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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 14735   OF 2015 (Arising out of SLP(C) 30768 of 2014)

Pramod        …..Appellant   

Versus

State of Maharashtra & Ors.                        ....Respondents  

J U D G M E N T

SHIVA KIRTI SINGH, J.

1. Leave granted.

2. This appeal raises a question of law as to whether as a senior  

most lecturer in a private Polytechnic Institution administered by  

Shri Shiva Ji Education Society-Respondent No.4, the appellant is  

entitled to be considered for appointment to the post of Principal  

because it is required to be made only by promotion by virtue of  

Rule  3  of  the  Maharashtra  Employees  of  Private  Schools  

(Conditions of Service) Rules, 1981 (for brevity the ‘MEPS Rules’)  

framed  under  the  Maharashtra  Employees  of  Private  Schools  

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

Act’).

3. Although  the  seniority,  qualification  and  eligibility  of  the  

appellant for appointment to the post of Principal was not under  

question before the Division Bench of the High Court, before us an  

attempt was made not only to oppose the appellant’s claim on the  

basis of impugned judgment under appeal which holds that under  

the law appointment is not necessarily by promotion alone, it can  

be also by nomination, i.e., direct recruitment, but also to contest  

the claim of the appellant on the ground of qualification as well as  

his  age.  The  issue  of  age  has  arisen  due  to  subsequent  

development.  On account of passage of time, when this matter was  

already  pending  before  this  Court,  the  appellant  completed  60  

years and was made to superannuate on 31.3.2015.  Since there  

was an order of status quo in appellant’s favour, contempt petition  

was also filed but instead of pressing the same, Mr. C.U. Singh,  

learned senior counsel for the appellant has preferred to argue the  

main matter itself.  Before answering the question of law, noticed  

earlier, the relevant facts may be noted in brief.

4.    The  appellant  was  appointed  to  the  post  of  Assistant  

Lecturer  in  Civil  Engineering  Department  of  Dr.  Punjabrao  

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Deshmukh Polytechnic, Amravati administered by the Respondent-  

Shivaji  Education  Society  on  30th July,  1977.   His  service  was  

approved  w.e.f.  1.7.1979.   The  appellant  holds  qualifications  of  

Bachelor  of  Engineering  (Civil)  in  first  class  and  Master  of  

Engineering  (Structure)  also  in  first  class.  On  1.4.1993  the  

appellant was appointed as lecturer (Selection Grade).  His seniority  

is duly shown in the seniority list issued on 1.7.1997 by the office  

of the Principal of  Polytechnic.   The appellant worked as Project  

Officer between 4.2.2000 and 30.7.2007.  This post is said to be  

equivalent to the post of   Head of Department.  The appellant also  

worked as In-charge Head of Department of Civil Engineering from  

8.8.2005 to 13.2.2008 to which he was selected and appointed on  

regular  basis  also.   In  the  meantime  on  5.7.2007  the  post  of  

Principal  fell  vacant  due  to  voluntary  retirement  of  the  then  

Principal.   The  appellant  claimed  that  he  should  be  given  the  

charge of that post on the basis of his seniority but another person  

was appointed as officiating Principal on 9.7.2007.  The appellant  

challenged  such  action  by  preferring  a  writ  petition  No.3230  of  

2007 in 2007.  That writ petition was dismissed on the ground that  

the appellant had alternative remedy of appeal under Section 9 of  

the MEPS Act before the School Tribunal.  The appellant thereafter,  

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preferred  appeal  No.  39  of  2007  before  the  Tribunal  which  

dismissed the appeal as pre-mature on 11.10.2007.  Against the  

said order of School Tribunal, the appellant preferred another writ  

petition bearing No. 5748 of 2007.   

