1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5904 OF 2008 Ankush Maruti Tavare ..Petitioner. Vs. The State of Maharashtra and others ..Respondents. WITH WRIT PETITION NO.5906 OF 2008 Madhuri Dnyaneshwar Khandeshe ..Petitioner. Vs. The State of Maharashtra and others ..Respondents. .... Mr. N.V. Bandiwadekar for the Petitioner. Mr. A. P. Vanarase, AGP for Respondents 1 and 2. Mr. Ashok Gupta i/b Mr. Mihir Desai for Respondents 3 and 4. Mr. K.R. Jagdale for Respondent No.5. .... CORAM: DR. D.Y. CHANDRACHUD, J. 15th December, 2008. P.C. : 1. Rule, by consent of the learned counsel made returnable forthwith. Counsel appearing for the Respondents waive service. With the consent of the learned counsel and at their request, the Petitions are taken up for hearing and final disposal. 2. In both the Petitions which have been instituted under 2 Article 226 of the Constitution, the challenge is to a common order passed by the Education Officer (Secondary), Pune Zilla Parishad cancelling the upgradation of the two Petitioners to the trained graduate scale. For convenience of reference, it would be appropriate to elucidate the facts of the two cases separately : Writ Petition 5904 of 2008 : 3. The Petitioner holds the B.A. and B. Ed. (Physical) qualifications. The Petitioner was appointed as an Assistant Teacher on 5th August, 1997 on probation in the SSC D.Ed scale. The appointment of the Petitioner was approved by the Education Officer on 24th November, 1997. The existing teacher in the school, Mr. B.S. Tavare who was teaching Physical Education and was an M. A., B.Ed. (Physical) died. Mr. Tavare was teaching standards 8 to 10 while the Petitioner was teaching Physical Education to standards 5 to 7. The Petitioner who was already a P. E. teacher for standards 5 to 7 was upgraded by a resolution of the management dated 16th August, 2004 in the vacancy that was created for the subject of Physical Education for standards 8 to 10. The Petitioner was 3 accordingly granted the trained graduate scale on 17th August, 2004 and was furnished with a letter of appointment. The management submitted a proposal to the Education Officer for his approval and by an order dated 9th September, 2004 the appointment of the Petitioner was approved in terms of a circular dated 9th July, 1987, considering the need in respect of the subject of Physical Education. On 9th March, 2005 the Education Officer granted his approval to the appointment of the Petitioner as a trained graduate teacher from 17th August, 2004. However, on the complaint of the Fifth Respondent the approval was cancelled by the Education Officer on 15th April, 2008 with a consequential direction to recover the excess amount paid to the Petitioner. A representation was submitted by the Petitioner while the management preferred a review application. Both came to be rejected by the Education Officer. Writ Petition 5906 of 2008 : 4. The Petitioner holds the B. Sc., B. Ed. qualification and was appointed as an Assistant Teacher on probation on 23rd July, 1997 to teach the subject of Science for standards 8 to 10 in the D Ed. Scale. 4 The appointment was approved by the Education Officer. One S.K. Gavali who was working as a Headmaster of the school retired on 28th February, 2003. In his place S.E. Kasab who was the senior teacher was promoted as Headmaster. As a result the workload in the subject of Science which was being taught by S.E. Kasab became available in terms of a vacancy. The management passed a resolution on 25th February, 2003 granting the trained graduate scale to the Petitioner. A proposal was submitted to the Education Officer on 19th June, 2003 which was approved on 21st July, 2003. The Education Officer thereupon proceeded to cancel and restore the scale to the Petitioner on as many as four occasions. Eventually by the order which is impugned in these proceedings the Education Officer held that the Petitioner was not entitled to the trained graduate scale. 5. In both the Petitions it has not been disputed that in terms of seniority, the Fifth Respondent was senior to the two Petitioners. The Education Officer proceeded on the basis that for standards 5 to 7 25% of the posts are to be filled up from amongst the trained graduate teachers while for the balance 75%, it is essential to appoint 5 D. Ed. qualified teachers. On the other hand, for standards 8 to 10 trained graduate teachers are required to be appointed subjectwise, in accordance with the need of the subject. The Education Officer, however, held that in granting the trained graduate scale in the 25% quota in standards 5 to 7 seniority must be applied as a norm and that inasmuch as the Fifth Respondent was senior to the two Petitioners, the upgradation to the trained graduate scale could not have been granted to the Petitioners. 