Quashed

Vitthal Jankar v. Versova Education Trust and Ors.

Bombay HC7 Jun 2010WP/1948/2003

Case brief

AI extract

What is this about?

The court held that a trust never enjoyed minority status as government orders declaring it were erroneous and were subsequently revoked. Therefore, appointments made relying on such purported status were unlawful and could not sustain despite the School Tribunal's reliance on the Baburam decision regarding prospective declarations.

What did the court decide?

The order of the School Tribunal reinstating the appellant was quashed and set aside; the order appointing the respondent as Head Mistress cannot be legally sustained.

Vitthal Jankar Vs Versova Education Trust and Ors. — Service and Employment | Bombay HC (2010)

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jmi

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I N THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

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WRIT PETITION NO. 683 OF 2002.

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Mrs. Pushpa Surendra Dhaktode

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..Petitioner.

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v/s.

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The Versova Education Trust

and others

..Respondents.

ALONGWITH

WRIT PETITION NO. 1948 OF 2003 (APPELLATE SIDE)

Vitthal Jankar.

..Petitioner.

v/s.

Versova Education Trust & Ors. ..Respondents.

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Mr. R. V. Govilkar for the Petitioner in WP 683 of 2002

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Mr. R.Shekhawat i/by C.M. Acharya for the petitioner in WP 1948/03 Mr. S.K.J. Panicker a/w Ms. B. S. Kawle for Respondents No.7 in WP 683/02 and Respondent No.4 in WP 1948/03 Mr. N. Pandit, AGP for State WP 683/02. .

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CORAM : S.J. KATHAWALLA, J.

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Reserved on : 23rd April, 2010 Pronounced on : 7th June, 2010

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J U D G M E N T

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By an order dated 12th June, 2003, Writ Petition No. 1948 of 2003 was directed to be tagged alongwith Writ Petition No. 683 of 2002 for hearing. In view thereof, both the writ petitions are

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taken up for final hearing. Writ Petition No. 683 of 2002 is filed by the Petitioner Ms. Pushpa Surendra Dhaktode. By the said writ petition, Ms. Dhaktode has impugned the judgment and order dated 13th December 2001 passed by the School Tribunal, Mumbai. The Petitioner has also sought a mandatory order against the Respondent nos. 1 to 4 to produce the order of appointment of Ms. Pushpa John (Respondent no.4) as Head Mistress of the Respondent no. 2 – school and junior college, and after going through the same, quash and set aside the same and direct Respondent nos. 1 to 4 to appoint the Petitioner as Head Mistress in the Respondent no.2 – school and junior college. The learned Advocate appearing for Ms. Dhaktode, the Petitioner in Writ Petition No. 683 of 2002 has at the outset submitted that all the reliefs sought by the Petitioner in the writ petition have become infructuous except the relief sought against Ms. Pushpa John, Respondent no.4 to the petition. It is further submitted that since Mr. Vitthal Jankar, the Petitioner in Writ Petition No. 1948 of 2003, has impugned the order of the Presiding Officer, School Tribunal, Mumbai, dated 15th February, 2003 allowing the Appeal No. 37 of 2002 filed by Ms. Pushpa John, the hearing of the said Writ Petition No. 1948 of 2003 be taken up first. It is further submitted that as far as the issue of seniority is concerned, the same may be decided by the Education Inspector as recorded in paragraph 65 of the order dated 15th

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February 2003 passed by the Presiding Officer, School Tribunal, Mumbai.

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The Petitioner in Writ Petition No. 1948 of 2003, Mr. Vitthal Jankar, is a teacher in the Versova Welfare Association High School and Junior College (Respondent No.2) and claims to be senior to Ms. Pushpa John (Respondent no. 4). Respondent no. 2 is run and managed by the Respondent no. 1- Versova Education Trust registered under the Bombay Public Trusts Act, 1950. Respondent No. 3 is the Education Inspector, Brihan Mumbai, West Zone and is the authority incharge of all the private schools in Greater Mumbai. Respondent no. 4 – Ms. Pushpa John was appointed as Head Mistress of Respondent no. 2 from 1st December 2001 and was reverted back to the post of Assistant Teacher on and from 15th March 2002. However, the order reverting her status was stayed by the Tribunal by its order dated 15th March 2002. Respondent no. 5 – Ms. Pushpa Dhaktode is admittedly senior to Ms. Pushpa John, but works as a Teacher in the Respondent no. 2 – school and junior college.

