Bankatswami Shikshan Sanstha vs Dinkar Govindrao Maske
2025 Latest Caselaw 8118 Bom

Bombay High Court

Bankatswami Shikshan Sanstha vs Dinkar Govindrao Maske on 28 November, 2025

2025:BHC-AUG:32726

                                                  1                 WP / 1619 / 2003


                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   BENCH AT AURANGABAD

                                  WRIT PETITION NO. 1619 OF 2003

              Shri Bankatswami Shikshan Sanstha
              Khadkighat, Taluka and District - Beed,
              Through its Secretary                                    .. Petitioner

                     Versus

              1] Dinkar S/o Govindrao Maske,
                 Age 37 years, Occ. Service,
                 R/o. Gawalwadi, Post. Palwan,
                 Taluka and District Beed

              2] The Principal,
                 Shri Bankatswami Mahavidyalaya,
                 Beed

              3] The Deputy Director of Vocational
                 Education and Training,
                 Bhadkalgate, Aurangabad                               .. Respondents

                                                   ...
                            Advocate for the petitioner : Mr. S.R. Barlinge
                         Advocate for the respondent no. 1 : Mr. K.G. salunke
                                  Respondent no. 2 served - absent
                         AGP for respondent no. 3 - State : Mr. K.B. Jadhavar
                                                   ...

                           CORAM                 : SACHIN S. DESHMUKH, J.

                           RESERVED ON   : 21 NOVEMBER 2025
                           PRONOUNCED ON : 28 NOVEMBER 2025

              JUDGMENT :

This petition was admitted by this Court on 04.06.2003.

While admitting the petition, interim relief was granted and the order of

the School Tribunal dated 11.03.2003 directing reinstatement was

stayed. As such, the order of reinstatement could not be implemented.

2 WP / 1619 / 2003

2. The petitioner has put forth the following prayers :-

"(A) By a Writ of Certiorari or any other appropriate Writ, Order or directions in the like nature, the impugned judgment and order dated 11.3.2003 passed by the learned Presiding Officer, School Tribunal, Aurangabad in Appeal No. 10 of 2002 may kindly be quashed and set aside.

(B) The Record and Proceedings in Appeal No. 10 of 2002 may kindly be called for from the office of the Presiding Officer, School Tribunal, Aurangabad.

(C) Pending hearing and final disposal of this Writ Petition, the operation and execution of the impugned judgment and order dated 11.3.2003 passed by the learned Presiding Officer, School Tribunal, Aurangabad in Appeal No. 10 of 2002, may kindly be stayed.

(D) Grant ad-interim relief in terms of prayer clause (C) above;

(E) Any other relief to which the petitioner is founf entitled to may please be granted."

3. The petitioner - management, raising an exception to the

order of the School Tribunal, allowing the Appeal presented by the

respondent - employee, setting aside the order of termination dated

01.01.2002 along with the backwages, has filed this petition.

4. The respondent - employee, having enrolled with the

Employment Exchange, was recommended for the appointment with

the petitioner - management for the post of Full Time Teacher in subject

- Accounting and Auditing which was vacant. After being interviewed

by the petitioner and having found suitable and eligible, the candidature

of employee was considered by the petitioner. Initially, the appointment

order of 10.02.1997 was issued in favour of the respondent and 3 WP / 1619 / 2003

approval to the same was also accorded by the office of the Deputy

Director, Vocational Education and Training, Aurangabad.

5. Preceded by the initial appointment order, the order of

continuous service was also issued for the subsequent academic year

1998-99 with only stipulation that same shall be approved by the

competent authority. Eventually, the approval was also accorded by

the competent authority till the academic year 2001.

6. Having rendered the services from the initial date of

appointment and eventually, approval by the competent authority, the

management terminated the services of the respondent - employee

without assigning reasons, amounting to termination de hors the

statutory protections.

7. Resultantly, the respondent - employee approached to the

School Tribunal by presenting an Appeal under section 9 of the

Maharashtra Employees of Private Schools (Conditions of Service) Act,

1977 (for short "the M.E.P.S. Act") and Maharashtra Employees of

Private Schools (Conditions of Service) Rules, 1981 (for short "the

M.E.P.S. Rules"), seeking reinstatement with full backwages, the

employee enrolled the name with the Employment Exchange Office in

the year 1996.

