Bombay High Court
Shri. Ajit Vilas Vankudre vs The State Of Maharashtra Through The ... on 20 January, 2025
Author: Bharti Dangre
Bench: Bharati Dangre
2025:BHC-AS:4090-DB
1/10 10 WP-11063-2014 O.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 11063 OF 2014
Shri. Ajit Vilas Vankudre .. Petitioner
Versus
The State of Maharashtra through .. Respondents
Secretary, School Education Department
and ors
...
Adv.Archana Gaikwad for the petitioner.
Mr.K.S.Thorat,'B' panel counsel a/w Ms. Nisha Mehra, AGP for
respondent nos.1 to 3.
CORAM: BHARATI DANGRE &
ASHWIN D. BHOBE, JJ.
DATED : 20th JANUARY, 2025
JUDGMENT ( PER BHARTI DANGRE, J):
-
1. The petitioner on having acquired qualification of MSc
(Mathematics) and B.Ed. (Mathematics), was appointed as a part time
teacher in Saraswati Secondary and Higher Secondary Vidyamandir,
Ringane, Taluka Lanja, District Ratnagiri, and he rendered his service
in the said capacity from 1/07/1997 to 28/12/2003.
At this juncture, it is necessary to note that the school in
which he rendered his service on part time basis was recognized as an
aided school and the appointment of the petitioner received approval
from the Deputy Director of Eduction from time to time.
2. The petitioner rendered his service as part time teacher
for a period of 6 years and 6 months, and in the wake of the scheme
Ashish
2/10 10 WP-11063-2014 O.doc
formulated by the State Government for absorption of Shikshan
Sevak as Assistant Teacher, on completion of period of 3 years as
Shikshan Sevak, a person becomes eligible for appointment as
Assistant Teacher and the very said policy contemplate that if a
person has worked as a part time Shikshan Sevak, on completion of 6
years of service, he becomes eligible for appointment as Assistant
Teacher.
3. The respondent no.4 is an Educational Institution
registered under the Bombay Public Trusts Act and the Societies
Registration Act, and respondent no.5. school is run by respondent
no.4, which is recognized by the Government and is also in receipt of
grant in aid.
Since in the said school a teaching post fell vacant, the
respondent no.4, initiated selection procedure by issuing
advertisement and inviting applications.
Since, the petitioner found himself to be qualified, he was
selected as Shikshan Sevak and by order dated 29/12/2003, he was
appointed on a honorarium of Rs. 4000/-.
Pursuant to his appointment, the respondent no.5 school
submitted a proposal for the approval to the Education Officer
(Secondary), Zilla Parishad, Ratnagiri, and on 30/12/2003, approval
was granted to his appointment as Sikshan Sevak.
He completed period of 3 years on 28/12/2006, and
became eligible for being appointed as Assistant Teacher, in the
prescribed payscale.
Ashish
3/10 10 WP-11063-2014 O.doc
The respondent no.5 issued an appointment order in
favour of the petitioner on 28/12/2006, appointing him as Assistant
Teacher in the payscale of Rs.5500-75-9000 and his appointment
received approval from respondent no.3 on 21/03/2007.
The aforesaid orders are part of the petition.
4. The grievance raised by the petitioner, in the petition is
that on completion of period of 6 years of service as part time
teacher, he ought to have been approved as full time Assistant
Teacher, and not as Shikshan Sevak and this benefit is claimed by
him based upon the Government Resolution dated 10/06/2005, issued
by the State of Maharashtra being annexed to the petition at Exhibit-
E.
5. The petitioner made a representation to the respondent
no.5, and requested that the proposal should be forwarded to
respondent no.3 to grant approval to him as Assistant Teacher from
his date of appointment in the respondent no.5 school and infact the
Managing Committee of the respondent no.4 in its meeting dated
5/06/2010 passed a resolution resolving that, such a proposal be
forwarded to the Deputy Director of Education. In terms of the
resolution a proposal was forwarded on 28/06/2010, to the respondent
no.3 to take action as per the Government Resolution dated
10/06/2005, by praying that the petitioner should be granted
approval, as Assistant Teacher by taking into consideration the
service rendered by him on part time basis and from 29/12/2003, the
payscale of 5500-9000 shall be made applicable to him.
Ashish
4/10 10 WP-11063-2014 O.doc
6. On 30/06/2010, the Education Officer (Zilla Parishad)
informed the respondent no.5, Headmaster that, the petitioner had
rendered his service as part time teacher in Saraswati Secondary and
Higher Secondary Vidyamandir, Ringne from 1/07/1997 till
28/12/2003, and the service amounted to 6 years and 6 months, which
received approval from the Deputy Director of Education. It was
informed that the petitioner was appointed as a full time Shikshan
Sevak in the respondent no.5 school from 29/12/2003, and the
Education Officer has granted approval to the said appointment and
from 31/03/2007, he was accorded the pay scale of Assistant Teacher.
Referring to the Government Resolution of 10/06/2005,
considering that the petitioner had rendered, service as part time
teacher for 6 years, he was held eligible for conferment of the pay
scale of Assistant Teacher from 29/12/2003, in terms of the
Government Resolution.
