1998(1) ALL MR 336
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

S.H. KAPADIA, J.

St. Theresa's High School & Anr. Vs. The State Of Maharashtra & Ors.

Writ Petition No. 1076 of 1994

28th April, 1997

Petitioner Counsel: Mr. O.J.MENEZES with R.S.TRIPATHI
Respondent Counsel: Mr. ABHAY PATKI, Mr. M.M.VASHI, Mr. I.S. MECWAN

(A) Maharashtra Employees of Private Schools (Conditions of Service) Rules (1981), R.5(5) - Constitution of India Art.226 - Delay condoned by School Tribunal in filing appeal - No interference called for in writ petition. (Para 9A)

(B) Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act (1977), Ss.2(9), 3(2) - "Supervisor" - "Head of School" - The word "Supervisor" is the same as the word "Superintendent". Privilege of Minority Community.

"Head of School" or "Head" means the person by whatever name called incharge of the academic and administrative duties and functions of the school conducted by the Management and recognised or deemed to be recognised under the Act, and includes a principal, vice-principal, head master, head mistress, assistant head master, assistant head mistress, or superintendent. A peon cannot be appointed as the Head of School. The choice is with the Minority Institution subject to a person holding necessary qualification. This is the privilege which the Act has conferred upon the Minority Institution under section 3(2). 1993 I CLR page 295 - relied. [Para 9B]

(C) Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act (1977), S.2(9) - Maharashtra Employees of Private Schools (Conditions of Service) Rules (1981), Rule 5 (5) - Rule of Seniority-cum-merit alone applicable - Management is required to follow a rule of seniority-cum-merit. Even in service jurisprudence it is well settled that the seniority-cum-merit is not the same as comparative method. Under Rule 5(5), therefore, the rule of comparative merit will not come into picture. It is very clearly stipulated under Rule 5(5) that only the principle of seniority-cum-merit shall apply. (Para 9C)

Cases Cited:
1993 I CLR 295 [Para 4,8]
1989 I CLR 428 [Para 4,9B]
1971(2) SCC 452 [Para 4]
1989(1) SCC (Supp) 1 [Para 4]
1993(1) SCC 572 [Para 4]
1993(3) SCC 595 [Para 4]
1991 Mah.L.J. 864 [Para 4]
1987(4) SCC 486 [Para 6]


JUDGMENT

JUDGMENT :- By this Writ Petition, Management seeks to challenge the Judgment and order passed by the School Tribunal on 1-03-1994 in Appeal No. 12 of 1993 by which the School Tribunal allowed the Appeal filed by Respondent no.2 herein by directing the Management to withdraw the order promoting Respondent no.3 herein to the post of supervisor forthwith. By the impugned Judgment, the School Tribunal further directed the Management to pay to the 2nd Respondent herein difference in allowances, if any, from the date of her supersession i.e. 26-11-1992 up to the date of her appointment to the post of Supervisor.

2. The facts giving rise to this Writ Petition, briefly, are as follows :-

3. Respondent no.2 was appointed as Assistant Teacher on 10-06-1963. Respondent no.3 was appointed as Assistant Teacher on 10-06-1963. In the circumstances, in the seniority of Assistant Teachers' post, Respondent no.2 was senior to Respondent no.3. The post of Assistant Teacher is a feeder post and the next higher post is that of a Supervisor. Above the post of Supervisor, the next higher post is that of Assistant Headmaster/Headmistress and above the post of Assistant Headmaster/Headmistress is the post of Headmaster/Principal. This hierarchy is clearly indicated in the Statement at page 23 of the Writ Petition. On 26-11-1992, the Management appointed Respondent no.3 herein to the post of Supervisor. Prior to 26-11-1992, the Principal of the School made general assessment. The report containing general assessment in respect of Respondent no.2 is annexed as Exhibit-A to the Petition whereas the report of general assessment in respect of Respondent no.3 is annexed as Exhibit-B to the Petition. This assessment was done by the Principal in March/April 1992. It is the case of the Management that there is nothing adverse against the Respondent no.2 in her working as Assistant Teacher in the School. However, it is the case of the management that on the basis of comparative merit, the management came to the conclusion bonafide that the Respondent no.3 was better suited to be appointed to the post of Supervisor particularly because Respondent no.2, though senior to Respondent no.3, did not show inclination or aptitude in extra curricular activities and her contribution to the School was only as a regular teacher. On the basis of the general assessment made by the Principal in March/April 1992, the Management decided to appoint Respondent no.3 to the post of Supervisor. In view of the above two reports, Respondent no.2 apprehended her supersession and in the circumstances she filed Writ Petition No. 2372 of 1992 in October, 1992. Respondent no.2 chose to file the above Writ petition No. 2372 of 1992 without moving the School Tribunal and in the circumstances when the said Writ Petition came for hearing on 23-11-1992, Respondent no.2 was asked to approach the Tribunal and, accordingly, the said Writ petition No.2372 of 1992 came to be withdrawn with liberty to the second Respondent to move the Tribunal. On 23-11-1992, Respondent no.2 was not aware that the management was to appoint Respondent no.3 as a Supervisor. In the circumstances, Respondent no.2 approached the Education Department. On 26-11-1992, the Management claims to have appointed Respondent no.3. However, there was not official letter on the basis of which Respondent no.2 could have challenged the appointment of Respondent no.3 to the post of Supervisor. On 11-2-1993, the Education Department wrote a letter to the Management that the Respondent no.3 has been appointed as a Supervisor from 26-11-1992 and the proposal for sanction has been forwarded by the management but Respondent no.3 is not a senior-most Assistant Teacher and, therefore, if the name of Respondent no.3 is registered with the Assistant Director of Education, the proposal of the management will be acted upon only after sanction of Assistant Director of Education is obtained. Ultimately in August 1993, Department approved the name of Respondent no.3 to the post of Supervisor. In the meantime on 1-03-1993, Respondent no.2 preferred the above Appeal No.12 of 1993 before the School Tribunal. Under the above circumstances, she also applied for condonation of delay in filing the Appeal. In her Application for condonation of delay, Respondent no.2 further pointed out that she came to know about her supersession only after Respondent no.3 started signing the Muster Roll which he did only from 11-02-1993 and, therefore, she requested the School Tribunal to condone the delay, if any, in filing the Appeal. By way of written Statement filed by the management, the management opposed the Appeal on the ground that no sufficient cause has been shown for not filing the Appeal in time. According to the management, Respondent no.3 was appointed as a Supervisor on 26-11-1992 and although Respondent no.2 was aware of the above fact, she did not choose to file her Appeal in time. According to the Management, the above Writ Petition was withdrawn by Respondent no.2 in November 1992 and, therefore, Respondent no.2 should have filed the Appeal within thirty (30) days from the date of her withdrawing the Writ Petition. According to the management, Respondent no.2 was not entitled to be appointed to the post of a Supervisor solely on the basis of her being a senior-most teacher According to the Management, it was a Minority Institution and in the circumstances it was not open to the Second Respondent to claim promotion to the post of Supervisor on the basis of seniority-cum-merit. According to the Management, since the post of Supervisor was notified under section 3(2) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (hereinafter referred to for the sake of brevity as "the said Act, 1977"), the provisions of the Said Act, 1977 were not applicable and in the circumstances, the management was free to appoint Respondent no.3 to the post of Supervisor. By the impugned Judgment, the School Tribunal rejected the contentions advanced by the Management and passed the impugned order as stated hereinabove. Being aggrieved by the impugned judgment, the present Writ Petition has been filed by the Management.

