1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY jmi ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 683 OF 2002. Mrs. Pushpa Surendra Dhaktode ..Petitioner. v/s. The Versova Education Trust and others ..Respondents. ALONGWITH WRIT PETITION NO. 1948 OF 2003 (APPELLATE SIDE) Vitthal Jankar. ..Petitioner. v/s. Versova Education Trust & Ors. ..Respondents. Mr. R. V. Govilkar for the Petitioner in WP 683 of 2002 Mr. R.Shekhawat i/by C.M. Acharya for the petitioner in WP 1948/03 Mr. S.K.J. Panicker a/w Ms. B. S. Kawle for Respondents No.7 in WP 683/02 and Respondent No.4 in WP 1948/03 Mr. N. Pandit, AGP for State WP 683/02. . .... CORAM : S.J. KATHAWALLA, J. Reserved on : 23 rd April, 2010 Pronounced on : 7 th June, 2010 J U D G M E N T By an order dated 12th June, 2003, Writ Petition No. 1948 of 2003 was directed to be tagged alongwith Writ Petition No. 683 of 2002 for hearing. In view thereof, both the writ petitions are 2 taken up for final hearing. Writ Petition No. 683 of 2002 is filed by the Petitioner Ms. Pushpa Surendra Dhaktode. By the said writ petition, Ms. Dhaktode has impugned the judgment and order dated 13 th December 2001 passed by the School Tribunal, Mumbai. The Petitioner has also sought a mandatory order against the Respondent nos. 1 to 4 to produce the order of appointment of Ms. Pushpa John (Respondent no.4) as Head Mistress of the Respondent no. 2 – school and junior college, and after going through the same, quash and set aside the same and direct Respondent nos. 1 to 4 to appoint the Petitioner as Head Mistress in the Respondent no.2 – school and junior college. The learned Advocate appearing for Ms. Dhaktode, the Petitioner in Writ Petition No. 683 of 2002 has at the outset submitted that all the reliefs sought by the Petitioner in the writ petition have become infructuous except the relief sought against Ms. Pushpa John, Respondent no.4 to the petition. It is further submitted that since Mr. Vitthal Jankar, the Petitioner in Writ Petition No. 1948 of 2003, has impugned the order of the Presiding Officer, School Tribunal, Mumbai, dated 15th February, 2003 allowing the Appeal No. 37 of 2002 filed by Ms. Pushpa John, the hearing of the said Writ Petition No. 1948 of 2003 be taken up first. It is further submitted that as far as the issue of seniority is concerned, the same may be decided by the Education Inspector as recorded in paragraph 65 of the order dated 15 th 3 February 2003 passed by the Presiding Officer, School Tribunal, Mumbai. 2. The Petitioner in Writ Petition No. 1948 of 2003, Mr. Vitthal Jankar, is a teacher in the Versova Welfare Association High School and Junior College (Respondent No.2) and claims to be senior to Ms. Pushpa John (Respondent no. 4). Respondent no. 2 is run and managed by the Respondent no. 1- Versova Education Trust registered under the Bombay Public Trusts Act, 1950. Respondent No. 3 is the Education Inspector, Brihan Mumbai, West Zone and is the authority incharge of all the private schools in Greater Mumbai. Respondent no. 4 – Ms. Pushpa John was appointed as Head Mistress of Respondent no. 2 from 1 st December 2001 and was reverted back to the post of Assistant Teacher on and from 15 th March 2002. However, the order reverting her status was stayed by the Tribunal by its order dated 15 th March 2002. Respondent no. 5 – Ms. Pushpa Dhaktode is admittedly senior to Ms. Pushpa John, but works as a Teacher in the Respondent no. 2 – school and junior college. 3. Mr. Vitthal Jankar, the Petitioner in Writ Petition No. 1948 of 2003 has inter-alia prayed for quashing and setting aside of the judgment and order dated 15 th February 2003 passed by the 4 Presiding Officer, School Education Tribunal, Mumbai, in Appeal No. 37 of 2002. By the said judgment and order, the Presiding Officer, School Tribunal, Mumbai, has allowed Appeal No. 37 of 2002 filed by Ms. Pushpa John, Respondent no. 4, on the ground that at the time of her appointment, the School enjoyed minority status and her appointment as Head Mistress ahead of other senior teachers was justified. The subsequent withdrawal / cancellation of the minority status would have prospective and not retrospective effect. The learned Advocate appearing for the Petitioner Mr. Vitthal Jankar has made a similar submission to that made by the Petitioner Ms. Pushpa Dhaktode in Writ Petition No. 683 of 2002, viz. the issue of seniority is pending before the Respondent no. 3 and the same may be decided by the Respondent no.3. The learned Advocate appearing for the Petitioner Mr. Vitthal Jankar has also submitted that he has no objection if Writ Petition No. 1948 of 2003 is taken up first, for final hearing. Accordingly, this Court has first proceeded with the hearing of Writ Petition No. 1948 of 2003. 