Sacked in 2001, reinstated: Nagpur bench finds ST backlog hire without advertisement irregular, not void
Justice Pravin S. Patil dismissed petitions by both a Bhandara school management and its teacher against a 2012 School Tribunal order, holding that Pandurang Parate, appointed in 1996 on a clear vacancy to fill a Scheduled Tribe backlog at the insistence of the Education Officer, could not be removed under a non-statutory 1995 circular, while the denial of backwages stood for want of an affidavit on gainful employment.
A Bhandara girls school teacher, sacked in May 2001 on the strength of a Director of Education circular, must be taken back within 30 days. The Nagpur Bench of the Bombay High Court held on 30 October 2026 that his 1996 appointment against a Scheduled Tribe backlog was at most irregular and the circular had no statutory force.
Justice Pravin S. Patil dismissed the writ petition of the management, Sharda Mahila Mandal, Murmadi (Tupkar), and the cross-petition of the teacher, Pandurang Chintaman Parate, who wanted backwages. Both challenged a School Tribunal judgment of 6 December 2012 that had ordered reinstatement with continuity of service but without pay for the intervening years.
Five months that became a probation
Parate, a BA BEd, applied on 7 December 1996 for a vacant post of assistant teacher at Rashtra Mata Indira Gandhi Kanya Vidyalaya, Murmadi (Tupkar), enclosing a caste certificate of 31 August 1988 recording him as Halba, a Scheduled Tribe. The management appointed him for five months from 9 December 1996.
The Head Master sent his proposal to the Education Officer (Secondary), Zilla Parishad, Bhandara, who approved the appointment on 11 April 1997, and for a full year, from 21 January 1997 to 20 January 1998. Finding him good at teaching, the management resolved on 10 January 1998 to re-appoint him on two years probation.
The fresh proposal of 10 February 1998 listed the posts already filled in the school: one Scheduled Caste, one Scheduled Tribe, namely Parate, six Other Backward Classes and one open. He was the only Scheduled Tribe appointee.
The Bhoyar appeal and an undertaking
The Education Officer wrote on 19 May 1998 that approval could not be granted because an appeal by one P.J. Bhoyar was pending before the School Tribunal. The management replied twice, on 15 and 27 June 1998, that Parate held a post reserved for Scheduled Tribes, filled on the officer's own directions to clear the backlog.
Bhoyar, it said, was an OBC untrained graduate teacher who had held a different post. The Head Master nonetheless stopped Parate from attending school.
Treating that as a termination, Parate appealed to the School Tribunal, Chandrapur, where the management denied sacking him and blamed the Head Master. The tribunal allowed the appeal in 1999, recorded that the termination of 23 June 1998 had been withdrawn, and ordered salary for the gap.
The Education Officer then held a hearing on 31 December 1999 and said approval could follow if the management and the teacher gave undertakings under a Government Resolution of 22 December 1995. That circular lets a management appoint a substitute in a post vacated by a termination under appeal, subject to the outcome of the appeal.
The management gave its undertaking on 15 July 1999. Parate says his own undertaking, given because the officer insisted on it, promised only that he would be relieved if Bhoyar won and no post was available; it never said he had been appointed in Bhoyar's place.
The Head Master meanwhile wrote on 24 July 1999 that the officer's stand was confusing: he was rejecting appointments for failure to fill the backlog, and rejecting a backlog appointment too. On 31 December 1999 the officer approved Parate's services from 18 September 1999 until further orders. The approval order did not say it was subject to Bhoyar's appeal.
Termination and two trips to the High Court
On 27 February 2001 the School Tribunal allowed Bhoyar's appeal and ordered his reinstatement as assistant teacher with continuity and backwages. On 2 May 2001 the management asked Parate to produce a caste validity certificate within seven days.
He replied that he had already given the Taluka Magistrate's certificate, that his caste was recorded in his service book, and asked what the doubt was.
A second letter of 11 May 2001 accused him of avoiding the demand; he again asked for the reason. On 17 May 2001 the management terminated him, stating that his appointment had been made under the circular of 22 December 1995.
Parate first came to the High Court in Writ Petition 1857 of 2001, withdrawn to pursue the statutory appeal. Before the School Tribunal the management objected that the appointment itself had bypassed Section 5 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, the MEPS Act, and Rule 9 of the 1981 Rules.
The tribunal rejected the objection. The management's challenge to that, Writ Petition 3997 of 2010, was disposed of on 29 March 2011 with the observation that the tribunal could decide everything together and the management could return if the final result went against it. The tribunal then decided the appeal on merits on 6 December 2012.
Dr R.S. Sundaram appeared for the management in both petitions. Mr N.A. Lapalikar appeared for Parate, and Ms D.V. Sapkal, Assistant Government Pleader, for the Education Officer.
Section 5, Rule 9 and a validity certificate
The management argued that the preliminary issue had been left open by the High Court and the tribunal had never decided it. Without advertisement and selection under Section 5 and Rule 9, the appointment was not made by due procedure and the appeal was not tenable. Parate had also failed to produce a caste validity certificate for a reserved post.
The appointment, it said, had been made at the Education Officer's direction under the 1995 circular, and Bhoyar's reinstatement required Parate's removal.
