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Judgment
(PER: ABASAHEB D. SHINDE, J.) :
Rule. Rule is made returnable forthwith. With the consent of the parties, the writ petition is heard finally at the stage of admission.
By this writ petition filed under Article 226 of the Constitution of India, the petitioner has put forth the following substantive prayer:
“B. To issue writ of mandamus or any other appropriate writ or direction in the like nature, the impugned order dated 30.01.2025 passed by Education Officer (Secondary), Zilla Parishad, Ahilyanagar (Exhibit – “J”) may kindly be quashed and set aside, and accordingly, the respondent no.04 may kindly be directed to re-fix the salary of the petitioner as per the prescribed pay scale of an Assistant teacher w.e.f. 01.10.2011 and pay the arrears thereto within the stipulated period.”
It is the case of the Petitioner that, he was initially appointed as Lab Attendant on 28.07.1992 by Respondent No.6 – Management in Respondent No.5 - School after following due procedure of law. While in service, he acquired the qualification of B.Sc. B.Ed. Since vacancy of Assistant Teacher arose in Respondent No.5 -School, Respondent No.6 promoted him on the said post by virtue of Clause-8 of Government Resolution dated 10.06.2005 (hereinafter referred to as ‘the said Government Resolution’). Respondent No.4 - Education Officer on 06.09.2013 initially granted approval to his appointment as a Shikshan Sevak and later on granted permanent approval as an Assistant Teacher on 25.03.2015.
It is further case of the Petitioner that, though he was working as Assistant Teacher, he was paid honorarium instead of regular pay scale. He therefore made application to Respondent No.4 seeking salary in regular pay scale. Since the said application was not decided, he approached this Court by filing Writ Petition No.12243 of 2024. This Court, by order dated 14.11.2024 directed Respondent No.4 to decide the said application taking into consideration the decision of the Co-ordinate Bench of this Court at Nagpur in the case of Shri Suhas S/o. Rangraoji More vs. State of Maharashtra and others in Writ Petition No.7706/2022 decided on 21.12.2023.
Respondent No.4 by the impugned order dated 30.01.2025 rejected the application of the Petitioner for refixation of salary and pay scale on the ground that, he was promoted from non-teaching to teaching post prior to decision of this Court in the case of Shri Suhas Rangraoji More (supra), therefore, the said decision cannot be made applicable retrospectively. The Petitioner, therefore, has approached this Court by challenging the said order.
Learned Counsel for the Petitioner assailed the impugned order inter alia contending that, though the Petitioner’s case is squarely covered by the aforesaid decision of this Court, Respondent No.4 by misinterpreting the same, deprived the Petitioner to the benefits of fixation of salary and pay scale. He, therefore, urged that, the impugned order be quashed and set aside by holding that, the Petitioner is entitled for the said benefits.
Per contra, learned AGP appearing for Respondent nos.1 to 4 has supported the impugned order.
We have heard learned Counsel for the Petitioner, learned AGP for the State and perused the record.
Before adverting to the rival submissions, it would be apt to reproduce clause-8 of the said Government Resolution which permits promotion from a non-teaching post to a teaching post as under:
“8.शिक्षकेतर कर्मचा-याने माध्यमिक शिक्षकांसाठी वा कनिष्ठ महाविद्यालयीन शिक्षकांसाठी आवश्यक ती शैक्षणिक अर्हता प्राप्त केली आणि जर त्या संवर्गाचे पद माध्यमिक शाळेत वा उच्च माध्यमिक शाळेत / कनिष्ठ महाविद्यालयात उपलब्ध असेल तर, अशा प्रकरणी सदरहू शिक्षकेतर कर्मचा-यास शिक्षणसेवक म्हणूनच नियुक्ती द्यावी लागेल व त्यांना शिक्षणसेवकांचेच मानधन आणि इतर सर्व अटी व शर्ती लागू होतील. मात्र अशा शिक्षकेतर कर्मचा-याची पूर्वीची सेवा ही सेवानिवृत्ती वेतनासाठी ग्राह्य धरता येईल.”
