Bombay High Court
Smt. Maya Vikram Pingle vs State Of Maharashtra, Thr. Secretary, ... on 25 October, 2024
Author: M.S. Jawalkar
Bench: Avinash G. Gharote, M.S. Jawalkar
2024:BHC-NAG:12211-DB
wp 5317-2021.odt 1/20
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 5317 OF 2021
Smt. Maya Vikram Pingle,
Aged- 58 years, Occu- Retired,
R/o. 29, "Harivijay", Loksewa Nagar,
Mokhare College Road, Bhamti, Nagpur
....PETITIONER
....VERSUS....
1. State of Maharashtra,
through its Secretary, Department of
Education, Mantralaya, Mumbai - 32
2. The Education Officer (Primary),
Zilla Parishad, Nagpur
3. Bal Mandir Sanstha,
Dharampeth, Nagpur -10,
C/o. Paranjape School, Dharampeth,
Nagpur, through its Secretary
4. Lt. Colonel V.D. Paranjape
Memorial School, Dharampeth,
Nagpur, through its Headmistress
....RESPONDENTS
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Shri Shri Mohan Sudame, Senior Advocate with Shri Akshay
Sudame, Advocate for petitioner.
Shri A.J. Gohokar, AGP for respondent/State
Shri Shaikh Majid, Advocate for respondent No.2.
Shri K.K. Pathak, Advocate for respondent Nos. 3 & 4
-----------------------------------------------------------------------------------------
CORAM : AVINASH G. GHAROTE AND
SMT. M.S. JAWALKAR, JJ.
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DATE OF RESERVING THE JUDGMENT: 07/10/2024
DATE OF PRONOUNCING THE JUDGMENT : 25/10/2024
JUDGMENT (PER: SMT. M.S. JAWALKAR, J.)
Heard.
2. Rule. Rule made returnable forthwith.
3. Heard finally by consent of learned counsel appearing
for the parties.
4. The petitioner is seeking to challenge the action on the
part of the respondent Nos. 2 to 4, in not granting benefit of Senior
Grade Pay Scale as well as Selection Grade Pay Scale, after
completion of 12 and 24 years of services, respectively, and further
not granting her the benefit of her earlier services, rendered by her,
on unaided and non-approved basis, for the period from
05/07/1991 to 10/07/1999, and thus the said services were not
calculated for the purpose of pension and other pensionary
benefit, without there being any reason or fault on the part of the
petitioners.
5. It is the case of the petitioner that she possesses the
qualification of B.Sc (Bio), B.A. (Eng), B.Ed. and D.Ed. The
respondent No.3, is an Educational Institution and Society,
registered under Societies Registration Act as well as under
Bombay Public Trust Act. The said Society, runs the respondent
No.4, Primary School, consisting of classes from 1 st to 7th standard,
which is duly recognized by the Education Department which
started getting Grant In Aid facility from the year 1998 and was
put on 100% Grant-in-Aid from the year 2003.
6. In the Academic Session 1991-92, a clear and permanent
vacancy of Trained Graduate Teacher, was created in Middle
School Department of the respondent No.4-School, run by the
respondent No.3- Management, which was running on No Grant
In Aid basis, at the said relevant time. The respondent Nos. 3 and
4, by following the due process of law, as prescribed under Rule 9
of the Maharashtra Employees of Private Schools (Conditions of
Service) Rules, 1981 (for short, 'M.E.P.S. Rules'), appointed the
petitioner No.1, on probation, for the period of two years.
7. The appointment of the petitioner was on No Grant In Aid
basis, at that particular time and therefore, the proposal of the
petitioner was not sent to the Education Officer for grant of its
approval and thus, the appointment of the petitioner could not be
approved, for the period from 05/07/1991 to 09/07/1999.
8. The respondent No.3 vide its Transfer Order dated
27/07/1999, transferred the petitioner from the respondent No.4,
School, to another English Medium School, run by it, on
Permanent No Grant In Aid basis and therefore, the petitioner
challenged the said order, before this Court, by filing a petition,
bearing W.P. No. 2871/1999 and this Court, was pleased to grant
stay to the said order and thereafter, the said matter was amicably
settled between the parties, which resulted in withdrawal of the
said transfer order.
