Writ Petition No. 507 of 1985

28th June, 1985.

Petitioner Counsel: R.M. Agrawal, R.M. Agrawal, Bhimrao N. Naik, Bhimrao N. Naik, M.D. Pathak, Bhimrao N. Naik
Respondent Counsel: D.P. Hegde, C.J. Sawani, J.C. Satpute, W.N. Yande, M.D. Gangakhedkar, P. Hegde, S.B. Naik, J.C. Satpute

Cases Cited:
AIR 1954 SC 321.
AIR 1976 SC 490.
AIR 1981 SC 1829.
AIR 1970 Punj. & Har. 372.

JUDGMENT

JUDGMENT:- DHARMADHIKARI, J.-In all these Writ Petitions, the petitioner who are teachers in private schools, have challenged the validity of Rule 3(4) of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981. The said sub-rule reads as under:

"3(4) In the case of a girls' secondary school or Junior College of Education for Women, the seniormost lady teacher fulfilling the 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."

The validity of this rule is challenged on the ground that it is violative of the petitioners fundamental rights guaranteed under Articles 14, 15 and 16 of the Constitution of India.

2. A similar question came up for the consideration before a Division Bench of this Court at Nagpur in Special Civil Application No. 1490 of 1977: Vinayak Ramchandra Sudame vs. The State of Maharashtra and others, (1985 Mh. L.J. 569) decided on 21st February 1985. In the said case the Exception to Rule 61, 2(a) of the Secretary Schools Code was challenged, which reads as under:

"Exception: In the case of a Girls school, that is a school run exclusively for girls, the seniormost lady teacher, fulfilling the conditions laid down in Rule 61, 1(a) above and having satisfactory record of service shall he appointed as Head Mistress of that school irrespective of her seniority vis-a-vis the male teachers."

The Division Bench consisting of V.A. Mohta and S.W. Puranik JJ. held that the Exception to the said Rule in the Secondary Schools Code is valid. In the said judgment it is also observed that a similar provision finds place even in Rule 3(4) of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981. Therefore, in substance, the validity of Rule 3(4) is also upheld by the Division Bench.

3. However, it is contended before us by the learned Counsel for the petitioners that the said decision of the Division Bench requires reconsideration since in that case the impugned rule was not directly challenged and the various aspects of the matter were also not considered. The learned Counsel for the petitioners contended before us that though the school is a girls' school, which means a school in which only girls are admitted, the male teachers are also employed in the school. Once recruitment to the post of teachers is kept open to persons belonging to both the sexes, there is no rational basis for discriminating them while appointing the Head of the institution. The discrimination in that behalf is made only on the ground of sex which is wholly in violation of Arts. 14, 15 and 16 of the Constitution of India. It is also contended that assuming that the rule is valid, it cannot operate retrospectively, meaning thereby that the male teachers who were already appointed as teachers in the schools prior to the coming into force of the Secondary Schools Code orthe Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981. had a vested right to be appointed as Head of the institution on the date of appointment itself and such a vested right cannot be taken away by subsequent legislation. It was also contended that there is no bar in the rules for appointing a male teacher as Assistant Head Master or Supervisor who are also the Heads of the school within the said expression as defined by section 2(9) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977. Further promotion to the post of Head of the institution could be from the category of Assistant Head Master or Supervisor, If there is no bar for appointing a male person as Assistant Head Master or Supervisor, then the bar laid down by sub-rule 3(4) is wholly illegal since it is irrational and the said discrimination is also based only on the ground of sex.

4. It is not possible for us to accept any of these contentions. As already observed, the Division Bench of this Court in Vinayak Ramchandra Sudame vs. The State of Maharashtra and Ors. has considered this aspect of the matter in detail. By now it is well-settled that what Articles 15(1) and 16(2) prohibit is that discrimination should not be made only and only on the ground of sex. These Articles of the Constitution do not prohibit the Stale from making discrimination on the ground of sex coupled with other considerations. (See Air India vs. Nergesh Meerza and others, AIR 1981 SC 1829). The Division Bench, after noticing all the cases in the field, viz., Yusuf Abdul Aziz vs. State of Bombay and another,1 State of Kerala and another vs. N.M. Thomas and others,2Air India vs. Nergesh Meerza and others,3 Shamsher Singh Hukam Singh vs. The Punjab State and others,4 and Walter Alfred Baid vs. Union of India and others.5 ultimately came to the following conclusion: '"Hearing in mind those principles and precedents let us examine whether keeping the post of head of an education institution meant exclusively for girls as a woman preserve militates against right of equality, we do not think so. This is a pure policy decision having nexus to the object sought to be achieved viz. benefit to the girl students and lady teachers as well. It does not require great imagination to visualise various situations arising in administration in which the girl students can be better at case with a headmistress. Several awkward situations can be avoided it the head is a lady with whom better and easier rapport and communication can bo established. Considered even from the point of view of special benefits to the lady teachers as a class, the provisions can bo sustained as reasonable."

