WP/7929/2010 1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 7929 OF 2010 WITH CIVIL APPLICATION NO. 2332 OF 2011 SMT ARSHIYA NAAZ ABDULL SAMAD VERSUS TALAT SHIKSHAN MANDAL THROUGH PRESIDENT AND ORS ... Advocate for Petitioner : Shri Dhakne Vijay A. Advocate for Respondent(s) : Shri Karad A.M. AGP for Respondent(s): Smt. Shinde V.A. Advocate for Applicant in CA : Smt. Deshpande Manjusha ... CORAM : D B BHOSALE & S B DESHMUKH, JJ. Dated: August 02, 2011 ... PER COURT :- 1. Heard learned counsel for the parties. 2. By this Writ Petition under Article 226 of the Constitution of India, the petitioner is challenging the order / letter dated 8.7.2010 issued by respondent 3 - Education Officer (S), Zilla Parishad, Aurangabad. By this order, respondent 3 has refused to grant approval to the appointment of the petitioner as an Assistant Teacher. From perusal of the order dated 8.7.2010, it appears that the petitioner was appointed in the place of one Aqueela Bano on 29.3.2008. Though the petitioner claims that she was reinstated in pursuance of the order passed by this Court in terms of the consent terms dated 28.3.2008 in Writ Petition No. 3919 of 2002, it appears that Aqueela Bano was terminated by the WP/7929/2010 2 management vide resolution dated 29.3.2008 and in her place, by the very same resolution, the petitioner was given appointment and allowed to resume. This is all reflected in the impugned order. Further, challenge to Aqueela Bano's termination is still pending adjudication, and presently it is before the Supreme Court. In view thereof, the Education Officer vide order dated 8.7.2010 refused to grant approval to the appointment of the petitioner. 3. We have perused the order dated 28.3.2008 passed in Writ Petition No.3919 of 2002, by which the petition was disposed of in terms of the compromise arrived at by the petitioner and the management. Though the Education officer was party to the petition, he was not party to the consent terms / compromise. In the consent terms, the management had agreed that they would treat the service of the petitioner as a continuous service with effect from 13.6.1994 and it would extend yearly increment, treating the service of the petitioner as permanent Assistant Teacher and would forward proposal to the Education Officer for approval and that she would claim the salary after reinstatement only from the Education officer. Under the order dated 28.3.2008, whereby the petition was disposed of in terms of the consent terms, it was recorded that the compromise was duly signed by the petitioner and respondents 1 and 2. The Education Officer was respondent No.3 in the said petition. Against this backdrop, it appears that the proposal of the petitioner was sent to the Education Officer. Thereafter, WP/7929/2010 3 in another Writ Petition No.3013 of 2010, this Court directed to consider the petitioner's proposal for approval on merits in accordance with law and within the stipulated time. In the backdrop of the facts mentioned above the impugned order has been passed. 4. It is now well settled that the primary responsibility to pay salary to its employee is of the management. Keeping this in view, in our opinion, it is only the management which has to pay salary of the petitioner in view of the impugned order passed by the Education Officer rejecting their application for seeking approval to the appointment of the petitioner. The Education Officer (S), has passed such order in view of the pendency of Aqueela Bano's SLP in the Supreme Court. It is open to the management to seek reimbursement of the amount paid to the petitioner by way of salary in the event Aqueela Bano's SLP is ultimately dismissed by the Supreme Court. We are taking such view because if Aqueela Bano's SLP is finally allowed and if directions are issued by the Supreme Court, the State will have to pay the salary / backwages to her. In any case, the Education Department cannot be made to pay salary to two different teachers appointed on one sanctioned post. An approval is necessary only for the purposes of seeking grant-in-aid for making payment of the salaries that the management pay to its staff. There is no dispute that Aqueela Bano's SLP is pending in the Supreme Court and in the event SLP is allowed and if directions are issued to reinstate her with all backwages, it is Aqueela Bano, who will be entitled for salary, which the management will WP/7929/2010 4 have to pay and seek reimbursement from the Education Officer. In the circumstances we do not find any error in the order passed by the Education Officer worth considering in writ jurisdiction in Article 226 of the Constitution of India. 5. Hence the Writ Petition is dismissed. 6. Civil Application, in view of the aforesaid order in Writ Petition, stands disposed of. (S.B.DESHMUKH, J.) (D.B.BHOSALE,J.) ... akl