Bombay High Court
Avinash Murlidhar Deshmukh vs The State Of Maharashtra Thru The ... on 7 January, 2025
Author: Bharati Dangre
Bench: Bharati Dangre
2025:BHC-AS:2642-DB
WP-3582-2023.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.3582 OF 2023
Avinash Murlidhar Deshmukh
Aged 46 yrs, Occ. Service,
R/o. Panchamrut, Gujrathi Bag,
A/P/T Shahapur,
Dist. Thane-421 601. ...Petitioner
Versus
1. The State of Maharashtra
Through the Secretary,
School Education Department,
Mantralay, Mumbai -400032.
2. The Deputy Director of Education,
Mumbai Region, Mumbai.
3. Shahapur Taluka Education Society,
Shahapur, Dist. Thane,
Through its President/Secretary.
4. G. V. Khade Vidyalaya
[Junior College],
A/P/T Shahapur, Dist. Thane,
Though its Principal. ...Respondents
...
Adv. Narendra V. Bandiwadekar a/w Vinayak Kumbhar, Rajendra B.
Khaire, Aniket S. Phapale i/b Ashwini N. Bandiwadekar for the
Petitioner.
Adv. S. P. Kambl, AGP for the Respondent State.
...
Harish 1
WP-3582-2023.odt
CORAM : BHARATI DANGRE &
ASHWIN D. BHOBE, JJ.
DATE : 7th JANUARY, 2025
JUDGMENT (PER ASHWIN D. BHOBE J.) :
-
1. The Petitioner was appointed as a Full Time Assistant
Teacher on 21.06.2004 on unaided basis in the college of
Respondent No. 4.
The appointment received approval from Respondent
No. 2 on 04.04.2005 for the academic year 2004-2005, subject to
completion of probation period of two years. Services of the
Petitioner were continued on the same post in the subsequent
years, which received approval from the Respondent No. 2 on
28.11.2005 for the academic year 2005-2006 and on 01.11.2006
for the academic year 2006-2007. Petitioner completed the
probation period of two years in the said unaided post of Assistant
Teacher, which received approval from the Respondent No. 2 on
20.10.2007.
2. By an order dated 01.07.2012, Petitioner was
transferred to the aided division in the same college. The said
transfer was made considering the service rendered by the
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Petitioner on unaided basis and his seniority amongst the teachers
working on unaided basis under the Respondent No. 4.
Though, the Respondent No. 2 initially by order dated
25.09.2012, rejected approval to the Petitioner's transfer from
unaided to aided division, however the said order dated
25.09.2012, was recalled and by order dated 14.08.2014 approval
was granted to the said transfer.
Though the transfer of the Petitioner was made as an
Assistant Teacher in the available pay scale, however as per the
order dated 14.08.2014 the Respondent No. 2 granted approval to
the Petitioner's appointment as if it was a fresh appointment on the
post of Shikshan Sevak.
3. Upon completion of the period of 3 years of service as
Shikshan Sevak, the Respondent No. 2 by order dated 04.07.2016
granted approval to the Petitioner as a Full Time Assistant Teacher,
by imposing a condition of completing 3 years as Shikshan Sevak.
4. Petitioner having realized the error in the approval
dated 14.08.2014, which granted approval to his transfer as a
Shikshan Sevak instead of Assistant Teacher, requested the
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Respondent No. 4 to submit a revised proposal seeking approval to
the said transfer as Assistant Teacher. The contention of the
Petitioner was specific that having worked as Teacher on unaided
post for minimum of 3 years and subsequently being transferred to
fully aided post, approval to such transfer ought to be granted as a
Full Time Assistant Teacher on payment of 100% salary grant from
the date of such transfer.
5. Respondent No.4 vide proposal dated 21.05.2021,
requested the Respondent No. 2 to grant approval to the
Petitioner's transfer as Assistant Teacher w.e.f. 01.07.2012, taking
into account the service rendered by him in unaided division w.e.f.
21.06.2004.
6. The Respondent No.2 by order dated 23.08.2022,
placing reliance on Government Circular dated 28.11.2006,
rejected the proposal submitted by the Respondent No. 4.
7. Petitioner therefore is before this Court, seeking the
following substantial reliefs:
"b] By a suitable writ, order or direction, this Hon'ble
Court may be pleased to quash and set aside the
impugned order dated 23.08.2022 issued by the
Respondent No. 2.