Once it is held that the discrimination, incorporated in sub-rule (4) of Rule 3 is not based only on the ground of sex, but it is also based on other considerations, then in our view, the challenge to the present Rule must fail. In this context it is worth while to note trial we are dealing with a school which is a girls' school, meaning thereby a school in which only girls are admitted. Rule 3 of the Rules then lays down the qualifications andthe procedure for appointment of the Head ofthe School. Rule 4 lays down the responsibilities of a Head. Rule 5 deals with the qualifications and appointment ofAssistant Head and Supervisor. The Head of the institution is made an administrative and academic Head of the School subject to the superintendence and control of the management. The management is obliged to appoint an Assistant Head to assist the Head in his organizational, administrative and supervisory duties, if the secondary school has more than twenty classes. However, the Exception incorporated in Rule 3(4) is restricted to the post ofHead of the School only. Further the duties and responsibilities of these posts are also not same.

5. Though sec. 2(9) of the Act which defines the expression "Head of a School" includes in its import the Assistant Head Master or the Assistant Head Mistress or Superintendent, if the various provisions of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 are read together and harmoniously, it is quite clear that sub-rule (4) of Rule 3 only applies to the appointment of Head Mistress and not to the posts of Assistant Head Master or Supervisor. This is quite clear from the provisions of Rules 5, 7, 8, 10 and 12 of the Rules. The expression "Head of the School" is not defined in the Rules. The definition given in the Act will have to be read in its context. In the rules distinct and separate provisions are made in this behalf. Rule 3 deals with the qualifications and appointment of Head, whereas Rule 5 lays down the qualifications and procedure for appointment of Assistant Head and Supervisor Supervisor is not included in the definition of 'Head of a school' in section 2(9) of the Act. It is not obligatory that Assistant Head or Supervisor should be appointed in all the schools, irrespective of number of classes. They are expected to assist the Head in organizational, administrative and supervisory duties and are not Head of the School within the contemplation of Rule 3(4). The expression 'mutatis mutandis' as used in Rule 5(2) will not cover the exception incorporated in Rule 3(4) of the Rules. Even otherwise, 'mutatis mutandis' means with due alteration of details or appropriate change. Further the provisions of Rule 3(4) are by way of exception and, therefore, will have to be strictly construed. If the said provision is read in its context and harmoniously together with the other rules, then it is quite clear that the framers of the rules wanted to restrict to the post of Head Mistress only. This position is further clear from the Exception to Rule 61.2 of the Secondary Schools Code. The said Exception was restricted to the Head Mistress only. To carry out the same purpose, the present Rule 3(4) has been enacted. Therefore, it is not disputed even by the learned Additional Government Pleader Shri Hegde that sub-rule (4) of Rule 3 only applies to the appointment to the post of Head Mistress and will not take in its import the other posts, such as Assistant Head Master or Supervisor. Only in the case of appointment to the post of Head Mistress an exception has been made and that too for good reasons. Therefore, it is not possible for us to accept the argument of the Counsel for the petitioners that the said provision is any way arbitrary or unreasonable.

6. It is a historical fact that women have been supressed and subjected to indignities for generations. Both in family and society her status has been secondary. She has always been treated, at best, as a secondary human being. She is most depressed of all the depressed classes. Though in law and etheory women enjoy equal status with men, their status in actual life has essentially remained secondary. Nature has also been unfair to the fair sex and partial to the unfair sex. Even in this advanced scientific age the social status of a woman has not materially changed. 'Therefore, even today women seek protection from men. This is the reason as to why even today independent schools for girls have their own place in the educational system. There are certain problems of that age group which cannot be discussed with a male Head Master without embarrassment. To some extent shyness is natural at that age. Some of the problems which require discussion with the Head of the institution involve physical, intellectual, moral and emotional questions. Though adults might discuss these problems with men, children are not adults. Sometimes one sex gains its experience in a different way and interprets it differently from the other. Therefore, it can be guided in a better way by someone who has traversed the same path. 'This seems to be the reason for incorporating an exception in sub-rule (4) of rule 3 of the Rules.

