Bombay High Court
Ku. Meenakshi Vijay Sahare vs State Of Maharashtra, Department Of ... on 4 September, 2025
Author: M.S. Jawalkar
Bench: M.S. Jawalkar
2025:BHC-NAG:8743-DB
1 WP 3748.22
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.3748 OF 2022
Ku. Meenakshi Vijay Sahare,
Aged 35 years, Assistant Teacher,
R/o. At Post Sendurwafa, Tq. Sakoli,
District-Bhandara. .. Petitioner
..Versus..
1. State of Maharashtra,
Department of Sports and
School Education, Madam
Cama Road, Hutatma Rajguru Chowk,
Mantralaya, Mumbai-400 032
Through its Secretary.
2. Divisional Deputy Director of Education,
Nagpur Division, Nagpur.
3. Education Officer (Secondary),
Zilla Parishad, Bhandara.
4. Smt. Anandabai Education Society,
Isapur/Guradha, Tq. Lakhni,
District-Bhandara, through
President/Secretary.
5. Shivaji Isapure Vidyalaya,
Palasgaon, Tq. Sakoli,
Disrtrict-Bhandara, through
its Headmaster. .. Respondents
..........
Smt. R.D. Raskar, Advocate for Petitioner.
Shri S.B. Bissa, AGP for Respondent Nos.1 to 3/State.
Shri A.R. Ingole, Advocate for Respondent Nos.4 and 5.
Shri N.D. Khamborkar, Advocate for Applicant/Intervenor.
..........
2 WP 3748.22
CORAM : SMT. M.S. JAWALKAR, AND
PRAVIN S. PATIL, JJ.
RESERVED ON : 13th AUGUST, 2025.
PRONOUNCED ON : 04th SEPTEMBER, 2025.
JUDGMENT [Per : Pravin S. Patil, J.]
1. Rule. Rule made returnable forthwith. By consent of
learned Counsel for the parties, the matter is taken up for final
disposal.
2. The grievance raised by the Petitioner in the present matter
is that though her appointment was made by the Management by
following due procedure of law, the learned Education Officer, by
impugned communication dated 09.03.2021 and 09.02.2022, refused
to grant approval to the services of Petitioner against the post of
Assistant Teacher in Respondent no.5 school. Hence, with this
grievance, the present petition came to be filed before this Court by
the Petitioner.
3. The facts involved in the matter can be summarized as
under :
Respondent No.4 is Educational Society and runs
Respondent No.5-School. It is the case of the Petitioner that Society
runs in all five schools. In the Academic Session-2009-2010, two
posts falls vacant on the count of promotion of the existing teacher as
3 WP 3748.22
a Headmaster in the respective schools, out of total 59 sanctioned
posts.
It is the submission of the Petitioner that as per the roster of
the schools, which she has produced on record, there is a backlog of
6 posts of Other Backward Class category. Therefore, the
Management, without obtaining prior permission of Education
Officer, issued the advertisement in a widely circulated newspaper in
Bhandara District and, thereafter, she has been selected by
Management from amongst available candidates and issued the
appointment order for a probation period of three years as Shikshan
Sevak. Accordingly, Petitioner joined Respondent No.5-School on
15.11.2011. After joining of the school, it is claimed that the
proposal for approval was forwarded to the Respondent No.3-
Education Officer on 15.11.2011 by Respondent No.5 school.
4. It is stated by the Petitioner that in the meantime,
Respondent Nos.4 and 5 approached to the State Government for
seeking directions to grant approval to the appointment of the
Petitioner in absence of 'No Objection' obtained from the Education
Officer. Petitioner relied upon the communication issued under the
signature of one Shri S.D. Mane, Under Secretary, Maharashtra State,
addressed to the Education Officer, stating that by excluding the
condition of not obtaining the prior permission, the approval should
4 WP 3748.22
be granted to the appointment of Petitioner along with one Ku.
Achala Martand Hattimare.
5. It is stated that the said communication of the State
Government was also forwarded to the Deputy Director of Education,
Nagpur Division, Nagpur. Accordingly, the Deputy Director of
Education, Nagpur made communication with the Education Officer
on 17.12.2018. In view of these two communications, Respondent
No.5 on 16.12.2020 made request to the Education Officer that
though proposal for the approval of Petitioner is pending with the
office of Education Officer since 15.11.2011, no decision has been
taken and, therefore, same should be considered positively in the
matter.
