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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.

1.Leave granted.

2.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

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(Conditions of Service) Regulation Act, 1977 (for brevity the ‘MEPS

Act’).

3.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.

4. The appellant was appointed to the post of Assistant

Lecturer in Civil Engineering Department of Dr. Punjabrao

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Deshmukh Polytechnic, Amravati administered by the Respondent-

Shivaji Education Society on 30

th

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,

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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.

5.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.

6.On 5.3.2010, the All India Council for Technical Education

(for brevity ‘AICTE’) issued a notification framing the All India

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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).

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7.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.

8.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

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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.

(1) 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

(ii) Of any other primary school shall be the

Senior-most trained teacher in the School;

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(b)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 –

(i)he shall not be the one who is holding the post of

Head or Assistant Head of a day school, and

(ii)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.”

9.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

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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.

10.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.

11.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

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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.

12.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

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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.

13.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

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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.

14.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.

15.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

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Government had issued a Notification through the Higher and

Technical Education Department dated 5

th

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 5

th

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

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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.

16.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

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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.

17.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

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promotion to the post of Principal of the respondent polytechnic

within four weeks from today.

18.The appellant shall be treated to have been appointed by such

promotion to the post of Principal w.e.f. 1

st

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.

19.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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