High Court · 2024
Legal Reasoning
wp-5849.214and others, 2005 BCI 224. Learned Advocate for the petitionershas also placed reliance on the decision in Pimpalner EducationSociety and another vs. the State of Maharashtra and others(Writ Petition No.2557 of 2015, decided by this Court on 16thMarch 2016), wherein, after relying upon the observations inNishad Sadashiv Pawar and others vs. Dnyanasadhana College(through Honorary General Secretary) and others, (supra), ithas been specifically observed in Paragraph No.5 as under:-5.It is to be noted that unless there is prescription in the Rulesproviding for such higher percentage of reservation in favour ofScheduled Tribes category, it would be impermissible for theauthorities to act upon and observe executive instructions issued bythe State. The issue raised in the matter is no more res integra inview of the Judgment delivered by the Division Bench of this Court inthe matter of Nishad Sadashiv Pawar and others vs. DnyanasadhanaCollege and others, reported in 2005(4) All MR 101. The DivisionBench has observed in paragraphs No.3 & 4, as below:“3It appears that the authority has proceeded on thefooting that what has to be applied as Government G.R. inthe matter of reservations. The G.R. is nothing butadministrative instructions which will be applicable, ifthere is no primary or secondary legislation in force. Inthe instant case, under the M.E.P.S. Act, rules have beenframed. Rule 9(7) provides that the Management shallreserve 34% of the total number of posts of the teachingas well as non-teaching staff for the members of S.C., S.T.and Backward communities. In other words it is clear thatrules in force being subordinate legislation are applicable.The issue is whether the G.R.s will prevail over the rules.G.R.s are issued pursuant to the executive powers of theState as provided by Article 162 of the Constitution of wp-5849.215India. The rules are framed pursuant to delegation ofpowers by the Legislature on the delegate. The rulemaking power is subject to Legislative control. Rules aresubordinate legislation whereas administrative instructionsare not. Administrative instructions cannot contravene therules. See Nanjundappa R.V. vs. Themmiiah T., (1972) 1SCC 409. The rules therefore, will prevail over the G.R.4.The authorities under the M.E.P.S. Act to followstrictly Rule 9(7) of M.E.P.S. Rules in so far as recruitmentto the posts governed by the M.E.P.S. Act and rules. TheG.R.s as issued by the Government from time to time inthe exercise of its administrative powers under Article 162of the Constitution of India would be inapplicable toappointments in schools and junior colleges. Consequently if the contentions raised in ground {c}are considered, the Petitioners are right and thePetitioners can be posted against the posts presently heldby them. Considering that and as the issue has not beenanswered, petition will have to be partly allowed.” 4.Learned Advocate for the petitioners further points out thatthere is a reference to the Ordinance issued by the Hon’ble theGovernor of Maharashtra on 9th June 2014 in the impugnedcommunication. By way of said Ordinance, the change in thereservation was made in respect of many posts including teacherand it was stated that it would be applicable to variousdepartments including School Education and Sports Department,Tribal Development Department. However, by further Ordinanceby the Hon’ble Governor of Maharashtra issued on 31st October2014 the effect of earlier Ordinance dated 9th June 2014 wasrestricted to the post of Kotwal and change was effected and wp-5849.216instead of teachers from School Education and SportsDepartment, it was restricted to the post of teachers from RuralDevelopment Department and Tribal Development Department.Further, by way of Government Resolution dated 27th August2018, the further percentage of reservation was prescribed inrespect of different districts including the District of Nandurbar.But it was restricted in respect of direct recruitment to in all 18posts out of which, serial No.7 is teacher (Zilla Parishad) andserial No.17 is teacher (Ashram School) (Tribal DevelopmentDepartment). Therefore, taking into consideration theseOrdinances also, the impugned order cannot be allowed tosustain as the said Government Resolution is not applicable tothe petitioners.5.The learned AGP relied on the affidavit-in-reply of RajendraFula More, the Naib Tahsildar, Backward Class Cell, NashikDivision, Nashik and submitted that the roster of the petitioners’school was inspected by respondent No.2 and remark was giventhat all vacant posts are to be filled in only from Scheduled Tribecandidates as the locality of Mundane village in which theinstitute is located falls under ambit of 100% PESA according toGovernment Resolution dated 5th March 2015. Depending on the
Arguments
wp-5849.211 IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.5849 OF 20211) Peoples Education Society, Mundane, Tq-Shahada, Dist-Nandurbar, Through its Chairman, Shri J.T. Pawar, Age-52 years, Occu:Business & Agri., R/o-Mundane, Tq-Shahada, Dist-Nandurbar,2) Adarsh Vidyalay Mundane, Tq-Shahada, Dist-Nandurbar, Through its Head Master. ...PETITIONERS VERSUS 1) The State of Maharashtra, Through its Principal Secretary, School Education Department, Mantralaya, Mumbai-32,2) Assistant Commissioner, Backward Class Cell, Nashik Region, Nashik,3) Deputy Director (Education), Nashik Region, Nashik,4) Education Officer (Secondary), Zilla Parishad, Nandurbar. ...RESPONDENTS ... Mr. Mahesh S. Deshmukh Advocate for Petitioners. Mr. S.K. Shirse, A.G.P. for Respondent Nos. 1 to 4. ... wp-5849.212 CORAM: SMT. VIBHA KANKANWADI AND S.G. CHAPALGAONKAR, JJ.DATE OF RESERVING JUDGMENT : 6th MARCH 2024DATE OF PRONOUNCING JUDGMENT : 3rd APRIL 2024 JUDGMENT [PER SMT. VIBHA KANKANWADI, J.] :1.Rule. Rule made returnable forthwith. Heard learnedcounsel appearing for the respective parties finally, by consent.2.By way of present Petition, the petitioners are praying forissuance of directions to quash and set