9. After considering the excellent performance of the
petitioner, the respondent Nos. 3 and 4, continued the services of
the petitioners, on regular and permanent basis and since the
petitioner was working with the respondent No.4, for more than
30 years, thus as per Section 5(3) of the M.E.P.S. Act, 1977, she
attained the status of permanency, in the services.
10. It is further submitted that the Marathi Medium classes
started getting Grant In Aid facility, from the year 1999 and
thereafter, the proposal of the petitioner was sent to the Education
Officer, for grant of its approval, and the said appointment of the
petitioner, was duly approved by the respondent No.2, vide order
dated 07/12/2004, on Grant In Aid basis, but w.e.f. 10/07/1999,
i.e. the date of receipt of Grant In Aid facility.
11. It is submitted that though the petitioner was holding
the qualification of B.Ed. since beginning, however, she was
receiving the salary as Lower Division Teacher/Primay Teacher
and therefore, after considering the qualification of the petitioner,
the respondent No.4 - School, sent her proposal to the respondent
No.2, for grant of Pay Scale of B.Ed. Holder, in favour of the
petitioner, under 258 Trained Graduate Quota, on 19/04/2011 as
well as on 05/01/2012. However, the Education Officer, vide its
order dated 21/04/2012, granted the said to the petitioner, w.e.f.
01/01/2012.
12. As per the Government Resolutions, the petitioner was
entitled to get the benefit of Senior Grade and selection Grade Pay
Scale after completion of 12 and 24 years of continuous services.
However, the respondent Nos. 3 and 4 did not grant the said
benefit to the petitioner. The petitioner, attained the age of
superannuation on 31/07/2021, however, the petitioner has not
yet been granted the benefit of Senior Grade and Selection Grade
Pay Scale. Hence the present petition.
13. It is the contention of the learned Senior Counsel for
the petitioner that the State Government, vide Government
Resolution dated 02/09/1998, decided to grant the benefit of
Senior Grade and Selection Grade Pay scale, after completion of 12
and 24 years of continuous services, subject to fulfilling certain
conditions. The petitioner has already fulfilled all the conditions,
as prescribed in the said G.R. and she has further completed 3
weeks in service Training, on four occasions and thus, she is
entitled to get the benefit of aforesaid scheme of State
Government.
14. Subsequently, the State Government by Resolution
dated 11/11/2011 has clarified that B.Ed pass primary teacher
wherein 5th to 7th standard are attached to primary 1st to 4th
standard should be considered qualified for appointment to
primary school and Government Resolution dated 12/11/2001
requiring them to pass D.Ed. was cancelled. Hence, he prayed for
the interference by this Court.
15. Learned Senior Counsel for the petitioner relied on
following citations :
1. Jayashree Sunil Chavan Vs. State of Maharashtra and
others, 2000(3) Mh.L.J. 605.
2. Kondiba Vs. State of Maharashtra, 2003(2) Mh.L.J. 432.
3. State of Maharashtra and others Vs. Tukaram Tryambak
Chaudhari, (2007) 9 SCC 201.
4. The State of Maharashtra and others Vs. Sangam S/o
Namdeo Bawaskar and others, Writ Petition No. 6437/2007, High
Court Bench at Aurangabad.
5. Sunil S/o Kisanrao Jadhav Vs. The State of Maharashtra
and others, Writ Petition No. 5997/2014, High Court Bench at
Aurangabad.
6. Shamrao S/o Gyanbarao Bagate Vs. The State of
Maharashtra and another, Writ Petition No. 904/2015, High Court
Bench at Aurangabad.
7. Ashok S/o Venkatrao Bajgir Vs. The State of Maharashtra
and others, Writ Petition No. 7178/2015, High Court Bench at
Aurangabad.
