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Judgment
G.S. Kulkarni, J.
Rule returnable forthwith. Respondents waive service. By consent of the learned Counsel for parties and at their request taken up for final hearing.
By this petition under Article 226 and 227 of the Constitution of India, the petitioner impugns the orders passed by the learned Presiding Officer, Additional School Tribunal, Navi Mumbai dated 4.12.2013 in Appeal No. 12 of 2013, by which the Tribunal has allowed the appeal filed by respondent No. 1, whereby her supersession to the post of Head of the School by appointing respondent No. 3 with effect from 10.6.2013, was set aside.
In short the facts are:-
Petitioner No. 1 is a Trust conducting an educational institution namely Mahila Samiti English High School and Junior College. Respondent No. 1 was appointed as an Assistant Teacher initially in the primary section with effect from 22.6.1977. Thereafter, from 15.6.1992, respondent No. 1 was appointed in the secondary section. One Smt. Jaya Venu Gopal who was the Headmistress at the relevant time, was retiring on 31.5.2013 and after her retirement a vacancy would arise of the post of a Headmistress. As per the seniority list of the Assistant Teachers one Smt. T.A.Annapurni was senior to respondent No. 1 and was required to be considered for appointment as Headmistress. However, Smt. T.A. Annapurni conveyed that she was not willing for appointment as the Headmistress. Therefore, the petitioner-Management invited willingness from respondent No. 1 who was immediately next in seniority as also from some other teachers for appointment to the post of Headmistress. It was the case of respondent No. 1 that the petitioner-Management was not acting in accordance with the Rules in seeking willingness from the other teachers, as the requirement of the Rule was that immediately the next senior teacher i.e. the respondent No. 1''s willingness could only be asked. Therefore, willingness of Respondent No. 3 could not have been asked by the petitioner.
It appears that after the willingness was given by respondent nos.1 and respondent No. 3 and one more teacher Smt. Jayalaxmi, the management of the petitioner undertook an exercise of conducting an interview and record its observation in respect of these candidates for selection to the post of Headmistress. For this purpose, a Committee headed by the President of the Trust was appointed and the said teachers including respondent No. 1 were interviewed in the meeting of the said Committee held on 21.4.2013. The Committee recorded its observations in respect of each of the candidates. The Committee made the following observations in regard to respondent No. 1 and respondent No. 3:-
"Smt. Kiran Shivanani was called first. Her knowledge of English appeared to be average, whereas her management skills and knowledge of Acts and Rules relating School was found poor. She did not produce any original certificate for verification of her actual age and qualification.
The next candidate called was Smt. Anita Balan. Her knowledge of English Language appeared to be quite good and her Management skill and School related Acts and Rules were average. She produced original of all necessary certificates as proof of age and qualification. They were found matching with those of the photocopies available in the service record."
It appears that each of the Committee members also recorded their independent assessment in regard to the candidates The minutes of the meeting of the said Committee were thereafter considered by the Executive Body of the Trust held on 6.6.2013 in which a decision was taken to supersede respondent No. 1 and appoint respondent No. 3 as Headmistress. The minutes of the meeting as held on 6.6.2013 have some relevance and read as under:-
The minutes of meeting held on 21.04.2013 was read and confirmed the same to all members. Regarding filling of the vacancy of HM(S) which was created after extended retirement of Mrs. Jaya Venugopal on 31.05.2013, the service records of the senior-most Teacher, Mrs. Kiran Shivnani of Secondary section was called. Her ACRs for the last 05 years were not only unsatisfactory, but loaded with lot of adverse entries/remarks. The then HM had conveyed those remarks to Mrs. Shivnani and in response, Mrs. Shivnani had submitted her detailed representation. The then HM had perused that representation in detail and expunged only one entry and did not interfere with other adverse entries. Her remarks on each of the 05 years ACRs were quite speaking and convincing. Further, there were found a number of other complaints in her service records which showed us that Mrs. Kiran Shivnani had committed lot of unsatisfactory works in the past and had spoiled her image with students, their parents, supervisors and earlier Management. So, the meeting decided not to recommend Mrs. Kiran Shivnani to the post of HM (Secondary).
Then the service records of next senior-most Teacher of Secondary section, Mrs. Anita Balan, were scrutinized and it was found that her service record was quite satisfactory. Her ACR for the last 05 years were also satisfactory and there was no adverse entry in any of them. Therefore, she was considered to be fit for the post of HM(S). And hence the meeting decided to recommend her name for the post.
As the service record of next senior-most Teacher, Smt. Jayalakshmi were also called. They were also scrutinized. During scrutiny of her last 05 years ACRs, it was found that there were a few adverse entries in 02 ACRs. However, as her senior Teacher was found worthy of recommendation, Mrs. Jayalakshmi''s name was not considered."
