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Bombay High Court
Farkhunda Jabin Quazi Mohd Azharuddin ... vs The State Of Maharashtra And Others on 9 February, 2026
2026:BHC-AUG:5579-DB
(1) WP-1508-2018
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.1504 OF 2018
1. Smt. Farkhunda Jabin d/o. Quazi Mohd. Azharuddin,
Age: 51 years, Occu: Service (presently Nil),
R/o. Chaus Colony, Kachiwada, Shah Bazar,
Aurangabad, Dist. Aurangabad.
2. Smt. Shaguftabegum d/o. Mumtajooddin,
Age: 49 years, Occu: Service (presently Nil),
R/o. Line No.3, Mujib Colony,
Roshangate, Aurangabad,
Dist. Aurangabad. ...PETITIONERS
VERSUS
1. The State of Maharashtra
Through its Secretary, Education Department,
Mantralaya, Mumbai- 400 032.
2. The Education Officer,
Zilla Parishad, Aurangabad.
3. Bal Shikshan Prasarak Mandal,
Rahemaniya Colony, Near Sayeeda Masjid,
Aurangabad, through its Secretary,
Smt. Shamimbano d/o. Syed Gafoor,
R/o. Rahemaniya Colony, Aurangabad,
Taluka and Dist. Aurangabad.
4. The Head Mistress,
Tanwirl-UI-Atfal Urdu Primary School,
Nawabpura, Aurangabad. ...RESPONDENTS
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*****
Mr. S. S. Kazi, Advocate for Petitioners.
Smt. Rashmi P. Gaur, AGP for Respondent No.1-State.
Ms. Asha D. Sherkhane, Advocate for Respondent No.2.
Mr. R. I. Wakade, Advocate for Respondent Nos. 3 and 4.
*****
CORAM : KISHORE C. SANT &
SUSHIL M. GHODESWAR, JJ.
RESERVED ON : 28th JANUARY 2026.
PRONOUNCED ON : 9th FEBRUARY 2026.
ORDER :
-
1. Heard Mr. Kazi, the learned Advocate for the Petitioners, Smt.
Gaur, the learned AGP for the Respondent No.1-State, Ms. Sherkhane,
Advocate for Respondent No.2 and Mr. Wakade, the learned Advocate
for Respondent Nos. 3 and 4. By consent of the parties, the petition is
taken up for final disposal at the stage of admission.
2. Respondent No.1 is the State, respondent No. 2 is the Education
Officer (Primary), Zilla Parishad, Aurangabad. Respondent No. 3 is the
Management that runs School at Asfiya Colony where petitioner No. 1
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was working as Assistant Teacher. Respondent No.4 is the School at
Nawabpura where petitioner No. 2 was working as Primary Teacher.
3. By way of filing this writ petition, the petitioners have come to this
Court with the prayers to direct the Respondent No.2, the Education
Officer (Primary), Zilla Parishad, Aurangabad, to allow their salary bills
and to pay them the salary for the month of April 2015 till May 2017.
The petitioners were working in the Respondent Nos. 3-Management
and 4 - School, and were declared as surplus. After they have become
surplus, they were without any absorption in any other school for the
above period and after that they are terminated.
4. In the meantime, the petitioners had also challenged the
termination orders dated 14.07.2016 before the School Tribunal. Before
the Tribunal, a compromise took place and by virtue of the compromise,
their termination orders were set aside. It was agreed between the
respondent Nos. 3 & 4 and Appellants, present Petitioners, that the
Respondent Nos.3 & 4 would send the salary bills to the Education
Officer.
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5. On sending the salary bills to the Education Officer, he refused to
pay salary in view of the policy of the Government that the salary is to
be paid only after their services are absorbed in any grant-in-aid school.
The petitioners being aggrieved are before this Court.
