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 office-bearers 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 10th June, 1968. Both are equals so far as academic qualifications are concerned. Petitioner was born on 8 January, 1945 while respondent 7 was born on 7th February, 1943. On 1 April, 1979, the petitioner was appointed to the higher post of a Second Supervisor as from 3 October, 1978. By a Circular/Notice of 20 October, 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 addresses in the application. Petitioner and respondent 7 being the only eligible 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 4 February, 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 18 February, 1986.

(3.) The petition impugning the appointment of respondent 7 contends that the same is illegal and vitiated by bad faith. The school was founded in the year 1927 and the society was a secular trust. The Montessori and Secondary School, were in receipt of Grants-in-aid from the Government. The school was, therefore, governed by the Maharashtra Employees of Private School (Conditions of Service) Regulation Act, 1977, and the Rules framed thereunder. Prior to the coming into force of the Act and the Rules, conditions governing the service of the teaching and non-teaching staff of the School were regulated by the Secondary School Code (Code). Under the Code as also the Rules aforementioned, the petitioner was senior vis a vis the 7th respondent. This was on account of the seniority in age. The seniority of the petitioner had been recognised by the society when he was appointed as the Second Supervisor and also the first supervisor in preference to respondent 7. In fact, the attempt to appoint respondent 7 as second supervisor after his elevation to the post of First Supervisor had been objected to by the Education Department, for which reason the contemplated promotion could not be made. Section 3(1) of the Act made it incumbent upon all private schools in the State to comply with the provision of the said Act. The Rules had been framed under section 16 of the Act. Rules 3, 5, 12 and 15 all read together, indicated that the post of an AHM has to be filled in by promotion. Petitioner complied with the requirements of the Rules in that he was academically qualified, had the requisite experience and had a clean record of service. His junior viz. the 7th respondent could not be preferred over him. The reason for by-passing him lay in the differing responses of himself and respondent 7 when questioned as to where their allegiance would lie in cases of a conflict between directions given by the society on the one had and respondent 6 on the other. Petitioner had answered that respondent 6 was the Head of the teaching section of the school, and he, as a teacher, would be bound by her directions. Respondent 7 on the other hand proclaimed her fidelity to the management. That is why she was preferred over him. Petitioner had questioned the legality and propriety of the recommendation made by the Interview Committee which had been accepted by tree governing body of the school. Respondents 2 and 3 instead of curbing the patent violation of the Rules, fell in with the suggestion of the society that it was a minority institution and, therefore, had rightly excluded petitioner and respondent 7 from the operation of the Act and the Rules by virtue of the power conferred upon them vide section 3(2) of the Act. The naming under section 3(2) had been varied from year to year by respondents 4 and 5. Petitioner contends that respondent 5 was not a minority school. The Trust was registered in or about 1927 when Gujarati speaking people were not a linguistic minority. Therefore, even assuming that Gujaratis were a linguistic minority after 1960, when the erstwhile State of Bombay was bifurcated Gujarati institutions founded prior to that date, could not claim the status of a minority institution. On this ground also he could not be denied the benefit of the Act and the rules governing promotions to the post of an AHM. The decision to supersede him was void ab initio and mala fide. In case it was held that section 3(2) of the Act justified his supersession, it was petitioner's contention that the said provision was void. Section 3(2) exempted from the operation of the Act the Head Master and three other employees whose names were notified to the education department by the institution running the minority school. In the choice of the three persons other than the Head, the teaching staff had no voice. By a unilateral act of the management, any teacher could be deprived of his rights under the Act. Such an unilateral act on the part of the management could be for unspecified reasons and could be used to oppress and harass any member of the teaching staff. No guidelines were given in the section as to how the power of exemption was to be exercised by the minority institution. Article 30(1) of the Constitution of India had for its object, the empowering of minorities to establish and administer educational institutions of their choice. This right could not be enlarged to confer upon minority institutions the right to adopt any wayward or unbridled policy of hire and fire. Section 3(2) of the Act went much further and conferred arbitrary powers upon minority institutions to pick and choose any member of the teaching staff for denial of the benefits conferred by the Act and the Rules framed thereunder. 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 Rule 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 to be directed to appoint the petitioner as an AHM after quashing the appointment of respondent 7.