Disregarding higher qualification in favour of lower qualifications for filling a vacant post is not legally sustainable: High Court of Bombay
For qualification as a government teacher, B.Ed. Degree with Non-Marathi subject of methodology will not erode the value of Post Graduate Degree in Marathi since qualification for teaching and services is based on set provisions, rules, and guidelines. This auspicious judgment was passed by the High Court of Sikkim in the matter of ASHOK S/O UDHAV KOTHAWALE V. THE STATE OF MAHARASHTRA &amp; ORS. [WRIT PETITION No. 10565 of 2015] by Honourable Justice N. J. Jamadar. This writ petition is filed to challenge the judgment and order passed by the learned Presiding Officer, School Tribunal, Solapur upholding the termination of his service by the School as valid. The petitioner after appraisal of the qualification and credentials as well as his performance in the interview was appointed as a Shikshan Sevak and he joined the post. After his joining the proposal of selecting the petitioner and another candidate, who was selected through the Scheduled Tribe category, was sent for further consideration. However, the Education Officer selected the other candidate and refused to select the petitioner relying on the directive previously issued by the Director of Education. However, the petitioner argued this refusal was unjustified since he was appointed against a clear vacancy after duly following regular selection process. In his petition at Division Bench the Court observed that “Prima-facie, the petitioner possessed the requisite qualification for appointment as Teacher to teach Marathi. However, since during the pendency of the said petition he was terminated.” Thus, “It would be appropriate for the petitioner to challenge the order of termination before the School Tribunal.” He filed an appeal before the School Tribunal assailing the legality, propriety, and correctness of the termination order to which the Tribunal on basis of the material on record and submissions found the termination to be legal and valid. Consequently, the Aurangabad Bench of the High Court of Bombay relied on Maharashtra Employees of Private Schools (Conditions of Service) Act, 1977 and Schedule-B of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 and observed that “It would be naive to expect a person, who is totally uninitiated into a particular discipline, to impart training in that discipline merely because he happens to be a graduate. However, this principle cannot be stretched to such an extreme that the authorities decline to take into account the fact that the candidate possesses higher qualification of post-graduation in that discipline.” Thus, the Court held, that the School Tribunal had fallen into an error in reading the requirement of graduation for fulfilling the criteria of qualification for appointment. Additionally, the second ground was also considered, “a weak foundation of disqualification since not opting for Marathi as the subject of methodology of school-subject while pursuing B.Ed. is not acceptable since he has basic knowledge of the primary subject at graduation or post-graduation level.”
 on 01 04 2021 on 02 04 1 W.P. No. 10565 2015 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 10565 OF 2015Ashok S o Udhav Kothawaleage 34 years occupation serviceTaluka Washi Dist. Osmanabad...Petitioner VERSUS1.The State of MaharashtraThrough : The Secretary Secondary Education Mantralaya Mumbai 322.The Director of Education Secondary and Higher Secondary Maharashtra State Pune.3.The Education OfficerZilla Parishad Osmanabad Taluka & Dist. Osmanabad4.Marathwada Gramin Shikshan Prasarak Mandal PimpalgaonTal. Washi Dist. Osmanabad Through its President5.The Head Master Vasant Vidyalaya PimpalgaonTal. Washi Dist. Osmanabad...RespondentsMr. B.A. Dhengle Adv. with Mr. S.A. Dhengle Adv. for petitioner. Mr. R.D. Sanap Asstt. Govt. Pleader for Respts. No. 1 to 3Mr. S.S. Pawar Advocate for respondent No.4Mr. S.A. Nagargoje Adv. for respondent No.5 on 01 04 2021 on 02 04 2 W.P. No. 10565 2015 C ORAM : N.J. JAMADAR J. Closed for orders on : 4th March 2021 Pronounced on : 1st April 2021JUDGMENT :Rule. Rule made returnable forthwith and with theconsent of the Counsels for the parties heard finally at the stage ofadmission. 2.The challenge in this petition is to the judgment andorder dated 29th of April 2015 passed by the learned PresidingOfficer School Tribunal Solapur in Appeal No. 814 wherebythe appeal preferred by the appellant petitioner against terminationof his service by respondent No.4 management came to bedismissed.3.The background facts leading to this petition can bestated in brief as under:(i)The respondent No.4 runs a school namely VasantVidyalaya at PimpalgaonTaluka Washi Dist. Osmanabad.Pursuant to approval granted by the respondent No.3 theEducation OfficerZilla Parishad Osmanabad therespondent No.4 had published an advertisement invitingapplications for the post of Shikshan Sevaks on 24th of December on 01 04 2021 on 02 04 3 W.P. No. 10565 2015 2011. The petitioner being duly qualified had applied for the postof Shikshan Sevak from the Open Category. After appraisal of thequalification and credentials as well as performance in the interview the petitioner came to be appointed as a Shikshan Sevak by orderdated 30th of December 2011. On the very day the petitioner joinedthe said post.