Upon the approval being conferred, the petitioner was
also paid the amount of difference in salary of Assistant Teacher and
the monthly honorarium, which was paid to him as Shikshan Sevak.
7. Upon all the benefits being conferred on the petitioner,
the respondent no.3 by letter dated 13/06/2011 sought certain
information and documents from respondent no.5 as some complaint
was received and a compliance was ensured at the level of respondent
no.5 vide letter dated 4/07/2011. Admittedly, the petitioner was not
informed about such complaint nor did he ever receive any copy of
the complaint and even, no explanation was called from him.
Ashish
5/10 10 WP-11063-2014 O.doc
On 22/11/2013, the respondent no.3 passed an order
informing the respondent no.5 that in the wake of the complaint
received in respect of the pay scale granted to the petitioner and the
report submitted by the Accounts Officer, Accounts and Audit Unit
(Education), Ratnagiri, a report was submitted to respondent no.2, to
grant approval to the petitioner as Assistant Teacher in place of
Shikshan Sevak. However, by letter dated 14/10/2013, the respondent
no.2 directed to take action by recovering of the amount from the
petitioner, as the approval was wrongly conferred on him and it was
also informed that the excess amount be recovered should be verified
from the Accounts Officer and necessary steps should be taken.
The said communication dated 22/11/2013, is addressed
by the Education Officer (Secondary), Zilla Parishad, to the
Headmaster of respondent no.5 without any copy of the same being
forwarded to the petitioner and this was based upon a communication
from the Deputy Director of Education, Kolhapur Division, directing
recovery to be made from the petitioner.
8. Startled by the aforesaid action, the petitioner preferred a
representation to the Education Officer i.e. respondent no.3
requesting for an opportunity being afforded to him of being heard
before the recovery is given effect to. The Headmaster of the
respondent no.5 school also addressed a communication to the
petitioner on 7/10/2014, indicating that the amount sought to be
recovered should be deposited in the Government Treasury at the
earliest or else his salary payable for the month shall be withheld.
Ashish
6/10 10 WP-11063-2014 O.doc
9. Alleging that the impugned action on part of the
respondent nos.2 and 3 resulting into issuance of communication by
the respondent no.5 for recovery on the ground of excess salary being
completely erroneous, illegal and in violation of principles of natural
justice, as the whole decision was taken behind his back, he
approached this Court by filing the present Writ Petition.
On 16/12/2014, this Court passed the following order:-
" Heard.
2. Issue notice to the respondents, returnable on 03.02.2015.
3. Learned AGP waives service for respondents No.1 to 3-State.
In the meantime, ad-interim relief in terms of prayer clause
(d)."
In the wake of the aforesaid order, the recovery directed
against the petitioner came to be stayed and the said ad-interim order
continue to remain in force till date.
10. We have taken up the petition for final hearing by
consent of the respective counsel, and we have taken note of the
stand of the respondent nos.1 and 3 placed in an affidavit filed by the
Deputy Education Officer (Secondary) Zilla Parishad, Ratnagiri,
where a trivial objection is raised that the petition deserve a dismissal
since the Accounts Officer, District Audit Squad (Education),
Ratnagiri is not impleaded as a party respondent.
We find the objection to be frivolous and reject the same,
as according to us the Accounts Officer is not a necessary party,
though he may be a proper party.
11 On merits, the affidavit filed state as below thus:-
Ashish
7/10 10 WP-11063-2014 O.doc
"c) With reference to Para-2 of the present Petition, I
say and submit that, in the Para 2 of the Petition the Petitioner
contains information in connection with the services rendered
by the Petitioner in Saraswati Secondary and Higher Secondary
Vidyamandir Ringane, Taluka- Lanja, District-Ratnagiri as part
time Junior College/Higher Secondary Teacher for a period of 6
years 6 months. I say and submit that, as per the scheme of
Shikshan Sevek framed by the State Government, a candidate
appointed as Shikshan Sevek is required to work for 3 years and
thereafter he becomes eligible to be appointed as Assistant
Teacher in pay scale and the policy also provides that, if the
candidate is appointed as part time Shikshan Sevek, then he has
to work for 6 years in the capacity and thereafter he become
eligible for appointment as Assistant Teacher in the pay scale. I
say and submit that, in the present matter, the Petitioner
rendered the 6 years services at Higher Secondary College and
therefore, the present Petitioner is not entitled to take benefit of
services so rendered in Higher Secondary/Junior College level
for fresh appointment made as Secondary Teacher.
d) With reference to Para-3 & 4 of the present petition, I say
and submit that, it is true that, the Petitioner has rightly been
given appointment as Shikshan Sevek in the Respondent no.4
Secondary School for three years from 29.12.2003 to
28.12.2006 and thereafter as Assistant Teacher w.e.f.
