1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD APPELLATE SIDE, CRIMINAL JURISDICTION WRIT PETITION NO.: 2555 OF 2007 Lakhmashi s/o Narsi Shah (Gujrathi Guruji), Age: 66 years, Occu.: Retired, R/o Jay Nivas, Dilipsing Colony, Govardhan Ghat Road, Vajirabad, Nanded. ... PETITIONER VERSUS 1. State of Maharashtra, (Through Secretary Education Department, Mantralaya, Mumbai). 2. Director of Education (Primary), Maharashtra State, Pune-1. 3. Deputy Director of Education, Latur Division, Latur. 4. Education Officer (Primary), Zilla Parishad, Nanded. 5. Head Master, Gujrathi Prathmik Shala, Vajirabad, Nanded. ... RESPONDENTS *** Mr. S. A. Kulkarni, Advocate for the Petitioner. Mr. D. R. Korde, A.G.P. for Respondent Nos.1 to 3. Mr. V. S. Panpatte, Advocate for Respondent No.4. *** 2 CORAM: S. B. DESHMUKH & S. P. DAVARE, JJ. DATED:- 13th NOVEMBER, 2009. ORAL ORDER: [Per: Davare, J.] 1. Perused and heard learned respective counsel for the parties. 2. By the present writ petition, petitioner has requested that the Respondent be directed to grant the pay scale applicable to the post of Head Master of Rs.335-680 since 1st April, 1976 onwards and after 1st January, 1976 the pay scale of Rs.1400-2600 along with 14% interest thereon, till actual payment. 3. It is the contention of the Petitioner that, he was appointed as Assistant Teacher to teach Gujrathi in primary school on 1st July, 1961 and, thereafter, he was promoted as Head Master on 1st July, 1973 and he worked as Head Master till his retirement i.e. till 30th April, 1999 on superannuation. Petitioner states that his educational qualification, at the time of appointment, was non-matric and thereafter he passed Rashtra Bhasha Kovid Examination in September, 1973; which is equivalent to intermediate examination. Copy of the said certificate is 3 produced on record at Exhibit-A, annexed to the Petition. To support the said proposition, the Petitioner has produced the Government Resolution dated 16th April, 1970 on record at Exhibit-B. 4. It is the contention of the petitioner that, according to M.E.P.S. Act and Rules thereunder, as per Schedule - B (Rule 3), page 565, primary teachers who are appointed on 15th October, 1966 or prior to that, are exempted from acquiring S.S.C. qualification and training qualification. Hence, according to the Petitioner, since the date of appointment of the petitioner is 1st July, 1961 it is not necessary for him to acquire qualification required for being appointed as Assistant Teacher and, therefore, he is required to be considered as deemed trained teacher and hence he is entitled to get the pay scale applicable to the post of trained teacher. 5. It is the contention of the Petitioner that he should have been given the pay scale applicable to the post of trained teacher and then the pay scale applicable to the post of Head Master since 1976. It is also the submission of the petitioner that, he should have been given the pay scale applicable to the post of Head Master of Rs.335-680 since 4 1976 onwards, and after 1986 the pay scale of Rs. 1400-2600. In spite of that, he was given the pay scale of Rs.260-495. 6. The petitioner has relied upon the Government Resolution dated 4th October, 1983 produced at Exhibit-D and submitted that since the petitioner has been appointed prior to 1st July, 1972 i.e. on 1st July, 1961 he should have been treated as deemed trainer teacher as a special case and further submitted that as per the contents of the said Government Resolution, he continued to work as Head Master till his retirement by superannuation i.e. on 30th April, 1999 and hence he is entitled for the pay scale of Head Master. To support the said contention, petitioner relies upon Schedule-C and Rule 39 and 40 of M.E.P.S. Rules. 7. The Petitioner submits that in the fact situation, the Petitioner submitted representation on 21st November, 2005 to the Education Minister, copy whereof is produced at Exhibit-M, page 33 and more particularly relied upon para 7 thereof, at page 35. Petitioner contends that the Education Officer (Primary), Zilla Parishad, Nanded recommended the representation of the petitioner on 4th 5 March, 2006 and copy thereof is produced at Exhibit-Q, page 41. Petitioner also submits that, he has produced the civil list of the persons who are similarly situated to the position of the petitioner at Exhibit O and P, page 38 to 40. More over, the Petitioner also relied upon the letter dated 29th March, 2006 issued by the Deputy Director, Education, Latur Division, addressed to Desh Officer, School Education and Sports, Mantralaya, Mumbai-32, which according to the Petitioner, supports to the case of the Petitioner. 8. However, inspite of the aforesaid representation and above referred recommendations and also the relevant M.E.P.S. Rules, above referred schedules thereof, it is the grievance of the Petitioner that his representation was rejected vide letter dated 12th October, 2006, copy whereof is produced at Exhibit-H, page 43, contending that the Government Resolution dated 4th October, 1983 pertains to the aspect that the untrained teachers be considered as deemed trained teachers for the entitlement of the retirement benefits only and not for the pay scales. Being aggrieved and dissatisfied by the said order dated 12th October, 2006, the Petitioner approached to this Court 6 under the writ jurisdiction, for the prayers, as set out herein above. 