SHITAL LAXMAN KAMBLE (AFTER MARRIAGE SHITAL VIVEK DHANAVADE) AND ORS.versusTHE STATE OF MAHARASHTRA THR. THE SECRETARY SCHOOL EDUCATION AND SPORTS DEPT. AND ORS.

2026:BHC-KOL:8450-DB

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                              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                       CIRCUIT BENCH AT KOLHAPUR
                                        CIVIL APPELLATE JURISDICTION
                                     WRIT PETITION NO. 2512 OF 2026

               Mallikarjun Basaningappa Madgyal (After Adoption            ...Petitioners
               Mallikarjun Gurappa Madgyal) And Ors.
                         Versus
               The State Of Maharashtra Thr. Secretary School              ...Respondents
               Education And Sports Dept. And Ors.
                                                 WITH
                                     WRIT PETITION NO. 2498 OF 2026

               Shital Laxman Kamble (After Marriage Shital Vivek           ...Petitioners
               Dhanavade) And Ors.
                         Versus
               The State Of Maharashtra Thr. Secretary School              ...Respondents
               Education And Sports Dept. And Ors.
                                           ——————
               Mr. Prashant Bhavake a/w Adv. Shivaa Navanne, for the Petitioner.
               Ms. Tejas Kapre, AGP for the Respondent-State.
                                                 ——————
                                                   Coram :     SHARMILA U. DESHMUKH &
                                                               NEERAJ P. DHOTE, JJ.
                                                    Date     : SEPTEMBER 02, 2026
               P. C. :

               1.        As common issues were raised, both the Petitions, with consent,

               were heard together and are being disposed of by this common

               judgment.

               2.        By this Petition, the challenge is to the order dated 1 st September,

               2025, by which the approval to the Petitioner's appointment in the

               minority institution came to be rejected. The case pleaded in the

               Petition is that due to transfer and promotion of an assistant teacher to


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the post of headmaster from Petitioner No. 3-Secondary School to

another school run by Petitioner No. 2-Educational Institution on 31 st

August, 2018, a vacancy was created for the post of Shikshan Sevak. The

Petitioner No. 2 published an advertisement in the daily newspaper

Satyadoot dated 15th June, 2019, inviting application for recruitment to

the post of Shikshan Sevak, to which the Petitioner No. 1 applied and

was selected by the management. The managing committee passed a

resolution in the meeting held on 30th June, 2019, appointing the

Petitioner No. 1 on the aided post of Shikshan Sevak, and appointment

order of the same date was issued. After the appointment, the

headmaster of Petitioner No. 3-school submitted a proposal on 7 th

November, 2023, which has been rejected by the impugned order.

Hence, the present Petition.

3.      Mr. Bhavake, learned counsel for the Petitioner would submit that

the rejection has taken place on two grounds, firstly, that no permission

for advertisement was taken, and secondly, that it was not verified

whether there is any surplus teacher for absorption, before the

Petitioner was appointed. He would further submit that as it is not

disputed that Petitioner Nos. 2 and 3 are minority institutions, the

settled position in law is that sending of surplus teacher for being

accommodated in the minority institution and mandate requiring the

management of minority institution to absorb such teacher has been


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held to be violative of the rights guaranteed to the minority institutions

under Article 30(1) of the Constitution of India. He submits that

therefore, the ground of the non-absorption of the surplus teacher is

unsustainable. As regards the absence of any permission before issuing

advertisement is concerned, he would place reliance on the decision of

Hon’ble Division Bench of this Court in the case of Parbhani Education

Society vs State of Maharashtra And Another1, and would point out

that identical submissions were raised as regards the permission not

being obtained in respect of the minority institution, which has been

considered by the Hon'ble Division Bench, and as the settled position

was that the absorption of the surplus teacher in the minority

institution is not applicable, the said submission was not considered. He

submits that in the present case, for the purpose of appointing the

Petitioner, the advertisement was duly issued and the provisions of

Maharashtra Employees of Private Schools (Conditions of Service)

Regulation Act, 1977 (for short “MEPS Act”) and the Maharashtra

Employees of Private Schools (Conditions of Service) Rules, 1981(for

short “MEPS Rules”) do not prescribe that permission is required to be

taken      before      issuance       of    the      advertisement,         and   therefore,

appointment is in accordance with law.

4.       Per contra, learned AGP would submit that under Section 3 of the

1    WP No. 3707 of 2013 decided on 02/09/2013 by Aurangabad High Court


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MEPS Act, the provisions of the Act are not applicable only to

headmaster of a minority school, and other persons not exceeding three

who are employed in such schools, and whose names are notified. She

would further submit that under Section 4 of the MEPS Act, the State

Government is empowered to make rules providing for the minimum

qualifications for recruitment, including its procedure, and in present

case, by virtue of Government Resolution (“GR”) dated 6th February,

2012, the procedure has been prescribed of taking prior approval

before issuance of the advertisement. She would further submit that

under the proviso to Section 5 of the MEPS Act, the minority institution

is also required to ascertain whether any suitable person is available on

the list of surplus persons for absorption, and in event of such person

being available, the management shall appoint that person in such

vacancy. She would further rely on Rule 9(2A) of MEPS Rules to support

the submission that prior permission of the Education Officer is

required before the vacancies are advertised.