(Emphasis supplied)
In pursuance of the decision of the Executive Body of the Trust an appointment order came to be issued in favour of respondent No. 3 appointing hear as a Headmistress of the High School and Junior College.
Respondent No. 1 being aggrieved by her supersession and appointment of respondent No. 3 as Headmistress, approached the school Tribunal by filing an appeal u/s 9(1) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act,1977 (for short " the MEPS Act"). It was the case of respondent No. 1 that the action of the petitioner in appointing respondent No. 3 superseding her was wholly illegal and contrary to the mandatory requirements of Rule 3 read with Rule 15 of the Maharashtra Employees of Private School Rules, 1981 (for short MEPS Rules) inasmuch as per the strict application of these rules, respondent No. 1 being senior-most and as she possessed a satisfactory record of service, which was a primary requirements of the Rule could not have been superseded. Respondent No. 1 urged before the Tribunal that the minutes of the meeting of the Executive Body in which a decision was taken to promote respondent No. 3 in place of respondent No. 1 clearly referred to the annual confidential reports of respondent No. 1 which were taken into consideration by the Executive Body to observe that the confidential reports had adverse entries and on the basis of the alleged adverse entries in the confidential report and certain other complaints in the service record of respondent, it was decided not to promote the respondent No. 1 to the post of Headmistress, and a decision was taken to promote respondent No. 3 who was junior to respondent No. 1. It was urged that at no point of time the petitioner had informed or communicated the annual confidential reports of the last five years to respondent No. 1 and that only to create a case against the respondent No. 1, after the interviews were held on 21.4.2013, by a communication dated 14.5.2013 for the first time the alleged annual confidential reports for the last five years in one stroke were communicated. It was urged that this action on the part of the petitioner management was illegal and contrary to the requirements of Explanation below sub-rule (6) of Rule (3) of the MEPS Rules which provides that adverse remarks not duly communicated in writing to the teacher concerned, shall be disregarded in considering the candidate for appointment for the post of a Head of the school. It was the case of respondent No. 1 that the other material which was being held against respondent No. 1 had no relevance for the reasons that in regard to this material, no show cause notice, at any point of time was issued against the respondent No. 1 much less any any inquiry was held as per the provisions of Rule 36 and 37 of MEPS Rules. It was her case that she had unblemished record of service for last 30 years and that her supersession was therefore, brazenly illegal.
The petitioner appeared before the Tribunal and filed its written statement justifying the action of not appointing respondent No. 1 and appointing respondent No. 3 superseding the claim of respondent No. 1. It was the case of the petitioner that the interview Committee as also the Executive Body had considered the record of service of respondent No. 1 and after taking into consideration the annual confidential reports for last five years, a decision was taken not to appoint respondent No. 1 as Headmistress. It was urged that there is no violation of Rule 3 and Rule 15 of the Rules as alleged by respondent No. 1. The petitioners placed on record of the Tribunal various documents to show that the petitioner was justified in taking this decision. Respondent No. 3 who was the successful appointee to the post of Headmistress also appeared and supported the action of the petitioner -management.
The Tribunal by the impugned order after taking into consideration the facts as placed on record and the requirements of MEPS Act and Rules has allowed the appeal filed by respondent No. 1 in the following terms:-
"ORDER
Appeal is allowed with costs to be recovered from Respondent No. 1.
The decision of Respondent No. 1 of promoting the Respondent No. 3 Ms.Anita Shankar (Balan) to the post of H.M. w.e.f. 10/06/2013 by superseding the appellant is quashed and set aside.
The Respondent No. 1 is directed to promote the appellant to the post of H.M. of Respondent No. 3 School w.e.f. 10/06/2013 with all the consequential benefits like difference in salary etc. attached to the post H.M.
The Respondent No. 2 Education Officer Z.P. Thane is asked to see that above said directions are complied with by Respondent No. 1, within a span of 01 month from the date of order.
In the above terms the appeal is disposed of."
I have heard the learned Counsel for the rival parties. I have been taken through the relevant documents in the paper book of the present proceedings.
Mr. Rao, learned Counsel for the petitioner in assailing the order passed by the Tribunal has made the following submissions:-
(i) The observations of the Tribunal in respect of the confidential reports and its non communication are erroneous.
(ii) That the non communicated adverse reports are also required to be considered so as to consider the suitability of a candidate for the post of Head of the School. (iii)
(iii) That there was large material in the nature of complaints and other adverse material against respondent No. 1 which was necessarily required to be considered for judging the suitability of respondent No. 1 for appointment to the post of Headmistress. He submits that this requirement has not been appreciated by the Tribunal. He specifically points out the following misconduct.
(a) That there were certain actions on the part of the respondent No. 1 like distribution of pamphlets containing religious material to the students which was against the Rules of the Management. He submits that in this regard a memo was issued to the respondent No. 1 which also ought to have been considered by the Tribunal.