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Mr. Vitthal Jankar, the Petitioner in Writ Petition No. 1948 of 2003 has inter-alia prayed for quashing and setting aside of the judgment and order dated 15th February 2003 passed by the

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Presiding Officer, School Education Tribunal, Mumbai, in Appeal No. 37 of 2002. By the said judgment and order, the Presiding Officer, School Tribunal, Mumbai, has allowed Appeal No. 37 of 2002 filed by Ms. Pushpa John, Respondent no. 4, on the ground that at the time of her appointment, the School enjoyed minority status and her appointment as Head Mistress ahead of other senior teachers was justified. The subsequent withdrawal / cancellation of the minority status would have prospective and not retrospective effect. The learned Advocate appearing for the Petitioner Mr. Vitthal Jankar has made a similar submission to that made by the Petitioner Ms. Pushpa Dhaktode in Writ Petition No. 683 of 2002, viz. the issue of seniority is pending before the Respondent no. 3 and the same may be decided by the Respondent no.3. The learned Advocate appearing for the Petitioner Mr. Vitthal Jankar has also submitted that he has no objection if Writ Petition No. 1948 of 2003 is taken up first, for final hearing. Accordingly, this Court has first proceeded with the hearing of Writ Petition No. 1948 of 2003.

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According to the Petitioner Mr. Vitthal Jankar in Writ Petition No. 1948 of 2003, some of the facts and circumstances giving rise to the present petition are as set out hereunder.

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Sometime in the year 1962 or thereabout, several

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prominent residents of Versova, Andheri (West), Mumbai, came together and formed an Organization called “Versova Welfare Association”, duly registered under the Societies Registration Act, 1860. One of the objects of the said Association was to foster friendship and brotherhood among all sections of the people and encourage cultural, educational and social activities among the people. As part of its object, the said Association decided to start a school in the said locality. Accordingly, permission was sought and granted by the Director of Education vide his letter No.67(C)-C-1, dated 11th April 1962. Accordingly, on 11th June 1962, the said Association started standard V in the said School.

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The members of the said association were of the opinion that the administration of the said school should be in the hands of an independent body. Therefore, on 3rd February 1963, the Versova Education Trust was formed and registered as a public Trust under the provisions of Bombay Public Trusts Act, 1950 vide registration No.E-2503. The object clause of the said Trust as set out in the Trust Deed reads thus :-

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“(3) OBJECTS : The Trust will be public trust for the general public irrespective of any religion, caste, creed or colour and the object of the Trust shall be as hereinafter set out for educational

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motivation and the object of the general public utility.

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(a) To conduct the said Versova Welfare Associations High School.

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(b) To conduct other educational institutions.

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(d) To award scholarships or loan Scholarships in the name of the Trust or in any other manner as would be decided by the trustees.

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(e) To establish of help any school or research.

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(f) To award prizes for essays.

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(g) To help in publishing useful literatures in any language.

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(h) To award scholarships or donations in High Schools, Primary Schools or Colleges or Research centres and other allied institutions.”

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It is provided in clause 4 of the Trust Deed that the number of trustees shall be a minimum of 5 and a maximum of 9, one of whom will be a nominee of the Versova Welfare Association. The first nominee of the Versova Welfare Association was Shri Choknath Gopalan.

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The Trust comprised of trustees belonging to different

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caste, creed, language and religion. The Trust was therefore, a multi-religious and multi-linguistic body and was neither established as minority institution nor administered as such and thus, the Trust does not satisfy the requirements as contemplated under Article 30(1) of the Constitution of India. On 21st July 1997, the Trust had the following trustees on its Board :-

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Name	Mother Tongue	Religion
1. Dr. R.P. Kapoor	Punjabi	Hindu
2. A.R. Britto	Konkani	Christian
3. B.C. Kothari	Gujarati	Hindu
4. Ajit C. Shah	Gujarati	Hindu
5. K.H. Mankad	Gujarati	Hindu
6. K. C. Jain	Punjabi	Hindu
7. K.P. Mittal	Hindi	Hindu
8. Dr. Arun Kumar	Punjabi	Hindu
9. Pradeep Garg	Hindi	Hindu
10. D.M. Dhandwal	Punjabi	Hindu

