WRIT PETITION NO. 6114 OF 2018

14th January 2019

Petitioner Counsel: Mr.V.C.Patil
Respondent Counsel: Ms.R.P.Gaur
Act Name: Maharashtra Employees of Private Schools [Conditions of Service] Regulation Act, 1977 Right of Children to Free and Compulsory Education Act, 2009 Constitution of India, 1950

Section :
Section 5 Maharashtra Employees of Private Schools [Conditions of Service] Regulation Act, 1977 Section 5(1) Maharashtra Employees of Private Schools [Conditions of Service] Regulation Act, 1977 Section 5(2) Maharashtra Employees of Private Schools [Conditions of Service] Regulation Act, 1977 Section 19 Right of Children to Free and Compulsory Education Act, 2009 Section 25 Right of Children to Free and Compulsory Education Act, 2009

Cases Cited :
Paras 11, 14, 18: Ms. Sandhya Laxman Ghosalkar Vs. The State of Maharashtra & others in Writ Petition No.5258 of 2012
Paras 11, 12: Dattu s/o Bhima Thorat Vs. The State of Maharashtra & others in Writ Petition No.2960 of 2012
Para 12: Sudhir Dnyandeo Gadakh Vs. The State of Maharashtra & others in Writ Petition No.5978 of 2014
Para 12: Shri Ganesh s/o. Raghu Jadhav Vs. The State of Maharashtra & others, [2016] 1 Bom CR 248
Para 12: Shri Sachin Babanrao Deshmukh Vs. The State of Maharashtra & others in Writ Petition No.7813 of 2015
Para 12: Mrs. Rajabai Baba Shinde Vs. The State of Maharashtra & others in Writ Petition No.3979 of 2015
Para 12: Chandrakali Pandurang Dhongde Vs. The Secretary, Department of School Education, Mantralaya, Mumbai & others in Writ Petition No.7230 of 2011
Para 12: Ms. Rupali Maruti Shingte & anr. Vs. The State of Maharashtra & anr. in Writ Petition No.9173 of 2013
Para 12: Phiroj Chandsaheb Momin & Anr. Vs. The State of Maharashtra & Anr. in Writ Petition No.3197 of 2014
Para 12: Ashok Dinkar Kale Vs. The State of Maharashtra & others in Writ Petition No.676 of 2014
Para 12: Rajashri Shahu Shikshan Sanstha Sillod through its Secretary and others Vs. The State of Maharashtra & another in Writ Petition No.11719 of 2016 : Writ Petition No.11720 of 2016
Para 12: Manisha Kisan Jadhav Vs. The State of Maharashtra & others in Writ Petition No.11216 of 2016
Para 12: Rajya s/o.Divlya Tadvi Vs. The State of Maharashtra & others in Writ Petition No.10618 of 2016
Para 12: Shri Laxman Shivaji Shindiwale & anr. Vs. The State of Maharashtra & others in Writ Petition No. 4871 of 2017
Para 12: Mrs. Shilprekha Vinayak Joshi Vs. The State of Maharashtra & others in Writ Petition No.11065 of 2014
Para 12: Shekhar P. Deshmukh Vs. Deputy Director of Education & others in Writ Petition No.1166 of 2018

JUDGEMENT

S. S. Shinde, J.:-

1. Heard. Rule. Rule made returnable forthwith, and heard finally with the consent of the parties.

2. This Petition is filed with the following substantive prayers:
B) By issuing appropriate writ, order or directions in the like nature, the impugned order dated 09.05.2018 issued by the Respondent no.2 may kindly be quashed and setaside.
C) By issuing appropriate writ, order or directions in the like nature, the Respondent no.2 be directed to grant approval to the proposal dated 24.04.2018 (EXHIBIT’G’) forthwith.

3. It is the case of the petitioner that, he has passed H.Sc., D.Ed. and is eligible to be appointed on the post of Assistant Teacher for teaching the students of 1st standard to 7th standard. Respondent no.3 is the school, having 1st to 10th standards, wherein the petitioner was appointed, vide order dated 24th December, 2012, initially on probation for a period of two years. As per the staffing pattern of the said school, there are 19 sanctioned posts in the said school, such as, one post of Headmaster, 17 posts of Assistant Teachers and only one post of Assistant Teacher is on non grant basis. After appointment of the petitioner, respondent no.3–school submitted proposal to respondent no.2 Education Officer for grant of approval to the appointment of the petitioner, and accordingly, respondent no.2, vide order dated 26.03.2013, granted approval to the appointment of the petitioner. After completion of the period of probation, the permanent approval to the appointment of the petitioner as an Assistant Teacher has been granted by the Education Officer [Primary], Zilla Parishad, Aurangabad, vide order dated 9th February, 2015. Thereafter, one teacher, who was working on aided basis, stood retired from the said school. Smt. Bansode, who was having D.Ed. qualification upgraded herself by obtaining B.Ed. qualification, and therefore, she was accommodated on the post of Graduate Trained Teacher. Consequently, previous post of Assistant Teacher occupied by her became vacant.

