Bombay High Court
PRATIBHA KALIDAS DARADEversusTHE STATE OF MAHARASHTRA AND OTHERS
- Disposal
- DISPOSED OFF
Holding
The interchange of approvals and appointments was illegal; the original approvals corresponding to each candidate’s respective selection process must stand.
Summary
The case involved two writ petitions concerning the interchange of appointment approvals between Pratibha Darade (petitioner) and Manjusha Mule (respondent no.7) by the School Management and the Education Officer of Zilla Parishad, Beed. The petitioner was originally appointed to a partially‑aided post reserved for VJNT, while respondent no.7 was appointed to an unreserved unaided post; the Education Officer later interchanged their approvals without notice or legal basis. The court examined whether the School Management could lawfully seek such an interchange and whether the Education Officer was justified in effecting it. It held that the approvals are individual and must correspond to the specific selection process, and that the interchange violated the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977. Consequently, the order of 28‑03‑2006 interchanging the approvals was quashed, the original appointments were restored, unpaid salary dues were ordered to be paid to the petitioner, and exemplary costs were imposed. The separate writ petition filed by the School Management (Writ Petition No.14300 of 2021) was dismissed as an improper attempt to challenge a reply affidavit in the earlier petition.
Issues considered
- Whether the School Management could seek interchange of approvals pertaining to Ms. Pratibha Darade and Ms. Manjusha Mule
- Whether the Education Officer (Primary), Zilla Parishad, Beed was justified in interchanging the approvals, thereby altering the appointments contrary to the selection procedures
Legislation cited
Subjects
- interchange of approvals
- appointment validity
- selection process
- private school service law
- grant‑in‑aid vs unaided posts
- reservation (VJNT)
- illegal administrative order
- salary dues
- surplus declaration
- service jurisprudence
Judgment
2026:BHC-AUG:23741-DB
W.P. Nos.5331 of 2018 and anr.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.5331 OF 2018
WITH
CIVIL APPLICATION NO.7195 OF 2023
IN
WRIT PETITION NO.5331 OF 2018
Pratibha d/o. Kalidas Darade,
Age : 34 Years, Occ. Service,
r/o. MIT, Tantra Vidya Mandir,
Primary School, Ambajogai,
Tq. Ambajogai, Dist. Beed ..Petitioner
Vs.
1. The State of Maharashtra,
Through its Secretary,
School Education Department (Primary),
Mantralaya Mumbai.
2. Education Officer (Primary),
Zilla Parishad, Beed.
3. The Education Officer (Primary),
Zilla Parishad Osmanabad.
4. Secretary,
Gramodyogik Shikshan Mandal, Aurangabad,
MIT Campus, Satara Road,
Beed Bypass, Aurangabad.
5. Head Master,
MIT Tantra Vidyamandir Primary School,
Ambajogai, Tq. Ambajogai, Dist- Beed.
6. Head Master,
Jagdale Mama Primary Vidyamandir, Washi,
Tq. Washi, Dist-Osmanabad.
2 W.P. Nos.5331 of 2018 and anr.docx
7. Smt.Manjusha Arjun Mule,
Age: 40 years,
Occu: Service as Assistant Teacher,
R/o: Kholeshwar Primary School, Ambajogai,
Tq. Ambajogai, Dist- Beed. ..Respondents
----
Dr.R.J.Godbole, Advocate for petitioners
Mrs.D.S.Jape, AGP for respondent no.1
Mr.V.M.Chate, Advocate for respondent no.2
Mr.Ramesh Naiknaware, Advocate for respondent no.3
Mr.Ajay S. Deshpande, Advocate for respondent nos.4 to 6
Mr. R.D.Thorat, advocate for Respondent no.7
----
AND
WRIT PETITION NO.14300 OF 2021
1. Gramoudyogik Shikshan Mandal,
MIT Campus, Satara Road,
Beed Bye Pass, Aurangabad,
Through its General Secretary -
Mangesh s/o. Ratanlal Sharma,
Age : 47 Years,
R/O. As above
2. M.I.T. Tantra Vidya Mandir Primary School,
Ambajogai, Dist. Beed,
Through its Head Master -
Rajabhau Venkati Maske,
Age : 49 Years,
r/o. Ambajogai, Dist. Beed ..Petitioners
Vs.
1. The Education Officer, (Primary),
Zilla Parishad, Beed.
2. The Deputy Director of Education,
Regional Office, Aurangabad
3. Smt Pratibha d/o Kalidas Darade,
Age: 37 years, Occ: Nil,
3 W.P. Nos.5331 of 2018 and anr.docx
R/o c/o Shri. P. L. Chate,
At Post Warwati, Tq. Ambajogai,
Dist. Beed Pin: 431 517 ..Respondents
----
Mr.Ajay Deshpande, Advocate for petitioners
Mr.P.D.Suryawanshi, Advocate for respondent no.1
Mrs.D.S.Jape, AGP for respondent no.2
Dr.R.J.Godbole, Advocate for respondent no.3
----
CORAM : KISHORE C. SANT &
AJIT B. KADETHANKAR, JJ.
