IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.12216 OF 2017 Shaikh Aaquib Faraz s/o Shaikh Arif, Age; 25 yrs. Occu. Asst. Teacher, R/o Azad Nagar, Jalkot Road, Near Achariya Vinoda Bhave School, Tq. Udgir, Dist. Latur. ...PETITIONER VERSUS

1. State of Maharashtra School Education Department Mantralaya Mumbai (Through its Secretary)

2. Secretary, Al-Frooq Taleemi Society Udgir, Tq. Udgir, Dist. Latur.

3. Head Master, Gulshan-E-Atfal Urdu Primary School, Udgir, Tq. Udgir, Dist. Latur.

4. The Eduction Officer (Primary)

Zilla Parishad, Latur. ...RESPONDENTS ...

Advocate for Petitioner : Mr.Dr.Godbole R.J.

AGP for Respondent No. 1-State : Mr.K.N.Lokhande Advocate for Respondent Nos. 2 &3 : Mr.P.M. Nagargoje Advocate for Respondent No. 4 : Mr.Tandale P.R.

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CORAM : MANGESH S. PATIL &

SANDEEP V. MARNE, JJ.

DATE : 20.08.2022.

ORAL JUDGMENT : (PER - SANDEEP V. MARNE, J.)

1. Rule. Rule, made returnable forthwith. With the consent of the learned Advocate for the parties, heard finally at the stage of admission.

2. Respondent No. 2 is a Minority Educational Institution, which has appointed the petitioner on the post of Assistant Teacher. A proposal for grant of his approval has been rejected by the Education Officer (Primary), vide the communication dated 23.05.2017 essentially on the ground that there was ban on recruitment after 02.05.2012 and that while filling up the post, no objection certificate of the Education Officer was not obtained.

3. Mr. Godbole, Ld. Counsel appearing for the petitioner relies upon the provisions of Section 3 (2) of The Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977, (hereinafter referred to as ‘the Act of 1977’), which reads thus :

“3. Application of Act. - 2) Notwithstanding anything contained in sub-section (1), the provisions of this Act shall not apply to the recruitment [of the Head of a minority school and any other persons (not exceeding three) who are employed in such school and whose names are notified by the Management to [the Director or, as the case may be,] the Deputy Director for this purpose.”

4. He further submits that in accordance with the provisions of Sub Section (2) Section 3, the Management had notified three posts to the Deputy Director by communication dated 09.05.2022, Petitioner being one of the three post holders. He submits that by doing so, the management had satisfied the mandatory requirement of Section 3 (2) and that therefore the post held by the Petitioner came out of purview of the provisions of the Act of 1977.

5. With a view to ensure that the teachers rendered surplus are accommodated against various vacancies arising in schools, a Proviso has been inserted in Sub-Section 1 of Section 5 of the Act of 1977, which reads thus:

5. Certain obligations of Management of private schools. - (1) The Management shall, as soon as pos- sible fill in, in the manner prescribed, every perman- ent 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 Of- ficer, Zilla Parishad or, as the case may be, the Dir- ector or the officer designated by the Director in re- spect of schools imparting technical, vocational, art or special education, whether there is any suitable per- son available on the event of such person being avail- able, the Management shall appoint that person in such vacancy.

6. Mr. Godbole submits that since the post held by Petitioner has been brought out of the purview of provisions of the Act of 1977, the condition of obtaining No Objection Certificate under Proviso to Sub-

Section 1 of Section 5 would not apply to his case. He further submits that since it is a prerogative of the minority educational institution to fill up one of the three notified posts, the ban on recruitment wo