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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 1688 OF 2010
...
Tanaji Madhukar Barbade …Petitioner
v/s.
State of Maharashtra & ors. …Respondents
…
Mr.G.N.Salunke for the Petitioner.
Mr.S.R.Nargolkar, Addl.GP for State.
…
CORAM: D.K. DESHMUKH,
ANOOP V. MOHTA &
RANJIT MORE,JJJ
DATED: 26th October, 2010
JUDGMENT: (PER D.K.DESHMUKH, J.)
1. Two questions which have been
referred to us for decisions are, (i) Whether
the Government Resolution dated 15th April,
1991 is valid in view of the provisions in
the MEPS Act and Rules framed thereunder? &
(ii) Whether Schedule `F’ to the Rules
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issued under the Act provides for promotion
or it provides merely a preference to be
given in appointment?
2. These questions arise in following
factual background,
The Respondent No.4-Shri Shivaji
Shikshan Prasarak Mandal has established a
junior college at Barshi. It is an admitted
position before us that the said junior
college is a private school within the
meaning of the Maharashtra Employees of
Private Schools (Conditions of Service)
Regulation Act, 1977 (hereinafter referred to
as the “Act”). The Petitioner was appointed
as a peon in the Respondent No.5-Junior
College with effect from 29th April, 1994. The
post of Junior clerk in the said college
became vacant in August, 2003. By order dated
31st March, 2008 the Respondent No.4 promoted
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the Petitioner to the post of junior clerk
with effect from 1-4-2008. The Petitioner
joined the post on 1-4-2008. The Respondents
Nos.4 & 5 submitted proposal to the
Respondent No.2 for approval of the promotion
of the Petitioner to the post of junior clerk
on 5-4-2008. By letter dated 6th June, 2008
the Deputy Director, Education informed the
Respondent No.5 that the post of junior clerk
is to be filled in by direct recruitment and
not by promotion as per the law, and
therefore, approval to the order by which the
Petitioner has been promoted to the post of
junior clerk cannot be granted. It may be
pointed out here that necessity for the
Respondents Nos. 4 & 5 to seek approval of
the Respondent No.2 to the promotion of the
Petitioner to the post of junior clerk arises
because the Respondent No.5-college receives
grant-in-aid from the State Government.
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3. Feeling aggrieved by the order of the
Deputy Director declining to approve the
promotion of the Petitioner to the post of
junior clerk, the Petitioner filed Writ
Petition No.1688 of 2010. That Writ Petition
came before the Division Bench of this Court
for admission on 11th March, 2010.
4. In support of his contention that the
reason given by the Deputy Director for not
approving the promotion of the Petitioner to
the post of junior clerk is not correct, the
Petitioner relied on the Government
Resolution dated 15th April, 1991 and a note
in Schedule “F” to the Rules framed under the
Act. The Petitioner also relied on two
judgments of the Division Bench of this
Court, one in the case of Ashok Shankarrao
Shinde v/s. Prabodhan Shikshan Sanstha,
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Nagpur, 1999(1) Mh.L.J. 348 and other in the
case of Ramesh Shivram Khairnar v/s. State of
Maharashtra & ors, 2003(4) Mh.L.J. 470. The
Division Bench, which was hearing the Writ
Petition No.1688 of 2010 found itself unable
to agree with the law laid down in the two
aforesaid judgments and therefore, Writ
Petition was admitted for final hearing and
the Hon’ble the Chief Justice was requested
to refer the above questions to a Larger
Bench. Accordingly, the Hon’ble the Chief
Justice has constituted this Bench for
consideration of above said two questions.
5. We have heard the learned Counsel
appearing for both sides.
6. The learned Counsel appearing for the
Petitioner relied on the provisions of the
Act and the Rules and aforesaid two judgments
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of the Division Bench. The learned Counsel
also relied on the observation made in
paragraph 13 of the judgment of the learned
single Judge of this Court in the case of
Nita Ramesh Danane v/s. Dombivali Mitra
Mandal and ors, 2009 (1) Mh.L.J. 797.
