Judgment: 1. Rule. Rule made returnable forthwith and heard finally by the consent of the parties. 2. The Petitioner is aggrieved by the impugned judgment and order dated 23.08.2013 delivered by the School Tribunal, Nashik by which Appeal No.53/2011 filed by the Petitioner has been rejected. 3. Brief facts of the case, considering lengthy submissions of the learned Advocates for the respective sides, can be summarized as follows: (a) Respondent No.4 joined Respondent No.1 at Respondent No.2/ School as a Peon in 1991. (b) Respondent No.4 was 12th standard (HSC) passed at the time of his appointment. (c) The Petitioner joined Respondent No.2/ School as a Cook in 2001. (d) The Petitioner was possessing qualifications of HSC, Typing in English and Marathi and MSCIT course. (e) In 2008, the post of a Junior Clerk fell vacant on account of an employee having retired from service. (f) Respondent No.4 was promoted as a Junior Clerk in place of the retired employee in 2009. (g) The approval to the said promotion was refused by the competent authority. (h) The Project Officer (Respondent No.3) directed an enquiry into the promotion of Respondent No.4. (i) The Assistant Project Officer conducted the enquiry and submitted his report dated 17.02.2010 thereby, concluding that Respondent No.4 could not have been promoted to the said post and the Petitioner should have been promoted considering the applicability of the Government Resolutions dated 29.06.1993 and 26.04.1999. (j) Respondent No.3 Project Officer passed an order on 23.07.2010 cancelling the promotion of Respondent No.4 and directed the Management to reconsider the situation and promote a person to the post of Junior Clerk who is eligible to be promoted as per the rules. (k) On 30.11.2010, Respondent No.1/ Management promoted Respondent No.4 as a Junior Clerk. (l) The Petitioner preferred Appeal No.53/2011 before the School Tribunal on 28.04.2011 after six months of the promotion/ appointment of Respondent No.4. (m) By the judgment and order dated 23.08.2013, impugned in this petition, the School Tribunal dismissed the appeal preferred by the Petitioner. 4. The grievance of the Petitioner is that the qualifications applicable are to be considered with regard to the candidates only from the date on which the post fell vacant. Mrs. (m) By the judgment and order dated 23.08.2013, impugned in this petition, the School Tribunal dismissed the appeal preferred by the Petitioner. 4. The grievance of the Petitioner is that the qualifications applicable are to be considered with regard to the candidates only from the date on which the post fell vacant. Mrs. Ansari, learned Advocate for the Petitioner, has vehemently submitted that since the post fell vacant in 2008, the qualifications of candidates as in 2008 alone should be considered and subsequently acquired qualifications should not be considered. 5. She further submits that this case involves peculiar facts. The promotion of Respondent No.4 was disapproved by the Project Officer and Respondent No.4 could not have been continued in employment, inasmuch as he could not have been promoted on 30.11.2010. She reiterates her submissions that though Respondent No.4 subsequently acquired qualifications of Typing in English and Marathi and MSCIT prior to November, 2010, these subsequently acquired qualifications are not to be considered. The said subsequently acquired qualifications are not entered in the service book of Respondent No.4. 6. Mrs. Ansari has relied upon the judgment of the Full Bench of the Kerala High Court in the case of C.I. Varghes and others vs. State of Kerala and others, 1981 (Labour and Industrial Cases) 1035, to support her contention that as the Petitioner stood qualified as on the date on which the promotional post fell vacant, the qualifications as on the date of occurrence of vacancy are relevant and subsequently acquired qualifications should not be considered. 7. Shri Brahme, learned Advocate appearing for Respondent Nos.1 and 2/ Management as well as Respondent No.4/ Promoted Employee, has supported the impugned judgment. He pointedly draws my attention to the qualifications for non-teaching posts in schools prescribed under Entry IV in Schedule B of the MEPS Rules, 1981. He indicates from Sr.No.1 under Entry IV that the qualification for a Junior Clerk is at least matriculation or Secondary School Certificate or any other qualification declared by the Government as equivalent thereto. 