{"id":39467,"date":"2003-06-27T00:00:00","date_gmt":"2003-06-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/laxmikant-balkrishna-joshi-vs-shikshan-prasarak-mandal-and-ors-on-27-june-2003"},"modified":"2016-08-27T12:40:53","modified_gmt":"2016-08-27T07:10:53","slug":"laxmikant-balkrishna-joshi-vs-shikshan-prasarak-mandal-and-ors-on-27-june-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/laxmikant-balkrishna-joshi-vs-shikshan-prasarak-mandal-and-ors-on-27-june-2003","title":{"rendered":"Laxmikant Balkrishna Joshi vs Shikshan Prasarak Mandal And Ors. on 27 June, 2003"},"content":{"rendered":"
Bombay High Court<\/div>\n
Laxmikant Balkrishna Joshi vs Shikshan Prasarak Mandal And Ors. on 27 June, 2003<\/div>\n
Equivalent citations: 2004 (1) BomCR 843, 2003 (4) MhLj 515<\/div>\n
Author: R Kochar<\/div>\n
Bench: R Kochar, S Kharche<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
  R.J. Kochar, J. <\/p>\n
 1. The petitioner, who was in employment with the
\nrespondent No. 2, as a Lecturer has filed the present petition under Article 226 of
\nConstitution of India, for an appropriate writ or direction against the respondents
\nto appoint the petitioner as Head of the Institute of Pharmacy known as “Geetadevi Khaldelwal Institute of Pharmacy, Akola”, and to give all the benefits
\nincluding the difference in salary from 1983 from the date of acceptance of
\nresignation of the then Principal Shri A. P. Hardas. The petitioner has also sought
\na direction against the respondents that they should comply with the provisions of
\nthe Maharashtra Employees of Private Schools (Conditions of Service), Rules
\n1981 and the Act of 1978, and Pharmacy Regulations.\n<\/p>\n
2. The facts in the present petition are not in dispute and are in a very
\nnarrow compass. The petitioner was appointed as a Lecturer in the institute vide
\nthe appointment order dated 8-8-1980 with effect from 21-8-1980. The post of
\nPrincipal fell vacant on account of resignation by the incumbent of the post of
\nPrincipal. The management of the institute, therefore, advertised the vacancy to
\nbe filled in from the qualified and eligible candidate from the open market. It
\ninvited applications for the post of Principal in the institute instead of filling up
\nthe said post by appointing the petitioner being the senior-most Lecturer and also
\nfully qualified and eligible to be appointed as Principal of the institute. It appears
\nthat the petitioner has also applied for the said post in response to the said
\nadvertisement given by the management though under protest, as according to
\nhim the procedure of selection of a candidate from the open market was in
\nviolation of the mandatory Rule 3 of the M.E.P.S. Act, which mandates that the
\npost of Head of the institute should be filled in on the basis of the seniority.