4 WP / 1619 / 2003

8. On account of the vacancy of Full Time Teacher in

Accounting and Auditing, the respondent - employee received a call

from the Employment Exchange. Having appeared for the interview,

the respondent - employee was selected for the post of Full Time

Teacher in the aforesaid subject. The services of the respondent -

employee were approved by the competent authority and the same

was continued for the subsequent year, as such, the employee has

attained the status of permanency by virtue of section 5(2) of the

M.E.P.S. Act.

9. Although, the appeal was presented in 2002, the petitioner

- management having appeared before the School Tribunal, however,

filed its written statement before the Tribunal on 09.01.2003, wherein a

reference is made to the order of this Court passed in writ petition no.

1247 of 1996, attempting to contend that the appointment of the

respondent - employee was not against a permanent vacancy. The

employment was confined to one academic year and employee was

wrongly continued in service without there being vacancy. The initial

appointment order of the respondent - employee, is ab initio illegal, as

such, cannot claim the right to the post when the post wass occupied

by another person, namely, Sunil Laxmanrao Kadam, who was

reinstated pursuant to the order of this Court dated 13.08.2002 passed

in writ petition no. 1247 of 1996.

5 WP / 1619 / 2003

10. The School Tribunal, considering the fact that the

employee is duly qualified, further observed that the appointment order

does not contain any stipulation, as is asserted by the petitioner -

management that it was against a post occupied by aforesaid Sunil

Laxmanrao Kadam. In absence of any stipulation and while allowing

the appeal, the School Tribunal considered the length of the service

rendered by the employee which confers the statutory protection those

are available by virtue of the length of service so rendered by the

employee, as such, the termination with effect from 01.01.2002 was

held to be illegal and unsustainable and eventually, allowed the Appeal,

setting aside the otherwise termination directing, reinstatement of the

employee with the backwages. Eventually, the School Tribunal rejected

the contentions of petitioner holding that the appointment order

contained no such stipulation and the aproval granted was continuous.

11. The order of the School Tribunal is subject matter of

challenge in the present petition.

12. It is the contention of learned counsel for the petitioner -

management - Mr. Barlinge, that the order of appointment of the

respondent - employee, is confined to one academic year. Although,

the approval was accorded to the said appointment, however, that by

itself does not entail the respondent - employee, to claim the benefits

of permanency. The only mistake can be attributed to the petitioner -

management, is absence of stipulation in the appointment order that it 6 WP / 1619 / 2003

was against a permanent vacancy and the same would be subject

matter of outcome of the litigation prosecuted by the other employee,

namely, Sunil Laxmanrao Kadam.

13. In support of submissions, Mr. Barlinge has placed reliance

on the judgment of the Hon'ble Apex Court in the case of Hindustan

Education Society and another Vs. Sk. Kaleem sk. Gulam Nabi

and others; AIR 1997 SC 2126 and on the judgment of Co-ordinate

Bench of this Court dated 29.04.2019 passed in writ petition no. 3114

of 1999 (Shri Marutrao Ghule Patil and another Vs. Shri Ashok

Raghunath Gadakh and others), however, fairly concedes that if at all

the backwages are to be awarded, those are to be awarded for period

of one year only, as is contemplated under section 11 of the M.E.P.S.

Act and not beyond same.

14. Per contra, Mr. Salunke, learned counsel for the

respondent no. 1 - employee has supported the judgment rendered by

the Tribunal. It is submitted that the School Tribunal is justified in

allowing the Appeal presented by the respondent - employee the

appointment order does not indicate any stipulation in relation to the

period, as such, it cannot be confined to one academic year. On the

contrary, an attempt is made to read the appointment order partially

and not in its entirety. The appointment reads "your appointment is on

probation for a period of two years." and the same is also admitted in 7 WP / 1619 / 2003

written statement. As such, it is not open for the petitioner to contend

that the appointment is for one year. The name of the employee was

recommended by the Employment Exchange. It is thereafter the

employee was interviewed and selected by the petitioner, as such, it is

not open for the petitioner - management to contend that appointment

is for one year and not on probation and same does not warrant any

consideration.

