JUDGEMENT - R.K. BATTA, J.:---The petitioners who are working as Peons in Shri Durga English School, respondent No. 2, seek directions to the respondents to pay arrears of salaries from 2-12-1991 and to continue to pay salary regularly hereafter. 2. The petitioners case, in brief, is that petitioner No. 1 was appointed as Peon at the respondent No. 2 School vide Appointment Order dated 6-6-1989 and his appointment was approved by respondent No. 1 by order dated 14-12-1990. The said approval was upto the academic year 1990-91. The petitioner No. 1 was paid salary till the end of academic session 1991. In pursuance of directions given by respondent No. 1, posts of 2 Peons - one of which was held by petitioner No. 1, were advertised for fresh recruitment. The petitioners were selected and were appointed in respondents No. 1 School with effect from 2-12-1991. The petitioners claim that in terms of Rule 76(4) of the Goa, Daman and Diu School Education Rules, 1986 (hereinafter called the said Rules) their appointments are deemed to have been approved. The petitioners were denied their salaries till the present petition was filed by them. The petitioners also claim that they have already completed 2 years prescribed period of probation and are deemed to have been confirmed According to them, the withholding of the salary, under the circumstances, is violative of Articles 14, 21, 23 and 300-A, of the Constitution of India. 3. The respondent No. 1, through Deputy Director of Education, filed affidavit-in-reply giving a chart of entitlement of Group D posts of respondent No. 2. The position of Group D posts as per the said chart is as under : Sr. No. Academic Year Divisions entitlement of permissible Group D posts 1. 1989-90 15 4 2. 1990-91 15 4 3. 1991-92 16 4 4. 1992-93 11 3 5. 1993-94 8 3 6. 1994-95 6 2 7. The position of Group D posts as per the said chart is as under : Sr. No. Academic Year Divisions entitlement of permissible Group D posts 1. 1989-90 15 4 2. 1990-91 15 4 3. 1991-92 16 4 4. 1992-93 11 3 5. 1993-94 8 3 6. 1994-95 6 2 7. 1995-96 6 2 The case of respondent No. 1 is that only 2 Group D posts had been sanctioned vide letter dated 9th August, 1990 till the academic session 1990-91; that the appointment of petitioner No. 1 had been regularized till the academic year 1991 with clear instructions to follow the procedure do novo; that in terms of Rule 80(7) of the said Rules, mere eligibility does not entitle the Management to make appointments without prior approval of Director of Education; that with reference to the appointments of the petitioners made on 30-11-1991 with effect from 2-12-1991, respondent No. 1 had asked the Management vide letter dated 26th December, 1991 to produce N.O.C. for the approval of the said appointments; the reply sent by the School on 8th January, 1992 was not accepted and the School was accordingly informed vide letter dated 27-1-1992. Respondent No. 1 also pointed out that even though the said appointment orders were issued on 30-11-1991, the minutes approving their appointments had been signed only on 12-12-1991 by the Headmaster of respondent No. 2 and, as such, the appointments are irregular and have not been made in accordance with the procedure. It is further contended by respondent No. 1 that in view of the chart showing entitlement of Group D posts, respondent No. 2 could retain only one of the two petitioners for the year 1992-93 and 1993-94, since their appointments with effect from 2-12-1991 were on probation till 2-12-1993. The result was that one of them was surplus and had no place in the school from June, 1992 and, he was also not qualified for absorption as he had not completed probation period by that point of time and, as such, his services ought to have been terminated in June, 1992. The other petitioner could continue in the school upto May, 1994, that is to say, academic session 1993-94. The other petitioner could continue in the school upto May, 1994, that is to say, academic session 1993-94. According to respondent No. 1, since both the petitioners were retained by respondent No. 2 without any post for them and as no approval had been granted by the Department, respondent No. 1, was not liable to make any payment of salary grant in respect of the petitioners. 4. Respondent No. 2 in affidavit-in-reply submitted that Rule 80(7) of the said Rules was not applicable, since once vacancy is created, no further N.O.C. to fill the said post is required under the Education Act or the Rules framed thereunder. It was pointed out that vide letter dated 9-8-1990, respondent No. 1 had sanctioned two additional posts from the academic year 1989-90 and once the said posts are sanctioned, there is no need to take further N.O.C. if the said posts had fallen vacant. The date given in the chart relating to availability of Group D vacancies in para 4 of affidavit-in-reply filed by respondent No. 1 has not been challenged either by the petitioners or by respondent No. 2. Respondent No. 2 has further pointed out in the said return that the minutes of Departmental Selection Committee had been submitted to respondent No. 1 on 6-12-1991 itself and since the respondent No. 1 did not convey within 3 weeks its disapproval as required under Rule 76(4), the appointments of the petitioners are deemed to have been approved. Respondent No. 2 has further stated in the return that the surplus staff is covered by Rule 34 of the said Rules and till the surplus staff is absorbed, respondent No. 1 is liable to pay matching grant against their salaries. 