Jitendra Jain, J.

1. Rule. Rule made returnable forthwith. With the consent of the learned counsel appearing for the parties, the petition is taken up for final hearing at the stage of admission.

Challenge Raised :-

2. This petition filed by an assistant teacher seeks setting aside of the order dated 20th August 2018 passed by respondent no. 2 – education officer, refusing to grant approval to the appointment of the petitioner as Shikshan Sevak in respondent no. 4 – school. The petitioner further seeks a direction to grant approval to her appointment as Shikshan Sevak and to release the salary due and payable to her with effect from 23rd October 2015.

Brief Facts :-

3. The petitioner is qualified as B.A., B.Ed. and belongs to the Scheduled Caste (‘SC’) category, namely, ‘Mahar’. On account of the retirement of an assistant teacher on 30th September, 2015 in respondent no. 4 – school, a vacancy arose for filling up the said post. On 3rd October 2015, respondent no. 4 – school addressed a letter to respondent no. 2 – education officer seeking permission to issue an advertisement for filling up the said post, which had fallen vacant on account of the superannuation of Mr. More Laxman Madhavrao.

4. Since there was no response to the aforesaid letter, respondent no. 4 – school issued an advertisement on 10th October 2015, i.e. within 7 days of application, inviting applications for the post of Shikshan Sevak in the SC - category. Pursuant to the said advertisement, on 23rd October 2015, the petitioner was issued an appointment letter wherein it was stated that appointment will be subject to approval by respondent no. 2 – education officer.

5. On 14th August 2018, i.e. after close to three years from appointment, respondent no. 4 – school submitted a proposal to respondent no. 2 – education officer seeking approval to the appointment of the petitioner. However, respondent no. 2 – education officer rejected the said proposal vide communication dated 20th August 2018, which is impugned in the present petition. The reason for sending the proposal was to seek grant qua salary of the petitioner from the State.

6. The reason stated in the impugned communication is that the appointment was made in disregard of the eligibility criteria and the availability of surplus teachers and, further, there was non-compliance with Section 5(1) of the Maharashtra Employees of Private schools (Conditions of Service) Regulation Act, 1977 (MEPS Act).

Submissions of the Petitioner :-

7. Learned advocate for the petitioner submitted that, since respondent no. 2 – education officer did not respond to the letter dated 03rd October 2015, seeking permission to issue the advertisement, there was no violation of Section 5(1) of the MEPS Act. He further submitted that, as respondent no. 2 had failed to respond to the said letter seeking permission, it was deemed that permission to issue the advertisement has been granted. Therefore, the appointment of the petitioner was in accordance with law.

8. Learned advocate for the petitioner relied upon following decisions of this Court in support of his aforesaid submissions :-

                    i. Writ Petition No. 8587 of 2016; Smt. Munoli Rajashri Karabasappa Vs. State of Maharashtra Thru Secretary & Ors, with connected Writ Petitions, decided by this Court on 10.07.2017;

                    ii. Writ Petition No. 9709 of 2016; Shubhangi d/o. Bhagwat Chate & Ors. Vs. The State of Maharashtra & Ors., decided by this Court on 23.11.2017;

                    iii. Writ Petition No. 11390 of 2016; Rahul Dnyaneshwar Gaikwad & Ors. Vs. The Education Officer (Secondary), Zilla Parishad, Solapur and Ors., decided on 24.04.2018;

                    iv. Writ Petition No. 19 of 2017; Mahendra Madhavrao Salunke and Others Vs. The State of Maharashtra and Others, decided on 25.09.2018;

                    v. Writ Petition No. 3945 of 2017; Anilkumar s/o Nivruttirao Boiwar Vs. The State of Maharashtra, decided on 20.08.2018;

                    vi. Writ Petition No. 1312 of 2017; Ms. Pallavi Shashikant Dhotre and Another Vs. The State of Maharashtra Through The Sceretary And Another with connected Writ Petitions, decided on 27.06.2018;

                    vii. Vikram Vilas Mane Vs. State of Maharashtra and Others, reported in 2021(1) Mh.L.J. 552;

                    viii. Writ Petition No. 12811 of 2018; Zelam Jayram Tarawade Vs. The Secretary and Others with connected Writ Petitions, decided on 12.08.2021; and

                    ix. Writ Petition no. 10834 of 2018; Shri Ketan S/o Kishor Jadhav Vs. The State of Maharashtra and Others with connected Writ Petitions, decided on 02.12.2021.