5. During  the  pendency  of  the  said  writ  petition,  the  society  

issued  an  advertisement  inviting  applications  for  direct  

appointment to the post of Principal.  The appellant challenged that  

advertisement dated 21.11.2007 and prayed for a direction to the  

society to appoint him as Principal by granting promotion.   The  

High  Court  restrained  issuance  of  final  appointment  order  and  

ultimately disposed of the writ petition on 15.9.2009 by holding in  

favour of the appellant that he was entitled to all the benefits as  

officiating  Principal  from  9.7.2007  but  did  not  enter  into  the  

controversy as to who should be selected and appointed as regular  

Principal.  Since that issue was left open, the appellant preferred  

another  writ  petition  No.  4235  of  2009  claiming  that  he  was  

entitled to be promoted to the post of Principal under Rule 3(3) of  

the MEPS Rules on account of being the senior most lecturer of the  

polytechnic.

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

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

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Council  for  Technical  Education  [Pay-scales,  Service  Conditions,  

and Qualifications of  the Teachers and other Academic Staffs in  

Technical  Institutions  (Diploma)]  Regulations  2010.   The  writ  

petition was disposed of on 29.7.2010.  The High Court allowed the  

Society  to  approach  the  Director  of  Technical  Education  for  

permission  to  issue  fresh  advertisement  and  left  it  open  to  the  

appellant to make a representation to the Director for staking his  

claim of promotion to the post of Principal and to raise the issue  

that no advertisement was required in view of the MEPS Rules and  

the  particular  facts.   The  Director  was  given  six  weeks  time  to  

consider the application of the Society and also the representation  

of  the  appellant  and  in  the  meanwhile  the  appellant  was  to  

continue as In-charge Principal.  For one reason or the other the  

matter remained with the respondent-Director and in the meantime  

on 10.9.2012 the State of Maharashtra through the Department of  

Higher  and  Technical  Education  notified  Rules  entitled-  The  

Principal,  Head  of  Department,  Lecturer  and  Workshop  

Superintendent  in  Government  Polytechnic  and  Equivalent  

Institutes (Recruitment) Rules 2012 (hereinafter referred to as ‘the  

Government Rules 2012).

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7. The Director-Respondent No.2 by his order dated 17.10.2012  

placed reliance on the Government Rules 2012 and rejected the  

appellant’s prayer by holding that the post of Principal had to be  

filled  up  by  nomination,  i.e.,  direct  recruitment.   The  appellant  

preferred writ petition No. 652 of 2013 for quashing of Director’s  

order and for directions to the concerned authorities to promote the  

appellant to the post of Principal with all benefits. The writ petition  

was  dismissed  on  10.10.2014  giving  rise  to  the  Special  Leave  

Petition  and  the  present  appeal.   While  issuing  notice  on  

21.11.2014  in  the  special  leave  petition,  this  Court  directed  for  

maintenance of status quo as regards the service of the petitioner-

appellant.

8. The Division Bench of the High Court has held in favour of  

the  appellant  that  as  per  an  earlier  Full  Bench  judgment,  the  

provisions  of  MEPS  Act  and  MEPS  Rules  are  applicable  to  

employees working in polytechnic colleges which being institutions  

imparting technical education stand covered by the term ‘School’ as  

defined under Section 2(24) of the MEPS Act.  In fact, in that view  

of the matter, in the earlier round the appellant was relegated to  

avail statutory remedy of appeal before the School Tribunal.  The  

Division Bench noticed the qualifications prescribed for the post of  

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Principal by the AICTE which the appellant fulfils.  However, the  

Division Bench accepted the stand of the respondent-State that in  

view  of  recommendations  of  AICTE  made  through  letter  dated  

20.12.1999,  the  State  Government  had  passed  a  resolution  for  

accepting those recommendations on 27.2.2003 and therefore, the  

provisions  of  MEPS Rules  providing for  promotion  of  the  senior  

most teacher to the post of Principal will not hold the field and that  

as per recommendations of AICTE, recruitment of 50% cadre posts  

is  required  to  be  by  open  selection  through  advertisement  at  

national level and only 50% by promotion on the basis of seniority-

cum-merit.   On  this  plea  the  High  Court  decided  against  the  

appellant and held that it was unable to hold that post of Principal  

in a private polytechnic has to be filled up necessarily by promotion  

though so provided in Rule 3(3) of the MEPS Rules.  This relevant  

Rule is extracted in the judgment of the High Court and reads as  

follows :-    

“3. Qualifications and appointment of Head.

