1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 610 OF 1999 Bhaurao Gangaram Tale .... PETITIONER VERSUS The Education Officer (Secondary) Zilla Parishad, Parbhani & Oths. .... RESPONDENTS Mr. S.R.Barlinge, Advocate for the petitioner. Mrs. R.K.Ladda, Assistant Govt. Pleader for State. Mr. S.V.Warad , Advocate for respondent no. 3. ............................ CORAM : B.R. GAVAI AND S.V. GANGAPURWALA, JJ. DATE: 09/08/2010 ORDER ORDER : 1. By way of present petition, the petitioner is praying for direction to consider the claim of the petitioner for the post of trained graduate teacher in the pay scale of Rs. 1400 – Rs. 2600/- w.e.f. 15/7/1996. 2. It is the case of the petitioner that the petitioner was appointed as 2 Assistant Teacher in respondent no. 2 School on 27/7/1995 and thereafter continued from 1996-97, 1997-98. According to the petitioner, respondent no. 3 was also appointed in the same year, in which the petitioner was appointed, though holding the qualification of B.A. B.P.Ed. According to the petitioner, though respondent no. 3 was not interviewed as Assistant Teacher, but he was appointed as such and accordingly the approval was granted. The respondent – Education Officer did not give the benefit of trained graduate teacher to the petitioner and gave it to respondent no. 3. Being aggrieved thereby, the present petition. 3. Mr. Barlinge, the learned counsel for the petitioner submits that action on behalf of the Education Officer in not granting pay scale of trained graduate teacher to the petitioner is not sustainable in law. It is submitted that the petitioner was the senior most in the category of trained graduate teachers and as such was entitled to be paid the said pay scale. He submits that the stand of the respondents that the persons having B.P.Ed. Qualification should be teated as equivalent to B.Ed., is not sustainable in law and is contrary to the law laid down by the learned Single Judge of this Court in the case of Shivshakti Shikshan Sanstha & Oths. V/s Nilkantha and another reported in 2005 (3) Mh.L.J. - 696. 4. The respondent – Education Officer relying on the Govt. 3 Resolution dated 14/5/1987 has found that every Secondary school is required to have at least one physical education teacher possessing requisite qualification of HDA/B.P.Ed./B.Ed. It is stated in the said Govt. Resolution that the said physical education teacher would be entitled to get the pay scale of trained graduate teacher. The Education Officer has specifically stated in the reply that the contention of the petitioner that the petitioner and respondent no. 3 were appointed in the same year, is totally incorrect. In the affidavit, it is stated that respondent no. 3 was initially appointed on 26/8/1993 in the Pay Sale of Rs. 1400 – Rs. 2600/-. It has been stated that since initially the 7th standard was not available in the said school, though respondent no. 3 was entitled to the pay scale of R. 1400 – Rs. 2600/-, he was given appointment in the pay scale of Rs. 1200 – Rs. 2040 /-. It is submitted that after the 7th standard was available, respondent no. 3 was given the pay scale of Rs. 1400 – Rs. 2600/- vide order dated 21/3/1997 as physical education teacher. It is thus the case of the respondent - Education Officer that though the respondent no. 3 was initially appointed as physical education teacher, he was not given the pay scale of Rs. 1400 – Rs. 2600 /- since the 7th standard was not available in the said school. It is the specific stand of the Education Officer that initially appointment of respondent no. 3 which is much prior in time than that of the petitioner is of physical education teacher and only on account of non availability of 7th standard, he was given low scale. It is the case that as soon as 7th standard 4 was available, requisite pay scale was given to the petitioner. 5. It can thus be seen that the case of the petitioner that respondent no. 3 was absorbed against the post of trained graduate teacher available from the teachers teaching in 5th to 7th standard, is not correct. It is the specific stand of the Education Officer that respondent no. 3 was in fact working as physical education teacher and since on account of non availability of 7th standard, he could not be given pay scale of Rs. 1400 – Rs. 2600/- and on availability of 7th standard, he was given said pay scale. We find that the contention of the petitioner that respondent no. 3 was accommodated against the trained graduate teacher’s post available for classes of 5to to 7th standard is without substance. 6. In so far as the reliance on the Judgment of the learned Single Judge is concerned, the facts are not the same. In the said case, the employee, who was initially appointed is a physical education teacher, was subsequently absorbed in the post of Assistant Teacher, which was meant for teaching subjects. It was, therefore, found that the person therein who had not passed graduation with the subject which was taught in the school, was not sustainable. In the present case, it is the stand of the Education Officer that the approval to the post of respondent no. 3 was granted only as a physical education teacher. 5 7. In that view of the matter, we do not find any substance in the petition. The petition is, therefore, dismissed. Rule is discharged. 8. In case if there is any post for the trained graduate teacher in the school, for 5th to 7th standards run by respondent no. 2, the petitioner would be at liberty to make the representation to the Education Officer, which would be considered in accordance with law. [ S.V. GANGAPURWALA ] [ B.R. GAVAI ] JUDGE JUDGE knp/WP 610.99