4. It is further the case of the petitioner that the petitioner has made request to respondent no.3, and the management to give him appointment on the aforesaid vacant post, which is admissible on grant in aid basis. After receipt of application of the petitioner, the School Management has passed a Resolution on 31.03.2018, thereby giving appointment to the petitioner on the aforesaid vacant post admissible on grant in aid basis. Thereafter, on 31st March, 2018, the Management has issued appointment order in favour of the petitioner as Shikshan Sevak for three years, on consolidated salary of Rs.6,000/- keeping in view the Government Circular dated 28th June, 2016, issued by the School Education and Sports Department, Government of Maharashtra, Mantralaya, Mumbai, more particularly as per conditions referred in sub-clause 5-A and 5-B of Clause 3 of the said Circular. Thereafter, on 24th April, 2018, the School Management has forwarded the proposal of the petitioner for grant of approval to his appointment as Shikshan Sevak to respondent no.2 Education Officer. However, respondent no.2 Education Officer rejected the said proposal on the ground that there are surplus teachers available for absorption in the Aurangabad District.

5. It is further stated in the Petition that, the school Management has already accommodated in all 6 surplus teachers in its school from the Year 2008 till 2017. All these 6 surplus teachers have been sent by respondent no.2 Education Officer, and accordingly, they were accommodated by the management in its school. There are other institutions in the District with whom several posts of Assistant Teachers are lying vacant, and therefore, respondent no.2 Education Officer should have sent the surplus teacher to other institutions with whom the posts are lying vacant. Being aggrieved by the decision of the Education Officer, this Petition is filed.

6. Learned counsel appearing for the petitioner submits that the impugned order passed by respondent no.2 is illegal, and the same deserves to be quashed and set aside. Without considering Circular dated 28th June, 2016, the impugned order is passed. Without taking into consideration the fact that the school management of respondent no.3 school has already accommodated in all 6 surplus teachers from the list of surplus teachers maintained by respondent no.2, an approval to the appointment of the petitioner has been rejected on the ground of absorption of surplus teachers. Therefore, learned counsel appearing for the petitioner submits that the Petition may be allowed.

7. Learned AGP appearing for the respondent – State submits that, respondent no.2 Education Officer has rightly rejected the proposal seeking approval to the appointment of the petitioner on the ground that, there are 15 non-graduate surplus teachers available in the District, and they are yet to be absorbed. Considering the provisions of Section 5 [1] of the Maharashtra Employees of Private Schools [Conditions of Service] Regulation Act, 1977, [for short ‘the MEPS Act, 1977’], the impugned order is rightly passed. Therefore, learned AGP submits that, the Petition may be rejected.

8. Though respondent no.3 is served, during the course of hearing of the Petition, none appeared for respondent no.3. Therefore, the pleadings and grounds taken in the Petition remained uncontroverted on behalf of the said respondent.

9. We have given careful consideration to the submissions of the learned counsel appearing for the petitioner, and learned AGP appearing for the respondent-State. With their able assistance, we have perused the pleadings in the Petition, grounds taken therein, and annexures thereto. In fact, this Court issued notices to the respondents on 20th June, 2018, and thereafter, the matter was listed time and again on number of occasions. However, respondent no.3 did not bother to file reply.

10. At the outset it would be apt to reproduce herein below the Circular issued by the School Education and Sports Department, Government of Maharashtra, on 28th June, 2016, and same is reproduced as under:

fouk vuqnku RkRokojhy ‘kkGkae/kwu
vuqnkfur rRokojhy ‘kkGsrhy inkoj
cnyhckcr ek-mPp U;k;ky;kr nk[ky
>kysY;k izdj.kh ek-mPp U;k;ky;kP;k
vkns’kkuqlkj cnY;kauk ekU;rk ns.ksckcregkjk”

Vª ‘kklu
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ifji=d

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11. Upon careful perusal of clause 2 of the aforesaid Circular, there is reference to the filing of various Writ Petitions and orders passed by the High Court. Therefore, it is evident that, the School Education and Sports Department is aware about the various orders passed by the High Court in Writ Petitions, mentioned in clause 2 of the said Circular. Upon careful perusal of the contents of clause 3 of the said Circular, it appears that, the various conditions have been set out, which would govern the transfer of a teacher serving in the unaided school to the aided school, however, established by the same Institution / Trust / Society. So far as sub-clause 1 of Clause 3 of the said Circular is concerned, it only mentions about duty cast upon the Management and also Education Officer to ascertain about availability of surplus teacher before fresh appointment on the post of Assistant Teacher / Shikshan Sevak, as provided under Section 5 of the MEPS Act, 1977. So far as sub clause 2 of Clause 3 of the said Circular, namely,

