SARASWATI SHIKSHAN MANDAL PANDARE and ANR.versusSHRI SHINDE SUNIL TUKARAM and ORS.

                                                                               WP-3901-2001 C3.doc



                                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
           Digitally
           signed by                    CIVIL APPELLATE JURISDICTION
           HUSENBASHA
HUSENBASHA RAHAMAN
RAHAMAN    NADAF
NADAF      Date:
           2026.10.08
           20:26:25
                                          WRIT PETITION NO. 3901 OF 2001
           +0530



                        1. Saraswati Shikshan Mandal           )
                        Pandare, Tal/Baramati,                 )
                        District : Pune.                       )
                                                               )
                        2. Head Master,                        )
                        N.M.V. and Jr. College,                )
                        Pandare Pune.                          )              ...Petitioners
                                    Versus
                        1. Shinde Sunil Tukaram               )
                        Age: 27 Yrs, Occ: Service             )
                        Residing at and Post, C/o             )
                                                              )
                        Professor Jaiprakash Bile,
                                                              )
                        Krishnai, Vidyanagar Karmala Solapur. )

                        2. Deputy Director of Education        )
                                                               )
                        17 Dr. Ambedkar Road, Camp.
                                                               )
                        Pune 411 015.
                                                               )
                        3. Education Officer (Sec.)            )
                        Zilla Parishad Pune.                   )              ...Respondents


                                                        ****
                        Mr. Shekhar Jagtap a/w Ms. Sairuchita Chowdhary i/b J. Shekhar
                        Associates for the Petitioners.
                        Ms. Bhagyashri R. Mangale for Respondent No.1.
                        Ms. Sulbha D. Chipade, AGP for Respondent Nos. 2 & 3/State.
                                                        ****
                                                            CORAM : M.M. SATHAYE, J.
                                                               DATE    :   7th OCTOBER, 2026
                        JUDGMENT. :

                        1.       The Petitioners (Management and Junior College) are
                        challenging the judgment and order dated 26.04.2001 passed by the
                        Presiding Officer, School Tribunal, Pune Region, Pune ('the Tribunal' for


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short) in Appeal No. 65 of 1998. By the said impugned order, appeal
filed by the Respondent No.1 challenging termination of his services on
11.06.1998, is allowed, directing to the Petitioners to reinstate him in
services as Assistant Teacher w.e.f. 11.06.1998, with full backwages. A
recommendation was made to State Government that backwages
directed to be paid to Respondent No.1 may be deducted from grant-in-
aid payable to the Management and paid directly to the employee.

                                  BACKGROUND

2.        The Respondent No.1 filed appeal under Section 9 of the the
Maharashtra Employees of Private Schools (Conditions of Service)
Regulation Act, 1977 and Rules of 1981 made thereunder ('said Act and
said Rules' for short), contending inter alia as under:

2.1.      That Respondent No.1 came to be appointed as Assistant
Teacher under appointment order dated 07.06.1997, in clear and open
vacancy. That appointment was on probation for a period of 2 academic
years.

2.2.     That his appointment was approved by the concerned education
authority under letter dated 11.12.1997. That his work and behaviour
were satisfactory. However, at the commencement of academic year
1998-99, Respondent No.1 was restrained from signing on the muster
roll. Therefore, on 08.06.1998, he gave application to the management
requesting to allow him to sign on the muster roll and work in the
school as usual.

2.3.     That on the next day (09.06.1998) again Respondent No. 1
requested the management similarly, however, the headmaster did not
permit him and ultimately restrained him from signing muster roll and
from teaching in the classes. That the said action amounts to otherwise


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termination which is illegal.

3.        The Petitioner No.1/Management resisted the appeal by filing
reply contending inter alia as under:

3.1.      It was denied that appointment of Respondent No.1 was clear
and open vacancy. It was denied that he appointed was on probation.

3.2.     It was contended that assuming without admitting that then in-
charge management (group managing affairs of the institution) had
issued appointment order dated 07.06.1997, the same was illegal and
void ab initio. It was specifically contented in the written statement that
the school in question is 100% grant-in-aid school and therefore, was
bound to consider applicable rules and regulations including sanction of
divisions, reservation policy, availability of surplus staff with the
Education Authority. It was specifically contended that an additional
division of 10th standard was sanctioned vide letter dated 29.10.1997. It
was also specifically contended that during the relevant academic year
1997-98, the backlog in the institution was to the extent of 10 posts for
ST candidates and 1 post for SC candidate. It was also specifically
contended that the Petitioner/Management was making correspondence
for the list of surplus candidates for the last about 2 to 3 years.