WP-3582-2023.odt
c] By a suitable writ, order or direction, this Hon'ble
Court may be pleased to direct the Respondent No. 2 to
modify the order dated 14.08.2014 issued by the
Respondent No. 2 granting approval to the Petitioner's
transfer to fully aided post as a Shikshan Sevak on
monthly honorarium for 3 years, by granting the
approval as a Full Time Assistant Teacher on payment of
full salary in pay scale from the date of transfer with all
consequential benefits, including the payment of the
differential amount of the salary in pay scale after
deducting the amount of monthly honorarium and
monthly salary paid to the Petitioner up till now."
8. The learned Counsel Mr. Bandiwadekar for the
Petitioner submits that Petitioner's has completed the required
period of three of service as Shikshan Sevak/Assistant Teacher
w.e.f. 21.06.2004, on no-grant basis, which appointment had the
approval from the Respondent No. 2 and therefore when he was
transferred to the aided division, he need not repeat his period as
Shikshan Sevak and hence, the Respondent No. 2 erred in
directing Petitioner to undergo the said period once again before
his appointment is confirmed as Assistant Teacher.
In his submission Mr. Bandiwadekar has placed
reliance upon the decision of this Court in the case of Pramod
Prabhakar Pokale v/s. State of Maharashtr & Ors. reported in
2019(4) Mh. L.J. page 278 which dealt with the very same
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Government Resolution dated 28.06.2016, which imposes a
specific condition in sub clause -5 (a) of clause 3, thereof stating
that if a teacher is transferred from unaided section to aided
section, and if he/she has completed less than five years, in the
unaided section but is transferred to the aided section of the
school, an undertaking should be taken from him that he is ready
to work on honorarium basis for a period of 3 years.
9. This clause in the Government Resolution came up for
consideration before the Division Bench of this Court and dealing
with the rival contentions advanced in this regard, the Division
Bench, specifically observed thus :
"18. The State Government can issue direction to the
Institutions to fulfill its obligation to the extent of
disbursement of salary amount indicated in sub clause 5
(B) (1) to (5) of clause 3 of the said Circular. But there is
no reason for asking teacher / teachers to give such
undertaking, who has / have served 5 years or more than 5
years, and approval is granted to the appointment of such
teacher by the Education Officer on completion of
satisfactory probation period, and if such teacher is
transferred on aided post became vacant on account of
retirement of teacher working in the said institution. Such
teacher can be transferred keeping in view the overall
seniority of teachers serving in the said unaided school to
aided school run by the same institution or other such
unaided schools run by the same institution/trust.
Upon careful perusal of sub clause 5 (A) of clause 3 of
the said Circular, it is mentioned therein that, if the teacher
appointed on unaided basis, has rendered less than 5 years
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service, and in case the management wishes to make such
transfer from unaided school to aided school, in that case,
an undertaking should be obtained from such teacher to
work as Shikshan Sevak on consolidated pay. Prima facie
said provision appears to be attractive, however, in case
candidate is appointed on the post of Assistant Teacher
after following the mandate of Section 5 of the MEPS Act,
1977, and on completion of two years probation period, if
the Education Officer has granted approval to his
appointment on regular basis, and in case he is senior most
teacher serving in the school on unaided basis run by the
Institution, requests for his transfer from unaided school to
aided school or on aided post from unaided post in same
school, and if he has already completed 3 years period as
Assistant Teacher, there is no justifiable reason to ask him
to work again as Shikshan Sevak on consolidated pay for
three years. The sub clause 5 (A) of clause 3 of the said
Circular can be invoked wherein the Assistant Teacher has
not completed three years period after his appointment as
an Assistant Teacher in the school on unaided basis, and he
has not received approval to his services as an Assistant
Teacher on regular basis. In short, if the Assistant Teacher
has not completed satisfactory probation period, and if his
service or services are not approved by the Education
Officer on regular basis or there is no adherence to the
provisions of Section 5 of the MEPS Act, 1977, in that case,
the management is not entitled to transfer such teacher
from an unaided school to aided school or on aided post of
Assistant Teacher / Shikshan Sevak from unaided post held
by the Assistant Teacher. It is only in case where the
Assistant Teacher has acquired status of regular employee
on completion of two years probation period, and his
appointment is in adherence to the provisions of Section 5
of the MEPS Act, 1977, and the approval is granted by the
Education Officer to his appointment on regular basis on
the post of Assistant Teacher on completion of satisfactory
probation period, and he is 6114.18WP senior most teacher
working in the school on unaided basis, in that case, the
question of invoking sub clause 5 (A) of Clause 3 of the
said Circular would not arise. In such case, invoking said
provision would run contrary to the judgment of the
Division Bench (Coram : Dr.D.Y.Chandrachud and
A.A.Sayed, JJ.) of the Bombay High Court at Principal Seat
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in the case of Ms.Sandhya Laxman Ghosalkar [supra],
wherein it is observed in para 4 that, there was no
justification whatsoever for the Education Officer
(Secondary) to grant his approval only as Shikshan Sevaks
to the three Petitioners. It is further observed that, if the
Petitioners had been appointed as Assistant Teachers in the
aided school by transfer from the unaided school on the
basis of seniority, the approval ought to have been granted
to them as Assistant Teachers. This is especially so having
due regard to the fact that they were similarly
circumstanced 6114.18WP with other Teachers in whose
case approval was granted as Assistant Teachers."
