Bombay High Court
Gajanan Kaduba More vs The Education Inspector (West Zone), ... on 10 September, 2025
Author: Ravindra V. Ghuge
Bench: Ravindra V. Ghuge
2025:BHC-OS:14954-DB
WP-1180-746-32 (J) C4.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 1180 OF 2011
Gajanan Kaduba More ....Petitioner
V/S
The Education Inspector (west Zone),
Gr. Mumbai And Ors. ...Respondents
SNEHA WITH
NITIN WRIT PETITION NO. 32 OF 2013
CHAVAN
Digitally signed
by SNEHA NITIN Sahyadri Shikshan Sanstha ....Petitioner
CHAVAN
Date: 2025.09.12
11:03:11 +0530
V/S
The Education Inspector (West Zone)
Greater Mumbai And Anr. ....Respondents
WITH
WRIT PETITION NO. 746 OF 2012
Sahyadri Shikshan Sanstha ....Petitioner
V/S
The Education Inspector(West Zone)
Gr. Mumbai And Ors. ....Respondents
***
Adv. Shailesh Naidu i/by Adv. Shaikh Nasir Masih with Adv.
Pradeep Kumar for the Petitioner in WP/1180/2011 and for
Respondent No. 3 in WP/746/2012 and WP/32/2013.
Mr. Mihir Desai, Sr. Adv. with Ms. Sanskruti Yagnik for the
Petitioner in WP/746/2012 and WP/32/2013 and for Respondent
No. 2 in WP/1180/2011.
Ms. P. H. Kantharia, G.P. for the Respondent- State in
WP/32/2013 and WP/1180/2011.
Ms. Jyoti Chavan, Addl. G.P. for the Respondent -State in
WP/746/2012.
Mr. Narendra V. Bandiwadekar, Senior Advocate with Mr.
Sheha Chavan Page 1 of 22
::: Uploaded on - 12/09/2025 ::: Downloaded on - 12/09/2025 23:27:32 :::
WP-1180-746-32 (J) C4.doc
Vinayak R. Kumbhar with Mr. Rajendra Khaire and Mr. Aniket
S. Phapale i/by. Ashwini N. Bandiwadekar for Respondent No. 4
in WP/1180/2011.
****
CORAM : RAVINDRA V. GHUGE
AND
M.M. SATHAYE, JJ.
RESERVED ON : 2nd JULY, 2025
PRONOUNCED ON : 10th SEPTEMBER, 2025
JUDGMENT (PER : M.M.SATHAYE, J.)
1. These three writ petitions are connected with each other and therefore taken together for disposal.
2. Writ Petition No. 1180 of 2011 is filed by a teacher (Mr. Gajanan Kaduba More) challenging impugned order dated 27.04.2011 passed by Education Inspector, West Division, Mumbai. By the said impugned order, it is held that Mr. More is not legally appointed on the vacant post for Under Graduate as there is no backlog of NT category and therefore approval is rejected. Mr. Datta Keshavrao Thorave is Respondent No. 4 in this writ petition. The prayers in the said Writ Petition are as under:
"(a) that this Hon'ble Court be pleased to issue a writ of certiorari or any other appropriate writ, or Order or direction in the nature of certiorari or direction in the like nature under Article 226 of the Constitution of India for calling for records and proceedings leading to passing Order dated 27.04.2011 (EXHIBIT "N") of refusal to grant Approval by Respondent No. 1 Education Inspector and after considering legality, validity and propriety of the same to quash and set aside the Sheha Chavan Page 2 of 22 ::: Uploaded on - 12/09/2025 ::: Downloaded on - 12/09/2025 23:27:32 ::: WP-1180-746-32 (J) C4.doc Order dated 27.04.2011 (EXHIBIT "N"):
(b) that this Hon'ble Court be pleased to issue a writ of mandamus or any other appropriate writ, or Order o direction in the nature of certiorari or direction in the like nature under Article 226 of the Constitution directing Respondent Nos. 2 and 3 to submit Proposal for Approval of Petitioner before Respondent No. 1 for his appointment on Trained Graduate Teacher w.e.f. 16.06.2008, direct Respondent No. 1 to grant Approval of appointment of Petitioner and pay him arrears within a period of two months by adjusting the amount already paid by Respondent Management and pay his monthly salary as Full Time Asst.
