PRAMOD Vs. STATE OF MAHARASHTRA AND ORS
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 14735 of 2015, Judgment Date: Dec 29, 2015
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 14735 OF 2015
(Arising out of SLP(C) 30768 of 2014)
Pramod …..Appellant
Versus
State of Maharashtra & Ors. ....Respondents
J U D G M E N T
SHIVA KIRTI SINGH, J.
Leave granted.
This appeal raises a question of law as to whether as a senior most
lecturer in a private Polytechnic Institution administered by Shri Shiva Ji
Education Society-Respondent No.4, the appellant is entitled to be
considered for appointment to the post of Principal because it is required
to be made only by promotion by virtue of Rule 3 of the Maharashtra
Employees of Private Schools (Conditions of Service) Rules, 1981 (for
brevity the ‘MEPS Rules’) framed under the Maharashtra Employees of Private
Schools (Conditions of Service) Regulation Act, 1977 (for brevity the ‘MEPS
Act’).
Although the seniority, qualification and eligibility of the appellant for
appointment to the post of Principal was not under question before the
Division Bench of the High Court, before us an attempt was made not only to
oppose the appellant’s claim on the basis of impugned judgment under appeal
which holds that under the law appointment is not necessarily by promotion
alone, it can be also by nomination, i.e., direct recruitment, but also to
contest the claim of the appellant on the ground of qualification as well
as his age. The issue of age has arisen due to subsequent development. On
account of passage of time, when this matter was already pending before
this Court, the appellant completed 60 years and was made to superannuate
on 31.3.2015. Since there was an order of status quo in appellant’s
favour, contempt petition was also filed but instead of pressing the same,
Mr. C.U. Singh, learned senior counsel for the appellant has preferred to
argue the main matter itself. Before answering the question of law,
noticed earlier, the relevant facts may be noted in brief.
The appellant was appointed to the post of Assistant Lecturer in Civil
Engineering Department of Dr. Punjabrao Deshmukh Polytechnic, Amravati
administered by the Respondent- Shivaji Education Society on 30th July,
1977. His service was approved w.e.f. 1.7.1979. The appellant holds
qualifications of Bachelor of Engineering (Civil) in first class and Master
of Engineering (Structure) also in first class. On 1.4.1993 the appellant
was appointed as lecturer (Selection Grade). His seniority is duly shown
in the seniority list issued on 1.7.1997 by the office of the Principal of
Polytechnic. The appellant worked as Project Officer between 4.2.2000 and
30.7.2007. This post is said to be equivalent to the post of Head of
Department. The appellant also worked as In-charge Head of Department of
Civil Engineering from 8.8.2005 to 13.2.2008 to which he was selected and
appointed on regular basis also. In the meantime on 5.7.2007 the post of
Principal fell vacant due to voluntary retirement of the then Principal.
The appellant claimed that he should be given the charge of that post on
the basis of his seniority but another person was appointed as officiating
Principal on 9.7.2007. The appellant challenged such action by preferring
a writ petition No.3230 of 2007 in 2007. That writ petition was dismissed
on the ground that the appellant had alternative remedy of appeal under
Section 9 of the MEPS Act before the School Tribunal. The appellant
thereafter, preferred appeal No. 39 of 2007 before the Tribunal which
dismissed the appeal as pre-mature on 11.10.2007. Against the said order
of School Tribunal, the appellant preferred another writ petition bearing
No. 5748 of 2007.
During the pendency of the said writ petition, the society issued an
advertisement inviting applications for direct appointment to the post of
Principal. The appellant challenged that advertisement dated 21.11.2007
and prayed for a direction to the society to appoint him as Principal by
granting promotion. The High Court restrained issuance of final
appointment order and ultimately disposed of the writ petition on 15.9.2009
by holding in favour of the appellant that he was entitled to all the
benefits as officiating Principal from 9.7.2007 but did not enter into the
controversy as to who should be selected and appointed as regular
Principal. Since that issue was left open, the appellant preferred another
writ petition No. 4235 of 2009 claiming that he was entitled to be promoted
to the post of Principal under Rule 3(3) of the MEPS Rules on account of
being the senior most lecturer of the polytechnic.
