SHRI. VIJAY UTTAM KOTWALversusSHRI SHIVAJI MARATHA SOCIETY, THROUGH SECRETARY AND ORS

       Digitally                                                        902.as.wp.5702.2014 @.doc
       signed by
       VINA
VINA   ARVIND
ARVIND KHADPE
KHADPE Date:
       2026.09.09
       18:40:52                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
       +0530
                                       CIVIL APPELLATE JURISDICTION

                                       WRIT PETITION NO.5702 OF 2014

                    Shri Vijay Uttam Kotwal                       … Petitioner
                          Versus
                    Shri Shivaji Maratha Society,
                    Through Secretary and ors.                    … Respondents

                                                     ***
                    Mr. Vivekanand S. Tadke for the Petitioner.
                    Mr. Prathamesh Bhargude a/w Mr. Sumit Sonare for Respondent
                    Nos.1 and 2.
                                                     ***
                                                        CORAM : M.M. SATHAYE, J.
                                                          DATE     : 9 SEPTEMBER, 2026
                    P.C. :

                    1.       Heard the learned Counsel for the parties. Perused record.

                    2.       The Petitioner / employee is challenging the order dated
                    02.02.2013 passed by the Presiding Officer, School Tribunal, Pune
                    Region, Pune (‘the Tribunal’ for short) in Appeal No.47 of 2012. The
                    Petitioner had filed the said Appeal under Section 9 of the
                    Maharashtra Employees of Private Schools (Conditions of Service)
                    Regulation Act, 1977, and the Rules of 1981 made thereunder (‘the
                    said Act’ and ‘the said Rules’ for short). The Appeal was filed
                    challenging ‘otherwise termination’ dated 01.09.2012.

                    3.       The Petitioner was appointed as a lecturer with effect from
                    01.10.2007 and was terminated on 01.09.2012. The Petitioner made
                    representation to the Educational Institute. However, since there was
                    no response, he filed the aforesaid Appeal.

                    Vina Khadpe                            1
                                                   902.as.wp.5702.2014 @.doc




4.     According to the Petitioner, he was employed after following
due procedure with an advertisement and he had completed
necessary probationary period and was in continuous service till
termination. According to the Petitioner his work and behaviour were
satisfactory and his appointment was also approved and thus he was
a permanent employee. Since on 01.09.2012, he was not permitted
to sign the muster, the same amounts to otherwise termination.
According to the Petitioner, the Respondent – Management did not
follow the procedure and therefore termination is illegal and he is
entitled to be reinstated with backwages.

5.     Respondent – Management filed their written statement
contending inter alia that at the relevant time, the Management had
only two divisions which were functioning with State grant-in-aid
and three divisions on permanently non-grant basis. It contended
that the Petitioner was appointed and serving on un-aided post. They
contended that in the academic year 2012-2013 (during which, the
alleged otherwise termination has taken place), there were no
admissions for concerned divisions and the Management could not
run the un-aided divisions for want of admissions and therefore the
Petitioner’s services were no more required. The Management
contended that the appointment of the Petitioner was always
dependent on availability of teaching work-load. It contended and in
the academic year 2012-2013, there was not a single admission for
un-aided division and as such the Management was not in a position
to give work-load to the Petitioner. The Management also contended
that considering the qualification of the Petitioner for special category


Vina Khadpe                           2
                                                     902.as.wp.5702.2014 @.doc




of College, it was not in a position to absorb the Petitioner elsewhere.

6.     The Respondent – Deputy Director of Education, filed a written
statement confirming that there are two aided and three permanently
un-aided divisions in the Institute. It contended that during the
concerned academic year, there were 39 admissions for the first year
in the aided division and zero admissions in three un-aided divisions.
This position was observed by the Education-Authority while
approving the staff sanction.

7.     The Tribunal on appreciation of evidence, allowed the appeal
partly. Claim for reinstatement with back wages was dismissed and
Respondent -Management was only directed to pay compensation
equal to six months salary which was last drawn.

8.            Learned Counsel for the Respondent – Management has
placed on record a receipt dated 30.03.2013 indicating that the
Petitioner has accepted six months salary as directed by the Tribunal.
This aspect is not seriously disputed by the learned Counsel for the
Petitioner. A copy of the said receipt is taken on record and marked
‘X’ for identification.

