High Court
Legal Reasoning
wp-2843-2022.odt(1)IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 2843 OF 2022Dipika Rahul Wadile alias, Dipika Sunil Dhole, Age: 23 years, occup. Nil R/o. Ashte, Tq. & Dist. Nandurbar...PetitionerVERSUS1.Eklavya Shikshan Prasarak Mandal,Bhilaipada, Tq. & Dist. Nandurbar. (Notice be served upon the Secretary)2.The Head Master,Khajagi Prathmik Shala, Bhiaipada, Tq. & Dist. Nandurbar.3.The Education Officer (Primary),Zilla Parishad Nandurbar.4.The Secretary,Eklavya Shikshan Prasarsk Manda, Bhilaipada, Tq. & Dist. Nandurbar...Respondents...Mr. S.R. Sapkal, Advocate for the Petitioner.Mr. A.B. Jagtap, Advocate for Respondent Nos.1, 2 & 4.Mr. P.S. Patil, Advocate for Respondent No.3.... CORAM : ABASAHEB D. SHINDE, J. RESERVED ON : SEPTEMBER 16, 2025 PRONOUNCED ON : SEPTEMBER 30, 2025JUDGMENT :.Rule. Rule made returnable forthwith. With consent ofparties, heard finally at the admission stage.2.By this writ petition, the petitioner is taking an exceptionto the judgment and order dated 14.01.2022 passed by the Presiding
Legal Reasoning
wp-2843-2022.odt(2)Officer, School Tribunal, Nashik in Appeal No.95 of 2016, by whichthe appeal filed by the petitioner under Section 9 of the MaharashtraEmployees of Private Schools (Conditions of Service) Regulation Act,1977 (‘Act of 1977’ for short) has been dismissed challenging thetermination order thereby terminating the services of the petitioner tothe post of Shikshan Sevak. 3.Few facts giving rise to filing the writ petition can besummarized as follows :The petitioner claims that she possesses the qualification ofH.S.C., D.Ed., and belongs to N.T. Category. The petitioner alsoclaims that due to retirement of one Smt. Ushabai More, respondentnos.1 and 2 management have sent the letter on 14.08.2012 to therespondent no.3/Education Officer seeking permission to fill up thesaid vacant post. It is further case of the petitioner that the said letterdated 14.08.2012 was not responded by the respondentno.3/Education Officer either accepting or rejecting the same. Thepetitioner further contends that as no decision was taken by theEducation Officer on the letter dated 14.08.2012 addressed byrespondent nos.1 and 2 management, the management was left withno other option but to issue an advertisement in daily newspaper“Khandesh Gaurav” on 03.10.2012 thereby calling upon thecandidates to undergo the selection process. wp-2843-2022.odt(3)4.It is further contention of the petitioner that pursuant tothe said advertisement, the petitioner have accordingly applied andhave undergone the selection process and amongst other candidates,he was found eligible and suitable and thus, respondent nos.1 and 2have appointed the petitioner to the post of Shikshan Sevak for aperiod of three years on probation. The petitioner further contendsthat she accordingly joined in the respondent no.2/school on15.10.2012 and have also completed the probation period on14.10.2015 and by virtue of completion of probation period, thepetitioner have even attended the status of permanent teacher. Thepetitioner further contends that despite the petitioner havingcompleted the probation period, the proposal seeking approval to herappointment was not forwarded by respondent nos.1 and 2 and thesame was submitted belatedly. On the said proposal for grant ofapproval, the respondent no.3/Education Officer communicated themanagement vide communication dated 07.09.2016 that theappointment of the petitioner is of the year 2012; however, theproposal seeking approval to her service have been forwarded in theyear 2016. Moreover, while the process of absorbing the surplusteacher was in process still respondent nos.1 and 2 have submittedthe proposal for grant of approval of the petitioner therefore asked foran explanation about the same and returned the proposal back to therespondent nos.1 and 2. Therefore, relying on the said wp-2843-2022.odt(4)communication of respondent no.3/Education Officer dated07.09.2016, respondent nos.1 and 2 have issued the terminationorder on 12.09.2016, thereby terminating the services of thepetitioner as Shikshan Sevak. 5.The petitioner further contends that the petitioneraccordingly preferred an appeal under Section 9 of the Act of 1977before the School Tribunal at Nashik, thereby challenging the saidtermination order inter alia contending that the appointment of thepetitioner is after following the due procedure of law. So also, thepetitioner is duly qualified for being appointed as Shikshan Sevak andit is only because of the lapse on the part of the management thatproposal seeking approval to her appointment was submittedbelatedly. So also, merely because the respondent no.3/EducationOfficer have returned the proposal for grant of approval back torespondent nos.1 and 2 management, that her services as ShikshanSevak have been terminated by termination order dated 12.09.2016,which is contrary to the provisions of law and thus, prayed for settingaside the said termination order. It is further contended by thepetitioner that respondent nos.1 and 2 management have filed its sayto the said appeal and in para 4 of the say filed by respondent nos.1and 2 before the School Tribunal, the only stand taken by respondentnos.1 and 2 is that it is on account of the letter issued by therespondent no.3/Education Officer thereby refusing to grant approval wp-2843-2022.odt(5)that the termination order has been issued. The petitioner furthercontends that the respondent no.3/Education Officer have also filedhis say before the School Tribunal and have tried to supplement thereasons in the say by contending that before seeking permission to fillup the vacant post on account of the retired employees, certaindirections have been issued for obtaining no objection and as theappointment of the petitioner is from N.T. Category, respondent nos.1and 2 seems to have not adhered to the roster. 