LAXMIKANT BALKRISHNA JOSHI Vs. SHIKSHAN PRASARAK MANDAL

JUDGEMENT

(1.) THE petitioner, who was in employment with the respondent No. 2, as a Lecturer has filed the present petition under Article 226 of Constitution of India, for an appropriate writ or direction against the respondents to appoint the petitioner as Head of the Institute of Pharmacy known as "geetadevi Khandelwal Institute of Pharmacy, Akola", and to give all the benefits including the difference in salary from 1983 from the date of acceptance of resignation of the then Principal Shri A. P. Hardas. The petitioner has also sought a direction against the respondents that they should comply with the provisions of the Maharashtra Employees of private Schools (Conditions of Service) Rules, 1981 and the Act of 1978, and Pharmacy Regulations.

(2.) THE facts in the present petition are not in dispute and are in a very narrow compass. The petitioner was appointed as a Lecturer in the Institute vide the appointment order dated 8-8-1980 with effect from 21-8-1980. The post of Principal fell vacant on account of resignation by the incumbent of the post of Principal. The management of the institute, therefore, advertised the vacancy to be filled in from the qualified and eligible candidate from the open market. It invited applications for the post of principal in the institute instead of filling up the said post by appointing the petitioner being the senior-most Lecturer and also fully qualified and eligible to be appointed as Principal of the institute. It appears that the petitioner has also applied for the said post in response to the said advertisement given by the management though under protest, as according to him the procedure of selection of a candidate from the open market was in violation of the mandatory Rule 3 of the M. E. P. S. Rule, which mandates that the post of Head of the institute should be filled in on the basis of the seniority. According to petitioner, he had never relinquished his claim for the post of Principal and that he was entitled under the Rules to be promoted as the Principal of the institute. There is no much dispute or difference that the petitioner was the senior-most Lecturer in the institute and that he was also holding the requisite qualifications for the post. The management, however, preferred to go in the open market to select the suitable candidate for the post of Principal. The management adopted the selection process instead of promoting in-house eligible candidate. Pursuant to the advertisement, the Selection Committee held the interview in the office of the Director of Education and selected the respondent No. 5 as the most suitable candidate for the post. The petitioner was not selected and he stood third in the list. The Selection Committee comprised of Director of education and, therefore, the selection of the respondent No. 5 was deemed to have been approved by him as he was a party to the selection of the respondent No. 5. The nub of the complaint of the petitioner is only that under Rule 4, the management was bound to promote the petitioner and was not permitted to go out of the said Rule to resort to a selection process by giving advertisement inviting applications from the open market when in-house suitable qualified and eligible candidate was available in the person of the petitioner. The entire selection process and the appointment of the respondent No. 5 is, therefore, violative of the mandatory Rule 3 framed under the said Act is the gravamen of the petitioner. Shri U. S. Dastane, the learned Counsel appearing for the petitioner has confined to the aforesaid contentions on behalf of the petitioner as set out in the petition. He has also further fairly accepted the position that as far as the selection of the respondent No. 5 is concerned, the petitioner will not be in a position to challenge the same and that he is not challenging the merits of the selection. The learned Counsel submitted that his grievance was only to the extent of the decision of the management to resort to the selection process and not to promote the petitioner, under the Rules.

(3.) IT is significant to note that the candidate who was not selected and who was at Sr. No. 2 of the selection list had also filed a writ petition challenging the selection of respondent No. 5, but is writ petition was rejected in limine by a Division Bench of this Court on 24-12-1985. Since the writ petition was rejected in limine by one word "rejected", we have no source to find out the reasons for rejection of the said petition. The said order, therefore, has no binding effect on this Bench. Had there been a speaking reasoned order that perhaps would have made difference. We have, therefore, examined the contentions of the parties. on merits of the present case independently.