Bombay High Court
Mudrika Vishwanath Shingade vs Ahilyadevi Holkar Shikshan Prasarak ... on 30 July, 2025
2025:BHC-AUG:20329
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
5 WRIT PETITION NO. 2847 OF 2008
MUDRIKA VISHWANATH SHINGADE
VERSUS
AHILYADEVI HOLKAR SHIKSHAN PRASARAK MANDAL AND ORS
.....
Mr. V. D. Gunale, Advocate for the Petitioner
Mr. Vivek Dhage, Advocate for Respondent Nos.1 to 3
Mr. S. K. Shirse, AGP for Respondent/State
CORAM : R. M. JOSHI, J.
DATE : 30th JULY, 2025
PER COURT :-
1. This Petition takes exception to the order dated 15 th February,
2008 passed by the Divisional Social Welfare Officer, Latur in Appeal No.
01 of 2006, wherein the challenge to the termination of the Petitioner by
Respondent-School was held to be proper and Appeal came to be
dismissed.
2. The facts which led to the filing of the Petition can be
narrated in brief as under:-
(i) The Petitioner claimed to have qualification of S.S.C. and
Certificate in Craft Teacher. Respondent Nos.1 to 3 invited applications
from the eligible candidates for the post of 'Assistant Teacher' in
Respondent No.2-School and for that purpose advertisement was issued.
It is further claimed by the Petitioner that pursuant to the advertisement,
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she applied to the said post and was interviewed by the Selection
Committee. It is claimed that she was appointed on clear, vacant and
permanent post by order dated 1st April, 1994. It is however, claimed
that the Respondents have not issued such order in her favour. It is
further case of the Petitioner that she was continued in the service
considering her performance and that the proposal was sent to the
District Social Welfare Officer for approval and the approval came to be
granted for academic year 1995-96. Though thereafter she was
continued in service but the proposal of the approval was not forwarded
to the Authority and therefore, she made complaint in this regard on 19 th
December, 1996. According to the Petitioner in the year 1997, the
Petitioner was transferred by the Respondents from School at Ausa to
Ahmedpur where she continued to work till 1998 i.e. upto the date of her
termination of her service. It is claimed that on 24 th July, 1998 when as
usual she reported for the work, she was told not to resume duty from
25th July, 1998 and thus, her services are terminated orally.
(ii) The Petitioner approached to the School Tribunal by filing
Appeal bearing No. 147/2004. The Tribunal, however, dismissed the
Appeal by holding that it has no jurisdiction to entertain the Appeal. The
Petitioner therefore, preferred Appeal bearing No. 01/2006 before the
Divisional Social Welfare Officer taking exception to the dismissal of her
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from the service. Since the said Authority dismissed the Appeal, this
Petition.
3. Learned Counsel for the Petitioner submits that the Petitioner
was appointed on 1st April, 1994 after following due procedure of
recruitment and hence, in view of Section 5(2) of the Maharashtra
Employees of Private Schools (Conditions of Service) Regulation Act (for
short 'MEPS Act'), she could not have been appointed on temporary
basis, but ought to have been appointed on probation and it needs to be
considered accordingly. To support his submission, he placed reliance on
the judgment of this Court in case of The New Education Institute Nasik
& Ors. Vs. Mahejabin Ashfak Ahmed Shaikh & Ors., 2007(6) ALL MR 516 .
He also took aid of the judgment of this Court in case of The
Maharashtra Shikshan Sanstha & Anr. Vs. The Presiding Officer, School
Tribunal & Ors., 2007(2) ALL MR 269 . It is submitted by relying upon
these two authorities that there cannot be appointment of the Petitioner
as a temporary when due procedure for recruitment has been followed
and her initial appointment is against the permanent and vacant post. It
is his further submission that there is record indicating approval being
granted by the Social Welfare Officer to the said appointment of the
petitioner for academic year 1995-96. It is argued that thereafter she
was transferred to the school at Ahmedpur, wherein she had acquired a
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necessary qualification in tailoring subject. It is his submission that since
the Petitioner was refused to sign the muster roll, her signature does not
appear thereon, and that she came to be terminated orally with effect
from 24th July, 1998. By referring to the reply of the Respondents before
the Divisional Social Welfare Officer, it is submitted that the contention of
the Management about resignation of the Petitioner from service is not
sustainable in law. It is his submission that resignation ought to have
been in the hand writing of employee in duplicate. So also the same
must be forwarded to the Management by registered A.D. post. It is his
further submission that the acceptance of the resignation has not been
communicated and as such it cannot be held that Petitioner has ceased
to be employee. By referring to the provisions of Section 7 r/w Rule 40 of
the MEPS Act, it is contended that the case of the Respondents
Management of resignation of the Petitioner from the service is not
sustainable. It is argued that the Petitioner has continuously worked for
four years and since thereafter her services are terminated orally and
without complying with the mandatory provisions of the Act, it is a fit
case for setting aside the impugned order and directing reinstatement of
the Petitioner in service with back wages and consequential benefits.