Teacher as Trained Graduate i.e. on B.Ed Scale regularly forthwith;
(c) That this Hon'ble Court be pleased to issue a wilt of certiorari or any other appropriate wilt, or Onder or direction in the nature of certiorari or direction in the like nature under Article 228 of the Constitution that the Respondent No. 4 is junior to Petitioner and direct Respondent No. 1 to grant Approval to appointment of Petitioner on Higher Scale of B.Ed and declare Petitioner as permanent Asst. Teacher"
3. Writ Petition No. 746 of 2012 is also filed challenging the same impugned order dated 27.04.2011 by the Educational Institute (Sahyadri Shikshan Sanstha), hereinafter referred to as "the Management". The Prayers in Writ Petition No. 746 of 2012, are as under :
"(a) that this Hon'ble Court be pleased to issue a writ of certiorari or a writ, order or direction in the nature of certiorari calling for the records and proceedings and after going through the report and propriety of the same quash and set aside the order dated 27th April, 2011 annexed at Exhibit J to the petition to the extent that it seeks to reject the application of the Respondent no.3 Sheha Chavan Page 3 of 22 ::: Uploaded on - 12/09/2025 ::: Downloaded on - 12/09/2025 23:27:32 ::: WP-1180-746-32 (J) C4.doc
b) that this Hon'ble Court may be pleased to issue writ of mandamus or a writ, order or direction in the nature of mandamus directing the Respondent nos. 1 and 2 to grant approval to the appointment of respondent no.3 on trained under graduate scale w.e.f. 14.6.2004 and release the salary rant and arrears in respect of the same from such date as this Hon'ble Court may deem fit ad proper.
c) for a writ of mandamus or a writ, order or direction in the nature of mandamus directing the Respondent no.3 to refund to the petitioner the wages already paid by them to him once the salary grant is released"
4. Writ Petition No. 32 of 2013 is filed by the Management challenging a subsequent order dated 28.06.2012, by which the Management is directed to pay arrears to Mr. More which is calculated as per the order passed by this Court in earlier petition. The Prayers in Writ Petition No. 32 of 2013, are as under :
"(a) that this Hon'ble Court be pleased to issue a writ of certiorari or a writ, order or direction in the nature of certiorari or any other appropriate order or direction quashing and setting aside the order dated 28.6.2012 annexed at Exhibit- M to this petition"
5. Few facts necessary for disposal of these petitions are as under:-
(i) On 11.02.2004, an advertisement was issued by Jai Bhavani High school ('the School') run by the Management for appointment of teachers having qualification B.Sc., B.Ed.
(ii) On 12.06.2004, Mr. More was appointed as Asst.
teacher in the secondary section on 5500-9000/- pay-
Sheha Chavan Page 4 of 22 ::: Uploaded on - 12/09/2025 ::: Downloaded on - 12/09/2025 23:27:32 :::WP-1180-746-32 (J) C4.doc scale with effect from 14.06.2004. This appointment is pursuant to application of said Mr. More dated 15.05.2004. In this application, there is no reference to the advertisement and application asserts that Mr. More belongs to caste Hindu. The application does not assert that Mr. More is an OBC candidate.
(iii) On 14.06.2005, Mr. Thorave was appointed as Asst.
Teacher on 5500-9000/- pay-scale with effect from 15.06.2005. This appointment is pursuant to application of said Mr. Thorave dated 01.06.2005.
(iv) At the time of appointment, the school was completely unaided.
(v) During the period from 2005 to 2009, stage-wise grant-
in-aid has been sanctioned.
(vi) In 2008-09, the School became 100% grant-in-aid for std 5th to std 7th only and at that time, according to the government approval, one graduate teacher and 2 under graduate teachers were permissible.
(vii) On 15.09.2008, a proposal was received by education department from the Management for approval of Mr. More and Mr. Thorave. The management has not made Mr. Thorave party to both its petitions.