(b) That a complaint dated 6.8.2009 by one of the parents of a student in regard to the behaviour of respondent No. 3 also ought to have been taken into consideration by the Tribunal which justified the decision of the Management to hold respondent No. 1 not to be suitable for appointment as a Head Mistress.
Mr. Khairadi, learned Counsel for respondent No. 3 supported the submissions as made on behalf of the petitioners. He submits that the decision of the Management on the basis of the confidential reports for last five years was appropriate. He submits that the confidential reports of respondent No. 3 were satisfactory and hence, the decision of the petitioner Management appointing her as Headmistress superseding the claim of respondent No. 1 was a correct decision. He further submits that the directions as contained in paragraph (3) of the operative order passed by the Tribunal whereby the Tribunal has directed the petitioner to promote the respondent No. 1 to the post of Headmistress was erroneous, as such directions cannot be issued by the Tribunal. He submits that the Tribunal should have directed the petitioner to consider respondent No. 1 for promotion to the post of Headmistress and should not have directed to promote the respondent No. 1. Mr. Khairadi in support of his submission has relied on the judgment of the Supreme Court in the case of "Union of India Vs. Jugal Kishore Samal, (2004 (13) SCC 15)" to submit that the employee only has right to be considered for promotion and that the Tribunal could not have issued directions in the nature as issued in paragraph 3 of the operative order.
On the other hand Mr. Avinash Jalisatgi, learned Counsel for Respondent No. 1 had supported the impugned order passed by the Tribunal. In defending the judgment and opposing the submissions as made on behalf of the petitioner and respondent No. 3, the learned Counsel for respondent No. 1 has made the following submissions:-
(i) That the requirement of Rule 3(3) of the MEPS Rules is specific that the management is under an obligation to fill up the post of a Head of the school by appointing the senior most person from the teaching staff who fulfills the conditions of eligibility as laid down in sub-rule (1) and who have satisfactory record of service. He submits that there was no dispute on respondent No. 1 fulfilling all the eligibility norms as provided under sub-rule (1) of Rule 3 of the MEPS Rules and that the respondent No. 1 having a satisfactory record of service, was entitled to be appointed as the Head Mistress.
(ii) He submits that the explanation to sub-rule (3) of Rule (3) is significant inasmuch as the Management would call for willingness of only those teachers for appointment as Head of the school only when such a senior-most teacher has a satisfactory record of service. He submits that, accordingly, only after the petitioner-Management found that the respondent No. 1 had satisfactory record of service, the petitioner had called for willingness of respondent No. 1 for appointment as Headmistress, she being a senior-most teacher, after Mrs. T.A.Annapurni had declined the appointment as Headmistress.
(iii) He further submits that the requirement of Explanation below sub- rule (6) of Rule 3 of the MEPS Rules is noteworthy as it contemplates that in regard to the promotion to the post of head of the School, record of service shall be deemed to be satisfactory, if there is nothing adverse in the annual confidential report of the teacher concerned during the previous five years and that the adverse remarks not duly communicated in writing to the teacher concerned shall be disregarded for this purpose.
(iv) He submits that it is an admitted position that the alleged confidential reports for the last five years were communicated to the respondent No. 1 on 14.5.2013 which was after the petitioner''s called for willingness of Respondent No. 1 and after the interview committee had interviewed respondent No. 1 on 21.4.2013, therefore, indisputedly there was no communication of any adverse entries in the past five years and such material could not have been taken into consideration to reach a conclusion that the respondent No. 1 did not possess satisfactory record of service.
(v) That the respondent No. 1 was asked for her willingness on 29.11.2012 and therefore, even otherwise the annual confidential report for the academic year 2012-13 could not have been taken into consideration as per the requirement of Rule 15(1) of the MEPS Rules which provides that the confidential report shall be written in respect of the employee only after the employee worked for six months during the academic year commencing from June. He submits that as the willingness of respondent No. 1 was called for on 29.11.2012, the annual confidential report written after December,2012 would in no event the same could have been taken into consideration.
(vi) In the alternative to above he submits that in any event the past five years confidential reports would be for the period preceding the academic year 2012-13 considering the date of willingness to be 29.11.2012 and hence, the confidential reports for the year academic year 2012-13 even otherwise were irrelevant.
(vii) It is submitted that the action on the part of the petitioner in superseding the respondent No. 1 was patently illegal, contrary to the specific provision of Rule 3 and Rule 15 of the MEPS Rules which was correctly appreciated by the Tribunal by recording a clear findings of facts in allowing the legitimate claim of respondent No. 1.
