The main legal point established is that vacancies in the open category should be filled from the open category, and the ban on recruitment may not apply in certain circumstances.

JUDGMENT

Abhay Ahuja, J. - Rule. Rule made returnable forthwith. Mr. Vikas Mali, the learned AGP for Respondents waives service.

2. By consent of counsel for the parties, Writ Petition is heard finally.

3. By this Writ Petition filed under Article 226 of the Constitution of India, the Petitioners are seeking to challenge the order dated 5th November, 2018 issued by the 2nd Respondent-The Education Officer (Secondary), refusing approval to the proposal for grant-in-aid in respect of appointment of Petitioner No.1 as a Shikshan Sevak in the secondary school of Petitioner No.2.

PETITIONERS CASE

4. The case of the Petitioners is stated as under :-

(i) In or about September, 2014 due to the resignation of one Smt. Shobha Chandrasingh Vasave in the school of Petitioner No.2, one post of the approved teacher (Science) became vacant and available. As per the Roster of the school, a total of number of eight posts were sanctioned, out of which seven were filled and one was vacant. As per the provisions of The Maharashtra Employees of Private Schools (Conditions of Services) Rules, 1981 ("the MEPS Rules"), four posts were available for open category, out of which three posts were filled and as mentioned above, there was backlog/deficit of one post in open category.

(ii) In order to fill up the said vacancy, Petitioner No.2-Management made an application dated 6th September, 2014 to the 2nd Respondent seeking permission to publish the advertisement to fill up the said vacancy. However, since there was no response nor any surplus teacher was deputed to be absorbed in the said vacancy, Petitioner No.2 on 8th September, 2014 published an advertisement in the newspaper "Daily Sagar" and invited candidates for interview on 16th September, 2014. Total two posts, including one post of B.Sc., B.Ed. for Science and Mathematics subjects for candidates belonging to open category were advertised. In response to the said advertisement, Petitioner No.1 having B.Sc. (Chemistry) and B.Ed. (Science & Maths) qualifications applied in addition to eleven other candidates. Out of twelve candidates, only two candidates had B.Sc. B.Ed. qualification and, therefore, the Selection Committee conducted the interview of only two candidates including Petitioner No.1. It is submitted that Petitioner No.1 secured highest marks and came to be selected for appointment. On the basis of the selection and recommendation, the Management passed a Resolution on 23rd September, 2014 to appoint Petitioner No.1 as Shikshan Sevak from 25th September, 2014. The appointment order was issued to Petitioner No.1 as Shikshan Sevak for three years, i.e., from 25th September, 2014 to 24th September, 2017 and on that basis Petitioner No.1 joined the school on 25th September, 2014.

(iii) It is the case of the Petitioners that it is only after the aforementioned procedure for selection of Petitioner No.1 was completed, that by a letter dated 15th September, 2014 (claimed to be received by Petitioners on 18th November, 2014), Respondent No.2 informed the Head Master of the school, in response to the application made on 6th September, 2014 for permission to fill up the vacant posts, that as per the provisions of the Government Resolution dated 20th June, 2014, unless the process of absorption is completed, the permission cannot be granted to fill up the new posts. It is submitted that a similar letter dated 19th September, 2014 was also issued by the office of the 2nd Respondent and which was also received on 18th November, 2014.

(iv) It is submitted that thereafter by a letter dated 2nd December, 2015, the Head Master submitted proposal to Respondent No.2 on 2nd January, 2016 seeking approval to the above appointment of Petitioner No.1, however, there was no response even though, the Head Master repeatedly approached the office of the 2nd Respondent. It is submitted that it was orally informed that since there was ban on recruitment with effect from 2nd May, 2012, no decision could be taken on the sa