On 5.3.2010, the All India Council for Technical Education (for brevity
‘AICTE’) issued a notification framing the All India Council for Technical
Education [Pay-scales, Service Conditions, and Qualifications of the
Teachers and other Academic Staffs in Technical Institutions (Diploma)]
Regulations 2010. The writ petition was disposed of on 29.7.2010. The
High Court allowed the Society to approach the Director of Technical
Education for permission to issue fresh advertisement and left it open to
the appellant to make a representation to the Director for staking his
claim of promotion to the post of Principal and to raise the issue that no
advertisement was required in view of the MEPS Rules and the particular
facts. The Director was given six weeks time to consider the application
of the Society and also the representation of the appellant and in the
meanwhile the appellant was to continue as In-charge Principal. For one
reason or the other the matter remained with the respondent-Director and in
the meantime on 10.9.2012 the State of Maharashtra through the Department
of Higher and Technical Education notified Rules entitled- The Principal,
Head of Department, Lecturer and Workshop Superintendent in Government
Polytechnic and Equivalent Institutes (Recruitment) Rules 2012 (hereinafter
referred to as ‘the Government Rules 2012).
The Director-Respondent No.2 by his order dated 17.10.2012 placed reliance
on the Government Rules 2012 and rejected the appellant’s prayer by holding
that the post of Principal had to be filled up by nomination, i.e., direct
recruitment. The appellant preferred writ petition No. 652 of 2013 for
quashing of Director’s order and for directions to the concerned
authorities to promote the appellant to the post of Principal with all
benefits. The writ petition was dismissed on 10.10.2014 giving rise to the
Special Leave Petition and the present appeal. While issuing notice on
21.11.2014 in the special leave petition, this Court directed for
maintenance of status quo as regards the service of the petitioner-
appellant.
The Division Bench of the High Court has held in favour of the appellant
that as per an earlier Full Bench judgment, the provisions of MEPS Act and
MEPS Rules are applicable to employees working in polytechnic colleges
which being institutions imparting technical education stand covered by the
term ‘School’ as defined under Section 2(24) of the MEPS Act. In fact, in
that view of the matter, in the earlier round the appellant was relegated
to avail statutory remedy of appeal before the School Tribunal. The
Division Bench noticed the qualifications prescribed for the post of
Principal by the AICTE which the appellant fulfils. However, the Division
Bench accepted the stand of the respondent-State that in view of
recommendations of AICTE made through letter dated 20.12.1999, the State
Government had passed a resolution for accepting those recommendations on
27.2.2003 and therefore, the provisions of MEPS Rules providing for
promotion of the senior most teacher to the post of Principal will not hold
the field and that as per recommendations of AICTE, recruitment of 50%
cadre posts is required to be by open selection through advertisement at
national level and only 50% by promotion on the basis of seniority-cum-
merit. On this plea the High Court decided against the appellant and held
that it was unable to hold that post of Principal in a private polytechnic
has to be filled up necessarily by promotion though so provided in Rule
3(3) of the MEPS Rules. This relevant Rule is extracted in the judgment of
the High Court and reads as follows :-
“3. Qualifications and appointment of Head.
A person to be appointed as the Head (a) (i) of a primary school having an
enrollment of students above 200 or having Standards I to VII shall be the
senior most trained teacher who has put in not less than five years’
service: and
Of any other primary school shall be the Senior-most trained teacher in the
School;
of a secondary school including night school or a Junior College of
Education shall be a graduate possessing Bachelor’s degree in teaching or
education of a statutory University or any other qualification recognized
by Government as equivalent thereto and possessing not less than five
years’, total fulltime teaching experience after graduation in a secondary
school or a Junior College of Education out of which at least two years’
experience shall be after acquiring Bachelor’s degree in teaching or
education:
Provided that, in the case of a person to be appointed as the Head of a
night secondary school –
he shall not be the one who is holding the post of Head or Assistant Head
of a day school, and
the experience laid down in clause (b) of sub-rule(1) may be as a part time
teacher.
(2) x x x x x
(3) The Management of a school including a night school shall fill up
the post of the Head by appointing the senior-most member of the teaching
staff (in accordance with the guidelines laid down in Schedule “F” from
amongst those employed in a school (if it is the only school run by the
Management) or schools [if there are more than one school (excluding night
school) conducted by it] who fulfills the conditions laid down in sub-
rule(1) and who has a satisfactory record of service.”