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Some of the trustees on the Board to extract more benefits to the Trust and themselves, decided to claim minority status for the said Trust. Therefore, a resolution dated 10th June 1997 was passed claiming minority status for Respondent no.2school and junior college run by the Respondent no.1- Trust, which is reproduced hereunder :-

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“ Resolved that as per M.E.P.S. (conditions of service)

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regulation Act, 1977, Revised 1978 under Rule No.3 (2) application be forwarded to Dy. Director of Education,

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Mumbai and other concerned authorities for granting minority status to the Versova Welfare Association High School and Jr. College, Mumbai as all the Trustees belong to linguistic minority community in the State of Maharashtra and further unanimously decided that the names ofSmt. S. Visalakshi, Headmistress 2) Smt. N. Prema, Asstt. Teacher 3) Smt. C. Rege, Asst. Teacher and 4) Shri J.L. Alesa, Head Clerk to be notified under the Rule No.3(2) of the above purpose.”

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Pursuant to the above resolution passed, certain names were notified to the State Government under Rule 3(2) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (MEPS Act).

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The said trustees prepared an incorrect list showing the names of 8 trustees and submitted the same to the Deputy Director of Education on 21st July 1997 alongwith a covering letter. Interestingly, the said list included the name of Mr. S.H. Daya, who had resigned as a trustee on 30th September 1996 and whose resignation was accepted by the Board vide resolution dated 10th November 1996. In place of Mr. S.H. Daya, Mr. Pradeep Garg was taken on Board of trustees vide change report dated 29th

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December 1996. Dr. Arun Kumar was also taken on Board as a trustee vide change report dated 18th November 1996. However, the names of Mr. Pradeep Garg and Dr. Arun Kumar were deliberately not shown as trustees in order to mislead the Government that the Trust had 50% of the trustees who are Gujaratis, though in reality, the Trust comprised of people belonging to different castes/religions and speaking different languages.

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On the basis of the misrepresentation by some of the trustees of the Respondent no.1-Trust, the Deputy Director of Education by his order dated 26th August 1997 granted recognition to the Versova Education Trust as a minority Trust. Aggrieved by the minority status granted by the Deputy Director of Education, the Greater Bombay Secondary Teachers Association and Mr. Devendra M. Dhandwal, the trustee of the said Trust by their representations dated 17th September 1997 and 25th March 1998 informed the Deputy Director of Education that the said Trust was multi-religious and multi-linguistic and not belonging to any particular caste. The minority status granted to the Trust was therefore, incorrect and requested for cancellation of the same. Pursuant to the explanation called for by the Deputy Director of Education from the Respondent no.1- Trust, Mr. K.P. Mittal, Managing Trustee of the said Trust informed the Deputy Director of Education that the minority status

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was granted to the said Trust by the department after verifying the records.

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Since no action was taken by the Deputy Director of Education, several complaints/representations were made by the general members of the Versova Education Trust pointing out that the said Trust was not confined to only Gujarathi speaking members, but is a multi-religious body and therefore, prayed for cancellation of the minority status granted to the Respondent no.1-Trust. The Deputy Director of Education, therefore, issued notices to the said Trust and also to the complainants for hearing in his Office on 23rd July 1999, 25th August 1999, 31st October 2000 and 16th November 2000. Thereafter, the Deputy Director of Education issued an order dated 18th May 2001 revoking its earlier order dated 26th August 1997 granting minority status to the Respondent no.1 – Trust. On 20th June 2001, the Office of the Deputy Director of Education intimated the revocation of the minority status to the Managing Trustee of the Respondent no. 1 – Trust. Pursuant to the cancellation of the minority status granted to the Trust, the Education Inspector, West Zone, Greater Mumbai, vide his letter dated 25th June 2001 cancelled the signatory powers granted to the supervisor – Mr. R.A. Pathak and Mrs. E. Nelson and granted signatory powers to the Assistant Head-Mistress Mrs. Dhaktode (Petitioner in Writ Petition

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No. 683 of 2002). Further directions were also issued to submit a proposal to the Education Inspector, for appointment of a senior teacher for the post of Head Master/ Head Mistress. Aggrieved by the said orders dated 20th June 2001 and 25th June 2001, the said Trust challenged the said orders, by filing Writ Petition No. 1947 of 2001, inter alia on the ground that the said order passed by the Deputy Director of Education was without issuing any show cause notice or giving any hearing to the Trust. The writ petition was allowed by an order of this Court dated 27th August 2001, on the ground that there was infringement of the principles of natural justice. The concerned respondents were directed to issue show cause notice to the Petitioner therein (Respondent No.1 herein) in this regard and give sufficient time and opportunity to the Trust to explain their stand, before passing any orders regarding the issue involved.