(ii)The respondent No.4 sent the proposal of the petitionerand another candidate Mr. Prashant Wanole who was selected inthe same process for the post reserved for Scheduled Tribes forapproval to respondent No.3. Approval to the appointment of Mr.Prashant Wanole was granted on 16th of October 2012. However the Education Officer respondent No.3 declined to grant approval tothe appointment of the petitioner on the premise that the Director ofEducation had issued a directive not to grant approval to theappointment of new Teacher and non teaching staff. Since thepetitioner was appointed against a clear vacancy after followingregular selection process the refusal to grant approval was whollyunjustified. Hence the petitioner invoked the writ jurisdiction of thisCourt by filing Writ Petition No. 36213.(iii)While this Court was seized of the said writ petition therespondent No.3 rejected the proposal for approval of the petitioneron the premise that the petitioner did not possess the necessary on 01 04 2021 on 02 04 4 W.P. No. 10565 2015 qualification as he had not completed graduation with Marathi toteach which the petitioner was appointed as a Shikshan Sevak.Thus the petitioner withdrew Writ petition No. 36213 withliberty to file independent proceeding consequent to rejection ofproposal for approval.(iv)The second petition being Writ Petition No. 6515 of2013 preferred by the petitioner challenging the said order ofrejection of approval passed by respondent No.3 was disposed of bya Division Bench of this Court by order dated 18th of March 2014.This Court noted that the petitioner has completed B.Sc. and thereafter acquired M.A. in Marathi in addition to B.Ed. Since thepetitioner possessed post graduate degree in Marathi this Courtobserved that prima facie the petitioner possessed the requisitequalification for appointment as Teacher to teach Marathi. However since during the pendency of the said petition the respondent No.4 management had in turn terminated the petitioner by order dated12th of October 2013 it was held that it would be appropriate for thepetitioner to challenge the order of termination passed byrespondent No.4 before the School Tribunal.(v)Armed with the liberty as aforesaid the petitioner filedappeal before the School Tribunal assailing the legality propriety andcorrectness of the termination order dated 12th of October 2013. The on 01 04 2021 on 02 04 5 W.P. No. 10565 2015 appeal was resisted by respondent No.5 Head master of the Schoolby filing an affidavit in reply. It was contended that the petitionerhad completed his graduation in Science. He did not possess theessential qualification of being a trained graduate in Marathi.However the petitioner being the son of the then Secretary ofrespondent No.4 came to be appointed despite availability of othercandidates having requisite and better qualification.(vi)Respondent No.4 management however supported theclaim of the petitioner. It was asserted that the respondent No.3had unjustifiably declined to accord approval to the appointment ofthe petitioner though the petitioner possessed requisite qualificationand credentials for being appointed as a Shikshan Sevak.(vii)The learned Presiding Officer after appraisal of thematerial on record and submissions canvased across the bar waspersuaded to dismiss the appeal holding that the petitioner did notsatisfy the criteria of minimum qualification prescribed under theSchedule B of the Maharashtra Employees of private SchoolsRules 1981Act 1977it was submitted that being a graduate in Science the petitioner was plainly ineligible for being appointed. Thus nofault can be found with the impugned judgment and order submittedMr. Sanap.10.Mr. Nagargoje the learned Counsel for respondent No.5would urge that the appointment order came to be issued in favourof the petitioner though the petitioner did not fulfill eligibilitycriteria as the petitioner’s father was the then Secretary of therespondent No.4. Thus the authorities were justified in ensuringthat a non qualified candidate is not appointed to man the post ofShikshan Sevak. In fact it is the responsibility of the EducationOfficer to ensure that the appointments are made in conformity withthe provisions of the Act 1977 and the Rules 1981. To lend supportto the aforesaid submission Mr. Nagargoje placed a strong relianceon the