2½ fu;qDrhP;k osGsl vfrfjDr f’k{kd miyC/k vlY;kl foukvuqnkfur rRokojhy f’k{kdkaP;k vuqnkfur ‘kkGsojhy cnyhl ekU;rk ns.;kr ;sÅ u;s-Þ

is concerned, it would be relevant to refer two judgments of the Division Bench of the Bombay High Court [Coram : Dr.D.Y.Chandrachud & A.A.Sayed, JJ.] in the case of Ms. Sandhya Laxman Ghosalkar Vs. The State of Maharashtra & others in Writ Petition No.5258 of 2012, along with connected Writ Petitions, decided on 12th September, 2012. Para 2 to 6 of the said judgment, read thus:
2. In this batch of petitions under Article 226 of the Constitution, the three Petitioners are Assistant Teachers in a secondary school conducted by the Third Respondent at Khopoli in the District of Raigad. They were appointed initially in the unaided school conducted by the same management (a secondary school at Savaroli, Tal. Khalapur). Their appointments were approved by the Education Officer (Secondary), Raigad Zilla Parishad on 25 January 2006. The approval was initially on an unaided basis. Thereafter the Petitioner in Writ Petition No.5258 of 2012 who had initially been appointed on a part time basis, was appointed on a full time basis on 10 June 2006 and approval was granted by the Education Officer (Secondary) on an unaided basis on 22 September 2006. The other Petitioners were appointed on a full time basis and their services were approved on an unaided basis. The Petitioners were transferred to an aided school run by the same management.
3. The grievance of the Petitioners is that they have now been granted approval on 29 March 2012 as Shikshan Sevaks with the result that they would be required to put in another three years of service before they are confirmed as Assistant Teachers, leading to a loss of seniority. To the other Assistant Teachers who were appointed with the petitioners and to whom the approval was granted by the same order dated 25 January 2006 on an unaided basis, the Education Officer has granted his approval as Assistant Teachers.
4. In our view, there was no justification whatsoever for the Education Officer [Secondary] to grant his approval only as Shikshan Sevaks to the three Petitioners. If the Petitioners had been appointed as Assistant Teachers in the aided school by transfer from the unaided school on the basis of seniority, the approval ought to have been granted to them as Assistant Teachers. This is especially so having due regard to the fact that they were similarly circumstanced with other Teachers in whose case approval was granted as Assistant Teachers.
5. In the circumstances, we quash and set aside the order of the Second Respondent dated 29 March 2012 and direct the Second Respondent to grant approval to the appointments of the Petitioners as Assistant Teachers with effect from 1 August 2011 (the date as mentioned in the approval order dated 29 March 2011). The Education Officer (Secondary) shall pass consequential orders within a period of two weeks from the date on which an authenticated copy of this order is produced on his record.
6. Rule is made absolute in the above terms. There shall be no order as to costs.
In another judgment of the Bombay High Court, Bench at Aurangabad [Coram : R.M.Borde & S.S.Shinde, JJ.] in the case of Dattu s/o Bhima Thorat Vs. The State of Maharashtra & others in Writ Petition No.2960 of 2012, decided on 11th October, 2012, in para 2 to 8 of the said Judgment it is observed thus:
2 The petitioner, who is serving as Assistant Teacher in the school run by Respondent No. 2-Institution, is assailing the communication dated 17.11.2011, issued by Respondent No.3– Education Officer refusing to accord approval to the transfer of petitioner from unaided school to aided school run by the same Institution. Consequent upon refusal by the Education Officer to accord approval to the transfer of the petitioner, his services have not been approved.
3 The petitioner was appointed on the post of Assistant teacher on 13.07.1997 in unaided school run by Respondent No.2–Institution. Respondent No.2-Institution runs five schools, out of which, three schools receive 100% grants, whereas, two schools are run on no grant basis. According to the petitioner, there are in all 15 sanctioned posts and petitioner is placed at Sr. No. 16 in the common seniority list. A vacancy arose in the school receiving grant-in-aid on account of death of one of the teachers, which was filled in by effecting transfer of the petitioner, who was placed at Sr. No.16 in the seniority list, from unaided school to a school receiving Government aid. After effecting transfer of the petitioner to the aided school, a proposal was sent for according approval to the transfer of the petitioner as well as for according individual approval to the petitioner. Since the Education Officer proceeded to reject proposal tendered by Respondent No.2-Institution to accord approval to the transfer of the petitioner, he has approached this Court.
4 It is the contention of petitioner that transfer of a senior teacher from the school not receiving grants to the school receiving grants is not prohibited under the policy of the Education Department. The Education Officer has committed material illegality in refusing to accord approval to the transfer of the petitioner from unaided school to a school receiving grantinaid.
5 Respondent No.3-Education Officer has presented an affidavit-in-reply and contested claim of the petitioner. It is the contention of Education Officer that the posts falling vacant in aided school are required to be filled in by appointing Shikshan Sevaks and it would not be permissible for the Institution to fill in said vacancy by transferring a teacher from the school which does not receive grantinaid. Reliance is placed on the Government Resolution dated 13.10.2000 wherein a scheme for making appointment of Shikshan Sevaks is provided for. Relying upon contents of aforesaid Government Resolution, it is contended that the mode for making appointment in aided school is by appointing Shikshan Sevaks and not by way of transfer of a teacher from unaided school.
6 The Education Officer has failed to make distinction so far as instant matter is concerned. Since Respondent No. 2-Institution is not proposing to fill in the vacancy by appointing any new recruit, the vacancy is being filled in by transferring a Assistant teacher from the school which does not receive grant-in-aid run by the same Institution. There is no prohibition prescribed in Government policy for effecting such transfer from unaided school to aided school. Reliance is placed on the judgment in the matter of Ms.Sandhya Laxman Ghosalkar Vs. State of Maharashtra (Writ Petition No.5258/2012 and other companion matters, decided at Bombay on 12.09.2012). While dealing with an identical issue, the Division Bench of this Court has observed that there is no prohibition for transfer of an Assistant teacher appointed in unaided school to aided school on the basis of seniority and if such transfers are effected, it is incumbent upon the Education Officer to accord approval. The petitioner herein was serving as an Assistant teacher in the unaided school and on his transfer to aided school, run by Respondent No.2-Institution, his status remains as an Assistant teacher. There is no justification for contending that the vacancy in the aided school shall be filled in only by appointing Shikshan Sevaks and transfer of an Assistant teacher serving in the same Institution to fill in the vacancy is not permissible.
7 The decision rendered by the Education Officer on 17.11.2011 (annexed at Exhibit-G) is unsustainable and, therefore, liable to quashed and set aside and same is accordingly quashed and set aside. Respondent No.3-Education Officer is directed to accord approval to the services of the petitioner as an Assistant teacher in aided school run by Respondent No.2-Institution with all consequential benefits.
8 Rule is accordingly made absolute. There shall be no order as to costs.

