Bombay High Court
Mrs. Pratibha A. Agranayak & Others vs The Director Of Education & Others on 30 March, 2000
Equivalent citations: 2000(3)BOMCR489, 2001(1)MHLJ796
Author: R.K. Batta
Bench: R.K. Batta, R.M.S. Khandeparkar
ORDER R.K. Batta, J.
1. These writ petitions relate to the appointment of Headmaster of Damodar English High School (hereinafter referred to as "the said school") and, as such, the same are being disposed of by common judgment.
2. The petitioner in Writ Petition 36/99 claims to be the senior-most Assistant Teacher in the said school and entitled to promotion to the post of Headmaster in terms of Rule 78 of the Goa, Daman & Diu School Education Rules, 1986 (hereinafter referred to as "the said Rules"). On 1-5-1997, the vacancy of Headmaster had arisen in the said school and the Departmental Promotion Committee (D.P.C. for short) was convened to fill up the said post. It appears that the appointment was not finalised by the D.P.C. and in the meantime, on 9-6-1997, the charge of the post of Headmaster was handed over to respondent No. 3 Narayan Mierker. The petitioner Pratibha Agranayak filed Writ Petition No. 1/98 alleging that respondent No. 3 was not qualified to be appointed to the post. The said writ petition was disposed of by oral order dated 23-2-1998 by this Bench to which both of us were parties, by giving directions that the D.P.C. be convened within one month for the purpose of consideration of eligible candidates in accordance with the Rules and Regulations and who fall within the zone of consideration for the said post of Headmaster and the minutes of the D.P.C. shall be forwarded, within seven days of the conclusion of the D.P.C., to the Director of Education for further necessary action. In pursuance of the said order, D.P.C. was convened on 20-4-98. The D.P.C. consisted of the Chairman of the Managing Committee of respondent No. 2, who was the Chairman of the D.P.C. and two members, one nominated by the Director of Education and the other nominated by the Management. The member who was nominated by the Director of Education walked away in the course of the D.P.C. meeting. Selection was, therefore, finalised by the two other members namely, the Chairman of the Managing Committee of respondent No. 2 who was the Chairman of D.P.C. and the Member of the D.P.C. nominated by the management. The case of the petitioner Pratibha Agranayak was considered. It was kept in sealed cover on account of an appeal filed by her against adverse remarks in her Confidential Report for the year 1995-96. Respondent No. 3 was recommended for promotion as Headmaster. In pursuance of the D.P.C. recommendation, respondent No. 3 was appointed as Officiating Headmaster of the said school with effect from 1-5-1998. The petitioner Pratibha Agranayak, therefore, seeks mandamus for filling up the post of Headmaster on regular basis and for striking down the appointment of respondent No. 3 as Officiating Headmaster on the ground that she is the senior-most Assistant Teacher and is entitled to the post of Headmaster being degree holder in education in terms of Rule 78 of the said Rules; whereas respondent No. 3 is not qualified for appointment in terms of Rule 78 of the said Rules, since he does not possess Degree in Education. Respondents No. 2 and 3, in Writ Petition 36/99 have taken the stand that reading of Rule 78 and Rule 86 of the said Rules makes it crystal clear that the seniority has to be given prime importance and respondent No. 3 being senior-most Assistant Teacher, is entitled to the promotion, since besides being senior-most, he was also found most meritorious amongst the candidates considered by the D.P.C. including the petitioner Pratibha Agranayak.
3. Respondent No. 2 also took the stand that in view of circular dated 28-5-1998 and Circular No. 5 dated 31-5-1999 issued by the Director of Education, it has been decided that two schools run by respondent No. 2 be merged and in view of the same, the post of Headmaster, in question, is not required to be filled and, as such, both the petitions have become infructuous.
4. Writ Petition 104/99 is filed by Narayan Mierker, who is respondent No. 3 Writ Petition 36/99, in which he challenges communication dated 20-5-98 of the Assistant Director of Education vide which the Director of Education refused to approve his appointment on the ground that he did not fulfil the required eligibility norms of promotion as prescribed under the said Rules since he did not hold Degree in Education.
5. The controversy in these petitions centres around Rules 78 and 86 of the said Rules. The relevant portion of the said rules, reads as under :
"78. Minimum qualifications for the appointment of teaching staff.---The qualifications for the recruitment/promotion of the teaching staff in the recognised schools, whether aided or not shall be as prescribed in the following table which is subject to change in future on the recommendations of the Advisory Board or the directives of the Central Government to fall in line with the National Education Policy.