29.12.2006. I say and submit that, it is true that, after complete
3 years services of the Petitioner as Shikshan sevek in
Respondent no.5 School, the Petitioner become eligible to
appointment as Assistant Teacher in prescribed pay scale and
accordingly the Respondent no.5 issued appointment order on
28.12.2006 appointing the petitioner as Assistant Teacher. It is
also true that, thereafter the proposal was submitted to the
Respondent no.3 for approval and accordingly by order dated
21.3.2007 the Respondent no.3 granted the approval to the said
appointment in the pay scale mentioned in the petition."
12. We have heard Advocate Archana Gaikwad for the
petitioner and Mr. K.S. Thorat 'B' panel counsel a/w Ms. Nisha
Mehra, the learned A.G.P. for the respondents.
The stand of the respondents is peculiar, as it is urged
before us that one Sakre, resident of Pachal preferred a complaint to
the Director of Education, Secondary and Higher Secondary
Education, Maharashtra State, Pune, on 22/12/2011, in respect of
grant of approval to the petitioner as Assistant Teacher with effect
Ashish
8/10 10 WP-11063-2014 O.doc
from 29/12/2003, instead of Shikshan Sevek and it is urged that the
enquiry was conducted into the said complaint. It is also submitted
that the Accounts Officer, District Squad (Education), Ratnagiri was
requested to carry out the necessary verification and report as to
whether recovery of excess salary is to be effected from the
petitioner.
Accordingly, it is submitted that the Accounts Officer
submitted his report by his letter dated 5/10/2012, making it clear that
the benefit of part time service can be extended only, if the full time
appointment is in the same cadre i.e. Higher Secondary/Junior
College teacher to the Higher Secondary/Junior College teacher and
since the petitioner had rendered 6 years services in Higher
Secondary College is not entitled to take the benefit for his fresh
appointment made in a Secondary School of respondent no.5, and
therefore, the recovery of the excess payment to the petitioner was
justified.
13. We must turn our attention to the basis on which the
petitioner was conferred the benefit of which he was subsequently
deprived of and we find the Government Resolution dated
10/06/2005, issued by the School Education and Sports Department
at Exhibit E to the petition.
The aforesaid Government Resolution, is a corrigendum
to the Government Resolution dated 13/10/2000, issued by the State
Government for implementing the modified Shikshan Sevak Scheme
as it was found that certain practical difficulties are arising in
implementing the scheme and the guidelines are issued to redress
such difficulties.
Ashish
9/10 10 WP-11063-2014 O.doc
Clause No.9 of the said corrigendum issued on
10/06/2005, categorically stipulate that for part time teachers if the
workload of full time teacher is available and if the candidate qualify
in other terms and conditions of appointment, he should be appointed
as Shikshan Sevak, however, while issuing such appointments and
granting approval, it would be mandatory to follow the reservation
policy for backward classes.
The clause further states that if a part time teacher has to
be appointed as Shikshan Sevak, half of his service (6 months for
one year) should be taken into consideration and if he is found to be
eligible for appointment, he shall be placed in regular pay scale. It is
further clarified that if a part time teacher has rendered 6 years
service and if he is to be conferred with the benefit of full time
teacher, he shall not be appointed as Shikshan Sevak, but shall be
placed in the regular pay scale as per the existing terms and
conditions.
14. We do not find any restriction imposed in the
Government Resolution dated 10/06/2005, which is projected as an
excuse in the affidavit filed by respondent nos.1 and 3, by submitting
that the petitioner is not entitled to take benefit of the service of 6
years and 6 months being rendered in Higher Secondary and Junior
College.
It is highly erroneous on part of the respondents to read this
condition into the Government Resolution, as we have noted that the
petitioner's appointment as a part time teacher was in Saraswati
Secondary and Higher Secondary Vidyamandir, which was a
government recognized and aided school, whereas the appointment of
Ashish
10/10 10 WP-11063-2014 O.doc
the petitioner in the respondent no.5, after following the due
procedure of selection was also in a government recognized and
aided Secondary school.
The stand adopted by the respondent nos.1 and 3, in an
attempt to recover the amount from the petitioner on the ground
stated in the affidavit in reply, and in an attempt to deprive him from
the benefits conferred on him that is his placement as Assistant
Teacher in the regular pay scale with effect from 29/12/2003, is
completely erroneous and an arbitrary decision and as we find that
the appointment of the petitioner even as a part time teacher was in a
Secondary and Higher Secondary School and his subsequent
appointment as Shikshan Sevak was also in a recognized aided
Secondary School and he is definitely entitled for the benefit of the
clarification issued by the School Education and Sports Department
in the corrigendum/resolution dated 10/06/2005, and in particular
clause 9 thereof.
15. In the wake of the above, we deem it appropriate to
quash and set aside the impugned communication dated 22/11/2013,
issued by the respondent no.3, directing recovery of the alleged
excess salary paid to him of the post of full time Assistant Teacher in
the respondent no.5 School. By confirming the interim order granted
in his favour on 16/12/2014, the Writ Petition is made absolute.
No order as to cost.
(ASHWIN D. BHOBE, J) (BHARATI DANGRE, J)
Ashish