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Though Respondent no. 4 Ms. Pushpa John was not the senior-most qualified teacher of the Respondent no.2-school and junior college, she had on 13th November 2001 applied to the Respondent no.1 – Trust for the post of Head Mistress of the Respondent no.2 – school and junior college. Thereafter, on 27th November 2001, the seniority list was revised by the Respondent no. 1- Trust. In the seniority list, Mr. Jankar (Petitioner herein) has been

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shown at serial no. 4 in ‘C’ category. Ms. Pushpa John (Respondent no. 4 herein) was shown at serial no. 6 in ‘C’ category. Despite Ms. Pushpa John being admittedly lower in the seniority list and despite the fact that the issue pertaining to the minority status of Respondent no. 1-Trust was to be re-considered by the Government as per the directions of this Court dated 27th August 2001, the Respondent no.1 – Trust on 27th November 2001, passed the following resolution :-

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“Resolved that Miss Pushpa John, Asstt. Teacher in the Versova Welfare Association High School and Jr. College, who has applied for the post of Headmistress in the school be and is hereby promoted to the post of Headmistress after the retirement of Mrs. E. Nelson on 30th November 2001 due to superannuation.

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Further resolved that her proposal be forwarded to the education department for approval as this promotion is by virtue of our minority status. (emphasis supplied)”

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The Respondent no.1- Trust by its letter dated 29th November 2001 informed Respondent no. 4 Ms. Pushpa John that she has been appointed as the Head Mistress of Respondent no.2 – school and junior college with effect from 1st December 2001. In the said letter,

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it is categorically stated by the Respondent no.1 – Trust that “This appointment is by virtue of our being a minority school/ Trust.” Respondent No.1-Trust by its letter dated 1st December 2001 addressed to the Education Inspector (Respondent No.3) forwarded the proposal of Ms. Pushpa John for the post of Head Mistress with effect from 1st December 2001.

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Pursuant to the order passed by this Court dated 27th August 2001, on 11th January 2002, show cause notices were issued to the Respondent no.1 -Trust and also to the complainants for a hearing on 16th January 2002 at 3.00 p.m. before the Secretary, Education Department, Government of Maharashtra, Mantralaya, Mumbai, on the issue of the minority status of the Respondent no.1 – Trust.

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The Education Inspector by his letter dated 12th February 2002 addressed to the Respondent no.1 informed the Respondent no.1 that since the decision to accord minority status to the Respondent no.1-Trust is pending, the signatory powers of the post of Head Mistress cannot be given to Ms. Pushpa John by ignoring the service seniority of the teacher employees of Respondent no.1 – Trust.

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Respondent no.1–Trust by its letter dated 9thMarch 2002

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addressed to Ms. Pushpa John informed Ms. John that she has been reverted from the post of Head Mistress of the Respondent no. 2 to the post of Assistant Teacher since the Education Inspector has refused to give approval to her promotion and to give signatory powers to her.

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On 13th March 2002, Ms. Pushpa John filed an appeal under section 9 of MEPS Act, before the Presiding Officer, School Tribunal, Mumbai being Appeal No. 37 of 2002 challenging the order of reversion dated 9th March 2002 of Respondent no.1 - Trust. On 15th March 2002, the Presiding Officer, School Tribunal, Mumbai, granted stay to the reversion order on the ground that non-approval of the appointment by the Education Department cannot be a legal ground for reducing Ms. Pushpa John in rank, since the Respondent was a minority institute. According to the Petitioner, the order dated 15th March 2002 came to be passed in favour of Ms. John as none had remained present from the Education Department and the Respondent no. 1 – Trust had supported the Respondent no. 4.

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On 22nd March 2002, the Petitioner herein filed Appeal No. 39 of 2002 before the Presiding Officer, School Tribunal, Mumbai, challenging the promotion of Ms. Pushpa John and prayed for his promotion to the post of Supervisor on and from

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26th September 1998 and also for his promotion to the post of Head Master with effect from 1st December 2001. In the said appeal, the Petitioner also sought vacation of the interim order dated 15th March 2002 granted in Appeal No. 37 of 2002.

