1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 4379 OF 2008 (Suryakant Bapuji Kayarkar vs. Hon'ble Joint Charity Commissioner & Ors.) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. NOVEMBER 11, 2008. Heard Shri Bhandarkar, learned counsel for the petitioner, Shri Kothari, learned AGP for respondent No.1 and Shri Khanzode, learned counsel for respondents No.2 & 3. This Court has on 24.10.2008 passed orders in this matter after noticing that though students had taken admission, there were no teachers to teach them and hence learned AGP was called upon to find out whether surplus teachers available with the Education department either under Rules 26 or 25A of Maharashtra Employees of Private Schools (Conditions of Service) Rules, can be made available to the petitioner. Today, upon instructions, the learned AGP has stated that though three posts to be filled in are available in unaided establishment but such available teachers cannot be absorbed against these three vacancies. He however, states that the 2 management is free to proceed further to make recruitment in accordance with law and subject to further orders in this matter by the Competent Authority. Shri Khanzode, learned counsel for respondents No. 2 & 3 has stated that proceedings are pending before the Joint Charity Commissioner and Joint Charity Commissioner has by impugned order, refused such permission. He, therefore, states that this Court should not interfere in the matter and in case this Court is inclined to interfere, the unauthorized act of the petitioner should not come in the way of legal and valid management, after it is ascertained by the Competent Authority. The perusal of record shows that Change Report submitted by the petitioner is accepted by the Assistant Charity Commissioner, Chandrapur, and that acceptance is questioned by the respondent in appeal under Section 70 of the Bombay Public Trusts Act, 1950, before the Joint Charity Commissioner. The Joint Charity Commissioner has on 18.8.2008 by separate order stayed that acceptance. Simultaneously, the Joint Charity Commissioner has also rejected prayer of present petitioner to permit it to effect recruitment on available vacancies. 3 It is apparent that on account of inter se dispute between the management, the students' education cannot be permitted to suffer. The petitioner, therefore, is permitted to proceed further with the recruitment and fill in three posts from unaided establishment subject to rider that the employment so provided by the petitioner shall be subject to final orders by the Joint Charity Commissioner in Appeal No. 38 of 2007, pending before it. At this stage, Shri Bhandarkar, learned counsel for the petitioner states that apart from these three vacancies on unaided establishment, there are other vacancies also. The learned AGP states that he has no instructions about the alleged other vacancies. Liberty to the petitioner to move appropriate application before the Joint Charity Commissioner for filling in such other posts. Copy of such an application shall be given to appropriate authority of Education department and Joint Charity Commissioner shall, after obtaining reply/ say of education authorities and after ascertaining whether vacancies are available and sanctioned, proceed to pass appropriate orders in the matter. The petitioner shall file such an application by 24.11.2008 and the 4 education authorities shall file their say before the Joint Charity Commissioner in Appeal No. 38 of 2007 by 3.12.2008. The Joint Charity Commissioner shall take appropriate decision on said application by 20.12.2008. It is made clear that the observations made by the Joint Charity Commissioner, Nagpur, in its earlier order dated 18.8.2008 shall not come in its way in passing appropriate orders on the said application. Writ Petition is partly allowed. However, in the circumstances of the case, there shall be no order as to costs. JUDGE *GS.