(viii) On 30.03.2009, the appointment of Mr. Thorve was approved in NT category in the graduate scale. However, the appointment of Mr. More was not Sheha Chavan Page 5 of 22 ::: Uploaded on - 12/09/2025 ::: Downloaded on - 12/09/2025 23:27:32 ::: WP-1180-746-32 (J) C4.doc approved because he belongs to OBC category and there was already one teacher (Shivaji Pandhare) appointed in June 2004 under OBC category and in under graduate scale. The reason given for not approving appointment of Mr. More is that there was no vacancy for OBC category (graduate or under graduate scale) and there is no vacant post available for Trained Graduate (TG).
(ix) On 26.11.2009, Mr. More obtained Caste Certificate as O.B.C.
(x) Mr. More filed earlier Writ Petition No. 623 of 2010, challenging above order dated 30.03.2009 by which approval to his appointment was denied and approval to Mr. Thorave's appointment was granted. The said order was also challenged by the Management by filing earlier Writ Petition No. 123 of 2011.
(xi) On 15.04.2010, Mr. More obtained Caste Validity Certificate.
(xii) On 16.03.2011, this Court (Division Bench) set aside the order dated 30.03.2009 and directed the Education Inspector to reconsider the proposals of Mr. More and Mr. Thorave afresh on its own merits and in accordance with law. It was already clarified in this order, that since both Mr. More and Mr. Thorave have submitted same undertaking to the Management that they are ready to work in D.Ed. Scale, it can not be the basis to examine rival claims. But this order also takes cognizance of Mr. Sheha Chavan Page 6 of 22 ::: Uploaded on - 12/09/2025 ::: Downloaded on - 12/09/2025 23:27:32 ::: WP-1180-746-32 (J) C4.doc More being senior, being appointed earlier in point of time, and therefore approval to Mr. Thorave's appointment is subject to first considering claim of Mr. More.
(xiii) The Education Inspector thereafter heard Petitioner Mr. More and Mr. Thorave and passed the present impugned order dated 27.04.2011 and confirmed the approval to appointment of Mr. Thorave, however, rejected proposal of appointment of Mr. More.
(xiv) Thereafter, the present 2 Writ Petitions are filed, one by Mr. More and other by the Management.
(xv) On 19.09.2011, this Court granted Rule in Writ Petition No. 1180 of 2011 filed by Mr. More, but interim relief was refused.
(xvi) Thereafter, on 24.01.2012, this Court directed the Education Inspector to calculate the salary payable to the Petitioner Mr. More. Pursuant to said directions, the Education Inspector passed order dated 28.06.2012 and calculated the amount payable to Mr. More as Rs.17,98,575/- on account of salary in TG post for a period from June 2004 to March 2012.
(xvii) This order dated 28.06.2012 is challenged in Writ Petition No. 32 of 2013 by the Management.
(xviii) Thereafter, on 17.06.2013, this Court passed an order in Writ Petition No. 746 of 2012 clarifying that pendency Sheha Chavan Page 7 of 22 ::: Uploaded on - 12/09/2025 ::: Downloaded on - 12/09/2025 23:27:32 ::: WP-1180-746-32 (J) C4.doc of the petition does not absolve the Management from discharging its liability towards Mr. More.
(xix) On 13.01.2015, this Court admitted Writ Petition No. 746 of 2012 and it was directed to be heard with Writ Petition No. 1180 of 2011. On same day, Writ Petition No. 32 of 2013 filed the Management was admitted and the impugned order therein (directing the Educational Institute to pay arrears to Mr. More) was stayed on condition that the Management pays Rs.3,50,000/- to Mr. More towards part of arrears within 6 weeks.
(xx) Upto 2021, the Management failed to pay the arrears as directed by this Court and therefore, on 07.07.2021 this Court again directed the Management to comply with order of payment of arrears, failing which it was directed that interim relief will stand vacated.
(xxi) On 17.08.2021, the Educational Inspector again computed the amount payable to Mr. More which comes to Rs.68,38,110/- payable from April 2012 to June 2021.