12. If both the aforementioned judgments are perused carefully, in no uncertain words, it is held that, there is no prohibition prescribed in Government policy for effecting transfer of the teacher from unaided school to aided school, run by the same Institution. It is also observed in the case of Dattu s/o Bhima Thorat [supra] that, respondent no.2 Institution is not proposing to fill in the vacancy by appointing any new recruit, and when there is no prohibition prescribed in Government policy for effecting such transfer from unaided school to aided school, the decision of the Education Officer to refuse approval to such transfer is unsustainable. The ratio laid down in both aforesaid judgments have been consistently followed in the following cases decided by the Bombay High Court, namely, [i] Sudhir Dnyandeo Gadakh Vs. The State of Maharashtra & others in Writ Petition No.5978 of 2014 along with connected Writ Petitions, decided on 9th October, 2014, [ii] Shri Ganesh s/o. Raghu Jadhav Vs. The State of Maharashtra & others, [2016] 1 Bom CR 248, [iii] Shri Sachin Babanrao Deshmukh Vs. The State of Maharashtra & others in Writ Petition No.7813 of 2015 along with connected Writ Petitions, decided on 9th September, 2015, [iv] Mrs. Rajabai Baba Shinde Vs. The State of Maharashtra & others in Writ Petition No.3979 of 2015 along with connected Writ Petition, decided on 18th April, 2015, [v] Chandrakali Pandurang Dhongde Vs. The Secretary, Department of School Education, Mantralaya, Mumbai & others in Writ Petition No.7230 of 2011 along with connected Writ Petitions, decided on 30.11.2011, [vi] Ms. Rupali Maruti Shingte & anr. Vs. The State of Maharashtra & anr. in Writ Petition No.9173 of 2013 along with connected Writ Petitions, decided on 18th February, 2014, [vii] Phiroj Chandsaheb Momin & Anr. Vs. The State of Maharashtra & Anr. in Writ Petition No.3197 of 2014, decided on 16th September, 2014, [viii] Ashok Dinkar Kale Vs. The State of Maharashtra & others in Writ Petition No.676 of 2014, along with connected Writ Petitions, decided on 17th September, 2014, [ix] Rajashri Shahu Shikshan Sanstha Sillod through its Secretary and others Vs. The State of Maharashtra & another in Writ Petition No.11719 of 2016, decided on 9th November, 2017, [x] Rajashri Shahu Shikshan Sanstha Sillod through its Secretary and others Vs. The State of Maharashtra and another in Writ Petition No.11720 of 2016, decided on 9th November, 2017, [xi] Manisha Kisan Jadhav Vs. The State of Maharashtra & others in Writ Petition No.11216 of 2016, decided on 9th November, 2017, [xii] Rajya s/o.Divlya Tadvi Vs. The State of Maharashtra & others in Writ Petition No.10618 of 2016 along with connected Writ Petition, decided on 30.11.2017, [xiii] Shri Laxman Shivaji Shindiwale & anr. Vs. The State of Maharashtra & others in Writ Petition No. 4871 of 2017, decided on 25th April, 2017, [xiv] Mrs. Shilprekha Vinayak Joshi Vs. The State of Maharashtra & others in Writ Petition No.11065 of 2014 along with connected Writ Petition, decided on 14th February, 2017, and [xv] Shekhar P. Deshmukh Vs. Deputy Director of Education & others in Writ Petition No.1166 of 2018, decided on 3rd July, 2018.