6. The facts are not disputed and those are as below.:
That the petitioner No. 1 was appointed in the respondent No. 3
school at Asfiya Colony on 01-06-1991. Petitioner No. 2 was appointed
on 01-09-1988 in Respondent No.4-School at Nawabpura. In 1990,
Respondent No.2 came to be transferred to the school at Asfiya colony
run by the same Management. The seniority in both the schools was
common. However, in the academic year 2012-2013, the petitioner No.1
was declared surplus teacher. The Education Officer directed her
absorption in some other school. However, that school refused to accept
the petitioner, therefore, the petitioner was without any work. So far as
petitioner No. 2 is concerned, she was declared surplus in 2014.
However, her name was not included in the list of the surplus teachers
and thus she continued to work with the school in Asfiya colony.
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7. From April 2015, the school at Asfiya was closed even of the
petitioner No.2. The salary of both the petitioners, therefore, was
stopped and thereafter they did not get any salary. Though the
respondent No.3 stopped the school at Asfiya colony, other staff persons
were accommodated in the school at Navapura. However, it is the case
of the petitioners that they were not allowed to work.
8. On 14-07-2016, the respondent No.3 issued a communication,
communicating that the school in Asfiya colony is closed down and the
services of the petitioners were terminated. The petitioners challenged
the termination order by filing Writ Petition No. 9101 of 2016 in this
Court. This Court by order dated 24-08-2016 disposed of the petition
with liberty to the petitioners to approach the School Tribunal.
9. The petitioners, therefore, filed Appeals bearing Nos. 09 of 2017
and 10 of 2017, respectively, before the School Tribunal, Aurangabad.
The parties in the School Tribunal i.e. present petitioners and
respondent Nos. 3 and 4 entered into compromise. In view of
compromise, the termination was set aside. It was agreed that the salary
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bills would be forwarded to the Education Officer for the period for
which the petitioners were not working. It is, thereafter, the salary bills
were sent to the Education Officer. The Education Officer refused to pay
the salary on the principle of "no work no pay" and communicated the
said order by communication dated 22-09-2017 based on Government
Resolution dated 13-07-2016. The petitioners are, therefore, before this
Court.
10. Learned Advocate Mr. Kazi, appearing for the petitioners,
vehemently argued the petition. He submits that the petitioners were
always ready and willing to work with the Management. Even after they
were declared surplus, they were ready to work with any other school.
However, they were not absorbed. When the petitioners were ready to
work with any Management, they ought to have been paid a salary.
Closing down school is not due to fault on the part of the petitioners,
and therefore, they are entitled to receive the salary. The letter of
rejection by the Education Officer is arbitrary and violative of Article 21
of the Constitution of India. He, therefore, submits that the impugned
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communication dated 22-09-2017 deserves to be quashed and set aside
and so also the Government Decision dated 13-07-2016 needs to be
declared as illegal salary bills needs to be sanctioned.
Learned Advocate Mr. Kazi further submits that, before the School
Tribunal, the Education Officer was a party. However, the Education
Officer did not appear before the School Tribunal, and therefore, now
the Education Officer cannot take a defense that the Education Officer is
not a party to a compromise. When the Education Officer was a party to
the appeal, the compromise between the parties would bind even the
Education Officer, and therefore, salary needs to be paid.
11. Learned Advocate Smt. Sherkhane, appearing for Respondent No.2
Zilla Parishad, Aurangabad, vehemently opposes the petition. She
submits that the communication is issued on the basis of Government
Decision laying down a policy in case of surplus teachers. In the
Government Decision itself, it is clearly stated that the employees, who
are declared surplus, shall not be entitled to get a salary on the principle
of "no work, no pay". She submits that, though the compromise has
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taken place, the Education Officer was not a party. The compromise
deed, therefore, will not be binding upon the Education Officer.
12. Learned Advocate Shri. Wakade, appearing for Respondent Nos. 3
and 4, submits that, in view of the compromise, the Management sent
the salary bills to the Education Officer. The Management has thus
performed its part as per the compromise. Later on, it is for the
Education Officer to consider the salary bills and to take proper action.