\nAccording to petitioner, he had never reliquinshed his claim for the post of
\nPrincipal and that he was entitled under the Rules to be promoted as the Principal
\nof the institute. There is no much dispute or difference that the petitioner was the
\nsenior-most Lecturer in the institute and that he was also holding the requisite
\nqualifications for the post. The management, however, preferred to go in the
\nopen market to select the suitable candidate for the post of Principal. The
\nmanagement adopted the selection process instead of promoting in-house eligible
\ncandidate. Pursuant to the advertisement, the Selection Committee held the
\ninterview in the office of the Director of Education and selected the respondent
\nNo. 5 as the most suitable candidate for the post. The petitioner was not selected
\nand he stood third in the list. The Selection Committee comprised of Director of
\nEducation and, therefore, the selection of the respondent No. 5 was deemed to
\nhave been approved by him as he was a party to the selection of the respondent
\nNo. 5. The nub of the complaint of the petitioner is only that under Rule 4, the
\nmanagement was bound to promote the petitioner and was not permitted to go
\nout of the said Rule to resort to a selection process by giving advertisement
\ninviting applications from the open market when in-house suitable qualified and
\neligible candidate was available in the person of the petitioner. The entire
\nselection process and the appointment of the respondent No. 5 is, therefore,
\nviolative of the mandatory Rule 3 framed under the said Act is the gravamen of
\nthe petitioner. Shri U. S. Dastane, the learned counsel appearing for the petitioner
\nhas confined to the aforesaid contentions on behalf of the petitioner as set out in
\nthe petition. He has also further fairly accepted the position that as far as the
\nselection of the respondent No. 5 is concerned, the petitioner will not be in a
\nposition to challenged the same and that he is not challenging the merits of the
\nselection. The learned counsel submitted that his grievance was only to the extent of the decision of the management to resort to the selection process and not to
\npromote the petitioner, under the Rules.\n<\/p>\n
3. It is significant to note that the candidate who was not selected and who
\nwas at Sr. No. 2 of the selection list had also filed a writ petition challenging the
\nselection of respondent No. 5, but his writ petition was rejected in limine by a
\nDivision Bench of this Court on 24-12-1985. Since the writ petition was rejected
\nin limine by one word “rejected”, we have no source to find out the reasons for
\nrejection of the said petition. The said order, therefore, has no binding effect on
\nthis Bench. Had there been a speaking reasoned order that perhaps would have
\nmade difference. We have, therefore, examined the contentions of the parties on
\nmerits of the present case independently.\n<\/p>\n
4. Shri Bhangade, learned counsel for the respondent-management, has
\nsubmitted that though the institute is governed by the M.E.P.S. Act as held by a
\nFull Bench of this Court headed by The Hon’ble Chief Justice in the judgment
\ndated 13th March, 2003 in a writ petition No. 137\/1986, the Rule 3 on which
\nvery reliance was placed by the petitioner has no application at all. According to
\nthe learned counsel, the Polytechnic Institutes are not governed by the said Rules.
\nHe also submitted that in the entire scheme of the Act the Polytechnic Institutes
\nwere not covered and, therefore, the institute had to follow the process of
\nselection to fill up the post of the Principal on the basis of the requisite
\nqualifications, as prescribed by the Pharmacy Council of India under the
\nPharmacy Act, 1948. Shri Bhangade, therefore, submitted that the entire Rule
\nrelated to the primary school, secondary school, night school and Junior College
\nand it had no application to the Polytechnic Institute, particularly, because they
\nare governed by the Pharmacy Act under which qualifications for the post of the
\nPrincipal and other posts are specifically laid down and they were bound to
\nfollow the same provisions under the Act. He further submitted that as far as
\nmerits of the petitioner and the selected candidates are concerned, the petitioner
\nhas not challenged the selection and the selection process. The respondent No. 5
\nhas been in the post of Principal since last 18 years. He was selected by an
\nindependent body and he was fully qualified and eligible to be appointed as the
\nPrincipal of the institute. As against this, the petitioner was not selected by the
\nSelection Committee and he stood third in the selection list. He further submitted
\nthat it was the Director of Education, who was the party to the Selection and this
\nselection cannot be challenged before his subordinate officer namely the
\nEducation Officer, as contemplated under Rules. Shri Bhangade, therefore,
\nsubmitted that the institute was well within its right to resort to the selection
