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2010 DIGILAW 453 (BOM)

Dinesh Babanrao Deshmukh v. State of Maharashtra

2010-03-23

D.D.SINHA, F.M.REIS

body2010
JUDGMENT D. D. SINHA, J.:- Rule returnable forthwith. Heard finally with the consent of Shri. Lahiri, learned Counsel for the petitioner, Shri. Jichkar, learned Assistant Government Pleader for the respondent nos. 1 and 2, and Shri. Meghe, learned Counsel for the respondent no..3. 2. The petition is directed against the order dated 7.12.2009 issued by the respondent no.3 whereby petitioner is treated as an Assistant Teacher. 3. In the instant case, the following facts are not in dispute: The petitioner, at the relevant time, was serving as Assistant Teacher in the School run by the Zilla Parishad, ~agpur. The petitioner was given graduate pay scale with effect from 17.1.1990. The petitioner was transferred to the School run by the Zilla Parishad, Wardha vide order dated 16.2.1991. The petitioner was given the graduate pay scale even at the place where he was transferred, i.e. at Wardha. As per Rule 6(8) of the Maharashtra Zilla Parishad District Services (Recruitment) Rules, 1967, the Chief Executive Officer may on an application made by any member of a District Service of another Zilla Parishad, appoint such member to a post in the District service in which he held such post under that Zilla Parishad on such terms and conditions as may be mutually agreed upon between the two Zilla Parishads subject to conditions. One of them is that such appointments shall not be made to th~ posts to be filled in exclusively by prcmoticn and that they shall be made in vacancies, which are reserved for appointment by nomination. 4. Shri. Lahiri, learned Counsel for the petitioner, states that the respondrnt no.3 construed that giving higher pay scale, i.e. graduate pay scale to the petitioner is as if giving promotion to the petitioner, which is, in fact, wholly incorrect. It is contended that the petitioner was appointed as an Assistant teacher in the School run by Zilla Parishad, Nagpur and was given graduate pay Scale since the petitioner was eligible to get the said pay scale. However, because of grant of graduate pay scale, petitioner cannot be treated to be promoted to the higher post and, therefore, transfer of the petitioner from the Nagpur School to Wardha School cannot be treated to be a transfer in a promotional post merely because the petitioner was given the graduate pay scale though the substantive post held by the petitioner was that of the Assistant Teacher. It is contended that in the instant case, Rule 6(8)(i) of the Rules of 1967 is not attracted and, therefore, the impugned communication is bad-in-law and cannot be sustained and, therefore, same is liable to be quashed and set aside. 5. Shri. Meghe, learned Counsel for the respondent no.3, supports the impugned communication and states that it is not in dispute that the petitioner was appointed in the School run by the Zilla Parishad, Nagpur and by virtue of Government Resolution dated 14.11.1979, the benefit of graduate pay scale in 25% quota was extended to the petitioner with effect from 17.1.1990. It is also not in dispute that the respondent no.3 in pursuance of order dated 16.2.1991 absorbed the petitioner in Zilla Parishad, Wardha. It is further contended that the petitioner was holding the post of graduate Teacher, which was not a post on which candidate could be directly appointed. However, it was a post on which the Assistant Teacher on the basis of seniority, can be promoted. It is contended that since petitioner was absorbed/transferred on the promotional post in Zilla Parishad, Wardha, in view of Rule 6(8)(i) of the Rules of 1967, the petitioner was treated as an Assistant Teacher by the impugned communication. 6. However, it was a post on which the Assistant Teacher on the basis of seniority, can be promoted. It is contended that since petitioner was absorbed/transferred on the promotional post in Zilla Parishad, Wardha, in view of Rule 6(8)(i) of the Rules of 1967, the petitioner was treated as an Assistant Teacher by the impugned communication. 6. We have considered the rival contentions canvassed by the respective Counsel and perused Rule 68(i) of the Maharashtra Zilla Parishads District Services (Recruitment) Rules of 1967, which reads thus: "6(8) Notwithstanding anything contained in these rules, the Chief Executive Officer may on an application made by any member of a District Service of another Zilla Parishad, appoint such member to a post in the District Service in which he held such post under that Zilla Parishad on such terms and conditions as may be mutually agreed upon between the two Zilla Parishads and subject to the further conditions, namely: (i) Such appointments shall not be made to posts to be filled in exclusively by promotion and that they shall be made in vacancies which are reserved for appointment by nomination." Perusal of the aforesaid Rule clearly demonstrates that the Chief Executive Officer may on an application made by any Member of a District Service of another Zilla Parishad appoint such member to a post in the District service in which he held such post under that Zilla Pari shad on such terms and conditions as may be mutually agreed upon between two Zilla Parishads. However, same is subject to further conditions. One of them is that such appointments shall not be made to the posts to be filled in exclusively by promotion and that they shall not be made in vacancies, which are reserved for appointment by nomination. 7. In the instant case, substantive post held by the petitioner was/is of an Assistant Teacher. Grant of graduate pay scale is neither a promotion nor a higher post in the hierarchy. It is merely grant of higher pay scale meant for Teachers eligible to get graduate pay scale falling under the said quota. The learned Counsel for the petitioner has brought to our notice Govemment Resolution dated 11.8.1999, which stipulates that grant of higher pay scale to the Primary Teacher cannot be treated to be a promotion. It is merely grant of higher pay scale meant for Teachers eligible to get graduate pay scale falling under the said quota. The learned Counsel for the petitioner has brought to our notice Govemment Resolution dated 11.8.1999, which stipulates that grant of higher pay scale to the Primary Teacher cannot be treated to be a promotion. Even otherwise, promotion to a higher post and grant of higher pay scale are two different and distinct situations and cannot be equated with each other. In the instant case, the petitioner was appointed as an Assistant Teacher and at the relevant time, the substantive post held by the petitioner was that of Assistant Teacher (Primary School). Since petitioner was eligible, was given graduate pay scale. Grant of graduate pay scale by itself, in our vie...., would not amount to grant of promotion and, therefore, absorption of the petitioner in the School run by the Zilla Parishad, Wardha in the same graduate pay scale category cannot be treated to be an absorption on the promotional post. 8. Shri. Meghe, learned Counsel for the respondent no.3, has not disputed that so far as graduate pay scale category is concerned, there cannot be a direct recruitment and the Assistant Teachers, who are working in the School after acquiring necessary qualifications and in view of availability of vacancies in the 25% quota, are only eligible to get benefit of the graduate pay scale scheme. Hence, question of petitioner being absorbed in a vacancy reserved for appointment by nomination does not arise. 9. For the reasons stated hereinabove, the impugned order/ communication cannot be sustained-in-Iaw. Hence, the same is quashed and set aside. 10. The rule is made absolute in the above terms. No order as to costs. Petition allowed.