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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