SHIVPRASAD MALLINATH SOLAPUREversusTHE STATE OF MAHARASHTRA AND OTHERS

2026:BHC-AUG:7063-DB


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                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   BENCH AT AURANGABAD

                                 WRIT PETITION NO. 552 OF 2018

                Shivprasad Mallinath Solapure,
                Age : 41 years, Occu. : Service,
                R/o. : Asta Kasar, Taluka Lohara,
                District Osmanabad.                                    .. Petitioner

                       Versus

                1.     The State of Maharashtra,
                       Through its Secretary,
                       Department of School Education,
                       Mantralaya, Mumbai.

                2.     The Education Officer (Secondary),
                       Zilla Parishad, Osmanabad.

                3.     The Superintendent,
                       Pay Unit, Secondary Education Department,
                       Zilla Parishad, Osmanabad.

                4.     Asta High School,
                       Asta Kasar, Taluka Lohara,
                       District Osmanabad
                       Through its Head Master.

                5.     Ashta Shikshan Sanstha Ashta (Kasar)
                       Tq. Lohara, Dist. Osmanabad
                       Through its Secretary.                          .. Respondents

                Mr. Santosh S. Jadhavar, Advocate for the Petitioner.
                Mr. S. J. Salgare, AGP for Respondent Nos. 1 and 2.
                Mr. Pramod B. Gapat, Advocate for Respondent No. 4.

                                        CORAM : KISHORE C. SANT AND
                                                SUSHIL M. GHODESWAR, JJ.
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Date on which reserved for order : 12th February, 2026.

Date on which order pronounced : 17th February, 2026.


FINAL ORDER (PER KISHORE C. SANT, J.) :-

1.    Heard the parties. By consent of the parties taken up for

final disposal at the stage of admission.


2.    The petitioner, a part time teacher appointed in respondent

Nos. 4 school, has approached this Court challenging an action of

refusal to pay the salary by the Education Officer.            In view of

subsequent development of termination of the petitioner he has

also prayed for quashing and setting aside the termination order

passed by respondent Nos. 4 and 5. Respondent No. 1 is the State

of Maharashtra, respondent No. 2 is the Education Officer

(Secondary), Zilla Parishad, Osmanabad, respondent No. 3 is the

Superintendent, Pay Unit, Secondary Education Department, Zilla

Parishad, Osmanabad and respondent Nos. 4 and 5 are the school

and management where the petitioner was working as a part time

teacher.


3.    The facts in short as stated in the petition are as under :


4.    The petitioner was appointed as a part time permanent
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teacher in respondent No. 4 school. The appointment was

approved by the Education Officer. The petitioner was paid salary

as a part time teacher. Vide order dated 09.08.2017 the High

School had sent the pay bill. The respondent No. 2, however,

refused to grant salary bill of the petitioner on the ground that he

was a part time teacher. It is the case of the petitioner that, when

petitioner’s services were approved by the authorities, there was

no question of taking any action without holding any inquiry or

without any proceeding.


5.    The learned advocate Mr. Jadhavar for the petitioner

vehemently argued the petition. He submits that, the petitioner

was appointed by an order dated 01.03.2011. His appointment

was for a period from 01.03.2011 till 28.02.2017.             The said

appointment was on honorarium of Rs. 2,000/- per month. He

submits that, when the petitioner was appointed as a part time

permanent teacher, he was entitled to receive the salary, however,

the petitioner was not paid the salary as his salary bill came to be

rejected. It is only on the basis of rejection by the Education

Officer, the management passed a resolution on 01.07.2018 and

relieved the petitioner from 03.07.2018 under the signature of the
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Headmaster. He submits that the staffing pattern was approved