7. The learned Addl.Government Pleader
appearing
for the Respondents Nos.1 to 3,
however, submitted that grant of promotion to
the post of junior clerk to a person who is
working in class-IV cadre is contrary to the
scheme of the Act and the Rules.
8. Now, taking up for consideration the
first question, what we have really to
consider is in view of the provisions of the
Act and Rules would the Government Resolution
dated 15th April, 1991 apply in relation to a
private school. Perusal of that Government
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Resolution shows that it has been issued by
the General Administration Department of the
Government of Maharashtra. Subject of that
Government Resolution is promotion of Class-
IV employees. It appears from that Government
Resolution that the Resolution applies only
to Government service. It does not apply to a
private school. In our opinion, paragraphs 4,
5 & 6 of the aforesaid Government Resolution
leave one in no doubt that this Government
Resolution applies only to government
service. Paragraph 4 of the Government
Resolution states that every department
should prepare a seniority list at District
level. Paragraph 5 says that for the purpose
of preparing combined seniority list of
Class-IV employees, every department should
appoint an officer at the District level.
Paragraph 6 lays down that so far as
departments in Mantralaya are concerned, for
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each department independent seniority list
should be prepared. It is, thus, clear from
the tenor of this Government Resolution that
it applies to government service only. The
fact that Government Resolution has been
issued by the General Administration
Department, in opinion, clearly indicates
that it applies to Government service only.
There is one more reason why that Government
Resolution cannot be said to apply to the
private school. Section 5(1) of the Act reads
as under:
5(1) The Management shall, as soon as
possible, fill in the manner
prescribed every permanent vacancy in
a private school by the appointment
of a person duly qualified to fillsuch vacancy:
(Provided that unless such vacancy is
to be filled in by promotion, the
Management shall, before proceedingto fill such vacancy, ascertain from
the Educational Inspector, Greater
Bombay, (the Education Officer, Zilla
parishad or, as the case may be, the
Director or the officer designated by
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or special education, whether there
is any suitable person available onthe list of surplus persons
maintained by him, for absoration inother schools; and in the event of
such person being available, the
Management shall appoint that person
in such vacancy)
9. Perusal of the above quoted
provisions makes it clear that the vacancy in
private school is to be filled in the manner
prescribed. The term “prescribed is defined
by Section 2(17) to mean prescribed by rules.
It is Section 16 of the Act which contains
rule making power of the State Government. In
our opinion, Section 16 (2)(d) is relevant.
It reads as under:
16(2)(d) the other conditions of
service of such employees including
leave, superannuation, re-employment
and promotion;
Thus, the Act specifically confers rule
making powers on the State Government to
provide in what condition promotions are to
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be given in the service of private school. In
our opinion, this rules out the possibility
of provision being made in relation to
promotion in a private school by a Government
Resolution. It is a settled principal of law
that when a thing is permitted to be done in
a particular manner, it can be done only in
that manner and all other modes of doing it
are prohibited
ig by necessary implications.
Therefore, when the Act clearly stipulates
that the provision in relation to promotion
in private school can be made by framing of
Rules, it cannot be done by issuance of
Government Resolution, specially when in
exercise of its rule making power the State
Government has framed rules which make
provision for recruitment in private school
and also make provision for filling in
certain posts by promotion. In our opinion,
therefore, it is clear that the Government
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Resolution dated 15th April, 1991 in view of
the provisions of the M.E.P.S.Act and the
Rules framed thereunder and in view of what
is stated in that Government Resolution,
does not apply to private school.
10. The Petitioner relies on the
following found in Schedule “F” of the Rules.
