1 WP2600.00 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. WRIT PETITION NO. 2600 OF 2010 1. Ganesh Seva Mandal 2. Mrs.Tarulata Sunil Sonkar ... Petitioners v/s 1. The State of Maharashtra 2. The Education Inspector, Western Division, Mumbai. 3. Mrs.More Anagha Sanjay 4. Mr.Yandhe Subash Kisan 5. Mrs.Phadte Mansi Mahesh ... Respondents Mr.N.V.Bandiwadekar for the petitioner. Ms.Anjali Helekar, A.G.P. for Resp. Nos.1 and 2. Ms.Darshana S. Mhadaye i/by Mr.R.M.Narvankar for Resp. Nos.3 to 5. CORAM: B.H.MARLAPALLE & SMT.NISHITA MHATRE, JJ. DATED: 16TH NOVEMBER, 2011 P.C.: 1. Heard Mr.Bandiwadekar, the learned counsel for the petitioners. 2. This petition filed under Articles 226 and 227 of the Constitution challenges the order passed by the Education Inspector, Greater Mumbai, Western Division, Mumbai, on 2 WP2600.00 6.3.2010. By the said order the dispute of inter se seniority of three Assistant Teachers and the petitioner No.2, who is the Headmistress, has been decided. However, the approval to the appointment of petitioner No.2 as Head Mistress has been granted from 1.10.2009 as against her claim for approval from her initial date of appointment i.e. from 3.5.2001. 3. Petitioner No.1 is an educational institution registered under the Bombay Public Trust Act as well as the Societies Registration Act. It is running the Secondary School by name Chandrabhaga Vidya Mandir at Malad (E), Mumbai. Petitioner No.1 is represented through its C.E.O. and Chairman Shri Sunil Hajarilal Sonkar, who is the husband of petitioner No.2. It appears that, initially petitioner No.1 Society was run by the father of petitioner No.2 and he continued as the Chairman till his son-in-law Shri Sunil Hajarilal Sonkar took over. 4. As per the petitioners, the school by name Chandrabhaga Vidya Mandir was started for the first time in the year 1995-96 as an unaided school but with only VIII Standard. By way of natural growth, IX and X Standards were also started and the Government had granted permission. The school received 100% grant-in-aid. The 3 WP2600.00 petitioners further claim that petitioner No.2 was appointed as an Assistant Teacher in 1995 and she holds the educational qualifications of B.Sc. B.Ed. It is also submitted that she was senior to the other three teachers, namely, (1) Mrs.More Anagha Sanjay (2) Mr.Yandhe Subash Kisan and, (3) Mrs.Phadte Mansi Mahesh, who were all appointed on 13.6.1997. Respondent No.2, the Education Inspector granted approval for creation of the post of Head Mistress on 7.4.2001 and petitioner No.1 being the senior-most qualified teacher made an application for the post of Head Mistress and by resolution dated 30.4.2001 she was appointed to the said post. The appointment order in favour of petitioner No.2 was issued on 1.5.2001 and a proposal was submitted for approval to the Education Inspector. However, by the order dated 8.7.2003, respondent No.2 granted only signing authority to petitioner No.2 and a fresh proposal was therefore submitted on 29.12.2003 seeking approval to the appointment of petitioner No.2 as the Head Mistress. The said proposal was rejected on 29.12.2003 on account of the complaint received from the senior teachers (complaint dated 30.4.2002). On 15.10.2005, an Administrator came to be appointed on the management of Chandrabhaga Vidya Mandir and the said appointment was cancelled by the Director of Education by his order dated 25.5.2007. The Administrator discontinued petitioner No.2 as the Head 4 WP2600.00 Mistress and submitted a proposal for appointment of the senior-most teacher. Petitioner No.2 filed Appeal No.72 of 2005 against the order of discontinuation as Head Mistress before the School Tribunal and obtained ad-interim stay to the oral order of termination dated 17.11.2005. Petitioner No.2 was thus continued as the Head Mistress. The Director of Education, by his order dated 8.4.2009, withdrew the recognition of the school from June, 2009 and the said order was challenged before the State Government. On 7.8.2009, the State Government stayed the order passed by the Director of Education. The impugned order has been passed by respondent No.2 in these circumstances. 5. It has been noted in the impugned order that all the record submitted by the management was perused including the seniority list which was submitted before the School Tribunal in Appeal No.72 of 2005. The dates of joining of the following Assistant Teachers as mentioned against their respective names have been confirmed by respondent No.1:- (1) More Anagha Sanjay 13.6.1994 (2) Yandhe Subhash Kisan 13.6.1995 (3) Phadte Mansi Mahesh 13.6.1995 So far as the petitioner No.2 is concerned, the impugned order states that she had passed her B.Sc. initially 5 WP2600.00 and she sought admission to B.Ed. for the first time in the academic year 1996-97. She completed her B.Ed. in May, 1997, she was appointed as Assistant Teacher on 3.5.1997 and, therefore, she is junior to the above mentioned three teachers. The three senior teachers appeared before respondent No.2 on 29.9.2009 and 15.9.2009 and submitted their written no objection for the appointment of petitioner No.2 as the Head Mistress. Hence, the appointment of petitioner No.2 as Head Mistress has been approved from 1.10.2009 and her case for granting approval from 3.5.2001 has been rejected. 