Bombay High Court
Shri. Shivshankar Vithal Gaikwad And ... vs State Of Maha., Thr. Principal Secy., ... on 29 September, 2025
Author: M.S. Jawalkar
Bench: M.S. Jawalkar
2025:BHC-NAG:10071-DB
1 WP 7278.24
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.7278 OF 2024
1) Shri Shivshankar Vithal Gaikwad,
Aged about 32 years,
Occupation-Service,
R/o. Mukkam Post Sakarkheda,
Taluka Sindkhed Raja,
District-Buldhana.
2) Pooja Sanjay Kakde,
Aged about 31 years,
Occupation-Service,
R/o. Near Mahetre Hospital,
Buldhana, Tehsil and Dist.
Buldhana.
3) Priyanka Pundalik Thombre,
Aged about 33 years,
Occupation-Service,
R/o. At Milind Nagar,
Buldhana, Tehsil and Dist.
Buldhana.
4) Shubhangi Kisanrao Rathod,
Aged about 32 years,
Occupation-Service,
R/o. At Palaskhed Naik,
Post Padali, Tehsil and Dist.
Buldhana. .. Petitioners
..Versus..
1) The State of Maharashtra,
Through Principal Secretary,
Other Backward Bahujan Kalyan Vibhag,
Extension Building, First Floor, Madam
2 WP 7278.24
Cama Road, Hutatma Rajguru Chowk,
Mantrayala, Mumbai-32.
2) The Director,
Other Backward Bahujan Kalyan Vibhag,
Church Road, Pune, Pune.
3) Regional Deputy Director,
Other Backward Bahujan Kalyan Vibhag,
Amravati Division, Amravati.
4) Assistant Director, Other Backward
Bahujan Kalyan Vibhag, Buldhana.
5) Primary and Secondary Ashram School
Palaskhed Nago, through its Headmaster
Tehsil and Dist. Buldhana.
6) Shri Vasantrao Naik Shikshan Sanstha
Palaskhed Nago, Tehsil and Dist. Buldhana,
through its Administrator, Regional
Deputy Director, Other Backward Bahujan
Kalyan Vibhag, Amravati Division,
Amravati.
7) Rajesh Bansilal Rathod,
Aged about 55 years,
Occupation-Agriculturist,
R/o. Varsha Heights, Suwarna Nagar,
Buldhana, Near Gaikwad Hospital,
Tehsil and Dist. Buldhana. .. Respondents
................
Shri Firdos T. Mirza, Senior Advocate assisted by Shri Syed Owais
Ahmed, Advocate for Petitioners.
Shri A.M. Joshi, AGP for Respondent Nos.1 to 4.
Shri Z.Z. Haq, Advocate for Respondent No.5.
Shri R.G. Kavimandan,Advocate for Respondent No.6.
...............
3 WP 7278.24
CORAM : SMT. M.S. JAWALKAR AND
PRAVIN S. PATIL, JJ.
RESERVED ON : 25.08.2025.
PRONOUNCED ON : 29.09.2025.
JUDGMENT (Per : Pravin S. Patil, J.)
1. Rule. Rule made returnable forthwith. By consent of
the learned Counsel for the parties, the matter is taken up for
final disposal.
2. In the present petition, the petitioners, who are the
Teachers appointed by the Management, approached to this
court challenging the order dated 2.12.2024 passed by
respondent no.2-Director Backward Class, Bahujan Kalyan
Vibhag, Pune, whereby the recruitment exercise conducted by
the Management is held illegal.
3. The petitioners are admittedly possessing the
qualification of trained graduate teacher. The petitioner nos.1
and 2 belong to Other Backward Class category, petitioner no.3
belongs to Scheduled Caste category and petitioner no.4
belongs to Open Category. The respondent no.6 Shri Vasantrao
Naik Shikshan Sanstha, Palaskhed Nago, Taluka and District-
4 WP 7278.24
Buldhana runs the Primary Ashram School at Palaskhed Nago.
There is a dispute between the members of the Management.
At present, no change report is finally accepted and only two
persons are shown on the Schedule-I of Joint Charity
Commissioner.
4. It is also pointed out that in the respondent no.5
school, there are 111 students are taking primary education.
However, due to retirement of three teachers and one teacher
had tendered resignation, the posts were lying vacant. As such,
there was no teacher to teach the students in the school.