On behalf of the appellant, it was pointed out that the judgment under
appeal has correctly held that the Government Rules 2012 apply only to
Government polytechnic or equivalent institute, i.e., the institute having
same status as that of Government polytechnic and not a private
polytechnic, as in the case at hand. It was further submitted that this
view of the High Court knocks out the basis of the Director’s order against
the appellant which was impugned before the High Court and there was no
necessity for the High Court to examine any other issue.
An emphatic stand was taken on behalf of the appellant that except in the
Government Rules, 2012, there is no provision made by the State Government
or by the AICTE in respect of mode of filling up of the post of Principal
and none at all for a private polytechnic. Hence, according to the learned
senior counsel for the appellant, Rule 3(3) of the MEPS Rules being
statutory, cannot be ignored by the respondent authorities and those alone
apply to the claim of the appellant which deserves to be allowed but was
wrongly disallowed by the Director and the High Court.
On the other hand, learned counsel for the Society took the stand that the
High Court had erred in holding that the Government Rules 2012 cannot apply
to the polytechnic at hand on the ground that it is a private aided
institute. According to him, since, the society ultimately succeeded
before the High Court, it was not obliged to come in appeal against the
adverse finding noticed above and is entitled to challenge that finding to
further support the final conclusions of the High Court. In such a
situation we granted further time to the State Government of Maharashtra to
file an affidavit on the issue as to whether the Government Rules 2012
apply to the respondent polytechnic which is a private aided institute.
Such affidavit dated 8.12.2015 is now on record and it is the firm stand of
the State Government that the Government Rules 2012 are not applicable to
the respondent polytechnic as it is only a private aided institute.
We have ourselves also examined the said rules, 2012 and we find ourselves
in agreement with the views expressed by the High Court that these Rules
will not apply to private aided polytechnic such as the respondent’s
polytechnic. As a result there is no other Statutory Act or Rule to take
away the force of Rule 3(3) of the MEPS Rules which requires the management
of the polytechnic, which is covered by the definition of the ‘School’
under the MEPS Act, to fill up the post of the Head of Institution, i.e.,
the Principal by appointing the senior most member of the teaching staff in
accordance with the guidelines laid down in Schedule ‘F’ from amongst the
teachers employed in the school. It is not in dispute that respondent-
polytechnic is the only polytechnic run by the Management. Schedule ‘F’ to
the Rules prescribes only the guidelines for fixation of seniority in
different schools. In the present case, there is no dispute that the
appellant is senior most teacher in the polytechnic. Sub-rule (5) of Rule 3
permits direct recruitment only after obtaining prior permission of the
competent Government Officer in a situation where no suitable teacher
possessing the prescribed qualifications is available for promotion as
Head.
In our considered view the High Court has erred in law in holding that the
mode of appointment by promotion under Rule 3(3) of the MEPS Rules cannot
be applied to a polytechnic although it is a school because there is no
separate qualification prescribed for a polytechnic in sub-rule(1) of Rule
3. The said sub-rule contains the qualifications and appointment of Head
not only for primary schools but also for secondary school including night
school or a junior college of education. Appellant fulfils those
qualifications. Further it is nobody’s case that the appellant does not
fulfill the educational qualification for the post of Principal of a
polytechnic even as prescribed by the AICTE. In such a situation the mode
of appointment prescribed under the statutory Rule 3(3) could not have been
ignored and since the appellant was admittedly the senior most member of
the teaching staff in the polytechnic at the relevant time, as also held in
the earlier judgment of the High Court when he was declared entitled to all
the benefits of In-charge Principal of the polytechnic since 9.7.2007, the
appellant could not have been denied appointment by promotion to the vacant
post of Principal. The respondent-Director erred in rejecting the
appellant’s claim and in not issuing directions for his appointment by
promotion while passing order on the representation of the appellant and
rejecting the same on 17.10.2012. The writ petition preferred by the
appellant against that order has also been wrongly dismissed by the High
Court by the order under appeal dated 10.10.2014.
In view of aforesaid findings, it is to be worked out as to what relief the
appellant deserves to be granted now when the respondent-society has
proceeded to superannuate him w.e.f. 31.3.2015 without seeking permission
of this Court and acting contrary to the status-quo order passed on
21.11.2014.
