Bombay High Court

Shaikh Azimoddin Zainoddin vs The State Of Maharashtra And ... on 26 August, 2022

Bench: Mangesh S. Patil, Sandeep V. Marne

                                   .. 1 ..                         WP.3000.2021


             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

                        WRIT PETITION NO.3000 OF 2021

 Shaikh Azimoddin Zainoddin
 Age : 54 years, Occu : service as I/c. H.M.
 R/o.Anglo Urdu High School,
 Bhadgaon, Tq. Bhadgaon,
 Dist. Jalgaon                                         .. Petitioner

         Versus

1.       The State of Maharashtra
         through its Principal Secretary
         School Education Department,
         Mantralaya, Mumbai.

2.       The Education Officer (Secondary)
         Zilha Parishad, Jalgaon
         Taluka & Dist. Jalgaon

3.       The Bhadgaon Taluka Urdu Education
         Society, Bhadgaon
         Office : Zakatdar Gali, Bhadgaon
         Tq. Bhadgaon, Dist. Jalgaon,
         Through its Secretary

4.       Mirza Nazim Beg Hakim Beg
         R/o. Anglo Urdu High School,
         Jalali Mohalla, Bhadgaon,
         Tq. Bhadgaon, Dist. Jalgaon                   .. Respondents
                                    ...

Mr. Shailesh Brahme & Mr. A.R. Syed, Advocate for the Petitioner
Mr. K.N. Lokhande, AGP for Respondent Nos.1 & 2
Mr. S.S. Kazi and Mr. Tarek Mobin H. Shaikh, Advocate for
Respondent No.3
Mr. P.D. Bachate h/f. Mr. H.P. Randhir, advocate for respondent no.4 -
Caveator
                                   ...




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                                    .. 2 ..                          WP.3000.2021



                                    CORAM :      MANGESH S. PATIL &
                                                 SANDEEP V. MARNE, JJ.

                                    RESERVED ON   :             19-08-2022
                                    PRONOUNCED ON :             26-08-2022

JUDGMENT (PER SANDEEP V. MARNE, J.) :

. Heard. Rule. It is made returnable forthwith. Learned

AGP Mr. K.N. Lokhande waives service for Respondent Nos.1 & 2,

learned advocate Mr. S.S. Kazi and learned advocate Mr. Tarek Mobin

H. Shaikh waive service for Respondent No.3, and learned advocate

Mr. P.D. Bachate h/f. Mr. H.P. Randhir waives service for respondent

no.4. At the joint request of learned advocates for the petitioner and

the learned AGPs, the matter is heard finally at the admission stage.

2. The issue involved in the present case is, whether it is

mandatory to follow rule of seniority while appointing a Head Master

in a school managed by a minority educational institution.

3. The issue arises on account of competing claims of the

petitioner and respondent no.4 to the post of Head Master in the

school managed by respondent no.3. It is common ground that the

school managed by respondent no.3 is a minority educational

institution. It is also undisputed that the petitioner is senior to

.. 3 .. WP.3000.2021

respondent no.4 in the seniority list. The petitioner is aggrieved by

the grant of approval to the appointment of respondent no.4 on the

post of Head Master ignoring his claim.

4. The facts of the case, in brief, are as under:

. In the seniority list of Anglo Urdu High School Bhadgaon

/ Pachora managed by respondent no.3, for the year 2017-18 the

name of the petitioner figured at Serial no.4, whereas the name of

respondent no.4 figured at serial no.6. The petitioner claimed that

a resolution was passed on 17.05.2020 by respondent no.3 for his

appointment as Head Master and accordingly an order was issued on

18.05.2020 appointing him as Head Master on permanent basis. He

claims that a proposal was sent by the management to the Education

Officer on 19.05.2020 and an approval was granted by order dated

17.07.2020 for his appointment as in-charge Principal for a period

upto 31-08-2020.

5. While the petitioner was expecting approval for regular

appointment as permanent Head Master, order came to be issued on

03.06.2020 by Education Officer granting approval for regular

appointment of respondent no.6 as Head Master with effect from

01.06.2020. This order dated 03.06.2020 has been challenged in the

.. 4 .. WP.3000.2021

present petition.

6. It appears that one Mr. Amanulla Khan Ahmed Khan

claiming to be secretary of respondent no.3 Management protested

against the approval order dated 03.06.2020 by submitting complaint

before the Education Officer on 29.07.2020. Acting on the said

complaint, the Education Officer initially stayed the decision dated

03.06.2020 by order dated 30.07.2020, but later on vacated the stay

by decision dated 21.11.2021 and held the decision dated 03.06.2020

to be valid. Therefore, the petitioner is also aggrieved by the decision

dated 21.01.2021.

