Prior Permission From Education Officer Before Issuing Recruitment Advertisement Is Mandatory, Not An Empty Formality: Bombay High Court

"In making any appointment, the mandate of Section 5 was required to be followed by petitioner No. 2 and prior NOC/approval was required to be obtained from the designated authority, as contemplated under Section 5. The same was not obtained." Bombay High Court has held that obtaining prior permission from the Education Officer before issuing an advertisement for teacher recruitment under Section 5(1) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (MEPS Act) is a mandatory statutory requirement that cannot be dispensed with as an empty formality.

A division bench comprising Justice G.S. Kulkarni and Dr. Neela Gokhale observed that appointments made in violation of the statutory safeguards prescribed under Section 5 of the MEPS Act and Rule 9 of the MEPS Rules, 1981 cannot be approved by education authorities, particularly when approval entails burdening the public exchequer with grant-in-aid.

The petitioners, a teacher and the school management, approached the High Court under Article 226 of the Constitution challenging orders dated August 23, 2023, and August 22, 2024, passed by the Deputy Director of Education, which rejected approval for the teacher's appointment as Shikshan Sevak. The teacher was purportedly appointed in June 2017 following an advertisement in an obscure local newspaper, but the management submitted the approval proposal for the first time in July 2022 after an unexplained delay of five years.

The legal issue before the High Court was whether the school management could validly appoint a Shikshan Sevak without securing prior permission and ascertaining the availability of surplus teachers under Section 5(1) of the MEPS Act and without complying with the mandatory advertisement requirements under Rule 9(2-A) of the MEPS Rules. The Court also considered whether a grossly delayed approval proposal submitted after a lapse of five years could be legally entertained.

Prior Permission Under Section 5(1) MEPS Act Is Mandatory

The High Court underlined that the proviso to Section 5(1) of the MEPS Act obligates the management to ascertain from designated education authorities whether any suitable candidate or surplus teacher is available before initiating recruitment. The bench reiterated that this requirement is vital to the statutory framework and cannot be bypassed by school managements to make unilateral appointments.

Relying on the precedent in Siddheshwar Shikshan Sanstha & Anr. v. The State of Maharashtra, the bench affirmed that prior permission before issuing an advertisement for recruitment to any post, whether open or reserved, is mandatory and not directory. The Court emphasized that appointments made without prior permission remain fundamentally illegal, and education officers have no legal competence to overlook such statutory infractions.

Wide Advertisement Under Rule 9(2-A) Ensures Constitutional Equality

The bench scrutinized the recruitment procedure adopted by the management and noted that publishing an advertisement in a little-known publication fails to fulfill Rule 9(2-A) of the MEPS Rules, 1981. The Court pointed out that statutory publication norms exist to protect equal opportunity in public employment guaranteed under Article 16 of the Constitution of India.

Referring to Pooja Yogesh Singh & Anr. v. The State of Maharashtra and Prakash Daulat Patil v. The State of Maharashtra, the Court noted that restricting advertisements to publications lacking wide circulation reduces the selection process to an eye-wash. When an advertisement is legally defective, the defect permeates to the root of the selection process, rendering the consequent appointment void.

Unexplained Five-Year Delay In Seeking Approval Invalidates Claim

The bench expressed astonishment at the five-year hiatus between the teacher's alleged appointment in June 2017 and the submission of the proposal in July 2022. The judges remarked that it defies reason how a person appointed to a teaching post could work without salary for five years without demanding prompt steps for approval.

The Court noted that Government Resolution dated June 10, 2022, explicitly barred entertaining proposals submitted after prescribed cutoff windows. Citing Prakash Daulat Patil, the Court held that gross delays in submitting proposals disentitle institutions from claiming discretionary equitable relief under writ jurisdiction.

Recruitment Defied Government Ban And Reservation Norms

The High Court accepted the objections raised by the State that the recruitment was carried out in breach of the recruitment ban imposed by the Government Resolution dated May 2, 2012, which only permitted exemptions for English, Mathematics, and Science subjects, rather than Geography. Furthermore, the updated roster status had not been verified with the Backward Class Cell prior to the appointment.

Citing Bajrang Shankarrao Parsure v. The State of Maharashtra, the Court ruled that directing approval for an appointment executed in defiance of statutory procedure would illegally burden the public exchequer with grant-in-aid payments. The Court emphasized that judicial orders cannot be issued to condone flagrant legal violations or validate backdoor appointments.

"If the petitioner’s case is to be accepted, it would amount to the Court condoning the requirement of law as set out hereinabove. Accordingly, we find no merit in the petition."

The High Court dismissed the writ petition, holding that the Deputy Director of Education had strictly adhered to statutory mandates in rejecting the belated and irregular approval proposal. The decision establishes that strict compliance with Section 5 of the MEPS Act and Rule 9 of the MEPS Rules is a non-negotiable prerequisite for securing State approval and grant-in-aid for aided teaching posts.

Date of Decision: 21 October 2026