Mamta Rani Mishra Vs. Municipal Corporation and ors.

Decided On : Oct-04-2002

Court : Madhya Pradesh

Notice (8): Undefined index: topics [APP/View/Case/meta.ctp, line 36]
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			'id' => '510082',
			'acts' => 'Madhya Pradesh Educational Service (Collegiate Branch) Recruitment Rules, 1990 - Rule 6; Service Law',
			'appealno' => 'Writ Petition No. 3412/95',
			'appellant' => 'Mamta Rani Mishra',
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			'casename' => 'Mamta Rani Mishra Vs. Municipal Corporation and ors.',
			'casenote' => ' Service - Promotion - Petitioner was teacher in college managed by respondent no 1 - Petitioner claimed for promotion to post of principal in college - Respondent no.1 rejected claim - Petitioner filed petition against rejection of claim - Court directed respondent to consider petitioner for promotion as she was senior most lecturer - Thereafter respondent no.1 invited application for direct recruitment to post of principal - Petitioner aggrieved by said action of respondent - Hence, present petition - Held, Court in its previous order directed respondent no.1 to consider petitioner for impugned post - Said order was based on fact that petitioner was possessing requisite qualification as well as she was senior most candidate - Respondent manifestly disregarded order of Court - Hence, advertisement regarding appointment to impugned post liable to be set aside - Petitioner be appointed within stipulated time - Petition accordingly allowed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  Such a course is permissible in exceptional cases especially when the respondent No.',
			'caseanalysis' => null,
			'casesref' => 'State of Bihar v. B.K. Mishra;',
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			'counselplain' => 'Rohit Arya, Adv.',
			'counseldef' => 'Sanjay K. Agrawal, Adv. for Respondent Nos. 1, 2 and 3, ;A.S. Raizada, Govt. Adv. for Respondent No. 4/State and ;U.N. Awasthy, Adv. for Respondent No. 5',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2002-10-04',
			'deposition' => 'Petition allowed',
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			'judge' => 'S.P. Khare, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">S.P. Khare, J.</p><p style="text-align: justify;">1. This is a writ petition under Articles 226 and 227 of the Constitution of India challenging the notice dated 13-10-1995 of the respondent No. 1 calling for applications to fill up the post of Principal and for a direction to promote the petitioner on that post.</p><p style="text-align: justify;">2. It is not in dispute that a College known as 'Pandit Loknath Shastri Sanskrit Mahavidhyalaya' (hereinafter to be referred to as the 'College') is being run by respondent No. 1 Municipal Corporation, Jabalpur which is affiliated to respondent No. 6 Avadhesh Pratap Singh Vishwavid-hyalaya, Rewa. The pattern of education in the College is known as 'PrachyaVidhya Pranali'. Sanskrit and other subjects are being taught to the students under this system. The political science is one of them. Hindi is also being taught. Petitioner Mamta Rani Mishra is 'Acharya' in Sanskrit and M.A. in Political Science. She is working as a Lecturer in the College from 19-2-1983. In Writ Petition No. 2602 of 1994 by order dated 30-8-1995, the respondent No. 1 was, inter alia, directed to consider the case of the petitioner being the senior most Lecturer for promotion as Principal. A copy of the said order is Annexure A-14. Respondent No. 5 Mathura Prasad Garg is working as Lecturer in this College from 24-8-1995. He is in current charge of the post of Principal also. This is officiating arrangement. The respondent No. 1 is intending to fill up the post of Principal by 'direct recruitment' and not by promotion. In the impugned notice dated 13-10-1995 it has been specified that the incumbent must possess the Degree of Acharya or M.A. in Sanskrit and must have the 'experience of teaching in Sanskrit' in an institution imparting education on the pattern of Prachya Vidhya Pranali. The applications have been invited only from amongst the persons teaching in schools being run by the Municipal Corporation, Jabalpur. It is also not disputed that except this College no other school or college run by the Municipal Corporation imparts education on Prachya Vidhya pattern. No one else except the respondent No. 5 satisfies the condition of teaching Sanskrit on Prachya Vidhya pattern. The terms and conditions of affiliation issued by respondent No. 6 University prescribe only 'Acharya' degree or 'M.A. in Sanskrit' as qualification for filling up the post of Principal of the College. The requirement of the experience of teaching Sanskrit under Prachya Vidhya Pattern has not been provided as a qualification for preference in the matter of appointment to the post of Principal. The petitioner has been in fact teaching Hindi in the College.</p><p style="text-align: justify;">3. The petitioner's case is that she is much senior to the respondent No. 5 on the post of Lecturer. The post of the Principal can be filled up only by promotion and not by direct recruitment as per M.P. Educational Service (Collegiate Branch) Recruitment Rules, 1990 (hereafter to be referred to as the 'Collegiate Branch Rules'). As per Rule 6 of Schedule II the post of Principal of a College can be filled up '100% by way of promotion'. The petitioner is Acharya in Sanskrit which is equivalent to Degree of M.A. in Sanskrit and therefore she is possessed of the basic qualification for the post of Principal. In the past also the post of the Principal has been filled up by promotion only. The conditions provided in the impugned notice are 'tailor-made' with an eye upon the respondent No. 5 only.</p><p style="text-align: justify;">4. The case of the respondent Nos. 1 and 2 in their return is that the Standing Committee of the Municipal Corporation has fixed the norms on the basis of which the notice calling the applications for the post of the Principal has been issued. According to these respondents the CollegiateBranch Rules are not applicable in the present case as the pay scale of the Principal of this College is much lower than provided in these rules. The plea of these respondents is that the rules which are applicable in the present case are M.P. Education Service (Sanskrit College Higher Education) (non-gazetted Class III) Recruitment Rules, 1990. The respondent No. 5 has pleaded that he is M.A. in Sanskrit and has teaching experience of about 20 years in that subject and therefore he has a right to be appointed as the Principal in preference to the claim of the petitioner who has never taught Sanskrit.