8. Shri Brahme, thereafter, places reliance upon the judgment of the Full Bench of this Court in the matter of Tanaji Madhukar Barbade vs. State of Maharashtra and others, 2010 (6) Mh. 8. Shri Brahme, thereafter, places reliance upon the judgment of the Full Bench of this Court in the matter of Tanaji Madhukar Barbade vs. State of Maharashtra and others, 2010 (6) Mh. L.J. 901 : 2010 (6) BCR 497, to support his contention that though the Government Resolutions dated 29.06.1993 and 26.04.1999 have provided different qualifications held by the Petitioner for appointment to the promotional post of a Junior Clerk, the Full Bench of this Court has concluded that the employees in the matters of promotion in private schools are governed by the Rules framed and not by the Government Resolutions. He, therefore, submits that even on the date of his first appointment, Respondent No.4 was qualified if it is presumed that the two Government Resolutions are applicable. So also, he was actually eligible even in 2009 when he was appointed for the first time considering the Rules referred to herein above. 9. I have considered the submissions of the learned Advocates as have been recorded herein above. 10. There is no dispute insofar as the date of creation of vacancy as a Junior Clerk in 2008. The said post has fallen vacant as the employee occupying the said post had retired from service. It is also not in dispute that Respondent No.4 passed 12th standard as like the Petitioner when he was promoted for the first time in 2009. 11. The Project Officer has apparently relied upon the Government Resolutions dated 29.06.1993 and 26.04.1999 while coming to the conclusion that Respondent No.4 was not eligible for promotion. Consequentially, the approval to his promotion was refused and Respondent No.3 passed an order on 23.07.2010 concluding that a duly qualified person be promoted. There is no direction by Respondent No.3 that the Petitioner should be promoted in place of Respondent No.4. 12. It is under fortuitous circumstances that during the pendency of this issue of promotion to the post of Junior Clerk, Respondent No.4 acquired the qualification of Typing in English and Marathi as well as MSCIT. 13. The Full Bench of the Kerala High Court in the matter of C.I.Varghes (supra) has concluded that the promotion depends on the qualification on the date of occurrence of the vacancies and does not depend on the qualifications on the date on which the post is sought to be filled up. 13. The Full Bench of the Kerala High Court in the matter of C.I.Varghes (supra) has concluded that the promotion depends on the qualification on the date of occurrence of the vacancies and does not depend on the qualifications on the date on which the post is sought to be filled up. It is the time of occurrence of vacancy that should be relevant for determining the question of promotion and not the date on which the order of promotion is passed. The relevant date must be definite and not depending upon the volition of the authorities as otherwise the determination would be arbitrary. If it were to be the date of promotion that is to be relevant for determining the title to such promotion, the rule is capable of arbitrary exercise. Even if it is an honest exercise, that would be arbitrary because the fate of the service career will depend in each instance upon the time taken by the concerned Authority in passing the order of promotion. 14. The Full Bench of the Kerala High Court considered the dispute that certain persons were appointed on probation to promotion posts by common advice. Some of them joined the posts a few days earlier than others who were senior to them and consequently completed the probation period also earlier in comparison to their seniors. Therefore, on completion of probation the juniors would become eligible to be appointed to promotion posts and such promotions need not be put off until the seniors also qualify themselves by completing the period of probation. 15. It is apparent that the case before the Full Bench of Kerala High Court was with regard to the appointment of few candidates on probation for promotional posts. Some were appointed, but the Management waited for others to acquire the qualifications so as to be promoted on probation to the said posts. 16. In the instant case, the controversy was with regard to the promotion to the post of a Junior Clerk. It is not in dispute that the MEPS Rules, 1981 prescribe the qualifications of Matriculation or SSC for Junior Clerks. 17. Under Entry IV of Schedule B to the MEPS Rules, 1981, the qualifications for non teaching posts in schools for four categories are provided as under: IV. Qualifications for non-teaching posts in schools. 1. It is not in dispute that the MEPS Rules, 1981 prescribe the qualifications of Matriculation or SSC for Junior Clerks. 17. Under Entry IV of Schedule B to the MEPS Rules, 1981, the qualifications for non teaching posts in schools for four categories are provided as under: IV. Qualifications for non-teaching posts in schools. 1. Junior Clerk A person who has passed at least the Matriculation or the Secondary School Certificate Examination or any other qualification declared by the Government as equivalent thereto. 