(viii) He submits that the operative portion in paragraph 3 of the Tribunal''s order that the petitioner is directed to promote the respondent No. 1 was also justified being in clear terms of the Rule 3 of the MEPS Rules. In support of his submissions, he had relied on the judgment of the learned Single Judge of this Court in Writ Petition No. 1560 of 1993 dated 11.1.2008 where in dealing with the issue in regard to appointment of Headmistress, this Court had directed that the concerned employee be treated as Headmistress of the school and had upheld the similar directions issued by the Tribunal.
Having considered the rival submissions of the parties, the following relevant provisions of the MEPS Rules are required to be taken into consideration:-
"Rule 3. Qualifications and appointment of Head.
(1)...
(2)...
(3) The management of a school including a night school shall fill up the post of the Head by appointing the senior-most member of the teaching staff (in accordance with the guidelines laid down in Schedule "F" from amongst those employed in a school [if it is the only school run by the Management) or schools (if there are more than one school (excluding night school) conducted by it] who fulfills the conditions laid down in sub-rule (1) and who has a satisfactory record of service.
(Explanation. - For the purpose of this rule, the Management shall communicate the occurrence of vacancy of the Head to the senior-most qualified teacher having satisfactory record of service and ask him to submit his willingness for appointment to the post within a period of fifteen days from the date of receipt of the communication. The claim of the senior-most qualified teacher having satisfactory record of service, for appointment to the post of Head, may be disregarded only if he, of his own free will, gives a statement in writing to the Education Officer that he has voluntarily relinquished his claim to the post. This shall not debar him from being considered for subsequent vacancies as and when they occur. Such a teacher shall record his statement in his own handwriting before the Education Officer within a period of fifteen days from the date of receipt of the communication as aforesaid and the Education Officer shall endorse it as having been recorded in his presence. A statement once duly made by such teacher before the Education Officer shall not be allowed to be withdrawn. In the event of the teacher failing to submit his willingness for appointment to the post or to give a statement to the Education Officer within a period of fifteen days, it shall be assumed that he has relinquished his claim on the said post:
.......
(4)...
(5)...
(6)...
Explanation - For the purposes of this rule the record of service shall be deemed to be satisfactory if there is nothing adverse in the annual confidential reports of the teacher concerned during the previous five years. Adverse remarks not duly communicated in writing to the teacher concerned, shall be disregarded for this purpose.
(emphasis supplied)
Rule 15. Writing of confidential reports etc.
(1) The confidential reports shall be written annually in the respective Form in Schedule "G" The reporting authorities in respect of the employees and the Head shall be the Head and the Chief Executive Officer respectively. Confidential reports shall be written in respect of the employee or the Head who had worked for six months or more during an academic year commencing from June. If the Head or a teacher is the Secretary of the Management the Confidential report in his respect shall be written by the President of the Management.
(2)...
(3)...
(4)...
(5) Failure to write and maintain Confidential reports and to communicate adverse remarks to the employees within the period prescribed in sub-rule (3) shall have the effect that the work of the employee concerned was satisfactory during the period under report. "
(emphasis supplied)
Perusal of the provisions of sub-rule (1) of Rule 3 indicates that for a person to be appointed as a Head of the school, he should possess a qualification of being a graduate, possessing Bachelor''s degree in teaching or education of a statutory University or any other qualification recognized by Government as equivalent thereto and possessing not less than five years'' total full time teaching experience after graduation in a secondary school or a Junior College of Education out of which at least two years'' experience shall be after acquiring Bachelor''s degree in teaching or education.
The controversy is in regard to the application of sub-rule (3) and the ''Explanation'' thereunder. Sub-rule (3) of Rule 3 provides that the management of the school shall fill up the post of head by appointing the senior-most member of the teaching staff in accordance with the guidelines laid down in Schedule "F" from amongst those employed in a school (if it is the only school run by the Management) or schools (if there are more than one school (excluding night school) conducted by it) who fulfills the conditions laid down in sub-rule (1) and who has a satisfactory record of service. The Explanation below this rule provides that for the purpose of this rule, the Management shall communicate the occurrence of vacancy of the Head to the senior-most qualified teacher having satisfactory record of service and ask him to submit his willingness for appointment to the post within a period of fifteen days from the date of receipt of the communication. Further the claim of the senior-most qualified teacher having satisfactory record of service, for appointment to the post of Head, may be disregarded only if such senior-most teacher, on his own free will, gives a statement in writing to the Education Officer that he has voluntarily relinquished his claim to the post. However, such statement would not debar him from being considered for subsequent vacancies as and when they occur. The further contents of the Explanation are not relevant in the present context. It is, therefore, clear that the requirements of sub-rule (3) of Rule 3 is as follows:-
(I) That the management shall fill up the post of the Head by appointing senior most member of the teaching staff from amongst those employed in the school / schools.
(II) Such candidate shall fulfill the conditions laid down in sub-rule (1) in regard to the qualifications and experience.
(III) That the candidate should have a satisfactory record of service.
