XIV-A K.E.R. is appointment by promotion based on seniority. So much so, appellant being the seniormost teacher as on 1.4.2004 should have been the normal choice for appointment as Headmistress. This is certainly subject to the privilege of the fourth respondent as a minority institution to appoint from among qualified persons a teacher of their choice as Headmistress. In this case the management has no case that the appellant or any of the senior teachers qualified to be appointed as Headmistress are not eligible for appointment. All what they wanted was to go by the practice of appointing from the school, if available, or from outside, a qualified nun as Headmistress of the school. The question, therefore, is when the management could not find a suitable nun for appointment as Headmistress, shouldn't they have appointed the seniormost teacher as Headmistress as provided under R.43 extracted above. It is in this context we have to consider the legality and correctness of the direction issued by the learned Single Judge to the management to select a qualified teacher of their choice for appointment as Headmistress on notional basis after appellant and the other senior teachers retired from service. We do not think the privilege available under Article 30(1) to appoint a Headmistress of the choice of the Minority Management is a right to be exercised notionally after failing to appoint Headmistress in exercise of such right when the vacancy arose. Minority right under Art.30(1) is a privilege to achieve an objective that is, to run the school under a Headmaster/Headmistress of the choice of the management and not a right on the management to confer notional benefits on teachers of their choice after their retirement. Therefore, when the right under Art.30(1) of the Constitution is not exercised by the management when the vacancy of Headmistress arose, they forfeit their privilege once for all and for notional promotion and benefits, normal Rule for appointment takes over. The management did not want to appoint a qualified teacher from the school as Headmistress is evident from the fact that when the vacancy arose on 1.4.2004, they did not choose any such teacher or promote such teacher to the post of Headmistress. So much so, we do not think they are entitled to exercise the privilege in the appointment of Headmistress on a notional basis now only to defeat the claim of the appellant. Since the 4th respondent had no choice among any of the qualified teachers of the school for promotion as Headmistress and they were only keen to appoint a qualified nun as Headmistress which they did not get until the selected nun acquired the qualification on 3.8.2004, we feel the appellant who was the seniormost teacher was entitled under R.43 to be appointed as Headmistress on notional basis and only she is entitled to get consequential benefits. We, therefore, allow the Writ Appeal in part by vacating the direction issued by the learned Single Judge to the 4th respondent to select a Headmistress of their choice notionally for appointment with effect from 1.4.2004 and direct the management to grant notional appointment to the appellant as Headmistress on 1.4.2004 which will be approved by educational authorities. The educational authorities are directed to treat the appellant as having served as Headmistress from 1.4.2004 till the date of her retirement i.e. 31.5.2007 and give her terminal benefits and fix eligible pension in the scale of pay of Headmistress. However, since appellant has not served as Headmistress, she shall not be entitled to any arrears of pay applicable to Headmistress. Consequently there will be direction to the D.E.O. to approve appointment of 5th respondent as Headmistress with effect from 1.6.2007. If any salary or financial benefit is drawn by the 5th respondent in the post of Headmistress until 31.5.2007, the same shall be recovered by the Government from the 4th respondent within two months from date of receipt of copy of this judgment.”
