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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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