The transfer from unaided post to an aided post is not a fresh appointment, and the Sub-Clause 5 (B) of Clause 3 of the Government Circular applies only when new posts on aided basis are sanctioned by the government to be filled afresh.

JUDGMENT

R.I. Chagla, J. - Rule. Rule is made returnable forthwith.

2. The learned Counsel and learned AGP appearing for the parties have agreed that an identical issue arises in both these Petitions and that the outcome of the Writ Petition No. 168 of 2021 will apply to Writ Petition No. 169 of 2021. Statement is accepted. By consent of parties, these Petitions are heard together fnally.

3. Petitioners in these two Petitions have sought directions against the respective Respondent No. 2-Education Officer (Secondary), Zilla Parishad to grant approval to the transfer of the Petitioners as Assistant Teachers on 100% aided division in the Respondent No. 4-School in the regular pay-scales from the respective dates of their transfers by modifying the approval orders and releasing the arrears of salary of the Petitioners.

4. For the sake of convenience, the facts in Writ Petition No. 168 of 2021 are being adverted to.

5. The Petitioner initially came to be appointed as Assistant Teacher on unaided division in the Respondent No. 4- School on 2nd November 2012.

6. The appointment of the Petitioner was made on a clear vacant and sanctioned post from open category. The Petitioner from the date of his joining was in continuous service in the unaided division of Respondent No. 4-School.

7. The Petitioner had forwarded proposal dated 11th July 2014 for getting approval to the said appointment of the Petitioner and pursuant to which the Respondent No. 2- Education Officer (Secondary), Zilla Parishad by an order dated 14th July 2014 granted approval to the said appointment of the Petitioner. The approval was on no grant basis on probation period with effect from 2nd November 2012 and upon completion of the probation period by the Petitioner, Respondent No. 2-Education Officer granted permanent approval in favour of the Petitioner as Assistant Teacher on no grant basis.

8. One post of Assistant Teacher of 100% aided basis in the Respondent No. 4-School had became vacant on account of the death of Shri. Kale R.J. on 1st May 2017 and considering the seniority of the Petitioner on unaided post, the Respondent Nos. 3 and 4 transferred the Petitioner on the 100% aided vacant post of Assistant Teacher in the Respondent No. 4- School.

9. The Managing Committee of the Respondent No. 4- School passed a Resolution dated 3rd October 2017 for effecting such transfer of the Petitioner from unaided division to aided division and pursuant to which the Petitioner came to be transferred from unaided division to aided division by an order dated 30th October 2017 with effect from 1st November 2017. The Petitioner has thereafter joined on the said grant-in-aid post on 1st November 2017 and has been rendering services on the said aided post.

10. Respondent No. 4-School on 14th January 2018 forwarded proposal for getting approval to the said transfer order of the Petitioner to the Respondent No. 2- Education Officer. The Respondent No. 2 by an order dated 5th November 2018 granted approval to the transfer of the Petitioner from 1st November 2017 on 20% grant-in-aid by placing reliance on the Government Circular dated 28th June 2016 instead of granting such approval on 100% grant-in-aid in regular pay-scales. Being aggrieved by the impugned order dated 5th November 2018, this Petition has been fled.

11. Learned Counsel for the Petitioner has submitted that the issue arising in these Petitions is no longer res integra. He has placed reliance upon the decisions of this Court which have also been annexed to the Petitions and are as follows :-

i) The decision of the Aurangabad Bench of this Court in Nagnath Harishchandra Chavan Vs. The State of Maharashtra & Ors. (Writ Petition No. 13676 of 2018) ;

ii) The decision of the Aurangabad Bench of this Court in Dilip Venkatrao Boienar Vs. The State of Maharashtra & Ors. (Writ Petition No. 7841 of 2019) ;

iii) The decision of the Principal Bench of this Court in Mrs. Rajabai Baba Shinde Vs. The State of Maharashtra & Ors. (Writ Petition N