THE HEAD MASTER VARPUDKAR HIGH SCHOOL HINGOLI AND ANRversusMADHAVRAO SAKHARAM KALE AND ORS

2026:BHC-AUG:37108
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                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                 BENCH AT AURANGABAD

                              WRIT PETITION NO. 2206 OF 2007

                1.   The Head Master,
                     Varpudkar High School,
                     Wakhari, Taluka Basmat,
                     District Hingoli

                2.   The President,
                     Shri. Hatkeshwar Gramin Shikshan
                     Prasarak Mandal, Karanjala,
                     C/o. Narayana Hospital,
                     Behind B & C Rest House,
                     Basmat, Taluka Basmat,
                     District Hingoli                            ..      Petitioners
                                                                      (original respondents
                                                                          No.2 and 4)
                           Versus

                1.   Madhavrao Sakharam Kale,
                     Age 32 years, Occu. Service,
                     R/o.C/o. P. M. Swamy,
                     Bahirjinagar, Basmat,
                     Taluka Basmat, District Hingoli

                2.   Shri Hatkeshwar Gramin Shikshan
                     Prasarak Mandal Karanjala,
                     Through its Secretary
                     Shri Yellapa Tukaram Mitkar,
                     Age 36 years, Occu. Service,
                     R/o. C/o. Ahilyadevi Holkar Girls School,
                     Basmat, Taluka Basmat, District Hingoli

                3.   The Education Officer (Secondary)
                     Zilla Parishad, Hingoli                     ..      Respondents
                                                            (No.1 original appellant and
                                                                No.2 and 3 are original
                                                               respondents No.1 and 3)

                Mr. V. G. Sakolkar, Advocate for Petitioners;
                Mr. R. R. Deshpande, Advocate h/f. Ms. Priyanka R. Deshpande,
                Advocate for Respondent No.1;
                Mr. B. V. Virdhe, AGP for Respondent No.3

                                         CORAM :        SACHIN S. DESHMUKH, J.
                                         DATE       :   18-08-2026
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JUDGMENT:-



1.   The petitioners have raised a challenge to the judgment and

order dated 08.03.2007 passed by the learned Presiding Officer,

School Tribunal, Latur Region, Latur in Appeal No.86 of 2006,

allowing the appeal preferred by respondent No.1 and the

petitioners were directed to reinstate him on the post of Junior

Clerk with back wages and consequential benefits.


2.   Respondent No.1 claims to have been appointed as a Junior

Clerk in Varpudkar High School, Wakhari, Taluka Basmat, District

Hingoli, pursuant to an appointment order dated 20.06.1995, and

joined the said post on 26.06.1995 and continued to work as a

Junior Clerk thereafter. As per the respondent no. 1, when the

school was to receive grant-in-aid, the management sought to

create a record in favour of one Udhav Randale, stated to be the

brother of the President of the Trust, and that upon his

approaching the Education Officer with grievance, was served with

an order dated 04.11.2003 terminating his services retrospectively

with effect from 03.08.2003.


3.   Being    dissatisfied   with   the    same,    Respondent   no.    1,

preferred an appeal before the School Tribunal challenging the

termination. The Petitioners, on the other hand, disputed the very

appointment    of   Respondent      No.1   and     contended   that    the
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documents relied upon by him were false and fabricated, that

there was no sanctioned vacant post of Junior Clerk, that the only

sanctioned post was already occupied by another employee, and

that the alleged appointment had neither been issued by the

competent authority nor approved by the Education Officer. The

learned School Tribunal, however, accepted the case of respondent

No.1, allowed appeal and directed his reinstatement with back

wages       and   consequential   benefits.   Aggrieved   thereby,    the

petitioners have approached this Court by filing the present

petition.


4.    The learned Counsel for the Petitioners submits that the

impugned judgment is unsustainable as the learned Tribunal failed

to appreciate that Respondent No.1 was never validly appointed

against any sanctioned vacant post of Junior Clerk. It is submitted

that there was only one sanctioned post of Junior Clerk in the

school, which was already occupied by some other person, whose

appointment had been approved by the Education Officer. There

was no advertisement, no sanctioned vacant post, no valid

appointment order issued by the competent authority and no

approval of the Education Officer in respect of respondent No.1.


5.    The learned counsel for the petitioners further submits that

the documents relied upon by Respondent No.1 were disputed as

false and fabricated, yet the learned Tribunal failed to properly
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consider the objections raised by the Petitioners and erroneously

shifted the burden upon the management. The Secretary of the

Managing Committee had no authority to issue the alleged

appointment order, in view of the resolution dated 22.10.1994

conferring the power of appointment upon the President of the

management. Mere alleged continuation in service for more than

two years could not confer deemed permanency upon Respondent

No.1 in the absence of a valid appointment against a sanctioned

permanent vacancy. Accordingly, prayed to allow the petition.


