1 WP 552-2018.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 552 OF 2018 Shivprasad Mallinath Solapure, Age : 41 years, Occu. : Service, R/o. : Asta Kasar, Taluka Lohara, District Osmanabad. .. Petitioner Versus 1. The State of Maharashtra, Through its Secretary, Department of School Education, Mantralaya, Mumbai. 2. The Education Officer (Secondary), Zilla Parishad, Osmanabad. 3. The Superintendent, Pay Unit, Secondary Education Department, Zilla Parishad, Osmanabad. 4. Asta High School, Asta Kasar, Taluka Lohara, District Osmanabad Through its Head Master. 5. Ashta Shikshan Sanstha Ashta (Kasar) Tq. Lohara, Dist. Osmanabad Through its Secretary. .. Respondents Mr. Santosh S. Jadhavar, Advocate for the Petitioner. Mr. S. J. Salgare, AGP for Respondent Nos. 1 and 2. Mr. Pramod B. Gapat, Advocate for Respondent No. 4. CORAM : KISHORE C. SANT AND SUSHIL M. GHODESWAR, JJ. 2026:BHC-AUG:7063-DB 2 WP 552-2018.odt Date on which reserved for order : 12th February, 2026. Date on which order pronounced : 17th February, 2026. FINAL ORDER (PER KISHORE C. SANT, J.) :- 1. Heard the parties. By consent of the parties taken up for final disposal at the stage of admission. 2. The petitioner, a part time teacher appointed in respondent Nos. 4 school, has approached this Court challenging an action of refusal to pay the salary by the Education Officer. In view of subsequent development of termination of the petitioner he has also prayed for quashing and setting aside the termination order passed by respondent Nos. 4 and 5. Respondent No. 1 is the State of Maharashtra, respondent No. 2 is the Education Officer (Secondary), Zilla Parishad, Osmanabad, respondent No. 3 is the Superintendent, Pay Unit, Secondary Education Department, Zilla Parishad, Osmanabad and respondent Nos. 4 and 5 are the school and management where the petitioner was working as a part time teacher. 3. The facts in short as stated in the petition are as under : 4. The petitioner was appointed as a part time permanent 3 WP 552-2018.odt teacher in respondent No. 4 school. The appointment was approved by the Education Officer. The petitioner was paid salary as a part time teacher. Vide order dated 09.08.2017 the High School had sent the pay bill. The respondent No. 2, however, refused to grant salary bill of the petitioner on the ground that he was a part time teacher. It is the case of the petitioner that, when petitioner’s services were approved by the authorities, there was no question of taking any action without holding any inquiry or without any proceeding. 5. The learned advocate Mr. Jadhavar for the petitioner vehemently argued the petition. He submits that, the petitioner was appointed by an order dated 01.03.2011. His appointment was for a period from 01.03.2011 till 28.02.2017. The said appointment was on honorarium of Rs. 2,000/- per month. He submits that, when the petitioner was appointed as a part time permanent teacher, he was entitled to receive the salary, however, the petitioner was not paid the salary as his salary bill came to be rejected. It is only on the basis of rejection by the Education Officer, the management passed a resolution on 01.07.2018 and relieved the petitioner from 03.07.2018 under the signature of the 4 WP 552-2018.odt Headmaster. He submits that the staffing pattern was approved for the school. The total posts approved were eighteen (18). The name of the petitioner appeared at serial no. 18. Therefore, the post cannot be said to be in excess of the staffing pattern. If at all, the post became excess, the petitioner could have been declared as surplus candidate. Without following that course, the management directly terminated the services of the petitioner. He alleged that the action is arbitrary since termination is only on the basis of rejection to pay salary by the Education Officer. The termination order also needs to be set aside being consequential order. He relies upon section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act (hereinafter referred to as “M.E.P.S. Act”) to show that remedy does not lie before the School Tribunal as he is challenging the action of rejection of salary bills. He relies upon rules 28 to 38 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, (hereinafter referred to as “M.E.P.S. Rules”) to submit that, no action can be taken or punishment be imposed without following due process of law. It is also his case that, even now he can be directed to be placed in the list of surplus candidates. 5 WP 552-2018.odt 6. The learned advocate Mr. Gapat for respondent No. 4 vehemently opposes the petition. He submits that, the appointment of the petitioner itself was without following any due process of law. There was no advertisement issued for the said post. No sanction was ever granted by the Education Officer to undertake any process for appointment. The resolution passed to terminate the petitioner is not on the basis of rejection of salary bill as alleged by the petitioner, but as his appointment was totally illegal. No post was available for the petitioner. It was for the Education Officer to declare the petitioner surplus if at all he was found to be entitled. He invites attention to the staffing pattern for the year 2014-15. He prays for dismissal of the petition. 7. The learned A.G.P. submits that, it is clearly seen that the alleged appointment of the petitioner was not by following due process of law. The petitioner was appointed only for a term of five years as a part time teacher. There is no scheme to declare part time teacher as surplus. Wrongly the salary was paid to the petitioner. The authorities are taking action of recovery of the salary paid to the petitioner from the management or from the petitioner. He submits that unless the petitioner establishes that 6 WP 552-2018.odt his appointment was made by following due process of law, no right can be claimed by him. 8. In rejoinder, the learned advocate Mr. Jadhavar for the petitioner submits that, the impugned action is only because of change in the management. When he was appointed, it was earlier management which was empowered. Since the present management is not having good terms with the petitioner, his services are terminated. He shows the staff register showing his name at serial no. 18. His case is that, Rule No. 26 of the M.E.P.S. Rules is clear to declare such candidate as surplus. It only speaks of permanent employee. No distinction is made between part time teacher and full time teacher. 