On the issue of age of superannuation, there was no occasion for the High
Court to consider the relevant Rules or Notifications and before us there
is a serious controversy as to whether the age of superannuation on the
post of a teacher other than Principal ought to be 60, 62 or 65 years.
According to respondent, the State Government had issued a Notification
through the Higher and Technical Education Department dated 5th March, 2010
whereby the age of superannuation for non-government polytechnic
institutions has been increased from 58 years to 60 years and it can be
extended upto 62 years only after obtaining prior approval of the State
Government. Similarly, for the post of Principal the age of
superannuation has been increased to 65 years but with the rider that State
Government should grant approval for any further extension beyond 62 years.
On the other hand, the stand of the appellant is that he has been
arbitrarily ignored and not considered for extension because of pending
litigation against the Management of the respondent-society since several
years. It is further case of the appellant that: State Government has
never differed with the recommendation of the AICTE on the issue of age of
superannuation; in exercise of its statutory powers under sub-section (1)
of Section 23 read with Section 10(i) and (v), of the All India Council for
Technical Education Act, 1987, the AICTE has issued the Regulations dated
5th March, 2010; and the Regulations, inter alia, provide for age of
superannuation and since they apply to technical institutions conducting
technical education and such other courses/programmes and areas as notified
by the Council from time to time, the age of superannuation for teachers of
the Polytechnic stand enhanced to 65 years with sole exception of Librarian
whose age of superannuation continues to be 62 years.
From the materials and rival contentions noted above, it is evident that
even as a teacher the appellant’s age of superannuation could have been
considered for extension upto 62 years if steps had been taken for the same
in due course. Morevoer, the Regulations of AICTE being statutory, unless
these have been superseded or annulled by a competent authority, the
appellant’s age of superannuation stood extended upto 65 years. Lastly and
in any event, this Court had directed for maintenance of status-quo in
respect of appellant’s service and such order has been ignored by the
concerned respondents by proceeding to superannuate the appellant at the
age of 60 years. Yet another dimension requires special consideration in
the interest of justice. As per the statutory MEPS Rules, the appellant
should have been promoted as the Head of the School or in other words
Principal of the polytechnic long back and in any case by the end of the
year 2012, provided the respondent-Director had not passed an illegal and
erroneous order on 17.10.2012, when he wrongly proceeded to apply the
Government Rules 2012 to the private respondent polytechnic. If a correct
view had been taken by the respondent-Director then by the end of 2012, the
appellant would have been occupying the post of Principal in the respondent
polytechnic and then he would not have superannuated before 65 years or in
any case before 62 years of age.
In the facts noticed above and since there is some confusion and lack of
assistance on the issue of age of superannuation from the side of
respondents and also because there is no discussion on this issue in the
judgment under appeal, we refrain to lay down the law in this regard. But
in the interest of justice, we deem it proper to direct for immediate
reinstatement of the appellant within two weeks from today. Ordinarily we
would have directed Management of the respondent society to consider the
appellant’s case for promotion and pass appropriate orders in accordance
with law but from the materials on record as well as from the submissions
in the course of hearing, we have gathered an impression that the
Management of the Respondent Society cannot be presumed to be just and fair
to the appellant and expected to act in accordance with law. Hence,
instead of relegating the appellant to the mercy of the Management, we
direct the concerned respondents to issue order of reinstatement and also
appointment of the appellant by promotion to the post of Principal of the
respondent polytechnic within four weeks from today.
The appellant shall be treated to have been appointed by such promotion to
the post of Principal w.e.f. 1st December, 2012 as this in normal course
should have been the time taken for such promotion if the respondent-
Director had not passed a wrong order on 17.10.2012. The appellant shall
also be entitled to all consequential benefits on the basis of such
promotion. Since the appellant’s service was disturbed by superannuating
him w.e.f. 31.3.2015 contrary to our interim order, he shall be deemed to
have continued in service without interruption even after 31.3.2015 with
entitlement to full salary and other permissible emoluments for the entire
period till reinstatement.
Appeal is allowed in the aforesaid terms with cost of Rs.50,000/-. The
cost shall be payable by the Respondent No.4-Society to the appellant
alongwith other arrears within two months.
………………………………..…….J.
[VIKRAMAJIT SEN]
………………………………….…..J.