15. In the precess, reliance is placed on the judgment of the

Hon'ble Apex Court in the case of Deepali Gundu Surwase V. Kranti

Junior Adhyapak Mahavidyalaya (D.Ed.) and others (Judgment

dated 12.08.2013 in Civil Appeal No. 6767 of 203), judgment of this

Court in Satish Balkrishna Mule V. M.V. Chaskadbi, Chairman, Shri

Samarth Vidya Prasarak Mandal reported in 1998 DGLS (Bom.) 14

and judgment of Co-ordinate Bench of this Court in case of Shramik

Shikshan Mandal and another Vs. State of Maharashtra and others

reported in 2017 DGLS (Bom.) 612.

16. Having heard the respective counsel for the litigating

slides, I have perused the record.

17. Admittedly, the respondent - employee possesses the

qualification and was enrolled with the Employment Exchange. Owing

to such registration, the candidature of respondent - employee was

referred by the Employment Exchange. Thereafter, the employee was 8 WP / 1619 / 2003

interviewed by the petitioner and, having found suitable and eligible,

was appointed as a Full Time Teacher in the subject - Accounting and

Auditing which culminated into the issuance of the appointment order

dated 10.02.1997.

18. The appointment order indicates that the order was for a

period of two year on probation. The appointment was approved by the

competent authority. Preceded by the initial approval, even subsequent

approvals are accorded by the competent authority. Respondent -

employee having rendered the services from initial date of appointment

i.e. 10.02.1997 till the date of termination. During this period, the

employee attained the status of permanent teacher by virtue of

operation of section 5(2) of the MEPS Act which is a self-operative

statutory provision.

19. Once the employee attains the status of a permanent

teacher, statutory protections are available, cannot be rendered

redundant. Since Rules 35 to 37 of the M.E.P.S. Rules provides the

mode of imposing penalty and conducting necessary enquiry and

admittedly, no such measure was adopted by the petitioner -

management before terminating the services and the services of the

respondent - employee were terminated in a surreptitious and unlawful

manner.

9 WP / 1619 / 2003

20. Although, it is a matter of record that Appeal was

presented by the employee in the year 2002, the petitioner consciously

chosen not to present its written statement and it is only after the order

of this Court in writ petition no. 1247 of 1996, the written statement is

presented on 09.01.2003, with a plea that in the light of the order of this

Court in writ petition, the services of the respondent - employee are

terminated.

21. It is further attempted to contend that the post in question

was subject matter of adjudication in pending writ petition before this

Court, "the employee could not have been appointed on probation" as

the vacancy itself was not a permanent vacancy. Having already

submitted that the respondent - employee was appointed on probation,

in written statement, the subsequent attempt to dispute that the

respondent - employee was never ever appointed on probation and

the appointment orders were issued for academic year and year to

year basis, is contrary to the record, as such, does not warrant any

consideration and is liable to be rejected.

22. The further attempt of the petitioners, to submit that

appointment was made against the vacancy which was the subject

matter of litigation before this Court, also does not warrant

consideration as the same plea is put forth in absence of any

stipulation in the appointment order itself and nonetheless same is an

afterthought. The appointment order will have to be read as it stands.

10 WP / 1619 / 2003

23. Admittedly, there is no stipulation, in the appointment

order. Therefore, the plea put forth by the petitioner - management

that it was the appointment order subject to outcome of aforesaid

litigation, deserves no consideration and is liable to be rejected.

24. With regard to the entitlement of the employee for

backwages is concerned, same has to be assessed from the

perspective that the employee was 36 years old at the time of illegal

termination, having rendered service for more than 4 years. Employee

was appointed against permanent vacancy and was on probation and

as such, entitled for the permanency by virtue of operation of sub-

section (2) of section 5 of the MEPS Act.

25. The School Tribunal having considered the termination as

illegal, directed the reinstatment with backages. This decision must be

considered in the light of the principles laid down by the Hon'ble Apex

Court in case of Hindustan Tin Works Private Limited V. Employees

of Hindustan Tin Works Private Limited reported in (1979) 2 SCC

80, wherein the Hon'ble Apex Court has held that once the termination

of service found to be invalid, the workman is deemed to be in service.