4. Mr. Menezes the learned Counsel appearing on behalf of the Management contended that "Head of a School" or "Head" has been defined under section 2(9) of the said Act, 1977 to include a Principal, Vice-principal, head master, head mistress, assistant head master, assistant head mistress or superintendent whereas under section 3(2) which deals with the application of the Act, it is clearly laid down that the Act shall not apply to the Head of a Minority School. According to Mr. Menezes, the learned counsel for the management, in view of the definition of the words "Head of a school" in section 2(9), the post of Supervisor ipso facto would come within the purview of section 2(9) of the said Act, 1977. In other words, according to Mr. Menezes, the post of Supervisor falls within the inclusive definition of the words "Head of a school" under section 2(9) and in the circumstances, the said post can be filled in by the management of a Minority Institution according to its own choice. He, however, clarified that the said choice cannot be exercised arbitrarily. Mr. Menezes contended that, in the present matter, the post of Supervisor has been notified. Mr. Menezes contended that the post of Supervisor has been duly registered under section 3(2) with the Education Department and in the circumstances the Act is not applicable and the Management is entitled to appoint any person of its choice to the post of Supervisor. Mr. Menezes contended that the rule of seniority-cum-merit, therefore, will not apply. Mr. Menezes contended that, in the present case, the decision of the Management to appoint Respondent no.3 to the post of Supervisor cannot be termed as malafide. Mr. Menezes contended that it is not even a ground of challenge. Mr. Menezes contended that once the Act is not applicable, the Management is entitled to apply a suitable criteria for the purpose of appointment to the post of Supervisor. Mr. Menezes further contended that, in the present case, the Management has applied the criteria of comparative merit. Mr. Menezes clarified that there is no adverse remark made against Respondent no.2. Mr. Menezes contended that there was no question of any adverse remark being made against Respondent no.2 as her performance as a teacher is not under objection. Mr. Menezes contended that, according to the Principal, on the basis of comparative merit, Respondent no.3 was found to be more meritorious and in the circumstances Tribunal erred in coming to the above conclusion. Mr. Menezes contended that if merit is the criteria then merely because confidential Reports are not maintained by the Management will not ipso facto mean that Respondent no.2 has a better record that Respondent no.3. Mr. Menezes contended that under Rule 3(6) read with explanation thereto read with Rule 15(5) deals with adverse remarks required to be entered into in the Confidential Reports of a teacher and when such an adverse remarks are not entered into in the confidential Reports, the rules have clarified that in such cases the record of service shall be deemed to be satisfactory. Mr. Menezes contends that, in the present case, the management has not relied upon the Confidential Reports. He has further contended that, in the present case, Rule 15 is not applicable because there is no question of adverse remarks coming into picture. Mr. Menezes contends that there are no adverse remarks against Respondent no.2 and it is only on the basis of comparative merit of the two candidates that the Management has found Respondent no.3 to be more meritorious than Respondent no.2. Mr. Menezes contends that, in the present case, criteria of seniority-cum-merit has no application as the post of Supervisor which is duly notified stands outside the purview of the Act. Mr. Menezes contends that, in the case of Non-minority Institution where the Act is applicable, rule of seniority-cum-merit is applicable. In cases of Minority Institution when the post is notified under section 3(2) of the said Act, 1977 and when the Act is not applicable then the question of applying rule of seniority-cum-merit does not arise. Mr. Menezes contended that Rule 5 of the said Rules, 1981 laid down the qualifications for the post of a Supervisor. Under Rule 5(5), it is interalia laid down that the post of Supervisor shall be filled in from amongst the permanent Staff strictly on the basis of seniority-cum-merit. Mr. Menezes contended that even if Rule 5(5) of the said Rules 1981 stood attracted even then under Rule 5(5) it is clearly laid down that the merit shall be decided in accordance with the record of service as defined by the explanation to Rule 3(6) and in the circumstances the management was entitled to rely upon the overall performance of the two Candidates and by applying the rule of comparative merit the Management was entitled to appoint Respondent no.3 in place of Respondent no.2 Mr. Menezes has relied upon the Judgment of the Division Bench of this Court in the case of Gunvantlal Kantilal Khamar Vs. State of Maharashtra & Ors. reported in 1993 I CLR, page 295. Mr. Menezes relies upon para 8 of the said Judgment in support of his contention that the post of Supervisor ipso facto, comes within the definition of the "head of a School" and reading section 2(9) with section 3(2) the Act is not applicable in respect of promotion to the post of Superintendent in the case of Minority Institution. Mr. Menezes has placed heavy reliance on the Judgment of the Division Bench in the case of Abdul Aazmi Vs. Sayyad Mohammed Azkari reported in 1989 I CLR, page 428 and on the basis of the said Judgment he contends that it is not mandatory to maintain the Confidential Reports. He contends that in the above Judgment, it has been held by the Division Bench that the services of an employee can be discontinued even if there is noncompliance of Rule 15 provided that the decision of the Management is not perverse or malafide. Mr. Menezes contends that, in the present case, the reports submitted by the Principal in March/April 1992 clearly indicate that the management has maintained the Records on the basis of which overall performance of Respondent no.3 was better than Respondent no.2 and merely because there are no adverse remarks against Respondent no.2 and merely because the Management has not maintained the Confidential Reports, one cannot draw an inference that Respondent no.2 was more meritorious/suitable than Respondent no.3. Accordingly, he contends that in view of the above two Judgments and in view of the above submissions the Tribunal erred in setting aside the order of appointment passed by the Management in favour of Respondent No.3. Mr. Menezes has cited various Judgments of the Supreme Court. He has cited 1971(2) SCC page 452; 1989(1) SCC (Supplementary) page 1; 1993(1) SCC, page 572; 1993(3) SCC, page 595; 1991 Mah.L.J., page 864. It is not necessary to multiply the Authorities. Mr. Menezes further submits that, in the present case, the Tribunal erred in condoning delay in filing the Appeal. Mr. Menezes contends that under the Statute, the Appeal is required to be filed within a stipulated period. Mr. Menezes contends that the School Tribunal has been condoning the delay in every matter. Mr. Menezes contends that, in the present matter, Respondent no.2 withdrew the Writ Petition No.2372 of 1992 filed by her on 23-11-1992. Menezes contends that she was very-well aware of the fact that she was required to move the Tribunal within thirty (30) days atleast from 23-11-1992 and yet she preferred the Appeal only on 1-03-1993. Mr. Menezes contends that the reasons given in the Memo of Appeal for condonation of delay indicate that Respondent no.2 has resorted to falsehood. Mr. Menezes further contends that, in the present matter, Respondent no.2 was creating an evidence in order to enable her, to seek condonation of delay in filing the Appeal. Mr. Menezes relied upon the seniority list prepared by the Management which is an enclosure to the letter dated 21-08-1992. Mr. Menezes contends that all the teachers have signed the seniority list including Respondent no.2. He points out that only Respondent no.2 has put a date below her signature which clearly indicates that she was creating a ground for seeking condonation of delay as otherwise her filing of the Appeal was beyond time. Mr. Menezes further contends that the letters read as a whole and contents of the Memo of Appeal seeking condonation of delay in filing the Appeal are contradictory which clearly indicate that the teacher resorted to falsehood in order to obtain condonation of delay in filing the Appeal. He further points out the Written Statement in which the above contradictions have been pointed out by the management and he contends that the Management was right in submitting before the Tribunal that the teacher had intentionally made false averments in the Memo of Appeal with an ulterior motive to secure condonation of delay in filing the Appeal. Mr. Menezes further contends that, in the present case, the announcement was made by the management on 4-01-1993 and in the said announcement it was made clear that Respondent no.3 was being appointed as a Supervisor and yet the Appeal has been filed only on 1-03-1993 and in the circumstances, the Tribunal erred in condoning the delay in filing the Appeal.