[SHIVA KIRTI SINGH]
New Delhi.
December 29, 2015.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. OF 2015
(Arising out of SLP(C) 30768 of 2014)
Pramod …..Appellant
Versus
State of Maharashtra & Ors. ....Respondents
J U D G M E N T
SHIVA KIRTI SINGH, J.
Leave granted.
This appeal raises a question of law as to whether as a senior most
lecturer in a private Polytechnic Institution administered by Shri Shiva Ji
Education Society-Respondent No.4, the appellant is entitled to be
considered for appointment to the post of Principal because it is required
to be made only by promotion by virtue of Rule 3 of the Maharashtra
Employees of Private Schools (Conditions of Service) Rules, 1981 (for
brevity the ‘MEPS Rules’) framed under the Maharashtra Employees of Private
Schools (Conditions of Service) Regulation Act, 1977 (for brevity the ‘MEPS
Act’).
Although the seniority, qualification and eligibility of the appellant for
appointment to the post of Principal was not under question before the
Division Bench of the High Court, before us an attempt was made not only to
oppose the appellant’s claim on the basis of impugned judgment under appeal
which holds that under the law appointment is not necessarily by promotion
alone, it can be also by nomination, i.e., direct recruitment, but also to
contest the claim of the appellant on the ground of qualification as well
as his age. The issue of age has arisen due to subsequent development. On
account of passage of time, when this matter was already pending before
this Court, the appellant completed 60 years and was made to superannuate
on 31.3.2015. Since there was an order of status quo in appellant’s
favour, contempt petition was also filed but instead of pressing the same,
Mr. C.U. Singh, learned senior counsel for the appellant has preferred to
argue the main matter itself. Before answering the question of law,
noticed earlier, the relevant facts may be noted in brief.
The appellant was appointed to the post of Assistant Lecturer in Civil
Engineering Department of Dr. Punjabrao Deshmukh Polytechnic, Amravati
administered by the Respondent- Shivaji Education Society on 30th July,
1977. His service was approved w.e.f. 1.7.1979. The appellant holds
qualifications of Bachelor of Engineering (Civil) in first class and Master
of Engineering (Structure) also in first class. On 1.4.1993 the appellant
was appointed as lecturer (Selection Grade). His seniority is duly shown
in the seniority list issued on 1.7.1997 by the office of the Principal of
Polytechnic. The appellant worked as Project Officer between 4.2.2000 and
30.7.2007. This post is said to be equivalent to the post of Head of
Department. The appellant also worked as In-charge Head of Department of
Civil Engineering from 8.8.2005 to 13.2.2008 to which he was selected and
appointed on regular basis also. In the meantime on 5.7.2007 the post of
Principal fell vacant due to voluntary retirement of the then Principal.
The appellant claimed that he should be given the charge of that post on
the basis of his seniority but another person was appointed as officiating
Principal on 9.7.2007. The appellant challenged such action by preferring
a writ petition No.3230 of 2007 in 2007. That writ petition was dismissed
on the ground that the appellant had alternative remedy of appeal under
Section 9 of the MEPS Act before the School Tribunal. The appellant
thereafter, preferred appeal No. 39 of 2007 before the Tribunal which
dismissed the appeal as pre-mature on 11.10.2007. Against the said order
of School Tribunal, the appellant preferred another writ petition bearing
No. 5748 of 2007.
During the pendency of the said writ petition, the society issued an
advertisement inviting applications for direct appointment to the post of
Principal. The appellant challenged that advertisement dated 21.11.2007
and prayed for a direction to the society to appoint him as Principal by
granting promotion. The High Court restrained issuance of final
appointment order and ultimately disposed of the writ petition on 15.9.2009
by holding in favour of the appellant that he was entitled to all the
benefits as officiating Principal from 9.7.2007 but did not enter into the
controversy as to who should be selected and appointed as regular
Principal. Since that issue was left open, the appellant preferred another
writ petition No. 4235 of 2009 claiming that he was entitled to be promoted
to the post of Principal under Rule 3(3) of the MEPS Rules on account of
being the senior most lecturer of the polytechnic.