4. According to the Petitioner Mr. Vitthal Jankar in Writ Petition No. 1948 of 2003, some of the facts and circumstances giving rise to the present petition are as set out hereunder. 5. Sometime in the year 1962 or thereabout, several 5 prominent residents of Versova, Andheri (West), Mumbai, came together and formed an Organization called “Versova Welfare Association”, duly registered under the Societies Registration Act, 1860. One of the objects of the said Association was to foster friendship and brotherhood among all sections of the people and encourage cultural, educational and social activities among the people. As part of its object, the said Association decided to start a school in the said locality. Accordingly, permission was sought and granted by the Director of Education vide his letter No.67(C)-C-1, dated 11 th April 1962. Accordingly, on 11 th June 1962, the said Association started standard V in the said School. 6. The members of the said association were of the opinion that the administration of the said school should be in the hands of an independent body. Therefore, on 3 rd February 1963, the Versova Education Trust was formed and registered as a public Trust under the provisions of Bombay Public Trusts Act, 1950 vide registration No.E-2503. The object clause of the said Trust as set out in the Trust Deed reads thus :- “(3) OBJECTS : The Trust will be public trust for the general public irrespective of any religion, caste, creed or colour and the object of the Trust shall be as hereinafter set out for educational 6 motivation and the object of the general public utility. (a) To conduct the said Versova Welfare Associations High School. (b) To conduct other educational institutions. (c) To give relief to deserving persons in Education. (d) To award scholarships or loan Scholarships in the name of the Trust or in any other manner as would be decided by the trustees. (e) To establish of help any school or research. (f) To award prizes for essays. (g) To help in publishing useful literatures in any language. (h) To award scholarships or donations in High Schools, Primary Schools or Colleges or Research centres and other allied institutions.” 7. It is provided in clause 4 of the Trust Deed that the number of trustees shall be a minimum of 5 and a maximum of 9, one of whom will be a nominee of the Versova Welfare Association. The first nominee of the Versova Welfare Association was Shri Choknath Gopalan. 8. The Trust comprised of trustees belonging to different 7 caste, creed, language and religion. The Trust was therefore, a multi-religious and multi-linguistic body and was neither established as minority institution nor administered as such and thus, the Trust does not satisfy the requirements as contemplated under Article 30(1) of the Constitution of India. On 21 st July 1997, the Trust had the following trustees on its Board :- Name Mother Tongue Religion 1. Dr. R.P. Kapoor Punjabi Hindu 2. A.R. Britto Konkani Christian 3. B.C. Kothari Gujarati Hindu 4. Ajit C. Shah Gujarati Hindu 5. K.H. Mankad Gujarati Hindu 6. K. C. Jain Punjabi Hindu 7. K.P. Mittal Hindi Hindu 8. Dr. Arun Kumar Punjabi Hindu 9. Pradeep Garg Hindi Hindu 10. D.M. Dhandwal Punjabi Hindu 9. Some of the trustees on the Board to extract more benefits to the Trust and themselves, decided to claim minority status for the said Trust. Therefore, a resolution dated 10 th June 1997 was passed claiming minority status for Respondent no.2- school and junior college run by the Respondent no.1- Trust, which is reproduced hereunder :- “Resolved that as per M.E.P.S. (conditions of service) regulation Act, 1977, Revised 1978 under Rule No.3 (2) application be forwarded to Dy. Director of Education, 8 Mumbai and other concerned authorities for granting minority status to the Versova Welfare Association High School and Jr. College, Mumbai as all the Trustees belong to linguistic minority community in the State of Maharashtra and further unanimously decided that the names ofSmt. S. Visalakshi, Headmistress 2) Smt. N. Prema, Asstt. Teacher 3) Smt. C. Rege, Asst. Teacher and 4) Shri J.L. Alesa, Head Clerk to be notified under the Rule No.3(2) of the above purpose.” Pursuant to the above resolution passed, certain names were notified to the State Government under Rule 3(2) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (MEPS Act). 