16. Learned counsel for the respondent no. 2 contended
that the petitioner was not qualified. She was B.Sc, B.A, B. Ed. on
the date of her appointment and not HSS, D.Ed. which was the
requirement for teaching primary school classes. It is further
submitted that the Petitioner has compromised her dispute and in
Clause 3 of Compromise pursis dated 10/09/2003, the petitioner
has agreed that she would not claim any arrears of salary and shall
be satisfied with amount of salary paid to her till the date of
approval granted by Education Officer and further agreed to
receive salary in the scale as per approval granted by the
Education Officer. Hence, he prayed that the petitioner is not
entitled for anything claimed and accordingly, prayed for the
dismissal of the present petition.
17. The learned counsel for the respondent no. 2 has filed
pursis dated 24/09/2024 along with documents. In the said
documents, there is report filed by the Inquiry Officer and Dy.
Director of Education (Primary), Zilla Parishad, Nagpur. He
conducted inquiry as per direction of the Education Officer
(Primary), Zilla Parishad, Nagpur. During that inquiry, it was
revealed that though the petitioner was appointed on 05/07/1991
and she was B.Sc., B.A. and B.Ed., however, at the relevant time,
she was not holding D.Ed. Qualification. She has cleared her
D.Ed. exam on 23/09/1999. As she was transferred to unaided
English section, she had challenged it before this Court vide Writ
Petition No. 2871/1999. The said Writ Petition was disposed of as
there was settlement between the management and the petitioner
on 10/09/2003 and she was shown as appointed in aided school
and her appointment is also approved from 23/09/1999 for two
years probation. It is also mentioned in the report that in the said
Institution since 2004-05 till 2011-12, there were two sections
sanctioned for Class 5th to 7th standard and there were total eight
posts which were sanctioned. In view of Resolution of Co-
ordination Committee dated 23/09/2011, she was appointed as
graduate trained teacher and approval was granted to her
appointment from 01/01/2001. The remark is passed that the
petitioner has not claimed during the year 2004-05 to 2009-10 that
she is entitled to be appointed as graduate teacher and therefore,
her claim to be treated as graduate teacher from 2004-05 cannot be
granted. This report is of dated 06/07/2012. The learned counsel
for the respondent no. 2 also placed on record the G.R. dated
13/10/2016.
18. The learned counsel for respondent nos. 3 and 4 has
filed their say and submitted that there is inordinate delay without
any explanation. It is further contended that the petitioner was
appointed in the year 1991-92 as Extra Assistant Teacher. Her
appointment was temporary for the period from 05/07/1991 to
30/04/1991. Therefore, her contention that she was appointed on a
clear and vacant post is baseless. The requisite qualification
required for the post was Matric and D.Ed., however, the
petitioner was B.Sc., B.Ed. Her proposal sent by the Management
in the year 1996, was rejected by the Education Officer as she was
not holding requisite qualification to be appointed as a Primary
Teacher. The respondent nos. 3 and 4 had received Grant-In-Aid
facility in the year 1999, therefore, the respondent no. 4 forwarded
proposal to respondent no. 2 for grant of approval to the
appointment of the petitioner and it was duly approved w.e.f.
10/07/1999. It is further submitted that the petitioner was
extended with the benefit of 25% trained graduate quota vide
order dated 02/04/2012 by respondent no. 2. Therefore, her claim
for grant of benefit of selection grade since 1991 when she was
neither qualified nor trained teacher, cannot be considered from
retrospective date. The respondent nos. 3 and 4 relied on Clause-3
of the Government Resolution (G.R.) dated 06/05/2014 which
states that, service rendered on non-grant aid basis from the date
of approval to the concern appointment by the competent
authority will be considered for senior/selection category but
services of employees who lack requisite qualification, eligibility of
untrained candidates will be considered from the date on which
they have obtained the qualification prescribed for the post.
19. It is pointed by Ms. Pathak, learned counsel for the
respondent nos. 3 and 4 that the aforesaid G.R. dated 06/05/2014
fixes specific criteria for consideration of earlier service. In the
present matter, the petitioner acquired requisite qualification of
D.Ed. in the year 1999 and therefore, the respondent no. 2
approved her appointment from the date on which she obtained
the qualification prescribed for the post and therefore, her services
can never be taken into account from the year 1991. It is also
contended that, in view of the compromise entered between the
petitioner and the Management during the pendency of Writ
Petition No. 2871/1999, the petitioner had agreed that she shall not
claim any arrears of salary and shall be satisfied with the amount
of salary paid to her till the date of approval granted by the
respondent no. 2. Thus, having accepted the same, the petitioner
is estopped from demanding the benefit of selection grade after 12
years and 24 years and prayed for dismissal of the petition.