Submissions of the Respondent nos. 1 and 2- State and Education Officer :-

9. Learned AGP for the State submitted that the advertisement did not mention the subject for which the post was sought to be filled. He further submitted that no prior permission had been obtained for issuing the advertisement for filling up the said post. He also submitted that there were 108 surplus teachers available on the date of the advertisement and that respondent no. 4 – school could have appointed one of the surplus teachers instead of appointing the petitioner. He further submitted that surplus teacher sent was not allowed to join the school by the management. Learned AGP, therefore, prayed for dismissal of the writ petition. Learned AGP for the State relied upon the decision in Pravin Bodhu Kasbe Vs. The State of Maharashtra and Others, Writ Petition no. 3142 of 2020, decided on 03.08.2021.

Submissions of Respondent nos. 3 - management and 4 - school :-

10. Respondent no. 3 - management and respondent no. 4 – school submitted that there was no ban to the appointment of the petitioner since the petitioner was an English teacher belonging to the Scheduled Caste category. Respondent nos. 3 and 4 further submitted that, inspite of the communication sent to respondent no. 2 - education officer on 3rd October, 2015, respondent no. 2 - education officer neither furnished the list of surplus teachers nor responded to the said communication. Therefore, respondent nos. 3 and 4 supported the petitioner and submitted that the appointment was made in accordance with the due procedure of law.

Analysis and Conclusion :-

11. We have heard the learned counsel for the petitioner, learned AGP for the State, and learned counsel appearing for respondent no. 3 – management and respondent no. 4 – school.

12. Section 5(1) of the MEPS Act provides that the management shall, as soon as possible, fill, in the prescribed manner, every vacancy in a private school by appointing a person duly qualified to fill such post. However, the proviso to the said section provides that, if the vacancy is not to be filled by promotion, the management shall, before filling such vacancy, ascertain from the education officer whether any suitable person is available on the list of surplus persons maintained by him and, if such person is available, the management shall appoint such person to the vacant post. Section 5(1) of the MEPS Act reads thus:-

                    “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 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 Education 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 technincal, vocational, art or special education, whether there is any suitable person available on the list of surplus persons maintained by him, for absorption in other schools; and in the event of such person being available, the management shall appoint that person in sucy vacancy.”

13. In the instant case, respondent nos. 3 and 4 - school have not produced any document before this Court indicating that the management made any attempt to ascertain the availability of surplus teachers from the list maintained by respondent no. 2 - education officer. In our view, upon a true and proper interpretation of the proviso to Section 5(1) of the MEPS Act, it is obligatory on the part of the management to ascertain from the education officer the availability of candidates from amongst surplus teachers and only upon finding that no such candidate is available, then the management shall proceed to fill such vacancy. The consequence of non-compliance of mandatory condition would entitle the State to refuse the approval of the appointment.

14. In our view, this mandatory obligation has not been discharged by the management in the present case. On a specific query raised by the Court, respondent nos. 3 and 4 - school failed to produce any document demonstrating compliance with the proviso to Section 5(1) of the MEPS Act.

15. Respondent nos. 3 and 4 - school sought to justify compliance with the proviso to Section 5(1) by relying upon the letter dated 3rd October, 2015. In our view, such reliance is misconceived. The said letter merely sought permission to publish an advertisement for filling the vacant post and did not seek information from the education officer regarding the availability of surplus teachers. Therefore, reliance upon the said letter for establishing compliance with the obligation cast by the proviso to Section 5(1) of the MEPS Act is totally misconceived to justify illegality.

16. It is also important to note the haste with which respondent nos. 3 and 4 - school published the advertisement, and such haste smacks of an intention lacking bona fides. The letter seeking permission for advertisement of the post is dated 3rd October, 2015 and within seven days thereof, that is on 10th October, 2015, the school published the advertisement for the post of an English Teacher under the Scheduled Caste category. Respondent nos. 3 and 4 did not wait for a reasonable period before getting the advertisement published in the newspaper and the advertisement is also in the newspaper which does not have wide circulation.

