GUNVANTLAL KANTILAL KHAMAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This petition under Article 226 of the Constitution is to obtain a direction compelling respondents 4 and 5 to appoint the petitioner as an Assistant Head Master (AHM) after quashing the appointment of respondent 7 to that post.

(2.) RESPONDENT 4 is a Trust/Society registered under the Bombay Public Trust Act, 1950, and the Societies Registration Act, 1860. The governing body of the said respondents, hereinafter referred to as 'the society' has for its officebearers a Secretary who is the father -in -law of respondent 6 and a Chief Executive Officer who is the husband of the said respondent. The said Society runs a school in the name and style of Fellowship School which has been impleaded to this petition as respondent 5. The said school has classes right from the Kindergarten to the class which prepares students for the Secondary School Certificate Examination. Respondent 6, the Head Mistress of the School is at daggers drawn with her husband and father -in -law and is presently under suspension. Petitioner and respondent 7 joined the School as Teachers on June 10, 1968. Both are equals so far as academic qualifications are concerned. Petitioner was born on January 8, 1935 while respondent 7 was born on February 7, 1943. On April 1, 1979, the petitioner was appointed to the higher post of a Second Supervisor as from October 3, 1978. By a Circular/Notice of October 20, 1985 eligible teachers from the Secondary section of the School were invited to apply for the post of an Assistant Head Master. The prescribed qualification was a Bachelor's degree in Education or any other qualification recognised by the Government as equivalent thereto. The applicant had to have not less than 5 years total full -time teaching experience after graduation in a Secondary School or a Junior College of Education, out of which, atleast two years' experience had to be after the acquisition of Bachelor's degree in Teaching or Education. The Circular specified that the eligible candidates were to be interviewed during the Diwali vacation, for which reason they were requested to mention their vacation addrssses in the applications. Petitioner and respondent 7 being the only eligibles applied and were interviewed by a Committee. The Committee consisted of Messrs. Palkhiwalla, Ladiwalla, the Secretary and the Chief Executive Officer of the Society. After the interview had taken place on February 4, 1986, the Governing Body of the Society met. This Body accepted the recommendation of the Interview Committee to appoint respondent 7. She was informed of the decision to appoint her as an Assistant Head Mistress and took charge of that post on February 18, 1986.

(3.) SUCH a power could not be defended under Article 30(1) insofar as it violated the rights of the petitioner vis -a -vis Articles 14 and 19 of the Constitution. The Act and the Rules, as also the Code, made it imperative upon respondents 4 and 5 to follow the rule of seniority -cum -suitability in the matter of appointment to the post of an AHM. To the extent, Section 3(2) of the Act permitted a minority institution to go against the Rules in the matter, it was void. Section 3(2) be declared as ultra vires and respondents 4 and 5 be directed to appoint the petitioner as an AHM after quashing the appointment of respondent. 7.