13. In that view of the matter, when the transfer of teacher from unaided school to aided school is permissible; what is supposed to be ascertained is, as to whether the Education Officer has granted approval to the appointment of such Assistant Teacher / Shikshan Sevak on regular basis on completion of two years & three years probation period, as contemplated under the provisions of Section 5 of the MEPS Act, 1977. Once such approval is granted in favour of the appointee by the concerned Education Officer on regular basis on completion of satisfactory probation period under Section 5 (2) of the MEPS Act, 1977, it can be safely presumed that the Education Officer has granted such approval after ascertaining the compliance of mandate of Section 5 of the MEPS Act, 1977. When the Education Officer grants approval on regular basis for the appointment on the post of Assistant Teacher, it presupposes that there were no surplus teachers on his roll, and the concerned Institution, after following the mandate of Section 5 (1) of the MEPS Act, 1977, has made appointment on the post/posts of Assistant Teacher. Therefore, once an appointment of a teacher is made on unaided basis in the school, and the approval is granted on regular basis on satisfactory completion of two years period on probation by the appointee in conformity with the mandate of the provisions of the MEPS Act, 1977, and Rules framed thereunder, there is no question of giving fresh appointment to such candidate who has already completed probation period of two years satisfactorily, or refusing approval to transfer of such candidate from unaided school to aided school run by the same institution, or transfer of an Assistant Teacher working on unaided post, whose services have been approved on satisfactory completion of probation period by the Education Officer to vacant aided post of Assistant Teacher in same school. It is only when transfer is on the post of Shikshan Sevak on aided basis, management and the Education Officer shall ensure that, such Assistant Teacher has completed minimum three years service as an Assistant Teacher on unaided post, and his services are approved by the Education Officer and rule of seniority is followed, meaning thereby senior most Assistant Teacher whose services have been approved by the Education Officer on unaided basis needs to be considered first for transfer on post admissible on aided basis, and thereafter, rule of seniority needs to be followed continuously. The principle of seniority shall be kept in view considering concerned institution as one unit.

14. As already observed, the transfer of the Assistant Teacher from the unaided school to aided school run by the same Management / Institution, is permissible subject to approval by the Education Officer to such appointment on the post of Assistant Teacher on completion of two years satisfactory probation, and keeping in view the seniority of the teachers maintained in the schools run by the Institution; meaning thereby if the services are approved as an Assistant Teacher on unaided basis on completion of satisfactory probation period, and if such teacher is senior most to other Assistant Teachers, such Assistant Teacher can be transferred by the management from unaided school to aided school. Said course is legally permissible, and there are specific provisions to that effect under the Rules of 1981. When the appointment of the Assistant Teacher is made, either on aided basis or unaided basis in conformity with the provisions of the MEPS Act, 1977, and Rules thereunder, the respondent authorities cannot discriminate on the ground of an appointment of the Assistant Teacher made in the school run on unaided basis vis-a-vis the school run on aided basis, which is the principle underlined in the case of Ms. Sandhya Laxman Ghosalkar [supra].

15. There is no doubt that, if there are surplus teachers on the roll of the Education Officer at the District level, he/she can certainly ask the Institutions / Schools to absorb such surplus teachers, keeping in view the vacancies in those Institutions. However, while doing so, the State Government or the Education Officer, at district level, as the case may be, shall keep in view the existing vacancies in the various schools and evolve some policy to send surplus teachers on proportionate basis to such schools having vacancies. In the facts of the present case, the petitioner has placed on record as many as six documents showing that, respondent no. 3 school has absorbed 6 surplus teachers.

16. The sub clause 1, 3 and 4 of Clause 3 of the Government Circular dated 28th June, 2016, reproduced herein above, are in conformity with the discussion made herein above. But sub clause 2 of Clause 3 of the said Circular is that, till the surplus teachers are absorbed, no approval should be granted for transfer of the Assistant Teacher from unaided school to aided school of the same Institution. In our opinion said clause runs contrary to the ratio laid down in the aforesaid Judgments of the High Court.

