1 1 1 IN THE HIGH COURT OF JUDIATURE AT BOMBAY IN THE HIGH COURT OF JUDIATURE AT BOMBAY IN THE HIGH COURT OF JUDIATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION LETTERS PATENT APPEAL NO.371 OF 2000 IN WRIT PETITION NO.3792 OF 2000 Smt.Nirmala Revappa Pattanshetti aged about 47 years, occupation Head Mistress, Sant Damaji High School, Mangalwedha, residing at and post Mangalwedha, District Sholapur .. Appellant. Versus 1. Shri Mahadev Ramchandra Mali age about 49 years, occupation Teacher, residing at and post Mangalwedha, Taluka Mangalwedha District Sholapur. .. 2. Shri Vidya Vikas Mandal Mangalwedha through its Secretary, having its office at Shri Sant Damji Mahavidyalaya Mangalwedha, Dist. Sholapur .. 3. Education Officer (Secondary School) Zilla Parishad, Sholapur .. Respondents. Shri S.G.Deshmukh for the appellant. Mrs.Anita Agarwal for respondent no.1. CORAM : SMT.RANJANA DESAI CORAM : SMT.RANJANA DESAI CORAM : SMT.RANJANA DESAI & D.B.BHOSALE, JJ & D.B.BHOSALE, JJ & D.B.BHOSALE, JJ. DATED : 15TH FEBRUARY 2006 DATED : 15TH FEBRUARY 2006 DATED : 15TH FEBRUARY 2006. JUDGMENT: (PER D.B.BHOSALE, J.) JUDGMENT: (PER D.B.BHOSALE, J.) JUDGMENT: (PER D.B.BHOSALE, J.) 1. This letters patent appeal is directed against the order dated 23.8.2000 passed by the learned Single Judge of this Court in Writ Petition No.3792 of 2000 by which the writ petition was 2 2 2 rejected at the stage of admission. In the writ petition, the appellant had impugned the judgment and order dated 23.6.2000 of the Presiding Officer, Additional School Tribunal, Pune Region, Solapur in Appeal No.71 of 1998. Respondent no.1 had filed the said appeal challenging his reduction in rank from the post of Head to the post of Assistant Teacher. 2. The school tribunal by its judgment and order dated 23.6.2000 declared an appointment of the appellant as Head Mistress of Shri Santa Damaji Mahavidyalaya, Mangalwedha, the school run by respondent no.2 (for short "the school"), to be illegal and against the provisions of the Maharashtra Employees of Private Schools (Conditions of service) Regulation Act, 1977 (for short "the Act") and the rules made in that behalf and further directed to restore respondent no.1 to his original post of Head of the school and granting all benefits attached to the said post. 3. Respondent No.2 - Shri Vidya Vikas Mandal, Mangalwedha (for short "the institution or management") started the school in the year 1985-86. It was initially started on a non-grant basis. Subsequently, from the year 1988, the 3 3 3 school started receiving partial grant-in-aid and from 1991-92 it became a 100% grantable school. Admittedly, right from the inception, the appellant was appointed as an Assistant Teacher in the school i.e. from 22.10.1985. She had already passed her B.A., B.Ed and was thus fully qualified to be appointed as a trained Assistant Teacher. 4. The case set up by the appellant is that respondent no.1 was appointed in the school in the untrained teachers scale, straight a way to the post of Head Master, with effect from 1.8.1987. The said appointment was as Incharge Head Master for the period from 1.8.1987 to 30.6.1988. His appointment was thereafter continued from time to time until the appellant was appointed to the post of Head of the school on 23.4.1998. Though respondent no.1 was working as the Head for about ten years, admittedly his appointment was not approved by respondent no.3 - Education Officer. Respondent no.1 was not qualified to be appointed to the post of Head in 1987-88 and, therefore, all throughout he was treated as Incharge Head Master of the school. It appears that statements in the form of letters were recorded in the presence of the Education Officer on 25.6.1997 by which, it is alleged by respondent no.1, that the seven teachers 4 4 4 including the appellant, who were senior to respondent no.1, had relinquished their right of appointment on the post of Head and in view thereof it was claimed by respondent no.1 that his appointment as the Head was legal and was made in adherence to the provisions of Rule 3(3) of the Maharashtra Employees of Private Schools (Conditions of service) Rules, 1981 (for short "the rules"). 5. It appears that since respondent no.1 was not possessing a required qualification to be appointed as Head, respondent no.3 did not approve of his appointment and, therefore, he was continued as Inharge Head. Since the management was not making an appointment of a regular Head Master, respondent No.3 stopped grant-in-aid to the school which ultimately forced the institution to appoint the appellant as the Head. 6. Respondent no.1 handed over the charge to the appellant, on her being appointed as Head of the school, without raising any objection and without any demure on 23.4.1998. Her appointment was initially approved as Incharge Head Mistress and thereafter as Head of the school and as such she was granted scale of Head of the school with 5 5 5 effect from 24.4.1998. It is this action of the institution, which according to respondent no.1 was amounting to reduction of his rank, was challenged in appeal under section 9 of the Act before the school tribunal. 