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SUPREME COURT OF INDIA
VIKRAMAJIT SEN, SHIVA KIRTI SINGH, JJ.
Pramod – Appellant
Versus
State of Maharashtra & Ors. – Respondents
Civil Appeal No. 14735 of 2015 (Arising out of SLP(C) 30768 of 2014)
Decided on : 29-12-2015
(b) Service law – Promotion and superannuation – Appellant would have been promoted as Principal on 1st December 2012 in normal due course but for erroneous order of respondent-Director – Supreme Court ordering stay – Now held, appellant ought to have been promoted as Principal – In view of unfair attitude of the management respondents directed to reinstate appellant and pass orders for his promotion – Appellant held entitled to all consequential benefits. (Para 18)
(c) Service law – Superannuation – Teachers of polytechnics to retire at 60 with provision for extension upto 62 years – Similarly Principal retires at 62 years which can be extended upto 65 years – Allowed to continue upto 65 years. (Para 18)
Facts of the case:
Appellant was appointed to the post of Assistant Lecturer in Civil Engineering Department of Dr. Punjabrao Deshmukh Polytechnic, Amravati administered by the Respondent-Shivaji Education Society on 30th July, 1977.
On 1.4.1993 the appellant was appointed as lecturer (Selection Grade).
The appellant also worked as In-charge Head of Department of Civil Engineering from 8.8.2005 to 13.2.2008 to which he was selected and appointed on regular basis also. In the meantime on 5.7.2007 the post of Principal fell vacant due to voluntary retirement of the then Principal.
The appellant claimed that he should be given the charge of that post on the basis of his seniority but another person was appointed as officiating Principal on 9.7.2007. The appellant preferred appeal before the Tribunal which dismissed the appeal as pre-mature.
The appellant preferred writ petition.
During the pendency of the writ petition, the society issued an advertisement inviting applications for direct appointment to the post of Principal. The appellant challenged that advertisement and prayed for a direction to the society to appoint him as Principal by granting promotion. The High Court ultimately disposed of the writ petition by holding in favour of the appellant that he was entitled to all the benefits as officiating Principal from 9.7.2007 but did not enter into the controversy as to who should be selected and appointed as regular Principal. Since that issue was left open, the appellant preferred another writ petition claiming that he was entitled to be promoted to the post of Principal on account of being the senior most lecturer of the polytechnic.
The High Court allowed the Society to approach the Director of Technical Education for permission to issue fresh advertisement and left it open to the appellant to make a representation to the Director for staking his claim of promotion to the post of Principal and to raise the issue that no advertisement was required in view of the MEPS Rules and the particular facts.
The Director-Respondent No.2 rejected the appellant’s prayer by holding that the post of Principal had to be filled up by nomination, i.e., direct recruitment.
The appellant preferred writ petition for quashing of Director’s order and for directions to the concerned authorities to promote the appellant to the post of Principal with all benefits. The writ petition was dismissed.
Finding of the Court:
Appellant is entitled to promotion and all consequential benefits.
Result: Appeal allowed.
JUDGMENT :
Shiva Kirti Singh, J.
1. Leave granted.
2. This appeal raises a question of law as to whether as a senior most lecturer in a private Polytechnic Institution administered by Shri Shiva Ji Education Society-Respondent No.4, the appellant is entitled to be considered for appointment to the post of Principal because it is required to be made only by promotion by virtue of Rule 3 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (for brevity the ‘MEPS Rules’) framed under the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (for brevity the ‘MEPS Act’).
3. Although the seniority, qualification and eligibility of the appellant for appointment to the post of Principal was not under question before the Division Bench of the High Court, before us an attempt was made not only to oppose the appellant’s claim on the basis of impugned judgment under appeal which holds that under the law appointment is not necessarily by promotion alone, it can be also by nomination, i.e., direct recruitment, but also to contest the claim of the appellant on the ground of qualification as well as his age. The issue of age has arisen due to subsequent development. On account of passage of time, when this matter was already pending before this Court, the appellant completed 60 years and was made to superannuate on 31.3.2015. Since there was an order of status quo in appellant’s favour, contempt petition was also filed but instead of pressing the same, Mr. C.U. Singh, learned senior counsel for the appellant has preferred to argue the main matter itself. Before answering the question of law, noticed earlier, the relevant facts may be noted in brief.
4. The appellant was appointed to the post of Assistant Lecturer in Civil Engineering Department of Dr. Punjabrao Deshmukh Polytechnic, Amravati administered by the Respondent-Shivaji Education Society on 30th July, 1977. His service was approved w.e.f. 1.7.1979. The appellant holds qualifications of Bachelor of Engineering (Civil) in first class and Master of Engineering (Structure) also in first class. On 1.4.1993 the appellant was appointed as lecturer (Selection Grade). His seniority is duly shown in the seniority list issued on 1.7.1997 by the office of the Principal of Polytechnic. The appellant worked as Project Officer between 4.2.2000 and 30.7.2007. This post is said to be equivalent to the post of Head of Department. The appellant also worked as In-charge Head of Department of Civil Engineering from 8.8.2005 to 13.2.2008 to which he was selected and appointed on regular basis also. In the meantime on 5.7.2007 the post of Principal fell vacant due to voluntary retirement of the then Principal. The appellant claimed that he should be given the charge of that post on the basis of his seniority but another person was appointed as officiating Principal on 9.7.2007. The appellant challenged such action by preferring a writ petition No.3230 of 2007 in 2007. That writ petition was dismissed on the ground that the appellant had alternative remedy of appeal under Section 9 of the MEPS Act before the School Tribunal. The appellant thereafter, preferred appeal No. 39 of 2007 before the Tribunal which dismissed the appeal as pre-mature on 11.10.2007. Against the said order of School Tribunal, the appellant preferred another writ petition bearing No. 5748 of 2007.
5. During the pendency of the said writ petition, the society issued an advertisement inviting applications for direct appointment to the post of Principal. The appellant challenged that advertisement dated 21.11.2007 and prayed for a direction to the society to appoint him as Principal by granting promotion. The High Court restrained issuance of final appointment order and ultimately disposed of the writ petition on 15.9.2009 by holding in favour of the appellant that he was entitled to all the benefits as officiating Principal from 9.7.2007 but did not enter into the controversy as
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