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 Harish 2 WP-3582-2023.odt 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 Harish 3 WP-3582-2023.odt 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.Harish 4
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 Harish 5 WP-3582-2023.odt 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 Harish 6 WP-3582-2023.odt 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 Harish 7 WP-3582-2023.odt 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 Harish 8 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 Harish 9 WP-3582-2023.odt 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.
Harish 10
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
Date: 20/01/2025 19:29:46 Harish 11