7. Respondent No.1 has filed reply affidavit denying a claim of the appellant to be appointed as the Head Mistress of the school mainly relying upon her letter dated 25.6.1997 by which the appellant allegedly relinquished her claim/right over the post of Head of the school. He has stated that he was holding that post for more than 10 years and that the appellant never objected to his appointment as the Head. He claims that on the date of an appointment he was holding required qualification to be appointed as the Head of the school. It is against this backdrop he has placed reliance upon the provisions of rule 3(3) of the rules and contended that the appellant after having made the statement before respondent no.3, relinquishing her right of appointment on the post of Head, cannot turnaround and claim the said post. 8. We heard the learned counsel appearing for the parties for quite sometime and with their assistance perused the impugned orders and other 6 6 6 material placed before us. At the outset Mr.Deshmukh, learned counsel for the appellant submitted that the appointment of respondent no.1 was ipso facto bad in law since in 1987, when he was appointed as Head, he was not possessing the required qualification for the said post. He further submitted that the procedure provided for in rule 3 for an appointment of Head of a school was also not followed and, therefore, the so called appointment of respondent no.1 as Head in 1987 was bad in law. The procedure laid down in rule 3 of the rules is mandatory in character and that cannot be bypassed for any reason whatsoever. He further submitted that even if it is assumed that the appellant made a statement, in the form of a letter dated 25.6.1997, relinquishing her claim to the post of Head of the school before the Education Officer, such statement cannot be treated as one which is provided for in the explanation appended to sub-rule (3) of rule 3 of the rules. The said letter was obtained after the appointment of respondent no.1 and not before. Moreover a bare reading of the statement/letter would show that the appellant had not relinquished her claim to the post of Head of the school. He then submitted that an appointment of the appellant as Head cannot be termed as a reduction in rank of respondent no.1 7 7 7 since he was not holding that post as regular Head Master and all throughout he was Incharge Head Master of the school. Mr.Deshmukh lastly submitted that the appointment of respondent no.1 was neither approved by the Education Officer nor was he paid regular salary of Head Master and, therefore, he cannot claim that he was reduced in rank. 9. On the other hand Ms.Agarwal, learned counsel for respondent no.1 submitted that it is not open for the appellant to claim the post of Head as she had relinquished her right by making statement on 25.6.1997 before the Education Officer. Sub-rule (3) of rule 3 clearly inhibits the senior teacher, who has relinquished his/her right/claim in writing, to turnaround and claim the said post. She further submitted that respondent No.1 was holding the said post since 1987 and that the appellant never made any grievance whatsoever regarding her appointment as Head. Ms.Agarwal then submitted that besides the written statement, the appellant by her conduct, accepted the appointment of respondent no.1 by keeping quite for 10 years and signing the seniority list showing him senior to her. Our attention was drawn to rule 12 of the rules to contend that the appellant did not raise any objection to the seniority list showing 8 8 8 respondent no.1 as her senior and therefore now it is not open for her to claim the post of Head. In support of this contention a reliance was placed upon the judgment of this Court in Burondi Burondi Burondi Karajgaon Lodgar Panchkroshi Shikshan Sanstha & Karajgaon Lodgar Panchkroshi Shikshan Sanstha & Karajgaon Lodgar Panchkroshi Shikshan Sanstha & Others Vs. Vilasrao Maruti Desai and Others 1992 Others Vs. Vilasrao Maruti Desai and Others 1992 Others Vs. Vilasrao Maruti Desai and Others 1992 (2) Mh.L.J. 779 (2) Mh.L.J. 779 (2) Mh.L.J. 779. From bare reading of the statement/letter dated 25.6.1997 according to Ms.Agarwal, it is clear that even the procedure prescribed under rule 3 was followed by the Management. The Management did communicate to the appellant an occurrence of the vacancy, which is reflected in the first paragraph of the letter dated 25.6.1997. In the letter she has also appreciated the services rendered by respondent no.1 for ten years and gave up her claim on the said post. She further submitted that respondent no.1 was getting the revised pay scale as regular Head Master with effect from 3.8.1999 and it is clearly reflected in the order of the revised pay scale dated 6.11.1993 issued by the President of the Institution. Our attention was drawn to the communication received by respondent no.1 from Marathwada university to contend that respondent no.1 was holding required qualification and it is rightly held by the tribunal and affirmed by the learned Single Judge that respondent no.1 was 9 9 9 qualified to be appointed as the Head of the school. Lastly, she submitted that it is not open for this Court in the letters patent appeal to reassess the evidence produced by the parties and reach a conclusion other than the one which is arrived at by the authority below. In support of this contention the reliance was placed on the judgment of the Apex Court in Umabai and Anr. Vs. Umabai and Anr. Vs. Umabai and Anr. Vs. Nilkanth Dhondiba Chavan (Dead) by LRs. and Nilkanth Dhondiba Chavan (Dead) by LRs. and Nilkanth Dhondiba Chavan (Dead) by LRs. and Anr.