 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR WRIT PETITION NO: 856/2008 ( Suresh Krushnarao Kitukale vs. State of Maharashtra and others) ----------------------------------------------------------------------------------------------- Office Notes, Office Memorandum of Coram Court's or Judges Order appearances, Court's orders of directions & Registrar's orders. ................................................................................................................................... CORAM: D.D.SINHA & A. P. BHANGALE , JJ. DATED: 10th February, 2009. *** 1. Heard Mr P C Madkholkar, learned Counsel for the petitioner; Mr A.S.Fulzele, learned AGP for respondents 1 and 2 ; Mr. Kaptan, for Respondent No.3 and 4 and Mr Z A Haq, for Respondent No.5. 2. This petition is directed against the communication dated 14th February, 2008 whereby the approval is granted to Respondent No.5 who was selected by the Selection Committee for the post of Head of Department (Civil) ( “HOD” in short). 3. Learned counsel for the petitioner has submitted that by virtue of the decision of the full Bench of this Court reported in 2003 (Vol.2) Mh.L.J . 316, the provisions of Maharashtra Employees of Private Schools (Conditions of Service) Act and Rules are extended to the employees of the Polytechnics. It is submitted that Rule 3 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 ('Rules of 1981' in short), the procedure is  mentioned which is for appointment of Heads. It is contended that as per the said procedure, the senior-most teacher is entitled to be considered for appointment to the post of HOD. It is contended that so far as the Polytechnic College is concerned and since the provisions of MEPS Act and Rules are made applicable to the employees of the said College, even the post of HOD is required to be filled in by following the policy of promotion stipulated in Rule 3 of the Rules of 1981. It is contended that in the instant case, for filing up the post of HOD (Civil), Respondent no.4 issued an advertisement pursuant to which the petitioner as well as Respondent no.5 appeared before the Committee. However, the Respondent No.5 was selected by the Committee. It is contended that the above-referred procedure adopted by the respondents for filing up the post of HOD (Civil) being inconsistent with the provisions of Rule 3, results in vitiating the selection of Res.No.5 and, therefore,the same is liable to be quashed and set aside and the post of HOD needs to be filled in by following procedure stipulated under Rule 3 of the Rules of 1981. 4. Mr. Haq, learned counsel for Respondent no.5 has submitted that the petitioner pursuant to the advertisement, appeared before the Selection Committee, however, when he was not selected, filed the present petition making a grievance about the procedure. It is further contended that Respondent no.5 was duly selected by the Selection Committee and the procedure followed by the  Respondent is also sustainable in law. It is contended that provisions of Rule 3 are not attracted in the present case. 5. Learned Assistant Government Pleader submitted that the provisions of clause (9) of the Govt. Resolution dated 27th February, 2003 are also attracted in the present case since the post of HOD (Civil) is solitary in nature and, therefore, Rule of 50 % seats to be filled in by promotion and 50 % by nomination stipulated in clause (9) is not attracted in the present case. It is further contended that Rule 3 deals with appointment of the Head who are heading the institution, such as, primary, secondary, higher secondary, junior college, Night school and, therefore,the same rule is also not applicable. 6. We have considered the contentions canvassed by the respective counsel. Perused Rule 3 of the Rules of 1981. Rule 3 deals with qualification and appointment of the Head only. The word “ Head” is defined in section (2 ) of sub- section 9 of the Act of 1977 which reads thus: The 'Head of the school' or' Head' means, the person by whatever name is the in charge of the academic and administrative duties and functions of a school conducted by any management and recognised or deemed to be recognised under this Act and includes the Principal, Vice-Principal, Headmaster, Headmistress, Assistant Headmaster, Assistant Headmistress or Superintendent thereof.  The reading of the above referred provision makes it clear that Head means the person who is in charge of the academics and discharge administrative duties as well functions of the school conducted by the Management and includes, the Principal, Vice-Principal etc. as mentioned in the Act; apart from the fact that the category of HOD is not included in the definition of the Head of the School, it is not in dispute that HOD does not discharge functions of the school conducted by the Management and, therefore, in our view, the provision of Rule 3 and procedure stipulated therein, is not attracted so far as the controversy in issue is concerned. 7. For the reasons mentioned herein- above,no case is made out for showing indulgence. Writ Petition is dismissed. JUDGE JUDGE sahare