6. Mr. Mecwan the learned counsel appearing on behalf of the Respondent no.3 has adopted the contentions advanced on behalf of the Management. He has also relied upon various Judgments of the Supreme Court and he has submitted that where merit is the criteria the Management is certainly entitled to appoint an employee on the basis of comparative merit and in that regard if the management comes to the conclusion on the basis of the material on record that Respondent no.3 was more suitable for promotion/appointment than Respondent no.2 then the management was certainly entitled to promote/appoint Respondent no.3 in place of Respondent no.2. Mr. Mecwan has also submitted that, in the present case, rule of seniority-cum-merit is required to be properly interpreted and he has submitted that the merit means that if two persons are meritorious then the Management is required to ascertain on the basis of comparative merit and in the present case applying the rule of comparative merit the Respondent no.3 stood promoted/appointed. In addition to the Judgments cited by Mr. Menezes, Mr. Mecwan has relied upon the Judgment of the Supreme Court in 1987(4) SCC page 486.

7. Mr. Patki the learned Counsel appearing for the State Government contended that under section 3(9) the Minority Institution is required to notify the appointment of the Head of a School and three persons. Mr. Patki contended that under section 3(2) of the said Act, 1977 discretion is given to the management to notify the names of three persons in addition to the Head of a Minority School and once this exercise is done then the Act shall not apply. Mr. Patki contended that this process is required to be followed because if the Department finds that a person who is not qualified to be appointed to the post is being appointed by the management of a Minority Institution then certainly the Department will not approve the appointment. Mr. Patki contends that, in the present case, the post of Supervisor and the name of Respondent no.3 have been duly notified and in the circumstances the Act is not applicable and once the Act is not applicable the Management is free to appoint Respondent no.3 on the basis of merit. Mr. Patki contends that criteria of appointment is then left to the management and the Department has no role to play. Mr. Patki further contends that in the case of a Minority Institution, the Management is free to appoint any person to the notified post and it is not required to restrict itself to the categories enumerated under section 2(9) of the said Act, 1977. Mr. Patki further contends that the post of Supervisor is not the post of Superintendent. He contends that the word "Superintendent" as a category under section 2(9) of the said Act is quite different. He relies upon the Chapter dealing with Scale of Pay for non-teaching staff. Under the said Rules, 1981 (See Part VIII) which deals with Scale of Pay for non-teaching staff, he has invited my attention to the categories enumerated in Part VIII. He has invited my attention to the Pay Scale fixed in respect of the Superintendent. Similarly Mr. Patki has placed reliance on Schedule F to the said Rules 1981 which deals with guidelines for fixation of seniority in respect of non-teaching staff which also deals with the post of Superintendent. Mr. Patki, therefore, contends that the post of a Supervisor cannot be equated to the post of Superintendent. Mr. Patki, therefore, contends that the post of Supervisor does not come under section 2(9) of the said Act and in the circumstances, he disputes the contention of Mr. Menezes for the Management that the appointment of Respondent no.3 as a Supervisor ipso facto is appointment of Respondent no.3 as the Head of a school.

8. Mr. Vashi the learned counsel appearing on behalf of the Respondent no.2 has relied upon paragraph 8 of the Judgment of the Division Bench of this Court in the case of Gunvantlal Kantilal Khamar Vs. State of Maharashtra & Ors. (Supra). Mr. Vashi contends that the question raised by Mr. Menezes is no more res integra. Mr. Vashi contends that on reading section 2(9) with section 3(2) along with various other sections and the Rules, it is clear that mere nomenclature or post of a teacher as Supervisor would not make an appointee Head of a school unless such an appointee is given the charge of academic and administrative duties and functions of the school conducted by the Management and merely because the post of a Supervisor/Superintendent falls within the definition of section 2(9) ipso facto will not make the appointee Head of a school. Mr. Vashi further contends that in view of paragraph 8 of the said Judgment of the Division Bench of this Court, it is further clear that the Management is required to appoint the Head of a school or a Head by investing in the appointee the administrative and managerial powers by an appropriate Resolution and in the absence of any such empowerment, merely on the basis of the definition of a "Head" or the "Head of a school" the appointee ipso facto does