Bombay High Court
Shekhar Deshmukh vs Deputy Director Of Education And 3 Ors on 3 July, 2018
Equivalent citations: AIRONLINE 2018 BOM 566
Author: Bharati H. Dangre
Bench: S.C. Dharmadhikari, Bharati H.Dangre
1/20 WP-1166(J).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.1166 OF 2018
Shekhar P. Deshmukh .. Petitioner
Versus
Deputy Director Education
and others .. Respondents
...
Mr.Mihir Desai, Sr. Counsel with Mr.Chetan Mali i/b
Mr.S.S.Jadhav for the petitioner.
Mr.Kedar Dighe, AGP for respondent nos.1 to 3.
Mr.J.K.Jadhav for respondent no.4.
CORAM: S.C. DHARMADHIKARI &
SMT. BHARATI H.DANGRE, JJ.
RESERVED ON : 14th JUNE 2018
PRONOUNCED ON: 3rd JULY 2018
JUDGMENT (Per Smt.BHARATI H. DANGRE,J)
1 The petitioner, an Assistant Teacher appointed in the respondent no.4 College is constrained to invoke the writ jurisdiction of this Hon'ble Court, praying for quashing and setting aside the impugned order dated 3rd March 2012, thereby placing the petitioner in the pay scale of 9300 - 34800 + Grade Pay of 4600 on completion of the period of Shikshan Tilak ::: Uploaded on - 05/07/2018 ::: Downloaded on - 06/07/2018 01:26:35 ::: 2/20 WP-1166(J).doc Sevak. The petitioner prays for appropriate direction to approve the services of the petitioner in the prescribed pay scale with effect from 1st February 2012 and for conferring on him the benefits of arrears of pay accruing from the said date considering his past service rendered to the respondent no.4 from 30th November 1998.
2 A few facts, which would be necessary for effective adjudication of the matter, are narrated in the subsequent paragraphs.
The petitioner on acquiring M.Sc (Physics) and B.Ed degree became eligible to be appointed as Assistant Teacher and accordingly, was so appointed in the respondent no.4 Junior College with effect from 30th November 1998. The order of appointment issued in favour of the petitioner made it clear that the appointment was for the Academic Year 1998-99 and the services were liable to be terminated on 20th April 1999. The said appointment was made on a salary of Rs.5922/- per month and it was made clear that the petitioner is not entitled for other allowances and benefits like bonus etc. Tilak ::: Uploaded on - 05/07/2018 ::: Downloaded on - 06/07/2018 01:26:35 ::: 3/20 WP-1166(J).doc In the next Academic Session, the petitioner was issued with a similar order of appointment for the Academic Session 1999- 2000. The petitioner was placed under suspension by an order dated 6th December 2001 and his services came to be terminated by the Management with effect from 4th April 2006 on recommendations of the Inquiry Committee, which came to be accepted by the respondent management. The said order of termination was assailed by the petitioner before the School Tribunal and the School Tribunal set aside the said termination order and directed the Management to reinstate the petitioner. The said order passed by the School Tribunal was challenged by the Management in a writ petition, which came to be disposed of by recording the consent terms arrived between the petitioner and the management, and the petitioner was reinstated in service with continuity with effect from 5th April 2006. The petitioner received his annual increment for the years 2007 to 2011.
3 In the year 2012, one vacancy occurred in the aided section of the college and the petitioner came to be transferred Tilak ::: Uploaded on - 05/07/2018 ::: Downloaded on - 06/07/2018 01:26:35 ::: 4/20 WP-1166(J).doc as Assistant Teacher in the said aided section with effect from 1st February 2012 for teaching Physics subject. While effecting such a transfer from unaided section where the petitioner was working to the aided section of the respondent no.4 Management, the petitioner was issued with a fresh appointment letter, appointing him on the post as a Shikshan Sevak. The said appointment of Shikshan Sevak was effected in pursuant to a Government Resolution dated 13th October 2000 which contained a scheme for appointment of Shikshan Sevak. The appointment was made for the period commencing from 1st February 2012 to 31st January 2015 on a consolidated payment. It is pertinent to note that before such a transfer, the petitioner was imparting education in a 'bi-focal' course in the respondent junior college, which is a stream offered for class XIth and XIIth standard by the State Government itself with a purpose of enabling the students who wish to pursue professional courses at graduational level. The proposal of appointment of the petitioner as Shikshan Sevak was forwarded to the respondent no.1 and the approval was granted to the said appointment in the capacity as Shikshan Sevak from 1st Tilak ::: Uploaded on - 05/07/2018 ::: Downloaded on - 06/07/2018 01:26:35 ::: 5/20 WP-1166(J).doc February 2012 to 31st December 2015. The said approval did not take into consideration the previous service rendered by the petitioner with effect from 30th November 1998 to 1st February 2012 as a teacher in bi-focal course.
