1 W.P.No.4784.98 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4784 OF 1998 Sou.Rekha Damodar Joshi ... Petitioner v/s The State of Maharashtra & ors. ... Respondents Mr.R.D.Suryawanshi for the petitioner. Mr.S.N. Bhosale, A.G.P. for respondent Nos.1 and 2. Mr.S.S.Deshmukh for respondent Nos.5 and 6. CORAM: SMT.NISHITA MHATRE, J. DATED: 21ST JANUARY, 2011 ORAL JUDGMENT: 1. The petitioner has challenged the order of the School Tribunal dated 15.6.1998 dismissing the appeal filed by the petitioner. 2. The petitioner was employed as a teacher in a primary school from 1983. She joined service with respondent No.6 school as an assistant teacher on 11.6.1990. As she was overage, respondent No.5 institution submitted a proposal to 2 W.P.No.4784.98 respondent No.4 for relaxation of her age as provided under the Maharashtra Employees of Private Schools (Condition of Service) Regulations Act, 1977 (in short, the M.E.P.S.Act) and the rules framed thereunder. Respondent No.4, Administrative Officer of the Municipal Primary Education Board informed the school that the proposal for relaxation of the petitioner’s age could not be granted. In these circumstances, the petitioner’s services were terminated on 28.5.1994. Admittedly, there was no other reason for terminating the services of the petitioner. 3. An appeal was preferred by the petitioner under Section 9 of the M.E.P.S. Act which was registered as Appeal No.102 of 1994 before the School Tribunal, Kolhapur. The respondent institution filed its reply supporting the contention of the petitioner. Respondent No.4 filed its written statement contesting the appeal. 4. It appears that while the petitioner’s appeal was pending, two other teachers as well as the Head Mistress of the school who were appointed, were overage. Proposals were sent by the management of the school for relaxation of the age limit. The Deputy Director relaxed the age limit in respect of the Head Mistress and one teacher. However, the proposal in respect of one of the teachers was rejected. In 3 W.P.No.4784.98 these circumstances, the petitioner requested the School Tribunal to permit her to apply to the Deputy Director for relaxation of the age limit in her case as well, while the appeal was pending. On 12.6.1997, the School Tribunal directed the Deputy Director of Education to consider the fresh proposal which the petitioner would submit for relaxation of the age limit for being employed as an Assistant Teacher. The application was rejected by the Deputy Director of Education on 30.4.1998. The School Tribunal by the impugned order dismissed the appeal on the basis of the report submitted by the Deputy Director. 5. The only issue involved in the present case is that whether while appointing a person as an Assistant Teacher, the age prescribed under Rule 9 of the M.E.P.S. Rules, can be relaxed ? Rule 9 stipulates the conditions which must be fulfilled while appointing both teaching and non-teaching staff. Sub-rule (4) of Rule 9 prescribes the age limit for appointment to any post in a school. This sub-rule reads as follows:- ‘’Sub-Rule (4): The age limit for appointment to any post in a school shall be as follows, namely: (a) for an appointment to be made to any post in a primary school, a candidate shall not be less than 18 years of age and more than 28 years of age, and in the case of candidate belonging to Backward Classes he shall not be more than 33 years of age: 4 W.P.No.4784.98 Provided that, upper age-limit may be relaxed in case of women, ex-servicemen and persons having previous experience with the previous permission of the Deputy Director. (b) for an appointment to be made to any post in any school other than primary school, a candidate shall not be below the age of 18 years.’’ Thus, for appointment to a primary school, a candidate must not be less than 18 years of age or more than 28 years of age. The upper age limit is raised to 33 years in case of backward class candidates. However, the proviso to the Rule makes it clear that such age relaxation of the upper age limit can be granted in the case of women, ex-servicemen and persons with previous experience, provided the Deputy Director grants such permission. 6. In the present case, the Deputy Director has refused to relax the age limit only because the petitioner was over age by eight years. This order has been accepted by the Tribunal and it has therefore held that the termination of service was legal and proper. 7. The learned A.G.P., while supporting the order of the Deputy Director, submits that had the petitioner been overage by one or two years, the age limit could have been relaxed. According to him, eight years is too long a period to be relaxed. 5 W.P.No.4784.98 8. In my opinion, this submission is without merit. There is no upper age limit provided in respect of women, ex- servicemen and for persons having previous experience. Appointments of such persons can always be made subject to the previous permission of the Deputy Director. The Deputy Director cannot refuse permission arbitrarily. The reason given by the Deputy Director for refusing permission is unsustainable. There is no basis in the Act or the Rules for the Deputy Director to conclude that the upper age limit, while appointing persons from these categories can be relaxed only by one or two years. 9. The petitioner had been employed in a Government school from 1983. Therefore, she did possess teaching experience when she was appointed by respondent No.5. Thus, she was qualified to have the age limit relaxed, not only because she was a woman but also because she had previous teaching experience. 10. The impugned order is therefore set aside. 11. Writ petition allowed. 12. Rule made absolute. No order as to costs. ..... 6 W.P.No.4784.98 7 W.P.No.4784.98