On 5.3.2010, the All India Council for Technical Education (for brevity
‘AICTE’) issued a notification framing the All India Council for Technical
Education [Pay-scales, Service Conditions, and Qualifications of the
Teachers and other Academic Staffs in Technical Institutions (Diploma)]
Regulations 2010. The writ petition was disposed of on 29.7.2010. The
High Court allowed the Society to approach the Director of Technical
Education for permission to issue fresh advertisement and left it open to
the appellant to make a representation to the Director for staking his
claim of promotion to the post of Principal and to raise the issue that no
advertisement was required in view of the MEPS Rules and the particular
facts. The Director was given six weeks time to consider the application
of the Society and also the representation of the appellant and in the
meanwhile the appellant was to continue as In-charge Principal. For one
reason or the other the matter remained with the respondent-Director and in
the meantime on 10.9.2012 the State of Maharashtra through the Department
of Higher and Technical Education notified Rules entitled- The Principal,
Head of Department, Lecturer and Workshop Superintendent in Government
Polytechnic and Equivalent Institutes (Recruitment) Rules 2012 (hereinafter
referred to as ‘the Government Rules 2012).
The Director-Respondent No.2 by his order dated 17.10.2012 placed reliance
on the Government Rules 2012 and rejected the appellant’s prayer by holding
that the post of Principal had to be filled up by nomination, i.e., direct
recruitment. The appellant preferred writ petition No. 652 of 2013 for
quashing of Director’s order and for directions to the concerned
authorities to promote the appellant to the post of Principal with all
benefits. The writ petition was dismissed on 10.10.2014 giving rise to the
Special Leave Petition and the present appeal. While issuing notice on
21.11.2014 in the special leave petition, this Court directed for
maintenance of status quo as regards the service of the petitioner-
appellant.
The Division Bench of the High Court has held in favour of the appellant
that as per an earlier Full Bench judgment, the provisions of MEPS Act and
MEPS Rules are applicable to employees working in polytechnic colleges
which being institutions imparting technical education stand covered by the
term ‘School’ as defined under Section 2(24) of the MEPS Act. In fact, in
that view of the matter, in the earlier round the appellant was relegated
to avail statutory remedy of appeal before the School Tribunal. The
Division Bench noticed the qualifications prescribed for the post of
Principal by the AICTE which the appellant fulfils. However, the Division
Bench accepted the stand of the respondent-State that in view of
recommendations of AICTE made through letter dated 20.12.1999, the State
Government had passed a resolution for accepting those recommendations on
27.2.2003 and therefore, the provisions of MEPS Rules providing for
promotion of the senior most teacher to the post of Principal will not hold
the field and that as per recommendations of AICTE, recruitment of 50%
cadre posts is required to be by open selection through advertisement at
national level and only 50% by promotion on the basis of seniority-cum-
merit. On this plea the High Court decided against the appellant and held
that it was unable to hold that post of Principal in a private polytechnic
has to be filled up necessarily by promotion though so provided in Rule
3(3) of the MEPS Rules. This relevant Rule is extracted in the judgment of
the High Court and reads as follows :-
“3. Qualifications and appointment of Head.
A person to be appointed as the Head (a) (i) of a primary school having an
enrollment of students above 200 or having Standards I to VII shall be the
senior most trained teacher who has put in not less than five years’
service: and
Of any other primary school shall be the Senior-most trained teacher in the
School;
of a secondary school including night school or a Junior College of
Education shall be a graduate possessing Bachelor’s degree in teaching or
education of a statutory University or any other qualification recognized
by Government as equivalent thereto and possessing not less than five
years’, total fulltime teaching experience after graduation in a secondary
school or a Junior College of Education out of which at least two years’
experience shall be after acquiring Bachelor’s degree in teaching or
education:
Provided that, in the case of a person to be appointed as the Head of a
night secondary school –
he shall not be the one who is holding the post of Head or Assistant Head
of a day school, and
the experience laid down in clause (b) of sub-rule(1) may be as a part time
teacher.
(2) x x x x x
(3) The Management of a school including a night school shall fill up
the post of the Head by appointing the senior-most member of the teaching
staff (in accordance with the guidelines laid down in Schedule “F” from
amongst those employed in a school (if it is the only school run by the
Management) or schools [if there are more than one school (excluding night
school) conducted by it] who fulfills the conditions laid down in sub-
rule(1) and who has a satisfactory record of service.”