RESERVED ON : JUNE 11, 2026
PRONOUNCED ON : JUNE 17, 2026
JUDGMENT (Per Ajit B. Kadethankar, J.) :-
1. Preface:
1.1 Both these Writ Petitions involve common issues amongst the
same parties. Petitioner in Writ Petition No.5331 of 2018
challenges act of the School Management and the Education
Officer interchanging ‘approval and appointment’ between
herself and the Respondent no.7. During the pendency of the
Writ Petition no.5331 of 2018, the School Management filed
Writ Petition No.14300 of 2021 challenging reply affidavit filed
by Education Officer in Writ Petition No.5331 of 2021. All the
stakeholders in both the Writ Petitions are before us. In view of
this, acceding to the joint requests of all the parties we heard
these petitions vide a common hearing.
4 W.P. Nos.5331 of 2018 and anr.docx
1.2 Rule. Rule made returnable forthwith in both the matters. By
consent of the parties, the Writ Petitions are heard for final
disposal. Writ Petition no.5331 of 2018 is the main matter
which involves the predominant controversy and substantive
rival contentions. The Writ Petition filed by the School
Management has no separate cause of action, and its all
contents are part of the controversy each party is arguing in
the Writ Petition No.5331 of 2018. Hence we first deal with Writ
Petition No.5331 of 2018. Writ Petition No.14300 of 2021 would
gradually come in the discussion. For the sake of convenience
and to avoid confusion, we refer the parties as per their status
in Writ Petition No.5331 of 2018
2. Subject-matter :
2.1 The Respondent no.4 conducted two separate and independent
selection processes to fill up some posts in the schools run by
it. The nature of posts, number of posts, reservation to the
post, qualification required for the post etc. everything in both
the selection processes were distinct from each other. An
unreserved unaided post of Shikshan Sevak was subject-
matter of the first Selection Procedure. By due process, the
School Management appointed Respondent no.7 on the said
post on 15-06-2005.
5 W.P. Nos.5331 of 2018 and anr.docx
2.2 Thereafter due to creation of further vacancies, the School
Management initiated another selection process. One partially
aided post of Shikshan Sevak reserved for Vimukta Jati and
Nomadic Tribes (“VJNT” for brevity) was subject-matter of the
subsequent selection process. This post was fallen vacant
because one employee Mr. Ghoti resigned from the post. Most
pertinent to note, this subject-matter post became available
after the Respondent no.7 was already appointed in earlier
selection process.
2.3 Acceding to the proposals for approval to the respective
appointments submitted by the School Management, the
concerned Education Officer rightly granted approval to
Respondent no.7 (for unreserved/General category unaided
post of Shikshan Sevak), and approval to the Petitioner (for
partially aided post of Shikshan Sevak reserved for VJNT).
2.4 Subsequently, the School Management requested the
Education Officer to interchange the approvals granted to the
Petitioner and the Respondent no.7. Without giving any notice
to the Petitioner and without assigning any reason, the
Education Officer interchanged the approvals of the Petitioner
and the Respondent no.7.
6 W.P. Nos.5331 of 2018 and anr.docx
2.5 Resultantly, the Respondent no.7 is shown to be appointed on
a post for which she had no occasion to undergo the selection
process and while vacancy to the said post was even not in
existence. Similarly, the Petitioner is shown to be appointed on
such post for which she had never applied. The interchange in
approval has deeper and sweeping effect on the terms and
conditions of both the selection processes itself including
vacancy, reservation, Grant status etc.
2.6 As such, the acts of the School Management and the
concerned Education Officer are the subject-matter of
controversy before us.
Writ Petition No. 5331 of 2018
3. Facts in brief:-
3.1 Respondent no. 4, a School Management runs two schools i.e.
the Respondent no. 5 school in Beed District, and Respondent
no.6 school in Dharashiv District.
3.2 Vide an advertisement dated 21-05-2005 published in daily
Sakal, the Respondent no.4 invited applications from the
deserving candidates to fill up 02 posts of ‘Assistant Teacher’
each one on ‘grant-in-aid’ and ‘non-grant’ basis, 04 posts of
Shikshan Sevak requiring graduation qualification, 09 posts of
7 W.P. Nos.5331 of 2018 and anr.docx
Shikshan Sevak requiring SSC, D.Ed. qualification, and 01 post
of Instructor. This process included one unreserved unaided
post of Shikshan Sevak.
3.3 Pursuant to the advertisement dated 21-05-2005, the School
Management conducted selection procedure. Respondent no.7
applied for one unreserved unaided post of Shikshan Sevak.
During selection process the selection committee found
Respondent no.7 to be deserving and qualified to be appointed
pursuant to her application. Resultantly, the School
Management appointed Respondent no.7 on one unreserved
unaided post of Shikshan Sevak (S.S.C., D.Ed.) vide an
appointment order dated 15-06-2005. The appointment
letter/order is on record.
3.4 After the Respondent no.7 was appointed on 15-06-2005, one
assistant teacher namely Mr. Jaypalsingh Ghote serving at
Respondent no.5 School resigned from his services citing his
personal reasons. He was serving on a partially aided post of
Shikshan Sevak reserved for VJNT. As such, due to resignation
of Mr. Jaypalsingh Ghoti on 16-06-2005, a vacancy of one
partially aided post of Shikshan-Sevak reserved for VJNT was
created.
8 W.P. Nos.5331 of 2018 and anr.docx
3.5 In due course of time there arose other vacancies too. Hence
the School Management then published another advertisement
on 08-07-2005 in daily Sakal thereby inviting applications from
deserving candidates to fill in, (i) Two posts of Assistant
Teachers, and (ii) Three posts of Shikshan Sevak on ‘partially
granted’ basis reserved for Scheduled Caste ( ‘SC’ for brevity),
Scheduled Tribe (‘ST’ for brevity), and ‘VJNT/OBC’ .