5. Advocate Shri Mahesh Sonak, after placing reliance on a judgment of Division Bench of this Court in Writ Petitions Nos. 588 of 1993 and 22 of 1994, (Shri Vithoba U. Bagali and others v. The Director of Education and another)1, and (Shri Radhakrishna S. Shetye v. The Director of Education and others)2, dated 27th February, 1996, has urged that the appointment of petitioner No. 1 with effect from 6-6-1989 itself was valid and regular. 588 of 1993 and 22 of 1994, (Shri Vithoba U. Bagali and others v. The Director of Education and another)1, and (Shri Radhakrishna S. Shetye v. The Director of Education and others)2, dated 27th February, 1996, has urged that the appointment of petitioner No. 1 with effect from 6-6-1989 itself was valid and regular. He has drawn out attention to the said judgment and has pointed out that the facts in the said writ petitions were exactly similar and under the same circumstances, the Division Bench of this Court in its judgment dated 27th February, 1996 in the said writ petitions came to the conclusion that the appointment of the petitioners during the year 1989-90 itself was regular and it was unnecessary for the Department to restrict the approval till April, 1990. 6. The next point urged by Advocate Shri Sonak is that, in the alternative, insofar as the petitioners are concerned, their appointments are deemed to have been approved since the Director of Education did not convey its disapproval within 3 weeks as required under Rule 76(4) of the said Rules. In this connection, our attention has been drawn to a Division Bench judgment of this Court in (Cultural Association of Nagoa and another v. State of Goa and others)3, 1995(2) G.L.T. 118, wherein it has been held that Rule 76(4) creates a fiction of deemed approval when there is no reply by the Director of Education within the statutory period of 3 weeks and after such period of 3 weeks, the appointment is deemed to have been approved by the Director and, therefore, it cannot be called in question at a later stage. It has also been urged by Advocate Shri Sonak that even if the first appointment of the petitioner dated 6-6-1989 is not treated as regular, even then the petitioner No. 1 would be entitled to be absorbed in terms of Rule 34 of the said Rules. In this connection, our attention was drawn to Circular dated 16-4-1993 which, inter alia, provides that following categories of employees rendered surplus shall qualify for deployment by absorption : (i) Employees completing probation period; (ii) Trained teachers appointed on probation against permanent vacancies. In this connection, our attention was drawn to Circular dated 16-4-1993 which, inter alia, provides that following categories of employees rendered surplus shall qualify for deployment by absorption : (i) Employees completing probation period; (ii) Trained teachers appointed on probation against permanent vacancies. It was also pointed out by Advocate Shri Sonak that petitioner No. 2 would also be entitled for absorption in terms of Rule 34 which speaks of absorption of employees without laying down any condition like completion of probation etc. 7. On behalf of respondent No. 1, Government Advocate Shri Bharne took us through Rule 74, Rule 76, Rule 80(7) and Rule 83 of the said Rules. He also tried to take shelter under technical objections by contending that even though the minutes of Departmental Selection Committee had been signed by Headmaster of respondent No. 2 on 12-12-1991, yet the appointment orders were issued on 30-11-1991 to be effective from 2-12-1991. It is also pointed out that letter of intimation of appointments in terms of Rule 76(3) was, in fact, dated 6-12-1991. 8. On merits, it has been urged by Government Advocate Shri Bharne that the respondent No. 1 had specifically granted approval in respect of 2 posts of Peon Group D only till the academic year 1990-91 vide letter dated 9-8-1990 and even the approval in respect of appointment of petitioner No. 1 had been given till the academic year 1990-91 as can be seen from letter dated 14-12-1990 which also provided that after the academic year 1990-91, the recruitment should be de novo. It is also urged by Advocate Shri Bharne that respondent No. 1 had specifically asked respondent No. 2 to furnish copy of N.O.C. for approval of appointment of Peons, but the copy which was furnished by respondent No. 2 was in respect of approval till the academic session 1991 which was not accepted and, as such, there is no question of any deemed approval under Rule 76(4) of the said Rules. 