On behalf of the appellant, it was pointed out that the judgment under
appeal has correctly held that the Government Rules 2012 apply only to
Government polytechnic or equivalent institute, i.e., the institute having
same status as that of Government polytechnic and not a private
polytechnic, as in the case at hand. It was further submitted that this
view of the High Court knocks out the basis of the Director’s order against
the appellant which was impugned before the High Court and there was no
necessity for the High Court to examine any other issue.
An emphatic stand was taken on behalf of the appellant that except in the
Government Rules, 2012, there is no provision made by the State Government
or by the AICTE in respect of mode of filling up of the post of Principal
and none at all for a private polytechnic. Hence, according to the learned
senior counsel for the appellant, Rule 3(3) of the MEPS Rules being
statutory, cannot be ignored by the respondent authorities and those alone
apply to the claim of the appellant which deserves to be allowed but was
wrongly disallowed by the Director and the High Court.
On the other hand, learned counsel for the Society took the stand that the
High Court had erred in holding that the Government Rules 2012 cannot apply
to the polytechnic at hand on the ground that it is a private aided
institute. According to him, since, the society ultimately succeeded
before the High Court, it was not obliged to come in appeal against the
adverse finding noticed above and is entitled to challenge that finding to
further support the final conclusions of the High Court. In such a
situation we granted further time to the State Government of Maharashtra to
file an affidavit on the issue as to whether the Government Rules 2012
apply to the respondent polytechnic which is a private aided institute.
Such affidavit dated 8.12.2015 is now on record and it is the firm stand of
the State Government that the Government Rules 2012 are not applicable to
the respondent polytechnic as it is only a private aided institute.
We have ourselves also examined the said rules, 2012 and we find ourselves
in agreement with the views expressed by the High Court that these Rules
will not apply to private aided polytechnic such as the respondent’s
polytechnic. As a result there is no other Statutory Act or Rule to take
away the force of Rule 3(3) of the MEPS Rules which requires the management
of the polytechnic, which is covered by the definition of the ‘School’
under the MEPS Act, to fill up the post of the Head of Institution, i.e.,
the Principal by appointing the senior most member of the teaching staff in
accordance with the guidelines laid down in Schedule ‘F’ from amongst the
teachers employed in the school. It is not in dispute that respondent-
polytechnic is the only polytechnic run by the Management. Schedule ‘F’ to
the Rules prescribes only the guidelines for fixation of seniority in
different schools. In the present case, there is no dispute that the
appellant is senior most teacher in the polytechnic. Sub-rule (5) of Rule 3
permits direct recruitment only after obtaining prior permission of the
competent Government Officer in a situation where no suitable teacher
possessing the prescribed qualifications is available for promotion as
Head.
In our considered view the High Court has erred in law in holding that the
mode of appointment by promotion under Rule 3(3) of the MEPS Rules cannot
be applied to a polytechnic although it is a school because there is no
separate qualification prescribed for a polytechnic in sub-rule(1) of Rule
3. The said sub-rule contains the qualifications and appointment of Head
not only for primary schools but also for secondary school including night
school or a junior college of education. Appellant fulfils those
qualifications. Further it is nobody’s case that the appellant does not
fulfill the educational qualification for the post of Principal of a
polytechnic even as prescribed by the AICTE. In such a situation the mode
of appointment prescribed under the statutory Rule 3(3) could not have been
ignored and since the appellant was admittedly the senior most member of
the teaching staff in the polytechnic at the relevant time, as also held in
the earlier judgment of the High Court when he was declared entitled to all
the benefits of In-charge Principal of the polytechnic since 9.7.2007, the
appellant could not have been denied appointment by promotion to the vacant
post of Principal. The respondent-Director erred in rejecting the
appellant’s claim and in not issuing directions for his appointment by
promotion while passing order on the representation of the appellant and
rejecting the same on 17.10.2012. The writ petition preferred by the
appellant against that order has also been wrongly dismissed by the High
Court by the order under appeal dated 10.10.2014.
In view of aforesaid findings, it is to be worked out as to what relief the
appellant deserves to be granted now when the respondent-society has
proceeded to superannuate him w.e.f. 31.3.2015 without seeking permission
of this Court and acting contrary to the status-quo order passed on
21.11.2014.
