The central legal point established in the judgment is that the management of Private Schools is obligated to consider non-teaching staff for appointment to the post of Shikshan Sevak if they acquire the requisite qualifications.

ORDER :

1. The appellants are aggrieved by the judgment dated 17th November, 2009, passed by the High Court of Judicature at Bombay, Aurangabad Bench, whereunder a Writ Petition¹ [Writ Petition No. 1895 of 2007] filed by the respondent no. 1 praying inter-alia for being appointed to the post of Shikshan Sevak in the appellant no. 3-School was allowed and the appellants were directed to ensure that he is appointed to the subject post on or before 31st December, 2009, in accordance with law.

2. We may briefly advert to the relevant sequence of events. The respondent no. 1 was appointed as a Peon in the appellant no. 3-School, being run by the appellant no. 1-Society on 14th June, 1991. His appointment to the subject post was approved vide letter dated 29th January, 1998. While working on the subject post, in the year 2004, the respondent no. 1 passed Bachelor of Arts examination from the Yashwant Rao Chavan Open University, Nasik. In the year 2005, he passed the Bachelor of Physical Education Examination. On 10th June, 2005, the respondent no. 2-State of Maharashtra issued a Government Resolution² [For short the ‘GR’] for implementation of the revised Shikshan Sevak Yojana in aided Secondary and Higher Secondary Schools/Colleges, D.Ed. Colleges and Sainik Schools in the State. The tenure of the Shikshan Sevak was fixed as three years and it was clarified in paragraph 8 as follows:

“8. Where the non-teaching employee in the secondary school and Junior college acquires educational qualification required for teachers and such posts are available in the secondary and higher secondary/school/colleges, then such non-teaching member will have to be appointed as Shikshan Sevak and he will be entitled for honourarium as applicable to Shikshan Sevak and all other terms and conditions will be applicable to him. However, service rendered by non-teaching staff will be taken into consideration for pension.”

3. On 15th February, 2007, the respondent no. 2-State of Maharashtra issued a fresh GR in the background of the Central Government framing the Sarva Shiksha Abhiyan (Education for All Campaign), which left it to the States to develop a framework for appointment of teachers within the guidelines of the National Council of Teachers Education. Keeping in mind the said Scheme, the respondent no. 2-State considered it imperative to implement an alternative Scheme for appointing Shikshan Sevaks on vacant posts of teachers in all Secondary/Higher Secondary Schools/Junior Colleges and College Education in the State. For the purposes of implementing the said Scheme, several Resolutions were passed from time to time, starting with the first GR dated 13th October, 2000, followed by GRs dated 26th July, 2001, 27th July, 2001, 18th December, 2003, 28th May, 2004, 07th January, 2005, 10th January, 2005 and 26th April, 2006.

4. All the aforesaid GRs were clubbed and included in the original GR dated 13th October, 2000, which was updated by virtue of GR dated 15th February, 2007. After updating the original GR, the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act³ [For short the ‘Act of 1977’] 1977 was amended and the post of Shikshan Sevak was included in the definition Clause, i.e. Section 2(24A) and the consequential amendments were included by virtue of the Maharashtra Act XIV of 2007. Section 5 of the Act, 1977 that mandates the management to fill up every permanent vacancy in a Private School by appointment of a person duly qualified to fill such a vacancy was also amended in the following manner:

“5. (1) The Management shall, as soon as possible, fill in, in the manner prescribed, every permanent vacancy in a private school by the 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 Educational Inspector, Greater Bombay [the Education Officer, Zilla Parishad] or, as the