It is the case of the petitioner that on non- consideration of his previous service and treating the petitioner as a fresh appointee from 1st February 2012 as a Shikshan Sevak, the petitioner raised a grievance with the Deputy Director of Education and he specifically submitted that once a teacher is transferred from unaided section to aided section in an institution, then his previous service cannot be wiped out and he cannot be recruited afresh as a 'Shikshan Sevak' and cannot be asked to complete three years of service, before being appointed as Assistant Teacher in the aided section. The respondent Management also recommended the request made by the petitioner by communication dated 16th December 2013 and it specified that from 30th November 1998 to 1st December 2012, the petitioner was working in the non-aided section of the junior college, and in such circumstances, the approval granted to the appointment of the petitioner as Shikshan Sevak Tilak ::: Uploaded on - 05/07/2018 ::: Downloaded on - 06/07/2018 01:26:35 ::: 6/20 WP-1166(J).doc from 1st February 2012 to 31st January 2015 is liable to be cancelled and he should be held eligible for the pay scale applicable as Assistant Teacher in the junior college. 4 Pursuant to the said communication, the Dy. Director of Education addressed a letter dated 12th May 2014 to the Secretary, School Education, State of Maharashtra, informing that as the petitioner was teaching 'bi-focal' subject in unaided section of junior college, and since this subject was not connected with school department, provision of such transfer from unaided to aided section cannot be made applicable. It is also reported that only if the institute is 100% aided, such a request for transfer can be accepted. On receipt of the said communication, the petitioner made a feeble attempt to convince the respondent authorities by his repeated representations, reiterating that the services of the petitioner are governed by Maharashtra Employees of Private Schools (Conditions of Services) Regulation Act, 1977 and Rules and the said Act covers primary schools, secondary schools and junior colleges run and managed by private management and Tilak ::: Uploaded on - 05/07/2018 ::: Downloaded on - 06/07/2018 01:26:35 ::: 7/20 WP-1166(J).doc does not differentiate on the basis of the subject taught by the teachers and therefore, his service rendered in bi-focal subject in the unaided junior college, cannot be wiped out in such a fashion. However, no cognizance was taken of the request of the petitioner and he is constrained to approach this Court by filing the present writ petition.
5 In support of the petition, the learned senior counsel Shri Mihir Desai would submit that grave injustice has been caused to the petitioner by completely ignoring his services rendered as an Assistant Teacher from his initial appointment i.e. 30th November 1998 and again appointing the petitioner as a Shikshan Sevak and conferring him the status of an Assistant Teacher on completion of period of 3 years as Shikshan Sevak, pursuant to his appointment with effect from 1st February 2012. The learned senior counsel would submit that the scheme of Shikshan Sevak which was floated by the State Government enabled a teacher to gain experience as a Teacher and subsequently, he was held entitled for being absorbed as an Assistant Teacher and he would submit that the Tilak ::: Uploaded on - 05/07/2018 ::: Downloaded on - 06/07/2018 01:26:35 ::: 8/20 WP-1166(J).doc definition of term 'Employee' in MEPS came to be amended by the Maharashtra Amendment 9 of 2012 so as to include Shikshan Sevak. The learned Senior counsel would submit that the MEPS Act covered the recruitment and the conditions of service of the employees in private schools in the State and these private schools would also cover a junior college and a Higher Secondary School. i.e. a school where education in class XI and XII is imparted. He would invite attention of this Court to the definition of "school" as defined in Section 2(24) of the MEPS Act 1977. He would further submit that by the Amending Act of 2012, the term "Shikshan Sevak" has been inserted within the purview of the enactment and section 2(24- A) came to be inserted to define Shikshan Sevak, meaning a member of the teaching cadre appointed on honorarium and subject to such terms and conditions specified in the Government Resolution. Shri Desai would submit that on a number of occasions, this Court was confronted with the issue as to whether an Assistant Teacher who was appointed in the unaided school whether could be transferred to an aided school run by the same management. He would submit that an Tilak ::: Uploaded on - 05/07/2018 ::: Downloaded on - 06/07/2018 01:26:35 ::: 9/20 WP-1166(J).doc argument on behalf of the education department that the posts falling vacant in aided schools are required to be filled in by appointing Shikshan Sevak and it would not be permissible for the institutions to fill in the said vacancy by transferring a teacher from the school which does not receive grant-in aid has been repelled by this Court in catena of judgments. He would submit that this Court did not find any justification in the said submission and has held that the transfer of an Assistant Teacher serving in the unaided school to an aided school to fill up the vacancy which is in receipt of grant-in aid post, is not prohibited.
