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Rule. Rule made returnable forthwith. With the consent of the parties, the Writ Petition is heard finally at the stage of admission.
By the present writ petition filed under Article 226 of the Constitution of India, the petitioner has put forth the following main prayers :-
B) By issue of writ of certiorari or any other appropriate writ, order or direction in the like nature, the impugned order dated 02.04.2026 (at Exhibit- “F” ) issued by the Respondent No.2-The Education Officer (Secondary) Zilla Parishad, Jalna may kindly be quashed and set aside.
C) By issue of writ of mandamus or any other appropriate writ, order or direction in the like nature, the respondent No.2 may kindly be directed to grant approval to the promotion of the petitioner to the post of Secondary Teacher in the respondent no.3 secondary school within stipulated period.
FACTUAL MATRIX :
It is the case of the petitioner that he possesses qualification of BA. B.Ed. He was initially appointed, by following due procedure of law on 30.06.2019, to the post of Laboratory Assistant in Respondent No.3-School. Respondent No.2-Education Officer (Secondary) approved his services on probation and thereafter as a permanent employee w.e.f. 01.03.2024. The Deputy Director of Education also included his name in Shalarth ID and he was accordingly drawing salary for the said post.
It is further case of the petitioner that, due to demise of one of the Secondary Teachers, teaching the subject of English, Respondent No.3-School, decided to promote him to the said post, by virtue of clause-8 of the Government Resolution dated 10.06.2005 (for short hereinafter called as “Government Resolution of 2005”). Accordingly, on 31.07.2024, Respondent No.3 promoted him to the post of Secondary Teacher in the subject of English. On 16.08.2024, Respondent No.3 submitted a proposal to Respondent No.2-Education Officer seeking approval to the promotion of the petitioner as Secondary School Teacher. By the impugned order Respondent No.2-Education Officer rejected the said proposal, on the ground that Clause 8 of the Government Resolution of 2005, pursuant to which petitioner came to be promoted, has now been superseded by the subsequent Government Resolution dated 25.03.2026 (for the sake of brevity hereinafter called as “Government Resolution of 2026”). The petitioner, therefore, has approached this Court.
SUBMISSIONS :-
Learned Counsel for the petitioner submits that the petitioner is duly qualified for being promoted to the post of Secondary Teacher and accordingly promoted after
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following the due procedure of law. He further submits that when the petitioner was promoted, the Government Resolution of 2005 was in vogue. Respondent No.2 has rejected the proposal seeking approval to the promotion of the petitioner by giving retrospective effect to the Government Resolution of 2026. He, therefore, urged that the impugned order is unsustainable and the same deserves to the quashed and set aside.
Per contra, learned AGP supported the impugned order inter alia contending that Clause- 8 of the Government Resolution of 2005, providing for promotion of non teaching post to a teaching post, now no more survives as the same has been superseded by Government Resolution of 2026. He would submit that, Respondent No.2 has rightly rejected the proposal seeking approval to the promotion of the petitioner on that count. He, therefore, urged that the Writ petition is devoid of any substance and the same deserves to be dismissed.
CONSIDERATION :-
We have heard learned Counsel for the petitioner and learned AGP and have perused the record.
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It is pertinent to note that Government Resolution of 2005 was issued for implementation of the scheme of Shikshan Sevak in private aided Secondary and Higher Secondary Schools as well as Junior Colleges. Clause-8 of the said Government Resolution, which permits promotion from a non-teaching post to a teaching post, reads thus :-
Admittedly, the petitioner was promoted to the teaching post when the aforesaid Government Resolution was in vogue. Consequently the petitioner’s promotion is required to be considered in accordance with the Government Resolution of 2005 and therefore he is certainly entitled to derive the benefits thereof. While the proposal seeking approval to his promotion was under consideration , Government Resolution of 2026 came to be promulgated, thereby superseding Clause-8 of the Government Resolution of 2005.
The question therefore falls for consideration before this Court is “whether Respondent No.2 was justified in giving retrospective effect to the Government Resolution of 2026”. The answer would certainly be in the negative. Giving retrospective effect to the Government Resolution of 2026 would have the effect of taking away the right accrued in favour of the petitioner under the Government Resolution of 2005.