Though the aforesaid clause permits promotion from non-teaching to teaching post, however the salary of the promotee was being paid on honorarium, therefore, the same was challenged in the case of Shri Suhas S/o. Rangraoji More (supra). This Court held that, the said clause which stipulates promotion of non-teaching staff as Shikshan Sevak on payment of honorarium is arbitrary and discriminatory. This Court, therefore, directed that, the promotee is entitled to be appointed as Assistant Teacher with the prescribed pay scale. The observations of this Court read thus:
“16.In this regard, it needs to be noted that the petitioner was appointed as a Peon on a regular permanent post. His promotion as Shikshan Sevak deprives him of the pay scale as well as other service benefits that he enjoyed in the post of lower grade. Evidently, such promotion does not enhance his prospect but severally prejudices his interest in every way. This anomaly can only be obliterated by treating the promotional post as that of the Assistant Teacher and by granting regular pay scale and other service benefits enjoyed by Assistant Teacher, albeit, the promotional post is termed as Shikshan Sevak.
17.The petitioner has placed on record several approval orders at annexure XII, which indicates that similarly placed employees were promoted to the post of Assistant Teacher and have been granted scale of an Assistant Teacher i.e. S-14 38,600-1,22,800/- as per 7th Pay Commission. It is also pertinent to note that by order dated 16.01.2023 this court had expressed that respondent No.4 should take appropriate decision to address the grievance of the petitioner that the approval ought to have been given as Assistant Teacher and not as Shikshan Sevak. The petitioner filed an additional affidavit stating that after filing of the petition the respondent No.4 - Education Officer considered the representation and granted a fresh approval and protected the pay scale. Curiously enough, on the very next date i.e. on 21.04.2023, respondent No.4 directed the petitioner to hand over the original approval stating that the same has been rescinded.
18.In response, respondent No.4 has filed the counter affidavit, wherein respondent No.4 has not denied having issued approval order dated 20.04.2023 protecting the pay scale. He contends that he was confused and misinterpreted the order of the Court as direction to issue approval order. He states that he realized the mistake on discussing the matter with the AGP and hence, rescinded the order and declined the request of the petitioner to protect his pay scale.
19.Admittedly, the petitioner was not heard before rescinding the approval order. Moreover, the petitioner has placed on record copy of the approval dated 24.03.2023 and further stated that respondent No.4 has granted similar approval to Mr.Radhakrishnan Mane. He has placed on record the said approval dated 18.01.2023.
20.The respondent No.4 has not assigned any explanation as to how other similarly placed employees have been granted approval to the promotion on the post of Assistant Teacher on pay scale of S-14-38600-1,22,800/- as per 7th Pay Commission. Needless to state, the same post with identical duties and responsibilities ex- facie cannot have two different pay scales. The anomaly and discrepancies in fixing the honorarium of Rs.8,000/- while other similarly placed employees have been given benefit of 7th Pay Commission amounts to invidious discrimination and violates Article-14 of the Constitution of India.
21.Under the circumstances, it is held that (i) Clause 8 of G.R. dated 10.06.2005, which stipulates promotion of non teaching staff as Shikshan Sevak on payment of honorarium is arbitrary and discriminatory. (ii) The petitioner is entitled to be appointed as Assistant Teacher with the prescribed pay scale at par with pay scale of other similarly placed promotees. (iii) Respondent No.5 - Management to modify the appointment order dated 29.10.2021 to the extent of appointing/promoting the petitioner as Assistant Teacher instead of Shikshan Sevak. (iv) Respondent No.5 - Management, is directed to submit the proposal to respondent No.4 for approval of appointment/promotion of the petitioner as Assistant Teacher with pay scale of Assistant Teacher within four weeks from the date of the order. (v) Respondent No.4 to consider the same as expeditiously as possible in any event within four weeks from the date of the receipt of the proposal.”
Indisputably, the Petitioner was appointed as Lab Attendant by Respondent No.6. Since he was duly qualified, he was promoted by Respondent No.6 from non-teaching to teaching post as a Shikshan Sevak and thereafter as an Assistant Teacher after following due procedure. His services were duly approved by Respondent No.4 – Education Officer. We, thus, find that, the case of the Petitioner is squarely covered by the decision of this Court in Shri Suhas S/o. Rangraoji More (supra). Respondent No.4 could not have decided the prospectivity or retrospectivity of the said decision. On the contrary, Respondent No.4 was expected to follow the said decision in its letter and spirit. We are, therefore, of the view that, the impugned order passed by Respondent No.4 is unsustainable and liable to be quashed and set aside. In the result, the Writ Petition deserves to be allowed. Hence, the following order:
ORDER
Writ Petition is allowed in terms of prayer clause ‘B’.
Rule is thus made absolute in the above terms.