3.6 It is not in dispute that vacancy of the partially aided post of
Shikshan Sevak (VJNT/OBC) category was created due to
resignation of earlier employee namely Mr.Jaypalsingh Ghoti
(VJNT).
3.7 Pursuant to the advertisement dated 08-07-2005, the School
Management conducted selection procedure. The Petitioner
applied for the partially aided post of Shikshan-Sevak reserved
for VJNT, as she belongs to the said category. Selection process
was conducted. The selection committee found the Petitioner
deserving to be appointed. Hence, vide appointment order
dated 15-07-2005, the Petitioner – Ms. Pratibha Darade came
to be appointed on the subject-matter post of Shikshan Sevak
(partially granted) reserved for VJNT.
3.8 On 17-08-2005, the School Management submitted proposals
to the Education Officer (Primary), Zilla Parishad Beed
9 W.P. Nos.5331 of 2018 and anr.docx
[“Education Officer” for brevity] to seek approvals to the
appointments of the Respondent no.7 – appointed on
unreserved unaided post, and Petitioner’s appointment – on
partially grant basis (VJNT).
3.9 After scrutiny of the record, the Education Officer was pleased
to accord approval to both the appointments vide order dated
13-02-2006 pursuant to the proposals filed by the School
Management. Here, it is worth to note that although the table
annexed to the approval order is a bit incompletely filled in, it’s
an undisputed fact that the approval to Respondent no.7’s
appointment was on the unaided post; and approval to
Petitioner’s appointment was on partially aided post.
3.10 Surprisingly, on 03-03-2006 the School Management wrote to
the Education Officer thereby requesting to modify the
approvals granted to the Respondent no.7 and the Petitioner.
It was requested that approval to the Respondent no.7 be
granted for partially aided post reserved for VJNT; and approval
to Petitioner be granted for ‘un-aided post’. Inasmuch, the
status of the posts held by the Respondent no.7 and Petitioner
was sought to be exchanged by the School Management,
without assigning any reason.
10 W.P. Nos.5331 of 2018 and anr.docx
3.11 The record speaks that without applying own mind, without
giving any notice to the Petitioner and without even going into
any details, the Education Officer (Primary), Zilla Parishad Beed
directly interchanged the approvals granted to the
Respondent no.7 and the Petitioner. Respondent no.7’s
appointment came to be approved on the post on which the
Petitioner was appointed; and vice-a-versa. This is done vide
the order dated 28-03-2006 that is impugned in this Writ
Petition.
3.12 The Petitioner contends that she was unaware of the acts of
the School Management and the Education Officer about
interchanging the approvals. It is further contended that only
on a communication dated 21-07-2012 from the Education
Officer, the Petitioner learnt about wrongful approval to her
services.
3.13 Therefore, the Petitioner filed a Writ Petition no.2675 of 2015 in
this Court with multiple prayers. In nutshell, the Petitioner
sought approval to her services on the post on which she
was appointed.
3.14 During the hearing of the Petition, the petitioner was told by
the School Management that it has moved a proposal to the
Education Officer for her approval. Hence it was submitted
11 W.P. Nos.5331 of 2018 and anr.docx
that a proposal was submitted by the School Management to
the Education Officer to grant approval to the Petitioner on
partially grant basis.
3.15 Upon hearing the parties, this Court vide its order dated 25-01-
2017 directed to the Education Officer to pass appropriate
order on the proposal within a stipulated time. Taking
cognizance of the Petitioner’s grievance about non-receipt of
her salary, this Court directed the Petitioner to make a
representation to the Education Officer about her dues. It was
further directed to the Education Officer to determine quantum
of payable due salary to the Petitioner after giving an
opportunity of hearing to the School Management.
3.16 Consequently, the Petitioner too filed a detailed representation
to the Education Officer on 03-03-2017. The record shows that
the Education Officer conducted a hearing of the parties on 07-
04-2017. While concluding the hearing, vide order dated 30-
06-2017 the Education Officer observed that the Petitioner was
appointed on unaided post. He further merely observed that
the Petitioner be shifted to aided post on top priority upon
creation of any vacancy of an aided post. The School
Management was directed to initiate process to bring the
unaided divisions on aided basis.
12 W.P. Nos.5331 of 2018 and anr.docx
3.17 Feeling aggrieved by the order dated 30-06-2017 (Exh.A-page
18), the Petitioner has lodged the Writ Petition No.5331 of 2018
with following substantive prayers:
B) By an appropriate writ or order, quash and set
aside the order passed by the respondent Education
Officer dated 30.06.2017. i.e. Exhibit-A
C) By an appropriate writ or order, direct Education
Officer (Primary) Zilla Parishad, Beed to grant an
approval in favor of petitioner as against aided post
and in favor of respondent no. 7 as against unaided
post since the date of their respective appointments,
i.e., w.e.f. 15.07.2005 and 15.06.2005 respectively.
D) By an appropriate writ or order, direct
respondents to pay to the petitioner unpaid salary
from the date of initial appointment i.e.. 15.07.2005
w.e.f. 01.08.2005 till this date as per prescribed pay
scale & further be directed to pay regular salary till
disposal of this writ petition as per prescribed pay
scale.