20. We have heard the learned counsel for respective
parties at length. There is no dispute that the petitioner is working
since 1991 with the respondent nos. 3 and 4. At the relevant time,
she was holding B.Sc., B.A. and B.Ed. qualifications. She has
cleared her D.Ed. exam on 23/09/1999. It is also matter of record
that she challenged her transfer order and thereby, she was
transferred to English unaided school vide Writ Petition No.
2871/1999. There is also no dispute that the school came into
Grant-In-Aid basis in the year 1999. Her appointment as Assistant
Teacher in Grant-In-Aid school was approved w.e.f. 23/09/1999.
As per report of Deputy Education Officer (Primary), in the year
2004-05 till 2011-12, there were two sections granted for 5th to 7th
standard and therefore, there were total eight sanctioned posts. As
the School Co-ordination Committee, on 23/09/2011, resolved to
fill up the post of graduate teachers in 25% quota, the petitioner
was appointed on 30/12/2011 and her proposal approved by the
Deputy Director of Education (Primary) w.e.f. 01/01/2012. There
is no dispute over these facts. The government passed the G.R.
dated 11/11/2011. The government while implementing this G.R.
considered earlier G.Rs. dated 14/11/1979, 23/09/1983 and
12/11/2001. In view of the provisions of M.E.P.S. Rules i.e. as per
Scheduled 'B-(1) of M.E.P.S. Rules, the requisite qualifications of
primary teacher are S.S.C. and Diploma of Education (D.Ed.) of
two years. In view of this, the primary teacher having qualification
graduation plus B.Ed. were considered as untrained teacher for
primary school. However, by G.R. dated 14/11/1979, it is made
clear that, if there are sections of 5th to 7th standard attached to
primary school and where there are more than four sanctioned
posts, then 25% of the posts can be filled in by the graduate trained
teacher. As per G.R. dated 23/09/1983, B.A. B.Ed. teachers
appointed in private primary school who were in services till
23/09/1983 will be treated as trained graduate teacher. In view of
similar Circular dated 25/10/2000 and G.R. dated 12/11/2001, the
candidates who were having B.Ed. qualification would be treated
as untrained and they were entitled to obtain training by postal
course. In view of the judgment passed by this Court and the
Hon'ble Apex Court, the issue of graduate trained teachers
appointed in the school where 5th to 7th standard are attached to
primary school was under consideration of the Government. The
following resolution is passed in the said G.R. dated 11/11/2011:-
'kklu fu.kZ;%& jkT;krhy LFkkfud LojkT; laLFkk] rlsp [kktxh
izkFkfed 'kkGkae/khy b;Rrk 1yh rs 7oh ;k oxkZauk izf'kf{kr
info/kj ch-,M- f'k{kdkaph use.kwd dsyh vlY;kl [kkyhy i/nrhpk
voyac dj.;kr ;kok-&
v½ izkFkfed 'kkGsrhy inoh/kj f'k{kdkaP;k ¼25%½ inkoj ch-,-
@ch-,l-lh- o ch-,M- vxksnj vgZrk /kkj.k d:u ¼Mh-,M- gh
vgZrk ul.kkjs½ ;k inkoj f'k{kdkaP;k fu;qDR;k dsY;k vlY;kl
v'kk f'k{kdkauk fu;qDrhP;k fnukadkiklwu izf'k{khr f'k{kd Eg.kwu
let.;kr ;kos- R;kauk inoh/kj izf'kf{krkph ¼ch-,M-½ osruJs.kh
ns.;kr ;koh-
c½ izkFkfed 'kkGsr ;k izf'kf{kr ¼ch-,M-½ inoh/kj f'k{kdkalkBh
vuqKs; vlysY;k 25% inkaO;frfjDr brj dks.kR;kgh izkFkfed
f'k{kdkaP;k inkoj ¼Mh-,M-vgZrk /kkj.k u dj.kkjs½ inoh/kj o
