JUDGMENT : Abhay Ahuja, J. Rule. Rule made returnable forthwith. By consent of learned counsel for appearing parties, finally heard. 2. The petitioner No. 1 was appointed on the post of peon by petitioner No. 2 society school management on 1-9-2005, which is stated to be made on clear and sanctioned post as per prescribed procedure. On the school having received 100% grant, second respondent Education Officer accorded approval to the appointment of first petitioner as peon with effect from the said date. Petitioner No. 1 was promoted to the post of junior clerk w.e.f. 13-2-2015 and is presently serving in the petitioner No. 3 school run by petitioner No. 2 society. However, the proposal dated 16-2-2018 by petitioner No. 3 seeking approval to the said appointment/promotion was rejected by 2nd respondent by order dated 24-7-2018 and therefore, this writ petition. 3. Brief background is that since a junior clerk serving in the school came to be promoted as senior clerk, the post of junior clerk was rendered vacant. Having regard to the placement of petitioner No. 1 in the common seniority list and the roster, so also on giving sympathetic consideration to the 1st petitioner being 50% handicapped, the petitioner school management resolved to promote petitioner No. 1 to the said vacant post of junior clerk in its meeting on 1-3-2015, pursuant to which, petitioner No. 1 was appointed as junior clerk vide order dated 13-2-2015 issued by the secretary of the petitioner No. 2. 4. Thereafter, the petitioner management submitted proposal dated 16-2-2018 to the respondent No.2 Education Officer on 23-2-2018 seeking approval to the said appointment/promotion. The said proposal was rejected by 2nd respondent vide order dated 24-7-2018 on the ground that the post of junior clerk is liable to be filled in by direct recruitment under Government Resolution dated 28-10-2004. 5. Shri M.A. Patil holding for Mr. C.K. Shinde, learned counsel for the petitioners, submits that the Government Resolution dated 28-10-2004 has no application to the present facts and circumstances. He submits that the said Government Resolution refers to implementation of reservation policy for Group-C and Group-D cadres of non-teaching staff engaged in recognized private schools. The said Government Resolution does not speak about the post of junior clerk being only available for direct recruitment and therefore, the application of the said Government Resolution is misplaced. He submits that the said Government Resolution refers to implementation of reservation policy for Group-C and Group-D cadres of non-teaching staff engaged in recognized private schools. The said Government Resolution does not speak about the post of junior clerk being only available for direct recruitment and therefore, the application of the said Government Resolution is misplaced. It is not a case of respondents that the post of junior clerk had ever been reserved. He submits that first petitioner suffers of 50% physical disablement that he has been serving as a peon with effect from 1-9-2005. That the benefits of higher pay scale in lieu of promotion have been denied by petitioner No. 1 with a hope that he will get the promotional post as he is the only candidate among the lower grade staff in the institution who is possessing the qualifications required for the promotional post of junior clerk. Petitioner No. 1 is also the senior most lower grade staff member. The channel of promotion provides for promotion to the post of junior clerk from amongst the lower grade staff members and therefore, also deserves to be approved by 2nd respondent. 6. It is submitted that 2nd respondent did not even consider that first petitioner is possessing requisite qualifications for the post of junior clerk. Petitioner No. 1 has passed B.A., MSCIT course and has also passed the Marathi and English typewriting examinations. Petitioner No. 1 has been promoted in accordance with the provisions of M.E.P.S. Act and the Rules. The promotion is not contrary to the provisions of the Act, the Rules or the reservation policy. Even the roster maintained in the school is not affected. The post of the junior clerk is to be filled in as per the provisions of the M.E.P.S. Act and the Rules and the Government Resolution dated 28-10-2004 is not applicable. In any event the Government Resolution cannot override the statutory provisions and rules. 7. It is submitted by learned counsel for the petitioners that there is nothing placed on record by the Education Officer about the B.C. Cell having directed not to promote the petitioner on vacant post nor the Government Resolution dated 12-2-2015 and 18-5-2015 has been applied. He submits that there is no ban. 8. 7. It is submitted by learned counsel for the petitioners that there is nothing placed on record by the Education Officer about the B.C. Cell having directed not to promote the petitioner on vacant post nor the Government Resolution dated 12-2-2015 and 18-5-2015 has been applied. He submits that there is no ban. 8. Learned A.G.P. contends that under Government Resolution dated 28-10-2004 reservation has been made applicable to lower grade posts of group ‘C’ and ‘D’ and as such, are liable to be filled in by direct recruitment. He however does not dispute the facts set out above. 9. We have heard learned counsel for the petitioners as well as the respondents. We have also perused the papers and proceedings in the matter. 