</p><p style="text-align: justify;">5. In the return of the respondent No. 4 the State of Madhya Pradesh it is stated that 'Collegiate Branch Rules' are applicable for filling up the post of the Principal and according to those rules it can be filled up by promotion only and not by direct recruitment. Thus, the claim of the petitioner is supported by the State Government.</p><p style="text-align: justify;">6. The points for determination in this petition are--(a) which are the Rules applicable for appointment to the post of Principal in the College, (b) whether the post of Principal can be filled in by promotion or by direct recruitment, and (c) whether the petitioner is entitled to appointment to the post of Principal on the basis of her seniority.</p><p style="text-align: justify;">7. The arguments of the learned Counsel for the parties have been heard on the points referred above.</p><p style="text-align: justify;">8. Point (a) :</p><p style="text-align: justify;">It is conceded by the learned Counsel for respondent No. 1 Municipal Corporation that the M.P. Education Service (Sanskrit College Higher Education Service) (non-gazetted Class III) Recruitment Rules, 1990 are not applicable to fill up the post of the Principal as these rules are applicable to Class III employees and the post of the Principal of the College is a higher post. It is also not disputed that the resolution of the Standing Committee must be in conformity with the statutory rules. Now it is common ground that the Jabalpur Municipal Corporation Bye-laws, 1967 are applicable. These Bye-laws have been approved by the State Government under Section 430 of the Municipal Corporations Act, 1956. As per bye-law No. 3, subject to the provisions of this Act and the rules or bye-laws made thereunder, the Fundamental Rules, the General Book Circulars and Civil Service Regulations made from time to time shall apply mutatis mutandis to the officers and servants of the Corporation, as they apply to the Government servants of the State other than the members of the Indian Administrative Service. The rules comprising 'Fundamental Rules, the General Book circulars and Civil Service Regulations', that is, the entire body of rules applicable to the Government servants by 'reference' have been made applicable to the servants of theMunicipal Corporation. This is referential rule making. The phrase 'mutatis mutandis' means with necessary changes. In such a case 'the reference' is construed to mean that the law as it reads thereafter including amendments subsequent to the time of adoption. [See : Principles of Statutory Interpretation by Justice G.P. Singh, 7th Edition (1999) page 238]. Therefore, the rules applicable to the Government servants as amended from time to time by virtue of the Bye-laws would apply to the servants of the Municipal Corporation. In other words the recruitment rules of the Government would also be applicable to fill up the post of the Principal in the College run by the Municipal Corporation. That is exactly the stand of the petitioner and the State Government in the present case.</p><p style="text-align: justify;">9. Point (b) :</p><p style="text-align: justify;">As the Collegiate Branch Rules, in view of the above discussion, are applicable for appointment to the post of the Principal it can be filled by 'promotion' only and not by 'direct recruitment'. The pay-scale of the post is not material. The mode of appointment to the post of the Principal given in these rules must be followed.</p><p style="text-align: justify;">10. Point (c) :</p><p style="text-align: justify;">The petitioner is admittedly senior to the respondent No. 5 on the post of Lecturer which is a feeder post for promotion to the post of the Principal. Therefore, the respondent No. 5 cannot be appointed as Principal in preference to the petitioner. The petitioner is 'Acharya' in Sanskrit and therefore she is possessed of the requisite basic qualification.</p><p style="text-align: justify;">11. Normally in such cases the direction which is issued by the Court is to direct the appointing authority to consider the case of the petitioner for promotion. But here that alone would not be enough. As stated above in W.P. No. 2602 of 1994 by order dated 30-8-1995 (Annexure P-14) as per para 10 the respondent Municipal Corporation was directed to 'fill up the post according to the rules within a period of two months. It was further directed that the claim of the respondent No. 4 (petitioner herein) shall be duly considered for the appointment of the post of Principal in accordance with law as she claims to be the senior. However, if any interim arrangement is made the respondent No. 4 who is also fighting since long for her claim shall be considered by the Corporation for that interim arrangement'. The respondent Municipal Corporation did not take this direction seriously and has allowed the respondent No, 5 to work as the Principal of the College by adopting an ingenious device and by resorting to rules, as mentioned in its return, which are applicable to Class III employees. The direction of this Court has been flouted by the Municipal Corporation. As the petitioner is admittedly senior most on the post of Lecturer and she is 'Acharya' in Sanskrit which is the basicqualification, the respondent Municipal Corporation is directed to appoint her as principal within one month of the date of this order. Such a course is permissible in exceptional cases especially when the respondent No. 1 has not followed the directions in the earlier writ petition. [State of Bihar v. B.K. Mishra, (1999) 9 SCC 546]. The notice dated 13-10-1995 calling the applications for direct recruitment to the post of Principal and the selection on that basis are quashed. The respondent No. 5 shall not act as Principal of the College after one month from the date of this order. The respondent Nos. 1 and 2 shall bear their own costs and pay that of the petitioner which are fixed at Rs. 2000/-.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'id' => '510082',
		'acts' => 'Madhya Pradesh Educational Service (Collegiate Branch) Recruitment Rules, 1990 - Rule 6; Service Law',
		'appealno' => 'Writ Petition No. 3412/95',
		'appellant' => 'Mamta Rani Mishra',
		'authreffered' => '',
		'casename' => 'Mamta Rani Mishra Vs. Municipal Corporation and ors.',
