Advocates:
['DR GODBOLE R J', 'COPY SERVED ON GP', '', 'GP', 'P M NAGARGOJE', 'TANDALE P R']

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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.

…

CORAM : MANGESH S. PATIL &

SANDEEP V. MARNE, JJ.

DATE : 20.08.2022.

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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

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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 obta