Bombay High Court
Baliram Pandurang Salunke vs The State Of Maharashtra And Others on 10 November, 2025
Author: R. G. Avachat
Bench: R. G. Avachat
2025:BHC-AUG:30708-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
WRIT PETITION NO.11172 OF 2019
Baliram s/o Pandurang Salunke
Age : 42 years, Occu: Service as Shikshan Sevak,
R/o Sharda Nagar, Mukhed,
Tq. : Mukhed, Dist. Nanded ...Petitioner
Versus
1. The State of Maharashtra
Through its Secretary
School Education Department,
Mantralaya, Mumbai - 32.
2. The Education Officer (Secondary),
Zilla Parishad, Nanded
3. Niti Niketan Education Society,
Through its Secretary,
Anil s/o vithalrao Kolhe
Age : 51 years, Occ : Social Worker,
R/o Jamb, Tq. Mukhed, Dist. Nanded
4. The Head Master,
Hutatma Madhav Vidyalaya, Mukhed,
Tq. Mukhed, Dist. : Nanded ...Respondents
...
Mr. V. S. Panpatte, Advocate for the petitioner.
Mr. P. K. Lahotiya, AGP for Respondent Nos. 1 & 2.
Mr. I. D. Maniyar, Advocate for Respondent Nos. 3 & 4.
...
CORAM : R. G. AVACHAT AND
ABASAHEB D. SHINDE, JJ.
RESERVED ON : OCTOBER 15, 2025
PRONOUNCED ON : NOVEMBER 10, 2025
JUDGEMENT (Per Abasaheb D. Shinde, J.) :
1. Rule. Rule made returnable forthwith. With the consent of parties
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heard finally at the stage of admission.
2. The petitioner is challenging the order dated 27.08.2019 passed
by Respondent No.2-Education Officer (Secondary) Zilla Parishad,
Nanded by which the proposal submitted for grant of approval to the
appointment of the petitioner as Shikshan Sevak has been turned
down.
FACTUAL MATRIX :
3. The petitioner contends that Respondent No.3/Educational
Institution is running Respondent No.4-School from 5 th to 10th
standard. It is further contended that on account of retirement of a
permanent teacher, namely Smt. Shanta Narmada Karle, Respondent
No.3 issued an advertisement on 27.02.2017 in a newspaper, namely,
'Daily Marathwada'. It is the contention of the petitioner that petitioner
had participated pursuant to the said advertisement and ultimately
after being found eligible and qualified the petitioner came to be
appointed vide appointment order dated 04.03.2017 by Respondent
No.3.
4. It is further contended that pursuant to the appointment of the
petitioner, Respondent No.4-Head Master of the School submitted a
proposal to Respondent No.2-Education Officer on 05.04.2017 for grant
of approval to the appointment of petitioner as Shikshan Sevak for
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initial period of three years. Respondent No.2-Education Officer
however, by the impugned order dated 27.08.2019 turned down the
proposal submitted by Respondent No.4-Head Master on the ground
that, as per Government Resolution dated 02.05.2012 unless the
teachers rendered surplus are absorbed, no recruitment could have
been made as there was a ban on recruitment. Another ground on
which the impugned order is passed is that, though Respondent No.4-
Head Master has made an application to Respondent No.2-Education
Officer seeking permission to advertise the post, however, Respondent
No.2-Education Officer has not granted permission to the said
advertisement. One more ground assigned in the impugned order is
that the petitioner is teaching the subjects of Hindi and Geography and
the case of the petitioner is not covered by Government Resolution
dated 24.08.2018 as it covers only subjects of Maths, Science and
English, thus proposal submitted by Respondent No.4-Head Master
thereby seeking approval to the appointment of the petitioner cannot
be considered.
5. Respondent No.2-Education Officer has filed an affidavit in reply
inter alia contending that just one day before the retirement of earlier
teacher, Respondent No.4-Head Master has advertised the post,
Respondent No.4 has not taken permission for advertisement of the
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post. As per the Government Resolution dated 24.08.2018 post of
teachers can be recruited only for the subjects of English, Maths and
Science, whereas the teaching subjects of the petitioner is Hindi and
Geography. It is further contended that there are several teachers who
have been declared surplus in Nanded District and those were directed
to be absorbed. It is further contended that unless the surplus teachers
are absorbed, no new recruitment to fill up the post in the School run
by private management can be made. It is further contended that as the
appointment of the petitioner is not in accordance with the provisions
of Section 5(1) of The Maharashtra Employees of Private Schools
(Conditions of Sciences) Regulation Act, 1977 therefore, Respondent
No.2-Education Officer has rightly passed the impugned order. Last but
not the least it has been further contended that there was a ban on
fresh recruitment by Government Resolution dated 02.05.2012 and
therefore the post on which the petitioner has been appointed is illegal
and therefore Respondent No.2 prayed for dismissal of the Writ
Petition. To the affidavit in reply filed by Respondent No.2, the
petitioner has filed rejoinder by placing on record certain documents in
support of his case and at the same time has also denied the contention
raised in the affidavit in reply filed by Respondent No.2.