Per contra, the learned AGP Shri Kedar Dighe appearing on behalf of the respondent authorities placed reliance on the affidavit in reply filed by the Dy. Director of Education, School Education and Sports Department on 13th June 2018. He would submit that the appointment of the petitioner for the Academic Session 1998-99 and 1999-2000 was purely on temporary basis and in bi-focal subject/course. He would further submit that there is another hindrance, since the appointment was in unaided section of the said junior Tilak ::: Uploaded on - 05/07/2018 ::: Downloaded on - 06/07/2018 01:26:35 ::: 10/20 WP-
1166(J).doc college pertaining to the department of technical education. He would submit that such an appointment cannot be considered as a regular service and it is categorically stated that the appointment was not as a Shikshan Sevak. Mr.Dighe would further submit that it is for the first time that the petitioner was appointed as a 'Shikshan Sevak' in respondent no.4 college with effect from 1st February 2012 and this appointment was approved by the competent authorities of the school Education Department by the impugned communication dated 3rd March 2012. The learned AGP would thus submit that the relief sought by the petitioner cannot be granted and his services can be considered as regular services only on completion of 3 years of probation, to be reckoned from 1st February 2012 and his service in the unaided faculty on temporary basis, cannot be considered at all. He also expressed an apprehension that if the relief as prayed by the petitioner is granted, several such appointments made by the school/college management in their own capacity and not approved by the education department, will have to be considered. He would thus pray for dismissal of the writ petition.
Tilak
::: Uploaded on - 05/07/2018 ::: Downloaded on - 06/07/2018 01:26:35 :::
11/20 WP-1166(J).doc
6 On consideration of the entire gamut of the matter,
it can be seen that the respondent authorities have a misconceived notion that the teacher working in an unaided section of a school cannot fill up the vacancy of an Assistant teacher in an aided section of the school and when an appointment to an aided section is to be made, it has to be by way of a fresh appointment as a Shikshan Sevak as per the scheme of the State Government, and it is only on completion of the requisite number of years, status of an assistant teacher can be bestowed and the regular pay scale can be made applicable. The petitioner came to be appointed as an assistant teacher in the unaided section of respondent no.4 school and he rendered service initially for the 2 academic sessions 1998-99 and 1999-2000. Though the order mentioned that the appointment was purely on temporary basis limited to the academic session and though it did not mention that the appointment was made on probation, it is not in dispute that the petitioner rendered his service as Assistant Teacher for two years i.e. from 1998 to 2000. The petitioner has further Tilak ::: Uploaded on - 05/07/2018 ::: Downloaded on - 06/07/2018 01:26:35 ::: 12/20 WP-
1166(J).doc rendered his services as Assistant Teacher in the unaided section of the respondent no.4 institution with effect from 5 th April 2006 till 1st February 2012. Then, it is from 1st February 2012 his services came to be transferred to the aided section of the respondent no.4 institution. With a misconceived notion, the respondent no.4 issued a fresh appointment order appointing the petitioner as Shikshan Sevak from 1 st February 2012 to 20th January 2015 under the scheme of the State Government effecting appointment as Shikshan Sevak. The MEPS Rules contains provision for appointment and includes provision for appointment of Assistant Teachers and contemplates issuance of letter of appointment in the form presented in Schedule-D. Schedule-D provides for issuance of an appointment order on a temporary basis for a stipulated period in the leave/deputation vacancy or the appointment to be effected on probation for a period of two years. It also contemplates that the terms of appointment would be governed by the MEPS Act 1977 and the rules made thereunder. The petitioner was appointed on a temporary basis as a teacher, since he possessed the qualification in terms of the MEPS Act Tilak ::: Uploaded on - 05/07/2018 ::: Downloaded on - 06/07/2018 01:26:35 ::: 13/20 WP-
1166(J).doc and Rules. Though the order of appointment was made for a particular academic year on a fixed consolidated salary, the petitioner discharged his duties as a teacher and imparted education in the 11th and 12th standard i.e. Junior college run by respondent no.4. The petitioner, at the relevant time, was appointed on the post which was in the unaided section of the college. The imparting of education in Bi-focal course cannot be an impediment as sought to be projected by the Dy. Director of Education since the definition of the term "school" under the MEPS Act as set out in section 2(24) means a primary school, a secondary school, a higher secondary school, a junior college of education or any other institution by whatever name called, including technical, vocational or art institution or any part of any such school, college or institution which imparts general, technical, vocational art or else the case may be, special education or training in any faculty or decision or subject below degree level. The petitioner has categorically stated that he was teaching 'bi-focal' course in the junior college which is a stream offered in class XIth and XIIth and the said stream is run by the State under its vocational education scheme mainly Tilak ::: Uploaded on - 05/07/2018 ::: Downloaded on - 06/07/2018 01:26:35 ::: 14/20 WP-
1166(J).doc for those who wish to pursue their professional courses at graduation level. Vocational courses are unaided courses conducted by the Department of Technical Education. Since the said courses fall within the purview of 'school' under the MEPS Act 1977, there is no reason why the petitioner will not be governed by the MEPS Act of 1977 and the rules framed thereunder.