3.18 During pendency of the Writ Petition No.5331 of 2018, the
School Management terminated Petitioner’s services on
account of reduction of number of classes. This was on the
basis of the seniority list prepared by the School Management
in respect of the teachers appointed on grant basis (including
partially grant) and non-grant basis. While services of the
Respondent no.7 were protected, the Petitioner came to be
terminated vide order dated 23-01-2021 issued by the School
13 W.P. Nos.5331 of 2018 and anr.docx
Management. Decision of the School Management came to be
effected by order dated 26-01-2021 issued by the Respondent
no.5 - School Head master.
3.19 The Petitioner challenged the termination before the School
Tribunal, Latur vide Appeal no.49 of 2022. Vide Judgment and
Order dated 08-09-2023, learned Presiding Officer of the
School Tribunal, Latur, partially allowed the appeal.
3.20 Observing that the impugned termination was in exception to
the procedure contemplated under the Maharashtra Employees
of Private Schools (Condition of Service) Rules 1981,
petitioner’s termination was set aside. She was directed to be
reinstated with continuity in service, full back wages and all
consequential benefits. Suffice to note, the Tribunal didn’t
touch the aspect of approval as the subject-matter is pending
before this Court.
3.21 Vide Writ Petition No.1757 of 2024, the Respondent no.4- the
School Management challenged the Judgment and Order
passed by the School Tribunal. The said Writ Petition is
pending without any interim order therein.
3.22 In present Writ Petition No.5331 of 2018, all the responding
parties filed their respective replies.
14 W.P. Nos.5331 of 2018 and anr.docx
3.23 The Respondent no.2 - Education Officer (Primary), Zilla
Parishad, Beed didn’t come before this court. Instead, filed
reply affidavit through the Deputy Education Officer (Primary).
On its careful scrutiny, it is apparently a half-hearted reply filed
on oath by the said authority. It is stated that the Petitioner
was appointed on unaided post of Shikshan Sevak and
approval was issued accordingly. A chart of salary payable to
an assistant teacher on regular pay scale was attached to the
reply. The Authority however sought to cast liability on the
School Management. Except this, nothing worth to note is
offered by the Education Officer (Primary), Zilla Parishad, Beed,
in the reply affidavit. In utmost irresponsible manner, the reply
affidavit is filed.
3.24 The Respondent no.3- Education Officer (Primary), Zilla
Parishad, Dharashiv (Osmanabad) submitted reply affidavit
contending that neither her office has granted any approval to
the Petitioner or the Respondent no.7 nor at the relevant time,
there was any vacancy in the Respondent no.6 as per the
record.
3.25 The Respondent no.7- Ms. Manjusha Mule also filed her reply
affidavit. She disputes maintainability of the Writ Petition on
various counts. The Respondent no.7 submits that she is not
15 W.P. Nos.5331 of 2018 and anr.docx
concerned with the grievance of the Petitioner nor the
Petitioner could raise any grievance at belated stage. It is her
submission that later, she was declared surplus and came to
be absorbed in some other school. The Respondent no.7
concludes her reply submitting that there is no cause of action
against her, and that the Petitioner ought to have approached
the appropriate authority for redressal of her grievance.
3.26 Respondent no.4 submitted that it has not committed any
illegality. It is submitted that it has accommodated both the
parties rightly. Suffice it to note, besides filing reply affidavit in
Writ Petition No.5331 of 2018, the School Management filed
Writ Petition No.14300 of 2021. We deal with the said petition
at later part of the judgment.
4. SUBMISSIONS:-
4.1 Dr. Rajendra Godbole, learned advocate for the Petitioner
produced copies of the letter dated 03-03-2006 submitted by
the School Management to the Education Officer and the
impugned order dated 28-03-2006 passed by the Respondent
no.2 interchanging the appointments itself under the garb of
interchanging the approvals. He was at pains to demonstrate
the plight of the Petitioner. Dr.Godbole, learned advocate
offered his following submissions:
16 W.P. Nos.5331 of 2018 and anr.docx
a) Respondent no.7 was appointed on an unreserved
(General Category) unaided post of Shikshan Sevak
pursuant to the selection procedure following the
advertisement dated 21-05-2005. The partially aided
post reserved for VJNT category was not included in the
said selection process.
b) The petitioner was appointed pursuant to advertisement
dated 08-07-2005 for the partially aided post of Shikshan
Sevak reserved for VJNT. The Respondent no.7 has not
participated this selection process.
c) Initially, approvals were rightly granted by the Education
Officer on 13-02-2006.
d) There is no justifiable reason for the School Management
to seek interchange in the approvals of the Petitioner and
the Respondent no.7.
e) The Education Officer (Primary), Zilla Parishad, Beed, had
no authority to accede to the request of the School
Management and to interchange the approvals of the
Petitioner and the Respondent no.7.
f) No law – no procedure provides for such interchange in
approval which in fact interchange the nature of
17 W.P. Nos.5331 of 2018 and anr.docx
appointments itself.
g) The conduct of the School Management is mala-fide.
With an object to protect the interest of Respondent no.7,
the School Management sought interchange in the
approvals.
h) The Education Officer (Primary), Zilla Parishad, Beed,
illegally exercised its power and authority to interchange
the approvals.
i) The illegalities committed by the School Management
and the Education Officer(Primary), Zilla Parishad, Beed,
resulted into extreme hardship and harassment of the
Petitioner.
j) The Writ Petition no.14300 of 2021 filed by the School
Management is not a bona fide petition. The same is
without any separate cause of action. The prayers
therein are highly objectionable. The School Management
thereby made another farcical show of protecting
interest of the Petitioner. In fact, the said Writ Petition is
to protect the interest of Respondent no.7 in Writ Petition
No.5331 of 2018. He points out that School Management
has deliberately not brought Ms.Manjusha Mule in the
picture.
