1 WP1772.96 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1772 OF 1996 Shr Haribhau Bhagwan Kolekar R/o Kolekat Plot, Solapur Road, Tal. Barshi, Dist. Solapur. ... Petitioner v/s The State of Maharashtra & ors. ... Respondents Mr.A.M.Joshi for the petitioner. Mr.P.P.Kakade, A.G.P. for respondent No.1. Mr.R.D.Rane for respondent No.2. Mr.Haribhau Deshinge i/by Nitin Jamdar for Respondent Nos. 3 and 4. CORAM: B.H.MARLAPALLE & SMT.NISHITA MHATRE, JJ. DATED: 24TH AUGUST, 2011 ORAL JUDGMENT (Per Marlapalle, J.): 1. This petition is filed under Articles 226 and 227 of the Constitution challenging the order passed by the Administrative Officer – respondent No.2, dated 15.3.1989. 2. The petitioner came to be appointed for the first time 2 WP1772.96 as an Assistant Teacher with respondent No.3 on 5.8.1981 but in D.Ed. (Primary Teacher) scale though he had acquired the B.Ed. qualification in the year 1978 itself, after acquiring the D.Ed. qualification. While in service he was appointed in the B.Ed. scale i.e. Graduate Trained Teacher in the secondary school in the academic year 1984-85 and this was against the 25% quota for the trained graduate teachers for the school having classes from 5th to 7th standards in terms of the Government Resolution dated 14.11.1979. He continued to draw salary in the B.Ed. scale till the impugned order was passed and as a result of the impugned order he was brought down in the D.Ed. scale. 3. Shri S.J.Kurhade, Science Consultant, in the office of the Deputy Director of Education, Pune, Region, Pune, has filed an affidavit and has submitted that as the strength of average attendance in the respondent No.4 school became less than the requirement, as stipulated in the Government Resolution dated 14.11.1979, the petitioner was reverted to the D.Ed. scale. It has been further submitted in the said affidavit that the petitioner accepted the D.Ed. school in the year 1989 and, therefore, his challenge to the impugned order need not be entertained. 3 WP1772.96 4. We do not find any merit in the pleas taken by or on behalf of the Deputy Director of Education in support of the impugned order. If the strength of the students was reduced, some teachers may become surplus and under the M.E.P.S. Rules they have a protection inasmuch as they are to be absorbed in some other private aided schools, but they continue to draw their salary. We have perused the Government Resolution dated 14.11.1979 with the assistance of the learned A.G.P. and we do not find that the said Government Resolution supports the contention of the authorities that a teacher is required to be reverted from B.Ed. to D.Ed. scale if the strength of the students in 5th to 7th standards is reduced below a minimum level. When the M.E.P.S. Rules have provided for a specific remedy in case the teachers are declared surplus, it was not permissible to the Administrative Officer to pass the impugned order in disregard to the scheme of surplus teachers. The M.E.P.S. Rules do not recognize reduction in pay-scale on account of reduction of students’ strength in a particular school. Thus, the impugned order is erroneous on the face of the record and it cannot be allowed to sustain any further. 5. The petition therefore succeeds and the impugned order dated 15.3.1989 passed by respondent No.2 is hereby quashed and set aside. 4 WP1772.96 6. We direct that the petitioner’s salary shall be re-fixed in the B.Ed. scale from 1.6.1987 onwards, within four weeks from today and the respondent No.4 school shall submit the pay bills for arrears of payment within two months from today, to respondent No.3. The bills shall be passed as expeditiously as possible and in any case within a period of two months from their receipt. 7. Rule is made absolute accordingly, but without any order as to costs. (SMT.NISHITA MHATRE, J.) (B.H.MARLAPALLE, J.) 5 WP1772.96