-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5495 OF 2002 Shankar Abhiman Gaikwad .. Petitioner versus State of Maharashtra and others ...Respondents Mr. A.M. Joshi for the petitioner. Mr. A.B. Vagyani, AGP, for respondent Nos. 1, 2 and 7. Mr. Sandeep S. Salunkhe for respondent No.3. CORAM: P.B. MAJMUDAR & R.M. SAVANT, JJ. DATE: JUNE 25, 2010. P.C. By this petition filed under Article 226 of the Constitution of India, the petitioner challenges the order dated 16th March, 2001 passed by the Education Officer by which order the claim for upgradation of the scale sought by the petitioner came to be rejected. The petitioner has also sought a direction that the upgradation given to respondent Nos. 4 to 6 be set aside and the same be given to the petitioner. 2. The petitioner holds the qualification of B.A. B.Ed. and belongs to the Scheduled Caste category. The petitioner was appointed as an Assistant Teacher and was placed in the under-graduate scale. By a Government circular -2- dated 9th July, 1987, it is, inter alia, provided that whenever post in degree scale is created, the same should be given to a teacher who is serving in the under- graduate scale and who possesses the requisite qualification. The petitioner made number of representations to the Education Officer pointing out that he is duly qualified for being considered for upgradation and, therefore, he may be granted the said upgradation. It is the case of the petitioner that disregarding the said claim of the petitioner, the Education Officer granted approval to respondent Nos. 4 to 6. The petitioner aggrieved by the said fact had earlier filed Writ Petition No. 2283 of 2000 in this Court challenging the said action of the Education Officer in not granting upgradation to the petitioner which came to be disposed of by this Court by order dated 8th August, 2000 by which order the Education Officer was directed to decide the representation of the petitioner within a period of eight weeks. The petitioner was accordingly given hearing by the Deputy Education Officer. However, by the order dated 16th March, 2001, the Education Officer has rejected the case for upgradation of the scale sought by the petitioner. 3. The efficacy of the said circular dated 9th July, 1987 qua the scheme as contained in the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 and the Rules framed thereunder had come up for consideration in Writ Petition No. 1850 of 2009 in the matter of Sou. Sunita Chandrakant Nagotkar vs. State of Maharashtra and others. A finding was -3- recorded by the Division Bench by its judgment and order dated 10th December, 2009 that the said circular dated 9th July, 1987 issued by the Director of Education had been issued totally ignoring the provisions of the said Act as also the provisions of the Rules. It has further been observed that if the upgradation is permitted as contemplated by the said circular of the Director, it will rule out competition and also may not be in the interest of the students. It was further observed that the scheme, as contained in the circular dated 9th July, 1987, may also be violative of the guarantees contained in Article 14 of the Constitution. 4. In the light of the said judgment of the Division Bench dated 10th December, 2009, the reliance placed by the petitioner on the said circular dated 9th July, 1987 to get upgradation of his scale is misplaced. In the teeth of the said judgment, no relief can be granted to the petitioner in the instant petition which is accordingly dismissed. Rule discharged. P. B. MAJMUDAR, J. R.M. SAVANT, J.