Lower Grade Staff- A common seniority
list of Laboratory Attendant, Naik,
Oilman, Machine Attendant, Peon,
Watchman, Chowkidar, Sweeper, Call-
woman, Kamathi, Attendant, Laboratory
Hamal, Liftmen and such other lower
grade staff, if any, shall be
maintained on the basis of the dates
of their appointment. If any of the
lower grade staff improves his
qualifications as prescribed either
for the post of Laboratory Assistant
or Clerk, such employee should be
given preference while filling in the
said post according to his place in
seniority. (emphasis supplied)
11. It is contended on behalf of the
Petitioner that the above quoted provisions
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provides for promotion of lower grade staff
to the post of junior clerk by promotion. The
judgment of the Division Bench in Ashok
Shinde’s case is first in point of time. That
judgment also relies on the above quoted
portion from Schedule “F”. It appears from
that judgment that a person working as a peon
in the private school had improved his
qualification
ig and had acquired the
qualification necessary for the post of
junior clerk, but the management was not
considering him for the promotion to the post
of junior clerk, therefore, he filed Writ
Petition. The Petitioner in that case relying
on the aforesaid portion from Schedule “F”
claimed that he has right to be considered
for promotion to the post of junior clerk.
The Division Bench after quoting the above
quoted provision from Schedule “F” observed
thus:
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5. The management has right
to the extent of saying that the said
clause (IV) under the Schedule does
not speak of a promotion. However,
the entire scheme of the Rules
including the Schedules appearing
thereunder have to be given a
combined reading and are to be
interpreted thereafter to further the
underlying intend of this piece of
subordinate legislation. These being
the Rules, then under the powers
given to the Executive by the
legislative wing, while enacting the
said Act, the intent and purpose
lying thereunder cannot be ignored.
6. Thus, reading the
aforesaid two provisions together,
the position becomes clear that in
case of non-teaching staff, employees
of lower grade staff, so far as peons
are concerned, there is a possibility
of promotion to the post of a
Laboratory Assitant or clerk which
will have to be read into Schedule
`B’ clause (IV) pertaining to the
junior clerk as one of the source of
appointment for the post.
7. To that extent,
therefore Schedule `F’ will project
itself into Schedule `B’ and on
combined reading both meaning and
effect will have to be given to it.
Then only the underlying idea of
encouraging the lower staff to aim
higher and achieve better can be
implemented and that goal can be
advanced.
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12. It is clear from the observations of
the Division Bench quoted above that
according to the Division Bench though the
above quoted portion from Schedule “F” does
not use the term “promotion” the scheme of
the Act and the Rules shows that that
provision provides for promotion to the post
of junior clerk.
ig So far as judgment in the
case of Ramesh Khairnar, referred to above,
is concerned, in that case the Management of
the private school had issued an
advertisement inviting the application for
post of junior clerk. The Petitioner, who
was working as peon in that school filed a
Writ Petition challenging the advertisement
claiming that in view of the above quoted
provisions from Schedule “F”, he has right to
be considered for promotion to the post of
junior clerk and the post should not have
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been advertised. Perusal of that judgment
shows that mainly relying on the observations
of the Division Bench in its judgment in the
case of Ashok Shinde referred to above, the
Division Bench held that the Petitioner in
that case had right of being considered for
the promotion to the post of junior clerk and
it was held that the Management was not
justified in issuing an advertisement.
13. The Division Bench in its judgment in
Ashok Shinde’s case, has referred to the
Scheme of the Act. Perusal of the Preamble of
the Act shows that the Act has been enacted
to regulate the recruitment and conditions of
service of employees in private schools in
the State. Sub-section 1 of Section 3 lays
down that the provisions of the Act shall
apply to all private school in the State of
Maharashtra, whether receiving grant-in-aid
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from the State Government or not. Sub-section
1 of Section 4 of the Act reads as under:
4(1) Subject to the provisions of this
sanction, the State Government may
make rules providing for the minimum
qualifications for recruitment(including its procedure) duties,
pay, allowances, post-retirement and
other benefits and other conditions
of service of employees of privateschool and for reservation of
adequate number of posts for membersof the backward classes:
(Provided that, neither the pay nor
the rights in respect of leave of
absence, age of retirement and post-
retirement benefits and othermonetary benefits of an employee in
the employment of an existing privateschool on the appointed date shall be
varied to the disadvantage of such
employee by any such rules.
14. Thus, power is conferred on the State
Government to frame Rules providing for
minimum qualification for recruitment,
duties, pay, allowances and other aspect.