TABLE Sr. No. Name of the post Qualifications for Direct Recruits Qualifications for promotees Pay scales subject to revision UpperAge Qualifications 1 2 3 4 5 6
1. ..
..
..
..
..
2. Headmasters of Secondary Schools.
40 Years
(i) A Masters Degree from a recognised University;
(i) A Degree from a recognised University; and (ii) a Degree in Education/ Teaching from a recognised University, with 7 yrs. teaching expe-rience as an Asst, Tr. in the school after graduation out of which 5 yrs. should be post B.Ed./B.T. ex-pe rience; Failing which 2000-3500
(ii) Degree in Education/ teaching from a recognised University or equivalent;
(ii) Diploma in edu-cation (2 y course) of any recognised Uni versity or a diploma SANCTION-ed as equivalent by the Govt. with 9 yrs. teaching experience in the school after graduation out of which at least 7yrs. should be post training experience;
(iii) At least 5 years teaching experience after graduation in a secondary school or a training institute, out of which at least 3 years teaching experience after training;
86. Filling of vacancies.---(1) Notwithstanding anything contained in Rule 78, every vacancy in an aided school shall be filled up by promotion failing which by direct recruitment, in accordance with such rules as may be framed by the Director of Education in this behalf and notified/circulated separately.
(2) The vacancy of Principal, Higher Secondary School/Primary Training Institutes, Headmasters of Secondary Schools and Middle Schools shall be filled up by promotion subject to the eligibility conditions prescribed in Rule 78. While filling up of these posts, the managements shall first explore the possibility of selecting the senior most teacher from the next below category indicated in column of Table under Rule 78. While making such selection the management shall also give very careful consideration and shall select the best qualified and most competent person among those available for selection/appointment to the post. Seniority shall be the first criteria subject to fitness and merit. If the claim of a senior eligible teacher is by-passed, the reason for the same in writing will have to be recorded in the minutes by the promotion committee. The claim of the senior qualified teacher shall not be bypassed arbitrarily without tangible reasons.
3. ...
4. ..."
We have highlighted the relevant portion of Rules 78 and 86 of the said Rules by underlining the same which are required to be considered for disposal of these petitions. Before we deal with these aspects, it is necessary to first decide the claim put forth by the petitioner Pratibha Agranayak that she is the senior-most Asst. Teacher in the said school. Though she claims that she was selected as Asst. Teacher on 25-5-85 and joined the duties on 9-6-86, yet date of her appointment was shown as 18-11-1985 and the period between June, 1985 to 18-11-1985 was recorded as honorary teaching period. According to her, respondent No. 3 was selected on 25-6-1985 and his date of appointment is 9-7-1985. Except for her bare averment, she has not produced any material to substantiate that she was appointed with effect from 9-6-1985. On the other hand, respondent No. 3 Narayan Mierker has produced voluminous evidence appended to the affidavit-in-reply dated 22-7-99 which are at pages 165 to 262 of Writ Petition 36/99 to show that the petitioner Pratibha Agranayak was appointed as Asst. Teacher with effect from 18-11-85. First of all, it is to be noted that the petitioner Pratibha Agranayak in her representation dated 26-6-97 (Exhibit 'A') at pages 33 to 35 of Writ Petition 36/99, in clear terms in para 6 has stated that Narayan Mierker though he is senior teacher, yet he is not educationally qualified to occupy the post of Headmaster. The evidence produced by respondent No. 3 Narayan Mierker along with the affidavit dated 22-7-99 is consisting of minutes of selection dated 15-11-85; approval of appointment of the petitioner Pratibha Agranayak by the Director of Education vide letter dated 20-12-85 with reference to a letter of Management dated 18-11-95 (Exhibit 'R-9' at page 223 of Writ Petition 36/99; outward correspondence register (Exhibit 'R-10' at pages 225 to 237 of Writ Petition 36/99) regarding appointment and approval by the Director of Education in respect of the appointments of the petitioner Pratibha Agranayak and respondent No. 3 Narayan Mierker; Option Form (Exhibit 'R-11' at page 239 of Writ Petition 36/99) wherein the petitioner Pratibha Agranayak has herself shown her date of appointment in the said school as 18-11-85; senior list (Exhibit 'R-12' at page 243 of Writ Petition 36/ 99), which was finalised by the then Headmaster K.G. Hegde Desai and Secretary Amul D. Agranayak who is the husband of the petitioner Pratibha Agranayak which is duly signed by the petitioner Pratibha Agranayak wherein respondent No. 3 Narayan Mierker is shown at serial No. 1 and the petitioner Pratibha Agranayak is shown at serial No. 2 and the service record of the petitioner which is Exhibit 'R-13' at pages 245 to 261 of Writ Petition 36/99.