aside the order passed byrespondent No.2 approving roster in relation to posts of teachingstaff of petitioner No.2 school run by petitioner No.1 dated 27thOctober 2020, and to hold that the said order is contrary to thepercentage prescribed for Scheduled Tribe and Other BackwardClass Category under Rule 9(7) of Maharashtra Employees ofPrivate Schools (Conditions of Service) Rules 1981 (for short“MEPS Rules, 1981”). The further relief has been asked to directrespondent No.2 to forthwith inspect and approve Roster ofreservation of petitioner No.2 strictly in accordance with wp-5849.213mandate and particularly percentage prescribed under Rule 9(7)of the MEPS Rules, 1981.3.Learned Advocate Mr. Deshmukh appearing for thepetitioners submits that petitioner No.2 school is run bypetitioner No.1. The roster in respect of petitioner No.2 schoolwas sent for approval / inspection to respondent No.2, however,by impugned order dated 27th October 2020 it has not beencorrectly approved by stating that it is not in accordance with theGovernment Resolutions dated 5th December 2018, 12th February2019, 16th August 2019 and 21st August 2019. The concernedauthority then went on to wrongly prescribe the reservationapplicable to the staff of petitioner No.2. Learned Advocatesubmits that as regards the reservation is concerned, petitionerNo.2 school is governed by the provisions of MEPS Rules, 1981.Rule 9(7) of the MEPS Rules 1981 specially prescribes thereservation / percentage in respect of Scheduled Tribe and OtherBackward Class category. The State Government has noauthority to change the said percentage by way of theGovernment Resolution. He has also taken help of the decision ofthis Court in Nishad Sadashiv Pawar and others vs.Dnyanasadhana College (through Honorary General Secretary)
Decision
wp-5849.217guidelines of Government Resolution dated 5th March 2015 andNotification of the Hon’ble Governor of Maharashtra dated 9thJune 2014, the said decision has been taken. There is acertificate on record which shows that village Mandane, Taluka-Shahada is a village having majority of Scheduled Tribe persons.He also produced on record a letter written by AssistantCommissioner (Backward Class Desk), Divisional CommissionerOffice, Nashik to Under Secretary, General AdministrationDepartment, dated 12th December 2023 seeking guidance as towhether the Government Resolution dated 1st February 2023 isapplicable to the teachers working in private schools. LearnedAGP submits that the said guidance is still awaited.6.The point involved is short, i.e. whether the provisions ofEnactment would prevail in respect of percentage of reservationor the Government Resolution or the Ordinance would prevail.The said point is no res integra in view of the above referredparagraphs from the decision in Nishad Sadashiv Pawar andothers vs. Dnyanasadhana College and others (supra), relied onin the decision in Pimpalner Education Society and another vs.the State of Maharashtra and others (supra). Therefore, therules would prevail over the Government Resolution. Here the wp-5849.218percentage of reservation came to be changed by virtue of theOrdinance issued by the Hon’ble Governor of Maharashtra.However, the duration of the said Ordinance would be of sixmonths only, unless it is extended and before the expiry of thator by legal mode the said percentage ought to have been thencarried out in the Enactment itself. As observed above, theGovernment Resolution is administrative instructions and wouldbe of more importantance when there is no primary or secondarylegislation in force. However, here the legislation is in force.Therefore, unless the legislation is amended, there cannot bechange in the percentage of reservation. Both the cases i.e.Nishad Sadashiv Pawar and others vs. Dnyanasadhana Collegeand others (supra) and Pimpalner Education Society and anothervs. the State of Maharashtra and others (supra) were havingsimilar facts and in such situation it was held that the authoritiesunder the Maharashtra Employees of Private Schools (Conditionsof Service) Regulation Act should strictly follow the rules. InPimpalner Education Society and another vs. the State ofMaharashtra and others (supra), this Court had considered theGovernment Resolution dated 5th March 2015 providing for thehigher percentage of reservation in favour of the ScheduledTribes since the area within which the school was operating, wp-5849.219comprises of majority of population belonging to the ScheduledTribes category. Taking into consideration the fact that it wascontrary to Rule 9(7) of the MEPS Rules, 1981, the impugnedorder was quashed and set aside. 7.Again in the present matter also, respondent No.2 isrelying upon the same Government Resolution dated 5th March2015. It is very much unfortunate that the Government officersare only harping upon the Government Resolutions and notconsidering the decisions of this Court. If respondent No.2 –Assistant Commissioner would have taken note of the decision ofthis Court in Pimpalner Education Society and another vs. theState of Maharashtra and others (supra), he would not havepassed the impugned order and therefore, it deserves to bequashed and set aside. 8.Writ Petition, therefore, deserves to be allowed and theWrit Petition is accordingly allowed. The impugned order dated27th October 2020 issued by the Assistant Commissioner,Backward Class Cell, Nashik Region, Nashik is quashed and setaside and the concerned authority is directed to prepare andapprove the roster in accordance with the provisions of Rule 9(7) wp-5849.2110of the Maharashtra Employees of Private Schools (Conditions ofService) Rules, 1981. The respondent – authority shall considerthe proposal for approval forwarded by the petitioners, strictly inaccordance with the provisions of the Maharashtra Employees ofPrivate Schools (Conditions of Service) Rules, 1981 and to takedecision within a period of THREE MONTHS from today. 9.Rule is made absolute in above terms. [S.G. CHAPALGAONKAR] [SMT. VIBHA KANKANWADI] JUDGE JUDGEasb/MAR24