BHODANI SHIKSHAN PRASARAK MANDAL, THROUGH CHAIRMAN, TANAJI SADABA HANGE AND ORSversusSHRI. TANAJI MADHAV GHARGE AND ORS

                                                                          10-WP-10289-2011 C2.doc




                                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
           Digitally signed
           by
           HUSENBASHA                           CIVIL APPELLATE JURISDICTION
HUSENBASHA RAHAMAN
RAHAMAN    NADAF
NADAF      Date:
           2026.10.01
           17:26:56
           +0530
                                               WRIT PETITION NO.10289 OF 2011

                              1. Bhodani Shikshan Prasarak Mandal)
                                 Through its Chairman,          )
                                 Tanaji Sadaba Hange,           )
                                 having its address at Bhodani, )
                                 Taluka Indapur, District, Pune )

                              2. Shreeram Vidyalaya, Bhodani.        )
                                 having its address at Bhodani,      )
                                 Taluka Indapur, District, Pune.     )    ...Petitioners

                                      Versus

                              1. Tanaji Madhav Gharge,               )
                                 resident of At & Post Khorochi,     )
                                 Taluka Indapur, District Pune.      )

                              2. The Education Officer (Secondary))
                                 Zilla Parishad, Pune.            )

                              3. The Dy. Director of Education,      )
                                 Pune Region, Pune.                  )

                              4. The State of Maharashtra,           )
                                 (Writ to be served to the Secretary )
                                 Govt. of Maharashtra,               )
                                 School Eduction Department,         )
                                 Mantralaya, Mumbai-400 032.         )    ...Respondents

                                                              ****
                              Ms. Kumud A. Bhatia for the Petitioners.
                              Mr. Rahul S. Kadam for the Respondent No.1.
                              Mr. A. I. Patel, Addl. GP a/w Ms. V .R. Raje, AGP for the
                              State/Respondent Nos. 2 to 4.
                                                              ****



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                                    CORAM : M.M. SATHAYE, J.
                                    DATE     : 30th SEPTEMBER, 2026
ORAL JUDGMENT :

1.      The Petitioners (Management and School) have filed this
petition under Articles 226 and 227 of the Constitution of India,
taking exception to the order dated 21.10.2011 passed by Presiding
Officer, School Tribunal, Pune Region, Pune (‘the Tribunal’ for short)
in Appeal No. 9 of 2011. By the said impugned order, the appeal filed
by Respondent No. 1 is partly allowed, declaring otherwise
termination of Respondent No. 1 from the post of Headmaster bad in
law, thereby quashing it. The Tribunal has granted Respondent No. 1
continuation in service; however, the period from 15.06.2009 to
19.05.2010 was treated as extraordinary leave without pay and the
Petitioner/Management was directed to pay arrears of salary and
back-wages from 19.05.2010 till reinstatement.

2.      Respondent No. 1 filed appeal under Section 9 of the the
Maharashtra Employees of Private Schools (Conditions of Service)
Regulation Act, 1977 contending inter alia as under. That he was
appointed as Assistant Teacher on 19.06.1991. That he was promoted
as Headmaster in 1996. That after a long service of more than 18
years, in the year 2009, the Petitioner/Management alleged
misconduct and Respondent No. 1 was made to sign resignation
letter dated 16.03.2009 under force. That before the resignation was
accepted by the Petitioner/Management on 14.06.2009, Respondent
No.1 had issued a letter dated 12.05.2009 requesting the
Management not to accept the resignation but the said letter was


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refused and despite such pending request (withdrawing the
resignation) the Petitioner/Management accepted the resignation. He
contended that the resignation letter itself was given under force.

3.      The Petitioner/Management disputed that the withdrawal of
resignation      was      received   by       it.     According       to      the
Petitioner/Management, the letter dated 12.05.2009 has returned
unclaimed and therefore they had no knowledge about alleged
withdrawal of resignation. According to Management, the theory of
withdrawal of resignation is an afterthought and cooked up story.

4.      The Tribunal on appreciation of evidence has allowed the
appeal     as    stated     above.   In       these    circumstances,         the
Petitioner/Management filed the present petition, which was
admitted on 13.01.2012 and initially the impugned order was stayed.
Record shows that subsequently, under order dated 24.02.2012 the
interim order was modified. Stay was not continued so far as order of
reinstatement is concerned; however, stay continued about payment
of back wages.

5.      It is not disputed that thereafter Respondent No.1 was
reinstated on 08.08.2012 and in due course of time, during pendency
of the petition, he has reached the age of superannuation, retired
and is also receiving pension.

6.      Therefore, the narrow question involved in this petition is
about legality of direction about back-wages from 19.05.2010 to
08.08.2012 (‘the said period’ for short).



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7.      Learned counsel for the Petitioner/Management submitted that
Respondent No. 1 had the burden to prove that he was not gainfully
employed during the said period, which is not discharged. She
submitted that in the absence of such evidence, the back-wages could
not have been directed to be paid. She relied on the judgment of
Ramesh Chand Vs. Management of Delhi Transport Corporation 2023
SCC OnLine SC 776 in support of her submission. She also submitted
that it is a small school at village and the Petitioner/Management
should not be burdened with the order of back-wages.

