2005(4) ALL MR 101
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

F.I. REBELLO AND S.P. KUKDAY, JJ.

Nishad Sadashiv Pawar & Ors.Vs.Dnyanasadhana College (Through Honorary General Secretary) & Ors.

Writ Petition No.3680 of 2004

25th February, 2005

Petitioner Counsel: Mr. MIHIR DESAI
Respondent Counsel: Mr. R. S. APTE,M. S. LAGU,Mrs. S. S. BHENDE

Maharashtra Employees of Private Schools (Conditions of Service) Rules (1981), R.9(7) - Constitution of India, Art.162 - Interpretation of Statutes - Recruitment to posts governed by M.E.P.S. Act and Rules - G.R.s as issued by Government from time to time in exercise of its administrative powers under Art.162 of Constitution of India - G.R.s would be inapplicable to appointments in schools and junior colleges.

G.R.s are issued pursuant to the executive powers of the State as provided by Article 162 of the Constitution of India. The rules are framed pursuant to delegation of powers by the Legislature on the delegate. The rule making power is subject to Legislative control. Rules are subordinate legislation whereas administrative instructions are not. Administrative instructions cannot contravene the rules. See Nanjundappa R. N. Vs. Themmiiah T., (1972)1 SCC 409. The rules therefore, will prevail over the G.R. The authorities under the M.E.P.S. Act to follow strictly Rule 9(7) of M.E.P.S. Rules in so far as recruitment to the posts governed by the M.E.P.S. Act and rules. The G.Rs. as issued by the Government from time to time in the exercise of its administrative powers under Article 162 of the Constitution of India would be inapplicable to appointments in schools and junior colleges. (1972)1 SCC 409 - Followed. [Para 3]

Cases Cited:
Nanjundappa R. N. Vs. Themmiiah T., (1972)1 SCC 409 [Para 3]


JUDGMENT

F. I. REBELLO, J.:- Rule. Heard forthwith.

It is not necessary to set out the facts in detail in view of the order to be passed. It appears from the record that the petitioner Nos.1 and 2 were appointed as Assistant Teachers. They belong to non B.C. category. Petitioner Nos.3, 4 and 5 have been appointed as Shikshan Sevaks. The Petitioner No.3 belongs to O.B.C. The Petitioner Nos.4 and 5 to N.B.C. Their appointments were approved. Subsequently the approval was cancelled. They approached this court and the matter was remanded back for consideration. On remand, the Deputy Director of Education for the reasons set out in his order has rejected the case of the Petitioners for being treated as regularly appointed Assistant Teachers/Shikshan Sevaks.

2. The Petitioners in Ground (c) have raised the following contentions :

"The Petitioners submit that the college has a total of 39 teachers which includes the Petitioners. 16 of these teachers including one of the Petitioners belong to the reserved category. Reservation quota required to be maintained is 34%. Therefore, 13 are required to belong to reserved category out of the 39 teachers. At present however, there are 16 teachers from the reserved category and therefore, the quota is complete."

Another ground raised is ground (h) as under :

"The Deputy Director ought to have taken serious note of the fact that in respect of a colleague of the Petitioners namely one Mrs. A. A. Tipnis who was appointed in the same year as some of the Petitioners, has been granted approval despite her belonging to open category."

Though on behalf of the State Respondent Mr. P. Mali, Education Officer (Secondary) Zilla Parishad, Thane has filed affidavit, this aspect of the matter has not been dealt with either by him or Deputy Director of Education, Nashik Division, Nashik.

3. It appears that the authority has proceeded on the footing that what has to be applied is Government G.R. in the matter of reservations. The G.R. is nothing but administrative instructions which will be applicable, if there is no primary or secondary legislation in force. In the instant case, under the M.E.P.S. Act, rules have been framed. Rule 9(7) provides that the Management shall reserve 34% of the total number of posts of the teaching as well as non-teaching staff for the members of S.C., S.T. and Backward Communities. In other words it is clear that rules in force being subordinate legislation are applicable. The issue is whether the G.R.s will prevail over the rules. G.R.s are issued pursuant to the executive powers of the State as provided by Article 162 of the Constitution of India. The rules are framed pursuant to delegation of powers by the Legislature on the delegate. The rule making power is subject to Legislative control. Rules are subordinate legislation whereas administrative instructions are not. Administrative instructions cannot contravene the rules. See Nanjundappa R. N. Vs. Themmiiah T., (1972)1 SCC 409. The rules therefore, will prevail over the G.R.

4. The authorities under the M.E.P.S. Act to follow strictly Rule 9(7) of M.E.P.S. Rules in so far as recruitment to the posts governed by the M.E.P.S. Act and rules. The G.Rs. as issued by the Government from time to time in the exercise of its administrative powers under Article 162 of the Constitution of India would be inapplicable to appointments in schools and junior colleges.

Consequently if the contentions raised in ground (c) are considered, the Petitioners are right and the Petitioners can be posted against the posts presently held by them. Considering that and as the issue has not been answered, petition will have to be partly allowed.

5. Rule made absolute in terms of Prayer Clause (a). The matter is remanded back to the Respondent No.3. Respondent No.3 after re-hearing the petitioners and the Management as also the department to pass fresh orders according to law, not later than four months from today. The order passed shall not be given effect if adverse to the Petitioners for the period of eight weeks from the date of receipt of communication. Till such time the services of the Petitioners will not be discontinued. Rule made absolute accordingly. No order as to costs.

Petition allowed.