1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY : AURANGABAD BENCH WRIT PETITION NO.8695 OF 2005 with Civil Application No. 7565 of 2009 and Civil Application No. 3589 of 2007 Smt. Sangeeta d/o. Ramesh Mahajan, age 29 years, occ. service as Asstt. Teacher, R/o. Pimpalgaon ( Hareshwar ), tq. Pachora, dist. Jalgaon. - Petitioner versus 1. The State of Maharashtra. 2. The Education Officer (S), Zilla Parishad, Jalgaon. 3. Gramvikas Mandal, Pimpalgaonk (Hareshwar), tq. Pachora, dist. Jalgaon through its President. 4. Gramvikas Vidyalaya, Pimpalgaon ( Hareshwar ), taluka Pachora, dist. Jalgaon, through its Head Master. 5. Nivrutti s/o. Laxman Morankar, age 25 years, occ. service as Shikshan Sevak, R/o. C/o. Gramvikas Vidyalaya, Pimpalgaon [Hareshwar], taluka Pachora, dist. Jalgaon. - - Respondents 2 Shri M. S. Deshmukh, Advocate for the petitioner. Shri B. V. Wagh, Asstt. Govt. Pleader for Respondents Nos.1 and 2. Shri L. V. Sangit, Advocate for respondents Nos.3 and 4. Respondent No.5 absent though served. CORAM : B. R. GAVAI & N. D. DESHPANDE, JJ. Dated : 14th September 2009 ORAL ORDER [ Per B. R. GAVAI, J. ] : 1. Petition is taken up for hearing by consent. 2. The petitioner seeks declaration that the petitioner is a trained Graduate Assistant Teacher from 21-9-1999 in respondent No.4 Secondary School and entitled to higher pay scale of a Graduate Teacher. 3. It is the contention of the petitioner that the petitioner was appointed in the respondent No.4 Secondary School run by respondent No.3 Society on 21-9-1999. It is the contention of the petitioner that though the petitioner was duly qualified as B.A. B.Ed. on the date of his appointment and though a post from that cadre was available, he was given appointment against the post available in the pay scale of S.S.C., D. Ed. 3 4. Learned Counsel for the petitioner also relies on the Government Resolution dated 9-7-1987 in this respect. 5. Shri Sangit, learned Counsel appearing on behalf of the respondent management, submits that the petitioner was appointed against the post in the S.S.C., D.Ed. cadre, which appointment he has accepted. It is submitted that inservice candidates possessing B.A., B.Ed. qualification are only entitled to higher pay scale to the extent of 25 per cent of the seats available in the school. He submits that the rest of the vacancies in the school in B.A. B.Ed. cadre are required to be filled in from the open market. 6. Learned Counsel submits that in so far as the school in question is concerned, already 25 per cent of the teachers working in D. Ed. scale have been absorbed in B.A. B. Ed. scale, and as such, petitioner is not entitled to a higher pay scale. It is further submitted that the Government Resolution dated 9-7-1987 is applicable only to the persons who were in service on the date of issuance of the said Government Resolution. Learned Counsel also relies on the Government Resolutions dated 15-7-1991 and 25-6-1992. 4 7. The Government Resolution dated 9-7-1987 fell for consideration before this Court in Writ Petition No. 621 of 2009. This Court vide order dated 25-8-2009 has observed thus : 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 9th 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 5 in B.Ed. scale. In that view of the matter, we find that, the impugned order is not sustainable in law. 8. In so far as the contention of the learned Counsel for the petitioner that the Government Resolution dated 9-7-1987 is applicable to such of the teachers working in the school on the date of the said Government Resolution is concerned, the same, in our view, is totally misconceived. Learned Counsel relies on the following portion of the said Government Resolution which is in Marathi and we are also reproducing in the same language which reads :- The official translation of the said sentence is thus : "Similarly from the date when the post of graduate teacher is falling vacant, only the graduate teachers working in the said pay scale on that date, may be considered." 9. It could thus clearly be seen that the said provision specifically provides that such of the persons who were working on 6 the date on which the post has fallen vacant may be considered for absorption in the post available from higher cadre. In so far as the Government Resolution dated 15-7-1991 is concerned, the said Government Resolution provides that in a post reserved for S.S.C. D. Ed. cadre, the teacher possessing S.S.C. qualification should only be appointed and not the teachers possessing graduate qualification. In so far as Government Resolution dated 18-06-1991 is concerned, it cancels Government Resolution dated 15-7-1991 and provides that a person with graduate qualification may be appointed in a post reserved for S.C.C. D. Ed. cadre. However, it provides that, salary should be paid to such graduate teacher only as applicable to a S.S.C. D. Ed. teacher. It could thus clearly be seen that both the said Government Resolutions are not applicable to the facts of the present case. 10. In that view of the matter, we find that the petitioner is entitled to absorption in the post available with the respondent No.3 school in B.A. B. Ed. cadre. However, we are not inclined to grant deemed date to the petitioner. During the pendency of the petition, it was brought to our notice that respondents Nos.3 and 4 have advertised the posts, in the B.A. B. Ed. cadre for which petitioner is also qualified. By the orders passed by us in Civil Application No. 7 7565 of 2009, we have restrained the management from making appointment in the said post. 11. In that view of the matter, Rule is made absolute as under : The petitioner shall be absorbed in the post available with the respondents in B.A. B. Ed. cadre with effect from the date of this order. We clarify that except the post on which petitioner would be absorbed, respondents Nos.3 and 4 would be at liberty to make appointments on the remaining posts. 12. Rule is made absolute in the aforesaid terms with no order as to costs. 13. In view of the orders passed in Writ Petition No. 8695 of 2005, nothing survives in both the Civil Applications and the same are disposed of. ( N.D.DESHPANDE, J. ) ( B. R. GAVAI, J. ) pnk/wp869505