JUDGMENT - THAKKER C.K., C.J.: Both these petitions have been placed before us pursuant to an order passed by the Division Bench (Coram: R.K. Batta and J.P. Devadhar, JJ.) on April 16, 2002.

2. Dealing with the questions raised in the above petitions as also in other matters, and after hearing the "learned Advocates for the parties at length", the Division Bench felt that prima facie contradictory views had been expressed in some of the decisions as to whether the provisions of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (hereinafter referred to as "the Act"), would or would not apply to Polytechnic institution, which is a 'technical institution'. The Division Bench observed that the question raised before it related Pharmacy institution, which was also a technical institution. There was also a controversy as to whether the Maharashtra Employees of Private Schools (Conditions of Service) Regulation (Amendment) Act, 1990 (Maharashtra Act No. XXXII of 1990), was declaratory in nature so as to have retrospective operation.

3. Whereas in (P.D. Prabhudesai v. Principal, M.T.E. Societies Walchand College of Engineering, Vishrambaug at Sangli)1, Writ Petition No. 2719 of 1984 and (Mohd, Israr Siddiqui v. Board of Technical Education through its Director and others)2, Writ Petition No. 1527 of 1987, it was held that the provisions of the Act would not apply to Polytechnic institutions, in (Abdullah Jameel Ahmed Ansari and others v. M.H. Saboo Siddik Polytechnic and others)3, 1996(1) C.L.R. 85 the Act was held applicable to such institutions.

4. The Division Bench proceeded to observe:

"Both the decisions do not consider the issue threadbare with reference to various provisions of law which have material bearing on the issue in question."

In view of apparently contradictory views held by different Division Benches and after considering relevant aspects, the Division Bench considered it proper and appropriate to refer the questions to a larger Bench.

5. The Division Bench noted that the Apex Court in (Chairman, Prince Shivaji Maratha Boarding House and others v. Sandip Shivaji Rao Ghatage)4, Civil Appeal No. 5359 of 1997 had considered the point followed by a Single Judge of this Court in (Shikshan Mandal, Wardha and another v. Presiding Officer, School Tribunal, Nagpur and others)5, 2001(3) Bom.C.R. (N.B.)558 : 2001(1) Mh.L.J. 606. It was, however, observed that the question was considered in the light of amended provisions of the Act, whereas in the writ petitions, the question raised related to un-amended provisions of the Act. The ruling of the Apex Court, therefore, could not be attracted to the controversy in question. Accordingly, an order was passed directing the Registry to place the matters before the Hon'ble the Chief Justice for taking appropriate steps.

6. The following two questions were referred to by the Division Bench for consideration by the larger Bench;

(i) Whether the employees of Pharmacy institution are governed by the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977?

(ii) Whether the amendment by Maharashtra Act 32 of 1990 introduced on 6-12-1990 to the provisions of the said Act is declaratory in nature so as to have retrospective operation?

To appreciate the controversy raised in the petitions, few relevant facts in the first petition (Writ Petition No. 137 of 1986) may now be noted.

7. According to the petitioner, he was appointed by respondent No. 2 institute as a Lecturer in Pharmacy by an order dated May 5, 1981 with effect from July 1, 1981. The said order is annexed to the petition at Annexure-A. Though the appointment was shown to be temporary for Academic Year 1981-82, it was stated that the petitioner will serve the institution at least for two years which would be the period of probation. Thus, the period of service started from July 1, 1981 and it was to come to an end on June 30, 1983. On April 22, 1983, i.e. before about two

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