Full Judgment Text
1
wp1369.99.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Writ Petition No.1369 of 1999
Bhimrao s/o Keshao Telang,
Aged _____ years,
Occupation – Service,
Resident of Parshioni,
District Nagpur. ... Petitioner
Versus
1. Shri Prabhudas s/o Pundlik Rangari,
Aged about 43 years,
Occupation – Service,
Resident of Ward No.5,
Parshioni,
District Nagpur.
2. Sarvodaya Shikshan Mandal,
through its Secretary,
Parshioni,
District Nagpur.
3. The Education Officer (Secondary),
Zilla Parishad, Nagpur.
4. The Presiding Officer,
School Tribunal, Nagpur. ... Respondents
::: Downloaded on - 02/06/2024 03:03:12 :::
2
wp1369.99.odt
Shri Anand Parchure, Advocate for Petitioner.
Shri M.G. Bhangde, Senior Advocate, assisted by
Shri G.R. Agrawal, Advocate for Respondent No.1.
Shri D.B. Patel, AGP for Respondent Nos.3 and 4.
Coram : R.K. Deshpande, J.
Date of Reserving the Judgment : 1062013.
Date of Pronouncing the Judgment : 2162013.
Judgment :
1. Heard Shri Anand Parchure, the learned counsel for the
petitioner; and Shri M.G. Bhangde, the learned Senior Counsel,
assisted by Shri G.R. Agrawal, Advocate, for the respondent
No.1.
2. The petitioner was promoted to the post of Head Master
of the School by an order dated 2341997, which was the
::: Downloaded on - 02/06/2024 03:03:12 :::
3
wp1369.99.odt
subjectmatter of challenge in Appeal No.STN/40 of 1997 filed
by the respondent No.1 under Section 9 of the Maharashtra
Employees of Private Schools (Conditions of Service) Regulation
Act, 1977 (“MEPS Act”) before the School Tribunal, Nagpur.
The School Tribunal, by its judgment and order dated 1931999,
has allowed the said appeal by setting aside the order of
promotion of the petitioner as Head Master and directing the
respondent No.2Management to appoint the respondent No.1
Prabhudas Pundlik Rangari to the post of Head Master of the
School. Hence, this writ petition.
3. The facts of the case are in a very short compass. The
question of inter se seniority between the petitioner and the
respondent No.1 is concluded by the common judgment passed
by the Division Bench of this Court in Letters Patent Appeals
::: Downloaded on - 02/06/2024 03:03:12 :::
4
wp1369.99.odt
Nos.70 and 71 of 1999 on 2062012. The petitionerBhimrao
Keshao Telang is held to be senior to the respondent No.1
Prabhudas Pundlik Rangari in the cadre of Assistant Teacher.
4. The promotion of the petitioner to the post of Head
Master has been set aside by the Tribunal on the ground that the
petitioner has failed to submit his willingness for promotion
within a period of fifteen days from the date of communication of
occurrence of vacancy, issued by the Management in terms of the
Explanation to subrule (3) of Rule 3 under the Maharashtra
Employees of Private Schools (Conditions of Service) Rules,
1981 (“MEPS Rules”) and this amounts to relinquishment of
claim by the petitioner. It has been held that when the
willingness of the petitioner was called for the first time by the
Management on 1721997, the petitioner expressed his
::: Downloaded on - 02/06/2024 03:03:12 :::
5
wp1369.99.odt
unwillingness in writing on 2421997 and thereafter in response
to second offer given on 631997, the petitioner expressed his
willingness for the same on 14/1531997. According to the
Tribunal, the requirement to submit the willingness within a
period of fifteen days was mandatory and breach of it, has
resulted in relinquishment of the claim for the post of Head
Master by the petitioner.
5. It is not in dispute that the Management by its
communication dated 1721997, called upon the petitioner to
express his willingness for being appointed as Head Master
within a period of fifteen days from the date of receipt of the
communication. The communication states that if the petitioner
is not willing to have such an appointment, then he should
express his voluntary unwillingness in his own handwriting
::: Downloaded on - 02/06/2024 03:03:12 :::
6
wp1369.99.odt
before the Education Officer and to submit it to the Management
duly endorsed by the Education Officer.
