JUDGMENT - THAKKER C.K., C.J.:---The matter was not on board but is taken on board at the request of learned Counsel for the petitioner in view of the fact that the interim relief granted earlier was to expire today.

2. With consent of parties, we have taken the matter for final hearing and have heard the parties. Rule. Mr. C.R. Sonawane, Assistant Government Pleader, waives service of notice of rule for respondent Nos. 1 and 2. Mr. A.A. Garge learned Advocate, waives service of notice of rule on behalf of respondent No. 3.

3. A short question which arises for our consideration in the present petition is as to legality or otherwise of the action of respondent No. 3 Rail Child Sanstha, Kalyan, District, Thane in issuing an advertisement for filing of a post of Junior Clerk without considering the case of the petitioner for the said post.

4. The case of the petitioner which has not been disputed by the respondent-management is that he was appointed as a Peon by an order dated 12th June, 1990 and he resumed duty on 16th June, 1990. In 1994, the petitioner cleared secondary school certificate examination and thereby became eligible for the appointment to the post of Junior Clerk. On 1st May, 2002, one Mrs. Prabhudesai who was working as a Senior Clerk, took voluntary retirement. In view of the said development, one Mrs. Puranik who has serving as Junior Clerk was promoted as Senior Clerk resulting in vacancy of a Junior Clerk. Since the petitioner by that time, cleared secondary school certificate examination, he applied on February 13, 2003 (Exhibit B) to appoint him to the post of Junior Clerk. There was no response by the Institution. Even thereafter applications were made by the petitioner reiterating his request but nothing was done by the management.

5. Looking to two communications dated 20th February, 2003 and 3rd May, 2003, Exhibit C and D respectively, it is clear that even the Education Officer (Secondary), Zilla Parishad, Thane, informed the Head Master of respondent No. 3 institution that since applications were made by some employees for the appointment to the post of Junior Clerk who were having necessary educational qualifications, an appropriate action was required to be taken in accordance with Rules for making appointment as Junior Clerk. It was also stated that the Office of Education Officer should be informed as to the steps taken by the management. It was also stated that if compliance report will not be submitted, penal action will be taken against the Institution.

6. The learned Counsel for the petitioner stated that even the letters of Education Officer did not yield any fruitful result and probably not replied by the management. On the other hand, an advertisement was issued in "Janateche Janmat" on 9th May, 2003, to fill up the post of Junior Clerk in respondent No. 3 Institution. The petitioner, therefore, has approached this Court by filing the present writ petition.

7. The learned Counsel for the petitioner drew our attention to Rule 12 of Maharashtra Employees of Private Schools Rules, 1981 which provides for maintaining seniority list of the employees working in Institution. Schedule F to which a reference was made in Rule 12, lays down guidelines for fixation of seniority of teaching and non-teaching staff. Item No. 3 is relevant which provides fixation of seniority of non-teaching staff. The relevant entry relating to lower grade staff, reads as under:

"3. Lower Grade Staff---A common seniority list of Laboratory Attendant, Naik, Oilmen, Machine Attendant, Peon, Watchman, Chowkidar, Sweeper, 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 improve 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."

8. The learned Counsel for the petitioner contended that from the above extract,

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