SHANKAR KASHINATH GODSE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) IN this Writ Petition, it is the case of the petitioner that he was appointed as Head Master by respondent No. 7 Jana Seva Sangh on April 8, 1977. He resumed his duties as Head Master on June 13, 1977. His appointment was then approved by the Deputy Director of Education on July 18 1981 with retrospective effect from June 13, 1977. Later on the Joint Director of Education the respondent No. 1 declared the said appointment as invalid by his order dated January 8, 1982. It is this order of the Joint Director of Education which is challenged by the petitioner in the present petition.

(2.) IT is an admitted position that the Jana Seva Sangh which is a registered body is conducting three secondary schools and two - night schools since the year 1944. Out of these three secondary schools, one is at village Nere, Taluka Panvel, District Raigad and others are Kumari Kasturi Vidyalaya, Bhandup, Janata Vidyalaya, Dongri, Mazgaon Night High School, Dongri and Bhandup Night High School, Bhandup, Bombay. However, in this petition we are not concerned with the Night High Schools but are only concerned with three regular secondary schools. When the petitioner was appointed in the year 1977 as Head Master at Nere High School, his services were made transferable inter se so also the services of respondent Nos. 8 to 13 were transferable in any of the schools run by the Jana Seva Sangh. One Miss Jayashri Balkrishna Joshi was working as Head Mistress at Nere High School at the relevant time. She resigned on January 21, 1977 and was relieved from June 12, 1977. According to the petitioner as none of the other senior teachers were willing to go to Nere, an advertisement was issued in the news papers and he came to be appointed in the said post. On March 4, 1977 the Executive Committee of Jana Seva Sangh directed that the advertisement should be given in Loksatta. Such an advertisement was given in the news papers and thereafter by a letter dated June 8, 1977 the petitioner came to be appointed as Head Master at Nere. School on probation for a period of one year. On July 28, 1977 the Education Officer, Zilla Parishad, approved the appointment of Shri Godse as acting Head Master so as to avoid inconvenience to the teachers in regard to the payment of their salaries, which, it appears were withheld. Since the appointment of Shri Godse was without following the procedure prescribed by Rule 61.2 of the Secondary Schools Code, the Education Officer also informed that Godse is not eligible to be appointed as Head Master and, therefore, directed that the School may approach the Deputy Director of Education, Pune in that behalf. Then a declaration was sought from other teachers on February 2, 1980 to the effect that Shri Godse's appointment as Head Master at Nere High School should be regularised as they were not willing to go as Head Master at Nere High School even in the year 1977. The senior teachers which included the respondents clarified the position by saying that this declaration will be applicable exclusively to the appointment of Shri Godse as head master at Nere High School on June 13, 1977 and it shall not be used in any manner for any further appointment as head masters in High Schools conducted by the Jana Seva Sangh, After getting this declaration from the respondents and other teachers, the management approached the Deputy Director who by relaxing the condition enumerated in Rule 61.2 of the Secondary Schools Code approved his appointment by imposing two per cent penal cut in the grant. It appears that in the meantime by letter dated December 3. 1980 one Mrs. Ghosalkar was transferred to Nere High School and the petitioner was transferred to Bombay School at Dongri in her place. This was objected to by Mrs. Ghcsalkar. Therefore petitioner Shri Godse was retransferred to Nere High School and Mrs. Ghosalkar was appointed as Head Mistress at Dongri School. The order of transfer of the petitioner Shri Godse to Dongri High School was challenged by the respondents Nos. 8 to 13 by filing an appeal to the Director of Education, State of Maharashtra. The said appeal came to be decided by the Joint Director by his order dated January 8, 1982. The Joint Director allowed the appeal filed by the respondents and it is this order which is challenged in writ petition No. 542 of 1982.

(3.) SHRI Limaye, learned Counsel appearing for the petitioner -Godse in writ petition No. 542 of 1982 who is also respondent No. 2 in Original Side writ petition No. 899 of 1985, contended before us that Shri Godse was duly appointed as head master at Nere High School as per rules. When Shri Godse was appointed as head master none of the senior teachers, including the respondents were prepared to go and serve as head master at Nere High School. Because of this refusal an advertisement was given in the news papers. In pursuance of this advertisement Shri Godse applied for the post. He was duly interviewed by the Selection Committee and thereafter was appointed as head master at the said School. Thus Rule 61.2 of the Secondary Schools Code was duly complied with. His appointment was also approved by the Education Department. This was approved by relaxing the condition enumerated in Rule 61.2 of the Code and a penal cut in the grant at 2% was also levied. Thus the appointment made was duly regularised. By letter dated February 2. 1980, the senior teachers, including the respondents, gave a solemn declaration that they were never willing to work as head master at Nere High School even on the day when Shri Godse was appointed as head master. Therefore in any case it could safely be said that there was substantial compliance with the provisions of Rule 61.2 of the Secondary Schools Code. Thus according to the petitioner his seniority will have to be reckoned in the cadre of the head master and on that basis he is entitled to be transferred to any of the schools run by the management, including the schools at Bombay. Therefore the belated order passed by the Joint Director of Education holding that the initial appointment of Shri Godse as head Master to the Nere High School was illegal, is bad in law. Once it is held that initial appointment was good then his subsequent transfers to Dongri or to Kumari Kasturi High School are also legal and valid. It is also contended by Shri Limaye that the provisions of Rule 61.2 of the Code are directory, and not mandatory, hence substantial compliance with the said provisions is enough. On that basis it could safely be said that Shri Godse was appointed as head master after complying with the provisions of Rule 61.2 of the Code.