1. Heard. Rule. Rule returnable forthwith. Heard finally by consent of the learned Counsel for the rival parties.
2. By the present petition, the petitioner seeks direction to respondent No.2 Deputy Director of Education, Amravati Division, Amavati to grant approval to the transfer order dated 30.11.2006 of the petitioner and consequently, for setting aside the communications mentioned in prayer clause - (i) of the writ petition.
3. In support of the writ petition, the learned Counsel for the petitioner made the following submissions. Since the order of her initial appointment the petitioner has been working as assistant teacher in New English High School (NEHS), Akola and was transferred by the order of promotion dated 14.9.2006 as due to retirement a post of lecturer in New English Junior College (NEJC), Akola run by the same Management had fallen vacant. The approval to her appointment by transfer was however rejected by respondent No.2 on 20.09.2006 since her appointment in Junior College could not have been made by promotion and transfer. Another order was passed on 30.11.2006, saying that she was merely transferred and was not promoted and again proposal was sent for approval but the respondent No.2 rejected the same by order dated 19.5.2007. The petitioner filed writ petition in this Court vide Writ Petition No.3416/2007, which came to be decided on 1.8.2008 and order rejecting approval dated 19.5.2007 was set aside with further direction to consider the case for approval under Rule 41 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (For short, hereinafter referred as 'the M.E.P.S. Rules".
Thereafter, respondent No.2 on 20.09.2008 reconsidered the matter and again rejected her case. The petitioner filed another Writ Petition No.5428/2008 and on 3.3.2009 this Court again asked respondent No.2 to reconsider his decision in accordance with law. Respondent No.2 filed review petition M.C.A. St. Nos.11042/2009 and 11044/2009 for review and in review, the following order was made by this Court on 4.12.2009.
"Heard Mrs. B.H. Dangre, Additional Government Pleader for applicants and Mr. A. S. Chandurkar, Adv. for respondent No.1. Civil Application No. 707 of 2009 is moved by applicants for condonation of delay in filing the review application. For the reasons stated in the Civil Application, delay is condoned. The Civil Application is allowed. Mrs. B. H. Dangre, Additional Government Pleader has submitted that Rule 41 (5) of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 provides that where a Management runs a Secondary Schools/s and a Junior College of Education, transfer of Secondary school teacher to Junior College is prohibited if he does not give his consent. It is contended that this aspect was not properly placed before this Court on the earlier occasion, since, in the present case, the petitioner is an Assistant teacher working in the Secondary school and the Junior College which is attached with the Secondary school is not the Junior College of Education and therefore, though by the impugned order dt. 1.8.2008, of which the review is sought, direction given by this Court to re-consider the claim of the petitioner for grant of approval as a Junior College teacher in the light of Rule 41 of the MEPS Rules would be considered only in view of Rule 41 of the Rules. Mr. A. S. Chandurkar, Adv. for respondent no.1 does not dispute the factual aspect of the matter and has no objection if the claim of petitioner is considered by the respondent as per the direction of this Court issued vide order dt. 1.8.2008 passed in Writ Petition No.3416 of 2007 in the light of Rule 41 (1) of MEPS Rules. In the backdrop of the above referred facts, we dispose of Misc. Civil Application St. No. 11042 of 2009 for review accordingly."
4. Thereafter, respondent No.2 passed another order on 29.1.2010 again rejecting the approval after the decision of review petition. According to the learned Counsel for the petitioner perusal of all the final orders made by this Court clearly show that the Deputy Director of Education was directed to consider the issue regarding grant of approval to the petitioner under Rule 41 (1) of the M.E.P.S. Rules since it was a transfer simplicitor and not up-gradation or promotion of the petitioner. The learned Counsel for the petitioner then argued that as a matter of fact, looking to the various orders made by this Court the Deputy Director of Education has in fact committed contempt by repeatedly disobeying the orders made by this Court and even now the mistake can be corrected by the Deputy Director of Education. According to the learned Counsel for the petitioner the Deputy Director of Education is thus acting high handedly in the matter of approval to the transfer order of the petitioner from one school to another.