		'casenote' => ' Service - Promotion - Petitioner was teacher in college managed by respondent no 1 - Petitioner claimed for promotion to post of principal in college - Respondent no.1 rejected claim - Petitioner filed petition against rejection of claim - Court directed respondent to consider petitioner for promotion as she was senior most lecturer - Thereafter respondent no.1 invited application for direct recruitment to post of principal - Petitioner aggrieved by said action of respondent - Hence, present petition - Held, Court in its previous order directed respondent no.1 to consider petitioner for impugned post - Said order was based on fact that petitioner was possessing requisite qualification as well as she was senior most candidate - Respondent manifestly disregarded order of Court - Hence, advertisement regarding appointment to impugned post liable to be set aside - Petitioner be appointed within stipulated time - Petition accordingly allowed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  Such a course is permissible in exceptional cases especially when the respondent No.',
		'caseanalysis' => null,
		'casesref' => 'State of Bihar v. B.K. Mishra;',
		'citingcases' => '',
		'counselplain' => 'Rohit Arya, Adv.',
		'counseldef' => 'Sanjay K. Agrawal, Adv. for Respondent Nos. 1, 2 and 3, ;A.S. Raizada, Govt. Adv. for Respondent No. 4/State and ;U.N. Awasthy, Adv. for Respondent No. 5',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2002-10-04',
		'deposition' => 'Petition allowed',
		'favorof' => null,
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		'judge' => 'S.P. Khare, J.',
		'judgement' => 'ORDER<p style="text-align: justify;">S.P. Khare, J.</p><p style="text-align: justify;">1. This is a writ petition under Articles 226 and 227 of the Constitution of India challenging the notice dated 13-10-1995 of the respondent No. 1 calling for applications to fill up the post of Principal and for a direction to promote the petitioner on that post.</p><p style="text-align: justify;">2. It is not in dispute that a College known as 'Pandit Loknath Shastri Sanskrit Mahavidhyalaya' (hereinafter to be referred to as the 'College') is being run by respondent No. 1 Municipal Corporation, Jabalpur which is affiliated to respondent No. 6 Avadhesh Pratap Singh Vishwavid-hyalaya, Rewa. The pattern of education in the College is known as 'PrachyaVidhya Pranali'. Sanskrit and other subjects are being taught to the students under this system. The political science is one of them. Hindi is also being taught. Petitioner Mamta Rani Mishra is 'Acharya' in Sanskrit and M.A. in Political Science. She is working as a Lecturer in the College from 19-2-1983. In Writ Petition No. 2602 of 1994 by order dated 30-8-1995, the respondent No. 1 was, inter alia, directed to consider the case of the petitioner being the senior most Lecturer for promotion as Principal. A copy of the said order is Annexure A-14. Respondent No. 5 Mathura Prasad Garg is working as Lecturer in this College from 24-8-1995. He is in current charge of the post of Principal also. This is officiating arrangement. The respondent No. 1 is intending to fill up the post of Principal by 'direct recruitment' and not by promotion. In the impugned notice dated 13-10-1995 it has been specified that the incumbent must possess the Degree of Acharya or M.A. in Sanskrit and must have the 'experience of teaching in Sanskrit' in an institution imparting education on the pattern of Prachya Vidhya Pranali. The applications have been invited only from amongst the persons teaching in schools being run by the Municipal Corporation, Jabalpur. It is also not disputed that except this College no other school or college run by the Municipal Corporation imparts education on Prachya Vidhya pattern. No one else except the respondent No. 5 satisfies the condition of teaching Sanskrit on Prachya Vidhya pattern. The terms and conditions of affiliation issued by respondent No. 6 University prescribe only 'Acharya' degree or 'M.A. in Sanskrit' as qualification for filling up the post of Principal of the College. The requirement of the experience of teaching Sanskrit under Prachya Vidhya Pattern has not been provided as a qualification for preference in the matter of appointment to the post of Principal. The petitioner has been in fact teaching Hindi in the College.</p><p style="text-align: justify;">3. The petitioner's case is that she is much senior to the respondent No. 5 on the post of Lecturer. The post of the Principal can be filled up only by promotion and not by direct recruitment as per M.P. Educational Service (Collegiate Branch) Recruitment Rules, 1990 (hereafter to be referred to as the 'Collegiate Branch Rules'). As per Rule 6 of Schedule II the post of Principal of a College can be filled up '100% by way of promotion'. The petitioner is Acharya in Sanskrit which is equivalent to Degree of M.A. in Sanskrit and therefore she is possessed of the basic qualification for the post of Principal. In the past also the post of the Principal has been filled up by promotion only. The conditions provided in the impugned notice are 'tailor-made' with an eye upon the respondent No. 5 only.</p><p style="text-align: justify;">4. The case of the respondent Nos. 1 and 2 in their return is that the Standing Committee of the Municipal Corporation has fixed the norms on the basis of which the notice calling the applications for the post of the Principal has been issued. According to these respondents the CollegiateBranch Rules are not applicable in the present case as the pay scale of the Principal of this College is much lower than provided in these rules. The plea of these respondents is that the rules which are applicable in the present case are M.P. Education Service (Sanskrit College Higher Education) (non-gazetted Class III) Recruitment Rules, 1990. The respondent No. 5 has pleaded that he is M.A. in Sanskrit and has teaching experience of about 20 years in that subject and therefore he has a right to be appointed as the Principal in preference to the claim of the petitioner who has never taught Sanskrit.</p><p style="text-align: justify;">5. In the return of the respondent No. 4 the State of Madhya Pradesh it is stated that 'Collegiate Branch Rules' are applicable for filling up the post of the Principal and according to those rules it can be filled up by promotion only and not by direct recruitment. Thus, the claim of the petitioner is supported by the State Government.