(IV) The management shall communicate occurrence of a vacancy to the post of Head to the senior-most qualified teacher having satisfactory record of service and ask him to submit his willingness for appointment to the post within a period of 15 days from the date of receipt of the communication.
(V) The claim of the senior-most qualified teacher having satisfactory record of service for appointment to the post of Head may be disregarded only if he, on his own free will, gives a statement in writing to the Education Officer that he has voluntarily relinquished his claim to the post.
(VI) Such a statement shall be in teachers own handwriting before the Education Officer within a period of 15 days from the date of receipt of the communication from the management and the Education Officer shall endorse it as having been recorded in his presence.
(VII) A statement once made by such teacher before the Education Officer shall not be allowed to be withdrawn.
(VIII) In the event, the teacher fails to submit her willingness for appointment to the post or to give a statement to the Education Officer within a period of 15 days, it shall be assumed that she has relinquished her claim on the said post.
(IX) In the Explanation as provided below sub-Rule 6 to Rule 3, it is stipulated that the record of service shall be deemed to be satisfactory if there is nothing adverse in the annual confidential reports of the teacher concerned during the previous five years and that adverse remarks not duly communicated in writing to the teacher concerned, shall be disregarded for this purpose.
Rule 15 provides for writing of confidential reports and communication of the adverse entries which has also become relevant in the facts of the present case. The requirement under this Rule is:-
(I) Rule 15(1) provides that the confidential reports shall be written annually in the respective form in Schedule "G". The reporting authorities in respect of the employees and the Head shall be the Head and the Chief Executive Officer respectively. Further that the confidential reports shall be written in respect of the employee or the Head who had worked for six months or more during an academic year commencing from June.
(II) Sub-rule (2) of Rule 15 provides that the confidential reports so written in respect of the employees and the Head shall be reviewed by the Chief Executive Officer and the President of the Management, respectively.
(III) Sub-rule (3) of Rule 15 provides that the respective reporting authority shall arrange to communicate confidentially in writing, adverse remarks, if any, to the concerned employee or the Head, as the case may be before the end of August every year.
(IV) Sub-rule (4) provides for representation from an employee against the adverse remarks communicated to him in accordance with sub-rule (3) shall be decided by the School Committee.
(V) Sub-rule (5) provides that failure to write and maintain confidential reports and to communicate adverse remarks to the employees within the period prescribed in sub- rule (3) shall have the effect that the work of the employee concerned was satisfactory during the period under report.
A conjoint reading of Rule 3 and Rule 15 makes it clear that the post of Head of a school is required to be filled up by the management by appointing senior- most member of the teaching staff who fulfills the qualification under sub-rule (1) and who has satisfactory record of service namely there is nothing adverse in the annual confidential reports of the teacher for the previous five years and that the adverse remarks not duly communicated in writing to the teacher concerned would stand disregarded for this purpose. Applying these statutory requirements, it is required to be considered whether the respondent No. 1 complied with all these requirements to be appointed as Head.
There is no dispute in regard to the qualification namely the requirements of sub-rule (1) of Rule 3 being possessed by the respondent No. 1. The respondent No. 1 was initially appointed as an Assistant Teacher in the year 1977 in the Primary Section and thereafter, from 15.6.1992 she was appointed in the Secondary Section. She possesses a qualification of a Bachelor degree (B.A.) as also a Bachelor degree in Education viz. B.Ed. It is further an undisputed position that there was a vacancy in view of retirement of earlier Headmistress viz. Smt. Jaya Venu Gopal who reired on 31.5.2013 and that the senior-most teacher after the retirement of Smt. Jaya Venu Gopal was Smt. T.A.Annapurani who had declined to occupy the post of Headmistress, and therefore, the next senior-most teacher was the respondent No. 1. The requirements under Explanation below sub-rule (3) of Rule (3) provides that the management shall communicate the occurrence of a vacancy of the Head to a "senior-most qualified teacher having satisfactory record of service", and ask such teacher to submit a willingness to be appointed on the post of Head within a period of 15 days from the date of communication. The pre-condition, therefore, is that a willingness is required to be sought from the senior-most qualified teacher having satisfactory record of service and from no other teacher. It is not disputed that such willingness was called for from respondent No. 1 on 29.11.2012. Respondent No. 1 accordingly submitted her willingness by her letter dated 30.11.2012, though with a displeasure as recorded in her letter in regard to the manner in which the willingness was sought. The petitioner seeking willingness of respondent No. 1 clearly goes to show that as per the requirement of explanation below sub-rule (3) of Rule 3, respondent No. 1 was considered as a qualified teacher having satisfactory record of service by the petitioner management. As unless this conclusion is arrived by the management willingness cannot be asked.