18 W.P. Nos.5331 of 2018 and anr.docx
k) The interchange of approvals of the Petitioner and the
Respondent no.7 be held illegal and restoring Petitioner’s
approval dated 13-02-2006 for partially aided post of
Shikshan Sevak, consequential benefits be awarded to
the Petitioner.
4.2 Mr. Ajay Deshpande, learned advocate representing the
School Management (Respondent no.4) sought to counter
the allegations raised by the Petitioner and to justify the
stand of the School Management. Mr.Deshpande, learned
advocate submits as under:
a) The approach of the School Management is very clear
and bonafides could be seen from filing of the reply
affidavit and Writ Petition no.14300 of 2021.
b) Since the unaided post of Shikshan Sevak was open to
general categories, the Petitioner was rightly placed
on the said post.
c) The School Management had consistently been after
the Education Officers for absorption of Ms. Pratibha
Darade, and that the authorities have not discharged
their duties yet;
19 W.P. Nos.5331 of 2018 and anr.docx
d) Due to subsequent grants to the subject-matter posts,
Petitioner’s grievance is already redressed, and that it
is the responsibility of the Zilla Parishad authorities to
pay the salary to her.
e) No illegality is ever committed by the School
Management, unlike averred by the Petitioner.
f) Even if the Petitioner has undergone some hardship
due to the unexplainable circumstances occurred way
back in 2005, yet the School Management is keen to
see that petitioner too gets appropriate relief. He
submits that the School Management is after the
Education Officer to see that the petitioner is
absorbed soon.
g) Mr. Ajay Deshpande, learned advocate fairly submits
that both the Writ Petitions could be disposed of in
terms of the prayer clause ‘C’ of the Writ Petition
No.14300 of 2021, as it serves the purpose of justice
in true sense.
4.3 Interestingly, the Education Officer (Primary), Zilla Parishad
Beed is represented by different learned advocates in
20 W.P. Nos.5331 of 2018 and anr.docx
respective Writ Petitions. Mr. Vithhal Chate, learned advocate
represents the said authority in Writ Petition NO. 5331 of 2018,
while Mr. Prashant Suryawanshi, learned advocate represents
the same authority in Writ Petition No.14300 of 2021.
a) However, the stand of the said authority is identical in
both petitions.
b) Except relying upon the reply affidavits filed in both the
Writ Petitions, nothing is argued on behalf of the
Education Officer (Primary), Zilla Parishad Beed.
c) It is submitted that the record and the incidences are of
the year 2005, and hence it is difficult to gather from the
concerned authorities as to how and why the subject-
matter orders on approvals were passed.
d) It is sought to be submitted that instead of filing
rejoinder to counter Education Officer’s contentions in
the Writ Petition no.5331 of 2028, the School
Management has filed Writ Petition no.14300 of 2021 to
create confusion.
e) That, since ab initio the School Management has been
instrumental in creating the entire chaos.
4.4 Mr. Naiknaware, learned advocate for Education Officer
21 W.P. Nos.5331 of 2018 and anr.docx
(Primary), Zilla Parishad, Dharashiv (Osmanabad) submits that
his stand is clear from the reply affidavit. His authority has
neither issued original approval nor the subsequent approval.
As such, there is nothing to be responded against the
grievance of the respective parties.
4.5 Ms. Jape, learned Assistant Government Pleader submits that
there is no role of the State Authorities to respond the Writ
Petitions. However, she assists by submitting that it’s the duty
of the School Management and Respondent no.2 to explain
how appointments itself could be changed under the garb of
interchanging the approvals.
4.6 It is submitted on behalf of the Respondent no.7 that she is not
at fault on any count. That, she was well qualified to be
appointed on the subject-matter post and the approval is
rightly accorded in her name. That, during the course of time
she came to be declared surplus, and subsequently she is
absorbed in other school. The Respondent no.7 disputes
maintainability of the Writ Petition and contended that it is for
the School Management and the Education Officer to redress
the grievance of the Petitioner. That, in any case her interest
needs to be protected.
22 W.P. Nos.5331 of 2018 and anr.docx
5. Discussion and analysis:
We heard learned advocates for the respective parties at
length. We have also carefully gone through the pleadings and
documents attached to the pleadings. For adjudicating the petitions,
we find that following are the only crucial issues for discussion:
(i) “Whether the School Management could sought
interchange of approvals pertaining to Ms. Pratibha
Darade and Ms. Manjusha Mule?” and (ii) “Whether the
Education Officer (Primary), Zilla Parishad Beed is
justified in interchanging the approvals of Ms. Pratibha
Darade and Ms. Manjusha Mule which in fact results into
interchange in appointments contrary to the selection
process.”
5.1 We are of the considered view that the other factors
argued by Mr. Godbole and Mr. Deshpande, learned
advocates for the respective parties regarding
enhancement in grant, seniority, right of absorption,
sequence of absorption etc. would be relevant only upon
adjudication of the crucial issues as framed above. We
23 W.P. Nos.5331 of 2018 and anr.docx
find that answer to the framed issues have consequential
effects on the other factors argued by the learned
advocates.