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Pursuant to the order passed by this Court in Writ Petition No. 5341 of 2002 filed by the petitioner challenging his nonimpleadment in the appeal filed by the Respondent no. 4 before the School Tribunal, Mumbai being Appeal No. 37 of 2002 and the exparte stay granted by the School Tribunal, Mumbai, this Court directed the impleadment of the Petitioner as party Respondent and expedited the hearing of the appeals.

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On 21st May 2002,the Secretary, Education Department, Government of Maharashtra, passed an order revoking the minority status of the Respondent no.1 -Trust. In the said order, it is inter-alia held by the Secretary, Education Department that basically the Versova Welfare Association and the Versova Education Trust (Respondent no.1) were multi-religious and multi-linguistic bodies and not restricted to people of any particular language, caste, creed and religion. Merely, because over a period of years a number of Gujarati speaking trustees were increased, does not change the character of the said Trust to that of a minority trust. In the said

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order, it is also recorded that the Versova Education Trust misled the Hon’ble High Court and obtained orders in Writ Petition No. 1947 of 2001 by wrongly stating that the principles of natural justice were not followed, when in fact, the Trust was called for hearings on 19th July 1999, 25th July 1999, 5th February 2000, 21st February 2000, 23rd October 2000 and 10th November 2000, but the Trust did not represent its case before the Deputy Director of Education. Admittedly, the Respondent no. 1 -Trust has not challenged the order dated 21st May 2002 revoking the minority status of the Respondent no.1 – Trust till date and therefore, the same has become final.

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The Presiding Officer of the School Tribunal, Mumbai, after hearing the parties, by his order dated 15th February 2003, allowed the appeal filed by Ms. Pushpa John (Respondent no.4 herein) and directed the Respondent to reinstate her back in the post of Head Mistress on the ground that the appointment of the appellant Ms. Pushpa John was on 29th November 2001 and the minority status of the Respondent no.1-Trust was withdrawn and cancelled subsequently on 21st May 2002. Relying on the decision of the Hon’ble Supreme Court in Baburam v/s. C.C. Jacob and Others, 1999 SC 1845, the Presiding Officer, School Tribunal held that the withdrawal/cancellation of the minority status runs with prospective and not retrospective effect. The appeal filed by the

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Petitioner herein i.e. Appeal No. 39 of 2002 was dismissed by the Tribunal on the grounds of limitation, non-joinder of parties and for reliefs claimed on different causes of action. However, the Tribunal has also observed that the Petitioner herein cannot agitate his claim by way of the present appeal till the dispute regarding the seniority list is pending before the Education Inspector (Respondent no. 3). As regards the challenge to the appointment of Ms. Pushpa John as Head Mistress of Respondent no. 2 – school and junior college by Ms. Pushpa Daktode (Respondent no.5), the Presiding Officer of the School Tribunal has not taken cognizance of her claims/grievances on the ground that she has already filed Writ Petition No. 683 of 2000 in this Court, wherein she has inter-alia sought quashing of the order of appointment of Ms. Pushpa John to the post of Head Mistress and the matter is subjudice.

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Being aggrieved and dis-satisfied by the judgment and order dated 15th March 2003 passed by the Presiding Officer of School Tribunal in Appeal No. 37 of 2002, the Petitioner has filed the present writ petition.

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The learned Advocate appearing for the Petitioner has submitted that in view of the aforestated facts, the Respondent no. 1 – Trust is not a minority trust and the Respondent no. 2 – school and

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junior college also does not enjoy minority status. The Respondent no. 2 – school and junior college therefore, cannot avail of any benefit/concession provided under section 3(2) of the MEPS Act, 1977. The minority status obtained by the Respondent no. 1-Trust for some time by an order dated 26th August 1997 was on the basis of deceit and mis-representation on the part of some of the trustees and the said status is withdrawn/cancelled by an order dated 21.5.2002 of the Secretary, Education Department, Government of Maharashtra. Ms. Pushpa John has taken advantage of the order dated 26th August 1997, which was wrongly obtained by some of the trustees of the Respondent no. 1 and cannot be allowed to continue as the Head Mistress of Respondent no.2 – school and junior college, by depriving the Petitioner and other teachers of Respondent no. 2 who are admittedly senior to Ms. Pushpa John, and whose appointment was purely by virtue of the purported minority status of Respondent no. 1 – Trust. It is submitted that the Tribunal has committed a grave error in holding that the withdrawal/cancellation of the minority status is prospective and not retrospective, more so, in view of the decision of the Hon’ble Supreme Court in N. Ammad v/s. Manager, Emjay High School and Others, (1998) 6 SCC 674, wherein the contention that the school which was given minority status on 2nd August 1994 cannot claim to be a minority school before 2nd August 1994 was rejected by