(2005) 6 SCC 243 Anr.(2005) 6 SCC 243 Anr.(2005) 6 SCC 243. 10. At the outset, we would like to consider the last submission of Ms.Agarwal first. It is true that the power of the appeal court in letters patent appeal is not identical with that contained in section 100 of the Code of Civil Procedure. It is equally settled that an entertainment of a letters patent appeal is discretionary and normally normally normally in the absence of cogent reasons in the absence of cogent reasons in the absence of cogent reasons the Division Bench is not expected to differ from a finding of fact recorded by Single Judge as noted by the Apex Court in Umabai’s case (supra). The relevant observations made by the Supreme Court in paragraph 52 read thus: "52. It may be, as has been held in Asha Devi that the power of the appellate court in intra-court appeal is not exactly the same as contained in section 100 of the 10 10 10 Code of Civil Procedure but it is also well known that entertainment of a letters patent appeal is discretionary and normally normally normally the Division Bench would not, unless there the Division Bench would not, unless there the Division Bench would not, unless there exist cogent reasons, differ from a finding exist cogent reasons, differ from a finding exist cogent reasons, differ from a finding of fact arrived at by the learned Single of fact arrived at by the learned Single of fact arrived at by the learned Single Judge Judge Judge. Even as noticed hereinbefore, a court of first appeal which is the final court of appeal on fact may have to exercise some amount of restraint." (emphasis supplied) . It is thus clear that if there exist cogent reasons the Division Bench in letters patent appeal can differ from finding of fact arrived at by the learned Single Judge. In our opinion, the instant case is one where finding of fact arrived at requires to be interfered with since there exist cogent reasons for the same, which we now proceed to record in the latter part of the judgment. 11. Before we deal with the arguments advanced by the learned counsel for the parties and examine the merits of the case, for better understanding, it would be advantageous to look into the provisions of rule 3 of the rules and the definition of Head, on which a considerable length of arguments were advanced by the learned counsel for the parties. The word ‘Head’ is defined in sub section (9) of section 2 which reads thus: "(9). "Head of a school" or "Head" means the person, by whatever name called, in 11 11 11 charge of the academic and administrative duties and functions of a school conducted by any Management and recognised or deemed to be recognised under this Act, and includes a principal, vice-principal, head master, head mistress, assistant head master, assistant head mistress, or superintendent thereof." (emphasis supplied) . A bare reading of the definition would show that Head means a person Incharge of the academic and administrative duties, and functions of a school conducted by any management and recognised or deemed to be recognised under the Act. The recognition under the Act is thus necessary to call a person Head of a school. Rule 3 provides for qualifications and appointment of ‘Head’. Clause (b) of sub-rule (1), sub-rule (2) and (3) with the explanation, sub-rule 5(a) and sub-rule (6) of rule 3, with which we are primarily concerned in the instant appeal, read thus: "3. Qualifications and appointment of Head - (1) A person to be appointed as the Head - (a) (i) .... .... .... (ii) .... .... .... "(b). of a secondary school including night school or a Junior College of Education shall be a graduate possessing Bachelor’s degree in teaching or education of a statutory University or any other qualification recognised by Government as equivalent thereto and possessing not less than five years’ total full-time teaching 12 12 12 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." (i) .... .... .... (ii) .... .... .... "(2) In the case of appointment to the post of Head of a secondary school including night school or a Junior College of Education if there is no person with the teaching experience mentioned in clause (b) of sub-rule (1) available on the staff of the school or if the qualified persons, though available and eligible, relinquish their claims for the post of head and if a Management desires to appoint a person, from the teaching staff of the school who does not possess the requisite teaching experience mentioned in clause (b) of sub-rule (1), it shall apply to the Deputy Director for relaxing the requirement. The Deputy Director may, after recording reasons in writing, grant or refuse such relaxation. In such cases, the appointment shall not be made without obtaining the previous approval of the Deputy Director." .... .... .... .... (3) The Management of a school including a night school shall fill up the post of the Head by appointing the seniormost 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 only school run by the Management) or schools (if there are more than one school (excluding night school) conducted by it) who fulfils 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 any 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 13 13 13 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)(a) If a suitable teacher possessing qualifications laid down in the foregoing provisions of this rule is not available to fill in the post of a Head of a school, the Management shall, with the prior permission of the Education in case of primary schools, or of the Deputy Director in the case of other schools, advertise the post and select and appoint a person possessing the requisite qualifications and experience." (b) .... .... .... (6) The Education Officer or the Deputy Director shall direct the management to cancel the appointment made without following the procedure laid down in this rule". Explanation: For the purpose of this rule 14 14 14 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." 