5.2 It not disputed that the selection processes undertaken
by the School Management vide advertisement dated 21-
05-2005 and advertisement dated 08-07-2005 are
absolutely separate and independent selection
processes.
5.3 Each selection process is objectful as regards its
contents. The first selection process vide
advertisement dated 21-05-2005 was taken to its logical
end. Respondent no.7 Ms. Manjusha Mule was appointed
on unreserved unaided post of Shikshan Sevak pursuant
to the advertisement dated 21-05-2005.
5.4 There is no dispute about her qualification. It is also not a
case that Respondent no.7 ever challenged her own
selection or appointment on the said post. She
underwent the selection process and accordingly got
appointed. The initial proposal was therefore moved by
the School Management to the Education Officer for
approval to Respondent no.7 corresponding to her
appointment on unreserved unaided post of Shikshan
24 W.P. Nos.5331 of 2018 and anr.docx
Sevak.
5.5 The selection process initiated vide advertisement dated
08-07-2005 is apparently a separate selection process
independent from the earlier selection process dated 21-
05-2005. Vacancy to the subject-matter partially aided
post reserved for VJNT category arose only after the
earlier selection process was complete.
5.6 Petitioner applied for this post and was appointed by due
process on the partially aided post of Shikshan Sevak
reserved for VJNT category. Her educational and social
qualification is not disputed by anybody.
5.7 We find that the Respondent no.7 came to be appointed
on 15-06-2005. One Mr. Jaypalsingh Ghoti functioning on
partially aided post of Shikshan Sevak reserved for VJNT
resigned from his post on 16-06-2005. Selection process
to fill up the subject-matter partially aided post of
Shikshan Sevak reserved for VJNT itself was initiated due
to occurrence of its vacancy on account of resignation
by Mr. Ghoti.
5.8 It is not the case that Respondent no.7 participated in the
later selection process dated 08-07-2005 for partially
aided post reserved for VJNT. Both the selection
25 W.P. Nos.5331 of 2018 and anr.docx
processes were initiated by due process. As such, the
intention of the School Management in filling up the
specific posts vide separate selection process is very
clear and unambiguous.
5.9 It is not in dispute that the selection processes were
undertaken by due process and after seeking permission
from the said Education Officer. It also goes without
saying that there was no ambiguity or objection as
regards to availability of vacancies for the relevant posts
specified in each advertisement. In view of above, no
party can take exception to the aforesaid facts.
5.10 On the backdrop of the aforesaid undisputed facts, we
called upon the School Management with specific query
as to how it could interchange the appointments and
sought approval to Respondent no.7’s appointment on
partially aided post of Shikshan Sevak reserved for VJNT,
which was not part of the selection process dated 21-05-
2005 in which she was selected.
5.11 Instead of justifying the letter dated 03-03-2006 and
interchanging the appointments and approvals, it was
sought to argue on the point of grant to the schools,
reduction in the classes, the exercise undertaken by the
26 W.P. Nos.5331 of 2018 and anr.docx
School Management to pursue the Education Officer for
absorption of the Petitioner. Much emphasize has been
given on the word used as ‘Shikshan Sevak’ in the
respective orders which are part of the litigation.
However, we are not impressed with the explanations
tendered by the School Management. In our view, it is
not relevant or serving the purpose of our query.
5.12 The School Management miserably failed to demonstrate
as to how it could seek interchange of the approvals and
appointments of the Petitioner and the Respondent no.7.
We could not receive any justifiable explanation from the
side of the School Management.
5.13 We are shocked to see the contents of the letter dated
03-03-2006 wherein the School Management stated that
the Respondent no.7 was appointed on 20-05-2006 on
the partially aided post reserved for VJNT. It is further
stated that the Petitioner was appointed on the
unreserved unaided post. This is absolutely contrary to
the record as has been observed above. On the other
hand, Respondent no.7 clearly submitted that she was
appointed on 15-06-2005.
5.14 It is the responsibility of the Education Officer to verify
27 W.P. Nos.5331 of 2018 and anr.docx
the approval proposal and the appointment itself in the
light of the terms and conditions of the selection process.
An approval shall be granted only if the appointment is
done in accordance with the terms and conditions,
contents, objects and parameters prescribed in the
advertisement of selection process. Education officer
must examine vacancy, reservation- if any, social and
educational qualification of the candidate, and
participation of the candidate in the particular selection
process.
5.15 What we find is that neither the Respondent no.7
participated in the selection process conducted for the
subject-matter partially aided post of Shikshan-Sevak
reserved for VJNT; nor the Petitioner had participated in
the earlier selection process for unreserved unaided post
of Shikshan-Sevak. While the Respondent no.7 was
appointed, even vacancy to the subject-matter post was
not in existence at all.
5.16 It is the well settled principle in service jurisprudence
pertaining to private educational institutions that
approval is an effect and result of a valid appointment.
That, an approval and appointment cannot be
28 W.P. Nos.5331 of 2018 and anr.docx
segregated, and they would always correspond to each
other. That’s why it is not merely an approval, but it is
an individual approval. An appointment corresponds to a
specific and relevant selection process. There are a lot
many relevant factors behind grant of an approval. The
process starts with availability of vacancy. Then comes
the due process of selection which starts with permission
from the Education Officer, followed by issuance of
advertisement and conduct of actual selection. The law
recognizes only a valid appointment. A valid appointment
is only the one which is done in accordance with the
aforesaid procedure as is laid down in the M.E.P.S. Act
1977.