It is a settled position of law that a subsequent policy, whether in the form of subordinate legislation or otherwise, which is detrimental to the interest of citizens/beneficiaries under an earlier policy, ordinarily cannot be given retrospective effect so as to take away vested or accrued rights. The support can be drawn from the Judgment of the Hon’ble Apex Court in the case of Commissioner of Income Tax (Central)-I, New Delhi v. Vatika Township Pvt. Ltd.; (2015) 1 SCC 1 wherein it has been held that, the provisions having adverse civil consequences cannot be given retrospective effect. The relevant observations of the Hon’ble Apex Court reads thus:
29.The obvious basis of the principle against retrospectivity is the principle of 'fairness', which must be the basis of every legal rule as was observed in the decision reported in L'Office Cherifien des Phosphates v. Yamashita-Shinnihon Steamship Co. Ltd. (1994) 1 AC 486. Thus, legislations which modified accrued rights or which impose obligations or impose new duties or attach a new disability have to be treated as prospective unless the legislative intent is clearly to give the enactment a retrospective effect; unless the legislation is for purpose of supplying an obvious omission in a former legislation or to explain a former legislation. We need not note the cornucopia of case law available on the subject because aforesaid legal position clearly emerges from the various decisions and this legal position was conceded by the counsel for the parties. In any case, we shall refer to few judgments containing this dicta, a little later.
Having held that the petitioner is entitled to derive the benefits available under Clause-8 of Government Resolution of 2005, it is necessary to examine the nature and effect of the said provision. The said clause contemplates a promotional avenue to an employee belonging to the non-teaching staff. The said clause fell for consideration before this Court on several occasions, and more particularly in the case of Usha Baliram Masal Vs. Hind Seva Mandal (Writ Petition No.3167 of 2019) decided on 30.09.2019 wherein this court observed thus:
5.The petitioner is seeking benefit of Government Resolution dated 10.06.2005, though the statute does not prescribe promotional channel from non-teaching to teaching staff, however, the State through it's School Education and Sports Department, Mantralaya,Mumbai has issued Government Resolution dated 10.06.2005. Clause 8 of the said Government Resolution reads thus-र्म हामिव द्यालयीन शि�क्षकांसाठी आवश्यक ती �ैक्ष शि�क अहताप्र ाप्त केली अ शि� जरत् या संवार्गा चे पद र्माध्य मिर्म क �ाळेत वा उच्च र्माध्य मिर्म क �ाळेत / कमिन ष्ठर्महामिव द्यालयात उपलब्ध असेल तर , अ�ाप्र कर �ी सदरहू शि�क्षकेतर क र्मचा-यास शि� क्ष�सेवक सेवामिनवृत्ती वेतनासाठीग्र ाहय धरता येईल ." Reading the said clause, it is manifest that a non-teaching employee after acquiring the qualification can be appointed as 'Shikshan Sevak' in the secondary school or the junior college and his earlier services shall be counted for the purpose of pension. The only rider is that he is to be appointed as 'Shikshan Sevak' and he would be paid honorarium as applicable to 'Shikshan Sevak'.
6.The Clause 8 read as it is, is in the nature of providing a promotional avenue to an employee of non-teaching staff. The Clause 8 clarifies that earlier services shall be counted for the purpose of pensionary benefits. It would not be a case of an appointment afresh but promoting a person from the non-teaching staff though as 'Shikshan Sevak.
Relying upon the judgment of Usha Baliram Masal (supra) the Coordinate Bench of this Court at Nagpur in the case of Shri. Suhas s/o Rangraoji More Vs. State of Maharashtra and Others (Writ Petition No.7706 of 2022) has taken a similar view. The relevant observations of the said judgment 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.
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.”
In view of the aforesaid legal position, the placement of the petitioner from the post of Laboratory Assistant to that of Secondary Teacher constitutes a promotion and not a fresh appointment. The promotion of the petitioner therefore, deserves to be approved.
In view of the above discussion, we find that the impugned order is arbitrary, unreasonable and unsustainable. We, therefore, are inclined to allow this Writ Petition. In the result, we pass the following order.
:: ORDER ::
Writ Petition is allowed in terms of prayer Clauses – B and C.
Respondent No.2 shall undertake the exercise of granting approval to the promotion of the petitioner as a Secondary School Teacher within a period of three (3) months from the date of receipt of a copy of this order.
Rule is thus made absolute in above terms.