not become the Head of a school. Mr. Vashi further contends by placing reliance on the said Judgment of the Division Bench of this Court in Gunvantlal Kantilal Khamar (Supra) that the Management can confer administrative powers on any of the persons enumerated in section 2(9) and the Management is not entitled, however, to go beyond the categories enumerated in section 2(9). Mr. Vashi states that a Peon cannot be appointed by Minority Institution as the Head of a school because he does not fall in categories enumerated in section 2(9) of the said Act. Mr. Vashi further points out that section 3(2) has been interpreted by the Division bench of this Court in the above judgment in the case of Gunvantlal Kantilal Khamar (Supra) by laying down that a Minority Institution is free to appoint any person as the Head of a school subject to his fulfilling the qualifications prescribed by the Act and while recruiting a person to the post of the Head of a School the rule of seniority-cum-merit may not apply but in cases where an appointee is required to be promoted from the post of Assistant Teacher to the post of Supervisor and which appointee is not invested with any administrative/managerial powers, the rule of seniority-cum-merit as laid down under Rule 5(5) would certainly apply because the appointee is already an employee of the Institution and such an appointee is not being recruited for the first time and such an appointee is already governed by the service conditions laid down under the Act. Mr. Vashi, therefore points out that the later portion of section 3(2) of the said Act has been treated as irrelevant. Mr. Vashi, therefore, relied upon the above Judgment of the Division Bench of this court in support of his contention. Mr. Vashi has also relied upon the Judgment of the Division Bench of this Court in the case of Abdul Aazmi (Supra) in support of his contention that the word management does not include in its ambit ipso facto a Head of a school in view of the definition of the word "Management" under section 2(12) and also in view of the definition of the word "Head" under section 2(9) of the said Act, 1977. Mr. Vashi has also relied upon the said Judgment in the case of Abdul Aazmi (Supra) in support of his contention that in every case a Resolution is required to be passed by the Trustees or by the Management empowering the appointee as the Head of a school and ipso facto a Supervisor or an Assistant Headmaster or even the Headmaster cannot be treated as the Head of a school only by placing reliance on section 2(9) of the Act. Mr. Vashi further points out that, in the present case, there is nothing to show that over the period of thirty (30) years any complaint was made against Respondent no.2 Mr. Vashi contends that the management had never informed the Respondent no.2 regarding her alleged drawbacks. Mr. Vashi contends that only in the year 1992 on the basis of two reports prepared by the principal, Respondent no.3 has superseded Respondent no.2. Mr. Vashi contends that even in the case of comparative merit, over a period of time, there should be some record to indicate that an employee is informed about her drawbacks and there should be some record to indicate that she has not improved despite she being told of her drawbacks. In the above circumstances, Mr. Vashi contends that only on the basis of a report it cannot be said that the Respondent no.3 is better suited to be promoted to the post of Supervisor. Even on the question of condonation of delay in filing the Appeal Mr. Vashi contends that in October 1992, Respondent no.2 had moved the High Court under Article 226 of the Constitution by filing Writ Petition No.2372 of 1992 in which the Respondent no.2 had sought a writ of mandamus against the management seeking promotion to the post of Supervisor. In the said Writ Petition, Respondent no.2 had not challenged any order of promotion in favour of Respondent no.3 because, at that time, there was no such order passed by the Management. Mr. Vashi further contends that after the withdrawal of the Writ Petition in November 1992, within three (3) days, the management has purported to promote the Respondent no.3 to the post of Supervisor on 26-11-1992, although time was given to the Respondent no.2 to move the School Tribunal of which the Management was aware. Mr. Vashi points out that Respondent no.2 could not have filed the Appeal before the School Tribunal because there was no communication of order passed by the Management promotion the Respondent no.3 to the post of Supervisor. Mr. Vashi contends that on 11-02-1993, for the first time, the Respondent no.3 signed the Muster Roll and the approval was granted only in August 1993 by the Education Department to the promotion of Respondent no.3 to the post of Supervisor. In the above circumstances, Mr. Vashi contends that there was no wilful delay on the part of Respondent no.2 in filing the Appeal before the School Tribunal on 1-03-1993 and the Tribunal was right in condoning the delay in filing the said Appeal.