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the Hon’ble Supreme Court, on the ground that if a school which is otherwise a minority school would continue to be so whether the Government declared it as such, or not. Declaration by the Government is at best only a recognition of an existing fact. The declaration is only an open acceptance of a legal character which should necessarily have existed antecedent to such declaration. It is therefore, submitted on behalf of the Petitioner that in view of the order dated 21st May 2002 passed by the Secretary, Education Department, inter-alia holding that the Respondent no.1 – Trust does not enjoy the minority status, the Respondent nos. 1 and 2 cannot claim minority status at any point of time and that the Presiding Officer, School Tribunal erred in allowing the appeal filed by Ms. Pushpa John on the ground that the withdrawal and cancellation of the minority status granted to the Respondent no. 1 – Trust comes into force prospectively and and not retrospectively.

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It is submitted on behalf of the Petitioner that the decision of the Hon’ble Supreme Court in Baburam v/s. C.C. Jacob & Ors. (supra), holding that the object of prospective declaration of law is that all actions taken contrary to the declaration of law prior to its date of declaration are validated, is of no assistance to Ms. Pushpa John. The present case does not pertain to any declaration of law. The present case pertains to granting of minority status to

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the Respondent no.1 – Trust on certain representations made by some of the trustees which minority status is subsequently withdrawn/cancelled. It is therefore, submitted on behalf of the Petitioner that the order dated 15th February 2003 passed by the Presiding Officer, School Tribunal, Mumbai, allowing Appeal No. Mum- 37/2002 and setting aside the order dated 9th March 2002 and directing the respondents to reinstate Ms. Pushpa John on the post of Head Mistress with back wages and continuity of service, be set aside.

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The learned Advocate appearing for Ms. Pushpa John has submitted that Ms. Pushpa John was promoted as Head Mistress of Respondent no. 2 – School with effect from 1st December 2001 by an appointment letter dated 29th November 2002. She was reduced in rank by an order dated 9th March 2002 which is contrary to law. Ms. Pushpa John has an excellent service record. Under section 4(6) of the MEPS Act, Ms. Pushpa John cannot be reduced in rank except in accordance with the provisions of the Act and the Rules framed thereunder. It is further submitted that it is settled law that reduction in rank cannot be effected on the ground of non-approval by the Education Department.

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The learned Advocate appearing for the Respondent no.

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4 has further submitted that the decision of the Hon’ble Supreme Court in N. Ammad v/s. Manager, Emjay High School & Ors. (supra) is not applicable to the present case. In the present case, the Presiding Officer of the School Tribunal, Mumbai is correct in following the ratio laid down by the Hon’ble Supreme Court in Baburam v/s. C.C. Jacob & Ors. (supra) . The learned Advocate appearing for Ms. Pushpa John has also relied upon the Full Bench decision of this Court in the matter of St. Ulai High School & Anr. v/s. Devendraprasad Jagannath Singh & Anr., reported in 2007 (2) ALL MR 1, wherein it is held that if there was a breach of the conditions governing the grant in aid, it was open to the Government to take action against the management, but this would not invalidate the appointment of a teacher when the matter of appointment was covered under the MEPS Act, 1977 and the Rules.

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I have perused the order passed by the Presiding Officer of the School Tribunal, Mumbai and considered the submissions advanced on behalf of the Petitioner as well as on behalf of Ms. Pushpa John. I have also considered the case law cited by the learned Advocates appearing for the parties. In the instant case, the object of the Respondent no. 1 – Trust is clearly spelt out in the Trust Deed, namely -

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“The trust will be a public trust for the general public

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irrespective of any religion, caste, creed or colour and the object of the trust shall be as hereinafter set out for educational motivation and the object of the general public utility.”