following observations of a learned Single Judge of this Courtin the case of Ku. Jaimala Bhaurao Ramteke Vs. Presiding Officer School Tribunal & Ors. 2009(5) Mah.L.J. 333: on 01 04 2021 on 02 04 10 W.P. No. 10565 2015 “31.It is also necessary to observe that theEducation Officer need to take appropriate actionsat the appropriate stage when the appointmentsof teachers are made in the private schoolsreceiving ‘grant in aid’ and approvals are soughtfor such appointments. They are legally bound toconsider whether such appointments have beenmade by following due procedure of law. If anybreaches are noticed it is for the EducationOfficer to take appropriate action at that verymoment against the management and the school as may be permissible at law. Otherwise theyneed to be held liable as it gives rise tounwarranted litigation & cause harassment to theconcerned employees at times injustice. Toensure such actions a copy of this judgment maybe forwarded to the Secretary EducationDepartment Mantralaya Mumbai for issuingappropriate directions.”11.Before adverting to deal with the aforesaid rivalsubmissions it may be advantageous to note few uncontrovertedfacts. Indisputably Vasant Vidyalaya PimpalgaonTal. Washi is a recognized School. There is not much controversy over the factthat vide advertisement dated 24th of December 2011 applicationswere invited for two posts of Shikshan Sevak. One reserved forScheduled Tribes. The other from open category candidates having on 01 04 2021 on 02 04 11 W.P. No. 10565 2015 B.A. M.A. B.Ed.and B.Ed.14.In the light of the aforesaid undisputed facts thelegality propriety and correctness of the impugned order passed bythe Presiding Officer School Tribunal and the order of terminationdated 12th October 2013 which in turn was based on the rejectionof the proposal for approval to appointment of the petitioner dated23rd July 2013 are required to be tested.15.Since a strenuous submission was advanced on the basisof the observations of this Court in Writ Petition No. 6515 2013 quathe eligibility of the petitioner it may be apposite to extract therelevant observations in the said order which read as under: “ 2 ..It is not disputed that the petitioner possessespost graduate qualification in Marathi and as suchis qualified to teach Marathi subject. There isnothing in Schedule B Clause whichprescribes educational qualifications for trainedteacher in secondary school debarring thepetitioner from consideration for appointment asa teacher in Marathi subject. on 01 04 2021 on 02 04 13 W.P. No. 10565 2015 3.Prima facie we are satisfied that thepetitioner possesses requisite qualification forbeing appointed as a Marathi teacher. ” …..16.The learned Counsel for the respondents joined the issueby stoutly submitting that the aforesaid observations were made forthe purpose of disposing of the said petition. The aforesaidobservations did not preclude the Presiding Officer School Tribunalfrom examining the material on record and arriving at anindependent conclusion on the question of qualification which isessentially rooted in facts. What has to be seen is whether thepetitioner possessed the requisite qualification in terms of the Act1977 and the Rules 1981 and not the tentative observations madeby this Court urged the learned Counsel for Respts. No.1 to 3 & 5.17.Evidently the matter lies in a narrow compass. Whetherthe petitioner possessed the requisite qualification for beingappointed to the post of Shikshan Sevak to teach Marathi subject For an answer a brief reference to the provisions of the Act 1977and the Rules 1981 becomes indispensable.18.The Act 1977 is a statutory framework governingrecruitment and conditions of service of employees of privateschools. Section 2(20) defines “private school” to mean a on 01 04 2021 on 02 04 14 W.P. No. 10565 2015 recognised school established or administered by a management other than the Government or a local authority. ClauseofSection 2 incorporates a comprehensive definition of “school” tomean a primary school secondary school higher secondary school junior college of education or any other institution by whatevername called including technical vocational or art institution or partof any such school college or institution which imparts general technical vocational art or as the case may be special education ortraining in any faculty or discipline or subject below the degreelevel. Section 3 of the Act declares that the provisions of the saidAct shall apply to all private schools in the State of Maharashtra whether receiving any grant in aid from the State Government ornot. Section 4(1) empowers the State Government to make rulesproviding for the minimum qualifications for recruitment duties pay allowances etc. and other conditions of service of employees ofprivate schools and also for reservation of number of posts formembers of the backward