17. It is further important to note that assistant teacher Shri More Laxman Madhavrao was to retire on 30th September, 2015 and the letter seeking permission to publish the advertisement was addressed to respondent no. 2 only thereafter, i.e., on 3rd October, 2015. If the management was genuinely concerned about the academic interests of the students, the process for appointment of a substitute teacher should have been initiated well before the retirement of Shri More Laxman Madhavrao. Having failed to take timely steps, the management cannot now seek to justify non-compliance with the statutory mandate by taking shelter under the plea of safeguarding the students' academic interests by taking decision in haste.

18. At the same time, it is important to note that respondent no. 2 - education officer also did not act in accordance with the objects of the MEPS Act. The authority dealing with the appointment of teachers should have atleast responded to the letter dated 3rd October, 2015 seeking permission for advertisement of the post within a reasonable time. To that extent, respondent no. 2 - education officer is also responsible for dereliction of his duty under the Act.

19. The appointment of the petitioner was made on 23rd October, 2015. However, the proposal was sent by respondent nos. 3 and 4 - school to respondent no. 2 - education officer on 14th August, 2018, that is, after a period of almost close to three years. There is no explanation from respondent nos. 3 and 4 - school as to why the proposal was sent after a period of close to three years.

20. On a query being raised by the Court to the parties as to whether there is any time limit fixed under the MEPS Act, 1977 or the MEPS Rules, 1981 for forwarding the proposal, learned advocates stated that there is none. It is settled law by now that, in the absence of any time limit under the Act, proposal should have been forwarded by respondent nos. 3 and 4 - school to respondent no. 2 - education officer within a reasonable time. On a perusal and analysis of the provisions of the Act, the reasonable period should have been maximum two weeks and not three years. The delay in submitting the proposal without any explanation also indicates the mindset of respondent nos. 3 and 4 - school to disregard the objects and purpose of the provisions of the MEPS Act.

21. In the appointment letter, the petitioner and respondent nos. 3 and 4 agreed that her appointment would be subject to approval by the education officer. Therefore, the petitioner and respondent nos. 3 and 4, were conscious that if the education officer did not grant approval, her appointment would not be approved. Therefore, today petitioner cannot attribute delay on the part of education officer when the management blatantly violated the law.

22. Respondent no. 2 - education officer, by order dated 20th August, 2018, on the proposal forwarded by respondent nos. 3 and 4 - school, refused to grant approval on the ground that surplus teachers were available and ought to have been considered and, therefore, the appointment was in violation of Section 5(1) of the MEPS Act. The impugned order came to be passed within six days of receipt of the proposal by respondent no. 2 - education officer. To this extent respondent no. 2 – education officer acted promptly though he did not respond to the earlier letter of 03rd October 2015. Therefore, the submission made by the petitioner and respondent nos. 3 and 4 - school that there was delay on the part of respondent no. 2 - education officer in taking a decision on the proposal is not justified, though respondent no. 2 - education officer ought to have responded to the communication dated 3rd October, 2015.

23. At the same time, as observed earlier, the haste with which respondent nos. 3 and 4 - school proceeded with the appointment of the petitioner also indicates that respondent nos. 3 and 4 - school intended to rush through the process without waiting for a reasonable period. Respondent nos. 3 and 4 did not follow up with respondent no. 2 - education officer by issuing any reminder after submitting the communication dated 3rd October, 2015. Therefore, even on this count, the action of respondent nos. 3 and 4 - school cannot be said to be in accordance with law or in conformity with the provisions of the MEPS Act and the Rules framed thereunder or in accordance with reasonable conduct of a reason to follow the law.

