KAMAL Vs. SAWATE EDUCATION SOCIETY

JUDGEMENT

(1.) Challenge in this writ petition, filed by employee of a Private School, is to the judgment dated 30-04-1994 delivered by respondent No. 5 School Tribunal in an appeal under Section 9 of Maharashtra employees of Private Schools (Conditions of service) Regulation Act, 1977, dismissing said appeal. It is not in dispute that the service conditions of employees of Private Schools are regulated by said Act (hereinafter REFERRED TO as MEPS Act for short and rules as (MEPS rules) framed thereunder).

(2.) As is apparent from Judgment of school Tribunal, the present petitioner approached it with grievance that her claim for promotion as Headmistress has been superseded by appointing present respondent no. 3 on that post. The basic facts are not in dispute and even the contention of present petitioner that she is senior than respondent no. 3 as Assistant Teacher is also not in dispute. The petitioner joined the services of present respondents No. 1 and 2 as Assistant Teacher on 24-06-1986 and in fact she officiated as headmistress during 1986-1987. She was already holding qualification of B. A. , B. Ed. while joining. Present respondent No. 3 was also holding qualifications of B. Sc. , B. Ed. when she joined the services on 29-06-1987. It appears that as petitioner declined to work as Incharge Headmistress, respondent No. 3 became Incharge Headmistress in 1987-88. As respondent No. 3 was not seniormost, petitioner gave her undertaking before respondent No. 4 - Education Officer and relinquished her claim for said appointment. Neither present petitioner nor respondent No. 3 were holding requisite experience at that time to enable management to substantively fill in the post of headmistress and hence, seniormost and willing Assistant Teacher was given said responsibility as Incharge Headmistress. The petitioner secured necessary experience and could have been promoted in substantive capacity from 01-07-1991 but the management continued respondent No. 3 as Incharge headmistress even during 1991-92 and on 01-07-1992 respondent No. 3 also secured necessary experience. The management thereafter appointed respondent No. 3 as headmistress in substantive capacity. The petitioner thereafter approached School tribunal and contended that while filling in post of Headmistress substantively, her claim ought to have been considered in view of rule 3 (3) of MEPS Rules, 1981, and relinquishment of her claim for Incharge Headmistress could not mean that she relinquished her claim even for the post of substantive Headmistress. She contended that the order issued in favour of respondent No. 3 was not circulated and education Officer had not by that time granted approval in favour of respondent No. 3. She therefore stated that appeal filed by her on 15-09-1992 was within limitation but by way of abundant precaution, also filed application for condonation of delay. The appeal was opposed by present respondent No. 3 as also management on various grounds including non-joinder of management as necessary party in appeal and bar of limitation. The defence was that present petitioner waived her right for said post in accordance with provisions of rule 3 (3) of MEPS Rules, 1981.

(3.) School Tribunal found that though petitioner was given charge of the post of Headmistress, after one session she voluntarily relinquished it and present respondent No. 3 was given that charge. It found that the management made sincere efforts to fill up said vacancy by promoting seniormost Teacher and because petitioner and respondent No. 3 were not possessing requisite teaching experience that could not be done and management therefore made ad hoc arrangement. It found that petitioner waived her right before Education Officer on 09-02-1988 as contemplated by Rule 3 (3) of MEPS rules, 1981. It found that said document was for relinquishment in relation to substantive posting as Incharge Headmistress was not a promotional post but only a stopgap arrangement. It found that petitioner slept over her rights for about one year and management was not joined as party. In view of these findings, it held that respondent No. 3 was already Incharge Headmistress for 4 years and regular Headmistress since one year and therefore had vested right in said post. It also held that respondent No. 3 has been rightly regularised as Headmistress. It therefore dismissed the appeal.