(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 2688 OF 2000 Arun Dnyandeo Late, Aged : 28 years, Occupation : Service, Assistant Teacher, Resident of Tamaswadi, Taluka : Newasa, District : Ahmednagar. .. Petitioner. versus 1. The State of Maharashtra. 2. The Deputy Director of Education, Maharashtra State, Pune Region, Pune. 3. The Education Officer (Secondary), Zilla Parishad, Ahmednagar, District : Ahmednagar. 4. Gramvikas Shikshan Mandal [a registered public trust] at Village Kharwandi, Taluka : Newasa, District : Ahmednagar, through its Secretary. 5. Chandrakant Daulatrao More, Age : 28 years, Occupation : Service, Resident of C/o. Dnyaneshwar Vidyalaya, Kharwandi, Taluka : Newasa, Dist. Ahmednagar. .. Respondents. (2) ....................... Mr. R.N. Dhorde, Advocate, holding for Mr. A.M. Gaikwad, Advocate, for the petitioner. Mr. K.B. Chaudhary, Assistant Government Pleader, for respondent nos.1, 2 and 3. Mr. G.B. Rajale, Advocate, for respondent no.4. Mr. S.V. Mundhe, Advocate, for respondent no.5. ........................ CORAM : A.P. DESHPANDE & N.D. DESHPANDE, JJ. DATE : 5TH JANUARY 2010 ORAL JUDGMENT (Per A.P. Deshpande, J.) : 1. The petitioner is a trained graduate Teacher possessing qualifications of B.A.,B.P.Ed. The petitioner had passed B.A. in the year 1995 and thereafter obtained qualifications of B.P.Ed. in the year 1998, in First Division. Pursuant to an advertisement issued by the respondent no.4, the petitioner applied for the post of a trained graduate Teacher and after undergoing the process of selection, the petitioner came to be appointed as an Assistant Teacher in the reserved category of Other Backward Class. The appointment order came to be issued to the petitioner, appointing him on probation for a (3) period of two years, dated 19-1-1999. The appointment order categorically mentions the pay scale in which the petitioner was appointed, being Rs. 1400-2600, which is admittedly the then prevailing scale of pay for trained graduate Teachers, such as, the petitioner. 2. After appointment of the petitioner, as an Assistant Teacher, the school forwarded proposal to the Education Officer, seeking approval to the appointment on probation, for a period of two years. The Education Officer granted approval to the appointment of the petitioner with effect from 22nd January 1999, in the pay scale of Rs. 1400-2600. However, a note came to be appended down below the approval order, conveying that the said approval is subject to the guidance sought from the Deputy Director of Education. By about the same time, one more Teacher, by name, Shri C.D. More, who happens to be respondent no.5 in the present petition, had staked his claim to the higher pay scale meant for trained graduate Teacher and the subject of grant of higher pay scale to the respondent no.5 was also under active consideration of the Education Officer. The respondent no.5 was granted higher pay scale available to trained graduate Teachers despite the fact that he was possessing qualifications of B.A., D.Ed. There was some controversy, as to whether a Teacher possessing B.A., D.Ed. qualifications is entitled to be paid in higher pay scale admissible to a trained graduate Teacher. The Education Officer had initially granted higher pay scale to the respondent no.5. However, the Deputy Director of Education (4) intimated the Education Officer, that the respondent no.5 cannot be granted higher pay scale as he was not holding the qualification of B.Ed. and did possess qualification of D.Ed. At a later point of time, the respondent no.5 acquired the qualification of B.Ed. and thus, he came to be granted higher pay scale. 3. While granting higher pay scale to the respondent no.5, by the impugned order, the Education Officer directed the school management to submit proposal for seeking approval to the appointment of the present petitioner in the pay scale admissible to a Teacher possessing only D.Ed. qualification. Thus, while granting approval to the respondent no.5, as a trained graduate Teacher, in the pay scale of Rs. 1400-2600, the Education Officer directed the management to submit proposal of the petitioner in D.Ed. scale (Lower pay scale). It is this part of the order contained in the communication dated 31st May 2000, issued by the Education Officer to the school management and the Head Master, which is challenged by filing the present petition. 4. Few subsequent events which transpired during the pendency of this petition and the other petition, bearing No. 1923/2001 (which has been withdrawn by the petitioner today) need to be stated in brief. The respondent no.5, who was granted higher pay scale, on account of abolition of post in the secondary school, was declared as (5) an excess Teacher and has been absorbed in some other school under the directions of the Education Officer acting in conformity with Rule 26 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981. He has been absorbed in the other school as a trained graduate Teacher. So, his grievance has come to an end. The present petitioner continues to work with the respondent no.4, management. 