6. Initially, the petitioner expressed his to
unwillingness
the Management for being appointed as Head Master on
2421997, with an intimation that he shall produce his statement
of voluntary unwillingness duly endorsed by the Education
Officer, to the Management. The Management sent a reminder to
the petitioner for it on 631997, but the petitioner on
14/1531997 expressed his willingness for being appointed as
Head Master and informed the Management that the earlier
communication was given in haste and that he has not submitted
his statement of unwillingness before the Education Officer, as
required by the rule. He, therefore, submitted that his earlier
communication dated 2421997 is being withdrawn and claimed
::: Downloaded on - 02/06/2024 03:03:12 :::
7
wp1369.99.odt
an appointment to the post of Head Master by way of promotion.
7. Shri Parchure, the learned counsel appearing for the
petitioner, submits that the Tribunal has committed an error in
holding that there is a requirement of submitting the willingness
by a teacher concerned, within a period of fifteen days from the
date of receipt of the communication of occurrence of vacancy,
issued by the Management. He further submits that even if there
is any such requirement, the same is not mandatory, and failure to
submit the willingness within a period of fifteen days shall not
result in the consequences of disregarding the claim of a teacher.
He submits that there is no prohibition under the rule for the
Management to repeatedly ask for willingness of a concerned
teacher, and even if it is shown that a teacher has communicated
his willingness within a period of fifteen days from the date of
::: Downloaded on - 02/06/2024 03:03:12 :::
8
wp1369.99.odt
receipt of any such communication from the Management, the
same will be sufficient to show the compliance. He further
submits that in response to the second communication
dated 631997, the petitioner had furnished his willingness on
14/1531997, which was within a period of fifteen days, and
hence the claim of the petitioner could not have been disregarded.
8. Shri Bhangde, the learned Senior Counsel appearing for
the respondent No.1, submits that the first part of the Explanation
below subrule (3) of Rule 3 of the MEPS Rules obliges a teacher
to furnish his willingness within a period of fifteen days. He
further submits that the last part of the said Explanation clearly
provides that in the event of a teacher, failing to submit his
willingness to the appointment to the post, it shall be assumed
that he has relinquished his claim for the post. He submits that
::: Downloaded on - 02/06/2024 03:03:12 :::
9
wp1369.99.odt
the requirement of submitting the willingness within a period of
fifteen days from the date of receipt of the communication from
the Management regarding occurrence of vacancy, is mandatory,
and failure to comply with it by a teacher results in the
consequences of disregarding the claim of such a teacher on the
ground that he has relinquished his claim.
9. Rule 3 of the MEPS Rules deals with the qualification
and appointment of Head. The controversy revolves around the
interpretation of the provision of subrule (3) of Rule 3 of the
MEPS Rules along with the Explanation therein; the relevant
portion of which, is reproduced below :
Subrule (3) of Rule 3 – Qualifications and
appointment of Head :
“The Management of a school including a night school
shall fill up the post of the Head by appointing the
::: Downloaded on - 02/06/2024 03:03:12 :::
10
wp1369.99.odt
seniormost member of the teaching staff (in accordance
with the guidelines laid down in Schedule “F” from
amongst those employed in a school (if it is the only
school run by the Management) or schools [if there are
more than one school (excluding night school)
conducted by it] who fulfills the conditions laid down in
subrule (1) and who has a satisfactory record of
service.
