Smt. Sunita Chandrakant Bhosale vs The State Of Maharashtra & Ors.

JUDGMENT (PER S. M. MODAK, J.) :-

The only issue involved in this petition is whether Respondent No. 3 was justified in approving the name of the Petitioner as a Class-contention is the Petitioner worked in the Respondent No.5 - School run by Respondent No.4 – Trust since 1991 and in the academic year 1993-94, the strength of Respondent No.5 School was more than 500. As per the provisions of Rule 115 (3)(b) of Bombay Primary Education Rules, 1949, the School was entitled to appoint one class -IV employee. However, it was not considered by Respondent No.3 and that is why the present petition.

There are two decisions communicated by Respondent No.3; one dated 14^th December 2004 and another dated 29^th June 2007. As per the first decision there is approval given to the name of the Petitioner as a class-IV employee from June 2004 on an honorarium basis, whereas as per the second decision, approval is granted from 1^st June 2007. Both the decisions are challenged and a Writ of Certiorari is prayed for. In addition to that the Petitioner also prays for Writ of Mandamus directing Respondent No.3 to grant approval from academic year 1993-94, and to grant all the benefits from that year.

There are five Respondents. Respondent No.1 is the State. Respondent No.2 is the Dy. Director of Education (Primary) Pune Division. Respondent No. 3 is the Education Head of Pune Municipal Corporation. Respondent No.4 is a Trust which runs and manages Respondent No.5 – School.

Amongst them, only Respondent No.1 – State has contested the petition by filing an affidavit-in-reply. It is opposed on the ground of unexplained delay of approaching the Court after a delay of 12 years. It is also opposed on the ground that approval was not granted earlier due to financial constraints.

There is a reliance on the Government Resolution Dated 30^th May 2000, thereby putting restrictions on the appointment of any staff. There is also reliance on a Government Resolution dated 12^th July 2004, and on the basis of said Government Resolution, the ban was lifted and that is how approval was granted immediately. The petition is also opposed on the ground that there is no indefeasible right in favour of the Petitioner just because the benchmark of 500 students is made out.

On this background, we have heard Shri Pakale, learned counsel for the Petitioner, Ms. Jagtap, learned counsel for Respondent No. 3 and Shri Walimbe, AGP for the Respondent-State.

We have also gone through both the Government Resolutions, the pleadings and documents. It is true that Respondent No.2 permitted Respondent No.4 to start a Marathi medium private school as per the order dated 8^th August 1990. It is settled law that granting approval and sanctioning the grant are two different things. Giving a grant depends upon various factors, including financial constraints. It is true that Respondent No.5-school received grant in stages. It is the contention of the Petitioner that the strength of the students was above 500 in the academic year 1993-1994.

It is also true that as per the proposal dated 11^th January 2000, the School has requested Respondent No. 3 to approve the post of one Clerk and one Peon, as the strength is more than 500. It is also true that vide letter dated 6^th June 2001, Respondent No.3 has sanctioned grant upto 100% for the year 2000-2001 and granted approval to the names of certain teachers. It is also true that the school has sought approval for the name of the Petitioner as a Peon vide letter dated 16^th April 2001. It is also true that Respondent No.3 vide a Circular dated 16^th October 2002, has called for the information about the non-teaching staff (from the school having student strength of 500) from the school which was not granted approval. It is true that on the basis of the information submitted, Respondent No.3 has granted approval to the name of the Petitioner on the post of a peon as per the Order dated 14^th December 2004 on an honorarium basis, and subsequently approval was granted vide letter dated 29^th June 2007 on a permanent basis.

There is no dispute that Respondent No.5 had a strength of 500 students in the academic year 1993-94. For ready reference, Rule 115 (3)(b) of the said Rules is reproduced below:-

Any school can get a grant only on the basis of admissible expenditure. Every expenditure is not admissible. It is undoubtedly true that salary paid to a Junior Clerk and a class-IV employee is an admissible expenditure, if the strength of the school is 500 or more. But as said above, admissibility of expenditure is one aspect and sanctioning a grant is another aspect. It will be relevant to consider the policy of the Government as reflected in the above two Government Resolutions:-

According to Mr. Pakale, this will not be applicable to schools. The relevant clauses are as follows:-

If we consider the second Government Resolution, it is clear that Respondent No.3 has granted approval from June 2004 as per the Order dated 14^th December 2004. Mr. Pakale also invited our attention to two orders. One dated 12^th January 2006 passed in the case of Namita Anil Satvekar Vs. The Deputy Director of Education, Pune and Ors. in Writ Petition No. 9138 of 2005, and other dated 2^nd February 2005 passed in case of Subhash Nivrutti Mhetre Vs. The State of Maharashtra and Ors. in Writ Petition No. 3358 of 2004.

The two judgments referred to above can be differentiated on facts. In the case of Namita Anil Satvekar (supra), there is no finding on the issues except giving a direction to decide the representation. Whereas in Subhash Nivrutti Mhetre (supra), there is reference of Rule 115 (3(b); however, it is pertinent to note that the two Government Resolutions as referred to above were not pointed out to this Court.

A School having a strength of 500 in a particular year is one thing and allowing 100% grant is another thing. In between them there lies the decision of the Government, which is guided by financial constraint. So we are not inclined to grant approval from 1993-94, but from the year 2000-01, because 100 % grant is allowed from that year.

In that respect also, we are inclined to grant limited relief to the Petitioner by directing the Respondents to grant the notional benefit of the pay scale from the year 2000-01 and to recalculate the salary from the date of approval of the proposal. We are making it clear with these directions that the Petitioners are not entitled to arrears of salary for the earlier period. With these observations, the following order is passed:-

With the above observations, the present Writ Petition is disposed of.