17. We have carefully perused procedure mentioned in sub clause 5 (B) of Clause 3 of the aforesaid Circular, wherein it is stated that, before issuing an appointment letter / order on transfer of the teacher from unaided school to aided school; an undertaking should be taken from him that, in the first year after such transfer, he will be entitled to receive 20% salary of regular salary from the grants disbursed by the Government, and remaining 80% will be paid by the concerned Institution, and thereafter for second year, he will be entitled to receive 40% salary of regular salary from the grants disbursed by the Government, and remaining 60% will be paid by the concerned Institution, and thereafter for the third year, he will be entitled to receive 60% salary of regular salary from the grants disbursed by the Government, and remaining 40% will be paid by the concerned Institution, and thereafter, for the fourth year, he will be entitled to receive 80% salary of regular salary from the grants disbursed by the Government, and remaining 20% will be paid by the concerned Institution, and after completion of 5 years period, such teacher will be entitled to receive 100% regular salary from the Government.
When there is vacant post in the aided school, the Institution can transfer senior most qualified Assistant Teacher working on unaided post to fill up the said vacancy, and if such senior most teacher is available in same school said post on aided basis can be offered to him. There is no prohibition to adopt the aforesaid course. When the management can legally transfer Assistant Teacher serving in the unaided school to aided school, there is no reason to obtain an undertaking from such teacher as stated in sub clause 5 (B) of clause 3 of the aforesaid Circular. However, in case the State Government sanctions new post/posts on aided basis, and those are to be filled in afresh by giving fresh appointment / appointments on the post of Shikshan Sevak, the State Government can make applicable the formula / percentage of proportionate salary to be disbursed by the State Government and the concerned Institutions in the manner stated in sub clause 5 (B) of Clause 3 of the said Circular.

18. The State Government can issue direction to the Institutions to fulfill its obligation to the extent of disbursement of salary amount indicated in sub clause 5 (B) (1) to (5) of clause 3 of the said Circular. But there is no reason for asking teacher / teachers to give such undertaking, who has / have served 5 years or more than 5 years, and approval is granted to the appointment of such teacher by the Education Officer on completion of satisfactory probation period, and if such teacher is transferred on aided post became vacant on account of retirement of teacher working in the said institution. Such teacher can be transferred keeping in view the overall seniority of teachers serving in the said unaided school to aided school run by the same institution or other such unaided schools run by the same institution/trust.
Upon careful perusal of sub clause 5 (A) of clause 3 of the said Circular, it is mentioned therein that, if the teacher appointed on unaided basis, has rendered less than 5 years service, and in case the management wishes to make such transfer from unaided school to aided school, in that case, an undertaking should be obtained from such teacher to work as Shikshan Sevak on consolidated pay. Prima facie said provision appears to be attractive, however, in case candidate is appointed on the post of Assistant Teacher after following the mandate of Section 5 of the MEPS Act, 1977, and on completion of two years probation period, if the Education Officer has granted approval to his appointment on regular basis, and in case he is senior most teacher serving in the school on unaided basis run by the Institution, requests for his transfer from unaided school to aided school or on aided post from unaided post in same school, and if he has already completed 3 years period as Assistant Teacher, there is no justifiable reason to ask him to work again as Shikshan Sevak on consolidated pay for three years. The sub clause 5 (A) of clause 3 of the said Circular can be invoked wherein the Assistant Teacher has not completed three years period after his appointment as an Assistant Teacher in the school on unaided basis, and he has not received approval to his services as an Assistant Teacher on regular basis. In short, if the Assistant Teacher has not completed satisfactory probation period, and if his service or services are not approved by the Education Officer on regular basis or there is no adherence to the provisions of Section 5 of the MEPS Act, 1977, in that case, the management is not entitled to transfer such teacher from an unaided school to aided school or on aided post of Assistant Teacher / Shikshan Sevak from unaided post held by the Assistant Teacher. It is only in case where the Assistant Teacher has acquired status of regular employee on completion of two years probation period, and his appointment is in adherence to the provisions of Section 5 of the MEPS Act, 1977, and the approval is granted by the Education Officer to his appointment on regular basis on the post of Assistant Teacher on completion of satisfactory probation period, and he is senior most teacher working in the school on unaided basis, in that case, the question of invoking sub clause 5 (A) of Clause 3 of the said Circular would not arise. In such case, invoking said provision would run contrary to the judgment of the Division Bench [Coram : Dr.D.Y.Chandrachud and A.A.Sayed, JJ.] of the Bombay High Court at Principal Seat in the case of Ms.Sandhya Laxman Ghosalkar [supra], wherein it is observed in para 4 that, there was no justification whatsoever for the Education Officer (Secondary) to grant his approval only as Shikshan Sevaks to the three Petitioners. It is further observed that, if the Petitioners had been appointed as Assistant Teachers in the aided school by transfer from the unaided school on the basis of seniority, the approval ought to have been granted to them as Assistant Teachers. This is especially so having due regard to the fact that they were similarly circumstanced with other Teachers in whose case approval was granted as Assistant Teachers.

19. In the facts of the present case, it appears that, the petitioner is H.Sc., D.Ed., and he was appointed on the post of Assistant Teacher, vide order dated 24th December, 2012, initially on probation for a period of two years. Thereafter, respondent no.3 school has submitted proposal of the petitioner for grant of approval to respondent no.2 Education Officer (Secondary), and accordingly, respondent no.2, vide its order dated 26th March, 2013, granted approval to the appointment of the petitioner on non grant basis. On completion of two years probation period successfully, the petitioner was granted approval on permanent / regular basis by the Education Officer in grade pay of Rs.5200-20200 + Grade Pay Rs.2800/-, by order dated 9th February, 2015. The said order is placed on record by the petitioner at Exhibit-C [Page-16] of the compilation of the Writ Petition. It is stated in the said order that, the petitioner has satisfactorily completed two years probation period. Therefore, the status of the petitioner as an Assistant Teacher on regular basis is not in dispute.

