Bombay High Court
Satyendra Chandra Chatterjee vs Bengali Education Society Thr. ... on 7 December, 2021
Bench: A.S. Chandurkar, G. A. Sanap
1 LPA30.14(J)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
LETTERS PATENT APPEAL NO. 30 OF 2014 IN
WRIT PETITION NO. 3805/1999(D)
APPELLANT : Satyendra Chandra Chatterjee,
Aged about ___ years, Occ. Assistant Teacher,
R/o. Sadar Bazar, Gandhi Chowk,
Nagpur.
Versus
RESPONDENTS 1: Bengali Education Society, through its
Secretary, Shri Amal Kumar Rudra,
aged about 53 years, Occ. Service,
Having its Office at Dhantoli, Nagpur-12.
2. Smt. Madhumati Bhelwa,
Occ. Head Mistress, Bengali High School,
Dhantoli, Nagpur-12.
3. Presiding Officer, School Tribunal,
Nagpur, Administrative Building No.1.
Civil Lines, Nagpur.
4. Education Officer (Secondary),
Zilla Parishad, Nagpur.
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S/Shri A.M.Ghare and A.A.Kathane, Advocates for petitioner.
None for respondents-Management.
Mrs. S.S.Jachak, Assistant Government Pleader for respondent no.4.
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CORAM : A.S.CHANDURKAR and G.A.SANAP, JJ.
DATED : DECEMBER 07, 2021.
ORAL JUDGMENT (PER A.S.CHANDURKAR, J.)
The challenge raised in this Letters Patent Appeal is to the judgment of
the learned Single Judge in Writ Petition No. 3805/1999 dated 08.02.2012. By the
2 LPA30.14(J)
said judgment the writ petition preferred by the respondent no.1 herein challenging
the judgment of the School Tribunal, Nagpur dated 02.09.1999 has been allowed by
dismissing the appeal preferred by the appellant before the School Tribunal.
2. The facts relevant are that the appellant was engaged on 20.08.1979
being duly qualified as an 'Assistant Teacher' at the school which is being conducted
by the respondent no.1. He was thereafter promoted to the High School in August
1989. Since the post of 'Head Master' became vacant, the Management sought to fill
in the same by appointing one Shri M. K. Barat. The Management proceeded on the
basis that it being a linguistic minority, it was entitled to appoint a 'Head' of its own
choice. According to the appellant, he being the senior most 'Assistant Teacher' who
was fit for promotion, the appointment of Shri Barat on the post of 'Head Master'
was illegal. The appellant therefore filed an appeal under Section 9 of the
Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act,
1977 (for short, 'the said Act'). In the said appeal it was specifically pleaded in
paragraph 2 that the Management did not satisfy the requirements of Article 30 of
the Constitution of India for the reason that it was not established by the people
from the minority community but was being merely administered by them.
3. The Management filed its reply before the School Tribunal and took the
stand that it had the necessary linguistic minority status by referring the permission
granted by the Deputy Director of Education on 25.04.1988 notifying the post of
'Head" in that regard. By virtue of such communication the appointment of
Shri Barat who was an outsider was supported.
3 LPA30.14(J)
4. The learned Presiding Officer of the School Tribunal considered the
respective pleadings of the parties. He then observed that as required by Section
3(2) of the said Act name of Shri Barat had not been notified by the Management to
the Deputy Director of Education on the basis of which he could have been given an
order of appointment. Since it was found that the provisions of Section 3(2) of the
said Act was not complied with, the learned Presiding Officer held that the appellant
being the seniormost 'Assistant Teacher', he was entitled to be promoted on the post
of 'Head Master'. Accordingly the appeal preferred by the appellant was allowed on
02.09.1999.
5. The Management being aggrieved by the aforesaid adjudication
challenged the aforesaid judgment of the School Tribunal in Writ Petition
No.3805/1999. It relied upon the provisions of Section 3(2) of the said Act as well
as the communication dated 25.04.1988 to support the appointment of Shri Barat as
'Head Master'. After finding that the post of 'Head' along with three other posts had
been notified as required by Section 3(2) of the said Act, the learned Single Judge
found that the School Tribunal was not justified in allowing the appeal preferred by
the appellant. On that count, the judgment of the School Tribunal was set aside and
the appeal preferred by the appellant came to be dismissed.
Being aggrieved, the aforesaid adjudication has been challenged in the
present Letters Patent Appeal.
6. Shri A.M.Ghare alongwith Shri A.A.Kathane, learned counsel for the
appellant made twofold submissions. It was urged that in view of the provisions of
4 LPA30.14(J)
Article 30 of the Constitution of India and by virtue of the law laid down in S.Azeez
Basha and anr. vs. The Union of India and ors. AIR 1968 SC 662 it was necessary for
an institution to be established and administered by persons from minority
community or language. It was submitted that the institution was not established by
any person belonging to the linguistic minority but it was only being administered
by a linguistic minority. Since the Management did not satisfy the requirements of
Article 30 of the Constitution of India, it was not entitled to rely upon the provisions
of Section 3(2) of the said Act to bypass the claim of the appellant. Though this
specific plea was raised by the appellant in paragraph 2 of the appeal memo, the
same has not been duly considered. This caused prejudice to the case of the
appellant. It was then submitted that even if it was assumed that the Management
was a linguistic minority, the provisions of Section 3(2) of the said Act had not been
followed. The said provision required notification of names of the 'Head" and three
other persons to whom the provisions of the said Act would not apply in the matter
of recruitment. The communication dated 25.04.1988 referred to notifying the post
of 'Head" and three other posts, but did not notify any name. Since the provisions of
Section 3(2) were clear, the communication dated 25.04.1988 could not be
considered to be in compliance with the provisions of Section 3(2) of the said Act.