9. In view of the above rival contentions, four points arise for determination.

A. CONDONATION OF DELAY IN FILING THE APPEAL

The question which arises for determination under this Head is : Whether the Tribunal was right in denying the delay in filing the Appeal by the Respondent no. 2 ? The facts enumerated hereinabove show that the Respondent no.2 moved this Court in Writ Jurisdiction in the earlier Writ Petition in October 1992 as she apprehended supersession. In that Writ Petition, there was no question of Respondent no.2 challenging the appointment of Respondent no.3 as Respondent no.2 was not appointed in October 1992. On 23-11-1992, the earlier Writ Petition stood dismissed as withdrawn as the alternative remedy was available. Under the circumstances, Respondent no.2 was given liberty to move the Tribunal/Authority. It is the case of the Management that they appointed Respondent no.3 on 26-11-1992. However, there was no Official Order passed by the Management. Respondent no.2 challenged the appointment of Respondent no.3, if she wanted to move the Tribunal. The appointment of Respondent no.3 comes on record, at the highest, on 11-02-1993. It cannot be expected of a teacher to move the School Tribunal on the basis of an oral announcement made in the Assembly Hall of the School on 4-01-1993. On the other hand, it is only on 11-02-1993 that the Education Department informed the Management that the management was required to seek the approval of the Assistant Director of Education as Respondent no.3 was not a senior-most teacher in the list of Assistant Teachers. It is not in dispute that the Assistant Director of Education granted the approval only in August 1993. In the above circumstances, the School Tribunal was right in granting the condonation of delay particularly when the Appeal was filed on 1-03-1993 by Respondent no.2. The management was aware that the Respondent no.2 was a senior-most teacher. The Management was aware that on the basis of comparative merit, they were to select Respondent no.3. The management was aware that Respondent no.2 had filed in this Court the earlier Writ Petition in which there was no challenge to the appointment of Respondent no.3 because, at that time, there was no such order of appointment passed by the Management in favour of Respondent no.3. Yet, the Management did not inform in writing to Respondent no.2 that they have decided to appoint Respondent no.3 on the basis of comparative merit, although Respondent no.2 was senior in the Cadre of Assistant Teacher to the 3rd Respondent. In the circumstances, no interference is called for under Article 226 of the Constitution.

B. WHETHER THE IMPUGNED APPOINTMENT TO THE POST OF SUPERVISOR FELL OUTSIDE THE SCOPE OF THE SAID ACT, 1977 AND THE RULES FRAMED THEREUNDER.

The main argument on behalf of the Management was that the words "Head of a school" have been defined under section 2(9) of the said Act to include the post of Supervisor. The Management has relied upon the Judgment of the Division bench of this Court in the case of Gunvantlal Kantilal Khamar (Supra). According to the Management, the categories mentioned in section 2(9) which is an inclusive definition indicate that a head master, assistant head master and a superintendent would ipso facto fall in the definition of "Head of a School" under section 2(9) and in the circumstances, according to the Management, when Respondent no.3 is appointed as a Supervisor it would amount to recruitment of the Head of a Minority School under section 3(2) of the said Act, 1977 as amended by Act No.XI of 1987 on July 7, 1987.

At the outset, I wish to clarify that, in the present matter, there was lot of controversy on the question as to whether a Supervisor is the same as a Superintendent as defined under section 2(9) of the said Act, 1977. That question need not be gone into at this stage. I am proceeding on the basis for the time being without deciding the said issue that the word "superintendent" in section 2(9) is the same as the word "supervisor".

In order to answer the above contentions on behalf of the Management, we are required to examine the scope of the Act and the Rules particularly because we are required to look at the Act in the context of a Minority Institution. The Act, 1977 has been enacted to regulate recruitment and conditions of service of employees in Private Schools with a view to provide the employees security and stability of service and with a view to lay down the functions of such employees so that they become accountable to the Management. The Act is also enacted in public interest to lay down the duties of such employees (See Preamble to the Act). The words "recruitment" and "conditions of service" are very important. Section 2(9) defines the expression "Head of a School" or "Head" to mean the person by whatever name called in 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. For the sake of convenience Section 2(9) and section 3(2) are reproduced hereinbelow :-

Sec. 2(9)

"Head of a school" or "Head" means the person by whatever name called in 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".

