1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH NAGPUR Second Appeal No. 332/2006 -------------------------------------------------------------------------------- Office Notes, Memoranda of Coram, appearances, Court's orders or directions : Court's or Judge's orders and Registrar's orders. ---------------------------------------------------------------------------------------------------- CORAM : A.P. Lavande, J . Dated : October 4 , 2006 This second appeal has been preferred against judgment and decree dated 13th March, 2006 passed by First Adhoc Additional District Judge, Bhandara in Regular Civil Appeal No. 116/2003 filed by the appellant-plaintiff against judgment and decree dated 14.7.2003 passed by Joint Civil Judge, Senior Division, Bhandara in Regular Civil Suit No. 199 of 1997. The plaintiff filed the above suit seeking declaration to the effect that her appointment as Head Mistress is legal and proper and further seeking mandatory injunction directing the defendants to accord approval to her appointment with effect from 14.8.1997 onwards and also to release her pay. 2 The plaintiff was appointed as Head Mistress in Nisha Vidhyala, Bhandara run by defendant no.1. The said school is an aided school. Smt. Sheela Kathale who was serving of the Head Mistress of the said school was terminated by the management with effect from 24.10.1996. The management issued advertisement in weekly “Khoj” for filling up the post. Pursuant to the advertisement, only the plaintiff who is wife of the Secretary and daughter in law of the President applied and she was appointed as Head Mistress of the school with effect from 14.8.1997. On 15.11.1997 defendant no.2 informed defendant no. 1 that the appointment of the plaintiff could not be approved. Thereafter the plaintiff filed the above suit claiming several reliefs. In the mean time, the earlier Head Mistress had also filed an appeal against her termination which according to learned counsel appearing for the parties is still pending. The claim made by the plaintiff in the suit was supported by defendant no.1 and was contested by defendant nos. 2 to 4. The trial Court, upon appreciation of the evidence oral as well as documentary, led by the parties, held that the 3 appointment of the plaintiff was not made following the Maharashtra Employees of Private Schools (Conditions of service) Rules, 1981 (hereinafter referred to as “the Rules”) more particularly Rule 3 (1) and Rule 3(5)(b) of the Rules. In the appeal preferred by the plaintiff the appellate Court confirmed the findings given by the trial Court and consequently dismissed the appeal. Mr. Gordey, learned counsel appearing for the appellant-plaintiff submitted that the both the Courts below have erred in law in holding that the appointment of the plaintiff was contrary to the Rules. According to learned counsel, Rule 3 (5)(b) which requires publication of advertisement in two daily newspapers is directory and not mandatory. In support of his submission, he relied upon the judgment of this Court in the case of Dnyan Vikas Mandal Vs. Parashram s/o Laxman Lokhande & others (1991 Mh L J 830). Learned counsel further submitted that the management was entitled to fill up the post of Head Mistress on adhoc basis in terms of Government Resolution dated 22.12.1995 and, therefore, the findings given by both the Courts below are perverse warranting 4 interference in second appeal. Mr. Mohgaonkar, learned counsel appearing for respondent no.1 - defendant no.1 supported the submissions made by Mr. Gordey, learned counsel appearing for the appellant. Mr. Kakde, learned A.G.P. appearing on behalf of respondent nos. 2 to 4 - defendant nos. 2 to 4 submitted that the appointment was made without following Rule 3 of the Rules and, therefore, both the Courts below rejected the claim of the plaintiff. He further submitted that admittedly the plaintiff did not have requisite minimum qualification required for holding the post of Head Mistress. I have considered the submissions made by learned counsel for the parties. Insofar as the compliance of Rule 3 (5) (b) is concerned, the evidence on record clearly establishes that the management had given advertisement in weekly “Khoj” instead of daily newspapers. That being the position, the provisions of Rule3(5)(b) of the Rules has clearly not been followed by the management. Insofar as the ratio of the judgment in Dnyan's case (supra) is 5 concerned, the same does not advance the case of the plaintiff inasmuch as in the said case advertisement was published in one newspaper instead of two and in view of the said fact this Court held that there was substantial compliance. In the present case, the management has chosen to publish the advertisement in weekly and, therefore, there is a patent non-compliance of Rule 3 (5)(b) of the Rules. This assumes importance in view of the admitted fact that pursuant to the advertisement in the said daily admittedly only one candidate i.e. the plaintiff appeared for the interview. This also assumes importance in the background of the fact that the plaintiff is the wife of the Secretary and the daughter in law of the President. Insofar as the Circular dated 22.10.1995 upon which reliance has been placed by the appellant is concerned, the same also does not advance the case of the plaintiff. I am unable to accept the submissions of Mr. Gordey that since the appointment of the plaintiff was on adhoc basis, being in place of the terminated Head Mistress Smt. Sheela Kathale, the management could have appointed the plaintiff in terms of said Circular 6 dated 22.12.1995 without following the procedure laid down under the Rules. Mr. Gordey has not been able to point out the Rule in the Rules which authorises the management to make adhoc appointment without following the Rules more particularly Rule 3 of the Rules. That being the position, I do not find any merit in the submissions made on behalf of the appellant. The evidence on record also does not establish that before appointing the plaintiff as Head Mistress of the school, the claim of the qualified teachers already working in the school was considered or that the teachers who were qualified to be appointed as Head Master/Head Mistress had of their own free will had given any statement relinquishing their claim to the post, as required under Rule 3. That being the position, in my opinion, the suit filed by the plaintiff was rightly dismissed by the trial Court and also the appellate Court was justified in dismissing the appeal filed by the plaintiff. The evidence on record clearly suggests that the appointment was made by the management only to accommodate the plaintiff who happens to be the wife of the Secretary and daughter in law of the 7 President. Having considered the submissions made by learned counsel appearing for the parties and having perused the records, I do not find any perversity or illegality in the findings given by both the Courts below. In any event, no substantial question of law is involved in the appeal. Therefore, the appeal is rejected. C.A. No.3031/2006 In view of dismissal of second appeal, nothing survives in the application. Hence, the civil application is dismissed as infructuous. JUDGE A.