20. Upon perusal of the pleadings in the Petition, and in particular paras 6 and 7 thereof, it appears that, one teacher stood retired from respondent no.3 school, who was working on aided basis, and in the meanwhile one Smt.Bansode, who was having D.Ed. qualification upgraded herself by obtaining B.Ed. qualification, and therefore, she was accommodated on the post of Graduate Trained Teacher, and consequent thereupon the previous post of Assistant Teacher occupied by Smt. Bansode became vacant; the petitioner filed application requesting to respondent no.3 school and school management to give him appointment on the said vacant post on grant in aid basis. By Resolution dated 31st March, 2018, the School Management resolved to transfer the petitioner from the post on non grant basis to vacant post available in same school on grant in aid basis. Pursuant to the said Resolution, the petitioner was appointed afresh by issuing an appointment letter / order on 31st March, 2018, on the post of Shikshan Sevak for three years on consolidated salary of Rs.6000/-, keeping in view the Government Circular dated 28th June, 2016, more particularly, as per the conditions referred in sub clause 5 (A) of Clause 3 of the said Circular. The management forwarded the proposal of the petitioner for grant of approval to respondent no.2 Education Officer on 24th April, 2018. However, respondent no.2 Education Officer has rejected the said proposal for grant of approval. In our opinion, if the petitioner was senior most teacher working on unaided school as Assistant Teacher, and as already observed, his services were approved on regular basis, there was no reason for the Management to pass Resolution to give fresh appointment to the petitioner as Shikshan Sevak.

21. It appears from the perusal of the facts of the case that, the petitioner was appointed after following due procedure of law as an Assistant Teacher, and thereafter, on successful completion of probation period, the approval was granted and therefore he acquired status as Assistant Teacher on regular/permanent basis. It appears that, he has rendered more than 5 years satisfactory services as an Assistant Teacher on unaided post. Respondents have not brought on record contra material to contest assertion on factual score made by the petitioner in the Petition. Therefore, it will have to be concluded that, the petitioner has completed more than 5 years satisfactory service on the post of Assistant Teacher. In that view of the matter, and if the petitioner was senior most teacher in the Institution working in the school on unaided basis at the relevant time, the transfer of the petitioner from the unaided post to aided vacant post due to retirement of one teacher was permissible, and there was no need to give him fresh appointment on the post of Shikshan Sevak thereby practically denying him benefits accrued by virtue of rendering more than five years services as an Assistant Teacher on regular basis.

22. Therefore, in the peculiar facts of this case warrants that, the petitioner’s case deserves to be re-considered by the School management, and also, the Education Officer. Since the petitioner is in continuous service from his appointment and nothing contra is brought on record to contest his assertion that he has rendered satisfactory services for more than five years as an Assistant Teacher, the petitioner deserves to be granted protection in the pay scale granted to him while granting approval by the Education Officer on completion of successful probation period. In that view of the matter, we direct the School Management to consider the case of the petitioner afresh as transfer from unaided post of Assistant Teacher to vacant post on aided basis. The petitioner shall tender/file application to transfer him as an Assistant Teacher on the vacant post on aided basis with retrospective effect from the date of passing of Resolution by the management appointing him on the post of Shikshan Sevak. Upon presenting such application by the petitioner, the Management keeping in view the seniority of the teachers working in the unaided school/schools, and if the petitioner is found to be senior most teacher amongst the Assistant Teachers serving on unaided posts run by the same institution, shall submit proposal for transfer of the petitioner on vacant aided post of Assistant Teacher / Shikshan Sevak to the Education Officer. The Education Officer i.e. respondent no.2, to take decision on such proposal for transfer of the petitioner on aided post, keeping in view the request of the management for transfer of the petitioner from unaided post of Assistant Teacher to vacant aided post of Assistant Teacher available in respondent no.3 school, with effect from the date i.e. 31st March, 2018, of passing of Resolution by the management. It would be open for the Education Officer to verify the record to find out whether the petitioner was senior most teacher on the date, i.e. 31.03.2018, of passing of Resolution by the management.

23. Such joint exercise is to be done by the petitioner and the School Management within six weeks from today. Upon receiving such proposal, the Education Officer is directed to take decision on such proposal keeping in view the discussion herein above, as expeditiously as possible, however, within four weeks from receiving such proposal from the school management.

