JUDGMENT :

SANDEEP V. MARNE, J.

1. Heard. Rule. It is made returnable forthwith. Learned AGP Mr. K.N. Lokhande waives service for Respondent Nos.1 & 2, learned advocate Mr. S.S. Kazi and learned advocate Mr. Tarek Mobin H. Shaikh waive service for Respondent No. 3, and learned advocate Mr. P.D. Bachate h/f. Mr. H.P. Randhir waives service for respondent no. 4. At the joint request of learned advocates for the petitioner and the learned AGPs, the matter is heard finally at the admission stage.

2. The issue involved in the present case is, whether it is mandatory to follow rule of seniority while appointing a Head Master in a school managed by a minority educational institution.

3. The issue arises on account of competing claims of the petitioner and respondent no. 4 to the post of Head Master in the school managed by respondent no. 3. It is common ground that the school managed by respondent no. 3 is a minority educational institution. It is also undisputed that the petitioner is senior to respondent no. 4 in the seniority list. The petitioner is aggrieved by the grant of approval to the appointment of respondent no. 4 on the post of Head Master ignoring his claim.

4. The facts of the case, in brief, are as under:

In the seniority list of Anglo Urdu High School Bhadgaon/Pachora managed by respondent no. 3, for the year 2017-18 the name of the petitioner figured at Serial no. 4, whereas the name of respondent no. 4 figured at serial no. 6. The petitioner claimed that a resolution was passed on 17.05.2020 by respondent no. 3 for his appointment as Head Master and accordingly an order was issued on 18.05.2020 appointing him as Head Master on permanent basis. He claims that a proposal was sent by the management to the Education Officer on 19.05.2020 and an approval was granted by order dated 17.07.2020 for his appointment as in-charge Principal for a period upto 31-08-2020.

5. While the petitioner was expecting approval for regular appointment as permanent Head Master, order came to be issued on 03.06.2020 by Education Officer granting approval for regular appointment of respondent no. 6 as Head Master with effect from 01.06.2020. This order dated 03.06.2020 has been challenged in the present petition.

6. It appears that one Mr. Amanulla Khan Ahmed Khan claiming to be secretary of respondent no. 3 Management protested against the approval order dated 03.06.2020 by submitting complaint before the Education Officer on 29.07.2020. Acting on the said complaint, the Education Officer initially stayed the decision dated 03.06.2020 by order dated 30.07.2020, but later on vacated the stay by decision dated 21.11.2021 and held the decision dated 03.06.2020 to be valid. Therefore, the petitioner is also aggrieved by the decision dated 21.01.2021.

7. The claim of the petitioner is resisted by respondent nos.3 and 4 by filing their respective replies inter-alia contending that respondent no. 3 is a minority educational institution and therefore, it is exempted from application of the provisions of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (hereinafter referred to as the ‘Act of 1977’). It is, therefore, contended that the rule of seniority need not be followed by respondent no. 3 while appointing a Head Master.

8. Appearing for the petitioner, Mr. Brahme contended that the privilege conferred upon a minority educational institution under the provisions of Section 3 of the Act of 1977 is not absolute. He submitted that the exception provided for by Section 3(2) applies only to ‘recruitment’ and not to ‘promotion’. Relying on Rule 3(1) of MEPS Rules, 1981 (hereinafter referred to as ‘the Rules of 1981’) he submitted that what is effected by respondent nos.2 and 3 is ‘promotion’ and not a ‘recruitment’. He further contended that the requisite condition of notification of names by the management to the Director or Deputy Director as provided for under Section 3(2) of Act of 1977 has not been followed and there