: 1 : wp.63.2011 vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. WRIT PETITION NO.63 OF 2011 Shaikh Abdul Samad Abdul Qadar .. Petitioner V/s. The State of Maharashtra & Ors. .. Respondents Mr.A.A. Maniyar for the Petitioner Ms.Sindha Sridharan, AGP, for the Respondent Nos.1 to 4 CORAM: B.H. MARLAPALLE & SMT.NISHITA MHATRE, JJ. DATED: SEPTfEMBER 2, 2011 JUDGEMENT (PER SMT.NISHITA MHATRE, J.): 1. The controversy in the present petition is whether the petitioner is entitled to the selection grade scale in accordance with the Government Resolution dated 2.9.1989. 2. Brief facts in the present case are as follows: The petitioner was appointed on 8.7.1980 as an Assistant Teacher on probation. After completion of the probationary period, she was deemed to be in the permanent service of Respondent school w.e.f. : 2 : wp.63.2011 8.7.1982. The petitioner was accorded the senior grade scale in 1992 on completion of 12 years in service. A G.R. was issued on 2.9.1989 which provided for the selection grade to be extended to Assistant Teachers. Four conditions were imposed in the G.R. namely (i) the teacher was required to complete 12 years in service in the senior scale; (ii) complete the in-service training organised by the Government; (iii) trained under graduate teachers in Secondary School should acquire graduation degrees and trained graduate teachers must acquire post graduate qualifications; and (iv) completion of 24 years of service. By the G.R. dated 8.12.1995 an option was given to teachers to obtain the post graduation degree in any subject in order to be eligible for the selection grade. The petitioner accordingly chose to complete his M.A. in Urdu and acquired the Master's degree in December, 1998. The petitioner completed 24 years in service in July 2004. However, he was not granted the Selection grade scale as according to the school, there were senior teachers and, therefore, he was not entitled to the grade. The petitioner claimed the selection grade on 1.5.2009 when a senior teacher retired from service. Accordingly, the School Committee resolved to place the petitioner in the selection grade scale from 1.5.2009 and submitted a proposal to the Education Officer for approval. In November 2009, the Education : 3 : wp.63.2011 Inspector rejected the proposal. The Education Officer did not pay heed to the letters of the Petitioner dated 16.11.2009 and 17.4.2010 in which the Petitioner had indicated that two other teachers who were similarly circumstanced had been granted the selection grade. The petitioner preferred Writ Petition No.1468 of 2010 before this Court seeking certain reliefs. However, he was permitted to withdraw the petition on 30.8.2010 by the Division Bench of this Court while granting him liberty to file a fresh petition for the same cause of action after giving notice to the Education Department. Accordingly the present petition has been filed by the petitioner after giving notice to the Education Department and the Accounts Officer. 3. The main contention of the learned advocate for the petitioner in the present petition is that since the petitioner has fulfilled all the pre- requisites mentioned in the G.R. of 1989 for being extended the selection grade payscale, he ought to have been paid that scale. According to him, although one teacher retired on 30.4.2009, the petitioner has not been granted the selection grade scale from that date despite being the senior most teacher after the person who retired. He has placed reliance on the judgement of this Court in the case of Farida Usman Kohir vs. President/Secretary & Ors. (Writ Petition No.917 of : 4 : wp.63.2011 2007) dated 13.9.2007. 4. The Deputy Education Inspector, North Zone has filed an affidavit in reply to the petitioner in which she has averred that a candidate who desires to be paid the selection grade must complete his/her post graduation in a teaching subject as per G.R. Dated 1.12.1999. Such a candidate is entitled to obtain a post graduate degree through distance education and the M.Ed. Degree is also taken into consideration for the payment of the selection grade. 5. There is no dispute that the petitioner is qualified with the B.Sc., M.A. B.Ed. Degrees. He has obtained an M.A. in Urdu consequent upon the G.R. dated 8.12.1995 being issued. The petitioner is teaching Science in the School which is an Urdu school and, therefore, he chose to complete his Master's degree in the Urdu language. 6. Significantly, the aforesaid judgment was in respect of a teacher working in the same school as the Petitioner. The facts in that case are similar to the facts in the present case. The Division Bench has held that since the petitioner in that case had acted upon the G.R. of 1995 and had obtained her post-graduation in May 1999 in the Urdu language she was entitled to the selection grade. The Court observed thus: : 5 : wp.63.2011 “9. The G.R. of 1-12-1999 deals with extension of selection grade to the Special Subject Teachers. The question whether this G.R. will apply to all Assistant Teachers or only Special Teachers need not be determined by us here. Suffice it to say that the petitioner as an Assistant Teacher had done her post graduation when the G.R. of 1995 was in force. Mere fact that the G.R. was modified subsequently by itself cannot result in denying the petitioner benefit which otherwise she should have been available considering what was held out by the respondents and the petitioner acting on the same. In the light of that, we are clearly of the opinion that the petitioner would be entitled to the selection grade in terms of the communication by the School Management by that letter dated 12-08-2004, from the next date the persons holding the posts had superannuated.” 7. We are in respectful agreement with the decision of the Division Bench in the case of Farida Usman Kohir (supra). The aforesaid judgement squarely covers the facts in the present case. Therefore, in our opinion, the petitioner is entitled to the selection grade w.e.f. 1.5.2009 till he retired on account of superannuation on 28.2.2010. 8. Rule made absolute accordingly. The respondents shall calculate the amount payable to the petitioner and shall pay the same to the petitioner within three months from today. (SMT.NISHITA MHATRE, J.) (B.H. MARLAPALLE, J.)