for acquiring the said
qualification and ultimately got the degree of B.Ed in the year 2020.
The fact of failure on the part of the Petitioner to challenge the said
order and to acquire B.Ed qualification in order to comply with the
said condition, shows that there is acquiescence on the part of the
Petitioner to the said order. In our view, therefore, now it would not
be open for the Petitioner to challenge the validity of the said order.
8. Now, the question arises as to whether the Petitioner can
be denied the benefit of 'trained graduate teacher' for all the time on
the ground that he has not completed the B.ed qualification in 5
years of the order. The relevant Government Resolution dated
11.08.1999 indicates that there would be 25% trained teachers for V
to VII standards. Thus, even on acquisition of qualification of B.Ed, a
teacher would not be entitled to receive higher scale but shall be
entitled to the same as per his seniority. Though the Petitioner did
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not obtain the said qualification within 5 years however, admittedly,
the said qualification has been obtained by him in the year 2020.
9. The Division Bench of this Court, in case of Vithal
Fakruji Madavi & others vs. Zilla Parishad & another, 2006(3)
Bom.C.R. 348, after considering Government Resolution dated
11.08.1994, has observed that :
11. Even otherwise the stand taken by the State
Government is in consonance with the said Government
Resolution. Clause 3 of the said Government Resolution
reads thus :
"(3) The posts of the primary teachers thus converted
into higher pay scale of Rs. 365-760 should be from the
category of primary teachers only. On such converted
posts the Local Self Governing Bodies should appoint the
primary teachers working full time in their bodies and
holding educational qualification mentioned elsewhere in
this order. These appointments should be made
according to the seniority of the concerned teachers from
the category of primary teachers. Such appointments
shall not be the appointments by promotion."
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It can, thus be seen from the said clause that the
local bodies should make the appointments to higher
scale of the teachers possessing the requisite
qualifications mentioned elsewhere in the said G.R.
12. The relevant portion of Clause (5) of the said
Government Resolution reads thus :
"(5) On the posts of primary teachers converted into
higher pay scale of Rs.365-760, the Primary teachers
falling in the undermentioned categories of the Graduate
Primary Teachers in service (Graduate teachers having
completed the training course prescribed for primary
teachers) be appointed on the following conditions :-
(1) Trained primary teaches who have done
graduation in Arts, Science offering at least one subject
taught in the primary schools and also who hold B.Ed.
degree in education or (Primary teachers) of commerce
faculty.
(2) Trained primary teachers who have not offered any
of the subjects taught in primary schools, but who have
done graduation in other subject. The primary teaches
under this category be given the new higher pay scale on
the condition that within 5 years of their appointment on
the post of this higher pay scale of Rs. 365-760
(unrevised) they should, at their own expense, acquire
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degree offering at least one subject taught in the primary
schools, if this condition is not followed the increments in
the new pay scale be withheld for next five years till they
acquire this degree.
(3) To the primary teachers under the category of
trained primary teaches who have done graduation in
other subject, without offering a subject taught in the
primary schools, and who have not acquired degree in
education i.e. B.Ed. be given the new higher pay scale on
the condition that they should at their own expense,
acquire a degree offering at least one subject taught in the
primary schools within 5 years from the date of their
appointment. Similarly, they should acquire degree in
education i.e. B.ed. also. If this condition is not followed,
the next increment of such teachers in the new pay scale
be withheld till they acquire these degrees.
(4) If the other graduate primary teachers holding other
equivalent degrees working in the primary schools, fulfil
other terms and conditions as above, they are also
entitled to be appointed as eligible degree holder
teachers.
(5) The primary teachers from the primary schools on
the pattern of 5th to 7th standard from the secondary
schools who were in service prior to 1-10-1970 and who
held university degree prior to 17-4-1979, (such teachers)
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are not required to acquire B.Ed. degree within 5 years for
being appointed in the trained graduate pay scale
(eligible degree holders).
As above, to the graduate primary teachers who
have been appointed on the post of eligible degree holder
on the condition that they shall acquire B.Ed. degree
within 5 years from the date of their appointment and
who have not acquired B.Ed. degree within the extended
period i.e. till 30th June,1994, withheld regular increments
be released from the month next to the month in which
they have actually acquired B.Ed. degree after 30th June,
1994."
It can, thus be seen from the conjoint reading
of Clause 3 and 5 that the seniority and possessing the
requisite qualifications will be a criteria for grant of higher
pay scale. Sub-clause (1) of Clause 5 would show that
first preference has to be given to such of the teachers
who have obtained degree of graduation in Arts or
Science stream, in one of the subjects which is taught in
the school along with a degree in teaching I..e B.Ed. It
also includes a trained teacher in Commerce faculty. Sub-
clause (2) of Clause 5 would show that second preference
will have to be given to such of the trained graduates
possessing a degree of B.Ed. but not possessing a degree
in graduation in one of the subjects taught in the primary
schools. However, the higher placement has to be
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granted to such of the teachers on the condition that they
obtain degree of graduation in one of the subjects taught
in the school, within a period of five years.
13. Third preference has to be given to such of the
teachers who do not possess a graduate degree in one of
the subjects taught in the school and also do not possess
B.Ed. qualification. Such of the teachers will also be
granted higher pay scale on the condition that they shall
obtain a degree of graduation in one of the subjects
taught in the said school so also degree of B.Ed. within a
period of 5 years.
14. Sub-clause (4) specifies that such of the primary
teachers who are possessing equivalent qualifications
and who also qualify the other terms and conditions,
would also be entitled to be given higher pay scale of
trained graduate teachers. Sub-clause (5) of the said
Government Resolution exempts such of the teaches who
were in service prior to or on 1 st October, 1989 and who
have obtained a graduate degree prior to 17-4-1979, from
obtaining the degree of B.Ed. within a period of 5 years
as provided herein above. The said Government
Resolution further provides that such of the teachers who
have been granted graduate teachers scale on the
condition of obtaining B.Ed. degree and who have not
obtained B.Ed. degree within the prescribed period,
would not be entitled to increment and their increment
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would be released only after they acquire the B.Ed
qualification.
[Emphasis supplied]
The Authorities, therefore, need to take into
consideration the aforestated observations of this Court, while
deciding the representation of Petitioner.
10. In view of the above, we find it appropriate to direct the
Respondents to consider the Representation dated 01.12.2023, filed
by the Petitioner, in the light of the judgment delivered in Vitthal
Fakruji Madavi (supra), within a period of 90 days.
11. The Petition stands partly allowed in the above terms.
( R. M. JOSHI) ( RAVINDRA V. GHUGE)
JUDGE JUDGE
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