</p><p style="text-align: justify;">6. The points for determination in this petition are--(a) which are the Rules applicable for appointment to the post of Principal in the College, (b) whether the post of Principal can be filled in by promotion or by direct recruitment, and (c) whether the petitioner is entitled to appointment to the post of Principal on the basis of her seniority.</p><p style="text-align: justify;">7. The arguments of the learned Counsel for the parties have been heard on the points referred above.</p><p style="text-align: justify;">8. Point (a) :</p><p style="text-align: justify;">It is conceded by the learned Counsel for respondent No. 1 Municipal Corporation that the M.P. Education Service (Sanskrit College Higher Education Service) (non-gazetted Class III) Recruitment Rules, 1990 are not applicable to fill up the post of the Principal as these rules are applicable to Class III employees and the post of the Principal of the College is a higher post. It is also not disputed that the resolution of the Standing Committee must be in conformity with the statutory rules. Now it is common ground that the Jabalpur Municipal Corporation Bye-laws, 1967 are applicable. These Bye-laws have been approved by the State Government under Section 430 of the Municipal Corporations Act, 1956. As per bye-law No. 3, subject to the provisions of this Act and the rules or bye-laws made thereunder, the Fundamental Rules, the General Book Circulars and Civil Service Regulations made from time to time shall apply mutatis mutandis to the officers and servants of the Corporation, as they apply to the Government servants of the State other than the members of the Indian Administrative Service. The rules comprising 'Fundamental Rules, the General Book circulars and Civil Service Regulations', that is, the entire body of rules applicable to the Government servants by 'reference' have been made applicable to the servants of theMunicipal Corporation. This is referential rule making. The phrase 'mutatis mutandis' means with necessary changes. In such a case 'the reference' is construed to mean that the law as it reads thereafter including amendments subsequent to the time of adoption. [See : Principles of Statutory Interpretation by Justice G.P. Singh, 7th Edition (1999) page 238]. Therefore, the rules applicable to the Government servants as amended from time to time by virtue of the Bye-laws would apply to the servants of the Municipal Corporation. In other words the recruitment rules of the Government would also be applicable to fill up the post of the Principal in the College run by the Municipal Corporation. That is exactly the stand of the petitioner and the State Government in the present case.</p><p style="text-align: justify;">9. Point (b) :</p><p style="text-align: justify;">As the Collegiate Branch Rules, in view of the above discussion, are applicable for appointment to the post of the Principal it can be filled by 'promotion' only and not by 'direct recruitment'. The pay-scale of the post is not material. The mode of appointment to the post of the Principal given in these rules must be followed.</p><p style="text-align: justify;">10. Point (c) :</p><p style="text-align: justify;">The petitioner is admittedly senior to the respondent No. 5 on the post of Lecturer which is a feeder post for promotion to the post of the Principal. Therefore, the respondent No. 5 cannot be appointed as Principal in preference to the petitioner. The petitioner is 'Acharya' in Sanskrit and therefore she is possessed of the requisite basic qualification.</p><p style="text-align: justify;">11. Normally in such cases the direction which is issued by the Court is to direct the appointing authority to consider the case of the petitioner for promotion. But here that alone would not be enough. As stated above in W.P. No. 2602 of 1994 by order dated 30-8-1995 (Annexure P-14) as per para 10 the respondent Municipal Corporation was directed to 'fill up the post according to the rules within a period of two months. It was further directed that the claim of the respondent No. 4 (petitioner herein) shall be duly considered for the appointment of the post of Principal in accordance with law as she claims to be the senior. However, if any interim arrangement is made the respondent No. 4 who is also fighting since long for her claim shall be considered by the Corporation for that interim arrangement'. The respondent Municipal Corporation did not take this direction seriously and has allowed the respondent No, 5 to work as the Principal of the College by adopting an ingenious device and by resorting to rules, as mentioned in its return, which are applicable to Class III employees. The direction of this Court has been flouted by the Municipal Corporation. As the petitioner is admittedly senior most on the post of Lecturer and she is 'Acharya' in Sanskrit which is the basicqualification, the respondent Municipal Corporation is directed to appoint her as principal within one month of the date of this order. Such a course is permissible in exceptional cases especially when the respondent No. 1 has not followed the directions in the earlier writ petition. [State of Bihar v. B.K. Mishra, (1999) 9 SCC 546]. The notice dated 13-10-1995 calling the applications for direct recruitment to the post of Principal and the selection on that basis are quashed. The respondent No. 5 shall not act as Principal of the College after one month from the date of this order. The respondent Nos. 1 and 2 shall bear their own costs and pay that of the petitioner which are fixed at Rs. 2000/-.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'id' => '510082',
			'acts' => 'Madhya Pradesh Educational Service (Collegiate Branch) Recruitment Rules, 1990 - Rule 6; Service Law',
			'appealno' => 'Writ Petition No. 3412/95',
			'appellant' => 'Mamta Rani Mishra',
			'authreffered' => '',
			'casename' => 'Mamta Rani Mishra Vs. Municipal Corporation and ors.',
			'casenote' => ' Service - Promotion - Petitioner was teacher in college managed by respondent no 1 - Petitioner claimed for promotion to post of principal in college - Respondent no.1 rejected claim - Petitioner filed petition against rejection of claim - Court directed respondent to consider petitioner for promotion as she was senior most lecturer - Thereafter respondent no.1 invited application for direct recruitment to post of principal - Petitioner aggrieved by said action of respondent - Hence, present petition - Held, Court in its previous order directed respondent no.1 to consider petitioner for impugned post - Said order was based on fact that petitioner was possessing requisite qualification as well as she was senior most candidate - Respondent manifestly disregarded order of Court - Hence, advertisement regarding appointment to impugned post liable to be set aside - Petitioner be appointed within stipulated time - Petition accordingly allowed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  Such a course is permissible in exceptional cases especially when the respondent No.',
