1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4628 OF 2009 Shri Swatantrakumar B. Singh & another. ..... Petitioners. V/s The State of Maharashtra and Ors. ..... Respondents. Mr. N.V. Bandiwadekar for petitioners. Mr. V.T. Dubey for respondent Nos. 3 and 4. Mr. S.D. Rayrikar, AGP for respondent Nos. 1 and 2. CORAM: V.M. KANADE, J. DATE : 15TH JULY, 2009 P.C:- 1. Heard the learned Counsel for the Petitioners and the learned AGP for respondent Nos. 1 and 2. 2. Rule. Respondents waive service. Rule is made returnable forthwith by consent of parties. 3. Petitioners are challenging the order passed by the 2 Education Inspector, Western Division, Mumbai dated 18/12/2008 and 17/3/2009 whereby he was pleased to refuse the application made by the Management to grant approval to the petitioners herein in respect of their appointments as Assistant Teachers in respondent No.4 – school. 4. Brief facts are as under:- 5. Petitioners, after having acquired trained graduate qualification, applied for the post of Assistant Teacher in respondent No. 4 – school. The educational qualification of both the petitioners is that they have a degree of B.A. & B.Ed. Respondent No.4, admittedly, is a Secondary School and established in the year 1998 as an unaided school and, for the first time, started receiving aid in the year 2006. The school initially started with classes of Standard 5 th to 8 th and, thereafter, by natural growth, the school received permission for Divisions of Standard 9 th to 10 th. Respondent No. 3 2, on the basis of number of divisions in the school, sanctioned required number of teaching and non-teaching employees to the said school. In the year 2008, the Education Officer had sanctioned various posts, out of which one was of Head Master, four posts of trained graduate teachers for 8 th and 10 th standard, one post of trained graduate teacher for 5 th to 7 th standard and three posts of trained undergraduate teachers. In the year 2003 also, there were three posts of trained undergraduate teachers. Petitioners applied for the post of trained undergraduate teacher after they came to know that there were vacancies in the said category. Petitioners were called for interview and they were selected for the post of Assistant Teacher. Accordingly, a resolution was passed by the School Committee and they were appointed as Assistant Teachers on probation with effect from 13/6/2003 to 13/6/2005 in the pay-scale of Rs 4500-7000 which is the pay-scale applicable to trained undergraduate teachers. Petitioners, accordingly, joined the school and successfully 4 completed the period of probation. The Management, however, informed them that since they were appointed in the category of trained undergraduate teacher, they would have to apply afresh and, accordingly, both the petitioners made applications in writing to the Management and requested them to continue their earlier appointments which were made by them though they had successfully completed period of probation. The Management accordingly passed a resolution and the petitioners continued to work in the said category. Petitioners also gave undertakings dated 9/6/2003 in which they stated that in the event trained undergraduate teachers became available, they would not claim any right over the said post and they agreed to accept lower pay- scale. The Management, thereafter, submitted a proposal to respondent No.2 – Education Inspector for approval to the appointments of petitioners and other teachers working in the said school. In the said application, it was erroneously mentioned that the petitioners were working in the pay-scale of 5 Rs 5500-9000. Respondent No.2, however, refused to grant approval and, in the said order refusing approval, a reference was made to the order dated 17/6/2002 passed by Division Bench of this Court in Writ Petition No.1429 of 2002 and, further, it was stated that the petitioners were trained graduate teachers and they could not be appointed in the pay-scale of trained undergraduate teachers. Respondent No.4 immediately informed respondent No.2 that in the application for approval, the pay-scale was wrongly mentioned as Rs. 5500-9000 though, in fact, it was Rs. 4500-7000. Respondent No.2, however, confirmed his earlier order and refused to grant approval. 