Bombay High Court
Pimplner Education Society ... vs State Of Maharashtra And Others on 16 March, 2016
Bench: R.M. Borde
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.2557 OF 2015
1 Pimpalner Education Society,
Pimpalner, Tq. Sakri,
District Dhule, through its
Secretary, Shantaram s/o Tarachand
Sonwane, age: 58 years,
Occ: Service, R/o Pimpalner,
Tq. Sakri, District Dhule.
2 Karmveer A. M. Patil,
Secondary & Higher Secondary School,
Pimpalner, Tq. Sakri, District Dhule,
Versus
through its Head Master. Petitioners
1 The State of Maharashtra,
through its Principal Secretary,
School Education Department,
Mantralaya, Mumbai-32.
2 Assistant Commissioner,
Backward Class Cell,
Nashik Region, Nashik.
3 Deputy Director (Education),
Nashik Region, Nashik.
4 Education Officer (Secondary),
Zilla Parishad, Dhule. Respondents
Mr.Mahesh S. Deshmukh, advocate for petitioners
Mrs.A.V.Gondhalekar, A.G.P. for Respondents.
CORAM : R.M.BORDE &
P.R.BORA, JJ.
Date : 16th March, 2016
ORAL JUDGMENT (Per R.M.Borde, J.):
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1 Rule. Rule made returnable forthwith and heard
finally by consent of learned Counsel for respective parties.
2 Petitioner is praying for issuance of directions to quash
and set aside the order dated 22.06.2010, passed by Respondent
No.2 - Assistant Commissioner, Backward Class Cell, Nasik,
approving the roster of teaching and non teaching staff in relation
to the schools operated by petitioner no.1 - Institution and to hold
that the said order is contrary to the prescription provided under
Rule 9(7) of the Maharashtra Employees of Private Schools
(Conditions of Service) Rules, 1981.
3 Petitioner-educational Institution operates several
schools in Dhule district. The Assistant Commissioner, Backward
Class Cell, Nasik, has prepared and approved roster in relation to
reservation of posts, on 22.06.2010. According to the petitioners,
prescription of reservation by the Assistant Commissioner is not in
conformity with the provisions of Rule 9(7) of the Rules of 1981.
The Assistant Commissioner has provided for 8% of posts in favour
of Scheduled Castes, 22% in favour of Scheduled Tribes and 9% in
favour of Other Backward Class category, whereas, Rule 9(7) of the
Rules of 1981 provides that prescription of reservation for
Scheduled Castes category shall be 13%, for Scheduled Tribes: 7%
and for OBC category, it shall be 19%. Petitioner contends that
order passed by the Assistant Commissioner is contrary to the
provisions of Rules.
4 An affidavit has been presented on behalf of the
concerned Respondent wherein reliance has been placed on the
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Government Resolution dated 05.03.2015, which provides for
higher percentage of reservation in favour of Scheduled Tribes,
since the area, within which petitioner is operating, comprises of
majority of population belonging to Scheduled Tribes category.
5 It is to be noted that unless there is prescription in the
Rules providing for such higher percentage of reservation in favour
of Scheduled Tribes category, it would be impermissible for the
authorities to act upon and observe executive instructions issued
by the State. The issue raised in the matter is no more res integra
in view of the judgment delivered by the Division Bench of this
Court in the matter of Nishad Sadashiv Pawar & others Vs.
Dnyanasadhana College & others, reported in 2005 (4) All MR
101. The Division Bench has observed in paragraphs no.3 & 4, as
below:
"3 It appears that the authority has
proceeded on the footing that what has to be
applied as Government G.R. In the matter of
reservations. The G.R. Is nothing but
administrative instructions which will be
applicable, if there is no primary or secondary
legislation in force. In the instant case, under
the M.E.P.S. Act, rules have been framed. Rule
9(7) provides that the Management shall
reserve 34% of the total number of posts of the
teaching as well as non-teaching staff for the
members of S.C., S.T. and Backward
communities. In other words it is clear that
rules in force being subordinate legislation are
applicable. The issue is whether the G.R.s will
prevail over the rules. G.R.s ae issued
pursuant to the executive powers of the State
as provided by Article 162 of the Constitution of
India. The rules are framed pursuant to
delegation of powers by the Legislature on the
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delegate. The rule making power is subject to
Legislative control. Rules are subordinate
legislation whereas administrative instructions
are not. Administrative instructions cannot
contravene the rules. See Nanjundappa R.N.
Vs. Themmiiah T., (1972) 1 SCC 409. The rules
therefore, will prevail over the G.R.
4 The authorities under the M.E.P.S.
Act to follow strictly Rule 9(7) of M.E.P.S. Rules
in so far as recruitment to the posts governed
by the M.E.P.S. Act and rules. The G.Rs. As
issued by the Government from time to time n
the exercise of its administrative powers under
Article 162 of the Constitution of India would be
inapplicable to appointments in schools and
junior colleges.
Consequently if the contentions
raised in ground {c} are considered, the
Petitioners are right and the Petitioners can be
posted against the posts presently held by
them. Considering that and as the issue has
not been answered, petition will have to be
partly allowed.
6 The Respondent authority i.e. Assistant Commissioner,
Backward Class Cell, shall have to approve the roster having due
regard to provisions of Rule 9 (7) of the Rules of 1981 and shall not
have to place reliance on the Government instructions which are in
the nature of administrative directions issued under Article 162 of
the Constitution of India and such directions would be inapplicable
on the face of specific provisions made in the Rules of 1981.
7 Writ Petition, therefore, deserves to be allowed and
same is accordingly allowed. The impugned order dated
22.06.2010 issued by the Assistant Commissioner, Backward Class
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Cell, Nashik Region, Nashik, is quashed and set aside and the
concerned authority is directed to prepare and approve the roster
in accordance with provisions of Rule 9(7) of the Maharashtra
Employees of Private Schools (Conditions of Service) Rules, 1981.
The Respondent-authority shall consider the proposal for approval
forwarded by the petitioner-Institution, strictly in accordance with
the provisions of Rules of 1981, expeditiously.
8 Rule is accordingly made absolute. There shall be no
order as to costs.
P.R.BORA R.M.BORDE
JUDGE JUDGE
adb/wp255715
