Vrushali V. Joshi, J.

1. Heard.

2. Rule. Rule made returnable forthwith and heard finally with the consent of the parties.

3. The Petitioner, Assistant Teacher in the Respondent-School is constrained to invoke the writ jurisdiction of this Court seeking following reliefs:

"i) Direct the Education Officer to modify the approval orders dated 09.03.2020 and 04.12.2020;

ii) Direct the Education Officer to grant approval to the appointment of Petitioner on the post of Assistant Teacher with effect from 04.12.2017;

iii) Direct the Education Officer to release differential amount of arrears of salary for the period from 04.12.2017 to 03.12.2020 in the prescribed pay scale alongwith all consequential benefits of regular increments;

iv) Direct the Education Officer to consider the services of the Petitioner on the post of Assistant Teacher with effect from 02.09.2013 for the purposes of seniority and other service benefits."

Facts essential for decision of this are as under:

That on 01.09.2013, Petitioner was appointed as Assistant Teacher in Biology subject under open category in unaided section of Respondent-School, on probation for a period of two years by following due procedure contemplated under the MEPS Act/Rules.

4. The Education Officer granted approval to the appointment on 16.01.2014. The Petitioner satisfactorily completed the probation period of two years and as such her services were continued as Assistant Teacher in the Respondent-School. The Management by majority decision in its meeting dated 30.11.2017 resolved to absorb the Petitioner in the aided section of the school on the vacant post. Accordingly, the Petitioner joined the duties on 04.12.2017. Whereafter, Management moved a proposal seeking approval of Education Officer for absorbing the Petitioner in the fully aided section of the school. The Education Officer declined to grant approval to absorption, in view of Clause (2) of Government Resolution dated 28.06.2016. Feeling aggrieved by the order passed by the Education Officer, Petitioner had approached this Court in Writ Petition No. 4993 of 2018. That vide order dated 12.02.2020, this Court has held that Clause 3(2) of Government Resolution dated 28.06.2016, travels beyond the subordinate legislation, and therefore, has no force of law. As a result, it was held, that it was not permissible to Education Officer to take stand, that until surplus Assistant Teachers were absorbed, the approval to such transfers from unaided section to aided section cannot be approved. In view thereof, the Education Officer was directed to grant approval to transfer of Petitioner within four weeks. Whereafter, the Education Officer issued order dated 09.03.2020, by which Petitioner was appointed afresh on the post of Shikshan Sevak on probation for a period of three years from 04.12.2017 to 03.12.2020 on honorarium at Rs. 8,000/- per month. Feeling aggrieved by the said order, this petition is preferred.

5. Heard Shri Choudhari, learned Counsel for Petitioner and Shri Thakare, learned Additional Government Pleader for Respondent/State.

6. Shri Choudhari, learned Counsel for Petitioner would contend, that in catena of decision rendered by this Court, it has been consistently held, that the Petitioners who were working as Assistant Teacher in unaided division of the school on being transferred into the aided schools, cannot be appointed as Shikshan Sevak and they are entitled to be appointed as Assistant Teacher in the aided division. Shri Choudhari, learned Counsel would rely on the judgment in the case of Shekhar P. Deshmukh Vs. Deputy Director Education and others, 2019 (2) ALL MR 247. He would also rely on the decision in the case of Sagar S/o. Harichandra Bhande and another Vs. The State of Maharashtra and others in Writ Petition (ST) No. 93919 of 2020, where it has been clearly held, that from an unaided post to aided post is not a fresh appointment. Learned Counsel relied on paragraphs No. 13 and 14 of the said judgment to contend, that in case, the 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 probation period, if Education Officer has granted approval to appointment and if such teacher is transferred from unaided school to aided school in the same school and if he has already completed three years period, there is no justifiable reason to ask him to work again as Shikshan Sevak on consolidated pay for three years.

7. In the case at hand, Petitioner's initial appointment on 01.09.2019, as an Assistant Teacher was on unaided section of the school, on probation for two years. It was approved by the Education Officer on 16.01.2014, and thereafter, she continued to work as Assistant Teacher in the School till 2017. On superannuation of Shri U.N. Kuthe, one post of Assistant Teacher fell vacant, in aided section of the school, whereupon the Management by majority decision in its meeting dated 30.11.2017 resolved to absorb the Petitioner in aided section of the school from unaided section. Accordingly, Petitioner joined the duties on aided section on 04.12.2017.

8. It appears, the Education Officer appointed the Petitioner as a Shikshan Sevak a fresh on 04.12.2017 on probation for three years, taking recourse to Sub-clause 5(A) of Clause 3 of circular dated 28.06.2016, which provides that if a teacher is appointed on unaided basis, has rendered less than five years on service, and in case, the Management wishes to transfer such teacher, from unaided school to aided school, in that case teacher shall be appointed as Shikshan Sevak on consolidated pay.

