1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 2262 OF 2007 Farida Bano w/o. Abdul Bari Age 29, Occ. Service, R/o. Dhangarwada, Paithan Taluka Paithan, Dist. Aurangabad. .. petitioners Versus 1] The State of Maharashtra through its Secretary School Education Department, Mantralaya, Mumbai. 2] Deputy Director of Educatoin Aurangabad Region, Aurangabad. 3] Education Officer (Primary) Zilla Parishad, Aurangabad. 4] Sabka Malik Ek Shikshan Sanstha through its Secretary Paithan, Taluka Paithan, District Aurangabad. 5] The Head Master, Late Trimbakdas Patel Urdu Primary School, Paithan Taluka Paithan, District Aurangabad. 6] Smt. J.S. Chaudhari, Aged Major, occ. Nil r/o. C/o. Respondent No.4 2 .. Respondents. --- Shri A.S. Bayas, Advocate for the petitioner Mr. S.K. Tambe, AGP for respondent Nos. 1 and 2 Mr. Deelip Bankar Patil, Advocate for respondent No.3 Shri Pradeep Deshmukh, Advocate h/f Shri A.R. Mohane, Advocate for respondent Nos. 4 and 5. CORAM : B.R. GAVAI & N.D.DESHPANDE,JJ. DATE : 10TH SEPTEMBER,2009. ORAL JUDGMENT [PER B.R. GAVAI,J.]:- 1] Rule. Rule made returnable forthwith. Heard by consent. 2] By way of present petition, the petitioner is praying for a direction to pay the salary to the petitioner from March, 2005 onwards with interest @ 21% p.a. The petitioner who is possessing the necessary qualification of H.S.C., D.Ed. Was appointed as Shikshan Sevak vide order dated 13/6/2001. The Education Officer approved the services of the petitioner and on completion of 3 years services of the petitioner were regularized and she was given the pay scale of trained Assistant Teacher vide order dated 14th July, 2004. 3] It appears that on 22/5/2005, the respondent No.5 was informed by the authorities of the Education Department that though only 5 posts were 3 admissible to the school of the respondent No.4 society, 6 teachers were appointed and paid salary by the respondent Nos. 4 and 5 and, therefore, the respondents were directed the refund the excess amount. The communication dated 22/5/2005 required the petitioner to approach this court by way of Writ Petition No.2174/2005. In view of the categorical statement made on behalf of the present No.3, the court did not find it necessary to interfere in the said petition. It will be appropriate to reproduce the relevant part of the said order, which reads thus : “According to the petitioner, by virtue of the approved staffing pattern, five posts in respect of the classes which are on grant are admissible. The five posts include one post of Head Master and four posts of Assistant Teacher. Mr. Irale Patil, learned counsel, appearing on behalf of the respondent NO.2 has stated that in view of the sanction order dated 27/10/2005, the posts admissible to grants for the yar 2005-06 are one post of Head Master and four posts of Assistant Teacher. In the light of this statement, therefore, according to us, the apprehension of the petitioner that the respondents have sanctioned only four posts is without any foundation.” 4] It is thus apparent that a clear impression was given to the court that 5 posts including that of the Head Master was approved 4 according to the approved staffing pattern and as such, the apprehension of the petitioner was illfounded. 5] In spite of the said order passed by this court, the salary of the petitioner has not been paid. Therefore, the petitioner has approached this court. 6] Shri Dilip Bankar Patil, learned counsel for the respondent NO.4 submits that the statement which was made before this court was made erroneously and as such, a review petition was also filed. It is submitted that this court, though vide order dated 18/12/2008 rejected the review petition, had granted liberty to the said respondents that as and when occasion arises in respect of the exact sanctioned strength which are entitled to be paid from the salary grants, present applicant/Education Officer may accordingly defend the said charge. 7] Shri Patil, learned counsel for the respondent NO.3 is not entitled to raise a ground that 5th post was not available and as such, payment of salary to the petitioner can not be made. We are afraid, as to whether such a stand could be accepted on behalf of the respondent NO.3. This court had categorically recorded the statement of the respondent NO.3 that according to the approved staffing pattern, 5 posts including the post of Head Master were approved. In view of that categorical statement, this court had declined to interfere finding the apprehension of the petitioner 5 being unwarranted. Not only this, but we find that the annexure to Govt. Resolution dated 30/1/1996 would also show that wherein the number of students from 1st to 4th standard is between 201 to 250, the number of posts of sanctioned teachers would be 5. We, therefore, find that the statement made in W.P. No. 7701/2006 was on the basis of the aforesaid Govt. Resolution. It is to be noted that from the communication addressed by the Zilla Parishad dated 28/8/2003 and 16/2/2005, it can be seen that the number of admitted students for the academic year 2002-03 was 519, for the year 2003-04 was 326 and for the year 2004-05 was 302. It is thus clear that the number of students was more than 250. We are, therefore, of the considered view that the statement which was made on behalf of the respondent No.3 was on the basis of the record and in consonance with the Govt. Resolution dated 31/1/1996. In that view of the matter, we find that the act of the respondent Nos. 2 and 3 in denying salary to the petitioner is unsustainable in law. 8] We, therefore, direct the respondent Nos. 2 and 3 to pay the salary to the petitioner from March, 2005. Rule made absolute in above terms, with no orders as to costs. [N.D. DESHPANDE, J.] [B.R. GAVAI,J.] Grt/- 6