5. It is pointed out that one Atmaram Rathod, who was
the Treasurer as per Schedule-I of the respondent no.6
Trust/Society, moved application on 21.3.2023 to the Deputy
Director of Other Backward Bahujan Kalyan Vibhag, Amravati
Division, Amravati that due to superannuation and resignation
of the teachers in the school, the society be granted permission
to fill up the vacant posts in the school.
6. The Regional Deputy Director of Other Backward
Bahujan Kalyan Vibhag, Amravati forwarded the said proposal
5 WP 7278.24
to the Additional Chief Secretary of Other Backward Bahujan
Kalyan Vibhag, Mantralaya, Mumbai.
7. On the recommendation of respondent no.3, the State
Government i.e. respondent no.1, by his order dated 5.4.2023,
granted permission to fill up three posts of Assistant Teacher at
Primary Ashram School Palaskhed Nago and one post at
Secondary Ashram School, Palaskhed Nago. The permission was
granted subject to verification of roster and absorption of
excess/surplus teachers if available in the district.
8. In view of the order issued by the respondent no.1-
State Government, the respondent no.3-Regional Deputy
Director, by his order dated 11.4.2023 granted permission to
the respondent no.6 to issue the advertisement. While granting
permission, it was clarified that the educational qualification
and the issue of reservation be strictly followed in the matter.
In view of permission granted by the respondent no.3-Regional
Deputy Director, the respondent no.5 in the capacity of
Headmaster and Secretary of Selection Committee issued
advertisement on 18.4.2023 in daily newspaper 'Dainik Sakal'
6 WP 7278.24
and 'Dainik Deshonnati'. According to the advertisement, the
three posts of Shikshan Sevak at Primary Ashram School,
Palaskhed were earmarked for Scheduled Caste, Other
Backward Class and Open Category and one post of Shikshan
Sevak at Secondary Ashram School was earmarked for Other
Backward Class category.
9. During this recruitment exercise, the Treasurer of the
Society namely, Atmaram Kisan Rathod was expired. The other
group of respondent no.6-Trust challenged the recruitment
exercise before this court vide Writ Petition No.2506/2020. This
court by the order dated 21.4.2023, restrained the Management
from going ahead with the recruitment exercise till further
orders of the court. As a result, the respondent no.5 has issued
the public notice stating that due to untimely death of Treasurer
and stay granted by this court, the written examination and
interview is stayed till further orders.
10. It is pointed out that due to dispute between the
members of management, the respondent no.1 by his order
dated 21.6.2023 decided to appoint Administrator over
7 WP 7278.24
respondent no.5 school and accordingly respondent no.3 was
appointed as an Administrator.
11. The fact of appointment of Administrator was then
brought to the notice of this court in Writ Petition
No.2506/2020. This court considering the same as a significant
development permitted to continue the recruitment process
initiated by respondent no.5-Headmaster. The directions were
given to the Administrator to constitute an appropriate
committee to conduct the interviews. It was made clear that
any appointments made shall be subject to further orders of the
petition.
12. The respondent no.5, therefore, on 28.7.2023 issued
public notice stating that the stay granted by this court has been
lifted up and accordingly as per the advertisement dated
18.4.2023, the written examination and interviews will be held
on 2.8.2023. It is further clear from the record that
Administrator, by his communication dated 27.7.2023,
requested the Assistant Commissioner Social Welfare, Buldhana;
District Employment Exchange Officer; Project Officer Tribal
8 WP 7278.24
Development, Akola; District Women and Child Development
Officer, Buldhana and Head Master of the Ashram School,
Palaskhed Nago, requested to attend the interview which is
scheduled on 2.8.2023 in the capacity of members of the
committee. Accordingly, interviews of the candidates appeared
in pursuance of the advertisement were held. From the
proceeding, which is placed on record, it is seen that the
committee members, after their discussion, decided to appoint
the petitioner and the said proceeding bears the signatures of
the committee members.
13. In pursuance of the selection of the petitioners, the
appointment orders came to be issued to the petitioners by
respondent no.5, vide appointment order dated 10.8.2023. The
appointment orders clearly shows that the respective category
of each petitioner in which their appointment was made in the
school. So also the petitioners enclosed their caste certificates
in the matter to substantiate the fact they belongs to the same
category.