9. In consideration of the facts of the case at hand, the order passed by the Education Officer appointing the Petitioner afresh as Shikshan Sevak, by taking recourse to Sub-clause 5(A) of clause 3 of the Circular dated 28.06.2016 cannot stand scrutiny of law. Reason being the Petitioner had completed three years period in the school on unaided basis as Assistant Teacher. As such, the case of the Petitioner is squarely covered by the decision in the case of Sagar S/o. Harichandra Bhande and another (supra), wherein it was held as under:

"Upon perusal of sub clause 5(A) of clause 3 of the said Circular, which provides that, if a teacher appointed on unaided basis, has rendered less than 5 years on service, in case the management wishes to transfer such teacher 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 such provision appears to be attractive. However, in case the 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 probation period, if the Education Officer has granted approval to his appointment on regular basis, and in case he is the senior most teacher serving on unaided basis in a school run by the same Institution, he 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 three years' period, there is no justifiable reason to ask him to work again as Shikshan Sevak on a consolidated pay for three years. Sub-clause 5(A) of clause 3 of the said Circular can be invoked when a teacher has not completed three years period after his appointment in the school on unaided basis, and he has not received approval to his services as an Assistant Teacher on regular basis."

That for the aforestated reasons, the Education Officer was not justified in asking the Petitioner/Assistant Teacher to work again as Shikshan Sevak for three years.

10. Per contra, the learned A.G.P. has filed the say and has stated that the respondent No. 3 has effected transfer of the petitioner from unaided division to the aided division. The State Government had issued the Government Resolution dated 01.04.2021 in respect of the transfer of the teachers from unaided section to the aided section of the schools. As per Clause-1 of the said Government Resolution, the relevant Education Society and the Education Officer/Divisional Deputy Director of Education has to ensure that there are no additional teachers available for the post, for effecting the transfer. The Management cannot transfer any of the staff members to the vacant post, if the surplus staff is available. If such transfer is effected, without absorption of the surplus teachers, it will increase the financial burden on the State exchequer.

11. He has further stated that the initial date of appointment of the petitioner is 02.09.2013 and the date of the transfer of the petitioner is 04.12.2017. The said period from 02.09.2013 to 04.12.2017 is less than five years. Therefore, after completion of three years as Shikshan Sevak, the respondent by order dated 14.12.2020, had granted continuation to the approval of the service of petitioner as the Assistant Teacher with effect from 04.12.2020 till further orders, which calls for no interference.

12. The learned A.G.P. relied on the judgment in the case of Sandip Thorat Vs. State of Maharashtra reported in 2022 (1) ALL MR 322. In the said matter, the impugned orders were passed by relying upon the said Government Resolution dated 28.06.2016. In the said judgment, the Court has held that Sub Clause 5(A) of Clause 3 of the said Government Circular dated 28.06.2016 can be invoked only where the Assistant Teacher has not completed three years period after his appointment in the school on unaided basis. Further the facts in the said reported judgment indicate that the petitioners had rendered services on unaided basis as Assistant Teachers for well over the five years period and it was only then that the petitioner therein was transferred from unaided division to aided division. The period from 02.09.2013 to 04.12.2017 is less than five years. Hence the petitioner is not entitled for the relief as claimed.

13. On consideration of the entire record, it can be seen that the respondents-Authorities have a misconceived notion that the teachers working in an unaided section of a school cannot fill up the vacancy of an Assistant Teacher in an aided section of the school and when an appointment to an aided section is to be made, it has to be by way of fresh appointment as Shikshan Sevak as per the scheme of the State Government and it is only on completion of the requisite number of year the status of an Assistant Teacher can be bestowed and the regular pay scale can be made applicable. With a misconceived notion, the respondent No. 4 issued a fresh appointment order, appointing the petitioner as Shikshan Sevak from 04.12.2017 under the scheme of the State Government effecting appointment as Shikshan Sevak. However, once an appointment of a teacher is made on unaided basis in a School and approval to such appointment was granted on regular basis of satisfactory completion of two/three years period of 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 making a fresh appointment of such candidate, who has already completed probation period satisfactorily, or refusing approval to the 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 a vacant aided post of Assistant Teacher in same School.

14. For the forgoing reasons, the petitioner who was appointed in the year 2013 and has completed her period of probation as an Assistant Teacher and further rendered services in unaided division of the respondent No. 4-School, on her transfer to the aided division cannot be posted as a Shikshan Sevak but is entitled to be placed as an Assistant in same scale and is also eligible for payment of arrears by fixing of her pay scale with effect from 30.08.2015.

15. In such circumstances, for the reasons stated above, the Writ Petition deserves to be allowed. The approval order dated 04.12.2017 deserves to be modified.

16. The petitioner is entitled for the arrears of salary for the period from 04.12.2017 to 03.12.2020 in the prescribed pay scale along with all consequential benefits of regular increments.

17. The direction is given to the respondent No. 2 to consider the services of the petitioner on the post of Assistant Teacher with effect from 02.09.2013 to 03.12.2017 for the purpose of seniority and other service benefits.

18. The Writ Petition is allowed in the aforesaid terms.

19. Pending Civil Application(s), if any, stand(s) disposed of.