1. The Petitioners have challenged the order of refusal of approval dated 06.08.2016 passed by Respondent No.3/ Education Officer holding that as 172 surplus teachers in Latur Zilla Parishad are yet to be absorbed and since the Petitioners/Management is recruiting new candidates thereby, truncating the right of surplus teachers, approval to the appointment of Petitioner Nos.3 and 4 cannot be granted.

2. Petitioner No.1 is the Management of the educational institution. Petitioner No.2 is the School. Petitioner Nos.3 and 4 are the newly appointed teachers who have been refused approval.

3. Shri Panpatte, learned Advocate for the Petitioners, has severely criticized the impugned order dated 06.08.2016. The contention is that as approval is refused, Petitioner Nos.3 and 4, who are newly appointed teachers with Petitioner Nos.1 and 2/ Management, are unduly facing hardships and their rights are being taken away by the impugned order of the Education Department.

4. He further submits that advertisements were published for recruiting Petitioner Nos.3 and 4. They were appointed on 01.04.2014 and 01.08.2014. Their proposals for approval have been turned down on the ground that there are 172 surplus teachers in Latur district who are eligible to be absorbed in Primary Marathi Schools and they are not being given preference. He submits that this Court, in Writ Petition No.2590/2013 (Gopal Siddheshwar Akhade vs. The State of Maharashtra) vide judgment dated 28.08.2013, has rejected such contentions and has concluded that notwithstanding the effect of Section 5(1) of the MEPS Act, 1977, such newly appointed teachers cannot be declined approval.

5. Shri Panpatte also relies upon the judgment of this Court dated 05.05.2012 in Writ Petition Nos.9885 to 9889 and 9903/2011 (Nilatai Shripatrao Rathod vs. The Education Officer, Primary), the judgment dated 14.07.2015 in Writ Petition Nos.7878 and 7879 of 2014 (Mallinath Melgiri Kante vs. The State of Maharashtra and others), and the judgment in Shailaja Ashokrao Walse vs. State of Maharashtra, 2000(1) BCR 18.

6. The learned AGP appearing on behalf of Respondent Nos.1 and 2 submits that the proviso to Section 5(1) of the MEPS Act, 1977 has not fallen for consideration of this Court in the judgments cited by the Petitioner, except in the case of Gopal Akhade (supra). He submits that when vacancies are to be filled in directly, the surplus teachers have to be absorbed and only when none is available, the Management may appoint fresh hands.

7. I have considered the strenuous submissions of Shri Panpatte and the learned AGP.

8. Section 5(1) read with the proviso which was added by Section 5(a) of the Maharashtra Act 30 of 1987, reads as under:-

“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 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 case may be, the Director or the Officer designated by the Director in respect of schools imparting technical, 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 such vacancy.]”

9. The opening sentence of the proviso is “Provided that, unless such vacancy is to be filled in by promotion, the Management shall, before proceeding to fill such vacancy, ascertain from ….....”. Shri Panpatte submits that this opening sentence means that only when vacancies are to be filled in by promotion, the Management shall ascertain from the Education Department whether, any suitable surplus te