He submits that, in any case, the petitioners have clearly accepted in the
compromise that they shall not claim any monetary benefit from the
Management and they have also given up the claim to receive the back
wages. He thus submits that appropriate order be passed. His further
submission that however, no order be passed adverse to respondent Nos.
3 and 4.
13. The learned AGP Ms. Gaur, appearing for Respondent-State,
adopts the stand of the Education Officer. It is submitted that the
Government has taken a decision and policy of absorbing the surplus
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teachers is introduced with a view to see that the teachers are absorbed
in other schools where vacancies are available. In the present case, the
school was closed. If at all, there is any grievance, they can raise the
grievance against the School Management. She supports the policy laid
down in the Government Decision dated 13.07.2016. She prays that the
petition be dismissed.
14. This Court has heard the parties. The facts are not disputed. It is
also seen that though the Education Officer was party to the appeal
before the School Tribunal, he did not appear before the School
Tribunal. The compromise terms of the petition states as under:
"2) That, the respondent No.1 has revoked termination order
dt.14.07.2016 by way of resolution of institution. The period from
the date of termination till today would be treated as service period
for all the purposes including pensionary benefits. Appellant has
willfully agreed that she would not claim back wages or any
monitory benefits from the respondent management from the date
of termination till the date of actual absorption in any other school.
Appellant reserves her right as against Education Officer in respect
of back wages/arrears of salary and other monitory benefits.
Applicant salary bills and correspondence will be made by signature
of Nawabpura school H.M."
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15. It is thus seen that the Management/schools and the petitioners
entered into compromise. However, the compromise is only to the extent
that the salary bills would be submitted to the Education Officer. The
schools, therefore, have submitted the bills to the Education Officer as
per the compromise. Thereafter, it is for the Education Officer to
consider the salary bills and whether the petitioners are entitled to
receive the salary bills. The Government by Government Decision dated
13-07-2016 has come out with the policy in respect of the minority
institutions and absorption of the employees in such schools.
16. Clause No.07 of the said Government Decision reads as under:-
"07. उपरोक्त प्रमाणे कार्यवाही करत असताना अल्पसंख्याक संस्थांमधील अतिरिक्त ठरलेल्या
ज्या कर्मचाऱ्यांचे समायोजन होणार नाही त्यांचे समायोजन होईपर्यंत त्यांना विनाकाम विनावेतन
(No Work No Pay) या तत्वाच्या आधारे त्यांना वेतन अदा करण्यात येवू नये . तथापि अशा
अतिरिक्त कर्मचाऱ्यांचे भविष्यात समायोजन झाल्यास त्यांना वेतन संरक्षण देण्यात यावे . परंतु
अतिरिक्त असलेल्या कालावधीतील वेतनाची थकबाकी कुठल्याही परिस्थितीत अनुज्ञेय राहणार
नाही."
17. From reading the Clause No. 07 of the Government decision, it is
clearly seen that when the teacher from the minority school is declared
as surplus, he will be placed in the list of the surplus teachers till he is
absorbed. It is clear from the said clause that though the services
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conditions are protected, they shall not be entitled to receive the salary
on the principle of "no work, no pay". Thus, it is clear that the period for
which the teachers once declared surplus till they are absorbed in any
other school, they shall not be entitled to get any salary. The period will
be calculated only for the purpose of protection of their pay scale,
service benefits, etc., when they are absorbed in any other school.
18. It is also seen that for setting aside termination order, no prior
approval is taken from the Education Officer. For this reason also the
petitioners are not entitled to get any benefits even if termination is set
aside.
19. On above discussion, this Court hardly find that any case is made
out by the petitioners to allow the petition. Hence, following order:
ORDER
(i) Writ Petition stands dismissed.
(ii) No order as to costs.
[SUSHIL M. GHODESWAR, J.] [KISHORE C. SANT, J.]
D.A.ETHAPE
