1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Writ Petition No.4480 of 1993 Smt.Malati Appu Pachore Petitioner Vs. The State of Maharashtra & ors. Respondents Mr.Umesh Mankapure for petitioner. Mr.A.A.Kumbhakoni with Mr.A.M.Kulkarni for resp. no.2. Mr.G.S.Bhat for resp.no.3. Mr.S.K.Chinchalikar, AGP for resp.nos.1 & 4. CORAM: B.H.MARLAPALLE, J. January 18, 2008 ORAL JUDGMENT: 1. The petitioner - teacher has brought in question the judgment and order dated 6/8/1993 rendered by the School Tribunal, Pune Region at Pune thereby dismissing Appeal No.173 of 1992 which she had filed seeking directions to promote her to the post of Head Mistress of the Girls’ High School i.e. Kanya Prashala, Kavathe Mahankal run by the present 2 Respondent no.2 - Ambika Shikshan Mandal, Kavathe Mahankal in place of the present respondent no.3. 2. Admittedly the petitioner possessed the qualifications of B.A., B.Ed. and for the first time in response to her application dated 29th May 1986 she was appointed as Assistant Teacher by the respondent no.2 with effect from 16/6/1986 as an Assistant Teacher in the Girls’ High School in the pay-scale of Rs.365-15-500-20-660-Extn 20-760 and the said appointment was on temporary basis upto 15/5/1987. In the next academic year she was issued another appointment order from 15/6/1987 till 14/5/1988 in the same pay-scale. However, in the academic year 1988-89 no temporary or fixed tenure was mentioned and she was informed that she was appointed as Assistant Teacher in Kanya Prashala in the same pay-scale and she continued. On 1/10/1988 the Girls’ High School became a fully aided private school and, therefore, it was necessary for the respondent no.2 to appoint Head Mistress for the Girls’ High School in terms of Rule 3(4) of the MEPS Rules, 1981. The respondent no.2, therefore, released an advertisement published in the newspapers on 3/5/1989 inviting the applications for the post of 3 Head Mistress for the Girls’ High School along with other posts. The petitioner applied in response to the said advertisement and also stated that she fulfilled the requirement of experience of five years of teaching the the Secondary School. There was no response from the respondent no.2 and, therefore, she submitted another application on 31/8/1989 with reference to her earlier application dated 18/7/1989. The respondent no.2 by its letter dated 5/9/1989 informed the petitioner that the present respondent no.3 was holding the post of Head Master from 12/6/1985 and he was confirmed in the same and, therefore, no other teacher could be considered for appointment to the post of Head Mistress. The petitioner, therefore, approached the Deputy Director of Education by her representation dated 13/9/1989 and she did not hear anything further. 3. In the year 1992 the respondent no.2 submitted a proposal for seeking approval to the appointment of Respondent no.3 in the post of Head Master to the Education Officer (Secondary) and it was informed that the said appointment could not be approved. Consequently by the order dated 28/3/1992 the respondent no.2 reduced the rank of the respondent 4 no.3 from Head Master to Assistant Teacher and hence the respondent no.3 filed Appeal No. 27 of 1992 under Section 9 of the MEPS Act, 1977 ("the Act" for short). The petitioner was not impleaded as one of the respondents in the said appeal but the respondent no.2 was impleaded and it is not known whether any reply was filed opposing the said appeal. Surprisingly the appeal came to be allowed within less than one month i.e. on 27/4/1992 by the School Tribunal. The petitioner approached the School Tribunal in October 1992 and filed Appeal No.173 of 1992 and prayed that she be appointed to the post of Head Mistress and thus challenged the continuation of the respondent no.3 as the Head Master of the Girls’ High School and she failed by the impugned judgment. 4. The School Tribunal in the impugned judgment has held that though the petitioner was seeking appointment to the post of Head Mistress in the Girls’ High School and as per the Rules only a lady teacher can be appointed to the said post, it could not be disputed that the present respondent no.3 was directly appointed as the Head Master of the school in the year 1985 and the same was concealed by the appellant who was appointed in the year 1986 and at 5 that time the respondent no.3 was also working as Head Master of the un-aided school. The Tribunal alleged that all the facts were concealed by the appellant i.e. the present petitioner. The Tribunal further noted that the respondent no.3 is senior to the petitioner and referred to the judgment in Appeal No.27 of 1992 filed by the respondent no.3, though the petitioner was not a party in the said appeal and the appeal was allowed, and she could not challenge the said appointment. This reasoning of the School Tribunal is patently erroneous and surprisingly the School Tribunal did not deem it appropriate to refer to the MEPS Rules and more particularly Rule 3 therein. Even in the earlier judgment allowing Appeal No.27 of 1992 the reasoning given by the Tribunal was more shocking. It stated that the Girls’ High School was located in a remote backward area and it would be more appropriate to have a male teacher heading the school for its progress. It also referred to the Government Resolution / Circular dated 18/12/1990 purportedly directing the private schools to confirm the existing teachers on its conversion from unaided to aided schools. As per the Tribunal this circular of the State Government implied that the respondent no.3 was required to be 6 confirmed in the post of Head Master. 5. First of all no such circular has been issued by the State Government and the circular relied upon by the respondent no.3 and issued by the Education Officer, Zilla Parishad, Satara, on the contrary, calls upon all the schools to comply with the requirements of Rule 3 of MEPS Rules for the appointment of Head Master. Subsequent circular dated 21/6/1993 issued by the Director of Education is regarding appointment of Assistant Head Master and it says that in a Girls’ High School the said post could be available either to a male or a female teacher as per seniority. 6. Appeal No.173 of 1992 filed by the petitioner was opposed by the respondent no.2 as well as respondent no.3 by filing separate Written Statements. The respondent no.2 claimed that on 17/5/1988 it had released an advertisement inviting applications for the post of Head Master and if the petitioner had already completed five years of service on that date, nothing stopped her from applying to the said post and on the other hand on 23/5/1988 she applied for the post of Assistant 7 Teacher. The respondent no.2, therefore, claimed that this act of the petitioner clearly indicated that she was not qualified to be appointed for the post of Head Mistress as on 17/5/1988. The written statement referred to the application of the petitioner in response to the subsequent advertisement published on 3/5/1989 and stated that she was informed that she could not be appointed. As per the respondent no.2, the appointment did not challenge this communication by filing an appeal and instead she filed Appeal No.173 of 1992 on 12/10/1992 and, therefore, it was obviously time barred. Regarding her eligibility for appointment to the post of Head Mistress in the academic year 1992-93 the respondent no.2 did not raise any objection in the Written Statement. In his Written Statement the respondent no.3 has reiterated the same grounds as he had done in his Appeal No.27 of 1992. 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 8 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 9 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. 8. 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 10 costs. 9. The learned counsel for the respondent no.3 submitted an oral application for stay to this order. The application is rejected. (B.H.MARL