1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2234 of 2010 Suresh Kumar B. Upadhyay ....Petitioner Vs. Hindi Prachar Mandal & ors. ....Respondents Mr. N.R. Bubna, advocate for the petitioner. Mr. A.A.Garge, advocate for respondent no.1. Mr. S.N. Patil-AGP for respondent no.6. CORAM:- A.M.KHANWILKAR AND R.M.SAVANT, JJ DATED:- April 19, 2010 P.C. Heard Counsel for the parties. 2. By this Writ Petition under Article 226 of Constitution of India, the direction issued by the Respondent No. 4 is subject matter of challenge. It is prayed that Respondent No. 4 be directed not to act upon the communication dated 3rd March, 2010 whereby the Respondent No. 2 has been called upon to appoint Respondent No. 7 on the post of peon. 2. According to the Petitioner, he is working on the post of peon in the Respondent No. 2 school for last around 10 years. The management had submitted proposal for approval of his appointment to the said post to the appropriate Authority which, however, has not been considered so far. Instead, 2 the Respondent No. 7 came to be appointed to the post of peon presently held by the Petitioner in the Respondent No. 2 school. The argument though attractive at the first blush will have to be stated to be rejected. It clearly overlooks the fact that the Respondent No. 7 is an empanelled surplus teacher, who is required to be absorbed against the vacancy arising in any school in terms of provisions of Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act 1977 and Rules of 1981. Moreover, it is indisputable that the post of peon held by the Petitioner in the Respondent No. 2 School has been sanctioned for the first time on 22nd May, 2008. The fact that the Petitioner was appointed and working for almost ten years in the said post does not take the matter any further. For, the intial appointment of Petitioner was not against the sanctioned post as such. For that reason, the question of straightaway approving the appointment of Petitioner does not arise. The vacancy in the post of peon has arisen only from 22nd May, 2008. As per the Government policy as and when any post in any school becomes vacant, the same has to be filled in by appointing from amongst the panel of surplus employees to effectuate the obligation under the provisions of the Maharashtra Employees of Private Schools (Conditions of Service)Regulation Act, 1977 and Rules of 1981 framed thereunder. The management cannot straightway appoint candidate on its own of their choice against the vacant post. Such appointment would be subject to the approval to be granted by the appropriate authority. While considering the proposal for approval, it is open to the authority to reject the proposal and instead direct the management to appoint from amongst the empanelled surplus employees eligible as per the statutory provisions. Reliance has been placed on the Government Resolution dated 22nd May, 2008 by both sides. The said Government Resolution in no way departs from the statutory provisions which obligates absorbtion of the surplus employees against the vacant sanctioned post and after exhausting the said 3 option, the management of the concerned school would be free to appoint candidate of their choice subject to eligibility and approval by the appropriate Authority. 3. In the present case, as aforesaid, the post of peon became available only after the same was sanctioned on 22nd May, 2008. Consequent to the said vacancy, the appropriate Authority, by the impugned communication dated 3rd March, 2010, directed the Respondent No. 2 School to appoint Respondent No. 7 who was surplus employee eligible for such appointment. For the reasons best known to Respondent No. 2, they ignored the said recommendation. As a result, the Authority had no option but to accommodate Respondent No.7 in some other School. The fact that Respondent No. 7 has now been accommodated in some other school would not create any right in favour of the Petitioner. It is open to the appropriate authority to still insist that the Respondent No. 2 management shall appoint some other candidate from amongst the empanelled surplus candidates, unless the said list is already exhausted. It would be a different matter, if no other candidate from amongst the panel of surplus employees is available for appointment against the post of peon in the Respondent No. 2 school. Only in that situation, the appropriate Authority can favourably consider the proposal regarding granting approval to the appointment of the Petitioner on the post of peon in the Respondent No. 2 School. However, if the appropriate Authority recommends some other surplus employee for being appointed on the vacant sanctioned post of peon in the Respondent No. 2 School, the Respondent No. 2 School would be bound to appoint that candidate forthwith. At the sametime, we make it clear that whether the Petitioner should be continued in Respondent No. 2 School on the post of peon even in absence of approval to his appointment is the choice of the management and the management would be entirely responsible for the 4 payment of wages therefor. The fact that the Petitioner continues on the same post will not create any right in his favour as he would continue to work on a non-sanctioned post. 4. Taking any view of the matter, there is no substance in this Petition. The same is dismissed. (R.M. SAVANT, J) (A.M.KHANWILKAR, J)