Tanaji Madhukar Barbade vs State Of Maharashtra & Ors
2010 Latest Caselaw 90 Bom

           Kambli                 1                            Wp1688.10

           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 fill

such vacancy:

(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, Greater Bombay, (the Education Officer, Zilla parishad or, as the case may be, the Director or the officer designated by the Director in respect of schools

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imparting technical, vocational, art or special education, whether there is any suitable person available on

the list of surplus persons maintained by him, for absoration in

other 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 private

school and for reservation of adequate number of posts for members

of 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 other

monetary benefits of an employee in the employment of an existing private

school 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, Greater

Bombay, (the Education Officer, Zilla Parishad or, as the case may be, the Director or the officer designated by the Director in respect of schools

imparting technical, vocational, art or special education, whether there

is any suitable person available on the list of surplus persons maintained by him, for absoration in

other 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 to

be 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 in

writing 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 be

necessary 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) the

Management shall advertise the vacancies in at least one newspaper having wide circulation in the region and also notify the vacancies to the

Employment Exchange of the District and to the District Social Welfare

Officer (and to the associations or organisations of persons belonging to Backward Classes, by whatever names such associations or organisations

are 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 not

possible 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 Exchange or the District Social

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Welfare Officer ( or such associations or organisations as aforesaid) or if no such names are

recommended by the Employment Exchange or the District Social

Welfare 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 the

provisions 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 the

application 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 that

the Undertaking is either unable to provide efficient and economical

service or that the private operator is better equipped to render the same. Preference in this context would mean that other things

generally appearing to be qualitatively and quantitatively equal though not with mathematical accuracy, statutory provision will tilt the balance in favour of the

Undertaking. 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 supplied)

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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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