5.      We have considered the submissions and perused the record.

6.      The rejection of the Petitioner's approval is premised on two

grounds, firstly, non-compliance of the GR dated 6th February, 2012 for

not taking prior permission for issuance of advertisement, and secondly

on the ground of non-verification of availability of surplus teacher

before appointing the Petitioner. Dealing firstly with the second


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ground, which has been raised as regards the absorption of the surplus

teacher, the said issue is no longer res integra and has been settled by

various decisions of this Court. In the case of Momin Education Society

And Another vs Education Officer (Primary), Zilla Parishad, Nanded

And Others2, this Court held in paragraph 13 and 14 as under :

       “13. Considering the law laid down by the Supreme Court in the judgments
       cited supra, it is clear that the law which interferes with a minority's choice
       of qualified teachers or its disciplinary control over teachers and other
       members of the staff of the institution would be void as being violative of
       Article 30(1). It is, of course, permissible for the State and its educational
       authorities to prescribe the qualifications of teachers, but once the teachers
       possessing the requisite qualifications are selected by the minorities for their
       educational institutions, the State would have no right to veto the selection
       of those teachers. The right to have the teaching conducted by teachers
       appointed by the management after an overall assessment of their outlook
       and philosophy is perhaps the most important facet of the right to
       administer an educational institution. So long as the persons chosen have
       the qualifications prescribed by the University, the choice must be left to the
       management and this is facet of fundamental right of the minorities to
       administer the educational institutions established by them. It is made clear
       by the judgments of the Supreme Court, cited above, that making
       appointment of teacher is a part of regular administration and management
       of the educational institution and, therefore, minority institutions have right
       to appoint a teacher selected and chosen by them and nobody can force
       upon the minority institutions to appoint a particular person, who is not
       selected by it as a teacher.

       14. The directions issued by the Grievance Committee to the Educational
       Officer in respect of sending surplus teachers for being accommodated by
       the minority institution and mandate requiring the managements of
       minority institutions to absorb such teachers and prescription of
       consequences for breach of the directives issued by the Grievance
       Committee, is beyond the scope of interference in view of the rights
       guaranteed to the minority institutions under Article 30(1) of the
       Constitution.”

7.       The same view has been taken by the Hon'ble Division Bench in

the case of Canossa Society, Canossa Convent Mahakali Caves Road

And       Another      vs    Commissioner,         Social     Welfare,       Directorate,

2    2012(6) Mh.L.J]


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Government of Maharashtra And Others3. The position in law is settled

that the mandate of sending surplus teacher for being accommodated

by the minority institution, which is required to absorb such teacher is

violative of rights guaranteed to the minority institution under Article

30(1) of the Constitution of India.

8.      The Hon'ble Apex Court in various decisions have made it clear

that the law interfering with the minority institutions choice of qualified

teacher or its disciplinary control over teachers and other members of

the staff of the institution would be void as being violative of Article

30(1). The rights which are conferred upon the minority institution by

virtue of Article 30(1) of the Constitution of India have therefore been

preserved by the judicial pronouncements of the Hon'ble Apex Court as

well as by various decisions of this Court. In view of the settled position

in law, the rejection of the Petitioner's appointment on the ground of

non-absorption of the surplus teacher is clearly unsustainable.

9.      Dealing with the first ground as regards the prior permission for

advertisement not being taken, the provisions of Rule 9 of MEPS Rules

provides for appointment of the staff and Sub-Rule 2A of Rule 9

provides that the management of the private school shall advertise the

vacancies. The Rules do not provide that prior permission of the

Education Officer is required to be taken before the advertisement is

3    2014 SCC OnLine Bom 536


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issued. In the present case, there is no allegation that the advertisement

has not been issued, and the rejection is on the ground that the prior

permission of the Education Officer has not been taken. Though

reliance is sought to be placed on Section 4 of the MEPS Act by learned

AGP in order to contend that the State Government is empowered to

frame Rules, the said submission overlooks Section 16 of the MEPS Act,

which provides the procedure for framing of Rules in exercise of powers

under the MEPS Act.

10.     Section 16 provides that the State Government, may by

notification in official gazette make Rules for carrying out the purposes

of the Act, and sub-section 2 of Section 16 provides that in particular

and without prejudice to the generality of the powers, the Rules may

provide for minimum qualification of recruitment of employees of

private school, including its procedure, which is the expression used in

Section 4 of the MEPS Act. It is in exercise of powers conferred by

Section 16 of the MEPS Act that the MEPS Rules have been framed and

Rule 9 of the said Rule does not provide for prior permission of the

Education Officer before issuance of advertisement.

The Government circular cannot take place of delegated legislation and

cannot override the provisions of the Act. The whole purpose of

obtaining prior permission before issuance of the advertisement from

the Education Officer is in order to ensure that the management


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absorbs surplus teacher before making appointment to a vacant post or

carrying out fresh recruitment. In the present case, as the settled

position in law is that absorption of surplus teacher is not a mandate

applicable to the minority institutions in view of Article 30(1) of the

Constitution of India, the requirement, even if imposed by the

government      circular,   of   seeking    prior   permission   is   clearly

unsustainable. The government circular of 6th February, 2012 cannot

override the provisions of the Act and Rules and the well settled judicial

pronouncements of this Court.

11.     In light of the above discussion, the impugned order dated 1 st

September, 2025 is clearly unsustainable and is hereby quashed and set

aside. The Education Officer is directed to grant approval to the

Petitioner's appointment within a period of two weeks from today.

Respondent No. 4, Deputy Director of Education, to include the name of

Petitioner in Shalarth Pranali and issue Shalarth ID within a period of

two weeks thereafter. As the appointment is of the year 2019 and the

proposal is submitted in the year 2023, the arrears of grant-in-aid salary,

if any, shall be released from 2023 within a period of three weeks

thereafter.




 [NEERAJ P. DHOTE, J.]                      [SHARMILA U. DESHMUKH, J.]




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