6. The contention that has been urged on behalf of the Petitioners is that there is a basic fallacy in the order passed by the Education Officer, in that none of the Petitioners came to be upgraded to the trained graduate scale in the 25% quota that is set apart for Assistant Teachers teaching standards 5 to 7. In Writ Petition 5904 of 2008 a vacancy had arisen on account of the death of the existing P.E. teacher who was engaged for standards 8 to 10 and the Petitioner being the P.E. teacher also engaged for standards 5 to 7 in the D. Ed. scale was upgraded to the B. Ed. scale in the vacancy. In Writ Petition 5906 of 2008 the Petitioner was a Science teacher 6 who was already engaged in the D. Ed. Scale for teaching standards 8 to 10 and a vacancy in the said subject had arisen on account of the promotion granted to Mr. S.E. Kasab to the post of Headmaster. In the circumstances, it was urged that the rule of seniority which applies to the upgradation to the trained graduate scale in the 25% quota in standards 5 to 7 therefore will have no application. It was urged that the circular of the government dated 9th July, 1987 in fact provides in Clause (2) as follows : “[2] If trained graduate teachers are to be appointed for standard VIII to X, then the graduate Teachers who are possessing B.T / B. Ed. Degree and working in the scale of Rs.290-540 should be considered on the basis of their seniority and merit. Similarly while filling up the post of trained graduate Teachers for Standard VII to X, if the junior Teacher is to be appointed by superseding the senior most Teacher taking into consideration the necessity of subject, then for this purpose, the Management would obtain prior permission of the Education Officer.” Clause (2) of the circular dated 9th July, 1987 thus clearly contemplates an eventuality where a trained graduate teacher for standards VIII to X is to be appointed. Teachers possessing the B. Ed and B.T degree and working in the scale of Rs.290-540 are to be considered on the basis of seniority and merit. However, the circular 7 provides that if, considering the necessity of a particular subject, a junior teacher is to be appointed, then the management would have to obtain the prior permission of the Education Officer. In both the cases it is evident that the need for upgradation arose on account of the vacancy created by the death in the first case, and the promotion in the second, of a teacher who was teaching a particular subject. In the first case, the Assistant Teacher who was teaching the subject of Physical Education died while in service, while in the second case a vacancy was created by the promotion to the post of Headmaster of the teacher who was teaching the subject of Science. In the first case, the Petitioner who was teaching Physical Education to standards V to VII was appointed and upgraded to the trained graduate scale for standards VIII to X. In the second, the Petitioner was already teaching the subject of Science though in the D. Ed scale for standards VIII to X and he was upgraded to the trained graduate scale. In these circumstances, the management cannot be regarded as having acted in breach of the circular dated 9th July, 1987 by granting the trained graduate scale to an existing teacher considering the need of the subject. In the first case, the need related to the 8 subject of Physical Education, while in the second case, the need related to the subject of Science. The considerations which were borne in mind by the management were not alien to the circular and in fact, as noted earlier Clause (2) contemplates such a situation. The Education Officer has proceeded on the fallacious basis that the upgradation was in the 25% quota for trained graduate teachers for standards V to VII. 7. In these circumstances, the impugned order passed by the Education Officer shall stand set aside and the Petitions shall stand allowed. However, it is clarified that in view of the well settled position in law laid down by this Court in Saramma Varghese v. Secretary/ President, S. I. C. E. S. Society1, the grant of the trained graduate scale to the two Petitioners shall not affect the seniority of the Fifth Respondent. This Court has laid down in the said judgment that the grant of the trained graduate scale does not affect the seniority of existing teachers which shall be determined in accordance with the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981. Consequently, the seniority of the Fifth Respondent 1 1989 Mh. L. J. 951. 9 under the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 shall not be affected by the grant of the trained graduate scale. 8. Counsel appearing for the management has also stated before the Court that in granting the upgradation for the 25% quota for standards 5 to 7, the management shall strictly follow the rule of seniority. The statement is accepted. The Petitions shall accordingly stand disposed of in terms of the aforesaid directions. There shall be no order as to costs. *****