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 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- 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 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 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 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. 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. 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 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 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: 9(3) Unless otherwise provided in these rules for every appointment to be made in a school, for a teaching or a 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). 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 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 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