Vaibhav S/O Waman Modhe v. State Of Maha. Through Its Principal Secretary, School Education Department, Mumbai And Others

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH AT NAGPUR WRIT PETITION NO. 509 OF 2022 Vaibhav s/o Waman Modhe, Age : 34 years, Occu : Service as Assistant Teacher, R/o. Dhamangaon Badhe, Tq. Motala, Dist. Buldhana .....PETITIONER ...V E R S U S...

(1) The State of Maharashtra, Through its Principal Secretary, School Education Department, Mantralaya, Mumbai - 32.

(2) The Education Officer (Secondary), Zilla Parishad, Buldhana.

(3) Malkapur Shikshan Samiti, Malkapur, Tq. Malkapur, Dist. Buldhana Through its Principal/Secretary

(4) M.E.S. High School, Dhamangaon Badhe, Tq. Motala, Dist. Buldhana Through its Head Master. .....RESPONDENTS -------------------------------------------------------------------------------------------- Mr. N. B. Kalwaghe, Advocate for the petitioner Mr. M. K. Pathan, A.G.P. for the State/respondents 1 and 2 None for respondents 3 and 4 ------------------------------------------------------------------------------------ CORAM : ROHIT B. DEO & MRS. VRUSHALI V. JOSHI, J J.

DATE : 25-04-2023 ORAL JUDGMENT (Per: Rohit B. Deo, J.) Heard.

2.

Rule. Rule made returnable forthwith. Heard finally with consent of the parties.

3.

The petitioner was appointed as Assistant Teacher in unaided section in respondent 4 - school, which is managed by respondent 3 - institution, on 1-10-2013, and his appointment as Assistant Teacher (unaided section) was approved by the Education Officer on 26-12-2013.

4.

It is not in dispute that on 1-7-2018, the petitioner was transferred to 100% aided post. The Education Officer has approved the appointment of the petitioner on the 100% aided post as Shikshan Sevak. The limited grievance of the petitioner is that having completed nearly 5 years of service as unaided post holder, in as much as the petitioner is transferred to 100% aided post, the petitioner ought to have been granted approval not as Shikshan Sevak, but as Assistant Teacher.

5.

Facts are not in dispute nor is the law fluid. 6.

Consistent view is taken by several decisions of the coordinate Benches upholding the right of similarly situated employees to approval as Assistant Teachers. We may refer to the decision in Writ Petition 12512 of 2021 (Arun Suryabahan Dhanak

Vs. The State of Maharashtra and others) dated 16-11-2021. The relevant observations reads thus :

"5] The Education Officer shall confirm that if the transfer of the petitioner is on 100% grant-in-aid post and if he is convinced that the post is 100% grant-in-aid post, then he shall grant approval to the transfer of the petitioner on 100% grant-in-aid post as Assistant Teacher from the date of his transfer."

7.

In the interest of avoiding any confusion, it may be noted that while Rule 41(A) is introduced with effect from 8-6-2020, as is observed by the coordinate Bench in paragraph 21 of Writ Petition (Stamp) 93919 of 2020 (Sandhya D/o. Balkrushna Teli & Ors. Vs. The State of Maharashtra & Ors.) dated 12-3-2021, the amendment does not have retrospective effect and is, therefore, of no relevance to the present matter, since the petitioner has been transferred to 100% aided post prior to coming into force of Rule 41(A). We therefore, hold that the petitioner is entitled to approval as Assistant Teacher with effect from the date of transfer to the aided post and allow the petition in terms of the following order. (a) Writ petition is made absolute in terms of prayer clause (B). Impugned orders dated 7-3-2019 and 14-8-2019 shall be modified by the respondent 2 -

Education Officer within two weeks from the date of uploading of this order on the High Court website by providing 100% grant-in-aid from the date of transfer and shall communicate such decision to the petitioners as well as respondent 3 within one week from the date of taking such decision.

(b) Rule is made absolute in aforesaid terms. There shall be no order as to costs.

(Mrs. Vrushali V. Joshi, J.) (Rohit B. Deo, J.) wasnik YUVRAJ WASNIK