\nprocess to fill up the post of Principal and it was not mandatory for the institute
\nto promote the petitioner. The learned counsel submitted that the management
\nhas not committed any illegality and has not violated the Rule 3 on which whole
\npetition is based. He also submitted that it will not be just, proper and equitable
\nfor this Court under Article 226 of Constitution of India to disturb the respondent
\nNo. 5, who has been working since last 18 years to the satisfaction of the
\nmanagement and who was duly selected by independent selection body and when
\nthe petitioner has only two years left for retirement. He also submitted that no
\nmala fides are alleged against the management by the petitioner. The learned
\ncounsel, therefore, stressed that this Court should not exercise its extraordinary jurisdiction to grant any relief to the petitioner whereby the respondent No. 5
\nwould be required to be thrown out of the employment for no fault of his.\n<\/p>\n
5. Shri Panpaliya, who appeared for respondent No. 5 supported the
\nsubmissions or Shri Bhangade. He also further added that his client is more
\nmeritorious in comparison with the petitioner.\n<\/p>\n
6. Since the entire matter revolves around the Rule 3, we have carefully
\ngone through the same with the assistance of both the learned counsel. It would
\nbe convenient to reproduce the entire Rule 3, explanation and the proviso as
\nfollows :–\n<\/p>\n
“Qualifications  and appointment of Head. —   (1)  A  person  to  be appointed as the Head —\n<\/p>\n
(a)(i) of a primary school having an enrolment of students above 200 or having Standards I to VII shall be the seniormost trained teacher who has put in not less than five years’ service; and<\/p>\n
(ii) of any other primary school shall be the seniormost teacher in the school;\n<\/p>\n
(b) of a secondary school including night school or a Junior College of
\nEducation shall be a graduate possessing Bachelor’s degree in teaching
\nor education of a statutory University or any other qualification
\nrecognised by Government as equivalent thereto and possessing not less
\nthan five years, total full-time teaching experience after graduation in a
\nsecondary school or a Junior College of Education out of which at least
\ntwo years’ experience shall be after acquiring Bachelor’s degree in
\nteaching or education:\n<\/p>\n
Provided that, in the case of a person to be appointed as the Head of a night secondary school —\n<\/p>\n
(i) he shall not be the one who is holding the post of the Head or Assistant Head of a day school, and<\/p>\n
(ii) the experience laid down in Clause (b) of Sub-rule (1) may be as a part-time teacher.\n<\/p>\n
(2) In the case of appointment to the post of Head of a secondary school including night school or a Junior College of Education if there is no person with the teaching experience mentioned in Clause (b) of sub-rule (1) available on the staff of the school or if the qualified persons though available and eligible, relinquish their claims for the post of Head and if a Management desires to appoint a person, from the teaching staff of the school who does not possess the requisite teaching experience mentioned in Clause (b) of Sub-rule (1), it shall apply to the Deputy Director for relaxing the requirement. The Deputy Director may, after recording reasons in writing, grant or refuse such relation. In such cases, the appointment shall not be made without obtaining the previous approval of the Deputy Director.\n<\/p>\n
Note – In the case of a graduate teacher already in service in a secondary school or Junior College of Education for more than fifteen years on the 1st June 1963, the Deputy Director shall relax the requisite qualifications for appointment of such teacher as a Head.\n<\/p>\n
(3) The Management of a school including a night school shall fill up the
\npost of the Head by appointment the seniormost member of the teaching
\nstaff (in accordance with the guidelines laid down in Schedule “F” from
\namongst those employed in a school (if it is the only school run by the
\nManagement) or schools [if there are more than one school (excluding
\nnight school) conducted by it] who fulfils the conditions laid down in
\nSub-rule (1) and who has a satisfactory record of service.\n<\/p>\n
 Explanation — For the purpose of the rule, the Management shall
\ncommunicate the occurrence of vacancy of the Head to the senior-most
\nqualified teacher having satisfactory record of service and ask him to
\nsubmit his willingness for appointment to the post within a period of
\nfifteen days from the date of receipt of the communication. The claim of
\nthe senior-most qualified teacher having satisfactory record of service,
\nfor appointment to the post of Head, may be disregarded only if he, of his
\nown free will, gives a statement in writing to the Education Officer that
\nhe has voluntarily relinquished his claim to the post. This shall not debar
\nhim being considered for subsequent vacancies as and when they occur.
