1 W.P.No.4560/11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.4560 OF 2011. 1. Kishor S/o Badrinath Gujrathi, Age 42 years, Occ.Service. 2. Vishwasrao S/o Bhaskarrao Patil, Age 42 years, Occ.Service. 3. Anand S/o Kashinath Saindane, Age 40 years, Occ.Service. 4. Gautam S/o Vinayak Patil, Age 44 years, Occ.Service, 5. Sarjerao S/o Chindhaji Mhaske, Age 36 years, Occ.Service. 6. Baburao S/o Jamsingh Pawar, Age 34 years, Occ.Service. 7. Pravinkumar S/o Subhash Shirsat, Age 37 years, Occ. Service. 8. Ratilal S/o Sahebrao Patil, Age 38 years, Occ.Service. All R/o Navalnagar, Tq. & Dist. Dhule. ... Petitioners. Versus 1. The State of Maharashtra, through Principal Secretary, 2 W.P.No.4560/11 Education Department, Mantralaya, Mumbai-32. 2. The Deputy Director, Vocational Education and Training Nashik Division, Nashik. 3. The District Vocational Education and Training Officer, District Vocational Education and Training Office, Dhule. 4. The Gram Vikas Mandal, Nawal-Nagar, Tal & Dist. Dhule, through it's President/ Secretary. 5. The Nutan Higher Education School, Nawal Nagar, Tal & Dist. Dhule. 6. The Director, Vocational Education and Training, (Maharashtra State). ... Respondents. ... Mr.M.S.Deshmukh, advocate holding for Mr.B.S.Deshmukh, advocate for the petitioners. Mr.K.J.Ghute Patil, Asstt. Govt. Pleader for Respondent Nos.1 to 3. Mr.P.R. Patil, advocate for the Respondent Nos.4 and 5. ... CORAM : S.V.GANGAPURWALA,J. Date : 08.08.2011. 3 W.P.No.4560/11 ORAL JUDGMENT : 1. Heard. 2. Rule. Rule returnable forthwith. With the consent of the parties, the petition is taken up for final hearing. 3. The petitioners are the employees of the Respondent Nos.4 and 5 School. The said School is an aided School. The Respondent No.5 had closed the Vocational Educational course. Respondent No.2 Deputy Director of Education, passed an order stating that as the course has been closed, the members of the teaching and non- teaching staff who are surplus, against them action as per Rule 26(1) of the MEPS Rules be taken. The said order was passed on 18.10.2010. Thereafter on 16.3.2011, the Respondent No.2 without affording an opportunity of hearing to the employees and the Management passed another order directing the Management to take action U/s 25A (1) of the MEPS Rules against those employees of Vocational course which is closed. Pursuant 4 W.P.No.4560/11 thereto, the Institution passed an order on 28.3.2011, stating that the services of the petitioners would come to an end with effect from 1.7.2011. The petitioners have assailed the order dated 16.3.2011, passed by the Deputy Director and the consequential order passed by the Respondent institution dated 28.3.2011. 4. Mr.M.S.Deshmukh, learned counsel for the petitioners submits that the course has been closed. In view of the same, the procedure as contemplated under Rule 26 of the MEPS Rules is required to be followed. Rule 25A can not be brought into effect. It is not that the post has been abolished but the course has been closed. In such circumstances, the orders impugned are erroneous, in fact, earlier the Respondent NO.2 had properly relied on Rule 26(1) while passing the order dated 18.10.2010. 5. Mr.Patil, learned counsel for the institution does not dispute the position that the course itself is closed. He submits that even the Management was not given an opportunity 5 W.P.No.4560/11 before the Respondent No.2 passed the order impugned. The Respondent institution can not be taxed as the course itself is closed. They can not be expected to make the payment to the petitioners. The Respondent institution also supports the case of the petitioners that they can be treated as surplus. 6. The Respondent No.2 has filed affidavit contending that it is not due to some act of the Government or change in curriculum, the post was abolished. The question of absorption does not arise as it is not the fault of the Government i.e. Respondent No.2. The services of the petitioners is not terminated due to derecognition of the School by the Government. As such Rule 26(1) would not apply. The added Respondent NO.6 has filed affidavit giving details of the post vacant in the State and contends that the issue in the present case would be governed by Rule 25(C)(1) of MEPS Rules. 7. It is not disputed that the course of Vocational Education run by the Respondent 6 W.P.No.4560/11 Institution has been closed. Pursuant thereto, the Respondent No.2 had proceeded under Rule 26 of the MEPS Rules. Abruptly, the Respondent No.2 thereafter decided to proceed under Rule 25A(1) of the MEPS Rules. There is a marked distinction between Rule 25 and Rule 26 of the MEPS Rules. Rule 25A would come into operation, if it is a case of abolition of post, whereas Rule 26 would come into operation in respect of the eventualities enumerated in sub-rules (i) to (v) of Rule 26(1) of the MEPS rules. One of the eventualities contemplated therein is "closure of course of studies". 8. In the present case the course is closed. The petitioners would be governed by Rule 26(1)(iv) and 26(2)(iii) of the MEPS Rules. The Respondents are required to resort to the said Rules. The Respondent No.6 on affidavit has given the details about the number of vacancies of the various posts in the State. 9. In light of the above, the impugned orders are quashed and set aside. The 7 W.P.No.4560/11 Respondents shall declare the petitioners as surplus and further steps be taken in accordance with Rule 26 of the MEPS Rules, considering the petitioners as surplus. 10. Rule is made absolute in terms of prayer clause (B) and the prayer clause (C) made in alternate. No costs. (S.V.GANGAPURWALA,J.) asp/office/wp456011