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Despite the aforestated known secular object, some of the trustees of the Respondent no.1- Trust obtained an order dated 26th August 1997 from the Deputy Director of Education confirming that the Respondent no.1- Trust enjoyed minority status. However, immediately the members of the Trust and one of the trustees took up the issue with the Government and pointed out that the order dated 26th August 1997 was erroneous. The said order was set aside by an order dated 18th May 2001/ 20th June 2001 passed by the Deputy Director of Education. However, in Writ Petition No. 1947 of 2001 filed by the Respondent no.1-Trust since this Court was of the view that the order infringed the principles of natural justice, the said order was set aside by an order of this court dated 27th August 2001 and the Government was directed to pass fresh orders after issuing show cause notice and hearing the Respondent no.1-Trust as well as the complainants. Pursuant to the order of this Court dated 27th August 2001, once again the Government issued show cause notices dated 11th January 2002 to the parties and after hearing the parties, by its order dated 21st May 2002

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withdrew/cancelled the order dated 26.8.1997, granting minority status to the Respondent no.1-Trust. The said order dated 21st May 2002 is not contested any further and is final. Therefore, the ratio in N. Ammad v/s. The Manager, Emjay High School and Others (Supra) that the declaration by the Government as to whether the school is a minority school or not is only an acceptance or nonacceptance of its legal character which exist antecedent to such a declaration / decision and does not change by such declaration/ decision, clearly applies to the present case. Therefore, if the Respondent no. 1 – Trust was not a minority Trust at its very inception and due to certain representations made by some of the trustees was wrongly given a minority status, the subsequent order withdrawing/ cancelling the minority status, cannot be termed as “Prospective” as the said Trust/School was at all times a minority Trust/School. The Learned Presiding Officer, School Tribunal, Mumbai, has therefore, erred in coming to the conclusion that the order dated 21st May 2002 passed by the Government withdrawing/ revoking the order dated 26th August 1997 comes into effect prospectively and not retrospectively.

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The learned Presiding Officer has erroneously drawn support from the decision of the Hon’ble Supreme Court in Baburam v/s. C.C. Jacob and Others (supra). By the said decision, the Hon’ble

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Supreme Court has held that the object of prospective declaration of law is that all actions taken contrary to the declaration of law prior to its date of declaration, are validated. The present case does not pertain to any declaration of law but pertains to granting of minority status to the Respondent No.1 Trust, on certain representations made by some of the trustees, which minority status is subsequently withdrawn by the Government on correct facts being pointed out by the objectors/complainants. As held earlier, the status of the Respondent Trust/School does not change with the declaration of the Government and it is clear from the order of the Government dated 21st May 2002 that the Respondent Trust/School never enjoyed minority status. The appointment of Ms. Pushpa John as headmistress of Respondent No.2 School and Junior College was clearly by virtue of Respondent No.2 purportedly being a minority School/Trust as recorded in the resolution dated 27.11.2001 passed by the Respondent No.1 Trust and also reiterated in the letter dated 29.11.2001 issued by the Respondent No.1 Trust to Ms. Pushpa John. In view thereof, the origin of the appointment of Ms. Pushpa John as head mistress of Respondent No.2 school and junior college is not lawful. The findings of the Hon'ble Supreme Court in Baburam Vs. C.C. Jacob and others (supra) therefore cannot be applied to the present case.

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Minority school means a school established and administered by a minority having the right to do so under Article 30 of the Constitution of India. It is an admitted fact that Respondent no. 2 in absence of the status of minority school would have to follow the mandate of the MEPS Act, 1977 and Rules, 1981, qua the recruitment of the Head of the school and other persons/staff. Section 3(2) of the MEPS Act, 1977 exempts only a minority school from the provisions of the said Act by providing that the provisions of the Act will not apply to the recruitment of the head of a minority school and any other persons not exceeding three employees in such a private school and whose names are notified by the management to the Deputy Director for this purpose. Thus, though a minority school is allowed not to follow the seniority rule whilst recruiting its head and three other employees, it is required under the law to notify the particulars of the recruits to the Deputy Director to enable him to ascertain whether qualified persons are appointed to the required post. It is obvious that if there is any doubt qua the minority status of the school, the authority would not take cognizance of the names so notified by the school.

