TaxTMI 
TaxTMI 
2010 (7) TMI 1134
X X X X Extracts X X X X
X X X X Extracts X X X X
....bsequent to the promotion of petitioners to the post of Kendra Pramukhs, Respondents No. 5 to 14 came to be promoted as Extension Officers (Education) in District Technical Services Class III Grade II. Aggrieved by the said promotion, petitioners preferred appeals before the Divisional Commissioner. Same are rejected. Hence present petition. 3. Shri Deshpande, learned Counsel for petitioners, submits that though petitioners are senior in the cadre of Assistant teachers to Respondents No. 5 to 14, said respondents have been put in higher cadre and they would also be writing confidential reports of the petitioners. He, therefore, submits that it was incumbent upon Respondent-Zilla Parishad to have considered the claim of the petitioners for promotion to the post of Extension Officer. According to the learned Counsel, having not done so, promotion granted in favour of respondents No. 5 to 14 is liable to be set aside. 4. Shri Talekar, learned Counsel appearing on behalf of the employees who have been promoted, on the contrary, submitted that vide Government Resolution dated 14.11.1994, a separate cadre of Kendra Pramukhs has been created and that petitioners, having opted for said c....
X X X X Extracts X X X X
X X X X Extracts X X X X
....iders it expedient so to do, it may also regulate the conditions of service as respects pay-scales, dearness and other allowances, leave, pension, provident fund or any other matter in relation to conditions of service, by a general or special order. 8. Section 274 of the said Act and specifically clause (xxxix) of sub-section 2 thereof enables the State Government to frame rules regarding recruitment. Sub-section 3 provides for condition of previous publication of the rules. Sub-section 4 requires the rules to be laid before each House of the State Legislature as soon as they are made and the said rules are subject to such modifications as the Legislature may make during the session. In accordance with the powers vested with the State Government by virtue of Section 248 and Section 274 sub-section (2) clause (xxxix), the State has framed Maharashtra Zilla Parishads District Services (Recruitment) Rules, 1967. Rule 5 of the said Rules deals with qualifications and methods of appointment. Appendices I to XII prescribe necessary qualifications, methods of appointment, etc. Presently, we are concerned with Appendix IV (Part I) clauses 1 to 3. APPENDIX IV (Part I) (See Rule 5) Rul....
X X X X Extracts X X X X
X X X X Extracts X X X X
....(b) possess at least, 3 years of post B.Ed. (or equivalent qualification) experience of inspection of Primary or Secondary Schools, or (c) possess 5 years teaching experience after passing of the S.S.C. Examination and acquiring teacher's training qualifications : Provided that the age limit may be relaxed in the case of candidate possessing good qualification and/or experience : Provided further that nothing in these rules shall affect appointments already made by the Appointing Authority by way of transfer/temporary transfer of the Assistant Teachers in District Technical Service (Class III) (Educational) or the Primary School Teachers in District Service (Class III) (Subordinate Educational) if such Assistant Teachers of the Primary School Teachers continued to hold the post of Extension Officer (Education), Grade II or Senior Assistant Deputy Educational Inspector for more than one year on the 1st January, 1976. (2) Not less than 75 per cent of the posts shall be filled in by nomination and transfer. (3) Persons appointed to this post may be required to undergo training course for Social Education. Such of them who are selected to undergo this training shall execute an agr....
X X X X Extracts X X X X
X X X X Extracts X X X X
...., the requirement of teaching experience is reduced to 3 years. Category (b) provides for promotion of trained primary teachers in District Service (Class II) who have completed not less than 10 years of continuous service after obtaining teaching qualifications in the case of those who have passed S.S.C. or equivalent examination and 15 years of continuous service after obtaining teaching qualifications in the case of those who have passed P.S.C. or an examination equivalent thereto. It also provides promotion of the persons who have graduated while in service and hold B.Ed. or equivalent degree and have completed not less than 7 years of continuous service as trained primary teachers. It also provides for promotion of Assistant Extension Officers. Not less than 75% of the posts are required to be filled in by promotion of trained primary teachers falling in category (1)(b). Then there is further promotional cadre of District Technical Service (Class III) Grade II i.e. Extension Officer (Education), etc. In the said cadre, appointments are to be made by promotion of persons in District Technical Service (Class III) Grade III who have completed not less than 5 years of continuous s....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ial reports of a person who is much senior to him. It further appears that if contention of the respondents is to be accepted, a person, who once accepts the post of Kendra Pramukh, for all the years, he would be deprived to be considered for all promotional avenues, further enabling his juniors to ride higher on the ladder and be superior to him. 11. We are unable to accept the contention of learned Counsel Shri Talekar that a separate cadre can be created by the Government Resolution. Reading the provisions of Sections 248 & 274, it would be clear that matters regarding recruitment, etc. are to be regulated by rules to be framed by the State Government in accordance with Section 274. No doubt, that a power is given to the State Government under Sections 248 and 274 itself that in the matter of exigency, the Government may also regulate conditions of service by a general or special order. However, it is a settled law that a proviso cannot be permitted to govern substantive provision. When a substantive provision mandates the Government to frame rules regarding recruitment, etc., the proviso will have to be read in the manner that it permits the Government to depart from the main ....