In view of above said communications, Respondent No.3-
Education Officer first time looked into the pending proposal and on
verification of same, vide communication dated 22.01.2021, pointed
out certain shortfalls in the proposal forwarded by the Respondent
No.5. It is clarified that unless the said deficiencies in the proposal
stated by Respondent No.3 in communication dated 22.01.2021,
no approval can be granted in the matter.
6. According to the Petitioner, Respondent No.5, by his
communication dated 06.02.2021, satisfied all the deficiencies
5 WP 3748.22
pointed out by the Respondent No.3-Education Officer. However, by
the order dated 09.03.2021, the Education Officer rejected the
proposal on the ground that the advertisement was not issued in a
widely circulated newspaper, there is no pay-scale nor workload is
mentioned in the advertisement, there is a backlog of Scheduled
Castes, Scheduled Tribe, Nomadic Tribe and therefore the
advertisement issued is not proper and lastly on the count of delay in
forwarding the proposal for approval.
7. It is stated by the Petitioner that Respondent Nos.4 and 5
made an attempt before Education Officer to re-consider the order of
rejection of approval. But by the order dated 09.02.2022, after re-
visiting all the issues, the Respondent No.3-Education Officer
confirmed his order dated 09.03.2021.
Hence, Petitioner, in the background of above said factual
position, approached before this Hon'ble Court to challenge the order
of Education Officer.
8. In the present petition, the Respondent No.3 filed their
affidavit and stated that as the reasons stated in the impugned order
are justified, there is no need to invoke the extra-ordinary jurisdiction
to re-consider the matter. It is pointed out that in absence of
permission from the Education Officer, which is the mandate as per
6 WP 3748.22
Section 5 of the M.E.P.S. Act, the entire action taken by the
Respondent Nos.4 and 5 to appoint the Petitioner and forward the
proposal for approval is immaterial and therefore decision taken in
the matter is right and correct.
9. From the docket of this petition, the learned Assistant
Government Pleader appearing for Respondent No.3 drew our
attention to the order passed by this Court dated 11.03.2024. The
same is reproduced as under :
"The learned counsel for the petitioner is granted
time of three weeks to file additional affidavit, as prayed,
on the issue of proposal being forwarded to the Education
Officer well within time for grant of approval.
2. During the course of hearing, it was noticed that the
State Government has issued a communication to the
respondent-Education Officer not to insist upon the options
of no objection from the Education Department in the
matter of appointment of the petitioner as Shikshan Sevak.
3. We failed to understand from the contents of the said
communication as to what was the occasion for the
Additional Secretary, School Education, to issue such
communication bearing No. lafd.kZ&2018@la-dz-507@Vh,uVh&1
dated 17.12.2018. As such, we would like to have response
of the Secretary, of the School Education Department.
4. Learned Additional Government Pleader shall
communicate this order to the Secretary, School Education
Department.
5. Stand over to 2.4.2024"
10. In furtherance of directions of this Court, the Principal
Secretary, School Education Department, Mantralaya, Mumbai on
07.05.2024 filed affidavit on record and specifically stated in para (3)
7 WP 3748.22
as under :
"3. Pursuant to the order passed by this Hon'ble High
Court, it is submitted that, the No Objection Certificate is
one of the essential documents for granting approval for the
appointment of Shikshan Sevak, which should be given by
concern Education Officer. My office has gone through the
records available with the concern desk, the letter
17.12.2018 is not listed in the reference register nor is its
copy available. Hence, it is clear that, this letter is not
issued by this department. Also, I further clarify that, the
other letters of the same subject bearing outward number of
this section, are cancelled by Government Letter dated
12.02.2021. Hereto Annexed and Marked as Exh-R-1 is the
copy of letter dated 12.02.2021. Hence, the prayer of the
petitioner to sanction approval to the post of Shikshan
Sevak on the basis of letter dated 17.12.2018 is illegal.
Hence, the request of the petitioner to grant approval to the
appointment as Shikshan Sevak cannot be
granted/sanctioned.
I say and submit that, in such cases the responsibility
of salary to the petitioner and other consequential benefits
lies on the respondent management only."