(1) A person to be appointed as the  Head (a) (i) of a primary school having an enrollment of  students above 200 or having Standards I to VII shall be  the senior most trained teacher who has put in not less  than five years’ service: and  

(ii) Of any other primary school shall be the  Senior-most trained teacher in the School;

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(b) of a secondary school including night school or a  Junior College of Education shall  be a graduate  possessing  Bachelor’s  degree  in  teaching  or  education of  a statutory University or any other  qualification  recognized  by  Government  as  equivalent  thereto and possessing not  less  than  five years’, total fulltime teaching experience after  graduation  in  a  secondary  school  or  a  Junior  College  of  Education  out  of  which  at  least  two  years’  experience  shall  be  after  acquiring  Bachelor’s degree in teaching or education:

Provided that, in the case of a person to be appointed as  the Head of a night secondary school –  

(i) he shall not be the one who is holding the post of  Head or Assistant Head of a day school, and

(ii) the  experience  laid  down  in  clause  (b)  of  sub- rule(1) may be as a part time teacher.

(2)     x   x   x   x  x  

(3)     The Management of a school including a night  school shall fill up the post of the Head by appointing  the  senior-most  member  of  the  teaching  staff  (in  accordance with the guidelines laid down in Schedule  “F” from amongst those employed in a school (if it is the  only school run by the Management) or schools [if there  are  more  than  one  school  (excluding  night  school)  conducted by it] who fulfills the conditions laid down in  sub-rule(1)  and  who  has  a  satisfactory  record  of  service.”

9. On  behalf  of  the  appellant,  it  was  pointed  out  that  the  

judgment  under  appeal  has  correctly  held  that  the  Government  

Rules  2012 apply  only  to  Government  polytechnic  or  equivalent  

institute,  i.e.,  the  institute  having  same  status  as  that  of  

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Government polytechnic and not a private polytechnic, as in the  

case at hand.  It was further submitted that this view of the High  

Court  knocks  out  the  basis  of  the  Director’s  order  against  the  

appellant  which was impugned before the High Court  and there  

was no necessity for the High Court to examine any other issue.

10. An emphatic stand was taken on behalf of the appellant that  

except in the Government Rules, 2012, there is no provision made  

by the State Government or by the AICTE in respect of mode of  

filling  up  of  the  post  of  Principal  and  none  at  all  for  a  private  

polytechnic.  Hence, according to the learned senior counsel for the  

appellant, Rule 3(3) of the MEPS Rules being statutory, cannot be  

ignored by the respondent authorities and those alone apply to the  

claim  of  the  appellant  which  deserves  to  be  allowed  but  was  

wrongly disallowed by the Director and the High Court.

11. On the other hand, learned counsel for the Society took the  

stand  that  the  High  Court  had  erred  in  holding  that  the  

Government Rules 2012 cannot apply to the polytechnic at hand on  

the ground that it is a private aided institute.  According to him,  

since,  the society ultimately succeeded before the High Court,  it  

was  not  obliged  to  come  in  appeal  against  the  adverse  finding  

noticed above and is entitled to challenge that finding to further  

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support  the  final  conclusions  of  the  High  Court.   In  such  a  

situation  we  granted  further  time  to  the  State  Government  of  

Maharashtra  to  file  an affidavit  on the  issue  as  to  whether  the  

Government Rules 2012 apply to the respondent polytechnic which  

is a private aided institute.  Such affidavit dated 8.12.2015 is now  

on record and it is the firm stand of the State Government that the  

Government  Rules  2012  are  not  applicable  to  the  respondent  

polytechnic as it is only a private aided institute.