It appears that, however, the things changed, inasmuch as the petitioner management deviated from the procedure to be adopted under the MEPS Rules by constituting a committee headed by the President of the Trust and interviewed respondent No. 1 alongwith other two candidates. The committee submitted a report dated 21.4.2013 in which without making a reference to the confidential reports. The following observations came to be made by the said committee in regard to respondent No. 1:-
"Smt. Kiran Shivanani was called first. Her knowledge of English appeared to be average, whereas her management skills and knowledge of Acts and Rules relating School was found poor. She did not produce any original certificate for verification of her actual age and qualification."
This procedure which was adopted by the petitioner management to appoint a Committee and to conduct interview was contrary to the rules in considering a candidate for appointment as Headmistress. However, things did not stop at this. On 14.5.2013 a letter came to be addressed by the Headmistress to the respondent No. 1 communicating respondent No. 1, confidential reports for the last five years, which reads as under:-
"
Date: 14th May,2013
To. Mrs. Kiran Shivnani, Teacher, Secondary Section, Mahila Samiti School, Thakurli (East).
Sub:- Communication of Confidential Report.
****
While going through your Personal File and other Service Records, it was observed that there is no record available to show that the Confidential Report written by the then HM, have been communicated to you. The Photocopies of such Confidential Reports for the last 05 years are therefore supplied to you for favour of your information. Further, if you feel that anything mentioned therein is not agreeable, you may submit your Representation against such adverse entries. So that your Representation and Confidential Report can be put up before the Competent Authority for necessary disposal as may be deemed proper by the Competent Authority.
You are, therefore, advised to submit your Representation, if any, within 15 days, after receipt of this letter. In case, you fail to do so, it will be presumed that you have nothing to say against any of the entries in the Confidential Reports.
DA: 05 Photocopies of CR.
Head Mistress Mahila Samiti School Thakurli (East)"
From the reading of the aforesaid letter, it is clear that the petitioner had not adhered to the requirements of sub-rule (1) of Rule 15 read with sub-rules (3) and (5) of Rule 15, inasmuch as the annual confidential reports for last five years were sought to be foisted on respondent No. 1 which contained adverse entries against the respondent No. 1 and on which an explanation was sought from respondent No. 1 within 15 days. This action on the part of the petitioner was in clear breach of the provisions of Rule 15. A perusal of the confidential reports as placed on record of this petition also shows that the confidential reports are not prepared as per the requirements of sub-rule (1) of Rule 15 which provides that the confidential report should be in a form provided in Schedule "G" which has number of categorical requirements. This was another breach of the statutory requirement at the hands of the petitioner. This also shows the casual attitude of the petitioner towards its employees.
Thereafter executive body of the petitioner held a meeting on 6.6.2013 to consider the candidature of respondent No. 1 and other two teachers for appointment to the post of Headmistress. The Executive Body observed that the service record of respondent No. 1 was called and that the annual confidential reports of respondent No. 1 for the last five years were not only unsatisfactory but loaded with adverse entries and remarks and that the then Headmistress had also conveyed those remarks to respondent No. 1 and in response to which the respondent No. 1 had submitted a representation, but however, only one adverse entry was expunged by maintaining the other adverse entries. The Committee considering the confidential reports for last five years as communicated to respondent No. 1 on 14.5.2013 and on the basis of the same, decided not to recommend the respondent No. 1 to the post of Headmistress and recommended respondent No. 3 who was held to have satisfactory record of service for last five years to be appointed as Headmistress.
It is, therefore, clear that the executive body principally relied on the annual confidential reports for last five years and held against the respondent No. 1 on the basis of the said annual confidential reports and the adverse entries as contained therein. The petitioner could not have taken into consideration the adverse entries as contained in the said annual confidential report for the last five years in view of the clear requirement of Explanation to Rule (3) as recorded below sub-rule (6) which stipulates that the adverse remarks not duly communicated in writing to a teacher concerned shall be disregarded for that purpose.
Moreover, it is an undisputed position that the annual confidential reports for the last five years were communicated by the petitioner on 14.5.2013 which is almost after about six months from the date on which the willingness from the respondent No. 1 to be appointed as Headmistress was sought as per the requirement of sub-rule (3) of Rule 3 of the MEPS Rules. As observed above the requirement of sub- rule (3) of Rule 3 is that the management should seek willingness only of the senior- most qualified teacher having satisfactory record of service. The pre-condition of sub- rule (3) of Rule 3 is that the management is required to be satisfied that the candidate is senior-most and that such candidate is having a satisfactory record of service only then the willingness could be called for. The petitioner, accordingly, had called for willingness of the respondent No. 1 after the petitioner was satisfied about these requirements. It is significant that at that point of time the annual confidential reports for the last five years were not communicated to the respondent No. 1 and hence, the respondent No. 1 was not aware about any adverse entry as contained in the said reports. As this was an admitted position as it stood on the record, then the Executive Body of the petitioner could not have taken into consideration the non communicated annual confidential reports and the adverse entries as contained therein so as to reject the claim of respondent No. 1 for appointment as Headmistress. The entire approach of the petitioner was contrary to the provisions of sub-rule (3) of Rule 3 and Explanation below sub-rule (6) of Rule 3 of the MEPS Rules.