9 WP 7278.24
14. After the appointment of the petitioners, the proposal
was forwarded for grant of approval to the respondent no.3.
The respondent no.3, by his order dated 10.11.2023 granted
approval to the services of the petitioners. Hence, the
petitioners from their respective date of appointment are
continued in service against the post of Assistant Teachers and
discharging their duties.
15. In the meantime, pending Writ Petition
No.2506/2020 was finally decided by order dated 20.8.2024.
While deciding the petition, this court recorded that by the
order dated 14.8.2023 the Administrator has handed over the
charge to the Executive Committee of the respondent no.6
Society. Accordingly, this court, by observing that as the
appointments were permitted to be made subject to decision of
this writ petition, the petitioner-Trust therein are permitted to
canvass the issue about the legality and validity of the
appointments made by respondent no.3 before the
Commissioner, Social Welfare, Pune. This court made it clear
that before Commissioner, Social Welfare, Pune, only the
trustees shown in Schedule-I can appear on 2.9.2024 with an
10 WP 7278.24
advance intimation to the newly appointed employees. As such,
the persons who are shown in Schedule-I are only permitted to
appear before the Commissioner, Social Welfare, Pune.
16. In view of order of this court, the petitioners, who
were not the party to the writ petition, were received the notice
from the Headmaster of the school stating that the hearing is
scheduled before the Commissioner, Social Welfare, Pune on
4.9.2024 and accordingly they should remain present before the
authority. It is also pointed out that the respondent no.3, by his
explanation to the Other Backward Baujan Kalyan Vibhag,
Maharashtra State, Pune by his communication dated 3.9.2024,
clarified that as per the order dated 14.8.2023 he has to hand
over the charge to the legal Management. However, he is facing
difficulty to whom the charge should be handed over because
there is no authorize President/Secretary is in existence.
Therefore, he requested to issue appropriate guidance in the
matter. Along with this, it is specifically stated that respondent
no.7 Shri Rajesh Kisan Rathod is not the authorized member of
the society nor even a trustee. As per the order and directions
of this court he has no powers to participate in the proceeding
11 WP 7278.24
scheduled for hearing by the authority.
17. In the background of above said factual position, the
hearing was conducted by respondent no.2 and by the
impugned order dated 2.12.2024, the objection raised by
respondent no.7 is accepted and thereby the recruitment
exercise undertaken by respondent no.6 society is held illegal.
The same is under challenge in the present petition.
18. In response to the notices issued by this court to the
respondents, the respondent no.2 defended the order by stating
that in the impugned order, the reasons are recorded that there
was a lack of transparency, no categorization of applicants, no
verification of caste certificates and violation of Government
Resolution whereby guidelines were issued as to how the
appointments should be made, therefore, the order passed by
respondent no.2 is correct and legal, there is no need of any
interference of this court in the matter.
19. The respondent no.7, on whose complaint, the
recruitment exercise was set aside by respondent no.2, failed to
point out in what capacity he appeared before the respondent
12 WP 7278.24
no.2. He stated that the roster was not properly followed while
making appointment in the school and secondly the guidelines
laid down by the State Government i.e. to conduct the
recruitment exercise through Pavitra Portal is not followed in
the matter and petitioners are not possessing the qualification
of TET, hence the reasons recorded by the respondent no.2 in
the impugned order are justified in the matter.
20. The respondent no.5 i.e. Head Master supported the
case of the petitioners and specifically pointed out that in the
Management there is a dispute. One group is headed by
Totaram Rathod and another by Atmaram Rathod, whose names
appeared in Schedule-I of the Trust. He pointed out that the
group headed by Totaram Rathod has filed the Writ Petition
No.2506/2020 without appreciating the fact that there was a
requirement in the school to teach the students who are 111 in
number. He also pointed out that after the vacation of stay by
this court in Writ Petition No.2506/2020 the respondent no.3
has undertaken the entire recruitment process and accordingly
the appointments are made in the school. He pointed out that
the petitioners furnished the documents of their caste as well as
13 WP 7278.24
their educational qualification including TET/CTET certificates.
Therefore, the objections raised by respondent no.7 are totally
incorrect in the matter.
21. In the background of above said factual position,
we have proceeded to decide the present petition by hearing
respective advocates appeared in the matter.