12. We have ourselves also examined the said rules, 2012 and we  

find ourselves in agreement with the views expressed by the High  

Court that these Rules will not apply to private aided polytechnic  

such as the respondent’s polytechnic.  As a result there is no other  

Statutory Act or Rule to take away the force of  Rule 3(3) of  the  

MEPS Rules which requires the management of  the polytechnic,  

which is covered by the definition of the ‘School’ under the MEPS  

Act, to fill up the post of the Head of Institution, i.e., the Principal  

by  appointing  the  senior  most  member  of  the  teaching  staff  in  

accordance  with  the  guidelines  laid  down  in  Schedule  ‘F’  from  

amongst the teachers employed in the school.  It is not in dispute  

that  respondent-polytechnic  is  the  only  polytechnic  run  by  the  

Management.   Schedule  ‘F’  to  the  Rules  prescribes  only  the  

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guidelines  for  fixation  of  seniority  in  different  schools.  In  the  

present case, there is no dispute that the appellant is senior most  

teacher in the polytechnic.  Sub-rule (5)  of  Rule 3 permits direct  

recruitment only after obtaining prior permission of the competent  

Government  Officer  in  a  situation  where  no  suitable  teacher  

possessing the prescribed qualifications is available for promotion  

as Head.

13. In our considered view the High Court has erred in law in  

holding that  the mode of  appointment by promotion under Rule  

3(3) of the MEPS Rules cannot be applied to a polytechnic although  

it is a school because there is no separate qualification prescribed  

for  a  polytechnic  in  sub-rule(1)  of  Rule  3.   The  said  sub-rule  

contains the qualifications and appointment of Head not only for  

primary  schools  but  also  for  secondary  school  including  night  

school  or  a  junior  college  of  education.   Appellant  fulfils  those  

qualifications. Further it is nobody’s case that the appellant does  

not fulfill the educational qualification for the post of Principal of a  

polytechnic even as prescribed by the AICTE.  In such a situation  

the mode of appointment prescribed under the statutory Rule 3(3)  

could  not  have  been  ignored  and  since  the  appellant  was  

admittedly  the  senior  most  member  of  the  teaching staff  in  the  

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polytechnic  at  the  relevant  time,  as  also  held  in  the  earlier  

judgment of the High Court when he was declared entitled to all the  

benefits of In-charge Principal  of  the polytechnic since 9.7.2007,  

the  appellant  could  not  have  been  denied  appointment  by  

promotion to the vacant post of Principal.  The respondent-Director  

erred in rejecting the appellant’s claim and in not issuing directions  

for  his  appointment  by  promotion  while  passing  order  on  the  

representation  of  the  appellant  and  rejecting  the  same  on  

17.10.2012.  The writ petition preferred by the appellant against  

that order has also been wrongly dismissed by the High Court by  

the order under appeal dated 10.10.2014.

14. In view of aforesaid findings, it is to be worked out as to what  

relief  the  appellant  deserves  to  be  granted  now  when  the  

respondent-society  has  proceeded  to  superannuate  him  w.e.f.  

31.3.2015  without  seeking  permission  of  this  Court  and  acting  

contrary to the status-quo order passed on 21.11.2014.

15. On the issue of age of superannuation, there was no occasion  

for the High Court to consider the relevant Rules or Notifications  

and before us there is a serious controversy as to whether the age  

of  superannuation on the post of  a teacher other than Principal  

ought to be 60, 62 or 65 years.  According to respondent, the State  

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Government  had  issued  a  Notification  through  the  Higher  and  

Technical  Education Department dated 5th March, 2010 whereby  

the  age  of  superannuation  for  non-government  polytechnic  

institutions has been increased from 58 years to 60 years and it  

can be extended upto 62 years only after obtaining prior approval  

of the State Government.   Similarly, for the post of Principal the  

age of superannuation has been increased to 65 years but with the  

rider that State Government should grant approval for any further  

extension beyond 62 years.  On the other hand, the stand of the  

appellant is that he has been arbitrarily ignored and not considered  

for extension because of pending litigation against the Management  

of the respondent-society since several years.  It is further case of  

the appellant that: State Government has never differed with the  

recommendation  of  the  AICTE  on  the  issue  of  age  of  

superannuation;  in  exercise  of  its  statutory  powers  under  sub-

section (1) of Section 23 read with Section 10(i) and (v), of the All  

India Council  for Technical  Education Act,  1987, the AICTE has  

issued the Regulations dated 5th March, 2010; and the Regulations,  

inter alia, provide for age of superannuation and since they apply  

to technical institutions conducting technical education and such  

other  courses/programmes and areas as  notified by the Council  

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from time to time, the age of superannuation for teachers of the  