5.17 Thus, by seeking the change in approval to the
appointment of Respondent no.7, the School
Management has sought to appoint her on such post
which is created even after the date of her appointment.
This, in our view, is absolutely unexplainable,
unjustifiable and intolerable.
5.18 We have to accept the argument advanced by
Dr.Godbole, learned advocate for the Petitioner that the
concerned Education Officer (Primary), Zilla Parishad
29 W.P. Nos.5331 of 2018 and anr.docx
Beed has absolutely not applied his mind while
interchanging the approvals. We must observe that the
School Management and the concerned Education Officer
have acted illegally and most irresponsibly. The entire
principles, procedure and law pertaining to selection and
approval are not only disregarded, but those are quirkily
moulded by the School Management and the Respondent
no.2- the then Education Officer (Primary), Zilla Parishad
Beed.
5.19 Much is argued by Mr. Deshpande, Mr. Chate,
Mr. Suryawanshi, and Mr. Thorat learned advocates for
the respective parties on the point of delay in filing the
Writ Petition No.5331 of 2018. The record however
speaks that the Petitioner was consistently pursuing the
Zilla Parishad authorities in the mean period. She once
filed Writ Petition No.2675 of 2015 which was disposed
by this Court with certain directions. A hearing was also
conducted by the Zilla Parishad authorities pursuant to
directions issued by this Court and consistent follow up
by the Petitioner. Under these circumstances, we do not
accept that delay- if any, on the part of the Petitioner
would legalize the illegalities committed by the School
30 W.P. Nos.5331 of 2018 and anr.docx
Management and the concerned Education Officer. Under
exercise of our power u/a 226 of the Constitution, we
brush out such technical objection, which is advanced to
disguise the illegalities of the objectors.
5.20 We take on record the objection raised by the School
Management, the Education Officer and Respondent no.7
that the Petitioner can not raise any grievance once
having served on the unaided post for years. However,
we discard this objection for the reason that the
selections are done in accordance with the law i.e. in
accordance with the Maharashtra Employees of Private
Schools (Conditions of Service) Regulation Act 1977. All
the service conditions are governed by the Act and the
Rules thereunder. Hence, there can be no estoppel to law.
Merely because the Petitioner served on the said
unaided post for certain years shall not come in her way
to question the serious illegalities committed by the
School Management and the concerned Education Officer
taking the law and procedure in their hand.
5.21 In the circumstances, the interchange of approvals and
appointments of the Petitioner in Writ Petition No.5331 of
2018 and the Respondent no.7 therein must go, and the
31 W.P. Nos.5331 of 2018 and anr.docx
petition must succeed.
Writ Petition No.14300 of 2021
We now deal with the Writ Petition No.14300 of 2021.
5.22 The School Management has filed Writ Petition No.14300
of 2021 with following substantive prayers:-
B) The liability fastened on the petitioners by R-1 under
the Reply Affidavit at Exh. I dated 25.7.2019,
payable to R-3- Smt. Pratibha Kalidas Darade, may
kindly be quashed and set aside, being unjust and
baseless.
C) The respondent No. 1 may kindly be directed to
release salary of R-3 Smt. Pratibha Kalidas Darade
from the academic year 2008 2009, considering the
material on record, nature of appointment as well as
approval accorded thereto by R-1, as per law, to
subserve the ends of justice and to absorb R-3 in any
other school within the jurisdiction of R-1.
5.23 At the outset, we are constrained to record that filing of a
separate Writ Petition to challenge a reply affidavit of a
co-respondent filed in another Writ Petition, is absolutely
foreign to the practice and procedure. It is seen that the
School Management belatedly filed reply affidavit in Writ
Petition No.5331 of 2018. The School Management could
have offered its defense as also counter to the stand
taken by the Education Officer in Writ Petition No.5331 of
32 W.P. Nos.5331 of 2018 and anr.docx
2018 by filing re-joinder/additional reply, as the case
may be. However, the School Management instead filed
this Writ Petition.
5.24 In this petition, the main prayer is prayer clause “B”. At
prayer clause ‘B” the School Management challenged
the averments made by the Education Officer in reply
affidavit filed in Writ Petition No.5331 of 2018. This is
highly objectionable and we do not approve such
practice.
5.25 The prayer clause ‘C’ in Writ Petition no.14300 of 2021 is
nothing but an attempt to camouflage the illegalities
committed by the School Management in protecting the
interest of the Respondent no.7 in the Writ Petition
No.5331 of 2018. Worth to note, the School Management
conveniently didn’t array her in its Writ Petition no.14300
of 2021.
5.26 Instead of explaining how lawfully the School
Management could place Respondent no.7 on the
subject-matter partially aided post of VJNT on which the
Petitioner was already appointed, it has tried to show
that the School Management is acting in the interest of
33 W.P. Nos.5331 of 2018 and anr.docx
the Petitioner for her absorption. In fact, the School
Management has sought to get rid of any liability.
The Writ Petition No.14300 of 2021 in our view, is liable
to be dismissed.
6. CONCLUSION:
(a) For the reasons recorded above the Writ Petition
No.5331 of 2018 succeeds and the Writ Petition
No.14300 of 2021 stands dismissed. The issues
framed for consideration are answered in ‘negative’.