10. The said trustees prepared an incorrect list showing the names of 8 trustees and submitted the same to the Deputy Director of Education on 21 st July 1997 alongwith a covering letter. Interestingly, the said list included the name of Mr. S.H. Daya, who had resigned as a trustee on 30 th September 1996 and whose resignation was accepted by the Board vide resolution dated 10 th November 1996. In place of Mr. S.H. Daya, Mr. Pradeep Garg was taken on Board of trustees vide change report dated 29 th 9 December 1996. Dr. Arun Kumar was also taken on Board as a trustee vide change report dated 18 th November 1996. However, the names of Mr. Pradeep Garg and Dr. Arun Kumar were deliberately not shown as trustees in order to mislead the Government that the Trust had 50% of the trustees who are Gujaratis, though in reality, the Trust comprised of people belonging to different castes/religions and speaking different languages. 11. On the basis of the misrepresentation by some of the trustees of the Respondent no.1-Trust, the Deputy Director of Education by his order dated 26 th August 1997 granted recognition to the Versova Education Trust as a minority Trust. Aggrieved by the minority status granted by the Deputy Director of Education, the Greater Bombay Secondary Teachers Association and Mr. Devendra M. Dhandwal, the trustee of the said Trust by their representations dated 17 th September 1997 and 25 th March 1998 informed the Deputy Director of Education that the said Trust was multi-religious and multi-linguistic and not belonging to any particular caste. The minority status granted to the Trust was therefore, incorrect and requested for cancellation of the same. Pursuant to the explanation called for by the Deputy Director of Education from the Respondent no.1- Trust, Mr. K.P. Mittal, Managing Trustee of the said Trust informed the Deputy Director of Education that the minority status 10 was granted to the said Trust by the department after verifying the records. 12. Since no action was taken by the Deputy Director of Education, several complaints/representations were made by the general members of the Versova Education Trust pointing out that the said Trust was not confined to only Gujarathi speaking members, but is a multi-religious body and therefore, prayed for cancellation of the minority status granted to the Respondent no.1-Trust. The Deputy Director of Education, therefore, issued notices to the said Trust and also to the complainants for hearing in his Office on 23 rd July 1999, 25 th August 1999, 31 st October 2000 and 16 th November 2000. Thereafter, the Deputy Director of Education issued an order dated 18 th May 2001 revoking its earlier order dated 26 th August 1997 granting minority status to the Respondent no.1 – Trust. On 20 th June 2001, the Office of the Deputy Director of Education intimated the revocation of the minority status to the Managing Trustee of the Respondent no. 1 – Trust. Pursuant to the cancellation of the minority status granted to the Trust, the Education Inspector, West Zone, Greater Mumbai, vide his letter dated 25 th June 2001 cancelled the signatory powers granted to the supervisor – Mr. R.A. Pathak and Mrs. E. Nelson and granted signatory powers to the Assistant Head-Mistress Mrs. Dhaktode (Petitioner in Writ Petition 11 No. 683 of 2002). Further directions were also issued to submit a proposal to the Education Inspector, for appointment of a senior teacher for the post of Head Master/ Head Mistress. Aggrieved by the said orders dated 20 th June 2001 and 25 th June 2001, the said Trust challenged the said orders, by filing Writ Petition No. 1947 of 2001, inter alia on the ground that the said order passed by the Deputy Director of Education was without issuing any show cause notice or giving any hearing to the Trust. The writ petition was allowed by an order of this Court dated 27 th August 2001, on the ground that there was infringement of the principles of natural justice. The concerned respondents were directed to issue show cause notice to the Petitioner therein (Respondent No.1 herein) in this regard and give sufficient time and opportunity to the Trust to explain their stand, before passing any orders regarding the issue involved. 