4. Learned Counsel for the Respondents submits that in order to
seek any relief of reinstatement, the Petitioner at the first instance must
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establish that her appointment was after following due procedure of
recruitment as contemplated by the Act and the same is against clear,
vacant post. By referring to the reply filed before the Authority, it is
contended that once it is disputed that the appointment was not by
following due procedure of law, the burden is on the Petitioner to prove
the same. It is contended that there is no evidence to indicate so. Apart
from this by referring to the documentary evidence on record it is
submitted that the appointment of the Petitioner is by order dated 1 st
April, 1994 and the appointment was for a specific period. In this regard
reference is also made to the resolution passed by the Respondent-
Management for appointment of the Petitioner in leave vacancy created
by sending Shri. Umakant Dawale, an untrained teacher, for training. It
is argued that there is ample material placed on record to indicate that
after completion of the academic year 1995-96, the Petitioner was not in
employment, and that this is not the case to cause interference in the
impugned order. To support his submission he placed reliance on the
following judgment:-
(a) Smt. Mangala d/o Keshav Mule Vs. President and others in
Writ Petition No. 584/1997, dated 22/07/2016,
(b) Ramkrishna Chauhan Vs. Seth D. M. High School & Ors.,
2013(3) ALL MR 1 (F.B.),
(c) Vishnu Ramchandra Patil Vs. Group Gram Panchayat & Ors.,
2013(3) All MR 16,
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(d) Vice-Chancellor, Lucknow University, Lucknow, Uttar Pradesh
Vs. Akhilesh Kumar Khare & another, AIR 2015 SC 3473,
(e) Swami Vivekanand Shikshan Sanstha and another Vs.
Presiding officer, Nagpur and Others, 2016(3), Mh.L.J., 50.
5. As per the law laid down by the Division Bench of this Court
in case of Anna Manikrao Pethe vs The Presiding Officer, School
Tribunalm 1998(3) All MR 155 , in order to seek any relief of
reinstatement, it is incumbent on the part of the Tribunal under the MEPS
Act to frame the issue with regard to the approval of the school as well
as the appointment of the employee/teacher in accordance with the
provisions of the Section 5(2) of the MEPS Act. The Division Bench of this
Court in the case has also held about approval granted by the Education
Officer to be a condition precedent for maintaining such challenge to the
termination, however, Full Bench of this Court in case of St. Ulai High
School Vs. Devendraprasad Jagannath Singh and Ors.,2007(1)Mh.L.J.,
597, has not confirmed the said third condition, however, has affirmed
the first two conditions prescribed by the Division Bench for the purpose
of grant of any relief in favour of employee under the provisions of the
MEPS Act. This Court finds no reason to apply the said judgment to the
present case for the reason that the appointment is claimed under the
provisions of the MEPS Act and Rules framed thereunder.
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6. The above position of law thus mandates an employee to
satisfy the Tribunal, herein this case Appellate Authority, at first instance
that the appointment is made against the clear vacant post and after
following due procedure for recruitment. Though in the memo of appeal
it is sought to be contended on behalf of the Petitioner herein before the
Authority that her appointment was pursuant to the advertisement and
interview, there is no material placed on record to hold so. This would
become relevant in view of the denial of the Respondents in the reply to
that effect.
7. As against this, the documentary evidence on record clearly
shows that resolution was passed on 26 th April, 1996, whereby the
appointment of the Petitioner was made for the academic year 1995-96
on the leave vacancy created by sending a untrained teacher for training.
The order of appointment also indicates that the appointment was for the
particular academic year. Admittedly, there is approval granted to the
said appointment for academic year by District Social Welfare Officer,
Latur. Moreover, the documents placed on record by the Petitioner
obtained under the Right to Informant Act also supports the contention
of the Respondents about the appointment being for academic year
1995-96 on temporary basis.
8. It is sought to be contended on behalf of the Petitioner that
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forcible resignation was obtained from her and also that there was
misuse of the signatures of the Petitioner. The Petitioner claims that
though the Management has transferred her from Ausa to Ahmedpur, she
was not permitted to sign on the muster role. There is, however, no
material on record in order to indicate that after the expiry of the
temporary period of appointment for the academic year 1995-96, she
was continued in the service. In order to direct reinstatement of
Petitioner in service, it is incumbent to record at least finding that the
Petitioner continued in the service after the period of temporary
appointment was over. There is no evidence to hold so. Thus, even
accepting for the sake of arguments the contention of the Petitioner that
the alleged resignation submitted by her is not inconsoance with the
provisions of the MEPS Act, the question remains as to whether she
could claim continuity of service after she ceased to be in service on
expiry of period of her appointment.
9. In this regard reference can be made to the Full Bench of this
Court in case of Ramkrishna Chauhan Vs. Seth D. M. High School (supra)
which recognizes the power of the Management to appoint a person even
contractual basis against the permanent vacancy by way of interim
arrangement. It is held that Section 5(2) of the MEPS Act cannot be
construed as taking away the implicit power of the Management to make
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a contractual employment. Herein this case since it is not proved that the
appointment of the Petitioner has been effected against the vacant clear
post by following due procedure of recruitment, the question of
regularization of her services as sought before the Appellate Authority
does not arise.
10. In view of the above discussion, no case is made out to cause
any interference in the impugned order. Hence, Writ Petition stands
dismissed.
(R. M. JOSHI, J.)
ssp
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