for the school. The total posts approved were eighteen (18). The

name of the petitioner appeared at serial no. 18. Therefore, the

post cannot be said to be in excess of the staffing pattern. If at all,

the post became excess, the petitioner could have been declared as

surplus   candidate.    Without     following    that     course,   the

management directly terminated the services of the petitioner. He

alleged that the action is arbitrary since termination is only on the

basis of rejection to pay salary by the Education Officer.          The

termination order also needs to be set aside being consequential

order. He relies upon section 9 of the Maharashtra Employees of

Private   Schools    (Conditions    of   Service)     Regulation    Act

(hereinafter referred to as “M.E.P.S. Act”) to show that remedy

does not lie before the School Tribunal as he is challenging the

action of rejection of salary bills. He relies upon rules 28 to 38 of

the Maharashtra Employees of Private Schools (Conditions of

Service) Rules, (hereinafter referred to as “M.E.P.S. Rules”) to

submit that, no action can be taken or punishment be imposed

without following due process of law. It is also his case that, even

now he can be directed to be placed in the list of surplus

candidates.
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6.    The learned advocate Mr. Gapat for respondent No. 4

vehemently opposes the petition.           He submits that, the

appointment of the petitioner itself was without following any due

process of law. There was no advertisement issued for the said

post. No sanction was ever granted by the Education Officer to

undertake any process for appointment. The resolution passed to

terminate the petitioner is not on the basis of rejection of salary

bill as alleged by the petitioner, but as his appointment was totally

illegal. No post was available for the petitioner. It was for the

Education Officer to declare the petitioner surplus if at all he was

found to be entitled. He invites attention to the staffing pattern

for the year 2014-15. He prays for dismissal of the petition.


7.    The learned A.G.P. submits that, it is clearly seen that the

alleged appointment of the petitioner was not by following due

process of law. The petitioner was appointed only for a term of

five years as a part time teacher. There is no scheme to declare

part time teacher as surplus. Wrongly the salary was paid to the

petitioner. The authorities are taking action of recovery of the

salary paid to the petitioner from the management or from the

petitioner. He submits that unless the petitioner establishes that
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his appointment was made by following due process of law, no

right can be claimed by him.


8.    In rejoinder, the learned advocate Mr. Jadhavar for the

petitioner submits that, the impugned action is only because of

change in the management.          When he was appointed, it was

earlier management which was empowered. Since the present

management is not having good terms with the petitioner, his

services are terminated. He shows the staff register showing his

name at serial no. 18. His case is that, Rule No. 26 of the M.E.P.S.

Rules is clear to declare such candidate as surplus. It only speaks

of permanent employee.      No distinction is made between part

time teacher and full time teacher.


9.    This Court has seen the appointment order. It clearly shows

that the petitioner was appointed from 01.03.2011 till 28.02.2017

on honorarium of Rs. 2,000/- per month. The petitioner is thus

appointed only for six years and that appointment he accepted.

There is nothing in the order that he would be continued

thereafter or his appointment is on probation basis.          He was

appointed only as Shikshan Sevak.       An undertaking was taken

from him to show that he accepts the appointment order. Even
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the letter issued by the Headmaster to the Education Officer dated

20.08.2011 shows that the approval was sought only for six

academic years. The Education Officer approved the appointment

vide communication dated 02.03.2013 only as a part time teacher

on honorarium of Rs. 4,000/-.      On 24.04.2017 the Education

Officer had approved the services of the petitioner on the basis of

letter of the Headmaster dated 18.03.2017. It is thus clear that,

till March 2017 he was not granted permanent approval. This

mistake was immediately noticed and on 22.08.2017 the

Education Officer rejected the salary proposal of the petitioner

with an endorsement that his appointment was as part time

teacher.   It is this action by which the petitioner is mainly

aggrieved. Initially, the Headmaster sent a communication to the

Education Officer dated 26.08.2017 as to why no salary is paid to

the petitioner though his services are approved. However, further

it is seen that on 19.08.2017 the petitioner himself wrote to the

Education Officer that his services be approved as full time teacher

in the school. It is thus clear that he was not appointed as full

time teacher.