3.3.     It was further specifically contended that the term of earlier
managing body (In charge of the Management) was to expire and it is
possible that an attempt to favor Respondent No. 1 was made. It is
specifically contended that the proposal came to be submitted to
education authority on 10.12.1997 and surprisingly the approval is
issued next day on 11.12.1997. Specific doubt has been raised about
this approval in written statement. It is further specifically contended
that the proposal in respect of other employee dated 21.11.1997 was



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still pending. Therefore, the aspect of legality of appointment was very
much in issue.

3.4         It was contended that election of the society (Management-
Institution) was held on 28.12.1997 and after elected body took over
charge from 02.01.1998, in the meeting of management held on
25.02.1998, it was brought to the notice of new management that one
new division of 10th standard is sanctioned. Since short time of 3 to 4
months was left for completion of academic year, the management
passed resolution to continue/appoint Respondent No.1 on temporary
basis from 02.01.1998 till the end of academic year. That therefore, the
appointment of Respondent No.1 has came to an end by efflux of time
at the end of academic year 1997-98.

3.5.          It was further contended that even if Respondent No.1
conducted 2-3 classes in the new academic year, it will not change the
nature of original appointment, which was illegal. That appeal is time-
barred and there is no sufficient cause to condone the delay.

4.          The Tribunal by the impugned order has allowed appeal as
stated above. In these circumstances, the Petitioners filed the present
petition.The Petition was admitted on 07.06.2002 and the impugned
order was stayed. As such, the impugned order has been stayed for last
24 years.

5.          Recently, on 20.01.2026, the Court was informed that after
service of Respondent No.1 was terminated, he had joined another
institution. On 23.06.2026, considering that the post involved               was
100% grant-in-aid post and one of the contention of the management is
that the appointment itself is illegal. Respondent No.3- Education
Officer was directed to file reply.



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6.          The concerned Education Officer (Secondary) Zilla Parishad,
Pune filed his affidavit-in-reply dated 29.08.2026, contending inter alia
that when the appeal was heard by the Tribunal, notice was not
properly served upon the Education Authority. It is submitted that at the
relevant time, the appointment of Respondent No.1 was made without
issuing any advertisement to fill the vacancy/post. That no interview
was conducted. It is further contended that though approval was
granted by the then Education Officer, the institution has not forwarded
the pay/salary bill of Respondent No.1. That after the termination of
Respondent No.1, he has joined Yashwantrao Chavan Mahavidyalaya
Karmala District Solapur (another school). That the claim of deemed
permanency is not correct. That the appointment of Respondent No.1
was not made by following due procedure contemplated under Section
5 of the said Act and said Rules thereunder. That appointment of
Respondent No.1 was against post reserved for Scheduled Caste
candidate and therefore the same was temporary till filling of the
reserved post and till availability of SC category candidate.

                                  SUBMISSIONS

7.          Learned counsel for the Petitioner/Management submitted
that the appointment itself is made by the earlier management without
following     due   procedure,   without   advertisement        and    without
conducting interview and without considering the reservation policy.
Hence, it is illegal and cannot create any right in favour of Respondent
No.1. He submitted that the approval copy relied upon by the Petitioner
dated 11.12.1997 was an incomplete document and its second page was
not produced before the Tribunal. That the alleged approval dated
11.12.1197 seems to have been secured by the earlier management by
misleading the authority, which is supported from the fact that the