Proviso which appears below sub-section 1 of
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Section 5 reads as under:
(Provided that unless such
vacancy is to be filled in by
promotion, the Management shall,
before proceeding to fill such
vacancy ascertain from the
Educational Inspector, GreaterBombay, (the Education Officer, Zilla
Parishad or, as the case may be, the
Director or the officer designated by
the Director in respect of schoolsimparting technical, vocational, art
or special education, whether thereis any suitable person available on
the list of surplus persons
maintained by him, for absoration inother schools; and in the event of
such person being available, the
Management shall appoint that person
in such vacancy.)
15. Perusal of this proviso shows that
except those posts which are permitted to be
filled in by promotion, obviously by the Act
or the Rules before filling in the posts
intimation has to be given about the vacancy
by every school to the Education Department,
so that the names of candidates from the
surplus cell can be intimated to the school
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for absorption. This proviso is to be read
along with the provision of Rule 26, which
relates to retrenchment on account of
abolition of post. Perusal of this Rule shows
that employees from various private schools
whose services are retrenched for various
reasons get their names entered into surplus
cell maintained by the Education Department
and as and
ig when vacancies occur in any
school. Those persons whose names are
included in the surplus cell get an
opportunity of being absorbed against those
vacancies. Thus, if the Management is
permitted to fill in the vacancy by
promotion, though there is no specific
provision made in the Act or the Rules for
filling in that vacancies by promotion, then
it will frustrate a well though out scheme
which is included in the Act and the Rules
for absorption of surplus staff from.
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16. The State Government, as observed
above, has framed Rules. In our opinion, sub-
Rule 3 of Rule 9, is crucial. It reads as
under:
9(3) Unless otherwise provided in
these rules for every appointment tobe made in a school, for a teaching
or a
ig non-teaching post, the
candidates eligible for appointment
and desirous of applying for such
post shall make an application inwriting giving full details regarding
name, address, date of birth,
educational and professional
qualifications, experience, etc.,attaching true copies of the original
certificates. It shall not benecessary for candidates other than
those belonging to the various
sections of backward communities for
whom posts are reserved under sub-
rule (7) to state their castes in
their applications.
17. Perusal of the above Rule shows that
this Rule give a right to every eligible
candidate to apply for any vacancy either for
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teaching or a non-teaching post in a private
school. In order to make this right
meaningful and effective, a corresponding
duty will have to be read in the Management
to give wide publicity to the fact that there
is a vacancy in that school, so that every
candidate who is eligible to apply can come
to know of the existence of the vacancy and
apply for the post. Without the Management
making the existence of vacancy known, the
right given by sub-Rule 3 of Rule 9 to every
eligible candidate to apply will be
meaningless. It is further to be seen that
many private schools also receive grant-in-
aid from the State Government and therefore
salaries of the teaching and non-teaching
staff in the Schools are paid from the public
funds, and therefore considering the
provisions of Article 14 of the Constitution
as the salary of the teaching and non-
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teaching staff is to be paid from the public
funds, there would be an obligation on the
Management to advertise the vacancy. So far
as the vacancies which are reserved for
backward class are concerned, there is a
specific provision made in sub-Rule 8 of Rule
9. Sub-Rule 8 of Rule 9 reads as under:
Sub-Rule(8) of Rule 9- For the
purpose of filling up the vacancies
reserved under sub-rule (7) theManagement shall advertise the
vacancies in at least one newspaper
having wide circulation in the region
and also notify the vacancies to theEmployment Exchange of the District
and to the District Social WelfareOfficer (and to the associations or
organisations of persons belonging to
Backward Classes, by whatever names
such associations or organisationsare called, and which are recognised
by Government for the purposes of
this sub-rule) requisitioning the
names of qualified personnel, if any,
registered with them. If it is notpossible to fill in the reserved post
from amongst candidates, if any, who
have applied in response to the
advertisement or whose names are
recommended by the Employment
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associations or organisations as
aforesaid) or if no such names arerecommended by the Employment
Exchange or the District SocialWelfare Officer (or such associations
or organisation as aforesaid) within
a period of one month the Management
may proceed to fill up the reserved
post in accordance with theprovisions of sub-rule (9).