10.   From the reply of the management it is seen that, there was
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no part time post available from the academic year 2014-15. The

salary bills were still processed. The said mistake was noticed in

August 2017 and thereafter the salary bill were stopped by the

concerned officer. As per the staffing pattern of 2014-15 there is

no post available. The staffing pattern was approved for the year

2008-09 and 2009-10 as annexed along with reply. Eighteen (18)

posts of teaching staff were sanctioned for the year 2014-15. It is

seen that, it was communicated by the President of the school

committee to the Headmaster that the appointment of the

petitioner was not made by the management committee.                No

advertisement was given by taking prior consent of the Education

Officer and it is therefore, the appointment of the petitioner itself

is illegal and not to process the salary bills.


11.   This Court finds some substance in the submission of

learned advocate Mr. Jadhavar for the petitioner that rule 26 of

the M.E.P.S. Rule does not make any distinction between part time

teacher and full time teacher.       It only speaks of a permanent

teacher. It is also rightly submitted that without inquiry no action

can be taken against an employee. However, since the petitioner

has challenged the termination it was open for him to approach
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the School Tribunal under section 9 of the M.E.P.S. Act. Though it

is alleged that, the termination is consequential order, this Court

cannot accept the same. In this regard the petitioner relied upon

the judgment in Writ Petition No. 11441/2010 passed by the

Division Bench of this Court in the case of Balaji s/o Madhavrao

Kure Vs. The State of Maharashtra and others. In the said case,

the petitioner who was serving as an Assistant Teacher was issued

a show cause notice by the management as to why no inquiry be

held against him.    During the pendency of the petition, the

petitioner came to be terminated pursuant to the inquiry which

was taken on the basis of show cause notice, a subject matter of

the petition. It is in such facts this Court has taken a view that

since the order of termination is consequential order, the

petitioner need not approach the School Tribunal. In the present

case, the petition was filed only against the order of rejection of

approval of salary bills. Though it is tried to be argued that the

alleged termination is as consequence of the rejection of salary

bill, this Court does not find it to be so. The management has

clearly conveyed that the appointment of the petitioner was found

to be illegal and without following any process and it is for that

reason he is relieved. Thus, on this aspect the judgment in Writ
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Petition No. 11441/2010 (supra) cannot be applied to the present

case.


12.     Rule 26 of the M.E.P.S. Rules requires a person to be

declared as a surplus. If, in case, he is found to be surplus in the

school or the school is closed, true that it does not make

distinction in part time and full time employee. However, it is

necessary to see as to whether the appointment is legal and valid.

In the present case, the petitioner could not establish that his

appointment was validly made by following procedure. In spite of

letter by the management dated 01.07.2018 no attempt is made

by the petitioner to show how he was appointed and that his

appointment was made by following due process. To entertain the

petition the first thing that was required by the petitioner was to

show that his appointment was valid. More so when the

management has clearly come with a reply that his appointment is

not valid and legal and is without following any process. Even by

looking at the appointment order it is clearly seen that the

appointment was from 01.03.2011 till 28.02.2017. Thus, the

petitioner had the knowledge that his appointment is only for six

academic years. He could have immediately raised the grievance
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against the same. On the contrary, it is seen that he has given an

undertaking accepting all the terms of the said appointment order.

Thus, it is to his clear knowledge that his appointment was only

for six academic years. On this count, this Court finds that the

petition cannot be entertained as the petitioner failed to show that

his appointment was legally made.


13.   During the course of argument it was even suggested to the

learned advocate for the petitioner that he can challenge the

termination order by approaching the School Tribunal. However,

he, in clear terms, tried to persuade this Court that since the

termination is consequential order, his appeal would not be

maintainable before the School Tribunal and the School Tribunal

cannot go into the aspect of the order of rejection of pay salary. He

specifically relies upon sections 9, 10 and 11 of the M.E.P.S. Act

and continued to pursue this Court. It was after asking by this

Court the petitioner chosen to argue the case even on merits so far

as termination is concerned. It is in this view of the matter this

Court has made observations in respect of appointment.


14.   Considering overall, this Court finds that the petitioner has

totally failed to make out any case calling for interference at the
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hands of this Court in exercise of jurisdiction under Article 226 of

the Constitution of India.    Therefore, the writ petition stands

dismissed. No order as to costs.



( SUSHIL M. GHODESWAR, J.)                 ( KISHORE C. SANT, J. )




P.S.B.