Sec. 3(2)

"Notwithstanding anything contained in sub-section (1), the provisions of this Act shall not apply to the recruitment [of the Head of a minority school and] any other persons (not exceeding three) who are employed in such school and whose names are notified by the Management to, (the Director or as the case may be) the Deputy Director for this purpose."

Section 6 of the Act refers to obligations of the Head of a Private School. The obligations are enumerated in section 6. It indicates interalia that important academic and managerial functions are required to be carried out by every Head of a Private School. Similarly Rule 3 prescribes qualifications for the appointment of the Head of a school. Rule 4 of the said Rules prescribes responsibility of a Head. Rule 4 lays down interalia that subject to the provisions of the Act and the Rules, the Head of a school as defined under section 2(9) will mean the academic Head of a school. Rule 4(2) of the said Rules further lays down that subject to the superintendence and control of the management, the Head shall be administrative head of the school who will be responsible for maintenance of accounts, management of the school library etc. and all other work relating to administration of the school as may be assigned to him by the Department or the management from time to time. Rule 5 of the said Rules lays down qualifications of Assistant Head and of Supervisor. Rule 5(5) interalia provides that the post of Supervisors shall be filled in only from the permanent staff and strictly on the basis of seniority-cum-merit and the seniority shall be decided on the basis of the guidelines given in Schedule-F. Rule 5(5) further provides that merit shall be decided in accordance with the record of service within the meaning of the expression "merit" in the explanation to Rule 3(6). In this context, it may be mentioned that Rule 3 deals with qualifications and appointment of a Head. Rule 3(6) empowers the Education Officer/Deputy Director to direct the Management to cancel the appointments made without following the prescribed procedure. By way of explanation to Rule 3(6), it is clarified that for the purposes of the said Rule, record of service shall be deemed to be satisfactory if there is nothing adverse in the Annual Confidential Record of the teacher concerned during the previous five years. It is further laid down in the explanation that the adverse remarks not duly communicated in writing to the teacher concerned shall be disregarded for the purpose of the said Rule. It must be clarified that I am, at this stage, required to go into Scheme of the Act for the purposes of deciding the duties which a Head or the Head of a school is required to carry out in contradistinction to the duties required to be performed by the other categories mentioned in section 2(9) of said Act, 1977. Rule 7 of the said Rules deals with Scale of Pay and Allowances whereas Rule 8 deals with Pay Scales admissible to the Head and to Assistant Head, Supervisor etc. Rule 7 and Rule 8, therefore, clearly indicate that Pay Scales admissible to the Head are different from the Pay Scale admissible to the post of Assistant Head, Supervisor etc. Rule 8(2) deals with two categories of posts, namely, teaching and non-teaching posts. This is also important because the expression Superintendent comes in the category of non-teaching posts as referred to above whereas Supervisor falls in the category of teaching posts. Rule 9 deals with the appointments of teaching staff of the school. Rule 9(a) deals with the appointments of teaching staff other than the Head or Assistant Head. Rule 12 deals with seniority. It lays down that every Management shall prepare and maintain seniority list of the teaching staff including Head Master and Assistant Head master and also it shall prepare seniority list for non-teaching staff in the School in accordance with the guidelines in Schedule-F. The guidelines in Schedule-F clearly indicates that for the purposes of fixing the seniority of teachers in secondary schools the teachers are required to be categorized as Heads of secondary schools having an enrollment of students above 500 and also in respect of Heads of secondary school having an enrollment of students of 500 and below. It also provides for seniority of the teaching staff which is required to be maintained. Rule 22 deals with duties which are required to be performed by the Head. Rule 22 also deals with duties of Assistant head, Supervisor, Teacher and non-teaching staff. Similarly under Schedule I read with Rule 22, duties of the Head have been enumerated. Duties of the Head are again divided into two parts, namely, duties in relation to educational matters and duties with regard to general administrative matters. Similarly under Schedule-I to the said Rules, duties with regard to financial matters are also enumerated which are required to be carried out only by the Head of the Institution. In other words, there are three subcategories of duties which the Head is required to perform, namely, duties in relation to the educational matters, duties in relation to the financial matters and duties in relation to administrative matters. On the other hand. Item no.2 deals with duties of Assistant Head. Item No.3 deals with duties of Supervisor whereas Item No.4 deals with duties of Teacher. Similarly under Item No.5, duties of the clerical staff are enumerated. These duties are also subcategorized into three parts, namely, duties pertaining to financial matters - like preparation of Budget, duties with regard to teaching staff - like furnishing information to the teaching staff and other duties like drafting correspondence. However, it may be mentioned that duties of clerical staff are purely clerical in nature and all the three subcategories under Item 5 indicate that duties of clerical staff are purely clerical in nature whereas subcategories with regard to duties of Head clearly indicate that the Head of a school is required to discharge the duties of general administrative nature, duties in relation to educational matters and also duties with regard to financial matters. If one goes through duties of the Head on one hand and duties of clerical staff on the other hand, it is clear that duties of the Head involve responsibility. The said duties are of supervisory and managerial nature. The said duties involve financial matters. The said duties involve administrative functions. In the circumstances, the duties which the Head of a school is required to carry out stand distinct and separate from the duties which the other categories are required to do.