Polytechnic  stand  enhanced  to  65  years  with  sole  exception  of  

Librarian whose age of superannuation continues to be 62 years.

16. From the materials and rival contentions noted above, it is  

evident  that  even  as  a  teacher  the  appellant’s  age  of  

superannuation could have been considered for extension upto 62  

years if steps had been taken for the same in due course. Morevoer,  

the Regulations of AICTE being statutory, unless these have been  

superseded or annulled by a competent authority, the appellant’s  

age of superannuation stood extended upto 65 years.  Lastly and in  

any event, this Court had directed for maintenance of status-quo in  

respect of appellant’s service and such order has been ignored by  

the  concerned  respondents  by  proceeding  to  superannuate  the  

appellant at the age of 60 years.  Yet another dimension requires  

special consideration in the interest of justice. As per the statutory  

MEPS Rules, the appellant should have been promoted as the Head  

of the School or in other words Principal of the polytechnic long  

back and in any case by the end of the year 2012, provided the  

respondent-Director had not passed an illegal and erroneous order  

on  17.10.2012,  when  he  wrongly  proceeded  to  apply  the  

Government Rules 2012 to the private respondent polytechnic.  If a  

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correct view had been taken by the respondent-Director then by the  

end of 2012, the appellant would have been occupying the post of  

Principal in the respondent polytechnic and then he would not have  

superannuated before 65 years or in any case before 62 years of  

age.

17. In the facts noticed above and since there is some confusion  

and lack of assistance on the issue of age of superannuation from  

the side of respondents and also because there is no discussion on  

this issue in the judgment under appeal, we refrain to lay down the  

law in this regard.  But in the interest of justice, we deem it proper  

to direct for immediate reinstatement of the appellant within two  

weeks from today.  Ordinarily we would have directed Management  

of  the  respondent  society  to  consider  the  appellant’s  case  for  

promotion and pass appropriate orders in accordance with law but  

from the materials on record as well as from the submissions in the  

course  of  hearing,  we  have  gathered  an  impression  that  the  

Management of the Respondent Society cannot be presumed to be  

just and fair to the appellant and expected to act in accordance  

with law.  Hence, instead of relegating the appellant to the mercy of  

the  Management,  we  direct  the  concerned  respondents  to  issue  

order of reinstatement and also appointment of  the appellant by  

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promotion to the post of  Principal of  the respondent polytechnic  

within four weeks from today.   

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

promotion to the post of Principal w.e.f. 1st December, 2012 as this  

in  normal  course  should  have  been  the  time  taken  for  such  

promotion if the respondent-Director had not passed a wrong order  

on  17.10.2012.  The  appellant  shall  also  be  entitled  to  all  

consequential benefits on the basis of such promotion.  Since the  

appellant’s  service  was  disturbed  by  superannuating  him  w.e.f.  

31.3.2015 contrary  to  our interim order,  he shall  be  deemed to  

have continued in service without interruption even after 31.3.2015  

with entitlement to full salary and other permissible emoluments  

for the entire period till reinstatement.   

19. Appeal  is  allowed  in  the  aforesaid  terms  with  cost  of  

Rs.50,000/-.  The cost shall be payable by the Respondent No.4-

Society to the appellant alongwith other arrears within two months.

     ………………………………..…….J.       [VIKRAMAJIT SEN]

      ………………………………….…..J.                  [SHIVA KIRTI SINGH]

New Delhi. December 29, 2015.

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