8.      On the other hand, learned counsel for Respondent No.1
supported the impugned order contending inter alia that direction
about back-wages would depend on the facts and circumstances of
each case and for a person like Respondent No.1 who has rendered
long service of 18 years, 3 months and 3 days, who had to face
process of execution of the impugned order, which was initially
stayed by this Court for some time, it is not probable that he would
immediately get employed gainfully. He submitted that period
involved is not very long period and therefore the order passed by the
Tribunal may not be interfered with.

9.      During hearing of the petition, a joint request was sought to be
made by learned counsel for the Petitioner/Management and
Respondent No.1/employee that the Management is ready to forward
the proposal of Respondent No.1 to the State Government for
consideration of payment during the said period. It was submitted
across the bar that the Petitioner/Management had kept the post
vacant and salary grant is not drawn.

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10.     Learned Addl. G.P. strongly opposed this request contending
inter alia that impugned order specifically directs only management
and not the State Government or education authority to bear the
burden. He submitted that if the Management has kept the post
vacant, it is an act detrimental to student education. He has relied on
following judgments, in support of his submissions.

i.      Vidya Mandir Mandal and Anr. Vs. Anil Sakharam Kamble and
        Anr. (Bombay High Court, Writ Petition No.1202 of 2022,
        dated 07.04.2026).
ii.     Educational Society, Tumsar and Ors. Vs. State of Maharashtra
        and Ors. (2016) 3 SCC 512.
iii.    Rajapur Shikshan Prasarak Mandal Ratnagiri Vs. State of
        Maharashtra & Ors. (Bombay High Court, Writ Petition No.757
        of 2016, dated 18.04.2018).
iv.     Shri Rangdas Swami Shikshan Vikas Mandal and Ors. Vs.
        Mutyal Vilas Rambhau and Ors. 2023 SCC OnLine Bom 2160.

11.     Having heard learned counsel for the parties and on going
through the record, interference is not required in the impugned
order, for following reasons.

11.1. It has come on record that the envelope in which withdrawal of
resignation was sent by Respondent No. 1 (under letter dated
12.05.2009)     was   refused   by   the   concerned   person      of    the
Petitioner/Management. The Tribunal has considered the evidence in
that regard in the form of envelope Exhibit-25/7 and the postal
endorsement clearly indicated that ‘the addressee has refused to
accept the packet’. In law, refusal amounts to good service and
therefore, this is a case where the Petitioner/Management has clearly
refused to accept a communication from an employee who was


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admittedly in dispute with the Management. Therefore, the Tribunal
has held that acceptance of resignation in subsequent meeting dated
14.06.2009 cannot be considered to the detriment of service of
Respondent No.1.

11.2. The Tribunal has considered this refusal and after considering
the long period of 18 years, 3 months and 3 days service rendered by
Respondent No. 1, has come to the conclusion that he is entitled to
the back-wages as well as reinstatement.

11.3. Since the interim relief was modified and stay to order of
reinstatement was not continued, Respondent No. 1 was reinstated
on 08.08.2012, as already indicated above.

11.4. The period for which back-wages are granted is a small period
of about 2 years and 3 months.

11.5 In Ramesh Chand (Supra), the Hon'ble Supreme Court has
clarified that initial burden is on the employee to come out with a
case that he was not gainfully employed after the order of
termination. However, it is also clarified by the Hon’ble Supreme
Court that such consideration depends on facts and circumstances of
each case.

11.6. In the present case, admittedly neither Respondent No.
1/employee has filed any affidavit stating that he was not gainfully
employed, nor the Petitioner/Management has filed any affidavit or
led evidence to show positively that he was gainfully employed.
Therefore, this consideration is in the realm of guess work in the


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dark. Considering that Respondent No. 1 (a teacher) had already
rendered a long service of 18 years, 3 months and 3 days and after
fighting a litigation in Tribunal got an order of reinstatement and
back-wages, who also got re-instated eventually with the same
Management, it is difficult to believe that such person would have got
sufficient opportunity or time at his disposal for seeking another
gainful employment during short period in between. Eventually on
08.08.2012 he was reinstated and has thereafter worked for the
school.

11.7. In such peculiar facts and circumstances, considering short
period for which Management is directed to pay back-wages, I am not
inclined to interfere.

11.8. The argument of the Petitioner/Management that the post was
kept vacant and salary grant is not drawn and one Mr. Jankar was
acting as In-charge Headmaster with singing authority only, will have
to be considered with caution. This submission would mean that the
Petitioner/Management has run the school, in the interregnum, in
under-staffed condition, which is actually detrimental to the students’
interest. In that view of the matter, such explanation and argument in
support of joint request that the proposal be considered by State
Government for bearing the burden, cannot be acceded to. The
direction under impugned order is clearly to the Management and the
State is not directed to bear the burden, hence there is no question of
considering the joint request of Management and the employee to
forward proposal to the state. In that view of the matter, there is no
need to further consider the judgments relied upon by Learned Addl.

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G.P.

12.     In the aforesaid facts and circumstances and for reasons
indicated above, there is no perversity in the impugned order and
view taken is most probable. Hence, writ petition is dismissed. Rule is
discharged. Interim relief is vacated. No order as to costs.

13.     All concerned to act on duly authenticated or digitally signed
QR verifiable copy of this order.

                                               (M.M. SATHAYE, J.)




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