SUBMISSIONS OF THE PARTIES
6. Learned Senior Advocate Mr. Desai appearing for the Management submitted that both the reasons given for rejection of approval to Mr. More's appointment are unsustainable as his appointment, being OBC is legal under Rule 9(9)(a) of the Maharashtra Employees of Private Schools Conditions of Services Sheha Chavan Page 8 of 22 ::: Uploaded on - 12/09/2025 ::: Downloaded on - 12/09/2025 23:27:32 ::: WP-1180-746-32 (J) C4.doc Rules, 1981 ("the 1981-Rules" for short) as it existed at the relevant time. Said rule reads as under :
"9(9)(a) In case it is not possible to fill in the teaching post for which a vacancy is reserved for a person belonging to a particular category of Backward Classes, the post may be filled in by selecting a candidate from the other remaining categories in the order specified in sub- rule (7) and if no person from any of the categories is available, the post may be filled in temporarily on an year-to year basis by a candidate not belonging to the Backward Classes."
He relied on Judgment of Kankavali Shikshan Sanstha and Ors. v/s. M.R. Gavali [(2005) 13 SCC 638] and Shakuntala G. Shirbhate v/s. Industrial Weaving Co-op. Society and ors. [1995 SCC (l & s) 144] in support of this submission.
7. It is further submitted that Rule 66 of the Secondary School Code allows appointment of TG teacher on trained under- graduate (TUG) post. However, salary of the such person will be that of TUG. Rule 66 reads as under :
"66. The requirement to teaching staff for classes of standards V to VII (or any of them) and for classes of standards VIII to X (or any of them) shall be calculated in accordance with rule 73.2 to 73.6. The total No. of graduate and under graduate teachers admissible to classes of standards V to VII (or any of them) shall be in the ratio of 25:75. However, while calculating the No. of graduate and undergraduate teachers for these standards, the total work load of special teachers in Craft, Music, Drawing and Physical Education for these standards, shall be excluded. These special teachers shall be held eligible for pay scales on the basis of their qualifications even if the No. of graduate teachers for these standards i.e., V to VII (or any of them) exceeds the ratio prescribed for these Sheha Chavan Page 9 of 22 ::: Uploaded on - 12/09/2025 ::: Downloaded on - 12/09/2025 23:27:32 ::: WP-1180-746-32 (J) C4.doc standards. The work-load of the special teachers in Hindi and Sanskrit shall, however, be taken into consideration for purpose of calculating the No. of graduate and undergraduate teachers for standards V to VII (or any of them). If any graduate or trained graduate teachers above this limit of 25% are employed for teaching classes of standards V to VII (or any of them), the expenditure on their pay and allowance prescribed for under graduate or trained undergraduate teachers as the case may be, shall only be held admissible for salary.
All the teachers for standards VIII to X (or any of them) shall be graduate.
This rule is added vide (G.R. No. GAG-1079/883/39-37 Dt. 30.7.1980).
(Please also see Annexure 63)."
8. It is further submitted that assuming without admitting that the Management is liable to pay the salary, as per Rushibhai Jagdishbhai Pathak v/s. Bhavnagar Municipal Corporation [(2022) 18 SCC 144], the benefits of arrears of promotional pay scale can only be given for 3 years prior to the claim raised in judicial forum i.e. this Court. It is submitted that the Management is on the verge of closing down and only 9 th and 10th standard are presently operating, and thus by next year the school will close permanently and next year will be the last functioning year of the school.
9. It is also submitted that since the school is an aided institute, the Management is allowed to charge only minimum fees and those fees are also deducted from Government grant. It is submitted that though the Management has started English medium school, it does not have necessary funds to pay arrears to Mr. More. Besides, it is also submitted that school building is run Sheha Chavan Page 10 of 22 ::: Uploaded on - 12/09/2025 ::: Downloaded on - 12/09/2025 23:27:32 ::: WP-1180-746-32 (J) C4.doc on the leased premises from Corporation and therefore, does not have funds to pay arrears.
