Bombay High Court
Tanaji Madhukar Barbade vs State Of Maharashtra & Ors on 26 October, 2010
Bench: D.K. Deshmukh, Anoop V.Mohta, R. V. More
           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 Kambli 2 Wp1688.10 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 Kambli 3 Wp1688.10 the
Petitioner to the post of junior clerk with effect from 1-4-2008. The Petitioner joined the post on
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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.
Kambli 4 Wp1688.10
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, Kambli 5 Wp1688.10 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 Kambli 6 Wp1688.10 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 Kambli 7 Wp1688.10 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-
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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 Kambli 8
Wp1688.10 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 Kambli
9 Wp1688.10 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 Kambli 10 Wp1688.10 be given in the service of private school. In our
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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 Kambli 11 Wp1688.10
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 Kambli 12
Wp1688.10 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:
Kambli 13 Wp1688.10
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.
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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.
Kambli 14 Wp1688.10
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 Kambli 15 Wp1688.10 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 Kambli 16 Wp1688.10 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
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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 Kambli 17 Wp1688.10 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 Kambli 18 Wp1688.10 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.
            Kambli                  19                           Wp1688.10
     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:
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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 Kambli 20 Wp1688.10 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-
Kambli 21 Wp1688.10 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 Kambli 22 Wp1688.10 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).
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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 Kambli
23 Wp1688.10 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) Kambli 24 Wp1688.10
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 Kambli 25 Wp1688.10 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
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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.
            Kambli               26                           Wp1688.10
     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.)
      Kambli    27                 Wp1688.10
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