6.      The learned counsel for respondent no. 1 has supported the

order under challenge and relied upon its findings, thereby praying

to dismiss the petition.


7.      Having heard the learned counsel for the litigating sides and

perusal of the record and proceedings, the following question

arises for consideration:

     “Whether the learned School Tribunal was justified in allowing
     the appeal and directing reinstatement of Respondent No.1
     with back wages and consequential benefits?”



8.      The petitioners contend that respondent No.1 was never

validly appointed against a sanctioned vacant post of Junior Clerk

and specifically argued before the learned Tribunal that the only

sanctioned Junior Clerk post was already occupied by some other

person to which already accorded approval by the Education
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Officer, while further disputing the Secretary's authority to issue

the appointment order and noting that Respondent No.1’s

appointment for want of a sanctioned vacancy and approval.

However, the learned Tribunal principally proceeded on the basis

of the 20.06.1995 appointment order and subsequent documents

indicating respondent No.1 working as a Junior Clerk, holding that

evidence, coupled with over two years of continuous service,

granted Respondent No.1 the status of deemed permanency.


9.    In my considered opinion, the approach of the learned

Tribunal overlooks the foundational question as to whether the

initial appointment of Respondent No.1 itself satisfied the statutory

requirements governing appointment to a post in a private school.

The mere existence of an appointment order, or subsequent

documents describing a person as an employee, cannot by itself

conclude the question whether the appointment was made against

a sanctioned vacant post and by the competent authority in

accordance with the Maharashtra Employees of Private Schools

(Conditions of Service) Regulation Act, 1977 and the Rules framed

thereunder.


10.   The question of deemed permanency necessarily arises only

after the employee establishes a valid appointment falling within

the statutory scheme. Mere continuation in service for a period of

two years cannot, by itself, cure an appointment which was not
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made against a sanctioned permanent vacancy or which was

otherwise contrary to the statutory requirements. The learned

Tribunal was, therefore, required to first determine whether there

existed a sanctioned vacant post of Junior Clerk against which

respondent No.1 could have been appointed and whether the

alleged appointment was made by the competent authority in

accordance with the prescribed procedure.


11.   The legal position in this regard is no longer res integra.     In

Rayat Shikshan Sanstha and another versus Yeshwant

Dattatraya Shinde, 2009 (6) Mh.L.J. 476, this Court held that

the burden of establishing that the appointment was made on a

clear and permanent post and in accordance with the procedure

prescribed under the MEPS Act and Rules is upon the employee

claiming the benefit of such appointment. The Court interfered

with the order of the School Tribunal where the Tribunal had

inferred the existence of a clear and permanent vacancy without

sufficient material.


12.   In view of the aforesaid precedent, it was incumbent upon

the respondent no.1 to prove that appointment was against a

sanctioned permanent vacancy and whether the appointment was

made in accordance with the procedure prescribed under the MEPS

Act and Rules. The documents relied upon by respondent No.1, by

itself cannot establish that his initial appointment was made
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against a sanctioned permanent vacancy and in accordance with

the statutory procedure.


13.   Equally, the finding of deemed permanency could not have

been recorded merely because Respondent No.1 allegedly worked

for more than two years. The statutory benefit of deemed

permanency cannot be invoked without first establishing the

legality   and   nature   of   the       appointment      from   which       such

permanency is claimed. The Tribunal has, therefore, committed a

material   error   in   proceeding        to   consider    the   question      of

permanency without satisfactorily determining the legality of the

initial appointment.


14.   This Court is conscious of the fact that the jurisdiction of this

Court under Article 227 of the Constitution is supervisory and that

this Court ordinarily does not substitute its own appreciation of

evidence merely because another view is possible. The grievance

goes to the very foundation of the Tribunal's decision, namely,

whether respondent No.1 had a legally sustainable appointment

against a sanctioned vacant post in the first place. Failure to

determine a material issue which goes to the root of the relief

granted constitutes a jurisdictional error warranting interference in

exercise of supervisory jurisdiction.


15.   Once   the    finding    of    deemed       permanency        fails,    the

consequential direction of reinstatement with back wages and
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other benefits also cannot sustain. The question of legality of the

retrospective termination, which was considered by the learned

Tribunal, cannot independently confer a right of reinstatement

upon    respondent    No.1.   Moreover,   the   material   on   record

conclusively establishes that no sanctioned vacant post existed to

allow Respondent No.1 to acquire statutory permanency.

16.    In view of the aforesaid facts and circumstances, the Writ

Petition succeeds and is allowed in terms of prayer clause “B”.

17.    The judgment and order dated 08.03.2007 passed by the

learned Presiding Officer, School Tribunal, Latur Region, Latur in

Appeal No.86 of 2006 is quashed and set aside.

18.    There shall be no order as to costs.

19.    Rule made absolute, accordingly.




                                  [SACHIN S. DESHMUKH]
                                          JUDGE



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