10. Mr. Naidu appearing for Mr. More submitted that for the purpose of reservation, the Assistant Teachers in TG scale and TUG scale comprises one cadre and there are 5 teaching posts in TG scale and 3 teaching posts in TUG scale sanctioned. Therefore, the cadre strength of Asst. teacher in the school is eight. That approval given to Mr. Thorave in preference to Mr. More is on the basis of erroneous computation of reserved posts. That the appointment of Mr. More should be approved in TG scale w.e.f. his appointment in June 2004 and full salary and benefits must be paid by the Government. That assuming that one post of Assistant Teacher was reserved for NT category, even then, appointment of Mr. More is required to be held as regular appointment because Mr. More belongs to OBC category. In 2004, there was clear vacancy in permanent sanction post and pursuant to the advertisement, the only candidate who fulfilled the criteria was the Petitioner and the Petitioner belongs to one of the specified reservation under Rule 9(7) of MEPS Rules. Rule 9(7) reads as under :
"[(7) The Management shall reserve 52 per cent. of the total number of posts of the teaching and non-teaching staff for the persons belonging to the Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Special Backward Category and Other Backward Classes as follows, namely:Sheha Chavan Page 11 of 22 ::: Uploaded on - 12/09/2025 ::: Downloaded on - 12/09/2025 23:27:32 :::
WP-1180-746-32 (J) C4.doc
(a) Scheduled Castes 13 per cent;
(b) Scheduled Tribes 7 per cent;
(c) De-notified Tribes (A) 3 per cent;
(d) Nomadic Tribes (B) 2.5 per cent;
(e) Nomadic Tribes (C) 3 per cent;
(f) Nomadic Tribes (D) 2 per cent;
(g) Special Backward Category 2 per cent;
(h) Other Backward Classes 19 per cent;
52 per cent.]"
11. He also relied upon the Judgment of Shakuntala Shirbhate (supra) and Kankavali Shikshan Sanstha(supra) in support of his case. It is further submitted that considering the present strength of students in the school, if post of one Assistant Teacher is rendered surplus, then the Department must declare either Mr. More or Mr. Thorave as surplus and absorb in other school and pay salary in the meanwhile. Reliance is placed on Dwarkadas Tulshidas Dhokari v/s. State of Maharashtra [2005(1) Bom.C.R.637]. It is also submitted that if the Court comes to the conclusion that the Petitioner Mr. More is not entitled for approval of grant-in-aid as per law, then the entire arrears of salary and allowances must be paid by the Management. It is contended that liability to pay salary is primarily on the employer Management and it can always claim reimbursement from the Government. That at the relevant time, the school needed a teacher to teach subject of Maths and Science in secondary school and therefore, considering the provisions of law, the candidate Sheha Chavan Page 12 of 22 ::: Uploaded on - 12/09/2025 ::: Downloaded on - 12/09/2025 23:27:32 ::: WP-1180-746-32 (J) C4.doc ought to possess B.SC. B.Ed degree for appointment as Asst.
Teacher in TG scale. It is submitted that the Headmaster and 4 teachers appointed in TG scale did not have prescribed qualification to teach the said subject. It is contended that it was incumbent upon the school committee to appoint candidate possessing B.SC with the given subjects and B.Ed. degree. He submitted that indisputably Mr. More possessed prescribed qualification and pursuant to proper selection procedure such as advertisement, interview and selection by school committee, Mr. More has been appointed w.e.f. 12.06.2004 in regular permanent vacancy.
12. It is further submitted that Mr. Thorave possesses B. Sc. Degree with statistic and science and therefore, he cannot seek appointment for teaching subject of mathematics in the school. He submitted that Mr. More was assigned complete workload of teaching subject of Mathematics from standard 5, 7 to 10 and no other teacher was assigned such work. It is submitted that Mr. Thorave was appointed in TUG scale, but the Education Inspector has accorded approval to Mr. Thorave in TG scale. He submitted that approval is a not creative thing, but a confirmatory thing and therefore, it relates back to the original appointment and therefore, the Education Inspector could not have altered the original terms of appointment for Mr. Thorave by switching him from TUG scale to TG scale.
