Smt. Malik Khairunissa vs Anjuman Riaz-Ul-Islam High ...
2001 Latest Caselaw 303 Bom

ORDER

R. J. Kochar, J.

1. The Petitioner is aggrieved by the Judgment and Order dated 17.10.1997 passed by the School Tribunal at Mumbai in Appeal No. Bom. 48/1993 filed by the Petitioner complaining against the Respondent Management that she was superseded illegally by the appointment of Respondent No. 2 as the Head of the School. According to the Petitioner, she was lawfully entitled to be appointed as the Head of the School, as she was not only senior in service but also eligible possessing the prescribed qualifications i.e. B.A., B.Ed, and requisite experience in teaching in the School. According to the Petitioner, the Respondent No. 2, who was appointed by the Respondent No. 1 Management by showing favouritism as she was not senior to her in service and she did not possess the requisite eligibility in qualifications and also in teaching experience in accordance with the rules framed under the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977.

2. According to Shri Bukhari, the learned counsel appearing for both, the Respondent No. 1 Management and also the Respondent No. 2 the appointee, that the Respondent No. 1 Management is a School enjoying the status of minority school established and administered by a minority having the right to do so under Clause 1 of Article 30 of the Constitution of India. Shri Bukhari has substantiated his submission by order passed by the Dy. Director of Education recognising the school as a minority school and approving the names of four persons employed by the management as permitted under Section 3(2) of the Act. Amongst the four persons one was the Respondent No. 2, who was appointed as the Head of the School. It appears that the Respondent No. 1 had filed an affidavit to swear on oath that the school was registered under the Societies Registration Act and also under the Public Trusts Act as a minority school as contemplated under Article 30(1) of the Conslitutton of India and within the meaning of section 2(13) of the Act. Shri Bukhari has pointed out that the Dy. Director, Education had sanctioned the appointment of the Respondent No. 2 as the Head of the School after relaxing the prescribed condition of experience after the degree of Bachelor of Education (B.Ed). Shri Bukhari has pointed out that the Respondent No. 2 was appointed in 1979 as an Asstt. Teacher while the Petitioner was appointed in the year 1981 as an Asstt. Teacher. He further pointed out that the Respondent No. 2 the appointee possessed more than 10 years total experience though she did not possess requisite experience of two years after completion of her B.Ed. Degree. She had completed her B.E.d in April. 1991 and her

appointment as the Head of the School was approved by the Dy. Director fn January, 1992 after relaxing this condition in accordance with and as permissible under the law. Shri Bukhari pointed out that initially the school was unaided school in the year 1976. It became aided school in the year 1982. The Respondent No. 2 has been in the employment of the School from the year 1979 and she has continuously worked as an Asstt. Teacher and had therefore acquired total experience from 1979 onwards. In view of this experience and required qualifications possessed by her the Management had appointed her as the Head of the School within its own rights conferred on the Management under Section 3(2) of the Act. This appointment was duly approved by the appropriate authorities, and therefore, there was no substance in the challenge of the Petitioner, says the learned counsel. Shri Mane, the learned A.G.P. for the respondent Authorities, submitted that reasons for approval of the appointment of the Respondent No. 2 were separately recorded and the order of approval was communicated to the Management. Shri Bukhari has pointed out that the minority status of the school has not been challenged by the Petitioner at any time, and therefore, she cannot challenge that status in this proceeding in the High Court for the first time. Shri Bukhari further pointed out that in a Writ Petition No. 328 of 1992 between the same parties the point of status of minority school was considered and determined, and therefore, it was not open for the Petitioner to raise it once again before this Court.

3. The main thrust of the attack on the appointment of Respondent No. 2 by the Petitioner was that though the school was a minority school the appointment of the Head of the School must be in accordance with the rules prescribed under the Act and the Rules. Shri Vasudeo for the Petitioner has vehemently submitted that even while exercising the discretion to appoint or recruit a person of Its choice the Management of the minority school cannot appoint any one arbitrarily as a Head of the School under Section 3(2) of the Act and that such appointee must possess the required qualifications and experience as prescribed under the rules. According to the learned Advocate, the right of recruitment of four persons is left to the discretion of the management and even then such appointment cannot be made arbitrarily and on the mere whim of the management. If the eligibility criteria for appointment of teachers cannot be ordinarily relaxed in that case the head of the school also must possess the requisite qualifications and experience. Amongst the available qualified teachers either from the in-house candidates or from the open market it would be the privilege of the management to select and appoint any one of them but such selected persons must possess the required qualifications prescribed under the law. says Shri Vasudeo. He has submitted that the Respondent No. 2 did not possess the required teaching experience. He has pointed out that though the Respondent No. 2 was appointed in the year 1979 as Asstt. Teacher. In the year 1982 she was reverted as a Peon and thereafter she was appointed as an Asslt. Teacher on her acquiring B.Ed, in the year 1991. In comparison with the Petitioner's qualifications the learned counsel pointed out that the Petitioner was appointed in the year 1981 as an Asstt. Teacher and she was possessing the Bachelors Degree and also Bachelors Degree in Education

and she possessed five years teaching experience. It may be mentioned at this stage itself that there was absolutely no evidence to show and substantiate the contention on behalf of the petitioner that the Respondent No. 2 was reverted in the year 1982 as a Peon. It appears that the Petitioner has made this baseless and malicious allegation against the Respondent No. 2 without any evidence. Shri Bukhari has very vehemently asserted that the Respondent No. 2 was never reverted to the post of Peon from 1982 but she continued to be employed as an Asstt. Teacher from 1979 onwards. It was the case of the Petitioner that the Respondent No. 2 acquired the requisite Bachelor Degree (B.A.) in April. 1986 and the Degree of B.Ed, in April, 1991 and soon thereafter shewas appointed in January, 1992. It is therefore obvious that she had no teaching experience of two years after B.Ed. These facts are notdisputed. The requisite eligibility of two years' experience after B.Ed, has been relaxed by the Dy. Director of Education after recording his reasons as permissible under the law.