9. On the basis of the above mentioned arguments, it has been contended by Government Advocate Shri Bharne that the School could retain only one of the two petitioners for the year 1992-93 and 1993-94 and only one of them could continue in the School upto May, 1994. 9. On the basis of the above mentioned arguments, it has been contended by Government Advocate Shri Bharne that the School could retain only one of the two petitioners for the year 1992-93 and 1993-94 and only one of them could continue in the School upto May, 1994. It was also contended that one of the petitioners had no place in the School from June, 1992 and he was not qualified for absorption as he had not completed probation period by that time and his services ought to have been terminated in June, 1992. According to Shri Bharne, respondent No. 1 is, therefore, not liable to pay any grants after May, 1992 in respect of one post and after May 1994 in respect of the second post. 10. Advocate Shri V.P. Thali, on behalf of respondent No. 2, submitted that respondent No. 1 had approved 2 Group D posts vide Order dated 9-8-1990 and the said approval could not be restricted till the year 1990-91 under any provision of the Act or Rules framed thereunder. He has further contended that likewise the approval granted to petitioner No. 1 till the academic year 1991 and further direction vide letter dated 14-12-1990 for de novo recruitment is not in accordance with law. Therefore, according to Advocate Shri Thali, there was no question of seeking any fresh approval in respect of appointments to the said two posts of Peons Group D. It was further pointed out by him that letter dated 6-12-1991 was handed over to respondent No. 1 on 6-12-1991 itself as can be seen from the endorsement from the Education Department on the said letter and the fact that it was entered in the Office of the Director only on 20-12-1991 does not make any difference. At any rate, according to him, there is deemed approval in terms of Rule 76(4) of the said Rules. 11. Shri Thali also urged that writ does not lie against respondent No. 2 and he also pointed out that Circular upon which reliance has been placed by Advocate for petitioners had been issued only on 16-4-1993. In this connection, it has been pointed out that, statutory, Rule 34 which deals with absorption does not lay down any restrictions for absorption of employees and by issuing Circular, respondent No. 1 was not competent to restrict the absorption only to non-teaching employees who had completed probation period. In this connection, it has been pointed out that, statutory, Rule 34 which deals with absorption does not lay down any restrictions for absorption of employees and by issuing Circular, respondent No. 1 was not competent to restrict the absorption only to non-teaching employees who had completed probation period. He, therefore, contends that the respondent No. 1 is bound to absorb both the petitioners and is liable to pay the grant to the respondent No. 2 till the petitioners are finally absorbed. 12. There is absolutely no force in the objection raised by Advocate Shri Thali that a writ does not lie against respondent No. 2. The Apex Court in (Unni Krishnan, J.P. and others v. State of Andhra Pradesh and others)4, A.I.R. 1993 S.C. 2178, has laid down : "The term "authority" used in Article 226, the context must receive a liberal meaning unlike the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Article 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words "any person or authority" used in Article 226, are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed, if a positive obligation exists mandamus cannot be denied. The emphasis in this case is as to the nature of duty imposed on the body. It requires to be observed that the meaning of authority under Article 226 came to be laid down distinguishing the same term from Article 12. In spite of it, if the emphasis is on the nature of duty on the same principle it has to be held that these educational institutions discharge public duties. Irrespective of the educational institutions receiving aid it should be held that it is a public duty. In spite of it, if the emphasis is on the nature of duty on the same principle it has to be held that these educational institutions discharge public duties. Irrespective of the educational institutions receiving aid it should be held that it is a public duty. The absence of aid does not detract from the nature of duty." In view of the said decision of the Apex Court, the objection raised by Advocate Shri Thali is hereby rejected. 