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proposal dated 10.12.1997 is approved in one day i.e. next day on
11.12.1997. He submitted that the correct / complete copy of approval
indicates that second page is not signed by the Education Officer and
the table in respect of reservation is kept blank. Therefore, the alleged
approval is highly suspicious document. He submitted that therefore
mere mention of word 'probation' or period of ‘two academic years’ in
the order of appointment cannot be considered in favour of Respondent
No.1. That the impugned order is completely based on the appointment
letter which is considered completely ignoring the case of the
management that the appointment itself is illegal. He submitted that in
the written statement filed before the tribunal, clear stand was taken
about illegality in appointment, which is not considered by the tribunal.
He further contended that contention about the alleged approval letter
dated 11.12.1997 amounting to fraud upon the Education Authority
was specifically raised however, it is ignored. He submitted that the
fraud played by Respondent No.1 and earlier management though
raised as serious defence, has been perversely not considered. He finally
submitted that since the Education Authority has now taken clear stand
in this petition, in case the Court is not inclined to consider it, the
matter may be remanded to Tribunal for fresh consideration. He relied
upon following judgments in support of his case as under:

i.      Hindustan Education Society and Anr. Vs. SK. Kaleem SK. Gulam
        Nabi and Ors. (1997) 5 SCC 152.
ii.     Janta Education Society and Anr. Vs. Prakash Babarao Shingane
        and Anr. 2010 (1) Mh.L.J. 329.
iii.    Sanjay Gandhi Shikshan Prasark Mandal, through its President
        Shri Sakharam Malhari Kakade and Anr. Vs. Deputy Director of
        Education and Anr. 2022 SCC OnLine Bom 1111.




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8.        On the other hand, learned counsel for Respondent No. 1
submitted that Respondent No. 1 was appointed against clear/open
vacancy   on   probation.   That   Respondent   No.   1   was      working
continuously from 09.06.1997 till 10.06.1998. That there was no
termination order or notice of termination bringing services to end.
That it was incumbent upon the Petitioner/Management to follow the
statutory procedure. That the appointment on probation was duly
forwarded to the Education Officer for approval and it was approved by
the concerned authority and therefore it was not open for the
Management to restrain Respondent No. 1 from signing on muster. She
submitted that the contention of the Petitioner/Management about
alleged backdoor entry is not supported by material and the
appointment was made by the Management which was sent for
approval by the Management itself. She submitted that having
permitted Respondent No. 1 to continue in service and having acted on
the appointment order, the Management cannot take contrary stand
subsequently. That in the absence of formal termination order, the
continuous service of Respondent No. 1 with approval from the
Education Officer and existence of open vacancy are material
circumstances in favour of Respondent No. 1. That the Tribunal has
passed the impugned order based on material available on record and
no interference is required. That the Petitioner/Management has not
produced any appointment order in support of its contention. That
muster roll shows signature of Respondent No. 1 upto 01.05.1998. She
submitted that Respondent No. 1 has retired from other school and
therefore, Respondent No. 1 is seeking arrears of salary from
09.06.1997 to 20.06.2004 and continuation of service from 09.06.1997.
She has relied on various documents including appointment order,
approval dated 11.12.1997, correspondence with the Management and


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sheets signed by students showing presence in the school from
08.06.1998 to 10.06.1998. She finally prayed for dismissal of the
petition. She relied on following judgments in support of her case:

i. Progressive Education Society and Anr. Vs. Rajendra and Anr.
   (Appeal (Civil) No.1318 of 2008, Judgment dated 15.02.2008,
   Hon’ble Supreme Court).
ii National Education Society’s High School and Junior College Vs.
   Lulomool Monachary 1987(2) BCR 521.
iii. Smt. Prajwala Bhatu Khalane Vs. Mahatma Phule Vidya Prasarak
     Sanstha, Deopur, Taluka and District Dhule, through its President
     and Ors. (Writ Petition No. 6196 of 2015 with connected two
     petitions, Judgment pronounced on 31.08.2016, Bombay High
     Court, Aurangabad Bench).
iv. Sachin s/o Suryakant Landage Vs. The President, Shahu Maharaj
    Shikshan Sanstha, Tuljapur, Tal. Tuljapur, Dist. Osmanabad and Ors.
    (Writ Petition No.1519 of 2019, Judgment pronounced on
    20.04.2022, Bombay High Court, Aurangabad Bench.).



                            REASONS AND CONCLUSION

9.          I have considered the rival submissions and perused the
record.

10.         Considering the long time lapse during pendency of the
petition and since the impugned order is very old which is stayed for
last 24 years, I do not find it appropriate to remand the matter to the
Tribunal for any reason. Therefore, I am considering the stand taken by
the Education Authority by filing affidavit-in-reply in the present
petition.