10. In addition, reliance is also placed upon the decision of
the Division Bench in group of Petition decided on 25.04.2019
wherein, the Government Resolution dated 28.06.2016, fell for
consideration and in no uncertain terms it expressed its
concurrence with the Division Bench at Aurangabad , which noted
that the circular dated 28.06.2016 which provides for instructions
can hardly be said to be Government instructions and that it has
no statutory force in law.
Recording that Rule 41 of the MEPS Act, is a
subordinate legislation and the administrative decisions which are
in conflict with it, cannot be held to be valid in law, pronouncing
upon the clause 1 and 2 of the circular, the Division Bench had
recorded that it runs contrary to the subordinate legislation in
WP-3582-2023.odt
form of Rule 41 and hence, it is not valid.
11. This Court in the case of Sadanand Hari Ghodake
(Deceased) vs. State of Maharashtra And Ors. , in WP No. 14361 of
2022 in paragraph No. 6 of the order dated 03.01.2025 has
observed that the decision in the case of Promod Pokale
specifically focused upon the very same clause i.e. Sub clause 5(a)
of Clause 3 of the Government Resolution dated 28.06.2016 and as
the Division Bench has clearly declared that once having
undergone the period as Shikshan Sevak before an employee gets
himself promoted as Assistant Teacher on completion of 3 years,
there is no justification in he being asked to undergo the same
rigmarole when he gets voluntarily shifted to aided section or is
transferred to the aided section by the Management.
We concur with the findings of the Division Benches, as
we find the exercise of asking the Shikshan Sevak to undergo the
period of 3 years once again before he is confirmed as Assistant
Teacher to be unjustifiable as for getting himself converted into
regular post of Assistant Teacher what is required, the experience
gained by him for three years and it hardly matters whether the
experience of teaching while he was in unaided section or aided
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section, since as far as teaching experience is concerned, there is
no difference.
12. In the wake of the above, we have also heard the
learned AGP Shri. S. P. Kamble who concedes to the legal position
as is laid down by the authoritative pronouncement delivered by
this Court on earlier occasions and there can be no dispute that
each one is bound by the principle of law flowing thereof.
13. We therefore deem it appropriate to quash and set
aside the impugned order dated 23.08.2022 and consequently
direct the Respondent No. 2 to modify the order dated 14.08.2014,
thereby granting approval as a Full Time Assistant Teacher on
payment of full salary in pay scale from the date of his transfer.
Since we have allowed the Petition, the Petitioner is
entitled to be paid salary of Assistant Teacher from the date of his
transfer in the aided division, with all consequential benefits.
Respondent No. 2 the Deputy Director of Education, Mumbai
Region is directed to compute the difference in the honorarium
and the pay scale to which the Petitioner is entitled as an Assistant
Teacher and release this amount within a period of six weeks in
favour of the Petitioner.
WP-3582-2023.odt
14. Petition is disposed off in the above terms, with no
orders as to costs.
(ASHWIN D. BHOBE, J.) (BHARATI DANGRE, J.)
Signed by: Harish V. Chaudhari
Designation: PA To Honourable Judge
