2010 Supreme(Bom) 1541

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
D.K. DESHMUKH, ANOOP V. MOHTA & RANJIT MORE, JJJ
Tanaji Madhukar Barbade - Petitioner
v/s.
State of Maharashtra & ors. - Respondents
WRIT PETITION NO. 1688 OF 2010
Decided on : 26-10-2010

Headnote:Maharashtra Educational Institution (Management) Act, 1976 - Sections 5, 9 and 16 - MEPS Rules, 1981, Schedule F - Reference case - Questions referred, whether Government Resolutions dated, 15.4.1991 valid in view of provisions of MEPS Act and Rules? and whether Schedule ’F’ to Rules provides for promotion or provides merely a preference to be given in appointment? - Dispute in respect of peon being promoted to post of Junior Clerk in a Junior Private College - Respondent-2 refused to approve it, stating that it can be done only by direct recruitment - Held - Government Resolution not applicable to staff of private schools - Private schools governed by MEPS Act and Rules - Schedule-F to Rules not provides for promotion but only provides that preference be given to lower grade staffs in giving promotion to post of Junior Clerk and Laboratory assistant. - 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 Court’s 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 be given in the service of private school. In Court’s 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 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.

       It is clear from the observations of the Division Bench that according to the Division Bench though the Schedule "F" does not use the term "promotion" the scheme of the Act and the Rules shows that provision provides for promotion to the post of junior clerk. So far as judgment in the case of Ramesh Khairnar, 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 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.

       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 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 section, 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.

       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 Section 5 reads as under :

       (Provided that unless such vacancy is to he 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 absorption in other schools; and in the event of such person being available, the Management shall appoint that person in such vacancy.)

       

       In Court’s 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.