Explanation. For the purpose of this rule, the
Management shall communicate the occurrence of
vacancy of the Head to the seniormost qualified teacher
having satisfactory record of service and ask him to
submit his willingness for appointment to the post within
a period of fifteen days from the date of receipt of the
communication. The claim of the seniormost qualified
teacher having satisfactory record of service, for
appointment to the post of Head, may be disregarded
only if he, of his own free will, gives a statement in
writing to the Education Officer that he has voluntarily
::: Downloaded on - 02/06/2024 03:03:12 :::
11
wp1369.99.odt
relinquished his claim to the post. This shall not debar
him from being considered for subsequent vacancies as
and when they occur. Such a teacher shall record his
statement in his own handwriting before the Education
Officer within a period of fifteen days from the date of
receipt of the communication as aforesaid and the
Education Officer shall endorse it as having been
recorded in his presence. A statement once duly made
by such teacher before the Education Officer shall not
be allowed to be withdrawn. In the event of the teacher
failing to submit his willingness for appointment to the
post or to give a statement to the Education Officer
within a period of fifteen days, it shall be assumed that
he has relinquished his claim on the said post. ...”
10. Rule 3 deals with the qualifications and appointment of
Head. Subrule (3) therein confers a right upon a seniormost
member of the teaching staff, who fulfills the conditions laid
::: Downloaded on - 02/06/2024 03:03:12 :::
12
wp1369.99.odt
down in subrule (1), having satisfactory record of service, to be
appointed to the post of the Head of the School. The Explanation
below subrule (3) is in the nature of proviso dealing with the
situation in which only, a teacher can be deprived of his right of
being appointed as the Head of the School, under subrule (3) of
Rule 3. The Explanation also provides the mode and manner in
which a claim of a teacher for appointment to the post of Head
can be disregarded. It is, therefore, clear that a claim of a teacher
for appointment to the post of Head can be disregarded only in
the mode and manner, which is prescribed and not in any other
manner. The requirement is mandatory. The deprival of claim in
any other manner or in breach of the mode and manner prescribed
shall stand vitiated.
11. The Division Bench of this Court has rendered the
::: Downloaded on - 02/06/2024 03:03:12 :::
13
wp1369.99.odt
judgment in the case of Sukhdeo Ragho Deore v. Chairman,
Gram Shikshan Samiti, Umrane, Dist. Nasik and others , reported
in 2002(1) Mh.L.J. 885 , holding that the procedure contemplated
under Rule 61.2(a) of the Secondary School Code (which is
similar to the provision in the Explanation in question, though
may not be in pari materia ) is mandatory in nature and must be
complied with strictly. By applying the ratio of the said decision
also, it will have to be held that the mode and manner prescribed,
to disregard the claim of a seniormost teacher in the second part
of the Explanation is mandatory. The strict compliance of it is
required to be shown by the Management so as to disregard such
claim by treating it as relinquished.
12. In order to deprive a claim under the Explanation, it has
to be shown that a teacher has on his own freewill, given a
::: Downloaded on - 02/06/2024 03:03:12 :::
14
wp1369.99.odt
statement in his own handwriting to the Education Officer, stating
that he has voluntarily relinquished his claim for the post of Head
Master, within a period of fifteen days from the date of receipt of
the communication of the offer by the Management and that such
a statement is duly endorsed by the Education Officer, as having
been recorded in his presence. A statement once duly made by
such a teacher before the Education Officer is not permitted to be
withdrawn, and it is assumed that such a teacher has relinquished
his claim for the said post. Thus, the burden of proof is upon the
Management, if it wanted to disregard the claim of such teacher,
to show that there is a relinquishment of a claim by such a
teacher.
13. The last portion of the Explanation heavily relied upon
by Shri Bhangde states that in the event of a teacher failing to
::: Downloaded on - 02/06/2024 03:03:12 :::
15
wp1369.99.odt
submit his willingness for appointment to the post or to give a
statement to the Education Officer, within a period of fifteen
days, it shall be assumed that he has relinquished his claim for the
post. Two questions fall for consideration in respect of the
interpretation of the this provision, viz. (i) whether a teacher
concerned is required to submit his willingness for the
appointment to the said post, within a period of fifteen days from
the date of receipt of the communication regarding occurrence of
vacancy by the Management?, and (ii) if there is any such
requirement, whether it is mandatory, and failure to submit such
willingness within a period of fifteen days should result in
disregarding the claim of a teacher as relinquished?