12. From the bare perusal of the aforesaid provisions it is clear that the Management must follow and/or comply with the following procedure and/or the requirements while appointing a person to be the Head of a school: (i) He/she should be a graduate possessing Bachelor’s degree in teaching or education of a statutory University; (ii) He should possess such a degree for not less than five years’ total full-time teaching experience after graduation out of which at least two years’ experience should be after acquiring Bachelor’s degree in teaching or education; (iii) If there is no person with the teaching experience mentioned above in clause (b) of sub-rule (1) available on the staff of the school or if the qualified persons, though available and eligible, relinquish their claims for the post of Head and if a Management desires to appoint a person, from the teaching staff of the school who does not possess the requisite teaching experience mentioned in the said clause, it should apply to the Deputy Director 15 15 15 for relaxing the requirement; (iv) The Deputy Director has the power to relax such requirement only after recording reasons in writing; (v) No appointment of a person who does not fulfil the aforestated requirement shall be appointed without obtaining the previous approval of the Deputy Director; (vi) The Management is empowered to fill up the post of Head by appointing the seniormost member of the teaching staff in accordance with the guidelines laid down in Schedule "F" from amongst those employed in a school; (vii) The Management should communicate any 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 15 days from the date of receipt of the communication; (viii) The claim of such senior-most qualified teacher can 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; (ix) The statement, relinquishing claim to the post, should be recorded in handwriting of such teacher before the Education Officer within a period of 15 days from the date of communication of the occurrence of vacancy; (x) The statement once duly made by such teacher before the Education 16 16 16 Officer shall not be allowed to be withdrawn; (xi) In the event of the teacher failing to submit his willingness for appointment to the post or to give the statement to the Education Officer within a period of 15 days, it shall be assumed that he has relinquished his claim on the said post; (xii) If a suitable teacher possessing qualification laid down is not available to fill up the said post, the Management shall with the prior permission of the Education Officer advertise the post and select and appoint a person possessing the requisite qualifications and experience. Sub-rule (6) of Rule 3 makes it explicity clear that (xiii) If an appointment of Head of the school is made by the Management without following the procedure laid down in this rule, the Education Officer should direct the Management to cancel such appointment. 13. It may be noticed that sub-rule (6) of rule 3 empowers the Education Officer or the Deputy Director to issue directions to the Management to cancel the appointment of Head made without following the procedure in rule 3. In the light of the provisions of sub-rule (6), if rule 3 is scrutinised and construed, it clearly suggests that the procedure laid down in this rule is mandatory in character and not directory. In rule 3 all 17 17 17 throughout the Legislature has used word "shall". If the word "shall", employed in the provisions of statute, is capable of being construed as referring to a compellable duty, particularly when it refers to a power conferred on the authority, such as the Management in the instant appeal, it will have to be construed to mean imperative or mandatory and not directory. The word "shall" as observed by the Supreme Court in M/s.Sainik Motors, Jodhpur and M/s.Sainik Motors, Jodhpur and M/s.Sainik Motors, Jodhpur and Others Vs. State of Rajasthan AIR 1961 SC 1480 Others Vs. State of Rajasthan AIR 1961 SC 1480 Others Vs. State of Rajasthan AIR 1961 SC 1480 "is ordinarily mandatory but it is sometime not so interpreted if the context or the intention otherwise demands. It is open for the court to ascertain the real intention of the Legislature by carefully attending to the whole scope of the statute." The language of rule 3 is precise and plain. It proclaims the legislative intent in unequivocal terms and hence the same must be given effect to regardless of the consequences that may follow. Sub-rule (6) is a clear indication of the Legislature intent which empowers the Education Officer to cancel an appointment made without following the procedure contemplated in rule 3(1) to (5). As a matter of fact sub-rule (6) is a key to unlock