ch-,M- f'k{kdkaP;kgh fu;qDR;k dsY;k vlY;kl R;kaP;k fu;qDR;kaP;k
fnukadkiklwu v'kk f'k{kdkauk izf'kf{kr f'k{kd let.;kr ;kos- v'kk
f'k{kdkauk R;kaP;k fu;qDrhP;k osGh ns; vlysyh Mh-,M- izf'kf{kr
f'k{kdkph osruJs.kh {vkrk 5200&20200+xzsM is 2800} ns;
jkghy- tj f'k{k.k lsod Eg.kwu lsosr vlY;kl R;kauk f'k{k.k
lsodkapk ifjfo/kk/khu dkyko/kh iq.kZ dsY;kuarjp gh osruJs.kh
ykxw dj.;kr ;koh-
d½ izkFkfed 'kkGsrhy b;Rrk 5oh rs 7oh oxkZP;k inoh/kj
f'k{kdkaP;k ¼25%½ inkoj fu;qDr vlysY;k dsoG Mh-,M-
vgZrk /kkj.k djhr vlysY;k o uarj ch-,M- gh vgZrk /kkj.k
dj.;kl ijokuxh fnysY;k f'k{kdkauk ;k fu.kZ;keqGs ck/kk gksr
vlsy rjh R;kaP;kdMwu dks.krhgh olwyh dj.;kr ;smq u;s-
M½ ts izkFkfed 'kkGsrhy inoh/kj ch-,M- f'k{kd gs vizf'k{khr
f'k{kd Eg.kwu lsokfuo`Rr >kys vkgsr v'kk f'k{kdkauk fu;qDrhP;k
fnukadkiklwu izf'k{khr let.;kr ;kos o ns; vlY;kl R;kauk
izf'kf{kr f'k{kd Eg.kwu lsokfuo`Rrhps ykHk ns.;kr ;kosr-
21. By this G.R., the G.R. dated 12/11/2001 treating
teachers having graduation plus B.Ed. qualification as untrained
teacher was cancelled.
22. Translation of Government Resolution dated 11/11/2011:-
In case the trained graduate teachers possessing B.Ed
educational qualification are appointed for the classes from 1st to
7th standards in the schools run by the local self-government body
and the private primary schools in the State, the following
procedure shall be adopted:-
a) In case the teachers already possessing educational
qualification of B.A./ B.Sc. and B. Ed. (not possessing D.Ed.
educational qualification) are appointed to (25%) posts of the
graduate teachers in the primary schools, such teachers shall be
deemed to be trained teacher from the date of appointment. The
scale of pay of the graduate trained teacher (B.Ed.) shall be made
admissible to them.
b) In case the graduate and B.Ed Teachers (not possessing D.Ed
educational qualification) are also appointed to the any other posts
of Primary Teachers other than 25% posts admissible for trained
(B.Ed) graduate teachers in the Primary School, such teachers shall
be deemed to be trained teachers from the date of their
appointment. The scale of pay of D.Ed trained teachers admissible
at the time of their appointment (existing 5200-20200 + Grade Pay
2800) shall be admissible to such teacher. If rendering service as a
Shikshan Sevak, the said pay scale shall be made applicable to
him/her only after completing the probationary period as
'Shikshan Sevak'.
c) If the teachers, possessing D.Ed. educational qualification
only and subsequently permitted to acquire B.Ed. educational
qualification, appointed to (25%) posts for graduate teachers for
the classes from 5th to 7th standard in the primary schools are
affected by this resolution, no recovery whatsoever shall be made
from such teachers.
d) The graduate B.Ed. Teacher in the primary school, who is
retired as an untrained teacher, shall be deemed to be trained
teacher from the date of their appointment and if retirement
benefits, if any, are payable, such benefits shall be given to
him/her as trained teacher.
23. On perusal of Government Resolution dated
11/11/2011, it is clear that, it has retrospective effect. It covers the
teachers already possessing educational qualification i.e.
