1 W.P.No.3226.09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.3226 OF 2009 Shriram S/o Sudhakarrao Maid, Aged 34 years,Occup. Service, R/o Wakulni, Taluka Badnapur, District Jalna. ...PETITIONER. VERSUS 1) The State of Maharashtra, Through its Secretary in School Education Department, Mantralaya, Mumbai-32. 2. The Deputy Director of Education,Aurangabad Division,Aurangabad. 3. The Education Officer(Secondary) Zilla Parishad, Aurangabad. 4. The Sharda Shikshan & Krida Prasarak Mandal, Bhavsingpura, Taluka & District Aurangabad. Through its Secretary. 5. Madhyamik Vidyalaya, Pimpalgaon (Pandhari) Taluks & District Aurangabad. Through its Head Master 6. Shri N.K.Patil, Aged 30 years,Occupation Service as an Assistant Teacher, R/o C/o Madhyamik Vidyalaya, Pimpalgaon(Pandhari), Taluka and District Osmanabad. 2 W.P.No.3226.09 7. Goraksha Shaikshanik Bahu-Uddeshiya Shikshan Sanstha Khamgaon, Tq. Phulambri,District. Aurangabad Through its Secretary. ...RESPONDENTS. ... Shri.B.L.Sagar, Advocate for Petitioner. Shri.V.H.Dighe, A.G.P. for Respondent Nos.1 to 3. Shri.V.G.Salgare,Advocate for respondent No.4. Shri.V.D.Salunke,Advocate for respondent No.5. Shri.A.B.Tele,Advocate for respondent No.6. Shri.S.G.Rudrawar,Advocate for respondent No.7. ... CORAM: NARESH H. PATIL AND K.K. TATED, JJ. DATE : 16TH AUGUST, 2010. ORAL JUDGMENT :( PER : NARESH H.PATIL, J. ) 1. Rule. Rule made returnable forthwith. With consent of the learned counsel for the parties, the petition is heard and finally decided at the stage of admission. 2. The petitioner’s contention is that he was appointed in the year 1999 as Assistant Teacher. He is qualified as B.A. B.Ed. He is teaching to the students of 5th to 7th standard classes. Some 3 W.P.No.3226.09 time in the year 2000, post of teacher for 8th to 10th Standard classes was vacant having pay scale of Rs.5500-9000, which was higher pay-scale than the petitioner was receiving. Subsequent developments had taken place in which the Management of the school got transferred to the present Society/Management. In the year 2003, respondent No.6-Mr. N. K. Patil was appointed directly on the post of Assistant Teacher. His educational qualification is B.A. B.Ed. 3. It is submitted that the teacher, who is teaching to 5th to 7th standard classes may not be appointed to teach particular subject in accordance with the scheme, but the teacher appointed for teaching to 8th to 10th Standard classes is required to be appointed for particular subject. This is one of the reason, due to which such teacher would get higher pay scale than the teacher of 5th to 7th standard classes. The petitioner’s contention is that post of teacher for teaching 8th to 10th standard classes was 4 W.P.No.3226.09 vacant, the petitioner being senior most teacher having required qualification ought to have been conferred with higher pay scale i.e. Rs.5500-9000. The petitioner was denied the said pay-scale, in the light of the fact that new person was directly recruited. The petitioner filed representation in the year 2007 with the Management for claiming higher pay scale. As petitioner could not get favourable reply from the Management, petitioner preferred to file the present Writ petition for the said benefits on 24th April, 2009. 4. Respondent Nos.4, 5, 6 and 7 filed their affidavit-in-reply. The Respondent-State Authorities preferred not to file affidavit in reply. The petitioner has also filed rejoinder to the affidavit in reply filed by the respondent No.6. 5. In substance, Mr. Sagar, learned counsel appearing for the petitioner submits that initially, 8th to 10th standard classes were not on 5 W.P.No.3226.09 grant-aid basis fully, therefore, the petitioner did not press his claim. The grant-in-aid or no grant, the learned counsel appearing for the petitioner submits that Management is bound to follow the scheme of appointment, as per the directions issued by the Higher Authorities. The petitioner need not apply for claiming higher pay- scale. By way of normal rule under the scheme the benefits ought to have been given to the petitioner. 6. Mr. Rudrawar, learned counsel appearing for respondent-Management submitted that reply has already been filed by the Management. In para No. 3 it is contended that claim of the petitioner would be considered for higher pay scale on the post of trained graduate teacher, after receiving permission from the respondent No. 1. On instructions, Mr. Rudrawar, learned counsel appearing for respondent-Management submits that fresh proposal is pending with respondent-State Authorities and no sooner proposal is sanctioned 6 W.P.No.3226.09 the petitioner being Senior, would be conferred with higher pay-scale of Rs.5000-9000. 7. Mr. Tele, learned counsel appearing for the respondent No.6 submits that the respondent No.6 was appointed directly and accordingly he has discharged his duties as Assistant Teacher. His appointment is approved and prescribed pay-scale of Rs.5500-9000 is being paid to him. The learned counsel further submits that since last seven years the petitioner has not insisted for such claim, and raised his claim after a gap of more than six years. 8. Mr. V.D.Salunke, learned counsel appearing for the respondent No.5-Headmaster, adopted the stand of the New Management and respondent No.6. 9. We have perused the communications dated 27th April, 1981 (Page No. 26) addressed on behalf Office of Director Education and dated 09th July, 1987 (Page No.27). These communications indicate 7 W.P.No.3226.09 that post with higher pay scale lying vacant in higher standard of 8th to 10th classes can be filled in by conferring higher pay scale on the teacher, on the basis of seniority, who is teaching 5th to 7th standard classes. In the natural set of circumstances, said Policy needs to be followed, in its natural course. 10. In the facts of this case, we find that though petitioner did not raise any claim, for the reasons best known to him, for a period of six years, but claimed higher pay scale thereafter. The petitioner is not admitting the contention of the respondents that petitioner did not do so, because grant was not sanctioned to the post, which was available to 8th to 10 standard classes. We need not address that issue, in the light of the facts of this case. The fact remains that respondent No. 6 was appointed as qualified person in the year 2003 with pay scale of Rs.5500-9000. His appointment is approved. He is in settled position. As regards pay scale is concerned, 8 W.P.No.3226.09 allowing the petition straightway would amount to withdrawal of higher pay scale from respondent No. 6 by giving retrospective effect. In the facts of the present case, in the light of pleadings and reply filed by the respondents, we are of the opinion that such directions are not warranted. But, at the same time, in the light of reply filed by the Management and submissions advanced by the learned counsel Mr. Rudrawar, on instructions prayer clause-D made by the petitioner can very well be considered so that issue could be finally settled. 11. We, therefore, direct that the petitioner’s claim for higher pay scale shall be first considered no sooner post having pay scale of Rs.5500-9000 is approved by the Authorities. We direct the authorities to pass appropriate order on the proposal of the Management in accordance with law. In case the Management has not submitted proposal, the Management would submit the proposal in prescribed form within four weeks 9 W.P.No.3226.09 from the date of this order. The State- Authorities would pass an appropriate order on the proposal sent by the Management within three months from the receipt of the proposal, in accordance with law. 12. Rule is made absolute in the above terms. Sd/- Sd/- [K.K. TATED, J.] [NARESH H. PATIL, J.] MTK