13. Opposing both the Petitions, Ms. Kantharia learned Govt. Pleader for the State submitted that approval to Mr. More's Sheha Chavan Page 13 of 22 ::: Uploaded on - 12/09/2025 ::: Downloaded on - 12/09/2025 23:27:32 ::: WP-1180-746-32 (J) C4.doc appointment is rightly rejected. She submitted that the Management cannot insist in placing Mr. More in TUG scale because Mr. More qualification is TG. She submitted that even if on the date of his appointment there was vacancy in TUG post, Mr. More could not have been appointed because he is TG teacher. She submitted that the Management has continued his services despite the Education Department not granting approval and therefore, it is the Management's duty to pay the salary and its arrears. She submitted that under Rule 66 of the Secondary School Code, all the teachers for standard 8 to 10 or any of them shall be graduate and therefore, Mr. More being TG, cannot be placed in the scale of TUG.
14. She submitted that judgments of Kanakavali Shikshan Sanstha (supra) and Shakuntala Shirbhate (supra) are not applicable to the facts of the present case, in as much as Mr. More's appointment is not approved, because there was already one person belonging to OBC category appointed in the school prior to appointment of Mr. More. She submitted that since the Educational Institute has submitted (assuming without admitting) based on Rushibhai Jagdish Pathak (supra) that arrears can only be given for 3 years prior to claim raised in Court, the argument can be accepted and liability can be fixed on the Management. That the argument of Management that it does not have funds, cannot be accepted because knowing fully well that More's appointment was not approved, his services have been continued till date and therefore, it is only the management who is responsible to pay. That even under the order of this Court, it is Sheha Chavan Page 14 of 22 ::: Uploaded on - 12/09/2025 ::: Downloaded on - 12/09/2025 23:27:32 ::: WP-1180-746-32 (J) C4.doc held that the Management cannot be absolved of its primary liability, and therefore, since the management has not complied with order of this Court to pay arrears, the Management is in fact in contempt of this Court and therefore, no indulgence be shown. That the Education Department cannot be saddled with payment of arrears when the services were not approved. She reiterated that Mr. More being TG candidate cannot be placed in the scale of TUG. She has relied upon the Judgments of Devesh Sharma v/s. Union of India [2023 SCC OnLine SC 985], Devesh Sharma v/s. Union of India [2024 SCC OnLine SC 309(6)] and Navinkumar and ors v/s. Union of India [2024 SCC OnLine SC 2360].
15. Mr.Bandivadekar, learned Senior Advocate appearing for Mr. Thorave submitted that Mr. More is claiming to have been appointed after due selection procedure, however, the same is not true. That Mr. More has not been appointed pursuant to any selection process or pursuant to the advertisement. He submitted that advertisement was dated 11.02.2004 which invited the candidates to approach the school on 13.02.2004, 14.02.2004 and 17.02.2004 which is within a span of less than 1 week from the date of advertisement. However, the application of the Petitioner Mr. More, indicates that Mr. More applied on 15.05.2004, which is after a period of 3 months from the date of advertisement. That resolution of school committee is of 07.06.2004 resolving to appoint Mr. More. That neither the school committee resolution nor the appointment order nor the application of Mr. More make any reference to the advertisement, much less the concerned advertisement of 11.02.2004.
Sheha Chavan Page 15 of 22 ::: Uploaded on - 12/09/2025 ::: Downloaded on - 12/09/2025 23:27:32 :::WP-1180-746-32 (J) C4.doc
16. It is further submitted that as per RTI information received, not a single teacher remained present for interview pursuant to the advertisement; therefore it cannot be said that Mr. More is appointed pursuant to the advertisement and by following procedure. That as per order on 16.03.2011, remand is for consideration on its own merits. That the undertaking given by Mr. Thorave to the Management is being made capital of, however, in para 1 of order dated 16.03.2011, the Division Bench of this Court has already observed that since, both Mr. More and Mr. Thorave have submitted similar undertaking and it cannot be taken as a basis to examine rival claims.
17. It is then submitted that, as per the seniority list and his application, Mr. More has applied as candidate belonging to open category. Mr. More has subsequently requested the school to record his caste as OBC. That therefore, very basis of the argument that the Petitioner belongs to OBC category and therefore can be considered under principle of interchangeability, cannot be accepted.
18. It is further submitted that, in 2004, quota of OBC category was only one post, which was already filled and therefore, there was no backlog in OBC category. That according to the information of Mr. Thorave, no TUG vacant post was available in the school and the Petitioner is not having that qualification because he is a TG teacher.