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As set out hereinabove the Respondent no.1-Trust was aware that as per the directions of this Court dated 27th August 2001, the Government shall be proceeding to decide the issue qua the

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minority status of the Respondent no.1-Trust afresh. However, despite this the Respondent no.1-Trust entertained an application dated 13th November 2001 of Ms. Pushpa John, Assistant Teacher seeking her promotion as Head Mistress of Respondent no.2-school and junior college ; bypassed the other qualified senior teachers and appointed Respondent no.4 as Head Mistress of Respondent no.2 with effect from December 2001 and notified her appointment to the Department of Education. The Department of Education correctly declined to take cognizance of the said proposal on the ground that the issue of the minority status of the Respondent no.1-Trust was pending and there were other senior qualified teachers available in the Respondent no.2- school and junior college. It is not the case of Ms. Pushpa John that she was not aware about the pending challenge qua the minority status of the Trust/School. It is clear from the appointment letter dated 29th November 2001 issued to the Respondent no.4 that she was informed by the Respondent no.1Trust that her appointment was by virtue of their minority status, which minority status was withdrawn/cancelled by an order dated 21st May 2002. Respondent no.4 cannot claim a vested right to continue as the Head Mistress of the Respondent no.2 merely on the basis of the fact that the erroneous order dated 26th August 1997 subsisted on the date of her appointment. As held hereinabove, the Respondent -Trust /School never enjoyed the minority status and

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therefore, the origin of appointment of Respondent no.4 Ms. Pushpa John as Head Mistress of Respondent no.2 – school and junior college is not lawful. In view thereof, the submissions advanced on behalf of Respondent no.4 that she was reduced in rank without following the procedure laid down under the MEPS Act, 1977 and the Rules, is not tenable and is rejected.

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The decision of the Full Bench of this Court in the matter of St. Ulai High School & Anr. v/s. Devendraprasad Jagannath Singh & Anr. (Supra) is also of no assistance to Respondent no.4 Ms. Pushpa John. In the said decision of the Full Bench, it is held that if there was a breach of the conditions governing the grant in aid, it was open to the Government to take action against the management, but this would not validate the appointment of a teacher when the matter of appointment was covered under the MEPS Act, 1977 and the Rules. Therefore, in that case, admittedly, the appointment was as envisaged under the law i.e. the MEPS Act, 1977 and the Rules. In the instant case, since it is decided by an order dated 21st May 2002 that the Respondent-Trust / School does not enjoy minority status and the earlier order dated 26th August 1997 is withdrawn/cancelled, the Respondent no.4 could never have been appointed as Head Mistress of Respondent no.2 since there were senior qualified

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teachers available for appointment to the post of Head Master/Head Mistress. The appointment of Ms. Pushpa John is therefore, not covered under the provisions of MEPS Act, 1977 and the Rules and as stated earlier, the origin of the appointment of Ms. Pushpa John as Head Mistress of Respondent no.2, is not lawful. In view thereof, the submission on behalf of Ms. Pushpa John that reduction in rank cannot be effected on the ground of non approval by the Education Department, is not tenable and is rejected.

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Under the circumstances, Respondent no. 4 cannot be allowed to continue as a Head Mistress of the Respondent no.2 – school and junior college and the order passed by the School Tribunal, Mumbai, to the extent of quashing and setting aside the order of Respondent no.1 – Trust dated 9th March 2001 and directing the respondents to reinstate the appellant Ms. Pushpa John on the post of Head Mistress of Respondent no.2 – school and junior college with full back wages and continuity of service, is quashed and set aside. As far as the issue pertaining to the seniority of the Petitioners in the above two writ petitions as well as the other teachers of Respondent no. 2 is concerned, the same shall be decided by the Respondent no. 3 within a period of 12 weeks from the date of pronouncement of this order. In view thereof, rule is made absolute to the above extent.

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In view of the aforesaid order passed in Writ Petition No. 1948 of 2003, no separate orders are passed in Writ Petition No.683 of 2002, and the said Writ Petition No. 683 of 2002 also stands disposed of in the same terms.

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Order accordingly.

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34, The Learned advocate appearing for Ms. Pushpa John, Respondent No.4, applies for stay of the order for a period of 8 weeks. Since this Court has already held that the origin of the order of Ms. Pushpa John is unlawful and further since Mr. R. V. Govilkar, Learned Advocate appearing for Ms. Pushpa Dhaktode opposes the grant of any stay on the ground that Ms. Pushpa Dhaktode who is admittedly senior to Ms. Pushpa John is due to retire in this month, the application for stay is rejected.

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[S.J. KATHAWALLA, J.]

Vitthal Jankar v. Versova Education Trust and Ors.

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Vitthal Jankar v. Versova Education Trust and Ors.

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