9. The Respondent No.4 vehemently opposed the present Petition and Shri Laxman Kishanrao Pasalwad, Superintendent, Primary Education Department, Zilla Parishad, Nanded filed affidavit in reply. We have perused the contents of the affidavit in reply with the assistance of learned counsel Mr. Panpatte for the Respondent No.4, and by the said affidavit in reply, Respondent No.4 denied the averments and contentions made by the petitioner in the present writ petition specifically, unless admitted therein. It is the contention of the Respondent No.4 that petitioner does not fulfill the eligibility criteria as per Rule 7 (1) of Schedule-C of M.E.P.S. Rules, 1981 for getting the pay scale of Rs.335-680 from 1st April, 1976 and pay scale of Rs.1400-2600 from 1st January, 1986 which is meant for the graduate trained teacher. The Respondent No.4 also pointed out that classes from 1st to 4th standard are run in the Respondent No.5 school in which the petitioner was in service. It is also the submission of Respondent No.4 that the Petitioner cannot be given the benefits of pay scale of the post of Head Master since he was not possessing the 7 requisite qualification and also training qualification during his entire service career. Hence, it is submitted that the Deputy Director of Education, Aurangabad by communication dated 17th January, 2001 informed to the Petitioner that the petitioner is eligible to get the benefits of pay scale of Rs.260-495 from 1st April, 1976 and pay scale of Rs.975-1660 from 1st January, 1986 and, therefore, benefits of pay scales of Rs.335-680 and 1400-2600 cannot be given to the Petitioner. 10. Learned counsel Mr. Panpatte for the Respondent No.4 also invited our attention to Government Resolution dated 4th October, 1985 and submitted that the benefits of deemed trained Assistant Teacher are given to the petitioner by giving exemption from acquiring of matriculation and accordingly the petitioner has been given the pay scale of Rs.260-495 from 1st April, 1976 and Rs.975-1660 from 1stApril, 1986 of trained Assistant Teacher of Primary School. It is further submitted by learned counsel for Respondent No.4 that since the promotion of the Petitioner as Head Master has been made by the management in the absence of having trained qualification by the petitioner, the petitioner is not eligible for the pay scale of the post of 8 Head Master. Moreover, learned counsel for Respondent No.4 also relied upon the communication dated 20th September, 2004, copy is produced on record Exhibt-L, page 32, whereby the Desk Officer, Government of Maharashtra has categorically informed to Director of Education (Primary) that petitioner be informed that he cannot be given the benefit of pay scale of Head Master and compliance report thereof be made to the Government accordingly. 11. We have perused the contents of the petition, with its annexures, affidavit in reply of Respondent No.4, relevant sections, rules and schedules of the M.E.P.S. Act and also considered the submissions advanced by learned counsel for the parties anxiously. At the out set, it is the admitted position that the Petitioner was appointed as Assistant Teacher to teach Gujrathi in primary school on 1st July, 1961 and although he was promoted as Head Master from 1st July, 1973 he was never given the pay scale of Head Master, till the end of his service. We have minutely perused the relevant Government Resolution dated 4th October, 1983, coupled with the impugned order dated 12th October, 2006. The Government Resolution is produced at 9 Exhibit-D and the letter is at Exhibit-S, page 43. We are of the considered view that the Desk officer of Maharashtra Government has taken the correct view while issuing the letter/ communication dated 12th October, 2006 and no interference therein is warranted. 12. During the Course of argument learned counsel Mr. Kulkarni for the Petitioner tendered a letter/ communication addressed by the Education Officer, Zilla Parishad, Nanded to the Head Master on 7th September, 1990. However, the said communication is in respect of the untrained teachers who are given the exemption whose appointments were prior to 15th October, 1966 as primary teachers and the said communication pertains to the statistical information in respect of the primary schools as of 30th September, 1990 and, therefore, the said communication cannot be of any aid and assistance to the case of the petitioner herein. 13. Moreover, learned counsel for the Petitioner also relied upon the judgment delivered by Division Bench of this Court in Writ Petition No.1586 of 2008 [Vithal S/o Sopan Randive V/s The State of Maharashtra and others], copy of which is tendered during the course of argument. We have perused the said judgment. However, in the case 10 before the said Division Bench, the petitioner had passed B.Ed. examination but so is not the position in the present case. Moreover, the facts and circumstances in the case before the said Division Bench and facts and circumstances of the instant case appear to be different and hence the said judgment also cannot of any assistance to the case of the Petitioner, in the present case. 14. Learned A.G.P. invited our attention to the Government Resolution dated 1st January, 1981 and contended that the said Government Resolution supports the case of the Petitioner herein. However, from the contents of the said Government Resolution it appears that the said Government Resolution concerns with the candidates of STC/ TD, the Diploma in Education and, therefore, apparently the said Government Resolution will not be applicable to the case of the petitioner, in the present petition. 15. In the circumstances, we are of the considered view that present petition bears no substance and same is devoid of any merits and, therefore, this is not a fit case to exercise the extra-ordinary jurisdiction under Article 226 of the Constitution of India, and hence, present petition deserves 11 to be dismissed and accordingly the same stands dismissed. In the facts and circumstances of the matter, there shall be no order as to costs. [S.P.DAVARE, J.] [S.B.DESHMUKH, J.] Dated:13/11/2009. ans/2555 12 WRIT PETITION NO.: OF 200 Date of decision: 13th NOVEMBER, 2009. For approval and signature THE HONOURABLE SHRI JUSTICE S. B. DESHMUKH. THE HONOURABLE SHRI JUSTICE S. P. DAVARE. . Whether Reporters of local papers ... Yes may be allowed to see the judgment? . To be referred to the Reporter or not? ... No . Whether Their Lordships wish to see ... No the fair copy of the judgment? . Whether this case involves a substantial ... No question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder? . Whether it is to be circulated to the ... No Civil Judges? . Whether the case involves an important ... No question of law and whether a copy of the judgment should be sent to Nagpur, Goa and Bombay offices? [G. F. ANSARI] PRIVATE SECRETARY TO THE HONOURABLE JUDGE