24. It is also important to note that Government Resolution dated 4th September, 2013 clarified that vacancies of teachers in English, Mathematics and Science subjects could be filled by the management only if there were no surplus teachers available for teaching such subjects. Relevant extract reads as under :-

                   

25. Respondent nos. 3 and 4 did not make any inquiry before or even after the impugned order, as to whether there were any surplus teachers available for teaching the English subject and before the appointment as observed by above did not make any attempt to ascertain surplus teacher. On the contrary, respondent no. 2 - education officer, in the affidavit-in-reply dated 19th July, 2019 filed in the present petition, specifically stated that on 20th November, 2018 a surplus teacher was deputed to respondent nos. 3 and 4 – school, however, respondent nos. 3 and 4 did not permit the said surplus teacher to join service. Respondent nos. 3 and 4 have not denied this specific statement in their affidavit-in-reply dated 06th January, 2025. This admission shows the acceptance of respondent nos. 3 and 4 about disregarding the law. In our view, this circumstance by itself is sufficient to hold that the appointment made by respondent nos. 3 and 4 - school was consciously made in disregard of the provisions of the MEPS Act and the Rules framed thereunder.

26. In our view provisions of the law which entails a reason to receive grants-in-aid from State to finance salary/expenses to run the school should be strictly construed in sofar as compliance of pre-conditions are concerned so as to make a claim for entitlement. In the instant case, mandatory pre-conditions are not satisfied by the respondent nos. 3 and 4 but based on eye wash the management has sought to paint a picture of compliance which has observed above cannot be construed as compliance with relevant provisions of the MEPS Act and Rules.

Decisions relied upon by the parties and the Court :-

27. Learned AGP for respondent nos. 1 and 2 has relied upon the decision in the case of Pravin Bodhu Kasbe (supra). In our view, the said decision is not applicable, since in that case the management stated that it had made three applications to the education officer, and the said statement was found to be incorrect upon perusal of the inward register of the education officer. Therefore, this decision cannot be of any assistance to respondent nos. 1 and 2 - State to support the impugned order.

28. Learned counsel for the petitioner has relied upon various judgments and decisions. In our view, the facts of those decisions are totally different from the facts of the present case. In those decisions, there were constant reminders sent by the management, which is absent in the present case. In the present case, there has been no compliance with the proviso to Section 5(1) of the MEPS Act. Furthermore, the haste is evident from the application dated 3rd October 2015 seeking permission for publication of the advertisement, and the publication of the advertisement within seven days thereof clearly shows that respondent nos. 3 and 4 did not intend to comply with the mandatory provisions of the Act/Rule relating to permission for publication of the advertisement. Furthermore, in the instant case, the proposal was sent to respondent no. 2 - education officer close to three years after the appointment, and there is no explanation for the delay. Therefore, even on this count, the facts of the present petition stand on a completely different footing from the facts involved in the decisions relied upon by the learned counsel for the petitioner. In those cases education officer sat over proposal for long time inspite of reminders whereas in the present case proposal was rejected within 8 days of its receipt. In our view, since the facts of the present petition are totally different from the facts of the decisions relied upon by the learned counsel for the petitioner, none of those decisions can be of any assistance to the petitioner. Therefore, those decisions are not discussed in detail. It is settled law by now that change in facts leads to change in its applicability to other cases.

29. The submission based on various Government Resolutions that there was no ban on the appointment of a teacher belonging to the SC category also cannot be accepted. None of the said Government Resolutions provides that the mandatory requirements of the proviso to Section 5(1) of the MEPS Act and relevant Rules can be dispensed with or violated. Therefore, the submissions advanced by the petitioner and respondent nos. 3 and 4 - school on the basis of the said Government Resolutions deserve to be rejected.

30. The views which we have taken on interpretation of proviso to Section 5(1) and relevant Rules of MEPS Rules are supported by following decisions of this Court, reference of which is given by reproducing the relevant paragraphs of one of the decision to avoid burdening the present decision :

                    (a) Gajanan vs. State of Maharashtra; 2022 SCC OnLine Bom 1023; para nos.- 29 and 30.

                    “29. The Bombay High Court in the case of Rajashri Hanumantrao Rokade v. State of Maharashtra, (2018) 3 Mah 395, speaking on section 5(1) of the M.E.P.S. Act has observed in paragraph 10 as below;

                    “10. On conjoint reading of the aforementioned provisions, the proviso to section 5(1) of the Act of 1977 mandates that, if there is vacancy in the School, before proceeding to fill such vacancy, the Management of the School is obliged to ascertain from the Education Officer whether there is any suitable person available on the list of the surplus person maintained by the Education Officer, and If such person being available, the Management shall appoint that person in such vacancy."