11.         At the outset, it is necessary to note that there is nothing on
record to show that appointment of Respondent No. 1 was made after
following the procedure of issuing advertisement and conducting


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interview. Respondent No. 1 has only relied on order of appointment
dated   07.06.1997     signed    by    the     then    president      of       the
Petitioner/institution. This appointment order states that Respondent
No. 1 was appointed on probation for the year 1997-98 and 1998-99.
The Petitioner/Management has taken clear stand in the written
statement    before   the   Tribunal    that     the    election      of       the
Petitioner/institution took place in December 1997 and the new
managing body took the charge in January 1998 when it was found
that the appointment of Respondent No. 1 was done by the then
president of the earlier Management without following any procedure
and in complete disregard to the reservation policy, without considering
the aspect of backlog, student strength and permissible posts. In view of
such clear stand taken by the Petitioner/Management, it was necessary
for the Tribunal to consider the aspect of legality of appointment letter
dated 07.06.1997.

12.      The Petitioner/Management has seriously challenged the
order of approval dated 11.12.1997 which is heavily relied upon by
Respondent No. 1. Perusal of this approval order indicates that it is
given on next day of proposal. Proposal is made on 10.12.1997 and
approval is granted on 11.12.1997. It means that the concerned
Education Officer who signed on said approval has processed the
approval in one day. The unusual swiftness with which the approval is
given to appointment of Respondent No. 1 clearly supports the case of
the Petitioner/Management that the said approval was obtained by
misleading the concerned Education Officer or for some other reason
which is not justified either by learned AGP or learned counsel for
Respondent No. 1.

13.      It is important to note that in affidavit-in-reply filed in this


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petition by the education authority, clear stand is taken that
Respondent No. 1 was appointed without any advertisement, without
taking interview and against the post reserved for scheduled caste
candidate and it was made till filling of post by candidate belonging to
SC category. In the teeth of this clear stand, it is necessary to consider
whether Respondent No. 1 was really appointed by following necessary
procedure. The Tribunal has not considered this aspect at all, though
defence was raised by Petitioner/Management.

14.         Considering that the post on which Respondent No. 1 was
appointed was reserved for SC category, it cannot be said that the
appointment was against clear vacancy. Therefore, even if the
appointment letter mentions probation, Respondent No. 1 cannot claim
deemed permanency. In this regard, the judgment of Janata Education
Society       (Supra)   clearly    supports     the    case        of         the
Petitioner/Management. In the said judgment, learned Single Judge of
this Court, while considering the appointment on probation, has held
that a teacher cannot be appointed on probation unless there is clear
vacancy. In the recent judgment of this court in Sanjay Gandhi
Shikshan Prasarak Mandal (Supra), it is held that the requirement of
issuing advertisement even for making appointment in open category is
to ensure that every eligible person is made aware of the vacancy
available and it is bare minimum requirement of the concept of
equality.

15.         When the appointment itself is found to be made without
following due procedure and disregarding the reservation policy as well
as without issuing advertisement or conducting interview, it is not
possible to sustain the impugned order which proceeds on the sole
basis that appointment order appoints Respondent No.1 on probation


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for 2 years.

16.      It is material to note that second page of the approval letter
dated 11.12.1997 which is heavily relied upon by Respondent No. 1,
shows that the table giving details about reserved post is completely
blank, which means that the so-called approval was granted without
considering the reservation policy.

17.      The documents relied upon by Respondent No. 1 in the form
of various sheets signed by students and teaching/non-teaching staff
indicating that from 08.06.1998 till 10.06.1998, Respondent No. 1 tried
to attend the school and take classes, will not make the appointment
legal. The defect in the appointment due to not following procedure
and not considering the reservation, cannot be cured by such methods
adopted by Respondent No. 1.

