1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, APPELLATE SIDE NAGPUR BENCH, NAGPUR WRIT PETITION NO. 2449 OF 2011 (Sulochanabai M. Jadhav Vs. Education officer (Primary) & Ors.) WITH WRIT PETITION NO. 2078 OF 2001 (Manjulabai Namdeorao Shravankar Vs. Secretary Shishu Vihar Prathmik School & Ors. ) ........................................................................................................................................................................ Office Notes, Office Memoranda of Coram, appearances, Court orders or directions Court's or Judge's Order and Registrar's orders ........................................................................................................................................................................ Shri C. F. Bhagwani Adv for petitioner. Shri S. P. Kshirsagar Adv for petitioner in WP 2078/01. Shri Mishra Adv for respondent 1. Shri V. P. Laghate Adv for respondents 2 & 3. Shri Kankale AGP for respondent 4. CORAM: B. P. DHARMADHIKARI & A. P. BHANGALE JJ. DATED: 4th OCTOBER, 2011. These two petitioners are put together because of the orders dated 23.08.2011. Order dated 15.12.2000 passed by Education Officer determining inter-se seniority between petitioners in both matters is questioned. The petitioner in Writ Petition No. 2078 of 2001 Manjulabai has already retired on superannuation. Shri Bhagwani learned counsel appearing for other petitioner states that petitioner Sulochana has filed 2 petition for seeking approval after retirement of Manjulabai. He relies upon order dated 15.12.2000 by which seniority has been determined and Sulochanabai has been held senior to Manjulabai. Shri Kshirsagar learned counsel appearing for petitioner Manjulabai states that order dated 15.12.2000 though records facts correctly, inference drawn shows perversity and non application of mind. According to him Manjulabai had been working in Primary School as per record since 01.11.1983 and Sulochanabai entered Primary School in may 1984 i.e. after Manjulabai. He also relies on the judgment reported in Nita Ramesh Danane Vs. Dombivali Mitra Mandal and Others 2009(1) Maharashtra Law Journal 796, to urge that for filling the post in open category advertisement is not required. Shri Laghate learned counsel appearing for Management states that petitioner Sulochanabai had been working in primary School from July 1982. Learned AGP as also Shri Mishra learned counsel for respondent no.1 supports the order of determination of seniority. Shri Mishra states that as both petitioners were not recruited against any sanctioned vacancy the department has refused approval to them. He contends that candidate waiting in surplus list was forwarded to the Management for providing employment against post occupied by these ladies. He further states that in view of Division Bench Judgment reported in Priyadarshini Education Trust and Others Vs. Ratis (Rafia) Bano d/o Abdul Rasheed and Others 2007(6) Maharashtra Law Journal 667, the advertisement ought to have been published and procedure as 3 prescribed under Section 5 of Maharashtra Employees of Private Schools (Conditions of Services) Regulation Act, 1981 needed to be followed. Perusal of impugned order itself shows that Education Officer has looked into records and found that Sulochanabai has received her salary from July 1982 to April 1984 from tuition fees collected from students in Pre-Primary School i. e. Balakmandir, from May 1984 and on wards she has been paid from funds diverted from Primary School. Other petitioner Manjulabai is found paid salary from funds collected for Primary School from July 1982 till February 1988. Shri kshirsagar learned counsel for said petitioner has pointed out that said year July 1982 mentioned in order is incorrect and it has to be 01.11.1983. Even if date 01.11.1983 is accepted it becomes clear that Manjulabai was working in Primary School prior to Sulochanabai. Therefore, if simple issue of seniority is to be decided Manjulabai must be declared senior to Sulochanabai. Issue of approval has not been gone into by Education Department. Shri Mishra learned counsel has pointed out that as the recruitment was not against sanctioned post and in accordance with law, approval has been rejected. He has further pointed out that candidate from waiting list was forwarded to the Management. Neither Manjulabai nor Sulochanabai have been extended opportunity of hearing before rejecting approval to their respective appointments. Their entry in school is found bad behind their back. The order, therefore, cannot be sustained. Manjulabai has now retired on 4 superannuation. Similarly it is not clear from record how surplus employee sent by Education Department was dealt with. Hence in changed circumstances we find that interest of justice can be taken care of by directing Education Officer (Primary) to hear both the petitioners as also their Management and after looking into records take appropriate decision a fresh on the issue of approval in accordance with law. We accordingly direct both the petitioners and School Management to appear before Education Officer (Primary) on 21st November 2011. Said authority shall after hearing petitioners and management and after perusal of relevant records pass orders in accordance with law on the question of approval within further period of three months thereafter. Petitions are thus partly allowed with no orders as to costs. JUDGE JUDGE svk