6. In view of the above position, we do not find any merit in the contention of the petitioner Pratibha Agranayak regarding her claim of seniority over respondent No. 3 Narayan Mierker.
7. The next issue which may be discussed at this stage is the plea put forward by respondent No. 2 Management in affidavit dated 29-6-99 in which it is stated that in view of the Circular dated 28-5-98 and Circular No. 5 dated 31-5-1999 issued by the Director of Education, it has been decided to merge the two schools run by respondent No. 2 as a result of which the post of the Headmaster in question would stand abolished and the petitions have become infructuous. It is no doubt true that in view of the said circulars, Higher Secondary School and the High School run by the same management in the same campus can be merged subject to the fulfilment of criteria laid down in the said circulars, yet it is clear from the letter dated 4-8-99 of the Deputy Director of Education to the Management that the request to merge the said High School with Higher Secondary School could not be considered at this stage. In view of this, we cannot accept the contention of respondent No. 2 Management that the petitions have become infructuous. According to the petitioner Pratibha Agranayak, the decision taken to merge the two schools is mala fide and it has been resorted to with the sole purpose of denying her legal rights to the post of Headmaster. We do not find any merit in this contention of the petitioner Pratibha Agranayak, since the affidavit dated 29-6-99 filed by respondent No. 2 does speak of justification of merger in terms of the said circulars and the fact that on account of the dispute over the appointment to the post of Headmaster, the educational interest of the school had suffered considerably with the school touching all the time low during the year 1998-99 when none of the students who appeared for S.S.C. examination conducted by the Board of Secondary Education, Goa, passed the said examination. Be that as it may, the Director of Education has not yet approved the merger and the position may be some what different in case the Director of Education accedes to the request of merger of the two schools as put up by the Management respondent No. 2.
8. Coming back to crucial question in controversy in these petitions, learned Advocate Shri Sonak, appearing on behalf of the petitioner Pratibha Agranayak has stressed in the course of his arguments that the expression "Failing which" occurring in Column 5 under Item (i), Serial No. 2 of Rule 78 of the said Rules is significant and implies that the candidates falling in category (ii) under Column 5 of Serial No. 2, Rule 78 of the said Rules, can be considered only when the candidates referred to under Item No. (i) are not available. He has also pointed out that in contrast, under Serial No. (1), column No. 5, serial No. (4) column No. 5, Serial No. 8, column 4 and Serial No. 9 column No. 4 of the table under Rule 78 of the said Rules, the expression used is "or". Learned Advocate Shri Sonak has further urged that the scope of non obstante clause occurring in Rule 86(1) of the said Rules is restricted to the said Rule 86(1) only and in fact, Rule 86(2) of the said Rules clearly stipulates that the posts mentioned therein shall be filled up by promotion subject to the eligibility conditions prescribed in Rule 78. He, therefore, submits that respondent No. 3 who has been selected by DPC is not legally entitled to the post of Headmaster and, as such, the appointment is required to be quashed. He further submits that the petitioner is entitled to promotion to the said post and appropriate directions be issued in this regard.
9. Learned Government Advocate Shri Lawande appearing on behalf of the Director of Education, has urged that Rules 78 and 86(2) of the said Rules have to be read harmoniously and in case a candidate holding a Degree in Education is available, a candidate holding only Diploma in Education cannot be considered. According to him, the mandamus sought by the petitioner cannot be issued since there are other eligible candidates holding Degree qualifications and the cases of all eligible candidates are required to be considered by the DPC.
10. According to learned Advocate Mrs. Agni, appearing on behalf of the Management respondent No. 2 the appointment of respondent No. 3 Narayan Mierker was made under Rule 86(2) of the said Rules, pending approval by the Director of Education. It is an admitted position that the appointment of respondent No. 3 was not approved by the Director of Education, as can be seen from letter dated 20-5-1998, at page 127 on the record of Writ Petition No. 36/99. It appears that the Director of Education had issued show cause notice dated 24-12-98 to the Management for taking over the Management of the said School. Learned Advocate for the Management has pointed out that from February, 1999, the charge of the school is now with the Principal of Higher Secondary School which is run by the same management, According to learned Advocate Mrs. Agni, if the interpretation put forth by the learned Advocate for the petitioner and the Government Advocate is accepted, it would render the provisions of Rules 86 nugatory. According to her, the expression "failing which:" in Item No. 1 under column 5 of Serial No. 2 in table under Rule 78 of the said Rules has to be interpreted as "or". In support of her submission, she has placed reliance on Smt. Malini M. Xete v. The Director of Education and others, Writ Petition 69/99, decided by a Bench of this Court (to which one of R.M.S. Khandeparkar, J., was a party). She also submitted that mandamus to appoint the petitioner cannot be issued.
