Sukhdeo Ragho Deore vs Chairman, Gram Shikshan Samiti, ...
2001 Latest Caselaw 932 Bom

JUDGMENT

D.B. Bhosale, J.

1. The petitioner seeks to challenge the legality and propriety of the order dated 8th anuary, 1991 passed by the Director of Education, Pune (respondent No. 5), by which he has allowed the review application, setting aside the order passed by the Joint Director of education dated 8th January, 1982. The Joint Director, by this order had quashed and set aside the appointments of respondent Nos. 3 and 4 as head masters holding that the same were made in utter violation of the seniority principle, denying the claim of the petitioner who was quite senior to them on the dates of their appointments. The challenge to the impugned order is of two folds. Firstly, that the appointments of respondent Nos. 3 and 4 to the post of head masters in two different schools of the respondent No. 1 institution are not in conformity with the provisions of Rule 61.2(a) of the Secondary School Code (for short "Code"). Secondly, that the Director of Education has no power to review order dated 8th January, 1982 passed by the Joint Director, under Rule 61.2(d) of the Code.

2. The petitioner is an Assistant teacher working with a secondary school managed by respondent No. 1 institution since 1972. The respondent No. 1 institution manages six secondary schools. It is case of the petitioner that he was fully qualified to hold post of Assistant Teacher as well as head master. In 1979, the post of Head Master became vacant in Sri Ram Vidyalaya as also in Siddheshwar Vidyalaya run by respondent No. 1 institution. The petitioner was 8th in the seniority list whereas respondent Nos. 3 and 4 were at serial Nos. 12 and 26 respectively. Though, the respondent Nos. 3 and 4 were junior to the petitioner, they were appointed as Head Master by respondent No. 1 institution purportedly on the ground that the petitioner and all other similarly situated Assistant Teachers had in writing expressed their inability to hold the post of the Head Master in those schools. The petitioner claims to have sent letter on 5th April, 1980, to the Education Officer respondent No. 5 stating that he was forced to sign the aforesaid letter for the appointments of respondent Nos. 3 and 4. The Education Officer appears to have replied by his letter dated 25th April, 1980, stating that the so called consent letter given by the petitioner has no validity in law and accordingly they would not give approval to the appointment of respondent No, 3 to act as Head Master. The petitioner also claims to have lodged his claim for the post of Head Master in Shriram Vidyalaya on 3rd September, 1980, with the Director of Education, Pune. The petitioner thereafter filed appeal under Rule 61.2(d) of the Code, which was heard by the Joint Director, Pune, on 24th December, 1981 and it came to be allowed by order dated 8th January, 1982. By this order appointments of respondent Nos. 3 and 4 were quashed and set aside and the respondent No. 1 institution was directed to appoint the Assistant Teachers working in the institution according to their seniority and roster maintained, within a period of one month therefrom. Despite the specific directions issued by the Joint Director no steps were taken for long time. The petitioner kept on making representation after representation to all concerned but all efforts of the petitioner were in vain. It appears that there were differences between two groups in the Management which were finally settled in 1990 and further that the order passed by the respondent No. 5 on 8th January, 1982, was challenged by the respondent Nos. 3 and 4, in appeal before the School Tribunal which came to be dismissed by Judgment and Order dated 23rd November, 1984. The respondent Nos. 3 and 4 thereafter stated to have approached the Government and in turn the Government directed the respondent No. 5 to review the earlier decision of Joint Director dated 8th January, 1982. Accordingly, all concerned were heard by respondent No. 5 and the review was allowed, setting aside order of Joint Director dated 8th January, 1982 and declared that the appointments of respondent Nos. 3 and 4 were proper and made in accordance with the rules. It is this order of Director of Education dated 8th January, 1991 (Exhibit "P") is impugned in the instant writ petition.

3. The respondent Nos. 3 and 4 have filed affidavits in reply controverting the case set up by the petitioner. It is the case of respondent Nos. 3 and 4 that since the petitioner relinquished the claim of the promotional post of the Head Master, he lost his right to stake claim for the said post and in view thereof the petitioner is not entitled for any relief whatsoever in the present petition. It is also stated in the affidavits of respondent Nos. 3 and 4 that their appointments have been approved by the Government and they have been working as full fledged approved Head Masters since 28th February, 1981, and 8th January, 1991 respectively. Admittedly, respondent No. 3 has retired from the service during the pendency of this writ petition.

4. We, heard learned counsel for the parties at length, perused the writ petition and annexures thereto and the affidavits filed by respondent Nos. 3 and 4. The respondent Nos. 3 and 4 in their reply have averred that in 1977, the petitioner along with one Pawar were due and eligible for promotion to the post of the Head Master. However, the petitioner on his own accord relinquished his claim in favour of other Assistant Teacher namely Shri Pagar and Shri Jadhav. It is the case of respondent No. 3 that in 1979 the another promotional post became vacant in Shriram Vidyalaya, at Khuntewadi, Taluka Kalwan, when once again the petitioner and one Mahajan along with other teachers who were senior to respondent Nos. 3 and 4 wilfully on their own accord wrote letter to the Chairman of the Institution inter alia stating that they were not willing to join promotional post of Head Master in the said school. Therefore, respondent No. 3 was asked to join as Head Master in Shriram Vidyalaya and accordingly he was holding said post since July 1979 till his retirement during the pendency of the writ petition. The stand of respondent No. 4 is identical, who was appointed as the Head Master in respondent No. 2 school since August 1980.