classes. Section 5(1) of the Act withwhich we are primarily concerned casts a duty on the managementto fill in as soon as possible in the manner prescribed everypermanent vacancy in a private school by appointment of a personduly qualified to fill such vacancy. on 01 04 2021 on 02 04 15 W.P. No. 10565 2015 19. Section 16 of the Act empowers the State Governmentto make rules for carrying out the purposes of the said Act includingthe minimum qualifications for recruitment of employees of privateschools {Section 16(2)(a)}. It would be contextually relevant tonote that in exercise of the powers conferred by Section 4(1) andSection 16(2)(a) the State Government has framed the MaharashtraEmployees of Private SchoolsRules 1981.20.Thus to ascertain as to who is a person duly qualified recourse is required to be made to the Rules. Rule 6(1) of the Rules1981 declares that the minimum qualifications for the post ofteachers and non teaching staff in the primary schools secondaryschools higher secondary schools junior colleges and junior collegesof education shall be as specified in Schedule ‘B’. Part I of theSchedule ‘B’ prescribes qualifications for Primary Teachers. Part IIprescribes qualifications for trained Teachers in Secondary Schoolsand Junior Colleges of Education. Part II is further divided in twoparts. Different qualifications are prescribed forGraduateTeachers andUndergraduate Teachers.21.For our purpose clauseof the Part IIis material. It reads as under: on 01 04 2021 on 02 04 16 W.P. No. 10565 2015 “(1) For Graduate Teachers:(i)A Bachelor’s degree in Teaching orEducation of any statutory University or aqualification recognised by Government asequivalent thereto ”22.Part III provides qualifications for Teachers in JuniorColleges. Sub clauseof first entrymay be relevant fordetermination of the question in controversy which is extractedbelow:“III. Qualifications for Teachers in Junior Colleges:(1) Full time Teachers:(a) Master’s Degree of a statutory University insecond class in the respective subjects plus B.Ed. or a Diploma or Certificate in Teaching approvedby the Department. ”23.A bare perusal of the aforesaid provisions in theSchedule especially part II “Qualifications for trained Teachers inSecondary Schools ” it becomes abundantly clear that for GraduateTeachers the candidate must have Bachelor’s degree in teaching oreducation of any statutory University or a qualification recognised bythe Government as equivalent thereto. To put it differently thecandidate must be a graduate. Secondly he must either have aBachelor’s degree in teaching or education of any statutory on 01 04 2021 on 02 04 17 W.P. No. 10565 2015 University or in the alternative a qualification recognised by theGovernment as equivalent to such Bachelor’s degree in teaching oreducation. No other qualification is discernible from the aforesaidprescription. 24.The Education Officer respondent No.3 has proceededon the premise that the candidate must have a graduation in thesubject for which the vacancy is notified and eventually appointment is made. Since the petitioner pursued graduation inScience and the advertisement was issued inviting applications forthe candidates having the qualifications of “B.A. M.A. B.Ed.(Marathi)” the petitioner did not fulfill the requisite criteria ofeducational qualification. In the view of the Education Officer it didnot matter that the petitioner had post graduation in MarathiMh.L.J. 245 wherein the services of ateacher were terminated on the ground that the respondent teachertherein who was appointed as Instructor in Junior College ofEducation had obtained her graduation with Psychology and on 01 04 2021 on 02 04 19 W.P. No. 10565 2015 Sociology and the B.Ed. Degree was obtained from AnnamalaiUniversity recognition of which was withdrawn. Repelling thesubmission that the respondent did not possess the qualification asshe had obtained the bachelor’s degree in Psychology and Sociology this Court held as under: “ 22. Similarly the ground that the firstrespondent had not completed her B.Ed. degreein a subject other than compulsory English whichwas taught at the school level is once againerroneous. Part II of Schedule B to the Rules of1981 specifies that the qualification required forgraduate teachers in Junior Colleges of Educationis inter alia a Bachelor s degree in teaching oreducation of any statutory University or aqualification recognised for Government asequivalent thereto. In contrast with this if acomparison is made with Part III of Schedule "B"which describes the qualifications for teachers inJunior Colleges one of the requirements for a fulltime teacher is a Master degree of a statutoryUniversity in the respective subjects and inaddition a B.Ed or a Diploma or Certificate inTeaching. Thus in so far as Junior Colleges areconcerned the qualifications required include aMaster degree in the respective