So far as reserved vacancies are concerned,
thus, the Management is not only obliged to
issue advertisement in at least one
newspaper, but has also to notify vacancies
to various agencies. In our opinion,
therefore, permitting the Management to fill
in the post without advertisement, though
there is a clear provision made in the Act or
the Rules, would be contrary to the scheme
of the Act and the Rules. In the provision in
Schedule “F”, which we have quoted above,
what is provided is preference. Preference
does not mean exclusive right of
consideration. It means right to be
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preferred, other thing being equal. The
observations made by the Supreme Court in its
judgment in the case of Sher Singh v/s. Union
of India and ors, AIR 1984 SC 200 in relation
to the provisions of Section 47 of the Motor
Vehicles Act, in our opinion, are relevant.
They read as under:
“This would apply mututis mutandis to
the present situation. But let it be
made clear that while considering theapplication for stage carriage permit
under S.47, the private operator has
an equal chance to get a permit even
on inter-State route if it shows thatthe Undertaking is either unable to
provide efficient and economicalservice or that the private operator
is better equipped to render the
same. Preference in this context
would mean that other thingsgenerally appearing to be
qualitatively and quantitatively
equal though not with mathematical
accuracy, statutory provision will
tilt the balance in favour of theUndertaking. Viewed from this
perspective the provision contained
in Section 47(1-H) would not deny
equality before law and hence would
not offend Art.14.” (emphasis
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18. So far as the judgment of the learned
single Judge in the case of Nita Danane is
concerned, in that case this issue was not
being considered. Paragraph 13 of that
judgment is relevant. It reads as under:
13. The contention of the
learned Counsel for the respondents
that the appointment itself was not
valid as it was not in accordance
with Rule 9, has not been pleaded in
the written statement. There is no
material at all to indicate that the
appointment was not valid. The
learned counsel sought to justify his
submission by pointing out that the
appointment order refers to the
petitioner’s applications dated
13-9-1993 and 18-9-1993. He then
points out that, in para 3 of the
petition, the petitioner has pleaded
that she applied for the post when
she learnt that the respondents were
to employ a qualified Librarian. In
my view, if it is the case of the
respondents that the appointment
itself was invalid, then it was for
the respondents to plead so in their
written statement. There is not a
whisper about this in the written
statement. Therefore, in my opinion,
this submission of the learned
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counsel for the respondents is an
after-thought and cannot be accepted.
Had there in fact been an invalid
appointment, the contention would
certainly have been raised by the
respondents in their written
statements. Apart from this, Rule
9(8) provides that a reserved post
must be advertised. However, there is
no such requirement for advertisement
of a post in the open category, such
as the post of a Librarian. Rule 9(3)
only contemplates an application
being made by the candidate with the
requisite details in respect of
educational
ig and professional
qualifications, experience, etc. The
Petitioner had applied for the post
of Librarian, which is not a reserved
post since it is an isolated post, in
the manner prescribed under Rule
9(3). Therefore, the contention of
the learned advocate for the
respondents is untenable.
19. Perusal of the above quoted paragraph
shows that the learned single Judge has not
considered the scheme of the Act before
making these observations. These are merely
passing observations and the issue has not
been discussed and decided.
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20. In our opinion, therefore, the
questions which have been referred to have to
be answered thus,
1.The Government Resolution dated 15th
April, 1991 cannot be made applicable to
the teaching and non-teaching staff in
recognised private schools which are
governed by the provisions of the
M.E.P.S.Act & Rules framed thereunder;
2. Schedule “F” to the M.E.P.S.Rules does
not provide for promotion to the post of
junior clerk. It merely provides a
preference to be given to the lower grade
staffs in making appointment to the posts
of junior clerk and laboratory assistant.
( D.K. DESHMUKH,J.)
(ANOOP V. MOHTA, J.)
( RANJIT MORE,J.)
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