Sheha Chavan Page 16 of 22 ::: Uploaded on - 12/09/2025 ::: Downloaded on - 12/09/2025 23:27:32 :::WP-1180-746-32 (J) C4.doc REASONS AND CONCLUSIONS
19. At the outset, it is necessary to note that both Petitioner Mr. More and Petitioner Management have proceeded on the basis that Mr More was appointed after following due procedure and he was eligible and qualified to hold the post of assistant teacher. The advertisement produced on record shows that the advertisement did not mention whether the post is reserved for a particular category and whether it is against a permanent vacancy. The advertisement called upon the willing candidates to report on 13th, 14th and 17th February 2004. Neither Petitioner Mr. More nor the management produced the application made by Mr. More on record. The School Committee resolution dated 07.06.2004 and appointment order dated 14.06.2004 produced on record, indicates that the petitioner Mr. More applied on 15.05.2004, which was almost 3 months after the advertisement. The appointment order does not indicate as to under which category, the appointment is made.
20. Respondent Mr. Thorave seems to have applied under Right to Information (RTI) and obtained certain documents which are produced on record vide his affidavit-in-reply dated 02.09.2011. Job-application of Mr. More dated 15.05.2004 shows that Mr. More had written his caste as 'Hindu' and had not claimed to be belonging to OBC. The seniority list of the concerned school shows that Petitioner Mr. More was appointed from 14.06.2004 as assistant teacher showing caste as 'Hindu Maratha' which is not a backward class. Application of Mr. More Sheha Chavan Page 17 of 22 ::: Uploaded on - 12/09/2025 ::: Downloaded on - 12/09/2025 23:27:32 ::: WP-1180-746-32 (J) C4.doc dated 25.07.2007 is also produced on record, which shows that in July 2007, Mr. More applied to the school for recording his caste as OBC in the school records. In these circumstances, by no stretch of imagination, it can be said that from the date of his appointment on 14.06.2004, Mr. More was appointed as OBC candidate. Therefore application of Rule 9(9)(a) of the 1981 Rules about interchangeability cannot apply to the Petitioner because on his date of appointment, he did not belong to any reserved category.
21. It must be noted that initially only typed copy of alleged caste certificate dated 13.02.89 issued by Sp. Exec. Officer (Poisar-East, Kandivali, Mumbai) was produced at Ex.B. But then caste validity certificate dated 15.04.2010 was produced on record with affidavit-in-rejoinder, it showed caste certificate dated 26.11.2009 issued by S.D.O. Buldana for caste "Kunbi (OBC)". So, there is complete variance/inconsistency. However, Mr. More seems to have adopted a short-cut by applying to school to change school records, with which the Management seems to be complicit, by claiming that he be treated as 'OBC candidate' since date of appointment in 2004. If Mr. More started claiming to be OBC from July 2007, it was necessary for the Management / School to consider his application as fresh application by following due process of law and also by giving opportunity to other willing candidates by issuing fresh advertisement. Because only then, the claim of petitioner as an OBC candidate could have been considered against other candidates in accordance with law.
Sheha Chavan Page 18 of 22 ::: Uploaded on - 12/09/2025 ::: Downloaded on - 12/09/2025 23:27:32 :::WP-1180-746-32 (J) C4.doc
22. In that view of the matter, the entire argument of Mr. More and the Management, that Rule 9(9)(a) of 1981 Rules applies because there was absence of candidate belonging to a particular reserved category (NT in this case) and therefore the post can be filled from another reserved category person (OBC) on regular basis, falls flat. So far as the argument about application of Rule 66 of Secondary School Code for appointment of TG teacher on TUG Post is concerned, we do not find that it would be of any assistance to the present Petitioners before us.
23. Perusal of other impugned order dated 27.04.2011 shows that at the relevant time, there were 8 approved posts, in which the only backlog available was for ST category. Assuming that the Petitioner could be considered as an OBC candidate, it is admitted position that on the relevant date, one Mr. Pandhare was already appointed for OBC category and therefore there was no backlog to accommodate Mr. More in OBC category. At the relevant time, NT-post has been filled by appointment of Mr Thorave, which is already approved. The position regarding backlog of reservation is stated in the impugned order itself which shows that out of 8 posts of the teachers sanctioned in the school, one post was reserved for OBC category which was already filled in and thus, there was no backlog in OBC category. Similarly, 4 posts were available for open category and all 4 posts were already filled in through the open category. Therefore there was no backlog where Mr. More can be legally accommodated. Therefore, no fault can be found in impugned order dated 27.04.2011.