subjects as wellas a degree in education or certificate in teaching.The requirement that a candidate should havedone a degree in the respective subjects is thus on 01 04 2021 on 02 04 20 W.P. No. 10565 2015 not a part of the qualifications prescribed in theRules for graduate teachers in colleges ofeducation. In the case of a teacher seekingemployment in a college of education it issufficient to hold a Bachelor s degree in teachingor education of a statutory University. “ 27. The aforesaid pronouncement applies with equal force tothe case of a graduate Teacher in Secondary School. Moreover inthe case at hand the petitioner possessed a post graduatequalification in the subject to teach which he came to be appointed.The Presiding Officer School Tribunal in my considered view hadfallen into an error in reading a requirement of graduation in aparticular discipline for fulfilling the criteria of qualification forappointment as a trained Teacher in Secondary School. It would beunreasonable to hold that despite having a post graduation inMarathi the petitioner did not possess the requisite knowledge ofthe said subject. 28.Reading such a requirement becomes unsustainable ifthe provisions of Part III of Schedule ‘B’ prescribing qualifications forTeachers in Junior Colleges extracted above are considered. Itspecifically provides that the Teachers in Junior Colleges shouldhave Master’s degree in second class in the respective subjects plus on 01 04 2021 on 02 04 21 W.P. No. 10565 2015 B.Ed. or a Diploma or Certificate in teaching approved by theDepartment. The Rule making authority was thus alive to therequirement of pursuing a Master’s programme in the particularsubject as the basic qualification for appointment as a Full timeTeacher in Junior Colleges. It implies that the requirement of havinga degree in the particular subject taught in the school was notconsidered to be an absolutely essential requirement. Thus thepetitioner could not have been held to be not qualified under theprovisions of Schedule ‘B’ for not possessing the degree in Marathithough he had a post graduation in Marathi. 29.The second ground of disqualification attributed to thepetitioner for having not completed B.Ed. with Marathi as the subjectof methodology of school subject also stands on a weak foundation.Again the relevant clause of Schedule ‘B’ extracted above does notwarrant that the candidate must have passed B.Ed. with theparticular subject as the methodology of school subject to teachthat subject. In a Bachelor of Education Course the emphasis ison teaching methodology pedagogy and equipping the students toimpart education. The fact that a candidate had opted for particularsubject in the said course for the purpose of methodology of school subject may not be of decisive significance. This aspect was also on 01 04 2021 on 02 04 22 W.P. No. 10565 2015 considered in the case of Anjuman Khairul IslamMh.L.J. 859.In the said case the petitioners who were possessing B.Com. B.Ed. qualification had challenged the circular dated 5th February1998 issued by the Director of Education Maharashtra State atPune directing all the Education Officersof ZillaParishads in the State not to grant approval to the appointments ofAssistant Teachers who possess the B.Com. B.Ed. Degree unlessthere is availability of work load in the respective subjects whichthey have studied up to the graduation level or in economics. Thepetitioners asserted that they had opted Marathi and History formethodology of two school subjects in the said course and thus they be held to have the necessary qualification to teach Marathi andHistory at the Secondary School level.31.The Division Bench was not persuaded to agree with theaforesaid submission. The observations of the Court in paragraphs 9& 10 are material even for determining controversy at hand. Theyread as under:9.It is nobody s case that the course contents ofB.Ed. courses in methodology paper consisting of on 01 04 2021 on 02 04 23 W.P. No. 10565 2015 two subjects can be a substitute for the coursecontents of such subjects at the basic degreelevel. For example if the methodology paper intwo subjects like Marathi and History hasprescribed certain course contents at the B.Ed.level they cannot be similar to the coursecontents in these subjects at the basic degreelevel if one has to examine the fluency that isrequired to be attained by a trained graduateteacher to teach these subjects with thestandards as are prescribed for the secondaryschool teachers. Being aware in the methodologydoes not by itself enrich the graduate teacher insuch subjects which he studied only as part of themethodology paper at the B.Ed. level andparticular standard of in depth knowledge of thesubject which one is required to teach at HigherSecondary Junior College level. The B.Ed. degreelevel course content may enrich the graduateteacher with additional skills in teaching orpsychology in teaching or methodology inteaching but the basic subject enrichment can beachieved at the graduation or post graduationlevel in these subjects. 