{1} wp383909.odt IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.3839 OF 2009 Annasaheb s/o Kachru Lokhande, age: 44 years, Occ: service, R/o At Post Khed (Nagar), Taluka Karjat, District Ahmednagar. Petitioner Versus 1 The State of Maharashtra, through Secretary, Education Department, Mantralaya, Mumbai­32. 2 Deputy Director of Education, Pune Region, Pune. 3 The Education Officer (Secondary), Zilla Parishad, Ahmednagar. 4 The Head Master, Loknayak Jaiprakash Narayan Vidyalaya, Khed (Nagar), Taluka Karjat, Dist.Ahmednagar. 5 The Managing Trustee, Indian Institute for Social Development and Research, Dr.Kumar Saptrashi, Krantiniketna, 1468, Sadashiv Peth, Near S.P.College, Khajina Vihir Chouk, Ppune­411 030. 6 Balu s/o Bharat Kale, age: 38 years, Occ: service, R/o Khed, Tal. Karjat, {2} wp383909.odt District Ahmednagar. Respondents Mr.Amol N. Kakade, advocate for the petitioner. Mr.R.P.Phatke, Additional Government Pleader for Respondents no.1 to 3. Mr.D.R.Markad, advocate for Respondent No.4. Mr.A.G.Kanade, advocate for Respondent No.5. Mr.S.S.Jadhavar, advocate for Respondent No.6. WITH WRIT PETITION NO. 160 OF 2010 Balu s/o Bharat Kale, age: 38 years, Occ: Service, R/o Khed, Taluka Karjat, District Ahmednagar. Petitioner Versus 1 The State of Maharashtra, through its Secretary, Department of Education, Mantralaya, Mumbai­32. 2 Deputy Director of Education, Pune Division, Pune. 3 The Education Officer (Secondary), Zilla Parishad, Ahmednagar. 4 Bhartiya Samaj Vikas & Sanshodhan Sanstha, Krantiniketan, 1468/ Sadashiv Peth, Khajina Vihir Chowk, Opp. S.P.College, Pune­30, through its Managing Trustee. {3} wp383909.odt 5 Loknayak Jaiprakash Narayan Vidyalaya, Khed (Nagar), Taluka Karjat, District Ahmednagar, through its Headmaster. 6 Annasaheb Kacharu Lokhande, age: major, Occ: service, R/o C/o Loknayak Jaiprakash Narayan Vidyalaya, Khed (Nagar), Taluka Karjat, District Ahmednagar. Respondents Shri S.S.Jadhavar, advocate for the petitioner. Shri R.P.Phatke, Additional Government Pleader for Respondents No.1 to 3. Shri A.G.Kanade, advoate for Respondents No.4 to 6. CORAM : D.B.BHOSALE AND R.M.BORDE, JJ. DATE : 24 th February, 2011 JUDGMENT (Per R.M.Borde, J.): 1 Rule. Rule made returnable forthwith and heard finally by consent of learned Counsel for respective parties. 2 Writ Petition No.3839 of 2009 is presented by Annasaheb s/o Kachru Lokhande praying for writ of mandamus against Respondent No.5 – Management, directing to forward proposal of the petitioner for grant of B.Ed. pay scale, to {4} wp383909.odt Respondent No.3 – Education Officer (Secondary), Zilla Parishad, Ahmednagar. A direction is also sought against Respondent No.3 for consideration of the proposal expeditiously and for granting consequential benefits within stipulated period. One Balu Bharat Kale, an Assistant teacher serving with Respondent No.5 – Management is impleaded as party respondent to the petition. Respondent No.6 has also presented writ petition bearing No.160/2010 seeking quashment of the orders dated 07.03.2006 and 27.12.2006 issued by Respondent No.3 ­ Education Officer (Secondary), Zilla Parishad, Ahmednagar and order dated 04.02.2009 passed by the Deputy Director of Education, Pune Region, Pune i.e. Respondent No.2. A direction is also sought against Respondents No.2 and 3 for grant of approval to the appointment of said Respondent No.6 in B.Ed. pay Scale, on consideration of the proposals tendered by the Management on 28.02.2002 and 31.08.2005. 3 For the sake of convenience, the parties are referred to as per their status in Writ Petition No.3839/2009. 4 The petitioner, in Writ Petition No.3839/2009, contends that he possesses educational qualification as B.A. B.Ed. and was appointed as an Assistant teacher in the school run by Respondent No.5 – Management on 29.06.1993. It is contended {5} wp383909.odt that a promotional post in B.Ed. pay scale (i.e. trained graduate teacher’s pay scale) was available since June­2001. As such, petitioner requested the Management to consider his claim on the basis of seniority to the said post. However, the Management did not consider the claim of the petitioner and submitted the proposal of another teacher i.e. Respondent No.6 for conferment of B.Ed. pay scale. The petitioner, therefore, presented Writ Petition No. 1180/2006 to this Court requesting for issuance of a direction against the authorities for consideration of his claim for trained graduate teacher’s pay scale. The writ petition was disposed of on 27.12.2006 with a