Jitendra Jain, J.

1. Rule. Rule made returnable forthwith. By consent, heard finally.

2. This petition is filed by a teacher seeking direction to respondent nos.1 and 2 to release the petitioner’s salary with effect from 1st August 2011 pursuant to the approval granted by respondent no.2-Education Officer vide order dated 3rd May 2012. The petitioner also seeks a direction to respondent no.2 to delete the word "non-grant" mentioned in the approval order dated 3rd May 2012.

BRIEF FACTS:-

3. The petitioner was appointed as a teacher in respondent no. 4 school on 21st August 2008. The appointment was approved by respondent no.2-Education Officer, vide order dated 3rd March 2010. After completion of probation period, respondent no.2-Education Officer, granted permanent approval with effect from 1st August 2011.

4. The petitioner was seeking salary from respondent nos.1 and 2 with effect from 1st August 2011 on grant basis. However, on an enquiry from respondent no.2-Education Officer, she was informed that her appointment is on “non-grant basis” and, therefore, she is not entitled to the same.

5. It is on above backdrop that the present petition came to be filed seeking salary on “grant” basis with effect from 1st August 2011.

SUBMISSIONS OF THE PETITIONER AND RESPONDENT-SCHOOL:-

6. Learned counsel for the for the petitioner supported by learned counsel for respondent nos.3 and 4 submitted, by referring to various documents annexed to the petition and the replies filed by respondent no.2, that respondent nos.1 and 2 have admitted that the petitioner was teaching in grade 5th and 6th and was appointed on aided post from 2011 and, therefore, the petition should be allowed based on the admission made by respondent nos.1 and 2 in their reply and in various letters issued by respondent no.2. Learned counsel for respondent-school also relied upon the decision in the case of CTR Manufacturing Industries Ltd. vs. Sergi Transformer Explosion Prevention Technologies Pvt. Ltd. & Ors.(2013 (1) Maharashtra Law Journal 908) and submitted that respondent no.2 is guilty of perjury by making incorrect statement on oath. Petitioner and respondent-school, therefore, prayed for making the rule absolute in terms of prayers set-out in the petition.

SUBMISSIONS OF RESPONDENT-STATE & EDUCATION OFFICER :-

7. Per contra, learned counsel for respondent nos.1 and 2 submitted that there were only 14 sanctioned posts for teachers, based on the number of students, number of divisions etc. and the petitioner being at serial no.15 was not appointed on aided post and, therefore, no relief should be granted to the petitioner.

8. We have heard learned counsel for the petitioner, school management and the State and with their assistance have also perused the documents brought to our notice in the course of the hearing.

ANALYSIS & CONCLUSIONS :-

9. The number of teachers to be appointed is based upon the number of divisions and the standards for which the school imparts the education as evident from Rules 8(1)(b) and 9(1) of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981. Based on these factors, the divisions are sanctioned. The sanction of the number of teachers is also based on the number of students. Therefore, the twin conditions should be satisfied before claiming the grant in aid qua salary of a teacher viz., not only the number of divisions should be fully aided, but also the appointment of the teachers commensurate therewith should be sanctioned as aided. If the number of teachers is in excess of the strength of teachers sanctioned, then merely because the division is aided, it cannot be concluded that the teacher who is in excess of the sanctioned strength is also aided and entitle to salary on the basis of “aided grant”.

10. The appointment letter of August 2008 (there is an overwriting on the day, whether it is 2nd August or 21st August) does not specify the standard or the division in which the petitioner is appointed to teach. Therefore, reliance placed on this appointment letter for submission that the petitioner was teaching in 5th and 6th standard is misconceived.

11. Letter dated 3rd March 2010 relied upon by the petitioner is issued by respondent no.2-Education Officer to respondent-school. There is a reference to the letter of the school dated 12th November 2009. However, the letter dated 12th November 2009 has not been enclosed and, therefore, 3rd March 2010 letter cannot be understood in its true context in the absence of letter dated 12th November 2009. It is important to note that the Education Officer also refers to letter dated 24th September 2009 in this letter, but even this letter is not to be found in the pleadings. Neither the petitioner nor the respondent-State has enclosed the letters referred to in letter dated 3rd March 2010 and, therefore, this Court cannot express any opinion in this regard. In our view, both the parties should have thrown light on the context in which this letter was issued by producing letter dated 24th September 2009 and 12th November 2009 which they have failed to do. However, Annexure-A to this letter states that the petitioner alongwith two others is appointed from 1st August 2008 as Shikshan Sevak on salary of Rs.3,000/-. Annexure-A to this letter relates to appointment of three teachers and the petitioner is at serial no.3.