11. As such, learned Assistant Government Pleader states that
by manipulating the document dated 17.12.2018, Petitioner and
Respondent Nos.4 and 5 asked Education Officer to decide the
proposal in absence of prior permission letter of his office. But same
is now clarified by the Authority by filing affidavit on record.
Therefore, there is one additional reason to reject the proposal of
petitioner.
12. In the light of submissions of both the parties, we have
perused the entire record and also the provisions of law which are
8 WP 3748.22
pointed out by the parties in the matter.
13. It is admitted fact that Respondent No.4 runs Respondent
No.5 private school. The services of the Petitioner are governed by
the provisions of the M.E.P.S Act, 1977 and Rules, 1981. The Section
5 of this Act is crucial to decide the controversy in the matter.
According to this provision, it is the obligation on the Management to
fill up the vacant post in the manner prescribed. The manner
prescribed is under Rule 9 of the M.E.P.S. Rules,1981. It will be
profitable to reproduce Section 5 of the M.E.P.S. Act, 1977 and Rule
9 of the M.E.P.S Rules, 1981.
Section 5: Certain obligations of Management of private schools :
(1) The Management shall, as soon as possible fill in, in the
manner prescribed, every permanent vacancy in a private school by the
appointment of a person duly qualified to fill such vacancy ;
Provided that, unless such vacancy is to be filled in by
promotion, the Management shall, before proceeding to fill such vacancy,
ascertain from the Educational Inspector, Greater Bombay, [the Education
Officer, Zilla Parishad or, as the case may be, the Director or the officer
designated by the Director in respect of schools imparting technical,
vocational, art or special education], whether there is any suitable person
available on the event of such person being available, the Management
shall appoint that person in such vacancy.]
(2) Every person appointed to fill a permanent vacancy
except Assistant Teacher (Probationary) shall be on probation for a period
of two years. Subject to the provisions of sub-sections (3) and (4), he
shall, on completion of this probation period of two years, be deemed to
have been confirmed.
Provided that, every person appointed as Assistant Teacher
(Probationary) shall be on probation for a period of three years]
9 WP 3748.22
(2A) Subject to the provisions of sub-sections (3) and (4),
Assistant Teacher (Probationary) shall, on completion of the probation
period of three years, be deemed to have been appointed and confirmed as
a teacher.
(3) If in the opinion of the Management, the work or
behaviour of any probationer, during the period of his probation, is not
satisfactory, the Management may terminate his services at any time
during the said period after giving him one month's notice or salary or
honorarium of one month in lieu of notice.
(4) If the services of any probationer are terminated under
sub-section (3) and he is reappointed by the Management in the same
school or any other school belonging to it within a period of one year from
the date on which his services were terminated, then the period of
probation undergone by him previously shall be taken into consideration
in calculating the required period of probation for the purposes of sub-
section (2).
(4A) Nothing in sub-section (2), (3) or (4) shall apply to a
person appointed to fill a permanent vacancy by promotion of by
absorption as provided under the proviso to sub-section (1).
(5) The Management may fill in every temporary vacancy by
appointing a person duly qualified to fill such vacancy. The order of
appointment shall be drawn up in the form prescribed in that behalf, and
shall state the period of appointment of such person.
Rule 9 : Appointment of staff :
(1) The teaching staff of the school shall be adequate having
regard to the number of classes in the school and the curriculum including
alternative courses provided and the optional subjects taught therein.
(2) Appointments of teaching staff (other than the Head and
Assistant Head) and those of non-teaching staff in a school shall be made
by the School Committee:
Provided that, appointments in leave vacancies of a short
duration not exceeding three months, may be made by the Head, if so
authorised by the School Committee.
(2-A) The management of the private school and advertise the
vacancies for the post of teacher in details of subjects, with Bindunamavali
on the online software programme developed by the Government or an
agency authorized by the Government in at least one local newspaper
10 WP 3748.22
having wide circulation in the region, and also notify the vacancies to the
Employment Exchange Centre of the District and District Social Welfare
Officer.]
(2-B) The management shall be kept open for at least fifteen
days before filling of the concerned post. The candidate may apply for
vacant post in response to the said advertisement through online process
or by making an application in writing giving details regarding name,
address, date of birth, educational and professional qualifications,
experience with the marks secured in the Aptitude Test.
