1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 621 OF 2009 Arun S/o Pandhari Landge, Age : 52 years,Occu. : Service, R/o Tandulwadi, Tq. Paranda, District Osmanabad .. .. PETITIONER Versus 1. The State of Maharashtra. 2. The Education Officer (Secondary), Zilla Parishad, Osmanabad. 3. Shri Sant Dnyaneshwar Shikshan Prasarak Mandal, Tandulwadi, Tq. Paranda, Dist. Osmanabad, Through its President. 4. Shri Sant Dnyaneshwar Prashala, Tandulwadi, Tq. Paranda, District Osmanabad, Through its Head Master .. .. RESPONDENTS Shri Santosh S. Jadhaver, Advocate for the Petitioner. Shri S. K. Tambe, A.G.P. for the Respondent No. 1 and 2. Shri M. P. Tripathi, Advocate for the Respondent Nos. 3 and 4. CORAM : B. R. GAVAI, AND N. D. DESHPANDE, JJ. 2 DATE : 25TH AUGUST, 2009. ORAL JUDGMENT [Per B. R. Gavai, J. ] : 1. Rule. Rule made returnable forthwith. Heard by consent. 2. By way of present petition, the petitioner challenges the order dated 20th October, 2008, vide which the respondent No. 2 Education Officer has refused to grant approval to the proposal of absorbing the petitioner in the higher pay scale of graduate teachers. 3. Undisputedly, the petitioner is appointed in the respondent No. 4/school, run by respondent No. 3 as primary teacher on the post available of D. Ed. cadre on 14th July, 1986. It is also undisputed that, the petitioner was possessing B. A. B. Ed. qualification on the date of his appointment. It appears that, subsequently in the year 2006, two posts became vacant in the cadre of B. A. B. Ed teachers and one Smt. Swati Shinde and Shri Satish Kharsade were appointed on the said posts. Further it appears that, there is some dispute between management and these two employees and the dispute is pending before the grievance committee. 4. It is also undisputed that, in the year 2007 one more post in the cadre of B.A.B. Ed. teacher become vacant. The said post was for Marathi subject. Undisputedly, the petitioner has one of the subject for his graduation as Marathi. It appears that, respondent No. 2/Education Officer vide communication dated 30.06.2008 directed 3 the respondent No. 4 to send a proposal for absorbing the petitioner in the scale of B. Ed teacher. Accordingly a resolution was also passed by the management and proposal was sent to the Education Officer. There were certain queries raised by the Education Officer vide communication dated 01st October, 2008, which were complied. However, vide communication dated 20th October, 2008, impugned herein the approval is rejected. 5. Shri Jadhavar learned counsel appearing for the petitioner submits that, in view of Government circular dated 01st July, 1987, if a post becomes vacant in B.A.B. Ed. cadre teacher for VIII to X standards and if a suitable candidate is available from the teachers teaching from V to VII standard, the said suitable candidate should be absorbed and post should not be filled in from the open market. It is therefore, submitted that, impugned action of the Education Officer is not sustainable in law. 5. Shri Tambe, learned Assistant Government Pleader appearing for the respondent Nos. 1 and 2 fairly submits that, in view of the law laid down by this Court in the case of Vithal Fakruji Madavi and others Vs. Zilla Parishad, Chandrapur and others reported in 2006(2) Mh. L. J. 125 and the Apex Court in the case of State of Maharashtra v. Tukaram Tryambak Chaudhari reported in 2007 AIR SCW 1321, impugned order is unsustainable. 6. Shri Tripathi, learned counsel appearing on behalf of respondent No. 4 and 5 submits that, the petitioner was initially 4 appointed in primary school teaching V to VII standard and post which felt vacant is for teaching in VIII to X standard and as such petitioner cannot be absorbed on the said post. 7. We find that, the stand taken by the management is totally contrary to the Government policy, so also law laid down by the Apex Court as well as by this Court. The policy as reflected in Government circular dated 09th July, 1987, clearly states that, if a suitable candidate is available from the teachers teaching V to VII standard, the post falling vacant of higher scale for teaching in VIII to X standard should not be filled from open market and suitable candidate teaching V to VII standard should be absorbed on the said post. The Division Bench of this Court in the case of Vithal Fakruji Madavi Vs. Zilla Parishad, Chandrapur cited supra, while considering Government Resolution dated 11th August, 1999 has also taken a view that, the persons who are possessing B. Ed qualification are required to be absorbed from lower scale to the scale of graduate teachers. The Apex Court in the case of State of Maharashtra v. Tukaram Tryambak Chaudhari cited supra, has also held that, in service graduate teachers with B. Ed. degree teaching in primary school are entitled to be appointed and continued as trained teachers in B.Ed. scale. In that view of the matter, we find that, the impugned order is not sustainable in law. 8. Rule is hereby made absolute in terms of prayer clause "B" and amended prayer clause "C". 5 9. Leave to amend prayer clause "C". [ N. D. DESHPANDE, J.] [ B. R. GAVAI, J.] bsb/August 09