In that regard, reference was made to the decisions in Gunvantlal Kantilal Khamar
vs. State of Maharashtra and Ors. 1993 I CLR 295 and St. Theresa's High School and
anr. vs. State of Maharashtra through the Dy. Director of Education and Ors.
1997(2) Mh. L. J. 713. On these counts, it was submitted that the judgment of the
learned Single Judge was liable to be set aside and the judgment of the School
Tribunal ought to be restored.
5 LPA30.14(J)
There has been no appearance on behalf of the Management despite due
service.
7. The learned Assistant Government Pleader in this backdrop was directed
to obtain instructions from the respondent no.4-Education Officer (Secondary), Zilla
Parishad, Nagpur as to whether the Management had been recognised as minority
institution for the purposes of applicability of Section 3(2) of the said Act. On
instructions from the Education Officer (Secondary), a Certificate dated 08.02.2012
issued by the Competent Authority and Additional Chief Secretary, Minority
Development Department, Maharashtra State, Mantralaya, Mumbai was produced.
The same is taken on record and marked 'A' for identification. As per this Certificate,
the Management on 19.05.2011 had moved an application seeking recognition as a
linguistic minority. After examining the matter, such linguistic minority status was
granted by the aforesaid Certificate on 08.02.2012 to the Management.
8. We have considered the contentions raised by the learned counsel for the
appellant and we have given due consideration to the material available on record.
The question as to whether the Management is a linguistic minority is the basic
question that goes to the root of the present proceedings. While the appellant claims
his entitlement to the post of 'Head Master' on the basis of his seniority, the
Management has relied upon the provisions of Section 3(2) of the said Act to urge
that being a linguistic minority institution, it is entitled to appoint a 'Head' of its
choice. In paragraph 2 of the memorandum of appeal, the appellant has specifically
asserted that the Management is not recognised as a linguistic minority. In reply the
Management has stated that it has been granted such linguistic minority status
6 LPA30.14(J)
and has relied upon the provisions of Section 3(2) of the said Act. We find that
except for communication dated 25.04.1988 issued by the Deputy Director of
Education notifying the post of 'Head' and three other posts, there is no material on
record to indicate as to whether such linguistic minority status was granted to the
Management. There is no clear finding recorded either by the Presiding Officer or by
the learned Single Judge while adjudicating the proceedings and the dispute has
proceeded only on the basis of the communication dated 25.04.1988. In the light of
the fact that the Education Officer has placed on record the Certificate dated
08.02.2012 indicating grant of linguistic minority status from that date, we feel that
this aspect which goes to the root of the matter ought to be adjudicated before the
School Tribunal. This is for the reason that the Management despite service has not
chosen to contest the present appeal. We therefore do not find it appropriate to base
our conclusion on the Certificate dated 08.02.2012 in the absence of the
Management.
9. The other contention as to whether the names as contemplated under
Section 3(2) of the said Act have to be notified to the Deputy Director of Education
or the post of 'Head' and other three posts have to be notified would depend upon
the answer to the first question as to whether the Management enjoyed the linguistic
minority status. The learned counsel for the appellant submitted that on a plain
reading of Section 3(2) of the said Act what is required to be notified are the names
and not the posts in question. On the contrary, the communication dated
25.04.1988 indicates the posts being notified. We however do not find it necessary
at this stage to go into this aspect as the same could be raised before the School
7 LPA30.14(J)
Tribunal for its adjudication.
10. In the light of aforesaid, we find that a fresh adjudication of the appeal is
called for especially in the light of the Certificate dated 08.02.2012 issued by the
Competent Authority. Since remand is warranted, in these facts the judgment of the
School Tribunal dated 02.09.1999 as well as the judgment of the learned Single
Judge dated 08.02.2012 in Writ Petition No. 3805/1999 are set aside. The appeal
preferred by the appellant under Section 9 of the said Act is restored before the
School Tribunal for afresh adjudication in accordance with law.
The parties are at liberty to amend their pleadings and place additional
material on record in the said appeal. Since the appeal is of the year 1996, the
School Tribunal shall decide the same as expeditiously as possible and preferably by
the end of April 2022. All questions on merits are kept open. The School Tribunal
shall not be influenced by any observation made in this judgment. The letters patent
appeal is allowed in aforesaid terms. There shall be no orders as to costs.
(G.A.SANAP, J.) (A.S.CHANDURKAR, J.)
Andurkar..
Digitally Signed byJAYANT S
ANDURKAR
Personal Assistant
Signing Date:
08.12.2021 17:51