Since the petitioner was already appointed in the year 1998 and worked for academic session 1998-99 and 1999- 2000, and further for continuous period till his appointment in the aided section, it cannot be said that the petitioner did not function as a teacher though he imparted education in a bi- focal curriculum and in the unaided section of respondent no.4 college. With the appointment of the petitioner effected in the year 1998, and his continuation for the two academic sessions, which is akin to the completion of the period of probation of two years as contemplated under Rule 9 of the MEPS Rules 1981, the petitioner was entitled to be conferred with the pay scale of Assistant Teacher on completion of the said period. However, subsequently, the petitioner came to be suspended Tilak ::: Uploaded on - 05/07/2018 ::: Downloaded on - 06/07/2018 01:26:35 ::: 15/20 WP-
1166(J).doc and was reinstated only with effect from 5 th April 2005 when he again continued as a teacher.
In any contingency, the limited relief sought by the petitioner is that he ought to have been appointed as a regular teacher with effect from 1st February 2012 by taking into consideration the factum that he has already rendered service as a probationer and therefore, the action of the respondents in appointing the petitioner again as Shikshan Sevak with effect from 1st February 2012 is not sustainable. As a consequence to the fresh appointment of Assistant Teacher with effect from 1 st February 2012, the petitioner is required to complete a period of three years as a Shikshan Sevak so that he can be held entitled for the pay scale of an Assistant Teacher. This, according to the petitioner, has caused grave prejudice to him and we are of the clear opinion that the petitioner is perfectly justified in canvassing such an argument. 7 The respondent authorities have misguided themselves inasmuch as taking a stand that while the petitioner came to be transferred to the aided division of respondent no.4 Tilak ::: Uploaded on - 05/07/2018 ::: Downloaded on - 06/07/2018 01:26:35 ::: 16/20 WP-
1166(J).doc school, he has to start from the beginning i.e. since it was a vacancy in the aided section, it had to be filled in by effecting an appointment as a Shikshan Sevak. This misconception of the respondent authorities is in fact deluded by the judgment of this Hon'ble Court in case of Ms.Sandhya Laxman Ghosalkar Vs. State of Maharashtra1 and also the subsequent judgment delivered at the Aurangabad bench in case of Dattu Bhima Thorat Vs. State of Maharashtra2 . The Hon'ble Division Bench of this Court in Ms.Sandhya Ghosalkar was dealing with grievance of the petitioner in a batch of petitions who were appointed as Assistant Teacher in Secondary school at Khopoli, District Raigad. The petitioners were subsequently transferred to an aided school run by the same management. The grievance raised by the petitioner before the Court was that they have been granted approval as Shikshan Sevak on 29th March 2012 with the result that they would be now be required to put in another three years of service before they are confirmed as Assistant Teacher, leading to loss of seniority. In 1 (WP 5358 of 2012 decided on 12/9/2012) 2(WP No.2960/12 decided on 11/10/2012) Tilak ::: Uploaded on - 05/07/2018 ::: Downloaded on - 06/07/2018 01:26:35 ::: 17/20 WP-
1166(J).doc the backdrop of these facts, this Court observed that there was no jurisdiction whatsoever for the Education Officer to grant his approval only as Shikshan Sevak and if the petitioners have been appointed as Assistant Teachers in the aided school by transfer from the unaided school, the approval ought to have been granted to them as Assistant Teachers.
