G.S. Kulkarni, J.

1. Admit. By consent of the parties petition is taken up for final hearing.

1. By this Writ Petition filed under Article 226 of the Constitution of India, the petitioner challenges an order dated 17.6.2011 passed by the respondent no.1-The Commissioner, Apang Kalyan Ayuktalaya, Maharashtra State, Pune. By the impugned order the petitioner has been directed to absorb respondent no.4 on the post of Caretaker, who is an employee rendered surplus on account of the closure of a handicapped school at Gadipura, Taluka and District Nanded.

The factual matrix lies in a narrow compass:

2. The petitioner no.1 is a trust registered under the Bombay Public Trust Act, 1950 and is conducting petitioner no.2 school, catering exclusively to impart education to mentally challenged students. The respondent no.1-the Commissioner for Social Welfare, Government of Maharashtra is an authority which exercises control on such schools.

3. The petitioner no.1 trust was established on 1.2.1955 by Roman Catholic Trustees professing and practicing Christianity as their religion. The founding trustees of the petitioner no.1 were Roman Catholics nuns. Since inception the trustees of the petitioner no.1 were nuns practicing and professing Christianity. The petitioner no.2 school was established in the year 1976 and was recognized by the respondent no.1 on 8.12.1989.

4. Petitioner no.1 had applied to the State Government for a recognition that it is a religious minority institution within the meaning and purview of Article 30 of the Constitution of India. The appropriate authority has issued a certificate dated 22.1.2009 recognizing the petitioner no.1 as a religious minority institution in the State of Maharashtra. There is no dispute in this regard.

5. In the course of managing the petitioner no.2 school, the petitioners had made an appointment of one Ms.Jyotsna S.Thorat on a non-teaching post namely post of a Caretaker by issuing the appointment letter dated 3.9.2006. The appointment was on probation for 1 year with initial pay of Rs.2000/- per month. An approval was sought in respect of the appointment of Mrs.Jyotsna Thorat from the Special District Welfare Officer. By a communication dated 18.8.2007 such approval was granted.

6. The Special District Welfare Officer, Mumbai city issued a show cause notice dated 3.5.2011 to the petitioner no.2 calling upon the petitioners to show cause as to why the approval granted to Mrs.Jyotsna Thorat on the post of Caretaker be not cancelled. The show cause notice was issued on the basis that before making the appointment of Mrs.Jyotsna Thorat the petitioner No.2 had not sought a NOC from the respondents which was necessary in the light of the directions of the Division Bench judgment of this Court in Writ Petition No.5744 of 2003 of the Aurangabad Bench. The Division Bench in this Judgment had directed the respondents to comply with the provisions of Rule 25A of the Maharashtra Employees of Private Schools (Conditions of Service) Rules 1981 (hereinafter referred to as MEPS Rules) which contemplates that surplus employees in aided schools whose services are terminated on account of de-recognition or closure and who are thus rendered surplus would be kept in the waiting list and would be absorbed in other schools on appropriate vacancies. It was alleged that the petitioners had not sought a NOC so that the surplus employees in other schools would get an opportunity to be absorbed on the vacant posts. It was alleged that the appointment of Mrs.Jyotsna Thorat was contrary to the said directions of the Division bench of this Court.

7. The petitioner no.2 submitted its reply to the show cause notice by its letter dated 6.6.2011 inter alia stating that Mrs.Jyotsna Thorat was properly appointed on a vacancy arising on superannuation of one Vimal Adsul who superannuated on 31.8.2006. It was stated that the appointment of Mrs.Jyotsna Thorat was duly approved on an appropriate proposal being forwa