14. The first part of the Explanation casts a duty upon the
Management to communicate the occurrence of such vacancy and
::: Downloaded on - 02/06/2024 03:03:12 :::
16
wp1369.99.odt
to ask a teacher concerned to submit his willingness for the
appointment to the post. The further obligation upon the
Management is, to provide a period of fifteen days to a teacher, to
think of submitting his willingness for the appointment to the
post. Thus, the provision deals with the duties and obligations of
the Management and not with the duties and obligations of a
teacher. The provision does not create any obligation upon a
teacher concerned to submit his willingness, within a period of
fifteen days. It is open for such teacher to submit his willingness,
even after expiry of the period of fifteen days. It is, therefore,
difficult to accept the proposition that in terms of the first part of
the Explanation, the teacher is bound to submit his willingness
within a period of fifteen days, as urged.
15. There is no provision preventing the Management from
::: Downloaded on - 02/06/2024 03:03:12 :::
17
wp1369.99.odt
issuing repeated communications calling upon a teacher to
furnish his willingness for the appointment to the post of Head
upon occurrence of vacancy. Similarly, there is no provision
preventing a teacher concerned from withdrawing any such
willingness, if submitted within a period of fifteen days. It is
open for a teacher to withdraw such willingness and he is not
bound to accept the offer of the Management for appointment to
the post of Head Master, even if the willingness furnished is not
withdrawn. It is, therefore, held that the submission of
willingness by a teacher for appointment to the post, in response
to any one of the communications repeatedly issued, can be
accepted and acted upon by the Management.
16. In the first part of the Explanation, it is merely an
expectation from a teacher concerned, to submit his willingness
::: Downloaded on - 02/06/2024 03:03:12 :::
18
wp1369.99.odt
asked for by the Management, within a period of fifteen days.
Simultaneously, a teacher unwilling to accept the offer of the
Management is expected to furnish within a period of fifteen
days, a statement on his own freewill recorded in his own
handwriting before the Education Officer stating that he has
relinquished his claim to the post and such statement is endorsed
by the Education Officer as having been recorded in his presence.
It may happen that a teacher submits his unwillingness for
appointment to the post, within a period of fifteen days, but fails
to give a statement to the Education Officer within such period.
Significantly, this is not the event or situation to be considered
under the second part of the Explanation to disregard the claim
and/or to treat the claim of such a teacher as relinquished. It may
also happen that a teacher may not submit his willingness, within
a period of fifteen days, but he may give a statement of his
::: Downloaded on - 02/06/2024 03:03:12 :::
19
wp1369.99.odt
unwillingness to the Education Officer, in the manner prescribed
and submits it to the Management, as contemplated by the second
part of the Explanation. In such an event, a statement once duly
made cannot be permitted to be withdrawn, and mere failure to
submit willingness within a period of fifteen days, as
contemplated in the first part of the Explanation, will not prevent
the assumption of relinquishment of claim. Such assumption
shall start operating upon endorsing the statement of
unwillingness by the Education Officer. It is, therefore, difficult
to accept that the requirement, if any, of submitting willingness
within a period of fifteen days, is mandatory.
17. Relying upon the two decisions of the Apex Court – one
Mohd. Shabir State of Maharashtra
in the case of v. , reported in
(1979) 1 SCC 568 ; and second in the case of Dr. M.K. Salpekar v.
::: Downloaded on - 02/06/2024 03:03:12 :::
20
wp1369.99.odt
Sunil Kumar Shamsunder Chaudhari and others , reported in
(1988) 4 SCC 21 , Shri Bhangde has urged that the absence of
punctuation comma before the word ' or' in the last part of the
Explanation, indicates that the sentence is one indivisible whole
and hence the period of fifteen days specified in the sentence
applies also to the event of a teacher failing to submit his
willingness for the appointment to the post. As against this, the
argument of Shri Parchure is that the word ' ' in the last portion
or
of the Explanation has to be read as ' and ' to urge that mere failure
to submit willingness within fifteen days will not suffice to
disregard the claim, but in addition to it a statement duly made in
the mode and manner prescribed, also needs to be established to
assume the relinquishment of claim.