7. The claim of the petitioner is resisted by respondent

nos.3 and 4 by filing their respective replies inter alia contending that

respondent no.3 is a minority educational institution and therefore, it

is exempted from application of the provisions of the Maharashtra

Employees of Private Schools (Conditions of Service) Regulation Act,

1977 (hereinafter referred to as the 'Act of 1977'). It is, therefore,

contended that the rule of seniority need not be followed by

respondent no.3 while appointing a Head Master.

8. Appearing for the petitioner, Mr. Brahme contended that

.. 5 .. WP.3000.2021

the privilege conferred upon a minority educational institution under

the provisions of Section 3 of the Act of 1977 is not absolute. He

submitted that the exception provided for by Section 3 (2) applies

only to 'recruitment' and not to 'promotion'. Relying on Rule 3 (1) of

MEPS Rules, 1981 (hereinafter referred to as 'the Rules of 1981') he

submitted that what is effected by respondent nos.2 and 3 is

'promotion' and not a 'recruitment'. He further contended that the

requisite condition of notification of names by the management to the

Director or Deputy Director as provided for under Section 3 (2) of Act

of 1977 has not been followed and therefore, the exemption under

Section 3 (2) cannot be claimed by respondent nos.3 and 4.

9. Per contra, Mr. Kazi appearing for respondent no.3 -

Management submitted that full autonomy is enjoyed by a minority

educational institution and therefore, the rule of seniority need not

be followed for appointment of a Head Master. He vehemently

contended that grant of approval as in-charge Head Master to the

petitioner was an outcome of unauthorized actions of Mr. Amanulla

Khan Ahmed Khan, who had ceased to be a secretary of respondent

no.3. He submitted that Mr. Amanulla Khan Ahmed Khan was

already removed from the post of secretary on 01.08.2019, despite

which he created documents in an unauthorized manner for sending

.. 6 .. WP.3000.2021

a proposal for appointment of petitioner as Head Master. He

submitted that there was no resolution passed by respondent no.3 -

Management for petitioner's appointment as Head Master. Copy of

proceeding book (Exh.'B') relied upon by the petitioner was created

by Mr. Amanulla Khan Ahmed Khan on 17.05.2020 i.e. after his

removal from the post of secretary on 01.08.2019. He submitted that

the order of appointment and the proposal in respect of the petitioner

were also unauthorizedly signed by Mr. Amanulla Khan Ahmed Khan.

10. Mr. Tarek Mobin H. Shaikh has also surprisingly filed

vakalatnama on behalf of respondent no.3 - Management and claims

to have been authorized by Mr. Amanulla Khan Ahmed Khan to

represent respondent no.3 - Management. He attempted to

demonstrate before us as to how he continued to hold the post of

Secretary while issuing appointment order and proposal in respect of

the petitioner.

11. Mr. Bachate appearing for respondent no.4 supported the

submissions of Mr. Kazi.

12. In support of their contention that a minority

educational institution enjoys full autonomy in the matter of

.. 7 .. WP.3000.2021

appointment of Head Master, Mr. Kazi and Mr. Bachate relied upon

following decisions:

(i) The Ahmedabad St. Xavier's College Society and another Vs. State of Gujarat and another (1974) 1 SCC 717

(ii) Secy., Malankara Syrian Catholic College Vs. T. Jose and Others (2007) 1 SCC 386.

(iii) N. Ammad Vs. Manager, Emjay High School and Others (1998) 6 SCC 674.

(iv) Board of Secondary Education and Teachers Training Vs. Jt. Director of Public Instructions, Sagar and Others (1998) 8 SCC 555.

(v) St. Francis De Sales Education Society, Nagpur and another Vs. State of Maharashtra and another [2001 (3) Mh.L.J. 261].

13. Rival contentions of the parties now fall for our

consideration.

14. The entire thrust of arguments of Mr. Brahme is on the

provisions of Rule - 3 of the Rules of 1981. No doubt, Rule-3 provides

for appointment of senior-most teacher as the head of the school. It

is also undisputed that the petitioner is senior to respondent no.4.

However, the dispute has arisen on account of minority status of

respondent no.3 - Management.

.. 8 .. WP.3000.2021

15. Disputes existing in the school management have also

come to the fore during the course of submissions of rival parties.

Though the learned advocates for the parties have made extensive

submissions about who was entitled to send proposal for

appointment of Head Master, considering the ultimate order that we

propose to pass in the present petition, we do not wish to go into the

merits of the submissions with regard to the disputes in the

management.

16. We, therefore, proceed to decide the issue as to whether

it is mandatory for a school managed by the minority educational

institution to follow seniority rules as envisaged in Section 3 of the

Act of 1977 while making an appointment on the post of Head

Master.

Section 3 of the Act of 1977 provides as under:

"3. Application of Act. - (1) The provisions of this Act shall apply to all private schools in the State of Maharashtra, whether receiving any grant-in-aid from the State Government or not.

(2) Notwithstanding anything contained in sub-section (1), the provisions of this Act shall not apply to the recruitment [of the Head of a minority school and] any other persons (not exceeding three) who are employed in such school and whose names are notified by the Management to [the Director or, as the case may be] the Deputy Director for this

.. 9 .. WP.3000.2021

purpose."