6.The petitioner further contends that the School Tribunal,Nashik, after hearing the parties, by the impugned order dated14.01.2022 dismissed the appeal filed by the petitioner by observingthat the petitioner have failed to discharge the burden that theappointment of the petitioner is after following the due procedure oflaw. So also, the School Tribunal have observed that in absence of noobjection for filling up the post on which the petitioner wasappointed, it cannot be said that the appointment of the petitioner isafter following regular process of selection. The School Tribunal havealso further observed that since the Education Officer have refused togrant approval to the appointment of the petitioner on the groundthat no prior permission before appointing the petitioner wasobtained, therefore, it cannot be said that the appointment of thepetitioner is after following the due procedure of law and thus bydismissing the appeal filed by the petitioner, respondent nos.1 and 2 wp-2843-2022.odt(6)have been directed to pay six months salary to the petitioner by wayof compensation.7.I have heard learned counsel for the petitioner, learnedcounsel for respondent nos.1, 2 and 4 and learned counsel forrespondent no.3. The only point which needs to be considered in thiswrit petition is, whether the services of the petitioner could have beenterminated on the sole ground of rejection or non-grant of approvalby the Education Officer. 8.Learned counsel for the petitioner would submit that thepetitioner has been appointed by following the due procedure of lawand selection process adopted by respondent nos.1, 2 and 4. Theappointment of the petitioner cannot be said to be illegal or invalidfor want of approval, as the submission of proposal for grant ofapproval is a matter between the management and Education Officerand the grant of approval is only for the purpose of release of salaryand nothing else. Learned counsel for the petitioner would alsosubmit that the grounds of termination of petitioner’s services is noton account of the ground as enumerated in sub-section 3 of Section 5of the Act of 1977 nor on account of any other ground, save andexcept, on the ground that the Education Officer have refused togrant approval to the appointment of the petitioner and therefore,the services of the petitioner could not have been terminated. Thelearned School Tribunal have failed to appreciate the said aspect. wp-2843-2022.odt(7)Learned counsel for the petitioner would also place reliance on thejudgment of this Court in the case of Namdeo Sukdeo Saptale Vs.Chairman, Kai Ramchandra Patil Shikshan Sanstha, Kunikonur andOthers1, as well as Shri Hiraji Natthurao Bangare Vs. Dyan PrasarakShikshan Mandal and Ors2, to contend that the services of thepetitioner cannot be terminated on the ground that the EducationOfficer have not approved the appointment of the petitioner and thereis no provision in the Act of 1977 for termination of services of ateacher on the ground that approval is not granted by the EducationOfficer.9.Learned counsel for respondent no.3/Education Officeron the other hand invites attention of this Court to the reply filed bythe Education Officer before the School Tribunal and moreparticularly para 3 of the reply and would submit that, as the post onwhich the petitioner was appointed had fallen vacant due to theretirement of one of the teacher, certain directions were issued forabsorption of surplus teachers and therefore, the permission could notbe granted for filling up the said post so also as the petitioner belongsto N.T. Category, in the roster, the said post seems to be not available.Therefore, he prayed that the order passed by the School Tribunal islegal and proper.12016 (3) All M.R. 82822019 (3) All M.R. 47 wp-2843-2022.odt(8)10.It is pertinent to note that the management have sent aletter seeking permission to fill up the post on account of retirementof one Smt. Usha More vide letter dated 14.08.2012 to the respondentno.3/Education Officer. However, the respondent no.3/EducationOfficer have neither rejected the said permission nor taken anydecision whatsoever and it is not the case of the Education Officereither before the School Tribunal or before this Court that anydecision has been taken on the said letter dated 14.08.2012 sent byrespondent nos.1, 2 and 4 seeking prior permission to fill up the poston which the petitioner has