1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.3142 OF 2009 1. The Chairman, Vidya Vikas Mandal, Sakri, Tal. Sakri, Dist. Dhule. 2. The Head Maaster, Vidya Vikas Mandal's Adarsha Prathmik Vidyalaya, Sakri, Tal. Sakri, Dist. Dhule. .. Petitioners Versus 1. Shubhangi Lotan Bedse, Age: 33 years, Occ: Service, R/o. 66/Adarsha Nagar, Sakri, Tal. Sakri, Dist. Dhule. 2. The Education Officer (Primary) Zilla Parishad Dhule, District Dhule. .. Respondents ... Mr. N.L. Choudhari, Advocate for petitioners. Mr. V.D. Sapkal, Advocate for respondent No.1. Mr. D.S. Bagul, Advocate for Resp.No.2 (Absent). ... CORAM : K.K. TATED, J. DATE : 15TH SEPTEMBER, 2009. PER COURT : 1. Heard learned Counsel for the petitioners 2 and learned Counsel for respondent No. 1. When the matter called out, no one appeared on behalf of respondent No.2 though duly served. 2. By this petition under Articles 226 and 227 of the Constitution of India, the petitioners - original respondent Nos. 1 and 2 challenges the order dated 12-03-2009 passed by the Presiding Officer, School Tribunal, Nashik in Appeal No. DHL/01/2008 by which respondent No.1's (original appellant) appeal allowed under Section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977, for setting aside the petitioner's oral order dated 22-12-2007. 3. A few facts of the matter are as under. . It is not in dispute that respondent No. 1 was appointed as Assistant Teacher w.e.f. 01-07-2002 by the petitioners. Thereafter, the petitioners for the first time on 27-11-2006 3 submitted respondent No.1's proposal to the respondent No. 2 for approval in service. However, by letter dated 07-05-2007 the Education Officer refused to accord approval to the appointment of respondent No.1 only on the ground that Deputy Director of Education, Nashik has informed to the Education Officer that respondent No. 1 has obtained Diploma in Education from other State Government. Because of the refusal for the approval to the appointment of respondent No.1 by Education Officer, the petitioners issued oral order terminating the respondent No.1's service w.e.f. 22-12-2007. Oral termination order challenged by respondent No. 1 by preferring appeal under Section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977. 4. Learned Counsel appearing on behalf of the petitioners submits that unless and until Education Officer grants sanction to the 4 respondent No.1's appointment, it is not possible for them to continue the respondent No. 1 in service. On this only ground, the petitioners challenged the order dated 12-03-2009 passed by the School Tribunal, Nashik. Learned Counsel appearing on behalf of respondent No. 1 submits that this cannot be a ground to the petitioners for terminating the respondent No. 1's services. He submitted that respondent No. 1 was appointed by petitioner after following due procedure. It has been held by the Bombay High Court in the matter of St. Ulai High School, through its Principal & anr. vs. Devendraprasad Jagannath Singh & anr. reported in 2007(1) Bom.C.R. 540 that the mode of appointment and conditions of service of employees of recognised private schools are statutorily prescribed by the Act and the rules and it would, therefore, not be open to the management to impose a condition that the validity of the appointment would be subject to 5 the granting approval. Para 10.7 and 10.8 of the said judgment read as under. "10.7 A management of an institution seeking grant-in- aid is responsible to ensure compliance with the requirement imposed by the State for the disbursal of aid. The rejection of a proposal by the management for disbursal of grant-in-aid constitutes a lis between the management and the Government. In the event that the management fails to comply with the conditions prescribed by Government for the disbursal of aid which has been sanctioned, Government would be entitled to take such measures as are open in law. Government is entitled to ensure that financial aid which it sanctions is used for the purposes for which it is meant. Government is entitled to guard against misuse or diversion and take disciplinary and other measures against errant managements. However, neither the Act, nor the Rules mandate the approval of the Education Department as a condition precedent to a valid order of appointment. The question of approval relates to the disbursal of financial aid. The denial of approval cannot, therefore, invalidate an order of appointment. 6 "10.8 The question that arises is whether a condition of approval can be imposed by the management in the order of appointment and if so whether a termination of services can be sustained on the ground that there has been a non-fulfillment of a contractual condition contained in the order of appointment. The answer is that the terms and conditions of appointment are prescribed in the rules framed under Sub-section (1) of Section 4. Rule 9(5) provides that a candidate appointed to a post has to be issued with a letter of appointment in accordance with the form prescribed in Schedule D. Schedule D, does not impose any condition providing for prior or post facto approval as a condition for continued employment. An order of appointment cannot be at 7 variance with the conditions prescribed in the rules which have statutory force and effect in conjunction with Section 4(1) of the Act. The mode of appointment and conditions of service of employees of recognised private schools are statutorily prescribed by the Act and the rules and it would, therefore, not be open to the management to impose a condition that the validity of the appointment would be subject to the grant of approval. The State Government as a delegate of the Legislature has not prescribed any such condition in the rules and the management cannot impose such a condition which has not been provided in the rules, as an overriding pre- requisite to the validity of an appointment. " At the time of allowing respondent No.1's 8 appeal, the learned Tribunal relied on the same authority. 5. It is crystal clear from the above authority that the petitioners cannot terminate respondent No.1's services only on the ground that Education Officer has not accorded sanction to respondent No.1's appointment. 6. In view of the above mentioned facts and circumstances, I do not find any substance in the present Writ Petition and same is dismissed summarily. [ K.K. TATED, J.] sut/SEP09/wp3142.09