Further in the case of Dattu Bhima Thorat, a Division Bench at Aurangabad did not find favour with the contention of the Education Officer in contesting the claim of the petitioner similarly situated as in the case of Sandhya Ghosalkar. The contention canvassed on behalf of the Education Officer was that the posts falling vacant in aided school are required to be filled in by appointing Shikshan Sevak and it would not be permissible for the institution to fill in the said vacancy by transferring the teacher from the school which does not receive grant-in aid. Reliance was placed on a Government Resolution dated 13/10/2000 wherein the scheme for making appointment of Shikshan Sevak was provided for.
The Division Bench of this Court has observed thus :
"The Education Officer has failed to make Tilak ::: Uploaded on - 05/07/2018 ::: Downloaded on - 06/07/2018 01:26:35 ::: 18/20 WP-
1166(J).doc distinction so far as instant matter is concerned. Since respondent no.2 Institution is not proposing to fill in the vacancy by appointing any new recruit, the vacancy is being filled in by transferring a Assistant Teacher from the school which does not receive grant-in-aid run by the same institution. There is no prohibition prescribed in Government policy for effecting such transfer from unaided school to aided school. Reliance is placed on the judgment in the matter of Ms.Sandhya Laxman Ghosalkar Vs. State of Maharashtra (Writ Petition No.5258/2012). While dealing with an identical issue, the Division Bench of this Court has observed that there is no prohibition for transfer of an Assistant Teacher appointed in unaided school to aided school on the basis of seniority and if such transfers are effected, it is incumbent upon the Education Officer to accord approval. The petitioner herein was serving as an Assistant Teacher in the unaided school and on his transfer to aided school, run by Respondent no.2-Institution, his status remains as an Assistant teacher. There is no justification for contending that the vacancy in the aided school shall be filled in only by appointing Shikshan Sevaks and transfer of an Assistant teacher serving in the name Institution to fill in the vacancy is not permissible."
8 The judgment delivered in the aforesaid two cases have been consistently followed in catena of judgments at the principal seat as well as the other benches of this Court and this Court has consistently taken a view that the petitioners who were working as Assistant Teachers in the unaided division of Tilak ::: Uploaded on - 05/07/2018 ::: Downloaded on - 06/07/2018 01:26:35 ::: 19/20 WP-
1166(J).doc the school on being transferred into the aided schools cannot be appointed as Shikshan Sevak, and they are entitled to be appointed as Assistant Teacher in the aided division, and the respondent authorities were directed to confer approval to their appointments as Assistant Teacher and the monetary benefits accruing therefrom were directed to be disbursed. We do not see any reason to deviate from the view taken by this Court in its earlier decision where similar facts were involved.
The petitioner who is appointed in the year 1998 and has completed period of two years in the capacity as a teacher and further rendered services as an assistant teacher in the unaided division of the respondent no.4 school, on his transfer to the aided division, cannot be posted again as a Shikshan Sevak and rather he is entitled to be placed in the pay scale of Rs.9300 - 34800 + Grade Pay of 4600 with effect from 1/2/2012 itself. The petitioner is also entitled for treating his services rendered from 30/11/1998 to be continuous service and he is also eligible for payment of arrears by fixation of his pay scale in the scale of Rs.9300 - 34800 + Grade Pay of 4600. with effect from 1/2/2012.
Tilak
::: Uploaded on - 05/07/2018 ::: Downloaded on - 06/07/2018 01:26:35 :::
20/20 WP-
1166(J).doc
9 In such circumstances, for the reasons stated above,
the writ petition deserves to be allowed. The impugned
approval order dated 3/3/2012 to the extent that it places the petitioner in the pay scale of 9300 - 34800 + Grade Pay of 4600 on completion of period of three years as Shikshan Sevak is quashed and set aside. It is directed that the petitioner is entitled for the pay scale of 9300 - 34800 + Grade Pay of 4600 with effect from 1/2/2012 and the respondents are directed to pay the arrears due to the petitioner on conferment of such a pay scale within a period of three months from the date of this order.
It is also directed that the service rendered by the petitioner as a teacher from 30th November 1998 be treated as a continuous service for the purpose of pensionary benefits. 10 Writ Petition is allowed in the aforesaid terms. (SMT. BHARATI H. DANGRE, J.) (S.C. DHARMADHIKARI, J.) Tilak ::: Uploaded on - 05/07/2018 ::: Downloaded on - 06/07/2018 01:26:35 :::