6. Being aggrieved by the said orders passed by the Education Inspector, petitioners have approached this Court under Articles 226 and 227 of the Constitution of India 7. Mr. Bandivadekar, the learned Counsel appearing on 6 behalf of petitioners, submitted that there was no bar for appointment of trained graduate teacher in the pay-scale of trained undergraduate teacher. He submitted that in the event of non-availability of teachers from the said category, the Management had an option of opting for trained graduate teachers. He further submitted that there was a specific resolution issued by the Government dated 9/7/1987 in which it was specifically stated that the trained graduate teachers could be appointed for Standard 5 th to 7 th in the pay-scale of trained undergraduate teachers. He also submitted that in the Act and the Rules framed thereunder there was no bar for such appointments being made. He further submitted that even in the order dated 17/6/2002 passed by the Division Bench of this Court in Writ Petition No.1429 of 2002, reference of which was made in the impugned order passed by respondent No.2, this Court had specifically stated that such appointments could be made. He submitted that, therefore, respondent No.2 had erred 7 in relying on the interim order passed by this Court in the said Writ Petition No.1429 of 2002 while refusing to grant approval. 8. The learned Counsel appearing on behalf of petitioners also relied upon the judgment of Single Judge of this Court in the case of Air India Staff Colony Association-1 & anr vs. Moreshwar V. Patil & Ors., reported in 2007(5) Bom. C.R. 63. He submitted that this Court had further upheld that the trained graduate teacher could be appointed as trained undergraduate teacher. 9. The learned Counsel appearing on behalf of respondents invited my attention to the affidavit-in-reply filed by the Education Inspector wherein the same stand was taken by respondent No.2. He submitted that ratio of trained graduate teacher for 5 th to 7 th Standard was 25:75 and, in this case, posts of one trained graduate teacher and three trained undergraduate 8 teachers were sanctioned. He submitted that that already one teacher had been appointed in the category of trained graduate teacher and, as such, petitioners herein could not have been appointed in the pay-scale of the said trained undergraduate teachers. 10. In my view, there is merit in the submissions made by the learned Counsel appearing on behalf of petitioners. Resolution dated 9/7/1987 clearly stipulates that appointments could be made of trained graduate teachers in the pay-scale of trained undergraduate teachers for Standards 5 th to 7 th. It was further stated that such appointments could be made till the trained undergraduate teachers were available. It is an admitted position that three posts have been sanctioned for the trained undergraduate teachers and the petitioners were appointed because the trained undergraduate teachers were not available and undertakings also have been given by the petitioners that in 9 the event trained undergraduate teachers were available, they would not claim right to the posts and they would accept the pay-scale of trained undergraduate teachers. In view of these undertakings and in view of Resolution dated 9/7/1987, Respondent No.2 was duty bound to grant approval to the appointments of petitioners, more particularly because undertakings already have been given by the petitioners herein. Respondent No.2 has erred in relying on the decision of Division Bench of this Court in Writ Petition No.1429 of 2002 dated 17/6/2002. By the said order, interim relief was granted in terms of prayer clause (c) which reads as under:- “That pending the hearing and final disposal of the Petition, this Hon’ble Court be pleased to permit the petitioners and such other schools similarly placed as Petitioners to fill up vacancines for undergraduate teachers in Standards 5 th to 7 th by graduate 10 teachers on terms and conditions mentioned in Circular of 18.6.1992 (Exhibit ‘C’ hereto)” In the said interim order, it has been mentioned that undertaking should be taken from the said trained graduate teachers that as soon as undergraduate trained teachers are available, services of such graduate trained teachers will stand terminated. It is apparent, therefore, that Respondent No.2 erred in relying on the order passed by Division Bench of this Court dated 17/6/2002 in Writ Petition No. 1429 of 2002 while rejecting the application for approval filed by Respondent No.4 – Management. The ratio of the judgment in the case of Air India Staff Colony Association-1 (supra) is also squarely applicable to the facts of the present case, wherein it has been held that such trained graduate teachers could be appointed in the post of trained undergraduate teachers for Standard 5 th to 7 th in Secondary School. The Management has filed an affidavit 11 and supported the case of petitioners herein. 11. In the result, Writ Petition is allowed. The impugned orders dated 18/12/2008 and 17/3/20098 are quashed and set aside and Respondent No.2 is directed to grant approval to the appointments of petitioners and also to release salary grant for payment of salary to the petitioners alongwith all consequential benefits in terms of Resolution dated 9/7/1987 and Resolution dated 25/6/1992. Respondent No.2 shall issue the aforesaid orders expeditiously and within eight weeks from today. Rule is made absolute in the aforesaid terms. Under the circumstances, there shall be no order as to costs. (V.M. KANADE, J)