18.      Perusal of the impugned order indicates that the Tribunal has
only proceeded on the basis of appointment order dated 07.06.1997
mentioning probation for 2 years. The Petitioner/Management has
produced resolution dated 25.02.1998 passed in the meeting of new
Management. The Tribunal was conscious of the fact that the
Management has changed in December 1997 and the new body took
charge of the Management on 02.01.1998. The Tribunal was also aware
of the submission that as per resolution of the new Management,
Respondent No. 1 was permitted to continue only for academic year
1997-98. The Tribunal has held that the resolution does not indicate
any reason why the appointment was only for academic year 1997-98,
completely losing sight of the fact that the legality of the appointment
itself was seriously challenged by the Petitioner/Management. The
Tribunal has then considered approval dated 13.11.1997 giving
approval to divisions in the school indicating that there was increase in

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divisions for academic year 1997-98. The Tribunal therefore ought to
have appreciated that appointment order relied by Respondent No.1 is
of June 1997 which is prior to increase in divisions. The Tribunal has
held that though according to the Petitioner/Management, the
appointment was against reserved vacancy, there is no material on
record to indicate so. In this respect, it is important to note that the
approval order dated 11.12.1997 was produced before the Tribunal.
Said order shows that the chart of reservation at the end of the
approval order is kept blank and it is apparently given within one day
of its proposal. This aspect ought to have been considered by the
Tribunal. The Tribunal was not justified in holding that the
appointment is against permanent vacancy, especially when the
impugned order itself records that the additional division was
sanctioned increasing staff strength in November 1997 i.e. after
appointment order of June 1997.

19.      Reliance placed by the Tribunal on the resolution of new
Management dated 25.02.1998 for considering legality of appointment
of Respondent No. 1, cannot be justified and sustained because the
genesis of Respondent No. 1's claim lies in the appointment order dated
07.06.1997 and it ought to have been verified whether this
appointment is legal or not.

20.      The Tribunal could not have held that the appointment of
Respondent No. 1 w.e.f. 02.01.1998 is on probation for the simple
reason that the new Management has not issued any appointment letter
and the appointment letter relied upon by Respondent No. 1 was issued
by the President of the earlier Management without following due
procedure.

21.      In the aforesaid facts and circumstances, when it was found by

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the new Management that the appointment itself was illegal at the
hands of earlier Management, then it was justified, within the same
academic year and in a short span of about 6 months, to restrict
services of Respondent No. 1 till end of ongoing academic year (1997-
89). No fault can be found with the stand taken by the new
Management that Respondent No. 1 could not continue after the
academic year 1997-98.

22.         So far as reliance placed on judgment of Sachin s/o Suryakant
Landage (Supra) is concerned, it is important to note that in the said
judgment, learned Single Judge of this Court came to the conclusion
that the Tribunal was not justified in entering into arena of legality of
appointment and it was not an issue in appeal.

           However, in the facts of the present case at hand, considering
the     specific   defence   raised   in   the   written   statement      of      the
Petitioner/Management, the legality of appointment of Respondent No.
1 was very much an issue for consideration which has not been
considered by the Tribunal. Therefore, the said judgment will not help
Respondent No. 1.

23.         So far as judgments in Progressive Education Society (Supra)
and Smt. Prajwala Bhatu Khalane (Supra) relied by Respondent No.1
are concerned, both the judgments dealt with the aspect of termination
of service of ‘probationer’.

           In the present case, the appointment as a probationer itself is
found to be illegal, in as much as, there was no clear vacancy and no
procedure was followed. It has come on record that the appointment
was made against post reserved for SC category and therefore, the
reservation policy was also not complied with. Therefore, mere use of



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word ‘probation’ in the appointment order will not make Respondent
No. 1 probationer to claim protection of strict adherence to applicable
Rules for termination of a probationer.

24.      So far as the Judgment of National Education Society’s High
School and Junior College Vs. Lulomool Monachary (Supra) is
concerned, in the said case, there was vacancy created by exit of the
permanent employee and therefore the new appointee filling such
vacancy was presumed to be on probation. In that context, learned
Single Judge of this Court held that new appointee cannot be treated as
temporary employee.

          The facts of the present case at hand are completely
distinguishable, because in the present case, there was no clear
vacancy. In fact, the post was reserved for SC candidate and neither
reservation policy nor backlog nor availability of surplus teachers was
considered. Therefore, the said Judgment will also not help Respondent
No. 1.

25.      For the reasons indicated above, the impugned order (which is
already stayed for last 24 years) cannot be sustained and it requires
interference.

26.      The petition is therefore allowed. Impugned order dated
26.04.2001 passed in Appeal No. 65 of 1998 is quashed and set aside.
Appeal No. 65 of 1998 is dismissed. Rule is made absolute in above
terms. No order as to costs.

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

                                            (M.M. SATHAYE, J.)



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