			'caseanalysis' => null,
			'casesref' => 'State of Bihar v. B.K. Mishra;',
			'citingcases' => '',
			'counselplain' => 'Rohit Arya, Adv.',
			'counseldef' => 'Sanjay K. Agrawal, Adv. for Respondent Nos. 1, 2 and 3, ;A.S. Raizada, Govt. Adv. for Respondent No. 4/State and ;U.N. Awasthy, Adv. for Respondent No. 5',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2002-10-04',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.P. Khare, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">S.P. Khare, J.</p><p style="text-align: justify;">1. This is a writ petition under Articles 226 and 227 of the Constitution of India challenging the notice dated 13-10-1995 of the respondent No. 1 calling for applications to fill up the post of Principal and for a direction to promote the petitioner on that post.</p><p style="text-align: justify;">2. It is not in dispute that a College known as 'Pandit Loknath Shastri Sanskrit Mahavidhyalaya' (hereinafter to be referred to as the 'College') is being run by respondent No. 1 Municipal Corporation, Jabalpur which is affiliated to respondent No. 6 Avadhesh Pratap Singh Vishwavid-hyalaya, Rewa. The pattern of education in the College is known as 'PrachyaVidhya Pranali'. Sanskrit and other subjects are being taught to the students under this system. The political science is one of them. Hindi is also being taught. Petitioner Mamta Rani Mishra is 'Acharya' in Sanskrit and M.A. in Political Science. She is working as a Lecturer in the College from 19-2-1983. In Writ Petition No. 2602 of 1994 by order dated 30-8-1995, the respondent No. 1 was, inter alia, directed to consider the case of the petitioner being the senior most Lecturer for promotion as Principal. A copy of the said order is Annexure A-14. Respondent No. 5 Mathura Prasad Garg is working as Lecturer in this College from 24-8-1995. He is in current charge of the post of Principal also. This is officiating arrangement. The respondent No. 1 is intending to fill up the post of Principal by 'direct recruitment' and not by promotion. In the impugned notice dated 13-10-1995 it has been specified that the incumbent must possess the Degree of Acharya or M.A. in Sanskrit and must have the 'experience of teaching in Sanskrit' in an institution imparting education on the pattern of Prachya Vidhya Pranali. The applications have been invited only from amongst the persons teaching in schools being run by the Municipal Corporation, Jabalpur. It is also not disputed that except this College no other school or college run by the Municipal Corporation imparts education on Prachya Vidhya pattern. No one else except the respondent No. 5 satisfies the condition of teaching Sanskrit on Prachya Vidhya pattern. The terms and conditions of affiliation issued by respondent No. 6 University prescribe only 'Acharya' degree or 'M.A. in Sanskrit' as qualification for filling up the post of Principal of the College. The requirement of the experience of teaching Sanskrit under Prachya Vidhya Pattern has not been provided as a qualification for preference in the matter of appointment to the post of Principal. The petitioner has been in fact teaching Hindi in the College.</p><p style="text-align: justify;">3. The petitioner's case is that she is much senior to the respondent No. 5 on the post of Lecturer. The post of the Principal can be filled up only by promotion and not by direct recruitment as per M.P. Educational Service (Collegiate Branch) Recruitment Rules, 1990 (hereafter to be referred to as the 'Collegiate Branch Rules'). As per Rule 6 of Schedule II the post of Principal of a College can be filled up '100% by way of promotion'. The petitioner is Acharya in Sanskrit which is equivalent to Degree of M.A. in Sanskrit and therefore she is possessed of the basic qualification for the post of Principal. In the past also the post of the Principal has been filled up by promotion only. The conditions provided in the impugned notice are 'tailor-made' with an eye upon the respondent No. 5 only.</p><p style="text-align: justify;">4. The case of the respondent Nos. 1 and 2 in their return is that the Standing Committee of the Municipal Corporation has fixed the norms on the basis of which the notice calling the applications for the post of the Principal has been issued. According to these respondents the CollegiateBranch Rules are not applicable in the present case as the pay scale of the Principal of this College is much lower than provided in these rules. The plea of these respondents is that the rules which are applicable in the present case are M.P. Education Service (Sanskrit College Higher Education) (non-gazetted Class III) Recruitment Rules, 1990. The respondent No. 5 has pleaded that he is M.A. in Sanskrit and has teaching experience of about 20 years in that subject and therefore he has a right to be appointed as the Principal in preference to the claim of the petitioner who has never taught Sanskrit.</p><p style="text-align: justify;">5. In the return of the respondent No. 4 the State of Madhya Pradesh it is stated that 'Collegiate Branch Rules' are applicable for filling up the post of the Principal and according to those rules it can be filled up by promotion only and not by direct recruitment. Thus, the claim of the petitioner is supported by the State Government.</p><p style="text-align: justify;">6. The points for determination in this petition are--(a) which are the Rules applicable for appointment to the post of Principal in the College, (b) whether the post of Principal can be filled in by promotion or by direct recruitment, and (c) whether the petitioner is entitled to appointment to the post of Principal on the basis of her seniority.</p><p style="text-align: justify;">7. The arguments of the learned Counsel for the parties have been heard on the points referred above.