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2003 Supreme(Bom) 1204
IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
Vagyani B.B., Dabholkar N.V. Bagga A.S., JJ.
Bhalchandra Bhagwan Kalwade .... Petitioner.
Versus
Education Officer, Z.P., Ahmednagar others.... Respondents.
Writ Petition Nos. 3158 of 1991 2326 of 1994, decided on 16-10-2003.
Advocates appeared :
S.D. Kulkarni, in W.P. No. 3158/1991, for petitioner in W.P. No. 2326/1994, for respondent No. 5.
U.K. Patil, A.G.P., in W.P. No. 3158/1991, for respondents 1, 2 5 in W.P. No. 2326/1994, for respondent Nos. 1 to 3.
S.G. Chapalgaonkar, holding for S.C. Bora, in W.P. No. 3158/1991, for respondent No. 3 in W.P. No. 2326/1994, for respondent No. 4.
S.P. Deshmukh, holding for Mrs. C.S. Deshmukh, in W.P. No. 3158/1991, for respondent No. 4 in W.P. No. 2326/1994, for petitioner.
Headnote:Bombay High Court Appellate Side Rules, 1960 - Chapter I, Rule 7 - Full Bench reference case. - The exception in Rule 3(4) of M.E.Ps. Rules is that a lady teacher must be appointed to post of Head to Girls Secondary School in preference to senior male teacher and this exception do not apply to post of Asstt. Head of a Girls School.
MAH. EMPLOYEES OF PRIVATE SCHOOLS (COND. OF SER.) REGULATION ACT, 1977 - Section 1 - Scope and applicability of the Act. - Rule 3 of MEPS Rules cannot be made applicable to Polytechnic Institutions, which are governed by Pharmacy Act. Under the said Act, specific or requisite qualifi- cations are prescribed for various posts including post of principal.
2. Shri Bhalchandra Bhagwan Kalwade, petitioner in Writ Petition No. 3158 of 1991 was appointed as an Assistant Teacher in Kanya Vidya Mandir High School, Ahmednagar conducted by Nav Vidya Prasarak Mandal. The petitioner was promoted as a Supervisor in June 1979 and his promotion was approved by the Education Officer on 16th October, 1980. By resolution of the Management dated 15-3-1991, the petitioner was further promoted as an Assistant Head Master w.e.f. 30-4-1991 and the petitioner resumed the charge of the said post w.e.f 1st May, 1991. The proposal for approval to the appointment of the petitioner as an Assistant Head Master was sent to the Director of Education, Maharashtra State, Pune who by letter dated 3rd September 1991, rejected the approval. The approval was rejected on the ground that Kanya Vidya Mandir High School was a girls high school and that being so, only a lady teacher should be appointed as an Assistant Head Mistress. The said refusal was based upon Rule 3 read with Rule 5 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules of 1981 (for the purpose of brevity, MEPS Rules).
3. Rules 3 and 5 of the M.E.P.S. Rules, 1981 were interpreted by Division Bench of this Court in the case of (Shobha Nathuji Chahande v. Education Officer, Zilla Parishad, Chandrapur and others)1, 1990(2) Mh.L.J. 1122. It was held therein that under the M.E.P.S. Rules, the requirement of appointment of a lady teacher as a Head Mistress was applicable only for appointment of Head and so far as Assistant Head is concerned, male teacher could be appointed as an Assistant Head. The Division Bench relied upon an earlier judgment of another Division Bench in the case of (Vasant Ambadas Hanchate v. State of Maharashtra and others)2, 1985 Mh.L.J. 699.
4. The view expressed by the Bench about interpretation of Rules 3 and 5 of the M.E.P.S. Rules was acted upon by the State Government and thereafter approval was granted for appointment of the petitioner w.e.f. 1-11-1995. In the meantime, the petitioner had challenged the letter of rejection of approval in Writ Petition No. 3158 of 1991.
5. Mrs. Sudha Pandurang Joshi is the petitioner in Writ Petition No. 2326 of 1994. She being the seniormost lady teacher, was appointed as Assistant Head Mistress in girls high school known as Kanya Vidya Mandir High School. The appointment of the petitioner was approved by the Education Officer (Secondary), Zilla Parishad, Ahmednagar. The appointment of the petitioner was challenged by Bhalchandra Bhagwan Kalwade in Writ Petition No. 3158 of 1991. Nav Vidya Prasarak Mandal, Ahmednagar reverted the petitioner to her original post and Bhalchandra Bhagwan Kalwade was appointed to the post of Assistant Head Master. Feeling aggrieved by the said order, Mrs. Sudha Joshi filed Writ Petition No. 2326 of 1994.
6. Writ Petition No. 3158 of 1991 and Writ Petition No. 2326 of 1994 were placed before Division Bench consisting of Shri B.H. Marlapalle, J. and Shri D.G. Karnik, J. After having considered the judgment of Division Bench in case of Vasant Ambadas Hanchate (cited supra), the Division Bench expressed its inability to agree with the said view which was followed in subsequent judgment in the case of Shobha Chanhande (cited supra). The Division Bench took into consideration the phraseology of Rule 5(2) coupled with section 2(9) of the Maharashtra Employees of Private Schools (Conditions of Service) Act, 1977 (for brevity, M.E.P.S. Act.). It is specifically stated in sub-rule (2) of Rule 5 of the M.E.P.S. Rules that Rule 3 relating to the qualifications and appointment of Head shall mutatis mutandis apply to the post of Assistant Head and Supervisor.
7. Sub-section (9) of section 2 of the M.E.P.S. Act defines the Head of a school. It is inclusive definition. Head of a school or Head includes Principal, Vice Principal, Head Master, Head Mistress, Assistant Head Master, Assistant