26. The relief of reinstatment with continuity of service is

normally granted, where termination of service is found to be invalid. It

would mean that the employer has taken away illegally the right to work

of the employee contrary to the relevant law or in breach of statutory 11 WP / 1619 / 2003

protections and, simultaneously, deprived the employee of earnings.

When the employer is found to be at fault, resulting which the

employee is directed to be reinstated, the employer could not shirk /

evade responsibility of paying the wages which the workman has been

deprived of by such illegal or invalid action of the employer.

27. It has been further observed by the Hon'ble Apex Court

that there cannot be a straight-jacket formula for awarding relief of

backwages. All relevant considerations must be taken into account.

More or less, it would be a motion addressed to the discretion of the

Tribunal. "Full backwages would be the normal rule" and the party

objecting to it must establish the circumstances warranting departure

from the rule.

28. Admittedly, as stated herein-above, the employee was

appointed at the age of 31 years, considering the qualification

possessed by him and had enrollment with the Employment

Exchange. The employee was subjected to interview. Having found

eligible and suitable, eventually appointment order on probation was

issued which is admitted by the petitioner in its written statement before

the School Tribunal. Once issuance of appointment order on probation

is accepted by the petitioner - management, it cannot retract or claim

that appointment was on year to year basis. As such, the reliance

placed by learned counsel for the petitioners Mr. Barlinge in the case of

Hindustan Education Society (supra) so also judgment in writ petition 12 WP / 1619 / 2003

no. 3114 of 1999 rendered by a Co-ordinate Bench of this Court, do not

lend any support.

29. The payment of backwages involves a discretionary

element, it has to be dealt with, in the facts and circumstances of each

case, as has been observed by the Hon'ble Apex Court in case of

Hindustan Tin Works Private Limited (supra), that there exists a

statutory sanction to direct payment of backwages in its entirety.

30. A co-ordinate Bench of this Court in Shramik Shikshan

Mandal and another (supra), considered the statutory provision in the

shape of section 11(2)(f) of the MEPS Act which empowers the Court to

grant other reliefs in lieu of reinstatement.

31. Since the respondent - employee has now attained the age

of superannuation, the judgment which is impugned in the present

petition, to the extent of grant of reinstatement, is hereby modified.

32. In view of the judgment of the Hon'ble Supreme Court in

Hindustan Tin Works Private Limited (supra), and considering the

protracted litigation and the hardships of such trials and tribulations are

not confined to the employee but his family members also suffered due

to same in the present case, therefore, I am of the considered opinion

that the respondent - employee is entitled for grant of 50% backwages

till the age of retirement.

13 WP / 1619 / 2003

33. In the light of aforesaid facts and circumstances, I pass the

following order :

ORDER

I] The writ petition is partly allowed.

II] The respondent - employee shall be entitled to the

continuity of service with all retiral benefits till the age of

superannuation along with 50% backwages, those shall be computed

till the age of superannuation on the basis of the gross salary payable

as per the applicable pay scale prevailing from time to time.

III] The petitioner - management shall, therefore, calculate the

backwages of the respondent - employee and ensure payment of the

said amounts from the funds of the management within a period of 12

(twelve) weeks from today, failing which the same would entail interest

at the rate of 6% per annum from the date of the impugned judgment of

the Tribunal.

IV] Proposal for retiral benefits shall be forwarded by the

petitioner - management within eight weeks from today.

V] Considering the fact that the employee was eligible, duly

qualified and recommended by the Employment Exchange and was

appointed on probation, completed the probation period and even

thereafter continued rendering services and plea now raised by the 14 WP / 1619 / 2003

petitioner, is an afterthought and devoid of merit. Termination being

patently illegal, cost will have to be mulcted upon the petitioners.

Accordingly, petitioners shall pay cost of Rs.10,000/- (Rs. Ten

Thousand) towards the cost of litigation to the respondent.

VI]         Rule is made absolute in aforesaid terms.



                                  [ SACHIN S. DESHMUKH ]
                                         JUDGE
arp/