13. We shall first deal with the case of petitioner No. 1 which is on slightly different footing as compared to the case of the petitioner No. 2. Petitioner No. 1 was initially appointed on 6-6-1989 and his appointment was approved vide letter dated 14-12-1990 of respondent No. 1. The challenge of Advocate Shri Sonak on behalf of petitioner No. 1 in this respect is that respondent No. 1 had illegally compelled respondent No. 2 to hold de novo appointments which were not permissible in terms of the Act and the Rules. In this connection he has drawn our attention to the decision of Division Bench of this Court in (Vithoba Bagali and others v. Dir. of Education and another)4, Writ Petition No. 588 of 1993, wherein the facts were similar to the one relating to petitioner No. 1 before us. Therein also the petitioners were appointed on 6-6-1989 and their appointments were approved by respondent No. 1 vide Order dated 14-12-1990 till the academic session 1990-91. Therein also respondent No. 1 had given directions to respondent No. 2 to go ahead with the appointments de novo and after advertising the posts, the petitioners were appointed on 22-6-1991. Dealing with the same set of facts, the Division Bench of this Court came to the conclusion that the appointments of the petitioners made during the year 1989-90 itself were regular and it was unnecessary for the Department to restrict the approval till April 1990. It was also held in the said judgment that the petitioners were entitled to protection under Rule 34 of the said Rules in case anyone of them was found surplus. Thus, on this count alone, petitioner No. 1 is entitled to succeed in the petitioner. 14. It was also held in the said judgment that the petitioners were entitled to protection under Rule 34 of the said Rules in case anyone of them was found surplus. Thus, on this count alone, petitioner No. 1 is entitled to succeed in the petitioner. 14. In addition to that, even if the previous appointment is ignored for the moment, even then petitioner No. 1 would be entitled to be absorbed in terms of Rule 34 of the said Rules. After respondent No. 1 had directed de novo recruitment, the petitioners were selected by duly constituted Departmental Selection Committee on 3-6-1991. Of course, the minutes of the said D.P.C. have been signed by the representative of respondent No. 1 on 4-12-1991 and by the Headmaster of respondent No. 2 on 12-12-1991. There is no doubt that the Appointment Orders of the petitioners were issued on 30-11-1991 and even letter of intimation of appointment under Rule 76(3) of the said Rules had been forwarded on 6-12-1991. In our opinion, such technicalities which are raised by respondent No. 1 cannot frustrate the claim of the petitioner No. 1, especially because the Selection Committee had selected the candidates in its meeting dated 3-6-1991 and it is only that the minutes of the said meeting were signed later. Therefore, we do not find any force in the technical objections raised by Government Advocate Shri Bharne. 15. Government Advocate Shri Bharne also tried to raise another technical objection that in terms of Rule 76(3) of the said Rules, the Management is supposed to communicate the appointments within 7 days of the making of the said appointments, but the communication was received by the Department only on 20-12-1991. The appointments under consideration were made on 30-11-1991 and were to be effective from 2-12-1991. Respondent No. 2 had intimated the fact of the said appointments vide letter dated 6-12-1991 which was, in fact, received by the Department on 6-12-1991 itself as can be seen from Exhibit R2/E coolly at page 105 of the records. We, therefore, do not find any force in the contention of Advocate Shri Bharne that the said letter was received only on 20-12-1991. Respondent No. 1 sought N.O.C. for approval of appointments dated 30-11-1991 vide letter dated 26-12-1991 and respondent No. 2 replied that the approval to the said posts had already been granted vide letter dated 9-8-1990. We, therefore, do not find any force in the contention of Advocate Shri Bharne that the said letter was received only on 20-12-1991. Respondent No. 1 sought N.O.C. for approval of appointments dated 30-11-1991 vide letter dated 26-12-1991 and respondent No. 2 replied that the approval to the said posts had already been granted vide letter dated 9-8-1990. We find considerable force in the contention of Advocate Shri V.P. Thali that the approval to 2 posts of Peons which was granted vide Order dated 9-8-1990 could not have been restricted under the Act and the Rules till the year 1990-91. Government Advocate Shri Bharne was not able to point out any provision under the Act or the Rules framed thereunder vide which the approval could be restricted only till the year 1990-91. Therefore, the objection relating to approval raised by respondent No. 1 vide letter dated 26-12-1991 was baseless. The net result is that the respondent No. 1 did not convey its disapproval of the appointments of the petitioners within 3 weeks of intimation in terms of Rule 76 and, as such, we are of the view that there has been deemed approval of the appointments in accordance with Rule 76(4) of the said Rules. 