7. Treating unequals equally is not equality. Hence an exception to the equality clause for the benefit of women is enacted in Article 15(3). When unequals are to attain equality, certain special measures become necessary. The intrinsic or initial handicaps, biological or otherwise and the historical inequality implicit in our conditioned culture demand certain special provisions for women to neutralise the ancient inequality. Such special provisions are also necessary to rescue them from initial disabilities and advance their interest. Article 39 by clauses (d) and (e) lays down certain principles of policy to be followed by the State. Article 42 enjoins on the State as duty to provide for humane conditions of work and maternity relief. Such special provisions for women are part and parcel of the equality clause so as to equalise the unequal starting points. The goal of Articles 14 and 16 is limited to equality among comparables; a necessary implication of which is possibility of reasonable classification, having nexus with the object sought to be achieved. As already observed, sex inequality, present socio economic conditions and initial handicaps seem to be the reasons for running independent schools for girls. In these schools only girls are admitted. Therefore, to carry out the same object the legislature thought it fit that the Head of the girls' school should be a woman teacher. This is after all a policy decision with which one may agree or may not agree. But there is a rationale behind this provision. This has been made to achieve the object of proper and efficient administration of the girls' school. Hence it is not possible for us to accept the contention of the petitioners that the discrimination is any way irrational or is based solely and only on the ground of sex. The exception or restriction is not based solely on the ground of sex, but is enacted in the interest of better and efficient administration of the girls' school.

8. It was not disputed by the learned Counsel for the petitioners that if a total ban is imposed on the recruitment of male teachers in the girls' schools, it was wholly permissible under Articles 14, 15 and 16 of the Constitution of India. It was also not disputed that the bar on admission of male students in the girls' schools is also perfectly valid and reasonable. However, it was contended that once employment in the girls' schools is thrown open to male teachers, further discrimination in the matter of appointment to the post of Head of the institution is unreasonable. As already observed, as Head of the institution, the Head Mistress has to carry out certain administrative and academic responsibilities with which an ordinary teacher is not burdened. Therefore, the Head should be such a person who will be able to understand the special problems of the girl students. These problems could very well be understood by a person who. has traversed the same path and is conversant with them. It appears that this rule is based on the past experience in the field. To say the least, having regard to the special features of girls' school or the problems of the girl students and the present social conditions, we are unable to find any unreasonableness or arbitrariness in the said provision. Therefore, we entirely agree with the view taken by the earlier Division Bench in Vinayak Sudame's case.

9. A contention was also raised before us that the posts of Assistant Head Master and the Supervisor is a class by itself, which is immediately lower in grade to the post of Head Mistress and only from this category appointments could be made to the post of the Head of the institution. It is not possible for us to accept this contention. Rule 3 read as a whole lays down the qualifications for the appointment of a Head and it is nowhere laid down therein that appointment to the post of Head Mistress is restricted to the class of Assistant Head Master or Supervisor. On the other hand, sub-rule (4) with which we are concerned in these Writ Petitions in the clearest terms lays down that the senior most lady teachers fulfilling the conditions laid down in clause (b) of sub-rule (I) and having satisfactory record of service shall be appointed as Head of the school. Therefore, it is not possible for us to accept this contention.

10. There is also no substance in the contention that the said provision is being given retrospective effect or has adversely effected any vested right. Nobody who was duly appointed as Head Master or Head of the institution prior to the introduction of an exception to Rule 61 of the Schools Code or Rule 3(4) of the new rules is being upset or reverted in any of these cases. Only because a person was appointed as teacher in the girls' school he had no vested right to be appointed as Head of the institution. It is well-settled that mere chances of promotion is not a term or condition of service. Therefore, a rule which merely affects chances of promotion and applies to the appointment of the Head of the institution made after such a provision is brought into force, cannot be regarded as retrospective in operation.

11. In the result, therefore, there is no substance in these Writ Petitions. Hence Rule stands discharged in all the five Writ Petitions with no order as to costs. As a result of this, the interim orders issued by this Court also stand vacated and consequently the orders based on these interim orders of this Court appointing a male teacher as Head of the institution must also stand vacated. Therefore the order issued in Writ Petition No. 507 of 1985 reverting respondent No. 4 also stands set aside

Order accordingly.