12. The petitioner has heavily relied upon letter dated 3rd May 2012 issued by respondent no.2 for the academic year 2011 in which approval is granted to the petitioner’s appointment. Annexure-A refers to the name of the petitioner and at the top it is mentioned “unaided” but while describing the period of appointment, it is stated that from 1st August 2011 being completion of period as Shikshan Sevak, the appointment is made on “aided” basis. Respondent no.2 in the reply has accepted that the contradiction is on account of mistake and in the period of employment, the word “non” has been missed out. In our view, there is an explanation given by respondent no.2 for the mistake of stating that the petitioner has been appointed on “aided basis” and same needs to be accepted. This is also in accordance with the letter dated 3rd March 2010 annexed, wherein the petitioner alongwith others were appointed in “unaided” category. It is important to note that the petitioner has not bothered to seek clarification on contradiction till the petition came to be filed before this Court in the year 2015. Therefore, the explanation given for the mistake cannot be said to be perverse. In our view, reliance placed on 3rd May 2012 letter issued by respondent no.2, in which certain mistakes have crept in with regards to “aided / un-aided” cannot be relied upon for claiming the salary from 2011 on the basis of that, petitioner is appointed in “grant in aid” category. In the additional reply of respondent no.2, there is a letter dated 3rd March 2010 issued by respondent no.2 to the school management which reiterates that the appointment of the petitioner was in non-aided category.

13. Respondent no.2 in their additional reply have stated that out of 15 sanctioned posts only 14 posts were sanctioned on “grant in aid” basis and since the petitioner was at serial no.15, the claim made in the present petition on the basis of grant in aid cannot be accepted. Only 14 posts were sanctioned on grant in aid basis and there is no dispute that the petitioner was at serial no.15. Therefore, the petitioner’s claim of salary from 2011 on the premise that she is appointed on “grant in aid” basis cannot be accepted. This is also fortified by communication dated 22nd October 2010, wherein it is specified that 1 teacher is in unaided category, 2 teachers are in partly aided category and 12 teachers are in aided category. The aggregate of these three categories is 15 teachers and since the petitioner was last at serial number 15, it cannot be contended that from 2011, the petitioner was appointed in aided category.

14. Reliance placed on letter dated 8th July 2011 by the petitioner to contend that from 2011-12, 5th and 6th standard were on 100% aid and since the petitioner was teaching to these standards, she is entitled to grant in aid salary. In our view, as observed above, not only the divisions should be sanctioned in aided category, but also the teachers commensurate with the divisions should also be sanctioned salary on “grant in aid” basis. In the present case, though the divisions may be in aided category but since the petitioner was at serial no.15 and only 14 posts were sanctioned on grant in aid category, claim of the petitioner on the basis of this letter also cannot be accepted.

15. In the additional reply filed by respondent no.2-Education Officer letter dated 11th January 2011 has been addressed to respondent nos.3 and 4 respectively, wherein it is specifically stated that the approval has been granted to only two persons viz., Mr. Gaikwad and Ms. Devkare on “grant in aid” basis. This also shows that in 2011, petitioner was not appointed on “grant in aid” basis and, therefore, claim made in present petition from 2011 cannot be accepted.

16. Reliance placed on 23rd September 2013 letter for claiming salary from 2011 onwards also cannot be accepted. In this letter, it is specifically mentioned that for the year 2011 there were 15 teachers and one of them was a trainee teacher and the petitioner being last at serial no.15 would fall in this category. This letter nowhere states that even the petitioner was treated in “grant in aid” category. The submission made by the petitioner and the school that other teachers Ms. Devkare and Mr. Gaikwad for teaching in 5th and 6th standard are getting salary on the basis of grant in aid and, therefore, the petitioner should also be eligible cannot be accepted. As observed above, only 14 posts were sanctioned on grant in aid basis and the petitioner being at serial no.15, therefore, was on the basis of “non-grant in aid” basis. Therefore, discrimination sought by the petitioner cannot be accepted since “grant in aid” and “non-grant in aid” are two different classes.

17. Reliance placed by the learned counsel for the petitioner and respondent-school on letter dated 9th January 2015 for their alternative submission is required to be accepted. This letter issued by respondent nos.1 and 2 state that from the academic year 2013-14, all 15 posts for teachers are sanctioned on “grant in aid”. Therefore, from the academic year 2013-14, petitioner being at serial no.15 would be treated on the basis of aided category and, therefore, from the academic year 2013-14, claim of the petitioner for salary should be considered by the State. There is no rebuttal to this letter by the respondent-State or Education Officer in their respective reply.

18. In view of above, petition is partly allowed in terms of following order :-

ORDER

(i) Respondent-School to submit petitioner’s salary bills from academic year 2013-14 onwards with the office of respondent no.2 within four weeks from today ;

(ii) Respondent no.2 to consider the said bills and release the petitioner’s salary from 2013-14 onwards within four weeks thereafter ;

(iii) No order as to costs.