ABHAY S.OKA, J. - (1.)RULE . The learned A.G.P. waives service for the Respondents Nos.1, 2 and 5. The Respondent No.3 is the School run by the Respondent No.4-Trust. Shri Ramesh Sitaram Kamble, Secretary of Respondent No.4, has filed an affidavit-in-reply and it is reflected from the said affidavit that the Respondents Nos.3 and 4 have submitted to the orders of this Court. Considering the facts and circumstances of the case, we have taken up the petition for final hearing forthwith.
(2.)BY this petition under Article 226 of the Constitution of India, the Petitioner is praying for quashing the order dated 17th March 2005 passed by the Deputy Director of Education and for a consequential direction to the Respondents Nos.1 and 2 to grant approval for the post of the Petitioner as Assistant Teacher in Respondent No.3-School either from the date of his initial appointment on 25th September 1997 or from the year 2001 and further directing the Respondents Nos.2, 3 and 4 to pay the Petitioner his monthly salary regularly and arrears of his salary with effect from 25th September 1997 as per the relevant pay-scale.
With a view to appreciate submissions made by the Counsel appearing for the parties, it will be necessary to refer to the facts of the case in brief. The Petitioner holds B.A., B.Ed.(Physical) degrees. The Petitioner belongs to OBC category. On 25th September 1997 the Petitioner was appointed as an Assistant Teacher in the Respondent No.3-School from 18th September 1997. The Petitioner was appointed for a period of two years on probation. The employment of the Petitioner was confirmed and by communication dated 18th September 1999, the Petitioner was informed that he was being made permanent with effect from 18th September 1999. It appears that on 8th September 2003, the Headmaster of the Respondent No.3-School submitted a proposal to the Education Inspector, North Zone, Chembur, Mumbai for grant of approval to the appointment of the Petitioner. In the letter it is recorded that the Petitioner was working with effect from 18th September 1997 and as the earlier Headmaster Shri Bajirao Lokhande (who was later on placed under suspension) deliberately avoided to submit the proposal of the Petitioner for approval, there was a delay in submitting the proposal. It appears that by communication dated 17th October 2003, the Education Officer, North Division, Mumbai communicated to the Headmaster of the Respondent No.3 that the approval cannot be granted to the Petitioner from 18th September 1997 with retrospective effect and therefore, the proposal was disapproved. Being aggrieved by the said order, the Petitioner filed Writ Petition No.2015 of 2004. To the said petition, the Deputy Education Officer filed a reply opposing the petition. The opposition was on the ground that the proposal was sent on 17th October 2003 and the approval cannot be granted retrospectively. The second ground was that in view of the Government Resolution dated 17th January 2001, the approval cannot be granted to the Petitioner who was appointed on the post of Assistant Teacher in trained undergraduate category for standards V to VIII and the Petitioner was trained Graduate Teacher. The third reason given was that there was only one post available for teacher in physical education in the school which was filled in by appointing one Shri P.N.Vani and the approval has been granted to his appointment in the year 2001. On 30th February 2005, the said writ petition was disposed of by permitting the Petitioner to file a representation to the Deputy Director of Education and by directing the Deputy Director to decide the said representation. Accordingly, the Petitioner submitted a representation which was decided by the Deputy Director of Education by order dated 17th March 2005 which is impugned in this petition. By the said order, the Deputy Director came to the conclusion that the approval cannot be granted to the Petitioner as (i) the post of teacher in the physical education was not vacant; (ii) a trained graduate teacher cannot be appointed on the post of a trained non-graduate teacher under the Government Circular dated 17th January 2001; and (iii) though there is one vacant post in the trained non-graduate cadre in the school, the appointment of the Petitioner cannot be approved in view of the Government Circular. It appears that reliance was placed by the Petitioner before the Deputy Director of Education on the decision dated 6th May 2004 of this Court in Writ Petition No.4632 of 1999. The Deputy Director observed that the State Government had challenged the said decision by preferring an Appeal in the Apex Court and therefore, no reliance can be placed on the same.

(3.)THE learned Counsel appearing for the Petitioner assailed the impugned order by pointing out that the Deputy Director has completely misread the Government Circular dated 17th January 2001. He submitted that the said Circular itself provides that though the educational qualification for teachers of primary schools is D.Ed., in view of the decision of this Court in Writ Petition No.4158 of 1998, out of the post of teachers approved for standards V to VII in private secondary schools, 75% posts are to be filled in by candidates who are non-graduate trained teachers and 25% posts are to be filled in by the candidates who are graduate trained teachers holding B.A./B.Com./B.Sc. degrees along with B.Ed. degree. He also placed reliance on the Circular dated 1st February 2001 issued by the State Government and submitted that the Petitioner will have to be treated as a trained graduate teacher. The learned Counsel for the Petitioner placed reliance on an unreported decision of this Court dated 6th May 2004 in Writ Petition No.4632 of 1999 along with other connected petitions. The learned Counsel also placed reliance on an another decision of this Court reported in (Kondiba s/o.Dattarao Mirashe vs. State of Maharashtra & ors.).