(2C) After completion of the period mentioned in the
advertisement, the Education Officer or Deputy Director, as the case may
be, shall communicate the names of the candidates, who have passed the
Aptitude Test, to the Management through online process in proportion
1:10 for one vacant post. The selection of the candidate shall be made by
the school committee on the basis of interview. If the school committee
does not select candidate having higher marks in the Aptitude Test, the
Management shall record the reasons for the same :
Provided that, the Management may also select the candidates
who have passed the Aptitude Test directly from the online merit list
maintained by the Education Director, without taking interview.
(2D) The Management shall publish the names of the selected
candidates within five working days on Pavitra web portal and shall also
communicate the names of the selected candidates to the concerned
Education Officer or Deputy Director, as the case may be.]
(3) Unless otherwise provided in these rules for every
appointment to be made in a school, for 1(***) a non teaching post, the
candidates eligible for appointment and desirous of applying for such post
shall make an application in writing giving full details regarding name,
address, date of birth, educational and professional qualifications,
experience, etc., attaching true copies of the original certificates. It shall
not be necessary for candidates other than those belonging to the various
sections of backward communities for whom posts are reserved under sub-
rule (7) to state their castes in their applications.
(4) The age limit for appointment to any post in a school shall be
as follows, namely : -
(a) for an appointment to be made to any post in a
primary school, a candidate shall not be less than 18 years of age and
more than [28] years of age, and the case of candidate belonging to
Backward Classes he shall not be more than [33] years of age:
11 WP 3748.22
Provided that, upper age-limit may be relaxed in case of women,
ex-servicemen and persons having previous experience with the previous
permission of the Deputy Director.
(b) for an appointment to be made to any post in any
school other than primary school, a candidate shall not be below the age
of 18 years.
(5) A letter of appointment order in the Form in Schedule "D"
shall be issued to a candidate appointed to the post. A receipt in token of
having received the appointment order shall be obtained from the
candidate appointed.
(6) Every employee shall within three months of his
appointment, undergo medical examination by a registered medical
practitioner named, if any, by the Management or otherwise by any
registered medical practitioner. The expenses of medical examination shall
be borne by the Management. The appointment shall be conditional
pending certificate that he is free from any communicable disease and that
he is physically fit to be so appointed.
(7) The Management shall reserve 52 per cent, of the total
number of posts of the teaching and non-teaching staff for the persons
belonging to the Scheduled Castes, Scheduled Tribes, De-notified Tribes,
(Vimukta Jatis), Nomadic Tribes, Special Backward Category and Other
Backward Classes as follows namely :-
(a) Scheduled Castes 13 per cent;
(b) Scheduled Tribes 7 per cent;
(c) De-notified Tribes (A) 3 per cent;
(d) Nomadic Tribes (B) 2.5 per cent;
(e) Nomadic Tribes (C ) 3 per cent;
(f) Nomadic Tribes (D) 2 per cent;
(g) Special Backward Category 2 per cent;
(h) Other Backward Classes 19 per cent;
Total : 52 per cent.
(7A) To fill up the posts by nomination, as specified in sub-rule
(7), the management shall follow the category-wise and percent-wise
reservation as provided in sub-section (2) of section 4 of the Maharashtra
State Public Services (Reservation for Scheduled Castes, Scheduled Tribes,
De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Special Backward
Category and Other Backward Classes) Act, 2001. (Mah. VIII of 2014),
and the Bindunamawali specified in Schedule D-1.
12 WP 3748.22
Provided that, to fill up the post by direct recruitment in Group C and
Group D for district-wise cadre in the districts as specified in Schedule D-6,
an additional reservation shall be applicable for Schedule Tribe as
specified in Schedule D-5.
Provided further that, the post of teachers in the Schedule Areas as
specified in Schedule D-6 of Thane, Nashik, Nandurbar, Dhule, Jalgaon,
Ahmednagar, Pune, Nanded, Amravati, Yavatmal, Gadchiroli and
Chandrapur, districts shall be fill up from local candidates belong to the
Scheduled Tribes, possessing necessary educational qualifications, as
decided by the State Government, from time to time.
(8) If the posts specified in sub-rule (7) remain vacant after
following the procedure specified in sub-rule (2A), the management shall
adopt the procedure laid down in sub-rule (9) to fill up the said vacancies.
(9) the posts specified in sub-rule (7) and clause (a) of sub-
rule (10), shall not be filled in by the candidates belonging to the other
castes, tribes, categories or classes, than the castes, tribes, categories or
class for which the posts are reserved.