On the issue of age of superannuation, there was no occasion for the High
Court to consider the relevant Rules or Notifications and before us there
is a serious controversy as to whether the age of superannuation on the
post of a teacher other than Principal ought to be 60, 62 or 65 years.
According to respondent, the State Government had issued a Notification
through the Higher and Technical Education Department dated 5th March, 2010
whereby the age of superannuation for non-government polytechnic
institutions has been increased from 58 years to 60 years and it can be
extended upto 62 years only after obtaining prior approval of the State
Government. Similarly, for the post of Principal the age of
superannuation has been increased to 65 years but with the rider that State
Government should grant approval for any further extension beyond 62 years.
On the other hand, the stand of the appellant is that he has been
arbitrarily ignored and not considered for extension because of pending
litigation against the Management of the respondent-society since several
years. It is further case of the appellant that: State Government has
never differed with the recommendation of the AICTE on the issue of age of
superannuation; in exercise of its statutory powers under sub-section (1)
of Section 23 read with Section 10(i) and (v), of the All India Council for
Technical Education Act, 1987, the AICTE has issued the Regulations dated
5th March, 2010; and the Regulations, inter alia, provide for age of
superannuation and since they apply to technical institutions conducting
technical education and such other courses/programmes and areas as notified
by the Council from time to time, the age of superannuation for teachers of
the Polytechnic stand enhanced to 65 years with sole exception of Librarian
whose age of superannuation continues to be 62 years.
From the materials and rival contentions noted above, it is evident that
even as a teacher the appellant’s age of superannuation could have been
considered for extension upto 62 years if steps had been taken for the same
in due course. Morevoer, the Regulations of AICTE being statutory, unless
these have been superseded or annulled by a competent authority, the
appellant’s age of superannuation stood extended upto 65 years. Lastly and
in any event, this Court had directed for maintenance of status-quo in
respect of appellant’s service and such order has been ignored by the
concerned respondents by proceeding to superannuate the appellant at the
age of 60 years. Yet another dimension requires special consideration in
the interest of justice. As per the statutory MEPS Rules, the appellant
should have been promoted as the Head of the School or in other words
Principal of the polytechnic long back and in any case by the end of the
year 2012, provided the respondent-Director had not passed an illegal and
erroneous order on 17.10.2012, when he wrongly proceeded to apply the
Government Rules 2012 to the private respondent polytechnic. If a correct
view had been taken by the respondent-Director then by the end of 2012, the
appellant would have been occupying the post of Principal in the respondent
polytechnic and then he would not have superannuated before 65 years or in
any case before 62 years of age.
In the facts noticed above and since there is some confusion and lack of
assistance on the issue of age of superannuation from the side of
respondents and also because there is no discussion on this issue in the
judgment under appeal, we refrain to lay down the law in this regard. But
in the interest of justice, we deem it proper to direct for immediate
reinstatement of the appellant within two weeks from today. Ordinarily we
would have directed Management of the respondent society to consider the
appellant’s case for promotion and pass appropriate orders in accordance
with law but from the materials on record as well as from the submissions
in the course of hearing, we have gathered an impression that the
Management of the Respondent Society cannot be presumed to be just and fair
to the appellant and expected to act in accordance with law. Hence,
instead of relegating the appellant to the mercy of the Management, we
direct the concerned respondents to issue order of reinstatement and also
appointment of the appellant by promotion to the post of Principal of the
respondent polytechnic within four weeks from today.
The appellant shall be treated to have been appointed by such promotion to
the post of Principal w.e.f. 1st December, 2012 as this in normal course
should have been the time taken for such promotion if the respondent-
Director had not passed a wrong order on 17.10.2012. The appellant shall
also be entitled to all consequential benefits on the basis of such
promotion. Since the appellant’s service was disturbed by superannuating
him w.e.f. 31.3.2015 contrary to our interim order, he shall be deemed to
have continued in service without interruption even after 31.3.2015 with
entitlement to full salary and other permissible emoluments for the entire
period till reinstatement.
Appeal is allowed in the aforesaid terms with cost of Rs.50,000/-. The
cost shall be payable by the Respondent No.4-Society to the appellant
alongwith other arrears within two months.
………………………………..…….J.
[VIKRAMAJIT SEN]
………………………………….…..J.
[SHIVA KIRTI SINGH]
New Delhi.
December 29, 2015.
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