6. We have considered the submissions advanced by the learned
Counsel for the petitioner as well as the learned AGP for the State and
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Respondent No.2-Education Officer (Secondary) and the learned
Counsel appearing for Respondent Nos.3 and 4-School Management.
SUBMISSIONS :
7. It is contended by the learned Counsel for the petitioner that
there is no dispute that the petitioner is duly qualified for being
appointed as Shikshan Sevak and his appointment is made after
following the due procedure of law. Respondent No.3-Management
have issued an advertisement on account of retirement of one
permanent teacher namely, Shanta Narmada Karle and thus after being
found eligible and duly qualified, the petitioner has been appointed
vide appointment order dated 04.03.2017. It is further contended that
in earlier round of litigation, as Respondent No.2 -Education Officer
was not deciding the proposal submitted by Respondent No.3 for grant
of approval to his appointment, the petitioner was required to approach
this Court and this Court by an order dated 03.12.2018 in Writ Petition
No.6651 of 2017 directed Respondent No.2-Education Officer to decide
the proposal submitted by Respondent No.3 as expeditiously as
possible. The learned Counsel for the petitioner also further contented
that this Court while disposing of the said Writ Petition considering the
apprehension expressed by the petitioner that surplus Teacher is likely
to be sent on his post have directed that during the pendency of the
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proposal for approval in respect of the petitioner, the position existing
as of then be maintained.
8. The learned Counsel for the petitioner further contended that
Respondent No.2-Education Officer while passing the impugned order
has committed an error by rejecting the proposal for grant of approval
to the appointment of the petitioner. The learned Counsel further
submits that the post on which the petitioner has been appointed is a
clear and vacant post and therefore the reasons assigned by Respondent
No.2-Education Officer is unsustainable. To substantiate his contention
that the reason assigned by Respondent No.2 in passing the impugned
order is unsustainable, the learned Counsel for the petitioner in support
of his contention has relied upon the following judgments :-
i. Shailaja Ashokrao Walse Vs. State of Maharashtra & Ors .
1999(1) All MR 452
ii. Jayshree Anil Kadam Vs. State of Maharashtra & Ors. (Writ
Petition No.11311 of 2019)
iii. Munoli Rajashri Karabasappa Vs. State of Maharashtra Through
Secretary & Ors. (Writ Petition No.8587 of 2016)
iv. Shubhangi Bhagwat Chate & Ors. Vs. State of Maharashtra &
Ors. (Writ Petition No.837 of 2018)
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9. It is further contended by the learned Counsel for the petitioner
that the reliance sought to be placed on Government Resolution dated
02.05.2012 is not applicable. Before issuance of advertisement
Respondent No.3-Management have sent a letter to Respondent No.2
seeking permission to issue an advertisement, however, the Respondent
No.2 did not take any decision and as held in the judgements cited
(supra), the management is not expected to wait for a considerable
period for receiving the permission from the Education Officer, as the
same may amount to loss and inconvenience to the students for want of
a teacher. The learned Counsel for the petitioner therefore by relying on
the judgements cited (supra) urged that the Writ Petition may be
allowed and the impugned order be quashed and set aside.
10. On the other hand the learned AGP would submit that the
appointment of the petitioner has been made pursuant to an
advertisement for which no permission was granted by office of
Respondent No.2-Education Officer. The learned AGP would further
submit that though it was required to absorb surplus teachers,
Respondent Nos.3 - Management instead of absorbing the said surplus
teachers appointed the petitioner and therefore the appointment of the
petitioner is illegal. The learned AGP would further submit that it was
duty of Respondent No.3-Management to intimate Respondent No.2-
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Education Officer about the vacancy so that Respondent No.2-
Education Officer could have sent the surplus teachers for being
absorbed in Respondent No.4-School and therefore the learned AGP
submits that since the appointment of the petitioner is contrary to the
provisions of law and the Government Resolution, Respondent No.2
has rightly passed the impugned order thereby refusing to grant
approval to the appointment of the petitioner.
11. The learned Counsel for Respondent Nos.3 and 4-Management
would submit that it is an admitted position that vacancy arose on
account of retirement of one Smt.Shanta Narmada Karle and therefore
the management in order to fill up the said vacancy have made an
application on 02.01.2017 to Respondent No.2-Education Officer
thereby requesting him to grant permission to advertise the post from
open category. However, till the date of issuance of advertisement
Respondent No.2-Education Officer did not take any decision on the
said communication dated 02.01.2017 and therefore Respondent No.3-
Management was left with no other alternative but to advertise the post
and accordingly appointed the petitioner as a Shikshan Sevak for
teaching the subjects of Hindi and Geography.