2. Senior Clerk By promotion from amongst persons holding the posts of Junior Clerk on the basis of senioritycummerit. 3. Head Clerk By promotion from amongst persons holding the posts in Senior Clerk on the basis of senioritycummerit. 4. Superintendent By promotion from amongst persons holding the posts of Head Clerk on the basis of senioritycummerit. 18. If the prescribed qualifications as per the Rules are considered, any person who is in service of the Management and has acquired the Matriculation or the Secondary School Certificate or any other qualification declared by the Government as equivalent thereto, was qualified to be appointed as a Junior Clerk. As such, in 2009 admittedly the Petitioner as well as Respondent No.4 were qualified to be promoted as a Junior Clerk. 19. The Full Bench of this Court in the case of Tanaji Madhukar Barbade (supra), dealt with two questions which were referred to it for decision, which are as follows:“ Two questions which have been referred to us for decisions are, (i) whether, the Government Resolution dated 15th April, 1991 is valid in view of the provisions in the MEPS Act and Rules framed thereunder? & (ii) Whether, Schedule F to the Rules issued under the Act provides for promotion or it provides merely a preference to be given in appointment?” 20. The Full Bench of this Court answered the above issues in paragraph 20 as under:“ 20. In our opinion, therefore, the questions which have been referred to have to be answered thus, 1. The Government Resolution dated 15th April, 1991 cannot be made applicable to the teaching and non teaching staff in recognised private schools which are governed by the provisions of the M.E.P.S. Act and Rules framed thereunder; 2. Schedule F to the MEPS Rules does not provide for promotion to the post of Junior Clerk. The Government Resolution dated 15th April, 1991 cannot be made applicable to the teaching and non teaching staff in recognised private schools which are governed by the provisions of the M.E.P.S. Act and Rules framed thereunder; 2. Schedule F to the MEPS 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.” 21. It has, therefore, been put to rest that if the MEPS Rules, 1981 provide a particular qualification by way of an eligibility criteria, the Government Resolutions cannot be made applicable to the teaching and non teaching staff when it comes to such appointments. Consequentially, it has to be concluded that on the date the post of Junior Clerk fell vacant, the Petitioner as well as Respondent No.4 were eligible. After the dispute between the parties was sought to be put to rest by the Management while promoting Respondent No.4 as a Junior Clerk on 30.11.2010, both the candidates were qualified as per the MEPS Rules as well as both were possessing the qualifications of Typing in English and Marathi and MSCIT. 22. In the light of the above, though Respondent No.4 has not challenged his initial promotion being set aside, it is apparent from the above mentioned Rules and the ratio laid down by the Full Bench of this Court in the case of Tanaji Barbade (supra), that two Government Resolutions relied upon by the Petitioner would be of no assistance. Apparently, Respondent No.3 was not made aware about the prescribed qualifications in Entry IV under Schedule B of the MEPS Rules, 1981 coupled with the judgment of the Full Bench of this Court which was delivered on 26.10.2010. 23. It appears from the impugned judgment that the School Tribunal has dismissed the appeal on two grounds. Firstly that on the date of appointment of Respondent No.4 dated 30.11.2010, the Petitioner as well as Respondent No.4 were duly qualified. Secondly, the decision of the Management should not be normally interfered with by the School Tribunal. 24. The conclusion of the School Tribunal in paragraph 24 that any decision of the Management in promoting a candidate should not be interfered with by the School Tribunal, is an unsustainable conclusion. Secondly, the decision of the Management should not be normally interfered with by the School Tribunal. 24. The conclusion of the School Tribunal in paragraph 24 that any decision of the Management in promoting a candidate should not be interfered with by the School Tribunal, is an unsustainable conclusion. The said conclusions are, therefore, set aside so as to ensure that the said view is not reiterated by the learned Presiding Officer of the School Tribunal in future considering the scope and ambit of Section 9 of the MEPS Act, 1977. However, as far as the conclusions of the School Tribunal in paragraphs 18 and 19 of the impugned judgment are concerned, same do not deserve to be termed as perverse or erroneous. 25. In the light of the above, this Writ Petition is dismissed. Rule is discharged.