M.S. Karnik JUDGMENT
M.S. Karnik, J.
1. Rule. Rule is made returnable forthwith by consent of the parties and heard finally.
2. The petitioner - St. Isabel's High School, Mumbai, invokes the jurisdiction of this Court under Article 226 of the Constitution of India to challenge the impugned Government Resolution ('GR' for short) dated 25th November, 2005 of the respondent No. 2 - State Government to the extent it prescribes a maximum appointment age of 33 years for Shikshan Sevaks/ Junior Clerk. Consequently, the petitioner prays for setting aside the impugned order dated 12/1/2011 passed by respondent No. 1 - the Education Inspector thereby not approving the proposal submitted by the petitioner for approval of the appointment of a junior clerk, Shri Godwin D'Almeida. The reason for disapproval stated is that as per the said GR, Shri Godwin D'Almeida's age exceeds the maximum age limit prescribed by the G.R.
3. The second ground on which the proposal is rejected is that there are candidates available in the compassionate appointment wait list who are to be given preference.
4. The brief facts of the case are as under:-
The petitioner is a Primary High School catering exclusively to and imparting education to girl students. The petitioner is a religious Minority Institution as per Article 30(1) of the Constitution of India. By a GR dated 25/11/2005, the State of Maharashtra prescribed entitlement of the number of staff to private schools. The petitioner is concerned with their entitlement to appoint a junior clerk which is covered under the GR. The Government prescribed maximum age limit of 33 years for appointment of clerical staff and also honorarium of Rs. 2000/- per month for junior clerks.
5. The petitioner made oral inquires in the last week of April, 2010 with respondent No. 1 - Education Inspector, South Zone, regarding availability of surplus candidates for the post of junior clerk. The petitioner also requested the respondent No. 1 by letter dated 9/5/2010 to send the list of surplus candidates for the post of junior clerk but there was no response. No candidate was sent for absorption. The petitioner was left with no option but to appoint Mr. Godwin D'Almeida as junior clerk with effect from 13/5/2010. His age at the time of the appointment was 38 years.
6. The respondent No. 1 rejected the approval of Mr. Godwin D'Almeida by a communication dated 13/10/2010. The reason for rejection being availability of candidates for appointment on compassionate grounds and non furnishing list of handicapped candidates. The petitioner thereafter sent a detailed letter on 7/12/2010 to respondent No. 1 bringing to his notice that the petitioner being a minority Institution, reservation in appointment was not applicable. It was further brought to the notice of the respondent No. 1 that none of the petitioner's employee had expired necessitating appointment of his family member on compassionate basis. It is further stated that there cannot be a backlog as employment is given on compassionate grounds in the same school. It is further pointed out that availability of candidate on compassionate basis can be no ground as the vacancy did not arise on account of death of an employee. By the impugned order dated 12/1/2011, the approval of Mr. Godwin D'Almeida was rejected for the reasons already stated in paragraph 1 herein before.
7. The petitioner sent a detailed letter on 24/1/2011 pointing out to respondent No. 1 that the petitioner is a minority Institution having a right to select staff of their own choice and further Rule 9(4) (b) of the MEPS Rules does not stipulate any maximum age for employment.