POINTS FOR CONSIDERATION :
12. After considering the submissions advanced and after going
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through the record it appears that, it is a specific contention of the
petitioner that the post on which the petitioner has been appointed
fallen vacant on account of retirement of one Smt.Shanta Narmada
Karle. It also appears from the record that on 02.01.2017 Respondent
No.4-Head Master addressed a communication to Respondent No.2-
Education Officer intimating that a post is likely to fall vacant on
account of retirement of the earlier teacher and in order to protect the
interest of the student it is necessary to grant permission to fill up the
post. It also appears from the record that Respondent No.3 on
27.02.2017 issued an advertisement for filling up the post in the daily
newspaper namely, 'Dainik Marathwada'. It also appears from the
record that accordingly the petitioner came to be selected and
Respondent No.3 issued an appointment order in favour of the
petitioner on 04.03.2017. While the proposal for grant of approval was
forwarded by Respondent No.4 to Respondent No.2, by an impugned
order Respondent No.2 refused to grant approval to the appointment of
the petitioner on the grounds mentioned in the impugned order.
13. After having perused the impugned order, as far as reliance
placed on Government Resolution dated 02.05.2012 is concerned, the
ban imposed is in respect of fresh recruitment and not on any vacancy
arose because of retirement of a teacher. Even in an affidavit in reply
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filed by Respondent No.2-Education Officer it is stated that the ban was
on fresh recruitment and not in respect of the vacant post. In the
present case, there is no denial in the affidavit in reply by Respondent
No.2 that, the post on which the petitioner has been appointed is a
fresh recruitment and not on account of vacancy arose because of
retirement of the earlier teacher. The second ground mentioned in the
impugned order is that there is no prior permission for issuance of
advertisement, however, the record depicts that even before the earlier
teacher was due for retirement, the Respondent No.3 appears to have
sought permission by addressing communication dated 02.01.2017 to
Respondent No.2-Education Officer. The authenticity of the said
communication is neither denied in affidavit in reply nor the learned
AGP has countered the contention about receipt of said communication.
14. It is also a matter of record that as far as said application dated
02.01.2017 is concerned, neither the same has been rejected nor any
decision on it has been communicated by Respondent No.2-Education
Officer to Respondent Nos.3 and 4 therefore, the ground mentioned in
the impugned order that Respondent No.2 has not granted permission
for advertisement is unsustainable. One more ground mentioned in the
impugned order that the subjects which the petitioner is teaching are
not covered in the Government Resolution dated 28.04.2018 has no
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bearing for a simple reason that, the petitioner has been appointed on
04.03.2017, therefore the said Government Resolution cannot be given
retrospective effect and therefore the said ground is devoid of any
substance. Admittedly at no point of time the Respondent No.2-
Education Officer called upon Respondent No.3-Management to
intimate about the vacancy, or communicating to absorb the surplus
teacher nor have sent the surplus teacher to be absorbed in Respondent
No.4-School therefore it cannot be said that Respondent No.3 has
flauted any direction of Respondent No.2 regarding absorption of
surplus teacher.
CONCLUSION :
15. Recently, this Court in similar set of facts in the matters of
Sumedha Sushil Sawal and Ors. Vs. State of Maharashtra reported in
2024 SCC Online Bom. 975, Vaishali Balkrushna Pawar Vs. State of
Maharashtra reported in 2025 SCC Online Bom 1502, Nitin Bhanudas
Waghmare Vs. State of Maharashtra & Ors. reported in 2023 3 MhLJ
556 has taken a view that once it is found that the management sought
permission to fill up the post and the Education Officer do not
communicate either granting or rejecting the said permission within
reasonable time, the management cannot be faulted with. This Court
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has also held that once it is found that the Education Officer failed to
inform the Management about the number of surplus teachers waiting
for appointments when the petitioner is appointed and the impugned
order do not depict that the management was informed about
availability of any surplus teacher, in that case it cannot be said that the
management have committed any error in issuing an advertisement and
filling up the posts.
16. The grounds raised in the affidavit in reply which do not find
place in the impugned order cannot be considered for a simple reason
that the Respondent No.2 cannot be allowed to supplement the reasons
assigned in the impugned order by way of an affidavit in reply. The law
in that regard is settled in view of judgment of the Hon'ble Apex Court
in the case of Mohinder Singh Gill & Anr. Vs. The Chief Election
Commissioners, reported in 1978(1) SCC 405, wherein the Hon'ble
Apex Court held that an order has to be judged on what is stated in the
order and not on what is sought to be supplanted/improved by
subsequent affidavit/s in support thereof.
17. Thus, we are not impressed with the contention raised by
Respondent No.2 in affidavit in reply where Respondent No.2 is trying
to supplement the reasons. In the light of consistent view taken by this
Court (supra) and having adopted the said view, we hold that, the
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order passed by the Education Officer of refusing to grant approval to
the appointment of the petitioner is unsustainable, therefore we are
inclined to allow the Writ Petition by passing following order :-
:: ORDER ::
(i) Writ Petition stands allowed.
(ii) Impugned order dated 27.08.2019 passed by Respondent
No.2-Education Officer thereby refusing to grant approval to the
appointment of the petitioner as a Shikshan Sevak is quashed and
set aside.
(iii) The Respondent No.2-Education Officer is directed to grant
approval to the appointment of the Petitioner as a Shikshan Sevak
from 04.03.2017 to 03.03.2020 by granting the consequential
benefits pursuant to the same.
18. With these directions, Writ Petition stands disposed of.
[ABASAHEB D. SHINDE, J.] [R. G. AVACHAT, J.]
Narwade/