11. According to learned Advocate Shri Thali, appearing on behalf of respondent No. 3 Narayan Mierkar in Writ Petition 36/99 and the petitioner in Writ Petition 104/99, though Rule 78 of the said Rules provides for eligibility for promotion, yet Rule 86(2) gives more importance to seniority and harmonious construction of both the rules is required to be given. He referred to the Circulars at pages 199 to 201 of Writ Petition 36/99 and urged, it is in view of the said circulars that both the categories of candidates holding Degree in Education and Diploma in Education, have been clubbed together under Column 5 of Serial No. 2 in table under Rule 78 of the said Rules and, it is in the light of the said circulars, the expression "Failing which" has to be interpreted.
12. In reply, learned Advocate Shri Sonak, appearing on behalf of the petitioner Pratibha Agranayak, has urged that there has been conscious departure from the said Circulars, under which the candidates holding Degree in Education and Diploma in Education are being simultaneously made eligible for the post of Headmaster as two separate categories under Rule 78 and the candidates holding Diploma in Education are eligible for promotion to the post of Headmaster only when the candidates from first category, namely those holding Degree in Education are not available and that is why the expression "Failing which" has been used.
13. The circulars at pages 199 to 201 (Writ Petition 36/99), admittedly, cannot hold the field in view of what is provided under column 5 of Serial No. 2 of the table under Rule 78 of the said Rules. Nevertheless, it is to be noted that circular dated 1-10-1980 issued by the Director of Education which is at page 201 (Writ Petition 36/99) had also made the Diploma holders in Education with 9 years experience eligible for the promotion to the post of Headmaster. However, as pointed out by learned Advocate Shri Sonak the use of expression "Failing which" under Item No. (i) Column 5, of Serial No. 2 in table under Rule 78 of the said Rules in the background of these circulars gives an indication that there has been conscious departure from the said circulars and the candidates in the second category holding Diploma in Education will be eligible for promotion only when the candidates in the first category, namely holding Degree in Education are not available, otherwise, the expression "Failing which" would be totally superfluous. Besides this, as pointed out by learned Advocate Shri Sonak, under the same table in contrast in respect of Serial Nos. 1, 4, 8 and 9, the expression used is "or". In serial No. 6 also the expression used is "failing which". Thus, the table makes clear distinction between the expression "Failing which" and the expression "or" and we are not inclined to agree with learned Advocate for respondents No. 2 and 3 in Writ Petition 36/99 and learned Advocate for the petitioner in Writ Petition 104/99 that the expression "Failing which" has to be equated to the expression "or". The two expressions have different meaning and "Failing which" clearly means in the absence of the availability of the first category only, the candidates in the second category, have to be considered. Besides this, harmonious reading of Rule 78 and Rule 86 of the said Rules also take us to the same conclusion.
14. In Smt. Malini M. Xetev. The Director of Education Ss others, (supra), the dispute was between two Degree holders and in this context, Rule 86(2) of the said Rules was considered. Though, it was pointed out in the said ruling by Division Bench of this Court (to which one of us R.M.S. Khandeparkar, J.) that Rule 86(2) at three places clearly indicates that seniority has to be given importance, yet a cumulative reading of all the norms under Rule 86 (2), goes to show that the Rule requires that normally a senior qualified teacher will have to be selected.