The reading of the above sections of the Act with the Rules, therefore, indicate that the duties and functions of the Head of a school are distinct and separate from the duties of Assistant Head, Supervisor, Superintendent etc. Apart from his duties as a teacher, a Head is also required to discharge administrative functions and he is required to look into financial matters. He is also required to supervise administrative and financial matters apart from his duties as a teacher. This dichotomy in the matter of assigning of work on the one hand to the Head of a school in contradistinction with the assignment of work to the other categories in section 2(9) indicate that although all the above functionaries do the work of teaching, the Head of a school is required to be invested with additional duties which are of administrative nature. If the Management decides by appropriate Resolution to confer administrative, managerial, supervisory and financial functions on a Supervisor then the Management is required to pass an appropriate Resolution. In the above circumstances, the above compartmentalization of duties, responsibilities and functions indicate that in every matter, on facts, the Court or the Tribunal is required to be satisfied that a principal, vice-principal, Head master, Head mistress, assistant head master, assistant head mistress or superintendent has been appointed as on Administrative Head of a school by an appropriate Resolution. It would be a question of fact which is required to be proved by Minority Institution whenever dispute arises regarding the status of the appointee. Under section 2(9), it is stipulated that the Head of a school means the person by whatever name called (Emphasis supplied by me) and who is in charge of academic and administrative duties and functions of a school can be appointed as the Head of a school from the category of principal, vice-principal, head master, head mistress, assistant head master, assistant head mistress or superintendent. A Peon cannot be appointed as the Head of a school. Out of the categories enumerated in section 2(9), the Management can appoint a head master, or assistant head master or superintendent as the Head of a school by empowering such an appointee with academic and administrative duties. Even a principal of a school or vice-principal of a school does not ipso facto, by virtue of definition, become the Head of a school. He is required to be invested with specific powers, functions and duties of academic and administrative nature. It does not mean that in a given school the Management is entitled to appoint more than one Head of a school. It is for this reason that the approval of the Department is required to be taken by the Management even when the Management seeks to appoint a person as the Head of a school from the above categories. The Education Department is required only to verify in the case of a Minority Institution as to whether such a person is duly qualified to be appointed a the Head of a school. The choice is with the Minority Institution subject to a person holding necessary qualification. This is a privilege which the Act has conferred upon the Minority Institution under section 3(2).

The above interpretation is supported by the Division Bench of this Court in the case of Gunvantlal Kantilal Khamar (Supra). The Division Bench of this Court has laid down that the expression "Head of a school" under section 2(9) takes in its sweep not only the Head Master or Head Mistress but Assistant Head Master or Assistant Head Mistress and Superintendent also, and the definition makes it clear that apart from the Head Master, Assistant Head Master and Superintendent, no other employee by whatever nomenclature called can be treated as a Head of Minority School. The Division Bench has further observed that it must be borne in mind that mere nomenclature or post of a teacher as Head master, Assistant Head Master or Superintendent would not make the appointee a Head of a school unless such an appointee is expressly given charge of academic and administrative duties and functions by the Management. The Division Bench has further observed that under section 3(2) as amended in 1987, it is clearly laid down that the said section will be attracted to the recruitment of the Head of a Minority School provided such a recruitment is of a person who will be in charge of the academic and administrative duties and functions. The Division Bench of this Court has further watered down section 3(2) by observing hat the legislature in its wisdom, while enacting the Act No. XI of 1987 in respect of the recruitment of the Head of a Minority School and the matters relating to conditions of service and conduct and discipline should be governed by the Act, 1977 because every employee of the Minority School is entitled to the protection of the provisions of the Act in respect of the conditions of service and conduct, and discipline rules. Once this aspect is borne in mind then it is clear that the later part of the amended sub-section 2 which deals with nomination of three persons is rendered irrelevant because such employees are already entitled to the benefit of the provision of the said Act including the conditions of service and including conduct and disciplinary rules. In other words, the Division Bench has clearly laid down that when the Management seeks to appoint Assistant Head Master or a Supervisor/Superintendent as the Head of a school and if the said Assistant Head Master or a Supervisor is already working in the school then in such a case conditions of service and the conduct and disciplinary rules which are already applicable to the service conditions of the Assistant Head Master or the Superintendent, will continue to apply and in such a case the rule of seniority-cum-merit would also continue to apply and merely because the appointee to the Head of a school comes from the Cadre of Assistant head master or Superintendent or Supervisor; he would not loose the protection of the conditions of service laid down by the Act, 1977. In other words, if a recruitment is made by the management from the open market to the post of a Head of a school then to such recruitment the Act will not apply but the intimation is required to be given to the Department so that the Department can verify and check as to whether the appointee was entitled to be appointed as the Head of a school and whether he was qualified to be appointed as the Head of a school but where the Management seeks to promote Assistant Head Master or a Supervisor to the post of the Head of a school, he will not loose the benefit of the existing conditions of service on the basis of the second part of section 3(2). The Division Bench has further laid down that even in the case of the Head of a school, after recruitment, the benefit of the conditions of service would apply and to that extent the Act and the Rules would apply even to the post of Head Master. In other words, according to the Judgment of the Division Bench, only the process of recruitment is kept out from the purview of the Act and the Rules but once that process is completed the appointee to the post of the Head of a school would be governed by the Act and the Rules and by the service conditions and the disciplinary rules. For example if the services of the Head of a school are terminated he can certainly go to the Tribunal and challenge the order of termination and he cannot be excluded from enforcing his right only on the ground that he is the Head of a school and Minority Institution. In the above circumstances, applying the ratio of the Judgment of the Division Bench of this Court in the case of Gunvantlal Kantilal Khamar (Supra), the Management was not entitled to treat the promotion from the post of Assistant Teacher to the post of Supervisor as appointment to the Head of a School ipso facto by placing reliance on section 2(9) of the Act. Even on facts, there is nothing to show that Respondent no.3 has been invested by specific Resolution passed by the Management empowering him to carry out administrative functions and responsibilities. In the above circumstances, the impugned appointment squarely fell within the ambit of the said Act, 1977. In the case of Abdul Aazmi Vs. Sayyad Mohammed reported in 1989 I CLR page 429, the Division Bench of this Court has laid down that in several cases it will be the duty of the Court/Tribunal to decide whether Principal of a school is also authorized to act as the Head of a School by the Management. The Division Bench has laid down that there cannot be a general rule that the Head Master can never administer the school. The Division bench has laid down, however, that the Trust or the Management is required to empower the Head master with administrative duties and to act as the Head of the school which will depend on the facts and circumstances of each case. This is also because the word "Management" has been defined under section 2(12) of the Act to mean that in the case of a school administered by the State Government, the Department is the Management whereas in the case of a school administered by the local authority it is the local authority which is the Management and in all other cases the person or a body of persons empowered to administer the school shall be called as the management. It is this right to administer the school which is required to be given to the persons categorized in section 2(9) of the Act, 1977 and unless there is a specific Resolution from the management empowering such appointee to act as the Head of a school merely by looking at the definition under section 2(9). it cannot be inferred that the appointee is the Head of a school. In the circumstances the impugned promotion came within the ambit of the Act. Accordingly, I find merit in the contentions advanced on behalf of Respondent no.2 that the impugned appointment was governed by the provisions of the Act and the Rules and particularly Rule 5(5) of the said Rules, 1981.