The contention as raised on behalf of the petitioner that the observations of the Tribunal in regard to the preparation of annual confidential report is erroneous is misconceived. The Tribunal has correctly appreciated the factual matrix to reach the conclusion that the annual confidential reports for the last five years which were taken into consideration were not communicated to the respondent No. 1. This was the requirements of Rule 15. Admittedly all these confidential reports were communicated on 14.5.2013, after the willingness was given by the respondent No. 1. As regards the submission on behalf of the petitioner that even uncommunicated adverse reports are required to be considered, the same is contrary to the express provision of Rule 3 more particularly Explanation below sub-rule (6) of Rule 3 which requires that the adverse remarks not duly communicated in writing to the teacher concerned shall be disregarded for that purpose. The next submission on behalf of the petitioner, that the respondent No. 1 had also some other lapses inasmuch as some time in the year 2012 she has distributed some religious material and therefore, the Tribunal on this count ought to have upheld the decision of the petitioner to supersede respondent No. 1 by appointing respondent No. 3, also cannot be sustained. The Tribunal has rightly entered into an inquiry on the factual issue so as to record a finding that in regard to the alleged lapses/ misconduct on the part of respondent No. 1, no action whatsoever was taken by the petitioner either to issue a show cause notice or to hold a departmental inquiry. Further in regard to this issue timely annual confidential reports were not prepared and communicated. In the absence of all these basic requirements and compliance of the statutory requirements, it cannot be said that the Tribunal is in any error in recording a findings of fact on this issue in favour of respondent No. 1. The petitioner management was always in a position to take appropriate action in accordance with the provisions of the Rules if the petitioner was of the opinion that certain acts of commission and omission amounted to a misconduct on the part of the respondent No. 1. In the absence of any such action being taken by the petitioner, the issue as raised on behalf of the petitioner on these lapses could not have been asserted by the petitioner.
Mr. Rao, learned Counsel for the petitioner has relied on the judgment of the Supreme Court in the case of "Union of India and Ors. Vs. Jugal Kishore Samal, (2004 (13) SCC 15)" to submit that the Tribunal could not have directed the petitioner to give promotion to respondent No. 1. I am afraid that this judgment is of no assistance to the petitioner inasmuch as in the present case the Tribunal had entered an inquiry on the facts on the appeal filed by respondent No. 1 and after taking into consideration the requirement of MEPS Rules and more particularly Rule 3 and Rule 15, has recorded a finding that the actions of the petitioner were in clear violation of the statutory requirements and hence, set aside the decision of the management directing that the respondent No. 1 be promoted. I do not find that the Tribunal has in any manner exceeded the jurisdiction as vested in it.
On behalf of respondent No. 1, Mr. Jalisatgi has placed reliance on the decision of the Supreme Court in the case of Babaji Kondaji Garad Vs. Nasik Merchants Co-operative Bank Ltd., Nasik and Others, to contend that the petitioner ought to have strictly adhered to the MEPS Rules in undertaking the exercise of promotion to the post of Headmistress. Relying on this decision he submits that it is well settled that when a statute requires a certain thing to be done in a certain manner, it must be done in that manner alone, unless a contrary indication is to be found in the statute. The reliance placed on behalf of the respondent No. 1 on this decision of the Supreme Court is appropriate. In the present case the provisions of Rule 3 and Rule 15 categorically required the petitioner to undertake whole exercise of promotion strictly in accordance with the provisions of the Rules, however, as observed hereinabove the petitioner has acted in complete breach of the requirements of the said Rules in superseding respondent No. 1 and appointing respondent No. 3.