5. Having regard to the specific case made out by the respondent Nos. 3 and 4, the learned counsel for the petitioner invited our attention to Rule 61.1 of the Secondary School Code, 1998, which deal with appointment and duties of Heads of the Schools. Rule 61.2(a) provides the procedure to be followed by the Management of the school to fill up the post of the Head Master. Rule 61.2(a) reads thus:

"(a) The Management of a school shall fill up the post of the Head of the School by appointing the senior-most teacher from among those employed in the school (if it is the only school run by the Management) or schools conducted by it, who fulfils the conditions laid down in Rule 61.1(a) above and who has a satisfactory record of service. Seniority shall be determined only in accordance with the guidelines issued by the Department from time to time. Record of service shall be deemed to be satisfactory if there is nothing adverse in the annual confidential record of the teacher concerned during the previous five years. Adverse remarks not duly communicated to the teacher concerned shall be disregarded for this purpose. In case the Management had not maintained annual Confidential Reports of teachers, it will be necessary for the Management to produce a recorded evidence in support of unsatisfactory work of the teacher concerned before rejecting his claim for the post of Head/Assistant Head. The claims of the senior-most qualified teacher having satisfactory record of service, to the post of the Head may be disregarded only if he, of his own free will, gives a statement in writing to the Education Officer/Educational Inspector that he has voluntarily relinquished his claim to the post. Such statement of the teacher concerned shall be recorded in the hand of the teacher himself before the Education Officer/Educational Inspector and the latter shall endorse it as having been recorded in his presence. Such statement once duly made before the Education Officer/Educational Inspector shall not be allowed to be withdrawn.

Exception. -- In the case of a Girls' School, that is a school run exclusively for girls, the senior most lady teacher, fulfilling the conditions laid down in Rule 61.1(a) above and having satisfactory record of service shall be appointed as Head Mistress of that school irrespective of her seniority vis-a-vis the male teachers."

6. Under this rule, the management is empowered to fill up the post of Head of the School by appointing Senior most teacher from amongst the employees in the school, who fulfil the conditions laid down in Rule 61.1(a). Rule 61.1(a) lays down the qualification and experience required for the appointment as head of the school. In the present case there is no dispute in respect of experience and qualification held by the petitioner and that he was eligible to be appointed as head master. Rule 61.2(a) provides, that the claim of senior most qualified teacher, having satisfactory record of service, to the post of Head could be discarded only if he, of his own free will, gives a statement in writing to the Education Officer/Educational Inspector stating that he voluntarily relinquishes his claim to the post. It further specifically provides that such statement of the teacher concerned shall be recorded in the hand of teacher himself before Education Officer or Education Inspector, and the latter shall endorse it as having been recorded in his presence. Such statement once duly made before the concerned officer cannot be allowed to be withdrawn. It is clear that the procedure contemplated under Rule 61.2(a) of the code of relinquishment of claim to the post of Head Master by the senior teacher who is entitled for the said post is mandatory in nature and requires to be complied with strictly. The object of providing the procedure is to avoid the arbitrariness of the Educational Institutions in making the appointments of Junior Teachers of their choice by bringing pressure on seniors to relinquish their claim to the promotional post. The respondent Nos. 3 and 4 are absolutely silent as far as the procedure of relinquishing the claim under rule 61.2 is concerned. The respondent No. 1 institution has not come forward and filed the counter explaining circumstances in which the consent of the petitioner was obtained and/or whether the procedure prescribed under rule 61.2(a) was complied with. The impugned order dated 8th January, 1991, passed by the respondent No. 5 is also silent, as far as the procedure under Rule 61.2(a) is concerned. The impugned order does make reference to so called writing given by one P.R. Jadhav and petitioner, without further explaining whether the writing was obtained after complying the procedure contemplated under Rule 61.2 (a). In view thereof, we have no hesitation in holding that the respondent No. 1 was not justified in appointing respondents No. 3 and 4 to the post of Head Master totally disregarding the procedure laid down under Rule 61.2(a) of the Code. Therefore, the orders appointing respondent Nos. 3 and 4, to the post of Head Master, denying the claim of the petitioner was illegal and cannot be sustained.