(10) (a) The Management shall reserve 24 percent of the
total number of posts (or vacancies) of Heads and Assistant Heads for the
members of Scheduled Castes, Scheduled Castes converts to Buddhism,
Scheduled Tribes, Denotified Tribes and Nomadic Tribes as follows,
namely :
(i) Scheduled Castes and Scheduled Castes converts 13 per cent
to Buddhism
(ii) Scheduled Tribes including those living outside 7 per cent
the specified areas
(iii) Denotified Tribes and Nomadic Tribes 4 per cent
(b) Deleted
(10A) To fill up the posts by promotion, as specified in clause (a)
of sub-rule (10), the management shall follow the Bindunamawali as
specified in Scheduled D-2.
(10B) To fill up the posts by nomination in smaller cadre, the
management shall follow the Bindunamawali as specified in Schedule D-3;
Provided that, to fill the post by direct recruitment in Group C and Group
D for district-wise cadre, an additional reservation shall be applicable for
the Schedule Tribes as specified in Schedule D-5.
13 WP 3748.22
(10C) To fill up the post by promotion in smaller cadre, the
management shall follow the Bindunamawali as specified in Schedule D-4.
14. Section 5 of the M.E.P.S. Act, 1977 mandates to the
Management that before filling up any vacant post, the Management
should ascertain from the Education Office, whether there is any
suitable person available for the post and if such person is available,
the Management shall appoint that person in such vacancy. The very
purpose behind this provision is that the Education Officer of the
District is required to maintain the list of a surplus teachers.
Therefore, such surplus teachers should get appointment and
government should not be burdened financial loss, so also the entire
recruitment exercise can be curtained if eligible person from amongst
surplus teacher is appointed on the available vacant seat.
15. Under Rule 9 of the M.E.P.S. Rules, 1981, the procedure is
prescribed, as to how, the recruitment exercise should be undertaken
by the Management. Rule 9 (7) of the said Rules, prescribed that it is
the common knowledge that while filling up this percentage of
reserved post, the 100 point roster prepared by the State Government
is to be made applicable and accordingly on the basis of point of
roster available in the school, the post is required to be filled in of the
reservation of various categories.
14 WP 3748.22
16. It is further pertinent to note that as per Rule 9 (2) of the
M.E.P.S. Rules, the purpose of advertisement issued by the
Management is that the Management should first verify from the
backward cell about the availability of vacancies as per 100 point
roster and specify the Management from which category the
permission can be granted to fill up the vacant post. As such, after
verification of the roster, the backward cell provides the vacancy from
a particular category and then by relying upon the said roster, the
Education Officer grants permission to the respective Management to
fill up the post.
17. It is stated that Section 5 read with Rule 9 of the M.E.P.S,
Rules provides mechanism and purpose for which the advertisement
is mandatory for filling up the vacant posts in the school. Therefore,
according to us, for every appointment, which is to be made by the
Management, the compliance of Section 5 read with Rule 9 of the
said Act/Rule is mandatory. Our view is fortified by the judgment of
this Court in case of Vasant Shikshan Prasarak Mandal Through its
President and others .vs. State of Maharashtra and others, reported
in 2016 SCC OnLine Bom. 14947, this court held in para 32 as
under :
15 WP 3748.22
32. "There appears to be, in recent times, a growing
trend of appointing new teachers by ignoring eligible
surplus teachers. I find it to be an alarming situation.
Surplus teachers are maintained in a list with the
Education Officer of the Zilla Parishad in each
district with the benevolent object of ensuring their
absorption whenever permanent vacancy arises. The
Managements as like petitioner Nos. 1 and 2 herein,
ignore important provisions of the MEPS Act, 1977
by not complying with the mandate of absorbing
surplus teachers and by appointing fresh hands.
Despite the Government Resolution dated
25-10-2004 being applicable, approvals are sought
by appointing fresh hands in violation of the proviso
to section 5(1). It cannot be ruled out that in many
cases such approvals may have been granted by the
Education Department knowingly or unknowingly.
As a consequence of such acts of the Management,
those surplus teachers, who are permanent and
because of having been declared surplus, have
virtually lost their employments, are overlooked as
the Managements prefer to appoint fresh hands."