It relied on Vijaya Deorao Nandanwar v. State of Maharashtra, 2010 (2) Mh.L.J. 424, Berhampur University v. Ganesh Chandra Behera, 2021 SCC OnLine Ori 2399, and Mohit Kumar v. State of Uttar Pradesh, 2025 SCC OnLine SC 1125.
Parate answered that the officer had insisted the backlog be filled, that he was the only Scheduled Tribe appointee, and that the officer had approved him for a year when the appointment order ran five months. The probation resolution of 10 January 1998 recorded his work as extraordinary. The post was clear and vacant, not Bhoyar's.
After more than two years of service he was a deemed confirmed employee, and Section 4(6) of the MEPS Act bars termination without due procedure. Neither the resolution nor the appointment order mentioned the 1995 circular.
He cited, among others, Sadique Hussain Sheikh Azim Qureshi v. Divisional Caste Certificate Scrutiny Committee, 2011 (2) Mh.L.J. 87, and Mahatma Phule Krida Prasarak Mandal v. Sumati Tukaram Kashid, 2011 (1) Mh.L.J. 302.
Irregular, not void ab initio
The judge framed the first issue in the management's terms:
whether the appointment of the respondent-employee, was made by following due procedure of law as contemplated under Section 5 read with Rule 9 of the MEPS Rules (para 43)
Section 5, he explained, requires every vacancy to be filled by a duly qualified person, after checking whether a surplus teacher on the Education Officer's list is available for absorption. Rule 9 requires an advertisement so that the public at large can compete.
But the record showed a backlog of reserved posts in the school, an Education Officer insisting it be filled and withholding approval of other appointments until it was, and an immediate one-year approval of a five-month appointment. The management then put Parate on two years probation on a permanent, vacant post reserved for Scheduled Tribes.
From 1996 to 2001 the management had consistently said the appointment was against the Scheduled Tribe category on a clear vacancy. In those peculiar facts, the judge held, the appointment could not be called illegal merely because no advertisement or screening test preceded it in 1996. The officer's approval also meant no surplus Scheduled Tribe teacher was available.
Section 5 and Rule 9 must ordinarily be followed, he said, but the facts matter. The appointment was “irregular but not void-ab-initio” (para 47).
An appointment is void only where the person is unqualified, the post is not clear and vacant, the officer's permission was not obtained, or an available surplus teacher was passed over; an irregular one can be regularised by the management.
A circular without statutory force
The termination order rested on the circular of 22 December 1995. Section 4(6) of the MEPS Act says no employee's services can be terminated without following due procedure, and an order that skipped it was liable to be quashed.
The circular itself, the judge held, “is not having a statutory force” (para 50). It was an administrative clarification for managements facing a vacancy created by a termination under challenge. And nobody had ever said Parate was appointed in Bhoyar's place; the management had told the officer repeatedly that Bhoyar held a different post.
The Assistant Government Pleader's argument that approval had been given subject to Bhoyar's appeal, on the strength of the undertakings, fared no better. Parate's undertaking nowhere stated that he held Bhoyar's post, and the state could not show that he did. The approval order of 31 December 1999 said nothing about the appeal.
The judge applied Mahatma Phule Krida Prasarak Mandal, where a coordinate bench held that a declaration extracted from an employee about accepting a reserved post on a temporary basis does not change the character of an appointment made on a clear and permanent vacancy.
Reasons cannot be added by affidavit
The caste validity argument failed on a threshold point. The termination order gave no such reason. Relying on the Supreme Court decision reported at 1978 (1) SCC 405, the judge held that an employer's action must be judged on the reasons stated in the order, and reasons supplied later by affidavit cannot be accepted on judicial review.
Parate had in any case furnished an Executive Magistrate's certificate recording him as Halba. The management was free to send it to the Caste Scrutiny Committee, where the burden of proving the claim would be his. Its apprehension that he would fail there was, the judge said, uncalled for when it had never made the reference.
The Division Bench in Sadique Hussain Sheikh Azim Qureshi had held that Section 6(3) places on the appointing authority a power coupled with a duty to apply to the Scrutiny Committee, and that it cannot skip that step and instead issue a show-cause notice asserting that the employee is not a Scheduled Caste.
The management's authorities on employees who fail to produce validity certificates did not help it here.
No backwages without an affidavit
On Parate's own petition, the judge found that the dispute over his appointment had been kept alive by the controversy the Education Officer and the 1995 circular created, and the tribunal had weighed that correctly. More decisively, there was no document or affidavit on record saying he was not gainfully employed while the appeal was pending. Backwages were rightly refused.
Order
Writ Petition 1438 of 2013 and Writ Petition 6609 of 2013 were both dismissed. The management must reinstate Parate as assistant teacher with continuity of service but without backwages within 30 days, and forward a proposal for approval to the Education Officer within 30 days of reinstatement.
The Education Officer must decide that proposal in accordance with law within 45 days of receiving it. Rule was discharged with no order as to costs.
After pronouncement, the management asked that the interim relief operating through the petition continue for four weeks; Parate's counsel strongly opposed. The court continued the stay for four weeks from 30 October 2026, after which it stands vacated automatically. The judgment was reserved on 13 October 2026.