7. The next question falls for our consideration is whether the respondent No. 5 was justified in allowing the review and setting aside the order passed by the Joint Director dated 8th January, 1982 and further declaring that the appointments of respondent Nos. 3 and 4 were made in accordance with the rules. Rule 61.2(d) and (e) provides that the teacher who is in any way aggrieved by the appointment made by the management of the Head or Assistant Head of his School may make an appeal to the Director within 30 days from the date of such appointment and against the decision of Director of Education, further appeal is provided to the Government within 30 days from the receipt of said decision. Rule 61.2(d) and (e) read thus :

"(d) A teacher, who is, in any way, aggrieved by the appointment made by the Management of the Head or Assistant Head of his School may make an appeal to the Director within thirty days from the date of such appointment. He shall also endorse a copy of his appeal addressed to the Director, to the Management of his school for its information. The Director may entertain an appeal after the expiry of the said period of thirty days if he is satisfied that the appellant had sufficient cause for not preferring the appeal within such period. The Director or his representative, not below the rank of Joint Director of Education, may decide the appeal after giving hearing to the parties concerned and pass such order on the appeal as he deems fit and forward a copy thereof to the parties concerned i.e. the teacher concerned; and the management by Registered post A.D."

"(e) The Teacher/Management, as the case may be, that is, in any way, aggrieved by the decision of the Director may make an appeal to Government within thirty days from the date of receipt of the said decision and also forward a copy of the said appeal to the other party i.e. the Management or the teacher as the case may be for information. The decision of Government on such appeal shall be final and binding on both the parties."

8. Clause (d) of rule 61.2 empowers the Director or his representative not below rank of Joint Director of Education to decide the appeal after giving hearing to the parties concerned and pass the order on the appeal. In pursuant to this provision it appears that the appeal filed by the petitioner was heard by the Joint Director and allowed by his order dated 8th January, 1982. The Joint Director has given detail reasons as to how appointments of respondent Nos. 3 and 4 as the Head Master, denying the right of the petitioner, were wrong and illegal having regard to their placing in the seniority list and the procedure of the appointment as Head laid down under rule 61.1 and 61.2 of the code. The Joint Director has set aside the appointments of respondent Nos. 3 and 4 by his order dated 8th January, 1982. Admittedly, no appeal was filed by respondent Nos. 3 or 4 within a period of 30 days as contemplated under rule 61.2(d). The only explanation offered by respondent Nos. 3 and 4 in affidavits for not preferring the appeal was that they had challenged the order of the Joint Director in appeal to the School Tribunal. The School Tribunal, by its Judgment and Order dated 23rd November, 1994, dismissed the appeal for want of jurisdiction to entertain the appeal. No explanation for further delay is offered. It is averred in the affidavit that after the decision of the Tribunal, the respondents Nos. 3 and 4 approached the Government which gave certain directions to the respondent No. 5. It is further stated that in pursuant to the directions of the Government, respondent No. 5 by letter dated 17-6-1985 informed the respondent No. 3 that the appeal filed by the petitioner will be heard de novo and he was called upon to furnish his written statement in support of his contention. Similar stand has been taken by respondent No. 4 in his affidavit.

9. The perusal of order dated 8th January, 1991 passed by the Director, purportedly reviewing the earlier order passed by the Joint Director dated 8th January, 1982, shows that not only the order passed on 8th January, 1982 in the petitioners appeal was reviewed but the other appeals filed by one Jadhav on 23rd April, 1981 and one Shri Vasant Patil on 22nd December, 1981 were also heard and disposed of by the common order, probably because in all proceedings same institution was involved, as also the issue of seniority and appointment of Head Master. As a matter of fact neither there is reference in the impugned order to the directions issued by the State Government to respondent No. 5 to hear the appeal of the petitioner de novo nor the respondents have placed so called directions on record. The review came to be allowed, on two grounds. Firstly, that the respondent Nos. 3 and 4 were appointed since the petitioner relinquished his claim to the post of Head Master on his own accord. Secondly, there was a delay in filing the appeal by the petitioner. At the outset, we do not see any provision in the Secondary School Code empowering the Director to review his own order passed under Rule 61.2(d), muchless after gross delay of 9 years of passing of the order by Joint Director on 8th January, 1982. The only remedy available to the aggrieved party against the order passed under Rule 61.2(d) is to prefer appeal before the Government that too within 30 days. In our view, the Director has no power to review his own order passed under Rule 61.2(d). Respondents Nos. 3 and 4 did not appear to have filed appeal under Clause (e) of Rule 61.2 of Secondary School Code, inasmuch as there is no reference to the filing of an appeal before the State Government either in the affidavit in reply or in the impugned order dated 8th January, 1991. In fact, the only reference, for re-opening and/or reviewing the order passed by the Joint Director dated 8th January, 1982, made in the impugned order is to the letter written by the petitioner on 28th November, 1985, with no further details thereto. Thus, we have no hesitation in holding that the impugned order dated 8th January, 1991, is without jurisdiction. In the circumstances, the impugned order deserves to be quashed and set aside not only on the ground of jurisdiction but also on the ground of gross delay.

10. In the result, the impugned order dated 8th January, 1991 passed by the respondent No. 5 is quashed and set aside. The respondent No. 1 is directed to implement and execute the order of Joint Director dated 8th January, 1982 (Exhibit "F') within a period of eight weeks from the date of production of this order. Needless, to say that this order will not affect respondent No. 3 since he has already retired during the pendency of the writ petition. No costs.