Anand vs Gajanan Bahuuddeshiya Shikshan Sanstha And Others

Anil L. Pansare, J

Heard.

The petitioner has approached this Court with a plea that he has a right to be appointed as a Junior Clerk, which post ought to have been filled in by promotion. The petitioner is working as a Peon.

Respondent Nos.1 and 2-Management have appointed Respondent Nos.4 and 5 as Junior Clerk. Respondent No.3 has accorded approval to the appointment. The said action is questioned by the petitioner.

The case of the Management and also of the Education Officer as put forth by their counsels is that the post of Junior Clerk is an entry-level post and accordingly, an advertisement was published. The petitioner did not even apply.

In response, learned counsel for the petitioner has invited our attention to Schedule F to the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Rules, 1981 (hereinafter referred to as, the MEPS Rule), which refers to fixation of seniority of teaching and non-teaching staff. Clause 3 pertains to the guidelines for fixation of seniority of non-teaching staff. The seniority of Lower Grade Staff is to be fixed as follows :

"Lower Grade Staff - A common seniority list of Laboratory Attendant, Naik, Oilman, Machine Attendant, Peon, Watchman, Chowkidar, Sweeper, call-woman, Kamathi, Attendant, Laboratory Hamal, Liftmen and such other lower grade staff, if any, shall be maintained on the basis of the dates of their appointment. If any of the lower grade staff improves his qualifications as prescribed either for the post of Laboratory Assistant or Clerk, such employee should be given preference while filling in the said post according to his place in seniority."

As could be seen, the guidelines indicate that if any lower grade staff improves his qualifications as prescribed for the post of Clerk, such employee should get preference while filling in the said post according to his place in seniority.

These guidelines, according to us, nowhere suggest that the post of Junior Clerk is not an entry level post or that it could be filled in by promotion. What is provided is that preferential treatment will be given to the lower grade staff if he acquires requisite qualification. That being so, the petitioner ought to have applied for the post and in that case he could have expected preferential treatment if otherwise qualified. Having not done so, he cannot, on the basis of these guidelines claim appointment through promotion.

In fact, this aspect has been considered by the Full Bench of this Court in the case of Tanaji Madhukar Barbade v. State of Maharashtra & Ors., [2010 (6) Mh.L.J. 901]. One of the questions referred to the Full Bench was whether Schedule F to the Rules issued under the MEPS Act provides for promotion or merely provides a preference to be given in appointment. The Full Bench answered the question as follows:

"Schedule "F" to the M.E.P.S. Rules does not provide for promotion to the post of junior clerk. It merely provides a preference to be given to the lower grade staffs in making appointment to the posts of junior clerk and laboratory assistant."

In view of above answer, we do not find any merit in the petition. Accordingly, the writ petition is dismissed. Rule is discharged.