been appointed. On the contrary, it isonly when the proposal seeking approval to the appointment of thepetitioner was sent to the respondent no.3/Education Officer on15.10.2012 that the respondent no.3/Education Officer have issued acommunication dated 07.09.2016 thereby refusing to grant approvaland till then, he has not taken any decision on the permission soughtby the management and therefore, the management was left with noother alternative but to advertise the post and appoint the petitionerpursuant to the said advertisement. The Education Officer nowcannot take a stand as sought to be taken before the School Tribunalas well as before this Court when the order refusing to grant approvalis not on any of the ground as sought to be raised in its reply for thefirst time. Therefore, it cannot be said that the appointment of the wp-2843-2022.odt(9)petitioner is dehors the provisions of Section 5 sub-section (2) of theAct of 1977. 11.From the submissions advanced by the learned counselfor the petitioner, learned counsel for respondent nos.1, 2 and 4 andlearned counsel for respondent no.3/Education Officer, the only issuethat needs to be considered in this writ petition is, whether theservices of the petitioner can be terminated on account of non-grantof approval to the appointment of the petitioner by the EducationOfficer. In the judgment of Namdeo Sukdeo Saptale (supra), thisCourt in para 13 of the said judgment have observed that the onlyground for termination of services of the petitioner in that case wasthat the Education Officer had not approved the appointment of thepetitioner. This Court have also further observed that there is noprovision in the Act of 1977 for termination of services of the teacheron the ground that approval is not granted by the Education Officerand thus in the said case, this Court have held that services of thepetitioner could not have been terminated on that ground. This Courtin the said judgment have also considered the submissions of theState that approval could not be granted by the Education Officer,since the management had not obtained prior approval of theEducation Officer before issuance of any advertisement, however thesaid contention has been turned down by this Court as the same couldnot have been agitated for the first time, as the said was not the wp-2843-2022.odt(10)ground while refusing to grant approval to the appointment of thesaid petitioner and thus, this Court in the case of Namdeo SukdeoSaptale (Supra) have set aside the order passed by the SchoolTribunal as well as set aside the termination order issued by themanagement by directing the Eduction Officer to grant approval tothe appointment of the petitioner. 12.Similarly, in the case of Shri Hiraji Natthurao Bangare(supra), this Court have observed that the management cannotterminate the services of petitioner merely on the ground that theEducation Officer have refused to grant approval. However, in thesaid case of Shri Hiraji Natthurao Bangare (supra), the petitioner andthe management have submitted the compromise pursis by which thepetitioner was treated as in continuous service and notwithstandingthe rejection of approval or the fate of approval, the management washeld responsible for paying regular salary to the petitioner. 13.Thus, from the view taken by this Court in the case ofNamdeo Sukdeo Saptale (supra) and Shri Hiraji Natthurao Bangare(supra), I am of the considered view that the termination order dated12.09.2016 issued by respondent nos.1, 2 and 4 on the ground ofnon-grant of approval by the respondent no.3/Education Officer isunsustainable and thus, is liable to be quashed and set aside.Similarly, the impugned judgment and order dated 14.01.2022 passedby the School Tribunal, Nashik in Appeal No.95 of 2016 filed by the
Decision
wp-2843-2022.odt(11)petitioner also deserves to be quashed and aside. I, therefore, passthe following order :ORDER(i)Writ Petition is allowed.(ii)The termination order dated 12.09.2016 issued by therespondent nos.1, 2 and 4 on the ground of non-grant of approval byRespondent No.3/Education Officer is hereby quashed and set aside.(iii)Similarly, the impugned judgment and order dated 14.01.2022passed by the learned School Tribunal, Nashik in Appeal No.95 of2016 filed by the petitioner is quashed and set aside.(iv)The respondent nos.1, 2 and 4 are directed to reinstate thepetitioner in service with further direction to the respondent nos.1, 2and 4 to submit a proposal for grant of approval to the service ofpetitioner. (v)It is further directed that the Respondent No.3/EducationOfficer shall decide the said proposal for grant of approval to theservice of petitioner within a period of eight weeks from the date onwhich the respondent nos.1, 2 and 4 submits the proposal afterreinstatement of the petitioner.(vi)The Respondent No.3/Education Officer shall not reject theproposal for grant of approval on the ground on which it was rejectedearlier by communication dated 07.09.2016.(vii)With these directions, writ petition is disposed of. wp-2843-2022.odt(12)(viii)Rule is made absolute in aforesaid terms.(ABASAHEB D. SHINDE, J.)Mujaheed//