5. Per contra, the learned Additional Government Pleader opposed the writ petition and justified the impugned order.
6. We have carefully seen the pleadings in the writ petition so also various orders made by this Court in various writ petitions etc.. It is true that this Court had on the first occasion i.e. on 1.8.2008 decided Writ Petition No.3416/2007 and set aside the communication dated 19.5.2007, rejecting the proposal for transfer of the petitioner on the ground that the petitioner could not be promoted by transfer to the Junior College. In paragraph No.4, this Court held thus in relation to Clause (b) of Sub Rule 5 of Rule 41 of the M.E.P.S. Rules and asked the Deputy Director of Education to reconsider the decision. "4. In view of the above-referred rule, it is clear that the transfer of a secondary school teacher to junior college is prohibited only in a situation where the concerned teacher does not give his consent. In the instant case, the petitioner has in fact, given consent and, therefore, the order dated 19.5.2007 whereby the approval is refused cannot be sustained in law."
7. It is also true that subsequently by the order dated 3.3.2009, this Court at the behest of the petitioner in W.P. No.5428/2008 castigated the Deputy Director of Education for not properly considering the Rule 41 of the M.E.P.S. Rules and again asked him to reconsider the issue. It appears that thereafter the Deputy Director of Education applied for review of the earlier orders and in review, this Court accepted the submission made by the Deputy Director of Education i.e. review petitioner that the case could not fall under Rule 41 (5) of the M.E.P.S. Rules because there is a difference between Junior College and Junior College of Education and Rule 41 (5) Clause (b) of the M.E.P.S. Rules relates to transfer from secondary school to Junior College of Education and not Junior College. This Court, thus, having accepted the said submission recorded the concession given by the learned Counsel for the petitioner herein that her case could be considered under Rule 41 (1) of the M.E.P.S. Rules and accordingly, the review petition was disposed of. In our opinion, this Court found that there was a difference between Junior College and Junior College of Education and that is why this Court accepted submission in review petition with the difference that was pointed out to this Court. The definition of Junior College of Education is to be found in Section 2 (10) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977, (For short, hereinafter referred to as 'the M.E.P.S. Act'), which reads thus : "2 (10) "Junior College of Education" means a school imparting teacher education to person for being appointed as teachers and shikshan sevaks in pre-school centres or primary schools;"
8. There is no dispute that the petitioner was transferred by the orders issued by the Management on 14.9.2006 and thereafter by 30.11.2006 from New English High School, Akola to New English Junior College, Akola. There is no dispute that the petitioner was never transferred to Junior College of Education as understood in accordance with the above definition under Section 2 (10) of the M.E.P.S., Act. We therefore uphold the decision of the Deputy Director of Education in not approving the appointment of the petitioner under Rule 41 (5) Clause (b) of the M.E.P.S. Rules. The question then arises about the Rule 41 (1) of the M.E.P.S. Rules under which the issue was to be considered as per the review order of this Court dated 4.12.2009. Rule 41 (1) of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 reads thus :
"41 (1). Subject to the provisions of this rule the Management conducting more than one school shall not transfer any of its employees from one school to another except on administrative grounds, promotion or at the request of the employee concerned, if it is administratively convenient to do so."
9. Perusal of the above Rule shows that it relates to transfer from one school to another school and it has nothing to do with the transfer from High School to Junior College, run by the same Management. Obviously, therefore, the case of the petitioner cannot fall under Rule 41 (1) of the M.E.P.S. Rules as the orders of her transfer show her transfer from New English High School, Akola to New English Junior College, Akola and not from one High School to another High School.
10. To sum up, therefore, the case of the petitioner did not fall either in Rule 41 (5) or in Rule 41 (1) of the M.E.P.S. Rules. It appears that the Management, in fact, wanted to avoid to follow the Rule 9 of the M.E.P.S. Rules in the matter of direct recruitment to the Junior College as interpreted by the Division Bench decision of this Court in the case of Chandrakant s/o Sambhaji Shende...Versus...The Deputy Director of Education, Nagpur Division, Civil Lines, Nagpur and others in Writ Petition No.1524/1996, decided on 18.11.1998.