17. Mr. Brahme sought to exclude petitioner's alleged

appointment as Head Master from the purview of the provisions of

Section 3 (2) on two counts, (i) what is effected is his 'promotion'

and not 'recruitment' and (ii) mandatory requirement of notification

of names by the management to the Directors / Deputy Director has

not been followed.

18. We are not impressed by the first submission of

Mr. Brahme that the provisions of the Act of 1977 applies only to

direct recruitment and not to promotion of Head Master. His

submission is based on provisions of Sub-rule (5) of Rule 3 of the

Rules of 1981 which provides that in the event of non-availability of a

suitable teacher possessing the qualification laid down in sub rules

(1) to (4), the management can advertise the post and select and

appoint a person possessing the requisite qualification and

experience. He submitted that what is envisaged under Sub-rule (5)

of Rule 3 is a direct recruitment, which is opposed to a promotion

under sub-Rule (1) and (2) of Rule 3. However, perusal of provisions

of sub-Rule (1) and (2) of Rule-3 shows that the word 'appointment'

has been used.

.. 10 .. WP.3000.2021

19. Thus, the movement of a teacher to the post of a Head

Master has been termed as an 'appointment' under Sub-rule (1) for

primary school and Sub-rule (2) for secondary school. It is, therefore,

difficult to accept the distinction sought to be created by Mr. Brahme

for escaping the provisions of Sub-section (2) of Section 3 of the Act

of 1977 to the present case. In our opinion, Sub-section (2) of

Section 3 uses the word 'recruitment' which would cover

appointment of existing teacher under Sub-rules (1) and (2) as well

as appointment of an outsider under Sub-rule (5) of Rule 3 of the

Rules of 1981. Therefore, we reject the contention of Mr. Brahme.

20. Thus, the position that emerges is that for a minority

educational institute like respondent no.3 provisions of Act of 1977

would not apply for appointment as head of minority school. The

Rules of 1981 have been enacted under Section 16 of the Act of 1977

and therefore, even the Rules of 1981 would have no application for

the purpose of appointment of head of minority school.

21. The autonomy enjoyed by the minority educational

institution in the matter of appointment of teaching and

non-teaching staff has been repeatedly reiterated by the Apex Court

.. 11 .. WP.3000.2021

in catena of judgments:

(i) In the nine Judge Bench judgment in the case of The

Ahmedabad St. Xavier's College Society (supra), the issue of

applicability of provisions of Section 33A of the Gujarat University

Act, 1949 to minority educational institutes was involved. Section

33A (1)(a) provided that every college shall be under the

management of a governing body which shall include the Principal of

the college, a representative of the University nominated by the Vice-

Chancellor, and three representatives of the teachers of the college

and at least one representative each of the members of the non-

teaching staff and the students of the college. The Apex Court held

that the said provision overreached the right of religious minorities to

administer educational institutions of their choice. In para - 182 of

the judgment the Apex Court held as under:

"the right to choose the principal and to have the teaching conducted by teachers appointed by the management after an overall assessment of their outlook and philosophy is perhaps the most important facet of the right to administer an educational institution."

(ii) In Secy., Malankara Syrian Catholic College (supra) the Apex

Court held in para - 29 as under:

"29. Section 57(3) of the Act provides that the

.. 12 .. WP.3000.2021

post of Principal when filled by promotion is to be made on the basis of seniority-cum-fitness. Section 57(3) trammels the right of the management to take note of merit of the candidate or the outlook and philosophy of the candidate which will determine whether he is supportive of the objects of the institution. Such a provision clearly interferes with the right of the minority management to have a person of their choice as head of the institution and thus violates Article 30(1). Section 57(3) of the Act cannot therefore apply to minority run educational institutions even if they are aided."

(iii) In N. Ammad (supra) the Apex Court held in para - 28 as

under:

"28. Thus the management's right to choose a qualified person as the Headmaster of the school is well insulated by the protective cover of Article 30(1) of the Constitution and it cannot be chiselled out through any legislative act or executive rule except for fixing up the qualifications and conditions of service for the post. Any such statutory or executive fiat would be violative of the fundamental right enshrined in the aforesaid article and would hence be void."

(iv) In Board of Secondary Education and Teachers Training

(supra) the Apex Court held in para - 3 of the judgment that in the

matter of appointment of the Principal, the management of a

minority educational institution has a choice.

(v) In St. Francis De Sales Education Society, Nagpur

(supra) Full Bench of this Court held that minority educational

institution cannot be directed to appoint teachers or other staff

.. 13 .. WP.3000.2021

on the basis of reservation policy laid down by the State under

Rules 9 (7) to 9 (10) of the Rules of 1981.

22. Thus, it has been consistently held that a minority

educational institution has right to appoint head of the school