</p><p style="text-align: justify;">8. Point (a) :</p><p style="text-align: justify;">It is conceded by the learned Counsel for respondent No. 1 Municipal Corporation that the M.P. Education Service (Sanskrit College Higher Education Service) (non-gazetted Class III) Recruitment Rules, 1990 are not applicable to fill up the post of the Principal as these rules are applicable to Class III employees and the post of the Principal of the College is a higher post. It is also not disputed that the resolution of the Standing Committee must be in conformity with the statutory rules. Now it is common ground that the Jabalpur Municipal Corporation Bye-laws, 1967 are applicable. These Bye-laws have been approved by the State Government under Section 430 of the Municipal Corporations Act, 1956. As per bye-law No. 3, subject to the provisions of this Act and the rules or bye-laws made thereunder, the Fundamental Rules, the General Book Circulars and Civil Service Regulations made from time to time shall apply mutatis mutandis to the officers and servants of the Corporation, as they apply to the Government servants of the State other than the members of the Indian Administrative Service. The rules comprising 'Fundamental Rules, the General Book circulars and Civil Service Regulations', that is, the entire body of rules applicable to the Government servants by 'reference' have been made applicable to the servants of theMunicipal Corporation. This is referential rule making. The phrase 'mutatis mutandis' means with necessary changes. In such a case 'the reference' is construed to mean that the law as it reads thereafter including amendments subsequent to the time of adoption. [See : Principles of Statutory Interpretation by Justice G.P. Singh, 7th Edition (1999) page 238]. Therefore, the rules applicable to the Government servants as amended from time to time by virtue of the Bye-laws would apply to the servants of the Municipal Corporation. In other words the recruitment rules of the Government would also be applicable to fill up the post of the Principal in the College run by the Municipal Corporation. That is exactly the stand of the petitioner and the State Government in the present case.</p><p style="text-align: justify;">9. Point (b) :</p><p style="text-align: justify;">As the Collegiate Branch Rules, in view of the above discussion, are applicable for appointment to the post of the Principal it can be filled by 'promotion' only and not by 'direct recruitment'. The pay-scale of the post is not material. The mode of appointment to the post of the Principal given in these rules must be followed.</p><p style="text-align: justify;">10. Point (c) :</p><p style="text-align: justify;">The petitioner is admittedly senior to the respondent No. 5 on the post of Lecturer which is a feeder post for promotion to the post of the Principal. Therefore, the respondent No. 5 cannot be appointed as Principal in preference to the petitioner. The petitioner is 'Acharya' in Sanskrit and therefore she is possessed of the requisite basic qualification.</p><p style="text-align: justify;">11. Normally in such cases the direction which is issued by the Court is to direct the appointing authority to consider the case of the petitioner for promotion. But here that alone would not be enough. As stated above in W.P. No. 2602 of 1994 by order dated 30-8-1995 (Annexure P-14) as per para 10 the respondent Municipal Corporation was directed to 'fill up the post according to the rules within a period of two months. It was further directed that the claim of the respondent No. 4 (petitioner herein) shall be duly considered for the appointment of the post of Principal in accordance with law as she claims to be the senior. However, if any interim arrangement is made the respondent No. 4 who is also fighting since long for her claim shall be considered by the Corporation for that interim arrangement'. The respondent Municipal Corporation did not take this direction seriously and has allowed the respondent No, 5 to work as the Principal of the College by adopting an ingenious device and by resorting to rules, as mentioned in its return, which are applicable to Class III employees. The direction of this Court has been flouted by the Municipal Corporation. As the petitioner is admittedly senior most on the post of Lecturer and she is 'Acharya' in Sanskrit which is the basicqualification, the respondent Municipal Corporation is directed to appoint her as principal within one month of the date of this order. Such a course is permissible in exceptional cases especially when the respondent No. 1 has not followed the directions in the earlier writ petition. [State of Bihar v. B.K. Mishra, (1999) 9 SCC 546]. The notice dated 13-10-1995 calling the applications for direct recruitment to the post of Principal and the selection on that basis are quashed. The respondent No. 5 shall not act as Principal of the College after one month from the date of this order. The respondent Nos. 1 and 2 shall bear their own costs and pay that of the petitioner which are fixed at Rs. 2000/-.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2003(1)MPHT466',
			'ratiodecidendi' => '',
			'respondent' => 'Municipal Corporation and ors.',
			'sub' => 'Service',
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	'Judgement' => array(
		'id' => '510082',
		'acts' => 'Madhya Pradesh Educational Service (Collegiate Branch) Recruitment Rules, 1990 - Rule 6; Service Law',
		'appealno' => 'Writ Petition No. 3412/95',
		'appellant' => 'Mamta Rani Mishra',
		'authreffered' => '',
		'casename' => 'Mamta Rani Mishra Vs. Municipal Corporation and ors.',
		'casenote' => ' Service - Promotion - Petitioner was teacher in college managed by respondent no 1 - Petitioner claimed for promotion to post of principal in college - Respondent no.1 rejected claim - Petitioner filed petition against rejection of claim - Court directed respondent to consider petitioner for promotion as she was senior most lecturer - Thereafter respondent no.1 invited application for direct recruitment to post of principal - Petitioner aggrieved by said action of respondent - Hence, present petition - Held, Court in its previous order directed respondent no.1 to consider petitioner for impugned post - Said order was based on fact that petitioner was possessing requisite qualification as well as she was senior most candidate - Respondent manifestly disregarded order of Court - Hence, advertisement regarding appointment to impugned post liable to be set aside - Petitioner be appointed within stipulated time - Petition accordingly allowed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  Such a course is permissible in exceptional cases especially when the respondent No.',
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		'casesref' => 'State of Bihar v. B.K. Mishra;',