Mr. Rao, learned Counsel appearing for the petitioner and Mr. Khairdi, learned Counsel appearing for respondent No. 3 have also assailed the directions of the Tribunal to the extent the Tribunal has directed the petitioners to promote the respondent No. 1 to the post of Headmistress with effect from 10.6.2013 with all consequential benefits. It is the common submission of the learned Counsel that the Tribunal is in error in issuing directions of this nature inasmuch as the Tribunal could have only directed considering the respondent No. 1 for appointment to the post of Headmistress. In my opinion, there is no error on the part of the Tribunal to issue these directions, as in the present case the Rules clearly require that the senior-most teacher be appointed as Head of the school, if the senior-most teacher satisfies the requirement as contained in rule 3 of the MEPS Rules. This proposition as canvassed on behalf of the petitioner and respondent No. 3 also cannot be sustained as in making appointment to the post of Head of the school, it is not a case that several candidates are required to be considered for that purpose. The requirement of Rule is that only the senior-most teacher should be considered. If the senior-most teacher does not qualify the requirement of the Rules then the next senior teacher would become eligible for appointment, if all the eligibility norms are satisfied by the candidates. This is the scheme of the statutory Rules. The direction of the Tribunal, therefore, to appoint respondent No. 1 on the post of Headmistress cannot be said to be erroneous. In fact the same is in consonance with the requirement of Rule 3 of MEPS Rules. Mr. Jalisatgi, learned counsel for respondent No. 1 submits that when it is a question of appointment of Headmistress, this Court has sustained such orders passed by the Tribunal where the Tribunal has directed the eligible candidate to be appointed as Head of the school. In support of his submission he relies on the judgment of the learned Single Judge of this Court in Writ Petition No. 1560 of 1993 dated 11.1.2008 in the case of "Shri. Sant Goroba Shikshan Sanstha Vs. 1.Shri.Anantrao Khandoji Auty and Ors.". He submits that the facts of this case were similar to the present case where the annual confidential reports were never placed before the Managing Committee. In upholding the order passed by the Tribunal the learned Single Judge of this Court has passed the following order:-
"7. In the premises, this petition fails and the same is hereby dismissed. The respondent No. 1 shall be treated as the Headmaster of the School from 1/5/1992 as directed by the School Tribunal and he shall be entitled for all consequential benefits. No costs."
In another decision of the learned Single Judge of this Court in the case of "Malati Appu Pachore Vs. State of Maharashtra and Ors., (2008(2) Bom.C.R. 551)", the learned single Judge in appreciating the provisions of Rule 3(4) of the MEPS Rules had observed as under:-
"7. Rule 3(4) of the MEPS Rules, 1981 reads as under:
"In the case of a girls'' secondary school or Junior College of Education for Women, the senior most lady teacher fulfilling the conditions laid down in Clause (b) of sub- rule (1) and having satisfactory record of service, shall be appointed as the Head of that school irrespective of her seniority vis-a-vis the male teachers."
As per Rule 3(1) for appointment of Head in a secondary school experience of five years teaching in a secondary school is necessary and that too on full time basis and after graduation. In addition the service record during the period of five years ought to be satisfactory. In its Written Statement before the School Tribunal in Appeal No. 172 of 1992, the respondent No. 2 remained silent on both these requirements i.e. experience of five years as well as the satisfactory service record. There is some correspondence on record to indicate that the respondent No. 2 did not accept that the petitioner had worked as an Assistant Teacher from 3/7/1978 to 13/4/1980 and 2/7/1984 to 30/4/1985 before joining the present high school. Be that as it may, the fact remains that even on the date the respondent No. 3 had filed his reply before the School Tribunal, the petitioner had more than five years experience even with the girls'' high school run by the respondent No. 2, if regards be had to her first appointment in June 1986. The School Tribunal utterly failed to consider the requirements of Rule 3 and dismissed the appeal on the basis of the reasoning referred to hereinabove. This Court has consistently taken a view that for the appointment of Head Mistress in a girls'' high school, it is mandatory for the private aided schools to follow the provisions of Rule 3(4) of the MEPS Rules and though the petitioner was not senior to the respondent No. 3, her status as the senior most lady teacher was not disputed either by the respondent No. 2 or respondent No. 3 before the School Tribunal and even before this Court in their respective replies.
In the premises the impugned judgment and order is unsustainable and, therefore, this petition succeeds. The same is hereby allowed and the impugned judgment and order dated 6/8/1993 is quashed and set aside. Appeal No. 173 of 1992 filed by the petitioner stands allowed and it is directed that the petitioner shall be treated to be the Head Mistress of the said school with effect from 1/9/1993 and she shall be entitled for consequential benefits. Rule is made absolute accordingly with no order as to costs. "
(emphasis supplied)
It is, therefore, quite clear that the directions of the Tribunal to appoint respondent No. 3 to the post of Headmistress cannot be said to be illegal or without jurisdiction, as is clear from the plain reading of Rule 3 of the MEPS Rules.
In the light of the aforesaid discussion, I am of the considered view that the petitioner-Management in taking a decision to supersede respondent No. 1 and appointing respondent No. 3 as Headmistress was contrary to the requirement of Sub-rule 3 of Rule (3) read with its explanation, and explanation below sub- rule (6) as also the requirement of Rule 15(1). The Tribunal has appropriately considered the facts as placed on record and after applying the requirements of law as stipulated in the said Rule has rightly allowed the appeal filed by respondent No. 1. There is no infirmity, perversity or illegality in the findings of the Tribunal, as recorded in the impugned order, so as to call for interference of this Court in exercise of its jurisdiction under Articles 226 and 227 of the Constitution. Writ Petition is devoid of merits and is accordingly rejected. Parties to bear their own costs.