4. According to me. the Respondent No. 2 was senior in service and possessed the requisite educational qualifications on the date of her appointment as the Head of the School. In view of her larger experience as an Asstt. Teacher from 1979 the decision of the Dy. Director of Education to relax the condition of two years' experience after B.Ed, need not be interfered wilh and there is no other reason pointed out by the Petitioner to challenge the exercise of the discretion by the Dy. Director of Education. Shri Bukhari has relied on the following two judgments in support of his case for relaxation of the condition of teaching experience.

Miss Shainda Hasan v. State of Uttar Pradesh &Ors.

H.C. Puttaswamy &Ors. v. The Hon'ble Chief Justice of Karnataka High Court, Bangalore and Ors. :

On the question of minority status of the school the learned counsel has also relied on the Judgment of the Division Bench of this High Court in the case of Gunvantlal Kantilal Khamar v. State of Maharashtra & Ors., In a later Judgment the Supreme Court has held as under in respect of the minority status of a School in the case of N.Ammad v. Manager, Emjay High School & Ors.,

"10. In the light of the scheme of the Act as set out above relating to appointment of Headmaster in a minority school, we have now to consider whether the D.E.O. can compel the management to appoint the appellant as Headmaster of the School. For answering the said question we have to deal with the first contention that, the school could not have claimed any protection as a minority school before 2.8.1994. the date when the Government declared the school as a minority school. The contention, in other words, is that the above declaration of the Government is only prospective.

11. "Minority School" is defined in Section 2(5) of the Act as under :-

"2.(5) 'Minority School' means school of their choice established and administered, or administered, by such minorities as have the right to do so under clause (1) of Article 30 of the Constitution."

12. Counsel for both sides conceded that there is no provision in the Act which enables, the Government to declare a school as a minority school. If so, a school which is otherwise minority school would continue to be so whether the Government declared it as such or not. Declaration by the Government is at best only a recognition of an existing fact. Article 30(1) of the Constitution reads thus ;

"30. [1] All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice."

13. When the Government declared the School as a minority school it has recognised a factual position that the School was established and is being administered by a minority community. The declaration is only an open acceptance of a legal character which should necessarily have existed antecedent to such declaration. Therefore, we are unable to agree with the contention that the school can claim protection only after the Government declared it as a minority school on 2.8.1994."

5. Shri Bukhari has not disputed that even the minority school is bound by the provisions of the Act and Rules except the exemption granted under section 3(2) of the Act in respect of recruitment of four persons which are left to the discretion of the Management. Shri Bukhari had further fairly not disputed that even while selecting such four persons requirement of educational qualifications cannot be dispensed with.

6. Considering the totality of the circumstances in my opinion the Tribunal has not committed any error of law warranting interference by this Court under Article 226 of the Constitution of India. It is not that the Respondent No. 2 appointee did not possess the requisite educational qualifications on the date of her appointment as she was duly qualified, possessing the degree of B.A., B.Ed.. Her total experience as an Asstt. Teacher was from 1979. It is true that after she obtained the Bachelors degree In Education she lacked two years' teaching experience. However, this condition could be relaxed by the Dy. Director of Education after recording his reasons, which he has done. In comparison with the teaching experience of the Petitioner, the Respondent No. 2 has two years' more experience and she was even senior in service to the Petitioner. The Petitioner cannot make a grievance against the discretion exercised by the School Management in favour of the Respondent No. 2 permissible under Section 3(2) of the Act, and such discretion has also been approved by the Appropriate Authority. It cannot be said that decision of the Respondent Management was totally arbitrary or whimsical and that there was any grave miscarriage of justice. It is not that the management had exercised its discretion while appointing the head of the school a person totally unqualified and ineligible candidate. What was done was to relax the condition of two years' teaching experience after the B.Ed, degree acquired by the Respondent No. 2. As observed by the Supreme Court in similar circumstances in the case of Budhi Nath Chaudhary and Ors. v. Abaht Knmar and Ors., the lack of experience at the time of recruitment can be made good and according to me the Respondent No. 2 has made good such condition. The Supreme Court has observed as under :

2 has made good such condition. The Supreme Court has observed as under :

"The selected candidates, who have been appointed, are now in employment as Motor Vehicle Inspectors for over a decade. Now that they have worked in such posts for a long time, necessarily they would have acquired the requisite experience. Lack of experience, if any, at the tirne of recruitment is made good now."

I, therefore, do not find any substance in the Petition which deserves to be dismissed and the same is dismissed. Rule is discharged, no order as to costs. Certified copy is expedited.