2016(6) ALL MR 639
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)
B. P. DHARMADHIKARI AND P. N. DESHMUKH, JJ.
Ashok Namaji Sahare Vs. Education Officer (Secondary), Zilla Parishad & Ors.
Writ Petition No.10 of 2005
26th April, 2016.
Petitioner Counsel: Shri B.H. SHAMBHARKAR
Respondent Counsel: Smt. M.N. HIWASE
Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act (1977), S.16 - Maharashtra Employees of Private Schools (Conditions of Service) Rules (1981), Sch.F Part III - Appointment on post of Junior Clerk - Direct recruitment made to the post without considering promotion of petitioner/peon to said post - Held, Sch. F of MEPS Rules does not provide for promotion as a matter of right - It only prescribes a preference to lower grade staff - And preference implies 'priority' when two equal candidates are available - Petitioner's claim not acceptable - Yet, his candidature directed to be considered in view of fact that appointed person has not reported on duty and post has fallen vacant. (Paras 7, 8)
Ramesh Shivram Khairnar Vs. State of Maharashtra and Ors., 2003 (4) Mh.L.J. 470 [Para 2,5]
Tanaji Madhukar Barbade Vs. State of Maharashtra & Ors., 2011(1) ALL MR 912=2010 (6) Mh.L.J. 901 [Para 6]
2. Shri Shambharkar, learned counsel submits that the petitioner claims promotion as Junior Clerk in view of provisions of Part 3 of Schedule 'F' of Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981, (hereinafter referred to as MEPS Rules, 1981). He contends that one post of Junior Clerk became vacant and as the petitioner was seniormost candidate, who had improved his educational qualification and was eligible for it, he needed to be given that post. He points out that this Court on 04/01/2005 directed the parties to maintain status quo. Though respondent No.5 was selected and appointed as direct recruit on that post, respondent No. 5 did not report for duty and post is lying vacant since last about 1011 years. He points out that the petitioner has hardly one year of service left before his superannuation. He is relying upon Division Bench judgment in the case of Ramesh Shivram Khairnar vs. State of Maharashtra and others (2003 (4) Mh.L.J. 470), particularly paragraphs 11 and 12.
3. Smt. Hiwase, learned Assistant Government Pleader for respondent No.1, is opposing the petition. She submits that as the Management had two Schools and two posts of Junior Clerk, the roster applies and as per that roster, one post of Junior Clerk is reserved for backward class, i.e. Scheduled Tribe. The petitioner does not belong to Scheduled Tribe and hence, post was rightly advertised. She further states that if respondent No. 5 has abandoned employment, Management cannot keep the post vacant for such a long time and somebody else must be working. She, therefore, prays for dismissal of the petition. In the alternative, she has also sought adjournment to obtain instructions about alleged abandonment of employment by respondent No. 5.
4. Respondent No. 1 has filed replyaffidavit wherein it has been pointed out that respondent No. 2 Society is running two High Schools, which receive 100% grantinaid from State Government. One post of Senior Clerk is sanctioned in each School. There are two posts of Junior Clerk and three posts of Senior Clerk. One Y.T. Jambhulkar, Senior Clerk then in employment in Nagsen Vidyalaya retired on 31/05/2002. Shri S.S. Bipate, Junior Clerk was then promoted as Senior Clerk vide Resolution dated 20/6/2004 by the Management. As such, only one post of Junior Clerk became available. The other post was occupied by open category candidate and hence, the vacant post needed to be filled in by a reserved category candidate, i.e. Scheduled Tribe candidate. As such, respondent No. 1 permitted the Management to issue advertisement.
5. Perusal of Schedule 'F' - Part 3 of the MEPS Rules, 1981, shows that insofar as post of Peon is concerned, it is classified as Lower Grade Staff. It is specifically stipulated that if any of the Lower Grade Staff improves his qualification and becomes eligible for the post of Clerk, such employee should be given preference while filling up said post according to his place in seniority. This provision has been looked into by the Division Bench in its judgment in the case of Ramesh Shivram Khairnar vs. State of Maharashtra & Ors., (supra). The Division Bench has found that the petitioner before it is required to be considered first and if he is found fit, he should be appointed as Junior Clerk. The act of the management in publishing advertisement before considering his eligibility has been held to be unsustainable.
6. Smt. Hiwase, learned AGP, however, has invited our attention to the judgment delivered by Full Bench of this Court in the case of Tanaji Madhukar Barbade vs. State of Maharashtra & Ors., reported at 2010 (6) Mh. L.J. 901 : [2011(1) ALL MR 912]. Full Bench has considered the above mentioned Division Bench view as also a Division Bench which had taken a view to the contrary and concluded that the provisions contained in Schedule 'F' of the MEPS Rules, do not provide promotion to the post of Junior Clerk and merely prescribe a preference to be given to the lower grade staff in making appointment to the post of Junior Clerk. The relevant legal provisions in Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977, and MEPS Rules, 1981, are looked into by Full Bench.
7. In this situation, it is apparent that the claim of the present petitioner that he should be promoted as Junior Clerk cannot be accepted. The petitioner deserves only preference and preference would employ priority when two equal persons become available. The facts on record show that the post of Junior Clerk may not have been filled in and is vacant even today.
8. In this situation, we direct the respondents to consider the entitlement of the petitioner to preference as per Part 3 of Schedule 'F' of Rules 1981, as and when they decide to fill in the vacancy in the cadre of Junior Clerk.