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		'counselplain' => 'Rohit Arya, Adv.',
		'counseldef' => 'Sanjay K. Agrawal, Adv. for Respondent Nos. 1, 2 and 3, ;A.S. Raizada, Govt. Adv. for Respondent No. 4/State and ;U.N. Awasthy, Adv. for Respondent No. 5',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2002-10-04',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.P. Khare, J.',
		'judgement' => 'ORDER<p style="text-align: justify;">S.P. Khare, J.</p><p style="text-align: justify;">1. This is a writ petition under Articles 226 and 227 of the Constitution of India challenging the notice dated 13-10-1995 of the respondent No. 1 calling for applications to fill up the post of Principal and for a direction to promote the petitioner on that post.</p><p style="text-align: justify;">2. It is not in dispute that a College known as 'Pandit Loknath Shastri Sanskrit Mahavidhyalaya' (hereinafter to be referred to as the 'College') is being run by respondent No. 1 Municipal Corporation, Jabalpur which is affiliated to respondent No. 6 Avadhesh Pratap Singh Vishwavid-hyalaya, Rewa. The pattern of education in the College is known as 'PrachyaVidhya Pranali'. Sanskrit and other subjects are being taught to the students under this system. The political science is one of them. Hindi is also being taught. Petitioner Mamta Rani Mishra is 'Acharya' in Sanskrit and M.A. in Political Science. She is working as a Lecturer in the College from 19-2-1983. In Writ Petition No. 2602 of 1994 by order dated 30-8-1995, the respondent No. 1 was, inter alia, directed to consider the case of the petitioner being the senior most Lecturer for promotion as Principal. A copy of the said order is Annexure A-14. Respondent No. 5 Mathura Prasad Garg is working as Lecturer in this College from 24-8-1995. He is in current charge of the post of Principal also. This is officiating arrangement. The respondent No. 1 is intending to fill up the post of Principal by 'direct recruitment' and not by promotion. In the impugned notice dated 13-10-1995 it has been specified that the incumbent must possess the Degree of Acharya or M.A. in Sanskrit and must have the 'experience of teaching in Sanskrit' in an institution imparting education on the pattern of Prachya Vidhya Pranali. The applications have been invited only from amongst the persons teaching in schools being run by the Municipal Corporation, Jabalpur. It is also not disputed that except this College no other school or college run by the Municipal Corporation imparts education on Prachya Vidhya pattern. No one else except the respondent No. 5 satisfies the condition of teaching Sanskrit on Prachya Vidhya pattern. The terms and conditions of affiliation issued by respondent No. 6 University prescribe only 'Acharya' degree or 'M.A. in Sanskrit' as qualification for filling up the post of Principal of the College. The requirement of the experience of teaching Sanskrit under Prachya Vidhya Pattern has not been provided as a qualification for preference in the matter of appointment to the post of Principal. The petitioner has been in fact teaching Hindi in the College.</p><p style="text-align: justify;">3. The petitioner's case is that she is much senior to the respondent No. 5 on the post of Lecturer. The post of the Principal can be filled up only by promotion and not by direct recruitment as per M.P. Educational Service (Collegiate Branch) Recruitment Rules, 1990 (hereafter to be referred to as the 'Collegiate Branch Rules'). As per Rule 6 of Schedule II the post of Principal of a College can be filled up '100% by way of promotion'. The petitioner is Acharya in Sanskrit which is equivalent to Degree of M.A. in Sanskrit and therefore she is possessed of the basic qualification for the post of Principal. In the past also the post of the Principal has been filled up by promotion only. The conditions provided in the impugned notice are 'tailor-made' with an eye upon the respondent No. 5 only.</p><p style="text-align: justify;">4. The case of the respondent Nos. 1 and 2 in their return is that the Standing Committee of the Municipal Corporation has fixed the norms on the basis of which the notice calling the applications for the post of the Principal has been issued. According to these respondents the CollegiateBranch Rules are not applicable in the present case as the pay scale of the Principal of this College is much lower than provided in these rules. The plea of these respondents is that the rules which are applicable in the present case are M.P. Education Service (Sanskrit College Higher Education) (non-gazetted Class III) Recruitment Rules, 1990. The respondent No. 5 has pleaded that he is M.A. in Sanskrit and has teaching experience of about 20 years in that subject and therefore he has a right to be appointed as the Principal in preference to the claim of the petitioner who has never taught Sanskrit.</p><p style="text-align: justify;">5. In the return of the respondent No. 4 the State of Madhya Pradesh it is stated that 'Collegiate Branch Rules' are applicable for filling up the post of the Principal and according to those rules it can be filled up by promotion only and not by direct recruitment. Thus, the claim of the petitioner is supported by the State Government.</p><p style="text-align: justify;">6. The points for determination in this petition are--(a) which are the Rules applicable for appointment to the post of Principal in the College, (b) whether the post of Principal can be filled in by promotion or by direct recruitment, and (c) whether the petitioner is entitled to appointment to the post of Principal on the basis of her seniority.</p><p style="text-align: justify;">7. The arguments of the learned Counsel for the parties have been heard on the points referred above.