18. So also, in case of Gajanan s/o Marotimeharkar and
others .vs. State of Maharashtra and others, reported in 2022 SCC
OnLine Bom. 1023, observed in Para 19, 30, 33 & 42 as under :
19. Conjoint reading of the above rules clearly indicates
that one can not be appointed as a teacher unless the
candidates possess the requisite qualification. The
qualification and the procedure laid down in the Act and
Rules for selection is mandatory. The Management cannot
deviate from the Law prescribed for the appointment of the
Staff in private schools. It must follow the procedure and
appoint the candidates possessing the qualifications
prescribed under the Rules of 1981. The appointments
made deviating from the rules cannot be legitimized. The
Management cannot say that advertising the vacancy and
holding an interview to select the candidate is in complete
compliance with the provisions of the M.E.P.S. Act and rules
in the absence of permission from the competent Authority.
No Management on its own can dilute the provisions of Law
16 WP 3748.22
as per its convenience.
30. We may add to the above observation that the
purpose behind the condition imposed in the proviso to
Section 5 (1) of M.E.P.S. Act, is to accommodate the surplus
persons, who have priority over the vacant posts. They
being surplus, the time spent on the recruitment may be
saved, and that may eliminate the hardship to be caused to
the students in imparting the Education. The students may
get experienced teachers. Be that as it may, though
Management has the power to appoint the Staff but is
controlled by M.E.P.S. Act and Rules. It has no absolute
power to make its own practice and procedure. It must
adhere to the rules and regulations. The procedures for
public employment are for maintaining equal opportunities
to avoid chaos, bias, and monopoly. Violating the mandate
of Law causes chaos and mess, and the possibility of
illegality cannot be ruled out. Assuming for the sake of
argument that the Education or other responsible officer
fails to respond to the request of the Management
ascertaining about the surplus persons to the Management.
It does not relieve the Management from following the
procedure laid down in rules 9, (2A), and (2B) read with
clause (vii) of IInd Entry in Schedule B of the M.E.P.S. Act.
None of the judicial pronouncements on the exceptions to
the G.R. 02.05.2012 precluded the Management from
following the due procedure. Hence, the appointments
made deviating from the procedure prescribed for the
appointments of the Staff can not be legitimized.
33. The Court cannot close its eyes if any illegality is
discovered though not pointed out by either party to the
proceeding. The Courts must find out the truth and
eliminate the illegalities. The Courts are the caretaker of the
citizens, not only coming to the Courts but also the citizens
who do not come to the Courts. The Courts must protect the
absent party's interest.
42. On the above premise, it is to be considered whether
the Court may exercise its discretionary jurisdiction under
the principle of equity in their favour. He who comes into
the equity must come with clean hands and is entitled to
claim the equity. The doctrine of equity relates to the past
conduct of the parties. It must be established that the party
claiming equity must have been involved in an equitable act
himself in the past. If such a person is involved in fraud or
misrepresentation with respective cases, then he may not
17 WP 3748.22
demand equity. Such a person must be fair and must come
with clean hands."
19. In the present case, admittedly without obtaining prior
permission the advertisement was issued and appointment of the
Petitioner has been done by the Management. The clarification is
given that as per the roster available with the Management, there
were backlog of 6 posts from Other Backward Class category and,
therefore, it was justified on their part to issue the advertisement
without permission. But the fact cannot be denied that the roster
which relied upon by the Petitioner also shows the backlog of
Scheduled Castes, Scheduled Tribes and Nomadic Tribes and Special
Backward Class etc. Therefore, in such exigency, according to us, the
permission from the backward cell was required to be obtained or at
least, by applying the 100 point roster, it was necessary to ascertain
as to which posts are required to be filled in from other category to
maintain the reservation prescribed under Rule 9 (7) of the M.E.P.S.
Rules. But there is no explanation available on record to substantiate
this factual position. Hence, we are not satisfied with the submission
of the Petitioner that only because there was a backlog of 6 posts
from Other Backward Classes category, therefore, prior permission
was not necessary.
18 WP 3748.22
20. It is further pertinent to note that in the present petition,
appointment of Petitioner was made on 28.06.2011 as per the
appointment order. It is stated by the Petitioner that Respondent
No.5 on 15.11.2011 forwarded the proposal to the Education Officer.