10. Though the scheme of the MEPS Rulespostulates and recognises B.Com. B.Ed. as one ofthe qualifications for appointment to the post ofAssistant Teacher in secondary schools the on 01 04 2021 on 02 04 24 W.P. No. 10565 2015 Education Officer or the Deputy Director ofEducation has a statutory duty while grantingapproval to such appointments to examine thequalifications at the basic degree level as well aspost graduation level and not at the B.Ed. level soas to grant approval to these appointments. If thework load available in a particular school in thesubjects which the concerned teacher has studiedat the graduation level does not warrant his fullterm appointment or if there is no workload at allin such subjects the Education Officer would notbe at fault while declining approval to suchteachers irrespective of their post degree levelqualifications like B.Ed. or B.P.Ed. or even M.Ed.for that matter. Unless there is sufficient workload available in the respective subjects which theteacher has studied up to the graduation level the authorities concerned would be justified indeclining approval for his appointment and suchan action in no way amounts to changing theprovisions of the MEPS Rules or the Schedulesthereunder.“ 32. Ultimately the challenge to the circular impugned beforethe Court was held to be devoid of merits and the petition came tobe dismissed with the following observations. “ 14. In the result we hold that though theB.Com. B.Ed. is one of the qualifications on 01 04 2021 on 02 04 25 W.P. No. 10565 2015 prescribed for appointment of Assistant Teachersin secondary schools the Education Officer or theDeputy Director of Education as the case maybe has the powers to deny approval for theappointment of said teachers if there is no workload or inadequate work load in the subjectswhich they have studied at B.Com. level and thecourse contents at B.Ed. level are irrelevant todecide their eligibility for approval to teachsubjects which they have not studied at theB.Com. degree level. The challenge to theimpugned circular is therefore devoid of meritsand the petitions are hereby dismissed. Ruledischarged with no order as to costs. ” 33.In the light of aforesaid enunciation the contention onbehalf of respondent No.3 that since the petitioner had optedsubjects of Science and Maths while studying the methodology ofschool subjects in B.Ed. Course the petitioner did not fulfill therequisite qualification cannot be acceded to. The said fact does notdetract materially from the fact that the petitioner had the necessarypost graduation in Marathi. Nor does it erode the value of Bachelor’sDegree in Education which the petitioner acquired. Had thepetitioner not acquired post graduation in Marathi or for that matterobtained a degree of M.Sc. and then opted Marathi as the subjectfor methodology of school subject while pursuing B.Ed. the later on 01 04 2021 on 02 04 26 W.P. No. 10565 2015 position would not have been of any assistance to the petitioner forhe would not have the basic knowledge of the primary subject atgraduation or post graduation level. In the case at hand with apost graduation in Marathi the petitioner could not have beendisqualified on the count that he had not opted for Marathi as thesubject of methodology of school subject while pursuing B.Ed.34.The conspectus of aforesaid consideration is thattermination of the petitioner is legally unsustainable. Consequently the order of termination dated 12th of October 2013 thecommunication dated 23rd of July 2013 whereby the proposal forapproval to the appointment of the petitioner came to be rejected and the impugned judgment and order passed by the SchoolTribunal are liable to be quashed and set aside.35.The petitioner deserves to be reinstated in service.Having regard to the time lag and the attendant circumstances adirection for payment of 40%of the back wageswould meet the ends of justice. Hence the following order. O R D E R(I)The petition stands partly allowed.(II)The impugned judgment and order in Appeal No. 80 of on 01 04 2021 on 02 04 27 W.P. No. 10565 2015 2014 dated 29th April 2015 passed by the Presiding Officer School Tribunal Solapur stands set aside.(III)The order of termination dated 12th of October 2013 and the communication dated 23rd of July 2013 whereby the proposal for approval to the appointment of the petitioner came to be rejected stand quashed and set aside.(IV)The petitioner stands reinstated in service as a Shikshan Sevak with effect from 12th of October 2013 with all the consequential benefits and 40%back wages from the date of termination till the date of reinstatement.Rule made absolute in aforesaid terms.No costs. JUDGEMadkar 