1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO.561 OF 2008 (Mohan Ajabrao Khapane vs. State and others) ___________________________________________________________________ Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : D.D. SINHA AND C.L. PANGARKAR, JJ. DATED : JUNE 23, 2008 Heard Shri Parchure, learned Counsel for the petitioner, and Mrs. Dangre, learned Additional Government Pleader for the respondent nos. 1 to 3. In the present petition, the petitioner is seeking direction to the respondents to grant pay scale of Rs.4500-7000/- with all consequential benefits as granted earlier to the Assistant Teacher. Before we consider the above referred prayer of the petitioner on merits, few facts, which are relevant, are as follows : One Suresh s/o Govindrao Embadwar, who was Hostel Superintendent in Ashram Shala, filed Writ Petition No.790/2004, which 2 was decided by this Court vide judgment dated 6.4.2004. This Court in paras (3), (4) and (5) of the said judgment has observed thus : “3) The Government of Maharashtra has issued a resolution dated 5th February 2000 in which it has been specifically clarified in clause 6 that in respect of Hostel Superintendents, the requirement of holding D.Ed. qualification stands relaxed and that the qualification required of the aforesaid post would be a passing of the HSC examination. However, it has been stated that preference would be given to those who hold a B.P.Ed. qualification. Insofar as the legal position is concerned, there is no dispute about the fact that an Ashram School does not fall within the scope and purview of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977. Insofar as the petitioners are concerned, they are not Assistant Teachers employed in an Ashram School since there is no dispute about the fact that they are holding the post of Hostel Superintendent. 4) The Project Officer who is impleaded as the 4th respondent in these proceedings, has sought to place reliance on the circumstance that the post of Superintendent in a Ashram School hostel carried the same pay scale as that of a primary teacher and that in the circumstances, holding of D.Ed. qualification is mandatory. The mere fact that the pay scales of the two posts are the same, is no reason to arrive at any such inference. The qualifications which are necessary for the post have to depend upon the nature of the functions, the 3 responsibilities and the duties that are attached to the post. The mere fact that the pay scales for the post of Hostel Superintendent and for the post of Primary Teacher are the same, is no ground to deny approval to the petitioners for the reason that they do not hold the D.Ed. qualification, particularly when the Government in its Resolution dated 5th February 2000 has specifically relaxed the holding of D.Ed. qualification in the case of Hostel Superintendents. Insofar as the bonafides of the petitioners is concerned, it is clear that the petitioners did apply for the postal D.Ed. course, which was denied on the ground that there were not primary teachers in any government approved Primary School. The petitioners had, thus, done everything which was within their control to acquire the qualification of D.Ed. on the assumption that the holding of the D.Ed. qualification was necessary. 5) In view of the aforesaid position stated in the Government Resolution, the defence which has been raised by the 4th respondent cannot be accepted. The petitioners are, in the circumstances, entitled to the reliefs which have been claimed. The respondents shall in terms of prayer clause (i) of the petition forthwith consider the proposal for approval in respect of the petitioners on the post of Hostel Superintendent and deciding the same in the light of the aforesaid observations made in this judgment within a period of six weeks from today. Upon the decision being arrived at, the petitioners would be entitled to derive benefits as may flow therefrom. Petition is disposed of in the aforesaid terms. There shall be no order as to costs.” 4 Similarly, the present petitioner also filed Writ Petition No.473/2004. The said petition was disposed of on 6.4.2004 in view of judgment passed by this Court in Writ Petition No. 790/2004. Perusal of the judgment dated 6.4.2004 passed by this Court in Writ Petition No. 790/2004 shows that this Court in clear terms held that mere fact that pay scale for the two posts, i.e. Hostel Superintendent and Primary Teacher is same is no ground to deny approval to the petitioners since they do not have the D.Ed. qualification, particularly when Government vide Resolution dated 5.2.2000 has specifically relaxed the condition of holding D.Ed. qualification in the case of Hostel Superintendent. This Court did not adjudicate the issue about pay scale applicable to the Hostel Superintendents, who were working in Ashram Shala though stand was taken by the Government that pay scales of Hostel Superintendents working in Ashram Shala and Primary Teachers were equal. However, it is necessary to consider that the earlier petitions were filed by the petitioner and other persons 5 since their approval to the post of Hostel Superintendent was cancelled on the ground that pay scale of Hostel Superintendent working in the Ashram Shala and Assistant Teacher being similar and one of the qualifications for appointment to the post of Assistant Teacher was D.Ed. and present petitioner and other persons were not holding the said qualification. Hence, petitioner and other persons filed earlier petitions. In such situation, the above referred observations were made by this Court. It is a matter of fact that this Court never adjudicated upon entitlement of the petitioner for pay scale of Rs.4500-7000/- nor there was any Rule or Circular placed on record either in the earlier petition or in the present petition to show that pay scale claimed is on the basis thereof and, therefore, merely because in the affidavit filed on behalf of the State Government in the earlier petition it was stated that pay scale of these two posts, i.e. Hostel Superintendent and Assistant Teacher was similar, that by itself, in our view, does not create any legal right in the petitioner to claim the same unless there is a Rule, Circular or any direction issued by the State Government in this 6 regard. This fact is also evident from the order dated 27.9.2007 passed by the learned Single Judge in Contempt Petition No.184/2004. We deprecate the practice of the Officers of the State Government making a statement in the affidavit, which has no basis or foundation and we want to express that the Officers of the State Government should not file affidavits without verifying facts and provisions of law. For the reasons stated hereinabove, no case is made out for showing indulgence. The petition is dismissed. JUDGE JUDGE khj