9.     In these circumstances, the Petitioner filed the present Petition.
It was admitted on 04.04.2016. However, the record indicates that
no interim relief was granted in the favour of the Petitioner. Hence,
effectively, the Petitioner has not worked for the Respondent Institute
since date of termination (01.09.2012) till today.

10.    Learned Counsel for the Petitioner submitted that pursuant to


Vina Khadpe                            3
                                                  902.as.wp.5702.2014 @.doc




the provisions of Rule 26 of the said Rules, three months’ notice was
necessary to be issued to the Petitioner and without prior permission
of the Education Authority, the Petitioner could not have been
removed under the retrenchment procedure provided. He submitted
that the Petitioner could have been absorbed in some other school.
He replied on the Judgment in the case of Bharat Education Society’s
Junior College of Commerce & Economics & others Vs. Shri
Balaraman Vembulu [2001(1) Bom. C.R. 367], in support of his case.

11.    Per contra, learned Counsel for the Respondent – Management
contended that the provisions of Rule 26 claimed by the Petitioner in
is favour, will not apply because the Petitioner was appointed in
permanently un-aided division and the prayer for absorption was not
made before the Tribunal and the whole basis of Appeal was
reinstatement, which is not granted. He submitted that since the
entire un-aided division was required to be closed down at the
relevant time, even the situation provided under Rule 26 (9) of the
said Rules did not exist. He submitted that the material in that
respect has been considered by the Tribunal and since the amount of
six months salary was accepted by the Petitioner, after such long lapse
of time, the impugned order need not be interfered.

12.    Having considered the rival submissions and on perusal of the
record, in my view, no case for interference is made out for the
following reasons :

(i)    Rule 26(2)(iii) of the said Rules provides for retrenchment of
employees ‘from aided school’ whose services are proposed to be


Vina Khadpe                          4
                                                     902.as.wp.5702.2014 @.doc




retrenched and it is contemplated that such employees shall be
absorbed. This sub-Rule finds further reference in Rule 26(9) of the
said Rules where it is provided that in case of fall in the number of
pupils, classes or divisions, affects the scale of the employee or his
status, the facility of absorption admissible as per the provisions of
Rule 26(2)(iii), shall not be admissible and a mechanism for offering
work at lower post, or at lower scale or part time post is provided.
Thus, conjoint reading of these two rules clearly indicates that the
procedure to be adopted is provided for employees on aided post. It
is not disputed that in the present case that the Petitioner was
appointed on permanently un-aided post. In that view of the matter,
insistence of the said Rule in the case of the Petitioner cannot be
accepted.

(ii)    Further, it has come on record that the Respondent - Deputy
Director had written a latter which is at exhibit 19/6 dated
07.08.2012, which is considered by the Tribunal holding that from
the said letter, it is clear that the Respondent – Management was
compelled to reduce the unaided division and consequently, no work-
load was available for the Petitioner. Considering such situation, the
Tribunal has held that the Respondent – Management was compelled
to close down the un-aided divisions of D.Ed college, and as such,
indeed no work-load was available.

(iii)   Faced with such situation, the Tribunal has resorted to Section
11(2)(e) and (f) of the said Act and considering that the Petitioner
had served for less than 10 years, six months salary (pay and
allowances, if any), has been directed to be paid.

Vina Khadpe                           5
                                                   902.as.wp.5702.2014 @.doc




(iv)     In Bharat Education Society Vs. Shri Balaraman (supra) relied
upon by the Petitioner, Dy. Director of Education not allowing
reduction of student strength, had directed the Management to
transfer the employee to other school. It also appears that the post in
question was aided. In that context, this Court held that altering the
status of the employee without complying with Rule 26 and without
the permission of the Education Officer, is illegal. In the present case,
the appointment is not on aided-post. From the communication
between the Management and the Deputy Director, as discussed
above, it is clear that the Education Authority was aware of the
closure of the divisions. Also in the present case, there was no such
transfer under consideration. In such peculiar facts, the said
Judgment will not advance the case of the Petitioner.

(v)      The Tribunal has taken the most probable view on the basis of
the material available before it. No perversity is found in the
impugned order. There is no reason to interfere.

13.      Writ Petition is dismissed. Rule is discharged. No order as to
costs.

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


                                               (M.M. SATHAYE, J.)




Vina Khadpe                            6