ST THERESAS HIGH SCHOOL Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) 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 bona fide 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 no 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.