direction to the Education Officer to decide the issue within a period of six weeks. The Education Officer accordingly considered the claim of the petitioner and issued direction to the Management to award promotion to the petitioner in B.Ed. pay scale. The Education Officer also directed the Management to take follow up action. The order passed by the Education Officer was not implemented by the Management. As such, the petitioner was constrained to approach this Court by presenting Writ Petition No.2471/2007. At the time of hearing of the petition, it was disclosed to the Court that the order passed by the Education Officer is subjected to challenge by Respondent No.6 by presenting an appeal to the Deputy Director of Education and the appeal is pending. Learned A.G.P. appearing for the State, made a statement that the Deputy Director of Education would dispose of the appeal after extending an opportunity of hearing to {6} wp383909.odt both the parties, within stipulated period. In the light of the statement made on behalf of the State, the petitioner sought leave to withdraw the petition and as such the petition came to be dismissed as withdrawn with liberty to the petitioner. The Deputy Director of Education, after considering the claims put forth by the petitioner as well as by Respondent No.6, took up the appeal for consideration and decided the same in favour of the petitioner. It was directed to the Management to take steps for submission of the proposal for conferment of B.Ed. pay scale on the petitioner. The Deputy Director of Education held the petitioner entitled to receive the benefits of the promotional post from the date of availability of the post in promotional cadre. The order passed by the Deputy Director of Education is not put to implementation by the Management and the petitioner has not been conferred with the B.Ed. pay scale nor the Management has submitted proposal in that regard. The petitioner, therefore, is constrained to approach this Court by way of instant writ petition. 5 Respondent No.6 has also presented Writ Petition No. 160/2010 wherein he contends that he possesses educational qualification as M.Sc. B.Ed. and has been appointed in the school with effect from 13.02.1996. According to Respondent No.6, after availability of the vacancy, the Management issued order of promotion and conferment of B.Ed. pay scale on Respondent No.6 since 11.06.2001. A proposal, in that regard, was forwarded by the {7} wp383909.odt Management to the Education Officer. Initially, the Education Officer granted approval to the appointment of Respondent No.6 in B.Ed. pay scale by order dated 27.12.2005. In the meanwhile, petitioner approached this Court by filing Writ Petition No. 1180/2006 for consideration of his claim to the post. As such, approval accorded in favour of Respondent No.6 came to be withdrawn by the Education Officer, vide order dated 07.06.2006. According to Respondent No.6, there is workload available for Science subject in the school and considering the need of an teacher to teach science subject, the Management took a decision to promote Respondent No.6. Respondent No.6 contends that the decision taken by the Management was in conformity with the Government policy as well as on consideration of availability of workload for the science subject. The Deputy Director of Education has ignored this aspect and issued direction for conferment of B.Ed. pay scale and awarding of promotion to the petitioner, which, according to Respondent No.6, is an erroneous order. Respondent No.6, therefore, seeks quashment of the order passed by Deputy Director of Education as well as earlier orders passed by the Education Officer. 6 We have heard the arguments advanced by learned Counsel for respective parties as well as perused the record. 7 It is not disputed that petitioner is appointed on {8} wp383909.odt 29.06.1993 and possesses qualification as B.A. B.Ed. since his date of appointment. Respondent No.6 is appointed on 13.02.1996 and he possesses the qualification as M.Sc. B.Ed. It is not disputed that considering the date of appointment, the petitioner is senior to Respondent No.6. It is also not disputed that there is a trained graduate teacher’s post available for teaching 8th to 10th standard students since 2001. 