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13] In that view of the matter, when the transfer of teacher from unaided school to aided school is permissible; what is supposed to be ascertained is, as to whether the Education Officer has granted approval to the appointment of such Assistant Teacher / Shikshan Sevak on regular basis on completion of two years & three years probation period, as contemplated under the provisions of Section 5 of the MEPS Act, 1977. Once such approval is granted in favour of the appointee by the concerned Education Officer on regular basis on completion of satisfactory probation period under Section 5 (2) of the MEPS Act, 1977, it can be safely presumed that the Education Officer has 6114.18WP granted such approval after ascertaining the compliance of mandate of Section 5 of the MEPS Act, 1977. When the Education Officer grants approval on regular basis for the appointment on the post of Assistant Teacher, it presupposes that there were no surplus teachers on his roll, and the concerned Institution, after following the mandate of Section 5 (1) of the MEPS Act, 1977, has made appointment on the post/posts of Assistant Teacher. Therefore, once an appointment of a teacher is made on unaided basis in the school, and the approval is granted on regular basis on satisfactory completion of two years period on probation by the appointee in conformity with the mandate of the provisions of the MEPS Act, 1977, and Rules framed thereunder, there is no question of giving fresh appointment to such candidate who has already completed probation period of two years satisfactorily, or refusing 6114.18WP approval to transfer of such candidate from unaided school to aided school run by the same institution, or transfer of an Assistant Teacher working on unaided post, whose services have been approved on satisfactory completion of probation period by the Education Officer to vacant aided post of Assistant Teacher in same school. It is only when transfer is on the post of Shikshan Sevak on aided basis, management and the Education Officer shall ensure that, such Assistant Teacher has completed minimum three years service as an Assistant Teacher on unaided post, and his services are approved by the Education Officer and rule of seniority is followed, meaning thereby senior most Assistant Teacher whose services have been approved by the Education Officer on unaided basis needs to be considered first for transfer on post admissible on aided basis, and thereafter, rule of seniority 6114.18WP needs to be followed continuously. The principle of seniority shall be kept in view considering concerned institution as one unit.

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 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 6114.18WP 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 6114.18WP 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 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. 19] In the facts of the present case, it appears that, the petitioner is H.Sc., D.Ed., and he was appointed on the post of Assistant Teacher, vide order dated 24th December, 2012, initially on probation for a period of two years. Thereafter, respondent no.3 school has submitted proposal of the petitioner for grant of approval to respondent no.2 Education Officer (Secondary), and accordingly, respondent no.2, vide its order dated 26th March, 2013, granted approval to the appointment of the petitioner on non grant basis. On completion of two years probation period successfully, the petitioner was granted approval on permanent / regular basis by the Education Officer in grade pay of Rs.5200-20200 + Grade Pay Rs.2800/-, by order dated 9th February, 2015. The said order is placed on record by the petitioner at 6114.18WP Exhibit-C [Page-16] of the compilation of the Writ Petition. It is stated in the said order that, the petitioner has satisfactorily completed two years probation period. Therefore, the status of the petitioner as an Assistant Teacher on regular basis is not in dispute.

21] It appears from the perusal of the facts of the case that, the petitioner was appointed after following due procedure of law as an Assistant Teacher, and thereafter, on successful completion of probation period, the approval was granted and therefore he acquired status as Assistant Teacher on regular/permanent basis. It appears that, he has rendered more than 5 years satisfactory services as an Assistant Teacher on unaided post. Respondents have not brought on record contra material to contest assertion on factual score made by the petitioner in the Petition. Therefore, it will have to be 6114.18WP concluded that, the petitioner has completed more than 5 years satisfactory service on the post of Assistant Teacher. In that view of the matter, and if the petitioner was senior most teacher in the Institution working in the school on unaided basis at the relevant time, the transfer of the petitioner from the unaided post to aided vacant post due to retirement of one teacher was permissible, and there was no need to give him fresh appointment on the post of Shikshan Sevak thereby practically denying him benefits accrued by virtue of rendering more than five years services as an Assistant Teacher on regular basis.