Sheha Chavan Page 19 of 22 ::: Uploaded on - 12/09/2025 ::: Downloaded on - 12/09/2025 23:27:32 :::WP-1180-746-32 (J) C4.doc
24. According to Mr Naidu, since the sanctioned posts are only 8, only 34% reservation as per Rule 97 would translate in to only 3 posts that can be reserved. Therefore education inspector has incorrectly computed reservation on the basis of GR dated 18.10.1997 providing for 52% reservation.
25. So far as this argument is concerned, since we find that Mr. More applied as open category and started claiming OBC category later on and he has tried to change the school record by simple application in July 2007, thereby giving complete go-by to requirement of filling up appropriate backlogs from particular reservation, we do not find it necessary to exercise our extra- ordinary jurisdiction to consider the said argument. Writ Petition No. 1180 of 2011 & Writ Petition No. 746 of 2012 are accordingly dismissed.
26. Perusal of other impugned order dated 28.06.2012 shows that the Education Inspector has calculated the arrears of salary in accordance with the pay-scale 5500-9000, made applicable to the Petitioner Mr. More by the management. Applying appropriate increments and allowances and further appropriate pay commissions, that is, 5th pay commission up to August 2009 and 6th pay commission up to March 2012, the quantification of amount is arrived at. This exercise is also done again on 17.08.2021 pursuant of order of this Court dated 07.07.2021. Arrears as on 03.06.2021 to be paid to Mr More by the Management is Rs. 68,38,110/-.
Sheha Chavan Page 20 of 22 ::: Uploaded on - 12/09/2025 ::: Downloaded on - 12/09/2025 23:27:32 :::WP-1180-746-32 (J) C4.doc
27. It is settled law that if an employee is selected by following the due procedure of law on a vacant permanent post which has salary grant from the Government, then salary of such an employee has to be paid by the Government through such grants. The management has chosen to continue the services of Petitioner Mr More, de-hors such position. Therefore, considering the law laid down by the Full Bench of this Court in, Saint Ulai High School Vs. Devendraprasad Jagannath Singh [2007 (1) Mh.L.J. 597], the Management is responsible for payment of arrears of salary in accordance with law. This Court has already directed the management to pay the salary arrears. In fact, conditional order passed by this Court is already vacated because Management did not abide by the order of this court dated 13.01.2015 & 07.07.2021 where indulgence was granted, but amount has not been paid.
28. Since the contention of the management is being turned down on merits, we find no reason to interfere with the impugned order dated 28.06.2012, which merely calculates the arrears. However, we accept the argument of Management to the extent of applying the ratio of Rushibhai Jagdishbhai Pathak (supra) and hold that the Management is liable to pay arrears since 3 years prior to the filing of the first Writ Petition No. 623 of 2010 (filed on 11.03.2010), with nominal interest @ 5% p.a. till the said amount is paid to Mr More. Such arrears be paid within 60 days from today. To this extent the impugned order dated 28.06.2012 is restricted.
Sheha Chavan Page 21 of 22 ::: Uploaded on - 12/09/2025 ::: Downloaded on - 12/09/2025 23:27:32 :::WP-1180-746-32 (J) C4.doc
29. All the Writ Petitions are disposed off in the above terms. If the amount is not calculated to the satisfaction of Mr. More, he is free to adopt an appropriate proceeding in accordance with law for recovery of arrears of salary from Management. Needless to state that if in future, any right for regularisation accrues to Mr. More due to changed circumstances, he would be at liberty to pray for such benefits.
30. Rule is discharged.
(M. M. SATHAYE J) (RAVINDRA V. GHUGE J.) Sheha Chavan Page 22 of 22 ::: Uploaded on - 12/09/2025 ::: Downloaded on - 12/09/2025 23:27:32 :::