16. Insofar as the contention of respondent No. 2 relating to absorption of petitioner No. 1 is concerned, we do not see any difficulty insofar as the absorption of petitioner No. 1 is concerned. Even taking the appointment of petitioner No. 1 as 2-12-1991 which was on probation for a period of 2 years, he would be entitled to absorption in terms of Circular dated 16-4-1993, since he would complete his probation period on 2-12-1993 and, admittedly, according to respondent No. 1 himself, one post of Peon Group D was available till the end of academic session 1993-94. After academic session 1993-94, petitioner No. 1 would thus be entitled for absorption and till he is absorbed his salary has to be drawn by respondent No. 2 and respondent No. 1 in liable to pay matching grant. 17. We shall now come to the case of petitioner No. 2 who was appointed for the first time on 2-12-1991. According to respondent No. 1, only 4 posts of Peons of Group D were available till the end of academic session 1991-92. 17. We shall now come to the case of petitioner No. 2 who was appointed for the first time on 2-12-1991. According to respondent No. 1, only 4 posts of Peons of Group D were available till the end of academic session 1991-92. As against the said posts, 2 appointments had previously been made by respondent No. 2 and 2 appointments of the petitioners were made on 2-12-1991. This position is not disputed either by petitioners or by respondent No. 2. According to respondent No. 2 after the academic session 1991-92 only 3 posts of Peons were available. Since petitioner No. 1 had been appointed on 6-6-1989, and even the said appointment is otherwise legal, he would be entitled to continue against the third post after the academic session 1991-92. However, there would be no post available for petitioner No. 2 after the academic session 1991-92. Petitioner No. 2 was also appointed on probation for 2 years with effect from 2-12-1991 and till the academic session 1991-92 he would only complete 6 months of service after which, admittedly, no post of Peon Group D was available. Even if Circular dated 16-4-1993, which was issued subsequently, is not taken into consideration, there is no right of a person on probation either to be retained in service or to be absorbed. Moreover, these guidelines which were issued vide Circular dated 16-4-1993, were subsequently incorporated by amendment into the said Rules. In fact, Rule 34 was silent on the question as to what was necessary for the purpose of absorption and Circular dated 16-4-1993 clarified the said position that non-teaching employees completing probation period would be entitled to be qualified for absorption. We, therefore, cannot accept the contention of respondent No. 2 that petitioner No. 2 is entitled to be absorbed in terms of Rule 34 of the said Rules and the respondent No. 1 is bound to pay matching grant till petitioner No. 2 is absorbed. We are of the opinion that petitioner No. 2 is not entitled for absorption under the Rules and since no post was available in case of petitioner No. 2 after the academic session 1991-92, the respondent No. 1 is not liable to pay any matching grant to petitioner No. 2 and the payment of petitioner No. 2 from June 1992 shall have to be made by respondent No. 2. 18. 18. For the aforesaid reasons, the petition succeeds partly. Petitioner No. 1 is entitled to claim salary from 2-12-1991 till he is absorbed, through respondent No. 2, and for the said period respondent No. 1 is liable to pay matching grant. Insofar as petitioner No. 2 is concerned, respondent No. 1 will be liable to pay matching grant only till May 1992 and from June 1992 the entire salary will have to be paid by respondent No. 2 without any matching grant from respondent No. 1. Petitioner No. 2 would thus also be entitled to salary with effect from 2-12-1991 till he is in service, subject to the aforesaid observations. 19. By way of interim Order which was passed on the joint application filed by the petitioners on 16-3-1994, respondent No. 1 was directed to draw salary bill for past arrears as also future salary for the post of one Peon and it was to be divided equally between the petitioners. The said interim Order dated 21-3-1995 also provided that if it was found that the petitioners are not entitled to the amount already paid to them, they shall, at the directions of this Court, refund the amount as directed in the final Order. Respondent No. 1 has already paid in respect of one post and there is no liability of respondent No. 1 for making any further payment except for the period from 2-12-1991 till May 1992 for which respondent No. 1 would be liable to reimburse the salary of petitioner No. 2. The respondent No. 2 shall be liable to pay balance half of the salary to petitioner No. 1 and petitioner No. 2 from June 1992. At that stage it was suggested by the Advocates for the petitioners and respondent No. 2 in so far as payment to petitioners is concerned the same shall be worked out by them and adjustment shall be made. 20. Rule made absolute in the aforesaid terms. Petition partly allowed.