B.A./B.Sc. & B.Ed. (not possessing D.Ed. educational qualification)
and those who are appointed to 25% posts of the graduate teachers
in the primary schools, they are deemed to be trained teachers and
entitled for scale of pay of the graduate trained teachers. It also
covers the teachers having above referred qualification appointed
to any other posts other than 25% quota, as such teachers are also
deemed to be trained teachers from the date of their appointment
and they are held to be entitled for pay scale of D.Ed. trained
teachers admissible at the time of their appointment. It also covers
the graduate B.Ed. teacher in primary school, who is retired as an
untrained teacher, and is deemed to be trained teacher from the
date of his/her appointment.
24. In the present matter, admittedly, there were eight
vacancies and two posts could have been filled in under 25%
quota. It appears that, in the year 2012, the Management
forwarded the proposal of the petitioner under 25% quota,
however, it is a matter of fact that, by this G.R., the petitioner
ought to have been considered as trained teacher from the date of
her appointment. As such, even though there was no appointment
given to her in 25% quota, she is entitled to be treated as trained
teacher as the case of the petitioner would be covered by a
combined effect of Clauses (b) and (d) of the G.R. dated
11/11/2011 as these by a deeming fiction, treat such teachers as
trained teachers from the date of their actual appointment.
Consequently, her services from the date of her appointment
ought to have been considered for grant of benefit of Senior Grade
Pay Scale and the Selection Grade Pay Scale w.e.f. 5/7/2003 and
05/07/2015. However, as there was settlement between the
Management and the petitioner in earlier Writ Petition and she has
waived her right to earlier monetary benefits during the period
from 1991 to 1999, as such, she is not entitled for any difference of
arrears of salary. However, she is entitled for difference of arrears
of salary w.e.f. 10/07/1999 till the date of her superannuation.
Considering the retrospective effect of the G.R., we are of the
considered opinion that, the petitioner is entitled for the relief of
revised pay and pay fixation and to calculate her services w.e.f.
5/7/1991 notionally for the purpose of pension and Senior Grade
Pay Scale and Selection Grade Pay Scale. However, she is not
entitled for any actual arrears for the period from 1991 to 1999, on
account of waiver. The question of grant arrears on account of as
having held so, also arises. The issue has been considered in the
case of Union of India and ors. V/s. Tarsem Singh [(2008) 8 SCC
648], in which, the Hon'ble Apex Court has held as under:-
"In this case, the delay of sixteen years would affect the
consequential claim for arrears. The High Court was not
justified in directing payment of arrears relating to sixteen
years, and that too with interest. It ought to have restricted the
relief relating to arrears to only three years before the date of
writ petition, or from the date of demand to date of writ petition,
whichever was lesser. It ought not to have granted interest on
arrears in such circumstances."
25. The above proposition in our opinion ought to be
applied to the petitioner, on account of which though we have
held the petitioner is entitled to be treated as a trained teacher
w.e.f. 5/7/1991, however, considering the time lag, we hold that
she would be entitled to actual difference only for a period of 3
years prior to the filing of the petition and not earlier thereto.
Accordingly, we proceed to pass the following order:-
ORDER
1) The petition is partly allowed.
2) It is hereby declared that the petitioner is trained teacher
since 1991 from the date of her appointment on the post of
Assistant Teacher.
3) The respondent no. 2 - Education Officer (Primary) is
hereby directed to grant approval to the appointment of the
petitioner as a trained teacher w.e.f. 5/7/1991 notionally and her
services to be calculated from the date of her appointment for
pensionary and other benefits including Senior Grade Pay Scale
and Selection Grade Pay Scale as per her eligibility.
4) Upon such calculations having been made, the petitioner
would be entitled to the difference only w.e.f. a period of 3 years
prior to the filing of the petition and not earlier thereto.
Rule is made absolute. No order as to costs.
(SMT. M.S. JAWALKAR, J.) (AVINASH G. GHAROTE, J.)
Jayashree/Khapekar
Signed by: Mr. B.T. Khapekar
Designation: PA To Honourable Judge
Date: 25/10/2024 20:11:51