6. As far as inter se seniority of the above mentioned three Assistant Teachers and petitioner No.2 is concerned, Mr.Bandiwadekar, the learned counsel for the petitioners submitted that the said teachers have, by filing an affidavit before this Court, accepted that for the first time they were appointed w.e.f. 13.6.1997 and even if it is accepted that petitioner No.2 became a qualified Assistant Teacher in May, 1997, she ought to be treated a senior to all the three Assistant Teachers. It was also submitted that notwithstanding the no objection furnished by the said three Assistant Teachers, petitioner No.2 being the senior-most Assistant Teacher with due qualifications, was entitled to be 6 WP2600.00 approved as Head Mistress from her initial date of appointment as such i.e. 3.5.2001. Shri Yandhye and Smt.Phadte Manasi were present before us yesterday and they supported the affidavit filed by them pointing out that they were appointed w.e.f. 13.6.1997 and that they are juniors to petitioner No.2. In short, they supported the petition. 7. An affidavit in reply has been filed by Shri Vilas Kamble, Deputy Education Inspector, Greater Mumbai, Western Zone, and we have perused the same. In addition, Mrs.Helekar, the learned A.G.P. has placed before us the original file which contains, inter-alia, the written complaint dated 13.4.2002 and the seniority list submitted before the School Tribunal and signed by all the concerned teachers, in Appeal No.72 of 2005. As per the said seniority list, the inter se seniority of all the Assistant Teachers in the academic year 2005-06 was as under:- Sr. No.: Name Date of appointment 1. Smt.More Anagha Sanjay 13.6.1994 2. Shri Yandhe Subhash Kisan 13.6.1995 3. Smt.Phadte Mansi Mahesh 13.6.1995 4. Smt.Desai Meena Deepak 15.6.1996 5. Smt.Tarulata Sunil Sonkar 03.5.1997 6. Shri Bhoir Pradeep Damodar 13.6.1997 7. Shri Bhatkar Vijay Bhagwan 15.6.1997 8. Shri Mahadik Mangesh Shantaram 15.6.1997 9. Shri Naik Vishnu Chandrakant 13.6.1998 10. Shri Nikam Gunaji Sukhdeo 12/11.6.2003 7 WP2600.00 8. Along with affidavit in reply filed by respondent No.2, a copy of the complaint dated 18.7.2005 submitted by the two Assistant Teachers i.e. Smt.Anagha Sanjay More. and Smt.Manasi Mahesh Phadate has been brought on record. Both the teachers unequivocally have stated in the said complaint that they are seniors to petitioner No.2 and on 16.7.2005 in the parents-teachers meeting arranged by the then Chairman of the petitioner No.1 Society (the father of petitioner No.2), about 350 to 400 parents were present and the father of petitioner No.2 insisted that he being the owner of the educational institution, his daughter – petitioner No.2 ought to be appointed as the Head Mistress and no one else. In case his daughter could not be appointed as Head Mistress he would close down the Primary Section of the school. The parents had thus forced the senior teachers to accept petitioner No.2 as the Head Mistress. This complaint was shown to Mrs.Manasi Phadate during the course of hearing when she was before us and she admitted that she was a signatory to the same and she could not deny the contents therein. She was also shown a copy of the seniority list submitted in Appeal No.72 of 2005. It was undoubtedly clear to us that the teachers were forced to support the claim of the petitioners that the petitioner No.2 is senior to them and, therefore, the affidavit filed by them supporting the seniority 8 WP2600.00 claim of petitioner No.2 has to be discarded. We are also satisfied having regard to the totality of the circumstances that the so called no objection given by the three teachers senior to petitioner No.2 by appearing before the Education Inspector on 29.9.2009 and 15.9.2009 has also to be discarded. We, therefore, do not find any error committed by respondent No.2 in passing the impugned order so far as it relates to the inter se seniority of the Assistant Teachers with Chandrabhaga Vidya Mandir. However, the appointment of petitioner No.2 as Head Mistress and approved by respondent No.2 is unsustainable. The appointment to the post of Head Mistress is based on seniority-cum-eligibility basis and unless the senior teachers give up their claim to the said post in writing to the Education Officer and the Education Officer enquires into the same and record the circumstances, a junior teacher cannot be appointed to the post of Head Master/Head Mistress. 9. In the premises, we confirm the impugned order to the extent it determines the seniority of the Assistant Teachers including petitioner No.2 and the approval granted to the appointment of petitioner No.2 as Head Mistress is hereby quashed and set aside. 9 WP2600.00 We direct petitioner No.1 Society to pass a fresh resolution for appointment to the post of Head Master/ Head Mistress based on the seniority as determined by the impugned order and by following Rule 3 of the Maharashtra Employees of Private Schools Rules, 1981. This shall be done within two weeks from today. The said proposal submitted by petitioner No.1 shall be examined by the Education Inspector and he will grant his approval within four weeks from its receipt. 10. Save and except the above directions, the writ petition stands rejected. 11. Mr.Bandiwadekar, the learned counsel for the petitioners submitted an oral application to stay the operation of this order. We hereby reject the oral application for stay. (SMT.NISHITA MHATRE, J.) (B.H.MARLAPALLE, J.) 10 WP2600.00