10. Before dealing with the case at hand, it would be in the fitness of things to first refer to the decisions in the case of Ashok S/o. Shankarrao Shinde vs. Prabodhan Shikshan Sanstha and others, 1999 (1) Bom.C.R. 800 and in the case of Ramesh Shivram Khairnar vs. State of Maharashtra and others, 2003 (6) Bom.C.R. 254 , wherein this Court has considered similar issue and held that the action of the management in filling the post of junior clerk by way of issuance of advertisement i.e. by direct recruitment without considering the claim of lower grade staff in terms of Item No. 3 of Schedule ‘F’ of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (MEPS Rules, 1981) is illegal and contrary to law. For the sake of convenience paragraph No. 12 of the decision in the case of Ramesh Shivram Khairnar (supra) which has also relied upon the decision in the case of Ashok Shankarrao Shinde (supra) is apt and is quoted as under : “12. When the case of the petitioner was not considered at all and advertisement was issued, for direct recruitment, in our opinion, action must be held to be illegal and contrary to law. So-called reservation has nothing to do with Schedule F. Presumably because of well-settled legal position, the Education Officer also issued a direction to respondent No. 3 but respondent No. 3 did not pay any heed to it”. 11. So-called reservation has nothing to do with Schedule F. Presumably because of well-settled legal position, the Education Officer also issued a direction to respondent No. 3 but respondent No. 3 did not pay any heed to it”. 11. In the present case, petitioner No. 1 had been appointed as a lower grade staff i.e. peon with effect from 1-9-2005 and pursuant to the promotion of an employee serving as junior clerk to senior clerk, post of junior clerk had been rendered vacant. Considering first petitioner’s seniority, he was promoted to the post of junior clerk. Petitioner No. 1 had passed his B.A. examination and also the Marathi and English typewriting examinations. He also passed MS-CIT course. Petitioner No. 1 possesses the requisite qualifications for the post of junior clerk as prescribed in item ‘IV’ of Schedule ‘B’ under the M.E.P.S. Rules, 1981. As such he was eligible to be considered for promotion to the post of junior clerk pursuant to Schedule ‘F’ of the MEPS Rules, 1981, which speaks of giving preference to an incumbent employee improving his qualifications. The post has been filled up as per item ‘3’ of Schedule-F of the Rules. Item ‘3’ of Schedule ‘F’ of the M.E.P.S. Rules 1981 is quoted as under : “3. Guidelines for fixation of seniority of non- teaching staff : Clerks : The clerical and supervisory posts in the channel of promotion comprise Junior Clerk, Senior Clerk, Head Clerk and Superintendent, Seniority of Junior Clerks in a School or Schools shall be determined on the basis of the date of appointment of the persons concerned. The post of Senior Clerk shall be filled in by promotion of senior most Junior Clerk. The posts of Head Clerk and Superintend shall be filled in respectively by promotion of senior-most Senior Clerk and senior most Head Clerk, respectively. Librarian : In the case where the Management runs only one School a seniority list of Librarian need not be maintained as the post is as isolated one. In case where the Management runs more than one School a seniority list of Librarian shall be maintained on the basis of the date of appointment. The Librarian shall not be held eligible for promotion to any other post. Laboratory Assistants : A seniority list of Laboratory Assistants shall be maintained on the basis of the date of appointment. In case where the Management runs more than one School a seniority list of Librarian shall be maintained on the basis of the date of appointment. The Librarian shall not be held eligible for promotion to any other post. Laboratory Assistants : A seniority list of Laboratory Assistants shall be maintained on the basis of the date of appointment. The incumbents of the posts shall not be held eligible for promotion to any other post. Lower Grade Staff : A common seniority list of Laboratory Attendant, Naik, Oilman, machine Attendant, Peon, Watchman, Hamal, Liftmen and such other lower grade staff, if any, shall be maintained on the basis of the dates 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 employee should be given preference while filling in the said post according to his place in seniority.” 12. Perusal of the aforesaid Item ‘3’ clearly highlights its applicability to the case of the first petitioner. The Government Resolution dated 20-10-2004 does not refer to filling up of post by direct recruitment. In that view of the matter, the communication dated 24-7-2018 to 3rd petitioner, is therefore, not tenable and deserves to be set aside. 13. In this context, we also rely upon a recent decision dated 4th December, 2020 of this Court in Writ Petition No. 2321 of 2019 in the case of Ramesh Anandrao Gavhane vs. State of Maharashtra and others. This Court while considering a similar issue has set aside the impugned order and allowed the said petition. 14. In view of the aforesaid discussion and being in respectful agreement with the aforesaid decisions, we set aside the communication/decision dated 24-7-2018 by the respondent No. 2 Education Officer. We allow the petition and direct the 2nd respondent to pass appropriate orders on the proposal submitted for the approval of the first petitioner’s appointment/promotion as junior clerk. Rule is made absolute accordingly. No order as to costs. Petition allowed.