13. Though Respondent no. 4 Ms. Pushpa John was not the senior-most qualified teacher of the Respondent no.2-school and junior college, she had on 13 th November 2001 applied to the Respondent no.1 – Trust for the post of Head Mistress of the Respondent no.2 – school and junior college. Thereafter, on 27 th November 2001, the seniority list was revised by the Respondent no. 1- Trust. In the seniority list, Mr. Jankar (Petitioner herein) has been 12 shown at serial no. 4 in ‘C’ category. Ms. Pushpa John (Respondent no. 4 herein) was shown at serial no. 6 in ‘C’ category. Despite Ms. Pushpa John being admittedly lower in the seniority list and despite the fact that the issue pertaining to the minority status of Respondent no. 1-Trust was to be re-considered by the Government as per the directions of this Court dated 27 th August 2001, the Respondent no.1 – Trust on 27 th November 2001, passed the following resolution :- “Resolved that Miss Pushpa John, Asstt. Teacher in the Versova Welfare Association High School and Jr. College, who has applied for the post of Headmistress in the school be and is hereby promoted to the post of Headmistress after the retirement of Mrs. E. Nelson on 30 th November 2001 due to superannuation. Further resolved that her proposal be forwarded to the education department for approval as this promotion is by virtue of our minority status. (emphasis supplied)” The Respondent no.1- Trust by its letter dated 29 th November 2001 informed Respondent no. 4 Ms. Pushpa John that she has been appointed as the Head Mistress of Respondent no.2 – school and junior college with effect from 1 st December 2001. In the said letter, 13 it is categorically stated by the Respondent no.1 – Trust that “This appointment is by virtue of our being a minority school/ Trust.” Respondent No.1-Trust by its letter dated 1 st December 2001 addressed to the Education Inspector (Respondent No.3) forwarded the proposal of Ms. Pushpa John for the post of Head Mistress with effect from 1 st December 2001. 14. Pursuant to the order passed by this Court dated 27 th August 2001, on 11 th January 2002, show cause notices were issued to the Respondent no.1 -Trust and also to the complainants for a hearing on 16 th January 2002 at 3.00 p.m. before the Secretary, Education Department, Government of Maharashtra, Mantralaya, Mumbai, on the issue of the minority status of the Respondent no.1 – Trust. 15. The Education Inspector by his letter dated 12 th February 2002 addressed to the Respondent no.1 informed the Respondent no.1 that since the decision to accord minority status to the Respondent no.1-Trust is pending, the signatory powers of the post of Head Mistress cannot be given to Ms. Pushpa John by ignoring the service seniority of the teacher employees of Respondent no.1 – Trust. 16. Respondent no.1–Trust by its letter dated 9 thMarch 2002 14 addressed to Ms. Pushpa John informed Ms. John that she has been reverted from the post of Head Mistress of the Respondent no. 2 to the post of Assistant Teacher since the Education Inspector has refused to give approval to her promotion and to give signatory powers to her. 17. On 13 th March 2002, Ms. Pushpa John filed an appeal under section 9 of MEPS Act, before the Presiding Officer, School Tribunal, Mumbai being Appeal No. 37 of 2002 challenging the order of reversion dated 9 th March 2002 of Respondent no.1 - Trust. On 15 th March 2002, the Presiding Officer, School Tribunal, Mumbai, granted stay to the reversion order on the ground that non-approval of the appointment by the Education Department cannot be a legal ground for reducing Ms. Pushpa John in rank, since the Respondent was a minority institute. According to the Petitioner, the order dated 15 th March 2002 came to be passed in favour of Ms. John as none had remained present from the Education Department and the Respondent no. 1 – Trust had supported the Respondent no. 4. 18. On 22 nd March 2002, the Petitioner herein filed Appeal No. 39 of 2002 before the Presiding Officer, School Tribunal, Mumbai, challenging the promotion of Ms. Pushpa John and prayed for his promotion to the post of Supervisor on and from 15 26 th September 1998 and also for his promotion to the post of Head Master with effect from 1 st December 2001. In the said appeal, the Petitioner also sought vacation of the interim order dated 15 th March 2002 granted in Appeal No. 37 of 2002. 19. Pursuant to the order passed by this Court in Writ Petition No. 5341 of 2002 filed by the petitioner challenging his non- impleadment in the appeal filed by the Respondent no. 4 before the School Tribunal, Mumbai being Appeal No. 37 of 2002 and the ex- parte stay granted by the School Tribunal, Mumbai, this Court directed the impleadment of the Petitioner as party Respondent and expedited the hearing of the appeals. 