</p><p style="text-align: justify;">8. Point (a) :</p><p style="text-align: justify;">It is conceded by the learned Counsel for respondent No. 1 Municipal Corporation that the M.P. Education Service (Sanskrit College Higher Education Service) (non-gazetted Class III) Recruitment Rules, 1990 are not applicable to fill up the post of the Principal as these rules are applicable to Class III employees and the post of the Principal of the College is a higher post. It is also not disputed that the resolution of the Standing Committee must be in conformity with the statutory rules. Now it is common ground that the Jabalpur Municipal Corporation Bye-laws, 1967 are applicable. These Bye-laws have been approved by the State Government under Section 430 of the Municipal Corporations Act, 1956. As per bye-law No. 3, subject to the provisions of this Act and the rules or bye-laws made thereunder, the Fundamental Rules, the General Book Circulars and Civil Service Regulations made from time to time shall apply mutatis mutandis to the officers and servants of the Corporation, as they apply to the Government servants of the State other than the members of the Indian Administrative Service. The rules comprising 'Fundamental Rules, the General Book circulars and Civil Service Regulations', that is, the entire body of rules applicable to the Government servants by 'reference' have been made applicable to the servants of theMunicipal Corporation. This is referential rule making. The phrase 'mutatis mutandis' means with necessary changes. In such a case 'the reference' is construed to mean that the law as it reads thereafter including amendments subsequent to the time of adoption. [See : Principles of Statutory Interpretation by Justice G.P. Singh, 7th Edition (1999) page 238]. Therefore, the rules applicable to the Government servants as amended from time to time by virtue of the Bye-laws would apply to the servants of the Municipal Corporation. In other words the recruitment rules of the Government would also be applicable to fill up the post of the Principal in the College run by the Municipal Corporation. That is exactly the stand of the petitioner and the State Government in the present case.</p><p style="text-align: justify;">9. Point (b) :</p><p style="text-align: justify;">As the Collegiate Branch Rules, in view of the above discussion, are applicable for appointment to the post of the Principal it can be filled by 'promotion' only and not by 'direct recruitment'. The pay-scale of the post is not material. The mode of appointment to the post of the Principal given in these rules must be followed.</p><p style="text-align: justify;">10. Point (c) :</p><p style="text-align: justify;">The petitioner is admittedly senior to the respondent No. 5 on the post of Lecturer which is a feeder post for promotion to the post of the Principal. Therefore, the respondent No. 5 cannot be appointed as Principal in preference to the petitioner. The petitioner is 'Acharya' in Sanskrit and therefore she is possessed of the requisite basic qualification.</p><p style="text-align: justify;">11. Normally in such cases the direction which is issued by the Court is to direct the appointing authority to consider the case of the petitioner for promotion. But here that alone would not be enough. As stated above in W.P. No. 2602 of 1994 by order dated 30-8-1995 (Annexure P-14) as per para 10 the respondent Municipal Corporation was directed to 'fill up the post according to the rules within a period of two months. It was further directed that the claim of the respondent No. 4 (petitioner herein) shall be duly considered for the appointment of the post of Principal in accordance with law as she claims to be the senior. However, if any interim arrangement is made the respondent No. 4 who is also fighting since long for her claim shall be considered by the Corporation for that interim arrangement'. The respondent Municipal Corporation did not take this direction seriously and has allowed the respondent No, 5 to work as the Principal of the College by adopting an ingenious device and by resorting to rules, as mentioned in its return, which are applicable to Class III employees. The direction of this Court has been flouted by the Municipal Corporation. As the petitioner is admittedly senior most on the post of Lecturer and she is 'Acharya' in Sanskrit which is the basicqualification, the respondent Municipal Corporation is directed to appoint her as principal within one month of the date of this order. Such a course is permissible in exceptional cases especially when the respondent No. 1 has not followed the directions in the earlier writ petition. [State of Bihar v. B.K. Mishra, (1999) 9 SCC 546]. The notice dated 13-10-1995 calling the applications for direct recruitment to the post of Principal and the selection on that basis are quashed. The respondent No. 5 shall not act as Principal of the College after one month from the date of this order. The respondent Nos. 1 and 2 shall bear their own costs and pay that of the petitioner which are fixed at Rs. 2000/-.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'pubs' => '2003(1)MPHT466',
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PERSON: Khare, Principal, Rewa, Sanskrit, Hindi, Rani Mishra, Lecturer, Principal, Principal, Sanskrit, Hindi, Principal, Nos, Principal, Principal, Principal, Principal, Principal, Principal, Principal, G.P. Singh, Principal, Principal, B.K. Mishra, Principal, Nos

NORP: J.1

CARDINAL: 226, 227, 13, 1, 1, 6, 19, 30-8-1995, 1, 5, 24, 1, 13, 5, 6, 5, 5, 1, 2, 4, 3, 238, 5, 30-8-1995, 10, 4, 4, 5, 9, 546, 13, 5, 1, 2, 2000/-

GPE: India, Jabalpur, Sanskrit, M.A., M.A., Sanskrit, Sanskrit, Jabalpur, M.A., Sanskrit, Principal, Lecturer, Sanskrit, M.A., Sanskrit, Principal, M.A., Sanskrit, Lecturer, Sanskrit, Lecturer, Sanskrit, Bihar

ORG: College, the 'College', College, College, Lecturer, Principal, Mathura Prasad Garg, the Municipal Corporation, the Municipal Corporation, University, Principal of the College, Sanskrit, Prachya Vidhya Pattern, M.P. Educational Service, Principal of a College, Acharya, the Standing Committee of the Municipal Corporation, the Principal of this College, M.P. Education Service, Sanskrit College Higher Education, the State of Madhya Pradesh, State, College, the M.P. Education Service, Sanskrit College Higher Education Service, College, the Standing Committee, the Jabalpur Municipal Corporation Bye-laws, the State Government, the Fundamental Rules, Corporation, Government, State, the Indian Administrative Service, Fundamental Rules, Government, theMunicipal Corporation, Government, the Municipal Corporation, Government, College, the Municipal Corporation, the State Government, the Collegiate Branch Rules, Court, W.P. No, Municipal Corporation, Corporation, Municipal Corporation, the Principal of the College, Court, the Municipal Corporation, Municipal Corporation, Principal of the College

WORK_OF_ART: Acharya, Annexure A-14, Acharya, 7th Edition, Acharya, Acharya

DATE: 2602 of 1994, 1990, 1990, about 20 years, 1990, 1967, 1956, 1999, qualification.11, 2602 of 1994, a period of, two months, one month, 1999, one month

FAC: Prachya Vidhya Pranali, Prachya Vidhya, Prachya Vidhya