                    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. 02-5-2012 precluded the Management from following the due procedure. Hence, the appointments made deviating from the procedure prescribed for the appointments of the Staff cannot be legitimized.”

                    (b) Datta Education Society Vs. State of Maharashtra; 2016 SCC OnLine Bom 5350; para nos.– 16, 21, 22 and 25.

                    (c) Vasant Shikshan Prasar Mandal Vs. State of Maharashtra; 2016 SCC OnLine Bom 14947; Para nos. – 9, 10, 14, 15, 16, 28, 32, 37 and 38.

                    (d) Siddheshwar Shikshan Sanstha Dongarsari Vs. State of Maharashtra; 2016 SCC OnLine Bom 2584; para nos. – 111 to 114

Guidelines to be followed in future :-

31. Before parting, this is a case where the conduct of respondent nos. 3 and 4, namely the management and the school, as well as respondent no. 2, the education officer, is disappointing and disturbing. However, as between the two, the conduct of respondent nos. 3 and 4 is far more deplorable than that of respondent no. 2. Therefore, to avoid such situations in future and to affix accountability and keeping in mind larger interest of the students, this Court deems it appropriate to lay down following timelines and guidelines to be followed by the management and the education officer with regard to filling up of vacancies :

                    A) The process of filling a vacancy shall commence at least three months prior to the date of retirement of the teacher for the post which is likely to fall vacant on superannuation.

                    B) The management shall inform the education officer in writing regarding the impending retirement, the subject requirement of teacher arising from such retirement, and shall seek information as to whether a suitable candidate is available from the surplus teachers' pool for teaching said subject.

                    C) Within two weeks from the receipt of such communication, the education officer shall furnish details of surplus teachers, if available, who satisfy the requirements of the management. If no such surplus teacher is available, the education officer shall communicate the same in writing.

                    D) The management shall consider the available surplus teachers and, after following the prescribed procedure, select a suitable candidate from the surplus pool.

                    E) If no suitable surplus teacher is available, the management shall, within one week from the receipt of the communication from the education officer, apply for permission to initiate the recruitment process by advertisement.

                    F) Above application shall also specify the newspapers in which the advertisement is proposed to be published and shall enclose the draft advertisement.

                    G) Within two weeks from the receipt of the application, the education officer shall take an appropriate decision thereon and communicate the same to the management.

                    H) Thereafter, the management shall publish the advertisement in accordance with the approval and suggestions, if any, given by the education officer. The advertisement shall remain open for applications for a minimum period of fifteen days from the date of publication.

                    I) After the receipt of the application from the candidates, the management to conduct test, interview, etc., and publish the final list of the selected candidate.

                    J) On the appointment being made within two weeks thereof, management to send the proposal for approval of the appointment to the education officer and the education officer, within two weeks from the receipt of the said proposal, to take decision on the same.

                    K) Whole of the aforesaid process shall, as far as possible, be completed within three months prior to the date of superannuation of the outgoing teacher so as to ensure continuity in teaching and to safeguard the academic interests of the students.

                    L) If the above timelines are not adhered to by the education officer without justifiable cause, the competent authority shall consider initiating appropriate action after issuing a show-cause notice. Equally, the management shall strictly adhere to the above timelines and shall not subsequently attribute delay to any other authority.

32. The above guidelines, if followed in their true spirit, would substantially reduce disputes relating to appointments and approvals and would serve the interests of all stakeholders, namely the teachers, the management, the State authorities and, above all, the students, who are the ultimate beneficiaries of the educational system.

33. Respondent No. 1 to circulate the present judgment to all Zilla Parishads, Education Officers and the concerned Education Officers to send the same to the management of the school.

34. For all the aforesaid reasons, the petition stands dismissed.

35. The dismissal of this petition would not preclude the petitioner to avail remedy against respondent nos. 3 and 4 for recovery of the salary.

36. Pending applications, if any, also stands disposed of.

37. Rule is discharged. No order as to costs.