15. Rule 78 of the said Rules lays down minimum qualifications for appointment of teaching staff. It states that the qualifications for recruitment/ appointment of the teaching staff shall be as prescribed in the table. The table, in so far as Headmasters of Secondary Schools are concerned, provides in the first category Degree holders in Education and, failing which, in the second category Diploma holder in Education. The operation of the non obstante clause in Rule 86 is restricted to sub-rule (1) of Rule (86) only and it provides that notwithstanding anything contained in Rule 78, every vacancy in an aided school shall be filled up by promotion failing which by direct recruitment in accordance with such Rules as may be framed by the Director of Education in this behalf and notified/circulated separately. The non obstante clause was introduced in Rule 86(1) of the said Rules to provide that every vacancy in an aided school shall be filled up by promotion, failing which, by direct recruitment. Since the table under Rule 78 had prescribed method of direct recruitment and that of promotion in relation to teaching staff in the recognised schools, whether aided or not, by non obstante clause in Rule 86(1) of the said Rules, it is made clear that in an aided school every vacancy shall be filled up by promotion failing which by direct recruitment. The expression "failing which" which occurs in Rule 86(1) further makes it clear that in aided schools filling of vacancy had to be by promotion and it is only when departmental candidates are not available for promotion, then resort must be had to direct recruitment. Rule 86(2) of the said Rules clearly postulates that the posts mentioned therein shall be filled up by promotion subject to eligibility conditions prescribed in Rule 78. Thus, basic requirement under Rule 86(2) for the purpose of promotion is eligibility as prescribed in Rule 78. In filling up the posts by promotion, the Management shall have to first explore the possibility of selecting the senior-most teacher who fulfils the eligibility requirement under Rule 78. Thus, if the candidates holding Degree in Education are available, the Management shall have to first explore the possibility of selecting the senior-most teacher from the category of the candidates holding Degree in Education qualifications. It is only when the candidates having Degree in Education are not available, then only the exercise will have to be done to select the senior-most teacher in second category of the candidates holding Diploma in Education. Rule 86 (2) emphasizes that while making selection, the Management shall also give very careful consideration and shall select the best qualified and most competent person from among those available for selection/promotion to the post. The seniority has been given primacy and the claim of senior eligible teacher cannot be bypassed without recording reasons. The expression used in Rule 86(2) at three places, is "the best qualified and most competent person among those available for selection." "Eligible teacher" and "senior qualified teacher." The seniority has to be considered in each category amongst eligible/qualified candidates as prescribed in Rule 78 of the said Rules.
16. It is admitted position that a number of candidates are available who are holding Degree in Education and unless all these candidates are found to be not suitable, the candidates in the second category who hold Diploma in Education cannot be considered for promotion to the post of Headmaster. Thus, consideration of the petitioner Narayan Mierker who holds Diploma in Education for the post of Headmaster is totally contrary to the said rules and, as such, the recommendation of the D.P.C. for his promotion and his subsequent officiating appointment cannot be sustained. The said appointment of the petitioner Narayan Mierkar in Writ Petition 104/99 is, therefore, required to be quashed. Consequently, the challenge to non-grant of approval by the Director of Education cannot be upset.
17. Though the case of the petitioner Pratibha Agranayak was considered by the D.P.C., yet the assessment by the D.P.C. in her case was kept in sealed cover on account of appeal filed by her against adverse remarks. We are rather surprised as to how the following remarks, occurring in her confidential report for the year 1995-96 which were communicated to the petitioner Pratibha Agranayak, can be considered as adverse:
"Her relations with colleagues and students is generally liked and respected."
There is no adverse remark and on the contrary, these are favourable remarks and the petitioner Pratibha Agranayak had made a representation against the so called adverse remarks, but it was rejected by respondent No. 2 Management on the ground that a teacher should be always liked and respected. By no stretch of imagination the remark "generally liked and respected." can be said to be adverse and respondent No. 2 Management, playing upon the words, rejected the representation of the petitioner Pratibha Agranayak and her assessment was kept in sealed cover. The same has presumably affected the assessment in case of the petitioner Pratibha Agranayak by the D.P.C. Accordingly, we are of the opinion that the case of the petitioner Pratibha Agranayak along with other eligible candidates holding Degree in Education shall be considered by the D.P.C. within a period of six weeks from today and the recommendation of the D.P.C shall be forwarded to the Director of Education within a period of 7 days thereof. In the meantime, the charge of the post of Headmaster shall continue with the Principal of Higher Secondary School under the same Management.
18. For the aforesaid reasons, we pass the following order:
The appointment of respondent No. 3 in Writ Petition 36/99 to the post of Headmaster is quashed and set aside and the D.P.C. is directed to consider the case of the petitioner Pratibha Agranayak along with other eligible candidates holding Degree in Education for the post of Headmaster in the said school within a period of six weeks from today and the result of the D.P.C shall be communicated to the Director of Education within a period of 7 days thereof. Rule in the aforesaid terms in Writ Petition 36/ 99. The costs of Writ Petition 36/99 shall be borne by respondent No. 2. Writ Petition 104/99 filed by Narayan Mierker is rejected and the rule is accordingly discharged.
19. Order accordingly.