JUDGMENT - N.J. PANDYA, J.:---The matter poses a very interesting question as to whether a person appointed as a peon in a private school can claim promotion to the post of a clerk as per the Rules framed under the Maharashtra Employees of Private Schools, (Conditions of Service) Regulation Act, 1971 and Conditions of Service Rules, 1981. The relevant rules are Rules 2(1)(j) and (6) of Schedule 'B' as well Rule 12 of Schedule 'F' of the aforesaid Rules. 2.The first of the two Schedules, namely Schedule B, pertains to the qualification of teaching staff in clause (I) to (III) and clause (IV) pertain to qualification for non-teaching staff in the school. The very first post dealt with under clause (IV) of Schedule B is that of a junior clerk. It prescribes merely minimum qualification and nothing. There is no mention in the said Rules of the manner in which the post is to be filled in. We take it that like any other post in an aided school this post was filled by way of recruitment, according to the method followed for aided schools. That is exactly what was done by respondent No. 1 and that is how respondent No. 4 S.B. Nagdeve came to be appointed as a junior clerk. 3.The grievance of the petitioner is that he entered service of respondent No. 1 sanstha as a peon and in the course of time he acquired additional qualifications and thus became eligible to hold the post of a clerk as prescribed by the said clause (IV) of Schedule B. This aspect as to the qualification is not in dispute. 4.What is in dispute is the claim of the petitioner that the said clause (III) of Schedule F in its later part does contemplate that promotion to be given to the peon who has acquired higher qualification. This possibility of promotion at the same time confine only to Laboratory Assistants or to that of a clerk only. The relevant part reads as under : "Lower Grade Staff-A common seniority list of Laboratory Attendant, Naik, Oilman, Machine Attendant, Peon Watchman, Chowkidar, Sweeper, Call-Woman, Kamathi, Attendant, Laboratory Hamal, Liftman and such other lower grade staff, if any, shall be maintained on the basis of the date of their appointment. The relevant part reads as under : "Lower Grade Staff-A common seniority list of Laboratory Attendant, Naik, Oilman, Machine Attendant, Peon Watchman, Chowkidar, Sweeper, Call-Woman, Kamathi, Attendant, Laboratory Hamal, Liftman and such other lower grade staff, if any, shall be maintained on the basis of the date 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 employees should be given preference while filling in the said post according to his place in seniority." 5.The management has right to the extent of saying that the said clause (IV) under the Schedule does not speak of a promotion. However, the entire scheme of the Rules including the Schedules appearing thereunder have to be given a combined reading and are to be interpreted thereafter to further the underlying intent of this piece of subordinate legislation. These being the Rules, then under the powers given to the Executive by the legislative wing, while enacting the said Act, the intent and purpose lying there under cannot be ignored. 6.Thus, reading the aforesaid two provisions together, the position becomes clear that in case of non-teaching staff, employees of lower grade staff, so far as peons are concerned, there is a possibility of promotion to the post of a Laboratory Assistant or clerk which will have to be read into Schedule 'B' clause (IV) pertaining to the junior clerk as one of the source of appointment for the post. 7.To that extent, therefore Schedule 'F' will project itself into Schedule 'B' and on combined reading both meaning and effect will have to be given to it. Then only the underlying idea of encouraging the lower staff to aim higher and achieve better can be implemented and that goal can be advanced. 8.Once this aspect is considered, the view taken by the authorities below would immediately become unsustainable. Incidentally, it may be mentioned that the Education Officer initially agreed with the petitioner but reviewed his own order (Annexure C) at the instance of Head Master of respondent No. 1 and that too without affording any opportunity to the petitioner. 8.Once this aspect is considered, the view taken by the authorities below would immediately become unsustainable. Incidentally, it may be mentioned that the Education Officer initially agreed with the petitioner but reviewed his own order (Annexure C) at the instance of Head Master of respondent No. 1 and that too without affording any opportunity to the petitioner. 9.When this order after review was challenged before the appellate authority - the Deputy Director of Education - he too rejected the claim as per Annexure E. It is obvious that at the time of review and in the course of appeal both the authorities below have completely neglected the impact of the two rules mentioned above and the effect to be given thereto when they are read together. 10.This is not to deny the right of management to recruit directly. However, when there is provision for the management to consider the case of incumbent claimant to the promotional post and if at the end of the exercise when they found that he is not suitable, recourse can be had to direct recruitment. In the instant case, the management went for direct recruitment only. 11.The petitioner too applied along with other candidates. He did not succeed. May be, he may not have fared well. However, this does not amount to waiver of his claim for promotion if there is promotional avenue. We are dealing with this aspect because there was an objection raised by the other side that the petitioner having appeared at the interview along with other candidates, he has waived his right of promotion. 12.If that is so, the other side too concedes that the petitioner has a right of promotion. This certainly was not a stand of respondent No. 1 before the authorities below. This belated contention is of no avail because the waiver presupposes conscious application of mind as to the right available, voluntarily giving up some and adopting a different course of action. In the absence of any material in this regard on record, the plea of waiver is recorded because it is argued and rejected as such. 13.No doubt, there is a hurdle in the way of the petitioner as per Rule 25, where for obtaining higher qualification the person seeking to acquire the same has to obtain permission from the Head of the Department. In this case, the grievance is that he never obtained such permission. 13.No doubt, there is a hurdle in the way of the petitioner as per Rule 25, where for obtaining higher qualification the person seeking to acquire the same has to obtain permission from the Head of the Department. In this case, the grievance is that he never obtained such permission. We are not on the question as to whether obtaining higher qualification without such permission would become nugatory or not. The management could have very well said because the acquisition of qualification has been without permission, his case for promotion cannot be considered. The grievance before us is that because of such stand taken by the management as well as by the authorities below, no such claim can be entertained in view of the aforesaid Rules. On reading the Rules, it is obvious that the position is otherwise. Promotional avenue is definitely there. 14.The question on raised is, whether on consideration of Rule 25 a man can be denied a promotion or on merits if he is not found well suited for promotion. We are not entering into that aspect. 15.In this background, we accept the petition to the extent that there is a possibility of a peon being promoted to the post of a clerk as per Rule 12 of Schedule 'F' read with Rules 2(1)(j) Schedule 'B' and also clause (IV) of sub-Rule (1). 16.Therefore, it is directed that as and when in future vacancy arises or the post of a clerk, the claim of the petitioner will be considered and it is left open to the management to take decision with regard to the merits of the claim on the basis of the material before it and in accordance with the Rules. Petition disposed of. Rule made absolute in aforesaid terms. *****