22. At the outset, it is stated that Respondent No.5 is a
Ashram School run by Private Management i.e. Respondent
No.6. The school is recognized by Other Backward Bahujan
Kalyan Vibhag. There is no separate enactment is provided for
the employees working in a Primary Ashram School and
Secondary Ashram School to govern the service conditions or to
follow the recruitment exercise by Respondent Nos.1 and 2.
Normally, the provisions of Maharashtra Employees of Private
Schools are followed while undertaking the exercise of Primary
and Secondary School teachers of Ashram School run by private
Management. Hence, in the present case also, the general
principles laid down under the Maharashtra Employees of
Private Schools (Conditions of Service) Act,1977 And Rules
14 WP 7278.24
framed thereunder are required to be followed while
undertaking the exercise of recruitment.
23. In the present case, it is admitted fact that there are
111 students in the respondent no.5 Ashram School and 4
teachers were appointed to teach those students. However, out
of 4 teachers, 3 teachers are superannuated from service and
1 teacher had tendered resignation. Therefore, there were no
teachers in the school. Hence, the management sought
permission from the respondent no.3 to fill up the vacant post
in the school. The said fact was verified by the respondent no.3
and after verification of the same, recommended to the
Government/Respondent No.1 to grant permission to fill up 4
vacant posts in the school. In the light of recommendation of
respondent no.3, respondent no.1, by his order dated 5.4.2023,
granted permission to fill up the post.
24. The Respondent No.3, then by his order dated
11.4.2023 granted permission to issue the advertisement by
directing that all the rules and regulations should be followed
while issuing the advertisement. Perusal of the advertisement
15 WP 7278.24
shows posts were earmarked for Scheduled Caste, Other
Backward Class category and Open Category. Therefore, we are
of the opinion that advertisement was issued by following due
procedure of law and there was no reason for the respondent
no.2 to held that proper procedure is not followed in the matter.
25. From the advertisement, it is further clear that
specific qualification was prescribed for each posts and,
thereafter, the written test as well as interviews were conducted
by the committee members as per the directions issued by this
court vide order dated 25.7.2023. Hence, it can be said that in
view of direction of this court, the procedure was conducted by
the then Administrator of the school. The document placed on
record clearly shows that the committee members consist of the
Assistant Commissioner, Social Welfare, Buldhana, District
Employment Exchange Officer, Project Officer, Tribal
Development, Akola, District Women and Child Development
Officer, Buldhana and Head Master of the Ashram School,
Palaskhed Nago were present and put their signatures to the
proceedings and, thereafter, the Administrator issued directions
to the respondent no.5 and accordingly the appointments orders
16 WP 7278.24
were issued to the petitioners. Hence, the recruitment exercise
is done in the presence of five competent officers of the various
departments in the matter.
26. Not only this, after the appointment of the petitioners
their proposal was forwarded to the Other Backward Class
Bahujan Kalyan Vibhag Amravati for grant of approval.
According to our knowledge, the approving authority requires
to verify the qualification of the candidate and his eligibility for
the post on which he was appointed. It is seen from the record
that the respondent no.3, without any objection, granted
approval to the appointment of the petitioners on 10.11.2023.
Hence, we are of the view that once approval has been granted
meaning thereby the eligibility of the petitioners was tested by
the authority and as same was found to be correct, the
approvals were granted in favour of the petitioners.
27. In the present petition, it is clear that due to the
dispute in the management, the rival group was against the
appointment of the petitioners. More importantly the
respondent no.7 has played a pivotal role of lodging complaint
17 WP 7278.24
against the appointment of the petitioners. This court, while
deciding Writ Petition No.2506/2020, specifically observed that
only the trustees shown in Schedule-I can only appear before
the respondent no.2 and no other persons will be permitted to
participate in the enquiry and this fact was further specifically
brought to the notice of respondent no.2 by respondent no.3,
vide his communication dated 3.9.2024. But we noticed that
respondent no.2 failed to consider the directions issued by this
court. On the other hand, in violation of the directions issued
by this court, it is recorded in the impugned order that he being
acting as quashi-judicial authority to decide the issue, he can
permit the respondent no.7 to submit his submission before
him. This fact itself demonstrate that respondent no.2 was more
interested to entertain the grievance of respondent no.7 rather
than directions issued by this court. This act of respondent no.2
is serious and according to us, when this court directed him to
grant hearing to the trustees shown in Schedule-I only,
permitting the respondent no.7 is contrary to the order and
same is not appreciated.
