The main legal point established in the judgment is that the transfer of teachers from unaided to aided posts is permissible and does not require fresh appointments, as per Rule 41 and the Government Circular dated 28-6-2016.

JUDGMENT :

SURENDRA P. TAVADE, J.

Rule.

2. Rule made returnable forthwith by consent of both counsel. The petition is heard finally.

3. The petitioners seek direction against respondent No.2-Education Officer (Secondary) Zilla Parishad to grant approval to appoint all petitioners on aided post of Assistant Teacher from their respective dates i.e. 15-6-2018, 15-6-2018, 1-10-2016, 15-6-2018 and 13-8-2018 on 100% grant-in-aid in respondent Nos. 4 and 5 Schools instead of Shikshan Sevak on 20% grant-in-aid. They also seek directions to release their arrears of salary.

4. Petitioners were initially appointed as Assistant Teachers on 1-2-2013 on unaided division of respondent Nos. 4 and 5 by following due procedure and against clear and vacant sanctioned posts. The appointments of petitioners were approved by respondent No. 2 by an order dated 14-8-2013 respectively. It is contended that five posts of Assistant Teacher on 100% aided basis in the establishment of respondent No. 4 had became vacant on account of retirement or superannuation of earlier permanent teachers working on the said posts. On considering the seniority of petitioners on unaided posts, respondent No. 3 transferred petitioner Nos. 1 to 5 on the said 100% aided posts of Assistant Teacher from 15-6-2018, 15-6-2018, 15-6-2018, 1-10-2016 and 13-8-2018 respectively and since then the petitioners have been rendering services on the said aided posts.

5. It is contended that respondent Nos. 4 and 5 forwarded the proposals of petitioners for approval to respondent No. 2. Respondent No. 2 vide orders dated 20-12-2018 granted approval to the transfer of petitioner Nos. 1, 2, 4 and 5 from 15-6-2018, 15-6-2018, 15-6-2018 and 13-6-2018 respectively on 20% grant-in-aid, whereas respondent No. 2 vide order dated 17-2-2018 granted approval to the transfer of petitioner No. 3 as Shikshan Sevak by placing reliance on the Government Circular dated 28-6-2016 instead of granting such approval on 100% grant-in-aid in regular pay scales. It is contended that respondent No. 2 ought to have considered the services rendered by the petitioners on unaided basis as Assistant Teachers for more than six years and their transfer to aided division of respondent Nos. 4 and 5 on sanctioned posts, which became vacant due to retirement or voluntary retirement of earlier teachers working on the respective aided posts. It is contended that the said posts were already on 100% grant-in-aid basis, and therefore, the petitioners are entitled to get approvals to their transfer on aided divisions of respondent Nos. 4 and 5 Secondary School on 100% grant-in-aid in regular pay scales. It is contended that while passing orders dated 20-12-2018, 20-12-2018, 17-2-2018, 20-12-2018, 20-12-2018, respondent No. 2 thereby granted approvals to the transfers of petitioner Nos. 1, 2, 4 and 5 only at 20% grant-in-aid and in respect of petitioner No. 3 as Shikshan Sevak on honorarium basis and such approvals are wrong and erroneous; the said orders be quashed and set aside and respondent No. 2 be directed to grant approvals to their transfers from unaided posts to aided posts as Assistant Teacher. They also claim arrears of salary from the date of their appointment as Assistant Teachers.

6. Respondent No. 2 has filed an affidavit-in-reply through Sudha Maruti Salunke. It is contended that in view of Government Resolution dated 28-6-2016, the Education Officer (Secondary), Zilla Parishad, Solapur (respondent No. 2) has issued orders of approval to the present petitioners on 20-12-2018 and 17-2-2018, respectively, from unaided division to aided division of respondent No. 3 school management on 20% grant. It is contended that Clause 3, sub-clause (1) and (2) of the Government Resolution dated 28-6-2016 have been held to be contrary to the view taken by various Division Benches of this Court, but clause 5 of said GR is still in force and existence. It is contended that the petitioners have admitted the condition of 20% grant of salary