- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION No. 1655 OF 1998 Mrs. Meena Kumaji Shinde, ) Adult, Occu.- Service, residing at - ) Survey No. 95, House No. 887, Satav ) Chawl, Behind Navratna Mangal ) Karyalaya, Hadapsar, Pune-411028 ... Petitioner Vs. 1. State of Maharashtra ) 2. The Director of Education, ) Maharashtra State, Central Building Pune-411 001. ) 3. The Dy. Director of Education ) Pune Region, Pune ) 4. The Education Officer (Primary), ) Zilla Parishad, Pune ) 5. The Administrative Officer, ) Municipal School Board, Pune ) 6. Sane Guruji Shikshan Sanstha ) Sanchalit Adarsha Vidya Mandir ) Mahadevnagar, Branch No.2, ) At & Post Manjari Farm ) Tal. Haveli, District Pune ) ... Respondents - 2 - Mr. A. M. Joshi, for the Petitioner. Mr. V. S. Gokhale, AGP for Respondent Nos. 1 to 3. Mr. S. J. Rairkar, for Respondent No. 5. CORAM: D. D. SINHA, AND A. A. SAYED, JJ. CLOSED FOR JUDGMENT ON : JANUARY 21, 2010. JUDGMENT PRONOUNCED ON : MARCH 11, 2010 JUDGMENT [ Per D. D. SINHA, J.]: . Heard the learned counsel for the petitioner, respondent No.5 and the learned AGP for respondent Nos. 1 to 3. The counsel for the petitioner submitted that the petitioner was working as an Assistant Teacher in the primary School run by respondent No. 6. At the time of of her appointment, the petitioner was holding degree of B.A. It is the case of the petitioner that her services were approved by the Education Officer (Primary) in the pay scale of Rs.1200-2040 which was meant for under graduate trained teachers. In the year 1996 the Education Officer called upon the Management to furnish information regarding the seniority list of the teachers along with their qualification so as to consider the case - 3 - of the petitioner for grant of approval in this respect. 2. The counsel for the petitioner has submitted that vide communication dated 1-1-1998 the pay-scale of the petitioner has been reduced to Rs.975-1660, pursuant to the directions issued by the Education Officer, in view of the Government Circular dated 5-11-1997. It is contended that action of reduction in pay-scale being illegal, unjust is liable to be quashed and set aside. 3. The learned counsel for respondent No.5 has submitted that the issue is covered by the decision of this Court in the case of - Kondiba Dattarao Mirashe Vs. State of Maharashtra & Ors. [2003(2) Mh.L.J.432]. It is submitted that the State Government was entitled to appoint trained graduate teachers for the classes between 5 th and 7 th standards, and it only dealt with the qualifications required for a trained teacher in the primary schools. It is further contended that as per the Government Resolution dated 14-1-1979 as well as decision of the Full Bench in the case of – Suryakant Sheshrao Panchal Vs. Vasantrao Naik Vimukta Jati, - 4 - Bhatkya Jamati Adarsh Prasara Mandal and Ors. [2002(3) Mh.L.J.659], the primary school having 1 st to 7 th standards, run by the Municipal council and an Assistant Teachers who possess B.A., B.Ed. qualifications and teaches in the school imparting education from 5 th to 7 th standards is a trained teacher. In the instant case the petitioner has not mentioned whether the school in question was having classes from 1 st to 7 th standards and was imparting education to 5 th to 7 th standards. However, since the petitioner has acquired B.Ed. qualification in the year 2002, he was given graduate pay-scale vide order dated 22-11-2004 with effect from 1-6-2002. 4. We have considered the contentions canvassed by the learned counsel for the respective parties and perused the decision of the Full Bench. In the instant case, the petitioner has not stated in the petition whether the school in which the petitioner was appointed as a primary teacher in the year 1987 was having classes from 1 st to 7 th standards and was teaching in a school imparting - 5 - education from fifth to seventh standard. In the absence of specific averments in this regard in the petition, merely on the basis of pay- scale, it is very difficult to infer that the school in which petitioner was appointed as a teacher in the year 1987 was having classes from 1 st to 7 th standard and was imparting education to standard 5 th to 7 th standards. It is no doubt true that as per the decision of the Full Bench in the case of of – Jayashree Sunil Chavan Vs. State of Maharashtra & Ors. [2000(3) Mh.L.J. 605], for appointment of Primary Teacher, D. Ed. Degree was necessary qualification and the teachers holding B.Ed. degree would not qualify for such an appointment. However, in the case of Kondiba Mirashe (supra) in paragraph 8, it is observed that - “Consequent to the decision of a Full Bench of this Court in the case of Jayashree Sunil Chavan vs. State of Maharashtra and others, reported in 2000(3) Mh.L.J. 605, the Government issued the Resolutions dated 25 th October 2000 as well as 7 th November, 2001, by directing that the trained Graduates appointed for the classes between 5 th and 7 th standards ought to possess the D.Ed. - 6 - qualifications instead of B.Ed. degree. In fact, this decision of Full Bench did not overrule the scheme of the State Government to appoint trained Graduate teachers for the classes between 5 th to 7 th standards and it only dealt with the qualifications required for a trained teacher in the primary schools. Different Division Benches of this Court had taken a contrary view regarding the eligibility of Graduates with B.Ed. degree for appointment as trained primary teachers. The Full Bench held that for appointment as primary school teacher D.Ed. is a necessary qualification and the teachers holding B.Ed. degree would not qualify for such an appointment. Notwithstanding the said view, the policy of the State Government, as announced vide Government Resolution dated 14-11-1979 and as continued thereafter, was not affected by the full Bench decision of this Court. The Government Resolution dated 12-11-2001 came to be challenged in Writ Petition No. 3564/2002 and the same has been stayed by this Court. We will have, therefore, to hold that the policy of the Government announced vide Government Resolution dated 14-11-1979 continues to apply for the primary school from 1 st to 7 th standards run by the Municipal - 7 - Council and thus, an Assistant Teacher who possess B.A. B.Ed. Qualifications and teaches in the schools imparting education from 5 th to 7 th standard is a trained teacher and, therefore, is entitled to be appointed as a Head Master. The second contention, as raised by the learned Counsel for the petitioner, is upheld and it is declared that the petitioner was eligible to be appointed as Head Master of the Sangamwadi Primary School run by the respondent No.4 and he could not be said to be an unqualified teacher. The communications dated 6 th February, 1991 issued by the Respondent No.2 and dated 8 th March 1991 issued by the Respondent No.3 granting approval to the post of petitioner, but as an untrained teacher were unsustainable. Consequently, the communication and the order dated 27 th March 1991, issued by the Respondent to the petitioner, revoking approval of the pay scale as trained graduate teacher, is void ab initio and the same is required to be quashed and set aside.” 5. In the instant case the petitioner obtained B.Ed. Qualification in the year 2000 and therefore, though the order is passed in the year 2004, but the graduate pay-scale was given to - 8 - her with effect from 1-6-2002. As we have already observed hereinabove, in the absence of requisite evidence to show that the school in question where the petitioner was serving as an Assistant Teacher had classes from 1 st to 7 th Standard prior to the year, it is difficult to grant benefit of the decision, cited by the petitioner, as prayed in the petition. 6. For the reasons stated hereinabove, no case is made out for showing our indulgence. Consequently therefore, writ petition is dismissed. No order as to costs. Sd/- [D.D. SINHA, J.] Sd/- [A.A. SAYED, J]