11. In the said decision, this Court held that appointment by promotion or transfer from High School to Junior College as permitted by the then Government Resolution dated 28.4.1980 was illegal since after framing of the M.E.P.S. Rules of 1981, the said Government Resolution became a dead letter and the Rules would prevail over the said circular. In the said decision, the Division Bench of this Court laid down the legal position in paragraph Nos.9, 10, 11, 12, 13, 14, 15 and 17, which read thus :
"9. The portion of the Government Resolution quoted clearly states that seniority is not the only criteria. Seniority and merits both are to be considered and appointment is to be made accordingly. While deciding the merit of concerned teacher, his educational qualification, experience, records etc. should be taken into consideration. Then para 2 says that post of Junior College should not be filled in by direct recruitment. Only in cases where teachers are not willing to accept the transfers of Junior College, the direct recruitment is permissible.
10. As against that, Rule 9 contemplates only direct recruitment and as no reference either of transfer of an in-service candidate or to the possibility of promotion to anyone of them save and except the post of Head of a school or an Assistant of a school is made.
11. Obviously 1980 circular was issued after the act was brought into force. After the issuance of the Circular, the rules have been framed in the year 1981 and they have come into effect from 15th of April, 1981. The embargo put on the direct recruitment by the said Government Resolution which is total and absolute. If a read in conjunction with Rule 9, it must be held to have been lifted and the management has to proceed under Rule 9. Once there is statutory rule, it is trite to observe that statutory rules will have precedence over Government Resolutions. In view of the said chronology of events, Rule having been promulgated and given effect to after issuance of the Government Resolution, that Rule gets precedence over the Government Resolution.
12. Considering the matter from the point of view of the other side, namely the Government Resolution are held to operate even after the promulgation of Rule, in view of the said provision of prohibiting direct recruitment the conflict will have to be resolved and in absence of any Rule as to fixing a ratio of direct recruitment as contrasted with promotion, a situation might arise where an institution may decide to follow only Rule 9 and ignore 1980 circular altogether and vis-versa.
13. In field of employment, more particularly that of educations and that too of a school under private management, as far as possible, this sort of situation must be avoided. In face of statutory material in the form of Rule 9, there is no question of going into further consideration of the subject that the said Government Resolution and Rule can be permitted to co-exist.
14. Otherwise also it is not possible. Apart from the aforesaid practical difficulty of allowing both the provisions to operate in the field situation could not be brooked as the Rule has been promulgated in brought into force on and after the date of said Government Resolution and as the Rule gets precedence over it, the Government Resolution will loose its force.
15. The net result of this is that the appointment of nature indicated in Rule 9 can be allowed to govern alone.
17. However, coming back to the controversy there is no manner of doubt that on promulgation of the rules and their coming into effect the Government Resolution cannot be held against it and the Government Resolution must give way to the Rule and the case is of the present nature will have to be governed by the Rule."
12. While considering the effect and implementation of Rule 9 of the M.E.P.S. Rules and reasonable expectation and possibilities of promotions, the Division Bench of Court made further observations in paragraph No.16, hoping that the Government would look into the matter as stated in the said paragraph. We quote paragraph No.16 from the Division Bench judgment in W.P. No.1524/1996 (decided on 18.11.1998) thus :
"16. It is open to Government to provide by further Rule in the Rule 9 so that as rightly urged by the other side the employees of a given management can look forward an incentive. Ordinarily also it is an accepted principle of management that the employees should have reasonable expectation and possibilities of promotion and also of advancing their career further to look forward to. Not giving any such opportunity will make them to loose interest and in the long run the institution itself is suffered. This being a case of educational institution, which will affect the future of the students, the impact will be serious and therefore, it is expressed that the powers that he should be immediately look into and provide for suitable opportunity of promotion as can be provided under the current situation pertaining to educational institutions in the State."
13. We have quoted the above paragraphs in the said Division Bench judgment of this Court because the Deputy Director of Education in the instant case right from the beginning relied upon the said Division Bench judgment of this Court and the Government Resolution dated 27.7.1999, issued by the Government of Maharashtra to implement the said Division Bench judgment in the case of Chandrakant s/o Sambhaji Shende (Supra), which was eventually accepted by the State Government.
14. Thus, the legal position stated above clearly does not allow us to issue any directions to the Deputy Director of Education in the light of approval to the appointment of the petitioner. In the result, we find no merit in the present writ petition. The same is, therefore, dismissed. Rule is discharged. No order as to costs.