IN THE JUDICATURE OF HIGH COURT AT BOMBAY BENCH AT AURANGABAD 905 REVIEW APPLICATION (CIVIL) NO. 225 OF 2025 IN WP/1941/2023 Social And Cultural Association Through Its President VERSUS Vedchandra Digambar Gawale And Others ... Advocate for Applicant : Mr. V. D. Salunke h/f Mr. Khot Abhinay D AGP for Respondents-State: Ms. R. R. Tandale Advocate for Respondents No.2 : P. N. Kutti Advocate for Petitioner in WP : Mr. R. I. Wakade ... CORAM : ROHIT W. JOSHI, J. Dated : September 02, 2026 ORAL ORDER : 1. The present application for review is filed by the employer/management in order to question the correctness of the judgment and order dated 19th August 2025 passed by this Court in Writ Petition No. 1941 of 2023, whereby relief of reinstatement in service was granted to the present respondent No. 1 / original petitioner with the benefit of continuity in service and other consequential benefits, including full back wages. This Court had quashed and set aside the judgment and order dated 20th November 2022 passed by the learned University and College Tribunal, Aurangabad, in Appeal No. KBCNMU 13 of 2021. 2. The contention of Mr. Hon, the learned Senior Advocate appearing for the review petitioner, is that this Court ought not to have allowed the petition preferred by respondent No. 1 by granting full Page 1 of 6 2026:BHC-AUG:40288 905 RA 225-2025 back wages. The grievance in the application for review is restricted to the award of back wages. 3. The learned Senior Advocate places reliance on the judgments of the Hon'ble Supreme Court in the cases of M.P. State Electricity Board v. Jarina Bee, (2003) 6 SCC 141, and M.L. Singla v. Punjab National Bank & Anr., (2018) 18 SCC 21, to contend that the relief of back wages cannot be granted to an employee automatically upon revocation of an order of termination. The contention is that the employee must plead and prove that he was not in gainful employment during the period intervening the termination of his services and reinstatement. It is contended that the fact of non-gainful employment is not only required to be pleaded, but also to be proved by the employee. 4. Apart from this, a contention is raised that although the appointment of respondent No. 1 was in the year 2001, the post to which he was appointed was sanctioned only in the year 2008, and as such, the initial appointment cannot be said to be a legal appointment. The learned Senior Advocate also relies upon a judgment of this Court in the case of Akola Municipal Corporation v. Secretary, Akola Zilla Nagar Parishad and Mahanagarpalika Thekedari Sanghatana, 2026:BHC-NAG:9837, to contend that unless an appointment is against a sanctioned post, an employee Page 2 of 6 905 RA 225-2025 has no right to seek regularization on the said post. 5. It would be appropriate to deal with the second contention first, relating to the legality of the appointment. In the case at hand, respondent No. 1 was appointed somewhere in the year 2001. His services were terminated in the year 2021, that is, after a period of 20 years of continuous service. It is not in dispute that the appointment was subsequently approved, and the salary of the respondent employee was being disbursed by the State Government under the Grant-in-Aid scheme. This Court observed in paragraph 18 of the judgment under review that the peculiar facts of the case give rise to a presumption that the appointment of the respondent employee, who continued in service for a long period of 20 years, was a legal and valid appointment, particularly in view of the subsequent approval granted by the State Authority. 6. The judgment in the case of Akola Municipal Corporation (supra) will not come to the aid of the review petitioner. In that case, the employees were engaged through a contractor and sought regularization based on Model Standing Orders on the premise that they had completed more than 240 days of service in a calendar year. This Court held that unless the employment, even if temporary or ad-hoc, is against a sanctioned post, the right of regularization upon completion of 240 days cannot be claimed by invoking Model Page 3 of 6 905 RA 225-2025 Standing Orders. The foundation of that judgment was that the Municipal Corporation was not legally competent to create posts, and consequently lacked the competence to grant regularization to persons working against non-sanctioned posts. 7. In the present case, the institution is run by a private management, which appointed respondent No. 1 way back in 2001 and terminated his services in 2021 without holding a departmental/disciplinary inquiry. Furthermore, the termination is in 2021, by which time approval to the appointment had already been granted in 2008. Reliance on the judgment in Akola Municipal Corporation is, therefore, completely misplaced. 8. As regards the contention that the burden of proof of non- gainful employment lies upon the employee and must be proved by him, reference must be made to the decision of the Hon'ble Supreme Court in Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) & Ors., (2013) 10 SCC 324. While the legal position remains that the initial burden of pleading non-gainful employment rests upon the employee, the Supreme Court has clarified that this is a light burden, which can be discharged merely by making a statement that the employee was not gainfully employed elsewhere during the relevant period. Page 4 of 6 905 RA 225-2025 9. In the case at hand, such a positive assertion of non-gainful employment was specifically made in the memorandum of appeal itself. The review petitioner had an ample opportunity to counter the said statement before the learned College Tribunal, but failed to do so. While the principles laid down in M.P. State Electricity Board (supra) and M.L. Singla (supra) cannot be disputed, the standard of proof required to discharge the initial burden is as prescribed in Deepali Surwase (supra). A simple statement by the employee is sufficient to discharge the initial burden. Once this burden is discharged, the onus to demonstrate gainful employment shifts to the employer. A party cannot be called upon to prove a negative. The positive assertion of gainful employment elsewhere must be established by the employer. Since the employee discharged the initial burden at the very first available opportunity in the appeal memo, the objection raised cannot be sustained. 10. In light of the reasons recorded above, this Court is of the considered opinion that no case is made out to revisit the judgment with respect to the award of back wages, particularly having regard to the limited scope of review jurisdiction, which cannot be converted into an appeal. 11. The Review Application is, accordingly, dismissed. Page 5 of 6 905 RA 225-2025 12. At this stage, the learned Senior Advocate for the review petitioner states that the order passed by this Court does not specify the precise period for the payment of back wages. It is clarified that back wages shall be payable from the date of termination till the date of actual reinstatement. ( ROHIT W. JOSHI, J. ) vj gawade/-. Page 6 of 6