5. By an interim order dated 25th September 2000, this court had directed that the petitioner be paid salary admissible to the post held by the petitioner. It is an admitted fact that consequent upon passing of the interim order dated 25th September 2000, the petitioner is being paid salary in the pay scale admissible to the post of a trained graduate Teacher. Thus, the impugned part of the order has really not operated and stood eclipsed on account of passing of the interim order. 6. Mr. R.N. Dhorde, learned Counsel appearing for the petitioner, contended that the petitioner had applied in response to an advertisement for the post of a trained graduate Teacher. The petitioner was selected and ultimately appointed as a trained graduate Teacher in the pay scale admissible to such Teachers, meaning thereby, in the then existing pay scale of Rs. 1400-2600. The submission is, that as the petitioner has been appointed as a trained graduate Teacher, his proposal for seeking approval was correctly sent by the school management and initially the Education Officer had (6) rightly approved the appointment of the petitioner as a trained graduate Teacher vide order dated 6-3-1999. However, by the impugned communication dated 31st May 2000, the Education Officer had directed the school management to send a proposal seeking approval to the appointment of the petitioner in the lower pay scale i.e. the one that is admissible to a D.Ed. Teacher. This obviously cannot be permitted as the same would be contrary to the provisions of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977, and the rules framed thereunder. The Education Officer cannot unilaterally change the contract of service entered into between the petitioner, who is an employee and the school management, which is an employer. As stated herein above, the respondent no.5 has already been absorbed in some other school and assuming that at the relevant point of time, there was some dispute as to who amongst the two is entitled to be granted higher pay scale, does not now survive. In the submission of the learned Counsel for the petitioner, the impugned order is arbitrary, unfair and unreasonable, inasmuch as, the same goes to deny the petitioner, right to receive salary in trained graduate scale. 7. Neither the school management nor the Education Officer has filed any affidavit in reply, spelling out justification in support of the impugned part of the order. Non-availability of a post of a trained graduate teacher, is also not a case made out by the respondents. In the absence of any reply filed on behalf of the respondents, we proceed to accept the factual averments made in the petition : (7) (a) The post advertised, pursuant to which the petitioner had applied for appointment was of a trained graduate Teacher in the pay scale of Rs. 1400-2600. (b) The petitioner was selected and consequently appointed to the said post. (c) The appointment order viz. the contract is in respect of the post of trained graduate Teacher in the prescribed pay scale, and (d) Even the initial approval was to the petitioner's appointment to the said post in the prescribed pay scale of Rs. 1400-2600. Hence, we see no justification in the action on the part of the Education Officer in directing the school management to submit a proposal for appointment of the petitioner in the lower pay scale. Hence, the impugned order deserves to be quashed and set aside. 8. In the result, the petition is allowed. (i) We set aside that part of the communication dated 31st May 2000 from the Education Officer (Secondary), Zilla Parishad, Ahmednagar, addressed to the school management, directing it to forward proposal in regard to the appointment of the petitioner in (8) D.Ed. scale. (ii) As a necessary consequence of quashing of the impugned order, to the aforesaid extent, we declare that the petitioner's appointment is in the post of a trained graduate Teacher, which carried the pay scale of Rs. 1400-2600 at the relevant point of time, revised from time to time. (iii) The school management shall forward proposal of appointment of the petitioner, as a trained graduate Teacher, and the Education Officer shall accord approval to the appointment of the petitioner, as a trained graduate Teacher, initially on probation for a period of two years and thereafter as a permanent Teacher. 9. Rule made absolute in the above terms. There shall be no order as to costs. ( N.D. DESHPANDE ) ( A.P. DESHPANDE ) JUDGE JUDGE ......................... bgp/wp2688