(b) We hold that “an approval is an individual approval
which must correspond to the terms and conditions
prescribed in the selection procedure in which a
candidate is appointed”; and “approval can not be
granted for such post which was not part of the
selection procedure; nor can be granted for which a
candidate didn’t undergo its selection procedure”.
(c) Due to the illegal interchange of the approvals and
appointments, a number of unusual consequences
have taken place. Initially, the petitioner in Writ
Petition No.5331 of 2018 was declared surplus and
also was refused to be absorbed citing the reason of
34 W.P. Nos.5331 of 2018 and anr.docx
her being appointed on unaided post. On the other
hand, the Respondent no.7 in Writ Petition No.5331 of
2018 not only enjoyed salary from the Zilla Parishad
proportionate to the percentage of grant in aid, but
also got absorbed conveniently on being declared
surplus. This all needs to be set right in view of our
observations and the findings.
(d) The act and conduct of the School Management, as
observed above, is highly abominable. Giving utter
disregard to the law and procedure, it not only got the
approvals interchanged but practically made
appointments contrary to the selection procedure and
the permission granted by the Zilla Parishad
authorities. This made the Petitioner to run from pillar
to pole, and illegally deprived her from her
legitimated rights just to protect the interest of the
Respondent no.7.
(e) At no point of time the School Management
explained how it could seek interchange of approvals
and appointments contrary to the selection
procedures. Instead, it went to cover its illegality
under the garb of prayer clause ‘C’ in Writ Petition
35 W.P. Nos.5331 of 2018 and anr.docx
No.14300 of 2021.
(f) The School Management and the Education Officer
(Primary), Zilla Parishad Beed inasmuch played wrong
with lives of the Petitioner as also the Respondent
no.7. This Court would not be a mute spectator in the
given circumstances to the things surfaced. We are of
the considered view that the School Management is
liable to be saddled with exemplary costs. So also, the
Zilla Parishad Beed authority must take cognizance of
the illegality committed by the then Education Officer
(Primary), Zilla Parishad Beed who issued the
impugned order dated 28-03-2006. We are of the
considered view that cost must also be imposed on
the said authority.
(7) Hence we pass following order:
ORDER
I. The order dated 28-03-2006 passed by the Education
Officer (Primary), Zilla Parishad, Beed, interchanging
approvals and appointments of Ms. Pratibha Darade
and Ms. Manjusha Mule (petitioner and respondent
no.7 respectively in Writ Petition No.5331 of 2018),
36 W.P. Nos.5331 of 2018 and anr.docx
and communication dated 30-06-2017 pursuant to the
said order, are quashed and set aside. Earlier
approvals to the Petitioner’s appointment on partially
aided post and approval to Respondent no.7’s
appointment on unaided post shall hold the field.
II. The Petitioner in Writ Petition No.5331 of 2018 is held
to have been appointed on partially aided post of
Shikshan Sevak reserved for VJNT vide appointment
order dated 15-07-2005 and is accordingly eligible for
all consequential benefits of seniority, enhancement
in grant, regular salary, absorption etc.
III. Within a period of four weeks from today, the
Education Officer (Primary), Zilla Parishad Beed shall
pay the unpaid payable salary dues as per the
prescribed pay scale to the Petitioner in Writ Petition
No.5331 of 2018 holding `15-07-2005’ as her date of
appointment. Needless to mention the dues shall
adjust the amount already paid and the honorarium
receivable for initial three years. The petitioner in Writ
Petition No.5331 of 2018 is permitted to withdraw the
amount pending in this court, if any.
37 W.P. Nos.5331 of 2018 and anr.docx
IV. The Respondent no.7 in Writ Petition No.5331 of 2018
is held to have been appointed on unaided post of
Shikshan Sevak as per appointment order dated 15-
06-2005 issued by the Respondent no.4 School
Management; and is bound by the consequences
including declaration of being surplus etc.
Consequences to follow.
V. The Education Officer (Primary), Zilla Parishad, Beed,
shall immediately initiate recovery of salary grants
issued for Respondent no.7 in the Writ Petition
No.5331 of 2018.
VI. The Education Officer (Primary), Zilla Parishad, Beed
shall cause to effect and implement consequences of
this order without any delay and default, within a
period of four weeks from today.
VII. In the circumstances, Respondent no.4 – School
Management and Respondent no.2 – Education Officer
(Primary) in Writ Petition No.5331 of 2018 each shall
pay a cost of Rs. 50,000/- to the Petitioner in Writ
Petition No.5331 of 2018. The cost be deposited in
38 W.P. Nos.5331 of 2018 and anr.docx
this Court within a period of four weeks, and the
Petitioner is permitted to withdraw the cost amount. If
such cost is not deposited within the given time, it
shall be recovered as land revenue.
VIII. The Zilla Parishad, Beed is permitted to recover the
cost amount from the concerned Education Officer
who passed the impugned order dated 28-03-2006.
Additionally, the authorities of Zilla Parishad Beed
shall strictly initiate departmental action against the
concerned Education Officer and shall take it to its
logical end in accordance with law.
IX. Writ Petition No.5331 of 2018 stands allowed
accordingly. Rule made absolute in Writ Petition in
above terms.
X. Writ Petition No.14300 of 2021 stands dismissed. Rule
stands discharged accordingly.
XI. Pending Civil Application(s) if any, stand disposed.
[AJIT B. KADETHANKAR, J.] [KISHORE C. SANT, J.]
………..
KBP
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