24. Till the decision is taken by the Education Officer on a fresh proposal which would be submitted by respondent no.3 in respect of transfer of the petitioner from unaided post to vacant aided post of Assistant Teacher / Shikshan Sevak, the petitioner would be entitled to continue in the service, and also to receive salary as an Assistant Teacher on unaided post. He would be entitled for same salary, as he was drawing before his appointment as Shikshan Sevak in pay scale mentioned in the order of approval granted by the Education Officer on 9th February, 2015, in the pay scale of Rs.5200-20200 + Grade Pay Rs.2800/- as an Assistant Teacher.

25. We have travelled beyond the pleadings and prayers in the Petition so as to do the complete justice by moulding reliefs prayed in the Petition. Merely because the petitioner has accepted fresh appointment as Shikshan Sevak, might be under compelling circumstances, is no reason to ignore the settled position in law, and more than five years service rendered by him as an Assistant Teacher on regular basis in pay scale. It would be travesty of justice if reliefs are not moulded to avoid any injustice to the parties, who have invoked the extraordinary jurisdiction of this Court. The writ Courts are not meant for mechanical interpretations but are equipped / empowered to grant equitable, and also discretionary relief in an appropriate cases depending upon facts and law involved in such cases.

26. In many cases, we have come across that the proposal for approval has been rejected by the Education Officer on the ground of absorption of surplus teacher on vacant post. It may be desirable for the State to take stock of situation or proceed to review the Pupil-Teacher Ratio already in existence in all the Educational Institutions so as to find out, whether there are adequate number of teachers available to teach the Pupil. The Section 25 of the Right of Children to Free and Compulsory Education Act, 2009, (For short “Act of 2009”), reads thus :-
“25. Pupil-Teacher Ratio.
(1) [Within three years] from the date of commencement of this Act, the appropriate Government and the local authority shall ensure that the PupilTeacher Ratio as specified in the Schedule, is maintained in each school,
(2) For the purpose of maintaining the Pupil-Teacher Ratio under sub section (1), no teacher posted in a school shall be made to serve in any other school or office or deployed for any non-educational purpose, other than those specified in section 27.”

27. It would be apt to reproduce herein below Schedule appended to section 19 and 25 of the Act of 2009 to lay down the norms and standards for a school. The said Schedule is reproduced herein below:

The Schedule
(See Section 19 and 25)
Norms and Standards for a School
S.No Item Norms and Standards
1. Number of teachers:
(a) For first class
to fifth class
Admitted
children
No. of
teachers
Up to Sixty Two
Between
Sixtyone
to
ninety
Three
Between
Ninetyone
to
one hundred
and twenty
Four
Between One
hundred and
twentyone
to
two hundred.
Five
Above One
hundred and
fifty
children
Five plus
one Headteacher
Above Two
hundred
children
PupilTeacher
Ratio
(excluding
HeadTeacher
shall not
exceed
forty.
(b) For sixth class
to eighth class
1) At least one teacher per
class so that there shall
be at least one teacher
each for(
i) Science & Mathematics;
(ii)Social Studies;
(iii)Languages
2) At least one teacher for
every thirtyfive
children
3) Where admission of
children is above one
hundred(
i) a full time headteacher;
(ii) part time instructors
for(
A) Art Education;
(B) Health and Physical
Education;
(C) Work Education.
2. Building Allweather
building
consisting of(
i) at least one classroom
for every teacher and an
officecumstorecumHead
teacher's room;
(ii) barrierfree
access;
(iii) separate toilets for
boys and girls;
(iv) safe and adequate
drinking water facility to
all children.
(v) a kitchen where midday
meal is cooked in the
school;
(vi) Playground;
(vii) arrangements for
securing the school
building by boundary wall
or fencing.
3. Minimum number of
working days/
instructional hours
in an academic year
(i) two hundred working
days for first class to
fifth class
(ii) two hundred and twenty
working days for sixth
class to eight class;
(iii) eight hundred
instructional hours per
academic year for first
class to fifth class;
(iv) one thousand
instructional hours per
academic year for sixth
class to eighth class.
4. Minimum number of
working hours per
week for the
teacher.
Fortyfive
teaching
including preparation
hours.
5. Teaching learning
equipment
Shall be provided to each
class as required.
6. Library There shall be a library in
each school providing
newspaper, magazines and
books on all subjects,
including storybooks.
7. Play material,
games and sports
equipments
Shall be provided to each
class as required.

28. We do not find it justifiable to issue any mandatory directions to the State Government, so as to make the compliance of the norms and standards for the schools laid down in Sections 19 and 25 and Schedule appended to the Act of 2009, as the said provision itself mandates such exercise by the appropriate Government and local authority, to maintain norms and standards of each and every school in the State. Accordingly, we hope and trust that the concerned authorities of the appropriate Government and Local Authority will take reasonable care with due diligence for compliance of mandate of Sections 19 and 25 of the Act of 2009. Certainly, it would subserve the purpose of inserting Article 21A in the Constitution, and also bringing into force the Act of 2009 and Rules thereunder.

29. In the light of discussion herein above, rule is made absolute in above terms. The Writ Petition stands disposed of accordingly.