8 Our attention is invited to a Circular dated 12.10.1992 issued by the Director of Education. In paragraph no.2(2) of the Circular, it is noted that while appointing a teacher on promotional post of a trained graduate teacher to teach 8th to 10th standards, appointment shall be made having regard to seniority of a teacher possessing requisite qualification as well as merit. It is also recorded in the said paragraph that if the Management desires to make an appointment of a junior teacher by overriding the claim of a senior teacher, considering the need to appoint a teacher to teach a particular subject, the Management shall have to forward a proposal in that regard to the Education Officer and after securing prior permission, such appointment shall be made. The policy in respect of feeling up the vacancy of a trained graduate teacher to teach 8th to 10th standard students, considering the need to appoint a teacher to teach a particular subject by overriding the seniority, is reiterated in a Circular issued by the Director of Education on 27.07.2001. Thus, it is not disputed that a junior teacher can be {9} wp383909.odt considered for making appointment or for awarding promotion in trained graduate teacher’s pay scale considering the need to make appointment to teach a particular subject. However, while overriding the claim of a senior teacher, it is mandatory for the institution to secure prior permission of the Education Officer. In the instant matter, admittedly, before issuing an order in respect of promotion of Respondent No.6 on 11.06.2001, no such prior permission was sought for by the Management. 9 It is the contention of Respondent No.6 that there are already three teachers eligible to teach science subjects and there is workload of 88 periods. It is the contention of Respondent No.6, which has been supported by the Management, that there is need to appoint one teacher to teach science subject. This issue has been considered by the Deputy Director of Education and in the affidavit­in­reply filed on record, it is specifically contended that there is no workload available in the school for a science graduate teacher and the claim of the Management that appointment of Respondent No.6 needs to be made overriding the claim of a senior teacher i.e. petitioner herein, is not accepted. It is noted in paragraph no.7 of the affidavit­in­reply that the workload for 8th to 10th standards for teaching Science and Mathematics subjects is of 88 periods and there are already three teachers possessing the requisite qualification available with the school. It is specifically noted in the affidavit­in­reply that there is no workload available {10} wp383909.odt for science subject teacher and as such, the claim of Respondent No.6, who is junior to the petitioner, need not be considered. The Education Officer as well as the Deputy Director of Education, have issued directions to the Management to submit the proposal of the petitioner, he being senior to Respondent No.6. However, the Management has not complied with the directions issued by the Education Officer as well as by the Deputy Director of Education. 10 Considering the contentions raised in the affidavit­in­ reply as well as on consideration of the policy of the education department, as reflected in the circulars referred to above, we are of the considered opinion that the orders passed by the Education Officer as well as Deputy Director of Education do not call for interference. The Management is required to be directed to submit proposal of the petitioner in respect of conferment of promotion / promotional pay scale of a trained graduate teacher to the Education Officer, within a stipulated period. The Education Officer shall consider and decide the proposal without wasting further time. 10 Hence, we pass the following order: (1) Writ Petition No.160/2010, presented by Respondent No.6, stands dismissed. Rule discharged. In the facts and circumstances of this case, there shall be no order as to {11} wp383909.odt costs. (2) Writ Petition No.3839/2009 is allowed and Respondent No.5 – Management is directed to forward proposal of the petitioner for grant of trained graduate teacher’s pay scale / conferment of promotion in trained graduate teacher’s pay scale, to Respondent No.3, within a period of eight weeks from the date of this order. (3) Respondent No.3 is further directed to consider and decide the proposal that would be forwarded by the Management, within fifteen days from the date of its receipt, in the light of this judgment. (4) Rule is accordingly made absolute in Writ Petition No. 3839/2009. However, in the facts and circumstances of this case, there shall be no order as to costs. R.M.BORDE D.B.BHOSALE JUDGE JUDGE adb/wp383909