A. B. CHAUDHARI, J. :- In W.P.Nos.722 of 2006 and 6162 of 2006 the learned Single Judge of this Court found that two Division Benches of this Court have taken divergent views as to whether the Head Master of a school is a chief Executive Officer (C.E.O.) as defined in Rule 2(c) of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (for short M.E.P.S. Rules) for the purposes of holding disciplinary enquiry against the Head Master. In the wake of divergent views, learned Single Judge by order dated 31-8-2006 held that since there were conflicting decisions of this Court on the issue, it was necessary to have the legal position settled by a larger Bench. Accordingly, the papers were placed before the Hon'ble Chief Justice who was pleased to constitute the Full Bench and that is how the Reference is now required to be heard and decided by this Full Bench.

2. The questions which arise for our consideration and which are required to be answered by this Full Bench are framed as under:

(i) "Whether the Head Master of a school by virtue of his position as such becomes the Chief Executive Officer, as defined in Rule 2(c) of the M.E.P.S. Rules, 1981 as held in the case of Kankubai Shravikashram Trust & ors. Vs. Kamal w/o Dattatraya Khajurkar & ors. reported in 1992 Mh.L.J. 216, or whether "Such Head master would be the Chief Executive Officer only if he is empowered to execute the decisions of the management, as held in the case of Shri. Govind-Bal Mandir Shikshan Sanstha Vs. Suhas Dattatraya Kogekar & ors. reported in 1988(11) C.L.R. 1."

(ii) "Whether the President of the management has to be a member of the Enquiry Committee as specified in Rule 36(2)(b)(i) for holding disciplinary enquiry against the Head, whether or not he is the Chief Executive Officer within the meaning of Rule 2(c) of the Rules of 1981."

3. The facts leading to filing of the above petitions are as under :In W.P.No.722 of 2006, the School management challenged the judgment and order dated 23-1-2006 rendered by the School Tribunal, Nagpur, in Appeal No.STN/26/2005, by which the School Tribunal set aside the termination order dated 28-7-2005 of respondent No.1 - Head master. The Tribunal set aside the said termination order on the ground that the statement of allegations against respondent No.1 was not issued by the President of the management and consequently in terms of the judgment in the case of Kankubai (supra) the enquiry stood vitiated rendering the termination illegal. The Tribunal also held that the judgment in the case of Kankubai was later in point of time than the judgment in the case of Shri. Govind Bal Mandir Shikshan Sanstha (supra) and therefore the judgment in Kankubai's case was binding on it.

4. In W.P.No.6162/06, the petitioner who is the Head Master, challenged the judgment and order passed by the School Tribunal on 31-8-2005 rendered in Appeal No. STC 25 of 2001. One of the grounds of challenge in his appeal as well as in the present petition is that the petitioner/Head Master being the Chief Executive Officer, as held in Kankubai's case, statement of allegations were required to be issued by the President of the management and not by the Secretary of the management and, therefore, the enquiry was vitiated. The Tribunal also held that one Kashinath Nikhade was appointed as Chief Executive Officer by the management and that the petitioner had failed to show that he was empowered to act as Chief Executive Officer by the management within the meaning of Rule 2(c) of the Rules of 1981. Consequently, the Tribunal dismissed his appeal.

5. We have heard Advocate B. G. Kulkarni and Advocate Parchure for the petitioners and Advocate Gode for respondent No.1 in Writ Petition No.722 of 2006 and Advocate Parchure for the petitioner and Advocate Jibhkate for respondent No.1 in Writ Petition No.6162/06 and A.G.P. Mrs. Dangre for respondent No.2 in both the petitions.

6. Advocate Kulkarni appearing on behalf of the petitioners in Writ P

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