But Education Officer denied the receipt of such proposal by his office
on 15.11.2011. Therefore, Petitioner has filed certain affidavit on
record stating that it was the practice of the Respondent No.3-
Education Office not to put their stamp of receipt on document which
they have submitted to Education office. Therefore, considering the
prevailing practice, the document relied by them should be
considered as a correct submission.
21. In this regard, we have perused the affidavit filed by
Respondent Nos.4 and 5 dated 01.04.2024. The document enclosed
along with the said affidavit during period from 2011 to 2012 clearly
shows that though there is no stamp of the Education Office,
however, there is at least stamp of the school and the signature of the
concerned clerk/officer of Education Office was recorded on the said
documents showing that on that date the document was received by
the office of Education Officer. However, the document relied by the
Petitioner dated 15.11.2011 do not disclose stamp of outward
number of school nor the signature of the concerned person of
Education Office, therefore, the claim made by the Petitioner that on
19 WP 3748.22
15.11.2011 document was submitted to the Education Office seems
to be doubtful.
22. It is further pertinent to note that if the proposal since the
year 2011 was pending and Education Officer was not taking decision
on the said proposal, it is expected from Respondent Nos.4 and 5 to
approach the Education Office before approaching to the State
Government. However, in absence of any such event, the Under
Secretary Shri S.D. Mane issued the communication directly in the
name of the Education Officer dated 17.12.2018. So it is surprising
how Petitioner and Respondent Nos.4 and 5 were expecting that their
proposal is going to be rejected. Therefore, this Court has rightly
passed the order dated 11.03.2024 and seek explanation from the
Secretary of the School Education Department.
23. It is pertinent to note that the explanation tendered in the
matter is under the signature of Principal Secretary, vide affidavit
dated 07.05.2024, which is reproduced above. It is crystal clear from
the said affidavit that during the said period no document under the
signature of Shri S.D. Mane was issued from the said office. Along
with the affidavit, Respondent no.1 has also produced the
communication dated 12.02.2021, wherein name of the Petitioner is
nowhere disclosed as like of other employees in whose favour
20 WP 3748.22
communications were issued on 17.12.2018. According to us, such
affidavit sworn by the Principal Secretary, School Education
Department, is sufficient to held that there was no communication
issued dated 17.12.2018 in case of petitioner. Therefore, the
manner, in which the Petitioner tried to impress the Education
Officer, is found to be unjustified in the matter and we have a reason
to believe that under false pretext the Petitioner and Respondent
nos.4 and 5 pressurized the Education Officer to decide the issue of
approval in absence of permission of the Education Officer. Hence,
the person who did not approach with clean hands is not entitled for
any equity and, therefore, we are of the opinion that the Petitioner is
not entitled for any equity in the present matter.
24. According to us, once it is held that the permission of
Education Officer is necessary for filling up the vacant post, the
consequential action taken by the Management automatically vitiates.
Furthermore, it is the mandate of the law that the Management shall
follow the rule of reservation in the manner prescribed under Rule 9
of the M.E.P.S. Rules. The appointments made deviating from the
rules can not be legitimized. The management can't say that
advertising the vacancy and holding an interview to select the
candidate is in complete compliance with the provisions of M.E.P.S.
Act and Rules in the absence of permission from the Education
21 WP 3748.22
Officer. According to us, this act of the Respondent nos.4 amounts to
violation of the reservation policy framed by the statute. Therefore,
the reason recorded by the Education Officer that without fulfilling
the backlog from available category is justified in the matter.
25. On the issue of the delay, it is clear that though the
appointment of the Petitioner is shown to be made in the year 2011,
it is clear that for a period of 9 years, the Petitioner did not approach
to the Respondent-Education Officer for getting updates of the
matter. From the record, it is clear that after 2011, first time
approached on 16.12.2020. Hence, the Education Officer is justified
to reject the approval on the count of delay by recording the reason
that there is no communication in between the said long period.
As such, we are of the opinion that there is no fault in the order
passed by the Education Officer. Accordingly, there is no need of any
interference of this Court in the matter.
26. In the circumstances, petition is devoid of merit and hence
the writ petition is dismissed. Application, if any, shall stands
disposed of accordingly. Rule is discharged. No costs.
(Pravin S. Patil, J.) (Smt. M.S. Jawalkar, J.)
Gulande
Signed by: A.S. GULANDE
Designation: PS To Honourable Judge
Date: 04/09/2025 19:05:01