18 WP 7278.24
28. One of the argument raised by respondent no.7 in the
matter that after every three years, roster is required to be
examined and if same is not updated and recruitment is done,
then same is illegal. In the present petition, the perusal of the
record shows that last verification of the roster was done by the
management in the year 2019. However, immediately thereafter
there was a surge of Pandemic of Covid-19 and everything was
stalled till year 2021-2022. Furthermore, there were no
appointment in the school after the retirement and resignation
by the teachers. Therefore, according to us, there was no
illegality to consider the roster of year 2019 for recruitment
purpose. The respondent no.7 did not point out any provisions
of law which states that it is mandatory that after every three
years, the roster is to be verified. Hence, in view of this factual
position merely because roster was not examined or updated
particularly in the facts and circumstances of present case,
recruitment exercise cannot be held illegal.
29. In respect of Pavitra Portal, the statement made by
the petitioners that in other Backward Ashram School, the
policy till date is not operated and in no Ashram School run by
19 WP 7278.24
respondent No.2-Department, the appointments are made
through Pavitra Portal. This fact is not denied by the
respondents. So also, the petitioners pointed out that they are
possessing the requisite qualification for the post which is also
not denied by the respondents in the matter.
30. In the present petition, the bare perusal of the
impugned order itself demonstrates that the respondent no.2
under the caption of selection committee has recorded the fact
that seven members of the committee were present in the
recruitment exercise. Under the same caption, it is mentioned
that candidates while submitting their application did not
mention their castes and category. But below that chart was
reproduced in the impugned order which itself shows that
against each candidate's his caste and qualification is recorded.
The said chart further shows the mark secured by every
candidate appeared in the recruitment exercise. Hence, it is
clear that respondent no.2 did not apply his judicial mind while
deciding the matter.
20 WP 7278.24
31. Not only this, it is clear from the impugned order
itself that the seven members committee has recorded how
many candidates applied from reservation category and
accordingly prepared the list of the successful candidates from
each category. So also the candidates who were successful,
their names and the marks obtained by them was also recorded.
From the perusal of impugned order, we are of the opinion that
the respondent no.2 has recorded perverse finding about not
following the procedure as per the rules in the matter.
32. The perusal of impugned order shows that
respondent no.2 has given more emphasis on the issue that the
reservation policy was not followed in the matter. However,
from the record and particularly from the advertisement, it is
clear that the posts which were advertised were specifically
earmarked for particular reservation category. This fact is not
disputed in the matter. So also, as stated above in the
impugned order, it is recorded that category-wise candidates
were considered for each post and accordingly the recruitment
exercise was done. Hence, we are of the opinion that the
impugned order is nothing but non application of judicial mind
21 WP 7278.24
and recorded perverse finding in the matter.
33. For the aforesaid reasons, we are satisfied that there
is no illegality while appointing the petitioners in the school.
The complaint lodged by the respondent no.7 was with an
ulterior motive. Furthermore as per direction of this court was
not permitted to participate in the hearing conducted by
Respondent No.2. But contrary to direction of this court,
Respondent No.2 permitted him to participate and by relying his
objection passed the impugned order. Record shows Schedule-I
Trustees raised no objection of any kind before the respondent
no.2 against the appointment of petitioners in the matter.
34. It is thus clear that Respondent No.2 without applying
his judicial mind and by recording perverse finding passed the
impugned order. Therefore, indulgence of this court is
necessary in the matter. Hence, we proceed to pass the
following order :
ORDER
(1) The Writ Petition is allowed.
22 WP 7278.24
(2) The impugned order passed by the
respondent no.2 Director, Other Backward Class, Bahujan
Kalyan Vibhag, Pune dated 2.12.2024 is hereby quashed and set
aside.
(3) It is hereby declared that the petitioners
appointments against the respective posts of Shikshan
Sevak/Teachers dated 10.8.2023 was by following due
procedure of law and are entitled to be continued on their
respective posts with all statutory benefits.
(4) No order as to costs. Rule in above terms.
(Pravin S. Patil, J.) (Smt. M.S. Jawalkar, J.)
Gulande
Signed by: A.S. GULANDE
Designation: PS To Honourable Judge
Date: 01/10/2025 19:24:44