\nSuch a teacher shall record his statement in his own handwriting before
\nthe Education Officer within a period of fifteen days from the date of
\nreceipt of the communication as aforesaid and the Education Officer shall
\nendorse it as having been recorded in his presence. A statement once
\nduly made by such teacher before the Education Officer shall not be
\nallowed to be withdrawn. In the event of the teacher failing to submit his
\nwillingness for appointment to the post or to give a statement to the
\nEducation Officer within a period of fifteen days, it shall be assumed that
\nhe has relinquished his claim on the said post:\n<\/p>\n
Provided that, where an unforeseen vacancy of Head occurs owing to
\nreasons like resignation without giving due notice, death, termination of
\nservices, reduction in rank or otherwise, the senior-most teacher desirous
\nof relinquishing his claim for appointment to the post shall, within seven
\ndays from the date of receipt of a communication by him of occurrence
\nof such vacancy from the Management, communicate to the management
\nin writing about the same so as to enable the Management to finalise the
\nappointment. Such a teacher shall thereafter as soon as possible and in
\nany case within a period of fifteen days from the date of receipt of the
\ncommunication as aforesaid record his final statement before the
\nEducation Officer to enable him to prove the appointment, or as the case
\nmay be, to disapprove the appointment if such teacher states in his
\nstatement before the Education Officer that the communication sent by
\nhim in writing to the Management was obtained from him by the
\nManagement under duress. In the event of the teacher failing to record a
\nfinal statement within a period of fifteen days as aforesaid it shall be
\nassumed that he has relinquished his claim on the said post.”\n<\/p>\n
 7. From a bare reading of the Rule, it is clear to us that the Rule cannot be
\nmade applicable to the Polytechnic Institutes, which are governed by the
\nPharmacy Act. Under the said Act, specific or requisite qualifications are
\nprescribed for various posts including the post of the Principal. The Polytechnic Institutes do not properly fit in the scheme of the Rule. In the present case, the
\nselection for the post of the Principal was made by a Committee headed by the
\nDirectof of the Education. Rule 3(2) requires permission from the Education
\nOfficer, who is obviously subordinate to the Director or the Deputy Director of
\nEducation. Secondly, Rule 3(3) refers to the guidelines in Schedule “F” for
\nqualifications. If we peruse the prescribed qualifications, we find that the said
\nqualifications are meant for primary school, secondary school, night school, or
\nJunior College. There is absolutely no indication that the Polytechnics are
\ncovered by Rule 3 of Schedule “F” though there is no dispute that the Act is
\napplicable to the institute. According to us, Rule 3 framed under the Act is not
\nattracted in the present case of the Polytechnic. We therefore, agree with the
\nsubmission of Shri Bhangade that the Rule 3 has no application to the
\nPolytechnic Institutes or Colleges and, therefore, according to us, there is no
\nviolation of Rule 3 in the case of the appointment on selection of the respondent
\nNo. 5. Since the Rule 3, which prescribes promotion of senior-most Lecturer or
\nTeacher to the post of Principal is not applicable, the management has rightly
\nfollowed a transparent process of selection of a suitable candidate by inviting
\napplications from the open market. The Selection Committee, which was headed
\nby the Director of Education has selected the respondent No. 5 on the basis of the
\nqualifications and eligibility criteria prescribed under the Pharmacy Act. The
\nmanagement has not acted do hors any Rules and has followed transparent
\nmethod of appointment of the respondent No. 5 as the Principal of the institute.
\nThere is no violation of any Rule as alleged by the petitioner and there is no
\nmiscarriage of justice in the facts and circumstances, which have emerged before
\nus to warrant interference under which extraordinary jurisdiction of Article 226
\nof Constitution of India. There is no merit in the petition and hence we dismiss
\nthe same. Rule is discharged with no orders as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Laxmikant Balkrishna Joshi vs Shikshan Prasarak Mandal And Ors. on 27 June, 2003 Equivalent citations: 2004 (1) BomCR 843, 2003 (4) MhLj 515 Author: R Kochar Bench: R Kochar, S Kharche JUDGMENT R.J. Kochar, J. 1. The petitioner, who was in employment with the respondent No. 2, as a Lecturer has filed […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-39467","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nLaxmikant Balkrishna Joshi vs Shikshan Prasarak Mandal And Ors. on 27 June, 2003 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/laxmikant-balkrishna-joshi-vs-shikshan-prasarak-mandal-and-ors-on-27-june-2003\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Laxmikant Balkrishna Joshi vs Shikshan Prasarak Mandal And Ors. on 27 June, 2003 - 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