9. This Court has seen the appointment order. It clearly shows that the petitioner was appointed from 01.03.2011 till 28.02.2017 on honorarium of Rs. 2,000/- per month. The petitioner is thus appointed only for six years and that appointment he accepted. There is nothing in the order that he would be continued thereafter or his appointment is on probation basis. He was appointed only as Shikshan Sevak. An undertaking was taken from him to show that he accepts the appointment order. Even 7 WP 552-2018.odt the letter issued by the Headmaster to the Education Officer dated 20.08.2011 shows that the approval was sought only for six academic years. The Education Officer approved the appointment vide communication dated 02.03.2013 only as a part time teacher on honorarium of Rs. 4,000/-. On 24.04.2017 the Education Officer had approved the services of the petitioner on the basis of letter of the Headmaster dated 18.03.2017. It is thus clear that, till March 2017 he was not granted permanent approval. This mistake was immediately noticed and on 22.08.2017 the Education Officer rejected the salary proposal of the petitioner with an endorsement that his appointment was as part time teacher. It is this action by which the petitioner is mainly aggrieved. Initially, the Headmaster sent a communication to the Education Officer dated 26.08.2017 as to why no salary is paid to the petitioner though his services are approved. However, further it is seen that on 19.08.2017 the petitioner himself wrote to the Education Officer that his services be approved as full time teacher in the school. It is thus clear that he was not appointed as full time teacher. 10. From the reply of the management it is seen that, there was 8 WP 552-2018.odt no part time post available from the academic year 2014-15. The salary bills were still processed. The said mistake was noticed in August 2017 and thereafter the salary bill were stopped by the concerned officer. As per the staffing pattern of 2014-15 there is no post available. The staffing pattern was approved for the year 2008-09 and 2009-10 as annexed along with reply. Eighteen (18) posts of teaching staff were sanctioned for the year 2014-15. It is seen that, it was communicated by the President of the school committee to the Headmaster that the appointment of the petitioner was not made by the management committee. No advertisement was given by taking prior consent of the Education Officer and it is therefore, the appointment of the petitioner itself is illegal and not to process the salary bills. 11. This Court finds some substance in the submission of learned advocate Mr. Jadhavar for the petitioner that rule 26 of the M.E.P.S. Rule does not make any distinction between part time teacher and full time teacher. It only speaks of a permanent teacher. It is also rightly submitted that without inquiry no action can be taken against an employee. However, since the petitioner has challenged the termination it was open for him to approach 9 WP 552-2018.odt the School Tribunal under section 9 of the M.E.P.S. Act. Though it is alleged that, the termination is consequential order, this Court cannot accept the same. In this regard the petitioner relied upon the judgment in Writ Petition No. 11441/2010 passed by the Division Bench of this Court in the case of Balaji s/o Madhavrao Kure Vs. The State of Maharashtra and others. In the said case, the petitioner who was serving as an Assistant Teacher was issued a show cause notice by the management as to why no inquiry be held against him. During the pendency of the petition, the petitioner came to be terminated pursuant to the inquiry which was taken on the basis of show cause notice, a subject matter of the petition. It is in such facts this Court has taken a view that since the order of termination is consequential order, the petitioner need not approach the School Tribunal. In the present case, the petition was filed only against the order of rejection of approval of salary bills. Though it is tried to be argued that the alleged termination is as consequence of the rejection of salary bill, this Court does not find it to be so. The management has clearly conveyed that the appointment of the petitioner was found to be illegal and without following any process and it is for that reason he is relieved. Thus, on this aspect the judgment in Writ 10 WP 552-2018.odt Petition No. 11441/2010 (supra) cannot be applied to the present case. 12. Rule 26 of the M.E.P.S. Rules requires a person to be declared as a surplus. If, in case, he is found to be surplus in the school or the school is closed, true that it does not make distinction in part time and full time employee. However, it is necessary to see as to whether the appointment is legal and valid. In the present case, the petitioner could not establish that his appointment was validly made by following procedure. In spite of letter by the management dated 01.07.2018 no attempt is made by the petitioner to show how he was appointed and that his appointment was made by following due process. To entertain the petition the first thing that was required by the petitioner was to show that his appointment was valid. More so when the management has clearly come with a reply that his appointment is not valid and legal and is without following any process. Even by looking at the appointment order it is clearly seen that the appointment was from 01.03.2011 till 28.02.2017. Thus, the petitioner had the knowledge that his appointment is only for six academic years. He could have immediately raised the grievance 11 WP 552-2018.odt against the same. On the contrary, it is seen that he has given an undertaking accepting all the terms of the said appointment order. Thus, it is to his clear knowledge that his appointment was only for six academic years. On this count, this Court finds that the petition cannot be entertained as the petitioner failed to show that his appointment was legally made. 13. During the course of argument it was even suggested to the learned advocate for the petitioner that he can challenge the termination order by approaching the School Tribunal. However, he, in clear terms, tried to persuade this Court that since the termination is consequential order, his appeal would not be maintainable before the School Tribunal and the School Tribunal cannot go into the aspect of the order of rejection of pay salary. He specifically relies upon sections 9, 10 and 11 of the M.E.P.S. Act and continued to pursue this Court. It was after asking by this Court the petitioner chosen to argue the case even on merits so far as termination is concerned. It is in this view of the matter this Court has made observations in respect of appointment. 14. Considering overall, this Court finds that the petitioner has totally failed to make out any case calling for interference at the 12 WP 552-2018.odt hands of this Court in exercise of jurisdiction under Article 226 of the Constitution of India. Therefore, the writ petition stands dismissed. No order as to costs. ( SUSHIL M. GHODESWAR, J.) ( KISHORE C. SANT, J. ) P.S.B.