Bhikku Mahapanth vs Deputy Director Of Education And ...
2006 Latest Caselaw 214 Bom

JUDGMENT

D.D. Sinha, J.

1. D.D. Sinha, J. : Heard Shri Malode, learned Counsel for the petitioner, and Shri Loney, learned Assistant Government Pleader for the respondent Nos. 1, 2 and 5.

2. The petition is directed against the communication dated 12-7-1995 addressed to the respondent No. 3 by the Deputy Director of Education whereby it was informed that appointment of the petitioner on the post of Head Master made by the respondent No. 3 Management was de hors of the procedure prescribed in Rule 3(l)(b), 3(2) and 3(5) of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 and, therefore, same may be cancelled in view of Rule 3(6) of the said Rules of 1981.

3. Shri Malode, learned Counsel for the petitioner, states that appointment of the petitioner on the post of Head Master was made on 20-9-1990. It is submitted that since there was no other candidate available in the School with the teaching experience mentioned in Clause (b) of Sub-rule (1) of Rule 3 of the Rules of 1981, the respondent-Management appointed the petitioner, who was duly qualified at the relevant time as per qualification mentioned in Clause (b) of Sub-rule (1) of Rule 3 of the Rules of 1981. It is contended that since petitioner was not from the teaching staff of the School, Sub-rule (2) of Rule 3 is not attracted and, therefore, appointment of the petitioner cannot be said to be inconsistent with the said Rule. It is further contended that similar is the situation so far as Sub-rule (5) of Rule 3 is concerned and, therefore, impugned communication is bad in law and cannot be sustained in law.

4. Shri Loney, learned Assistant Government Pleader for the respondent Nos. 1, 2 and 5, has supported the impugned communication and stated that appointment of the petitioner is inconsistent with the rules mentioned in the impugned communication and, therefore, respondent Management was rightly asked to cancel the appointment of the petitioner in view of provisions of Rule 3(6) of the Rules of 1981.

5. We have considered the contention of the learned Counsel for the parties and perused the impugned communication dated 12-7-1995 as well as Rule 3 of the Rules of 1981. The contention canvassed by the petitioner that in the instant case, Sub-rule (2) of Rule 3 is not attracted is completely misconceived. Sub-rule (2) of Rule 3 stipulates that in the case of appointment to the post of Head of a Secondary School including night School or a Junior College of Education, if there is no person with the teaching experience mentioned in Clause (b) of Sub-rule (1) available and if Management desires to appoint a person from the teaching staff of the School, who does not possess the requisite teaching experience mentioned in Clause (b) of Sub-rule (1), the Management shall apply to the Deputy Director for relaxing the requirement. The Rule further stipulates that the Deputy Director may after recording reasons in writing, grant or refuse such relaxation. The Rule further specifically provides that in such situation, the appointment shall not be made without obtaining the previous approval of the Deputy Director of Education.

6. The plain reading of the above referred Rule 3(2) of the Rules of 1981 makes it evident that if appointment is required to be made by the Management in the contingency mentioned in Sub-rule (2), such appointment, in any eventuality, shall not be made without prior approval of the Deputy Director of Education. In the instant case, appointment of the petitioner was made by the Management since there was no person with the teaching experience available in the School as required by Clause (b) of Rule 3(1) and, therefore, it was incumbent on the respondent Management to seek prior approval of the Deputy Director of Education as required under Sub-rule (2) of Rule 3 of the Rules of 1981. Failure to take prior approval undoubtedly resulted in vitiating appointment of the petitioner as Head Master. The contention of the learned Counsel for the petitioner that the petitioner was not from the same School does not affect the force of Sub-rule (2) of Rule 3 of the Rules of 1981 and, therefore, the said contention of the learned Counsel for the petitioner is misconceived.

7. Similarly, Sub-rule (5) of Rule 3 of the Rules of 1981 is also attracted in the present case. Clause (a) thereof contemplates that if a suitable Teacher possessing qualifications laid down in the foregoing provisions of this rule is not available to fill up the post of Head of a School, the Management shall, with the prior permission of the Deputy Director, advertise the post and select and appoint a person possession requisite qualifications and experience. Even as per Clause (a) of Sub-rule (5) of Rule 3, if appointment is required to be made in the contingency mentioned therein, the Management is required to obtain prior permission of the Deputy Director of Education to advertise the post and select and appoint a person possessing the requisite qualifications and experience, pursuant to the said advertisement. In the instant case, undoubtedly no such permission was obtained by the respondent-Management from the Deputy Director of Education while appointing petitioner as Head Master on 20-9-1990 and, therefore, appointment of the petitioner is de hors of the said provision.

8. In the backdrop of the above referred facts, it is evident that appointment of the petitioner is inconsistent with the procedure of appointment mentioned in Sub-rule (2) of Rule 3 and Clause (a) of Sub-rule (5) of Rule 3 of the Rules of 1981 and, therefore, Deputy Director of Education has rightly issued the impugned communication in view of Sub-rule (6) of Rule 3 of the Rules of 1981. In the circumstances, no case is made out by the petitioner for interference. The petition is dismissed. Rule is discharged. No order as to costs.