C. WHETHER THE MANAGEMENT WAS ENTITLED TO MAKE THE IMPUGNED APPOINTMENT ON THE BASIS OF COMPARATIVE MERIT.

In the present matter, Respondent no.2 was senior to the 3rd Respondent in the cadre of Assistant Teacher. This is not in dispute. Under Rule 5(5) of the said Rules, 1981 which deals with qualifications and appointments of Supervisor, it is laid down that the post of Supervisor shall be filled in from amongst the permanent staff strictly on the basis of seniority-cum-merit and seniority shall be decided on the basis of guidelines given in Schedule-F. Under Rule 5(5), it is further stipulated that merit shall be decided in accordance with the record of the service within the meaning of the expression in the explanation given to Rule 3(6). The said explanation to Rule 3(6) indicates that if in the record of service there is nothing adverse in the Annual Confidential Reports of the Teacher during the last five years then it will be presumed in law by a deeming fiction that her record of service was satisfactory. Under the said explanation it is further stipulated that the adverse remarks not duly communicated in writing to the teacher shall be disregarded for that purpose. On behalf of the Management it was contended that, in the present case, Respondent No.3 was found to be more meritorious than Respondent no.2 on the basis of the Assessment Reports made by the Principal in March/April 1992. Number of Judgments were cited by the learned counsel on behalf of the Management. It is not necessary for this Court to go into those Judgments. However, this Court has gone into those Judgments which are also reproduced hereinabove. The said Judgments deal with different points altogether. They deal with the cases of compulsory retirement under the Central Civil Service Rules. They deal with the cases of probationers. In the above circumstances, it is not necessary for this Court to go into the cases of probationers or cases of compulsory retirements. However, it may be noted that even in the cases of compulsory retirement where the Supreme Court found that there was no stigma attached to the person, the record was placed before the Court and the record indicated that the employee's services were not satisfactory over a period of time whereas, in the present case, in the year of promotion - in the year 1992 only on the basis of a Report submitted by the Principal, it is contended that Respondent no.3 was more meritorious than Respondent no.2. It may once again be stated that the Principal is not the Management of the school. Be that as it may, even if the doctrine of comparative merit is applicable as contended by Mr. Menezes, on facts, it is not possible for this Court to come to the conclusion that after thirty (30) years only on the basis of the Report made by the Principal in the year of promotion Respondent no.3 could be said to be more meritorious than respondent No.2. There is nothing to indicate that the drawbacks referred to in the said Report were ever pointed out to the second Respondent during the period of thirty years. In any event, in the present matter, in view of my findings referred to hereinabove that the Act and the Rules were applicable to the impugned appointment, the management was required to follow a rule of seniority-cum-merit. Even in service jurisprudence it is well settled that seniority-cum-merit is not the same as comparative method. Under Rule 5(5), therefore, the rule of comparative merit will not come into picture. It is very clearly stipulated under Rule 5(5) that only the principle of seniority-cum-merit shall apply whereas, in the present case, the Management seeks to invoke only the rule of pure selection based on merit which is not what Rule 5(5) contemplates. In the present matter, the Management has made it very clear that there is no adverse remark against the teacher. If that be the case then there is no reason for superseding her particularly when she was senior to the 3rd Respondent. If the contention of the Management with regard to comparative merit is accepted then Rule 5(5) becomes redundant. In the above circumstances, the rule of seniority-cum-merit alone was applicable. The said rule is attracted and in the above circumstances, Respondent no.3 was not entitled to supersede Respondent no.2.

In the above circumstances, I am not inclined to interfere with the impugned order of the School Tribunal.

D. FORMULATION OF RELIEF

In view of the above Judgment, Order of School Tribunal needs no interference. The said order stands confirmed.

The Rule is discharged with no order as to costs.

Mr. Menezes applies for stay of the above Judgment and Order for a period of eight (8) weeks. In view of the intervening vacation, application is reasonable. Accordingly, the above Judgment and Order is stayed for eight (8) weeks from today.

Issuance of certified copy expedited.

Petition dismissed