The completion of probation entitles an employee to continuity of service as per the Maharashtra Employees Of Private Schools (Conditions of Service) Regulation Act, 1977, and misinterpretation of relevant provisions by the authority is not permissible.

JUDGMENT :

NEELA GOKHALE, J.

1. Rule. Respondent-State has filed its Reply Affidavit. Heard by consent of both the parties. Rule made returnable forthwith.

2. The Petitioners assail order dated 20th December 2020 passed by the 2nd Respondent, Education Officer of the 1st Respondent-State. The impugned order pertains to a refusal by the Respondents to grant approval for continuity of service of the 1st Petitioner as Assistant Teacher. The 1st Petitioner is an employee of the 2nd Petitioner-Management.

3. The facts of the case reveal an unreasonable approach of the Respondents in refusing approval to the continuity of service of the 1st Petitioner despite him having successfully completed the mandated probationary period of three years as Shikshan Sevak (trained graduate teacher) in the school run by the Management. The 1st Petitioner’s father was permanently employed in the school of the 2nd Petitioner as Peon. Upon his death, the 1st Petitioner was eligible to be appointed as trained under-graduate teacher and hence sought compassionate employment as such. There was no vacancy in the teaching cadre at the relevant time and hence, the 1st Petitioner accepted the post of junior clerk which was available in the School. He completed three years as Shikshan Sevak followed by continuing as Junior Clerk on a regular basis upon grant of approval by the Education Officer.

4. In the meantime, the 1st Petitioner acquired the qualification of B.A. (Marathi) and B.Ed. and became eligible for a teaching post. In consonance with Government Resolution (“GR”) dated 20th January 2016, the 1st Petitioner was appointed as Shikshan Sevak for a further period of three years as a lateral appointment from nonteaching to teaching, upon vacancy being available. The Education Officer gave his approval to the said appointment and allotted a Shalartha ID to the 1st Petitioner. The 1st Petitioner successfully completed the probation period and the Management applied for approval for continuity of his services as Assistant Teacher on a regular basis. The Education Officer, Zilla Parishad, Thane as well as the Deputy Director of Education, Mumbai Region also recommended the grant of approval and sought guidance from each other. Finally, the Education Officer, Zilla Parishad, Thane communicated the rejection of approval by order dated 28th December 2020. This is the impugned order.

5. Mr Bandiwadekar, learned Senior Counsel appearing for the Petitioners relies upon a GR dated 20th January 2016 prescribing that if an employee is given compassionate appointment in Group-D post despite being qualified for Group-C post, then such candidate will be eligible for his appointment in the latter post once a vacancy arises. Mr Bandiwadekar contends that the 1st Petitioner was qualified for the post of teacher at the time of his initial appointment itself and only due to unavailability of a vacant post of teacher in the school at the relevant period, he was appointed on a non-teaching post. He further submits that since it was merely a change in cadre, there was no requirement of a separate selection procedure. He further submits that the Education Department itself has approved his appointment as Shikshan Sevak and allowed him to change the cadre and hence refusal to grant approval in continuity in service is illegal and cannot be sustained.

6. Mr Walimbe learned AGP appears for the State and contests the claim of 1st Petitioner by taking recourse to Clause 10 of Annexure-A to the GR dated 31st December 2002. The GR relates to appointment of employees on compassionate grounds. Clause 10 provides that once an employee accepts compassionate employment in Class-IV post and acquires a higher qualification, he is eligible to be appointed to the next post by following Rules. Mr Walimbe contends that since the initial appointment of 1st Petitioner as Shikshan Sevak (teaching) was made without following the selection procedure contemplated by Rule 9 of the Maharashtra Employees of Pri