20. On 21 st May 2002,the Secretary, Education Department, Government of Maharashtra, passed an order revoking the minority status of the Respondent no.1 -Trust. In the said order, it is inter-alia held by the Secretary, Education Department that basically the Versova Welfare Association and the Versova Education Trust (Respondent no.1) were multi-religious and multi-linguistic bodies and not restricted to people of any particular language, caste, creed and religion. Merely, because over a period of years a number of Gujarati speaking trustees were increased, does not change the character of the said Trust to that of a minority trust. In the said 16 order, it is also recorded that the Versova Education Trust misled the Hon’ble High Court and obtained orders in Writ Petition No. 1947 of 2001 by wrongly stating that the principles of natural justice were not followed, when in fact, the Trust was called for hearings on 19 th July 1999, 25 th July 1999, 5 th February 2000, 21 st February 2000, 23 rd October 2000 and 10 th November 2000, but the Trust did not represent its case before the Deputy Director of Education. Admittedly, the Respondent no. 1 -Trust has not challenged the order dated 21 st May 2002 revoking the minority status of the Respondent no.1 – Trust till date and therefore, the same has become final. 21. The Presiding Officer of the School Tribunal, Mumbai, after hearing the parties, by his order dated 15 th February 2003, allowed the appeal filed by Ms. Pushpa John (Respondent no.4 herein) and directed the Respondent to reinstate her back in the post of Head Mistress on the ground that the appointment of the appellant Ms. Pushpa John was on 29 th November 2001 and the minority status of the Respondent no.1-Trust was withdrawn and cancelled subsequently on 21 st May 2002. Relying on the decision of the Hon’ble Supreme Court in Baburam v/s. C.C. Jacob and Others, 1999 SC 1845, the Presiding Officer, School Tribunal held that the withdrawal/cancellation of the minority status runs with prospective and not retrospective effect. The appeal filed by the 17 Petitioner herein i.e. Appeal No. 39 of 2002 was dismissed by the Tribunal on the grounds of limitation, non-joinder of parties and for reliefs claimed on different causes of action. However, the Tribunal has also observed that the Petitioner herein cannot agitate his claim by way of the present appeal till the dispute regarding the seniority list is pending before the Education Inspector (Respondent no. 3). As regards the challenge to the appointment of Ms. Pushpa John as Head Mistress of Respondent no. 2 – school and junior college by Ms. Pushpa Daktode (Respondent no.5), the Presiding Officer of the School Tribunal has not taken cognizance of her claims/grievances on the ground that she has already filed Writ Petition No. 683 of 2000 in this Court, wherein she has inter-alia sought quashing of the order of appointment of Ms. Pushpa John to the post of Head Mistress and the matter is subjudice. 22. Being aggrieved and dis-satisfied by the judgment and order dated 15 th March 2003 passed by the Presiding Officer of School Tribunal in Appeal No. 37 of 2002, the Petitioner has filed the present writ petition. 23. The learned Advocate appearing for the Petitioner has submitted that in view of the aforestated facts, the Respondent no. 1 – Trust is not a minority trust and the Respondent no. 2 – school and 18 junior college also does not enjoy minority status. The Respondent no. 2 – school and junior college therefore, cannot avail of any benefit/concession provided under section 3(2) of the MEPS Act, 1977. The minority status obtained by the Respondent no. 1-Trust for some time by an order dated 26th August 1997 was on the basis of deceit and mis-representation on the part of some of the trustees and the said status is withdrawn/cancelled by an order dated 21.5.2002 of the Secretary, Education Department, Government of Maharashtra. Ms. Pushpa John has taken advantage of the order dated 26 th August 1997, which was wrongly obtained by some of the trustees of the Respondent no. 1 and cannot be allowed to continue as the Head Mistress of Respondent no.2 – school and junior college, by depriving the Petitioner and other teachers of Respondent no. 2 who are admittedly senior to Ms. Pushpa John, and whose appointment was purely by virtue of the purported minority status of Respondent no. 1 – Trust. It is submitted that the Tribunal has committed a grave error in holding that the withdrawal/cancellation of the minority status is prospective and not retrospective, more so, in view of the decision of the Hon’ble Supreme Court in N. Ammad v/s. Manager, Emjay High School and Others, (1998) 6 SCC 674, wherein the contention that the school which was given minority status on 2 nd August 1994 cannot claim to be a minority school before 2 nd August 1994 was rejected by 19 the Hon’ble Supreme Court, on the ground that if a school which is otherwise a minority school would continue to be so whether the Government declared it as such, or not. Declaration by the Government is at best only a recognition of an existing fact. The declaration is only an open acceptance of