(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 880 OF 1999 Bharat s/o. Tukaram Chavan, Age : Major, Occupation : Service, R/o. Dhanegaon, District : Nanded, at present working as Assistant Teacher in Yeshwantrao Chavan Primary School, Ashwinnagar, Dhanegaon, Taluka & District : Nanded. .. Petitioner. versus 1. The State of Maharashtra. 2. The Deputy Director of Education, Aurangabad Region, Bansilalnagar, Aurangabad. 3. The Education Officer (Primary), Zilla Parishad, Nanded. 4. The Head Master, Yeshwantrao Chavan Primary School, Ashwinnagar, Dhanegaon, Taluka & District : Nanded. .. Respondents. ....................... (2) Mr. A.S. Golegaonkar, Advocate, for the petitioner. Mr. N.B. Patil, Assistant Government Pleader, for respondent nos. 1 and 2. Mr. V.S. Panpatte, Advocate, for respondent no.3. Respondent no.4 served (Absent). ........................ CORAM : B.R. GAVAI & S.V. GANGAPURWALA, JJ. DATE : 11TH AUGUST 2010 ORAL JUDGMENT (Per B.R. Gavai, J.) : 1. The petitioner challenges the communication dated 1st April 1998, issued by the respondent no.3 / Education Officer, thereby granting approval to the post of the petitioner, in the pay scale of Rs. 1200-2040. 2. The petitioner is appointed as a Teacher in the Primary School. The petitioner was initially granted approval in (3) the pay scale of Rs. 1400-2600 i.e. of a trained teacher. The petitioner's services came to be terminated. However, the appeal, challenging the termination, was allowed by the learned School Tribunal. In pursuance to the order of the learned School Tribunal, the petitioner's services were reinstated. However, after reinstatement of the petitioner, the Education Officer, vide order dated 1st April 1998, granted approval in the pay scale of Rs. 1200-2400 i.e. of an untrained teacher. 3. Mr. A.S. Golegaonkar, learned Counsel appearing for the petitioner, submits that since the petitioner is possessing B.A.,B.P.Ed. qualification and since equivalence is granted to B.P.Ed., on par with B.Ed., for all purposes, the petitioner was entitled to the pay scale of a graduate trained teacher. 4. Mr. N.B. Patil, learned Assistant Government Pleader appearing for respondent nos.1 and 2, on the contrary, submits that since the petitioner is working in a Primary School, D.Ed. is the necessary qualification. He further submits that since it is a Primary School, there is no post sanctioned for a Physical Instructor and, as such, the petitioner is not entitled to get that pay scale and the petitioner has rightly been granted pay scale of an untrained teacher. 5. A Full Bench of this Court, in the case of Jayashree (4) Sunil Chavan Vs. State of Maharashtra and others (2000(3) Mh.L.J. 605), has held that for a teacher teaching in a primary school, D.Ed. is the necessary qualification. The Apex Court, in the subsequent judgment, in the case of State of Maharashtra & others Vs. Tukaram Tryambaki Chaudhari & others (2007(3) Supreme 17), has held that only such of the schools, to which 5th to 7th standards are attached, the teachers having B.A.,B.Ed. qualification would be entitled as trained teachers. 6. Admittedly, the school, in which the petitioner is working, is a Primary School having classes only from 1st to 4th standard. In that view of the matter, the petitioner cannot be termed as a trained teacher. The petitioner is also not entitled to the pay scale admissible to a teacher having B.P.Ed. qualification, inasmuch as, there is no sanctioned post available of a Physical Instructor in the Primary School. 7. In that view of the matter, no case is made out for interference in exercise of writ jurisdiction. 8. However, during the intervening period, if the petitioner has acquired necessary qualification of a trained teacher, he shall be entitled to apply to the Education Officer and the Education Officer shall consider the same in accordance with law. (5) 9. Subject to the observations in para 8 above, the petition is dismissed. Rule is discharged. However, there shall be no order as to costs. ( S.V. GANGAPURWALA ) ( B.R. GAVAI ) JUDGE JUDGE ......................... bgp/wp880