18. The entire scheme of the Explanation shows that a claim
::: Downloaded on - 02/06/2024 03:03:12 :::
21
wp1369.99.odt
of a teacher can be disregarded only upon the assumption to be
drawn, as contemplated by the Explanation, in respect of the
relinquishment of the claim by such a teacher. It is only in the
mode and manner prescribed under the Explanation that a claim
can be relinquished. It is not the case of the Management, nor it
is established that the petitioner has relinquished his claim in the
mode and manner prescribed under the Explanation, which is
held to be mandatory. Mere failure to submit willingness within
a period of fifteen days from the date of receipt of offer by the
Management for appointment to the post of Head, does not result
in the consequences of relinquishment of claim. Keeping in view
the object of the Explanation, and the context in which the
requirement is placed, it is not possible to hold that the last
portion of the Explanation is indivisible and the period of fifteen
days specified therein applies also to the event of a teacher failing
::: Downloaded on - 02/06/2024 03:03:12 :::
22
wp1369.99.odt
to submit his willingness for appointment to the post. This
provision has to be construed keeping in view the object and the
context in which the requirement is prescribed. Hence, the
decisions relied upon by Shri Bhangde, are not at all attracted. It
is also not possible to read the word ' ' occurring therein as
or
' and ', as suggested by Shri Parchure. If such argument is
accepted, then even if a teacher submits his unwillingness to
accept the offer of the Management in the mode and manner
prescribed under the provision, it will not be treated as the claim
relinquished.
19. In view of above, the School Tribunal has committed an
error of law in holding that the requirement to submit the
willingness within a period of fifteen days was mandatory and the
breach of it, has resulted in relinquishment of claim for the post
::: Downloaded on - 02/06/2024 03:03:12 :::
23
wp1369.99.odt
of Head Master by the petitioner. The judgment and order passed
by the School Tribunal, impugned in this cannot, cannot,
therefore, be sustained. The same needs to be quashed and set
aside and the appeal filed by the respondent No.1 needs to be
dismissed.
20. In the result, the writ petition is allowed. The judgment
and order dated 1931999 passed in Appeal No.STN/40 of 1997
by the School Tribunal, Nagpur, is hereby quashed and set aside
and the said appeal filed by the respondent No.1 is dismissed.
21. Rule is made absolute in above terms. No order as to
costs.
.
JUDGE
22. At this stage, the learned counsel for the respondent No.1
::: Downloaded on - 02/06/2024 03:03:12 :::
24
wp1369.99.odt
submits that the respondent No.1 is working as Head Master
since 1999 and, therefore, the effect, operation and
implementation of this judgment be stayed for a further period of
six weeks. It is informed that the petitioner is left with one year
for his retirement on superannuation. In view of this, the prayer
for grant of stay of this judgment, is rejected.
JUDGE .
PDL
::: Downloaded on - 02/06/2024 03:03:12 :::
wp1369.99.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Writ Petition No.1369 of 1999
Bhimrao s/o Keshao Telang,
Aged _____ years,
Occupation – Service,
Resident of Parshioni,
District Nagpur. ... Petitioner
Versus
1. Shri Prabhudas s/o Pundlik Rangari,
Aged about 43 years,
Occupation – Service,
Resident of Ward No.5,
Parshioni,
District Nagpur.
2. Sarvodaya Shikshan Mandal,
through its Secretary,
Parshioni,
District Nagpur.
3. The Education Officer (Secondary),
Zilla Parishad, Nagpur.
4. The Presiding Officer,
School Tribunal, Nagpur. ... Respondents
::: Downloaded on - 02/06/2024 03:03:12 :::
2
wp1369.99.odt
Shri Anand Parchure, Advocate for Petitioner.
Shri M.G. Bhangde, Senior Advocate, assisted by
Shri G.R. Agrawal, Advocate for Respondent No.1.
Shri D.B. Patel, AGP for Respondent Nos.3 and 4.
Coram : R.K. Deshpande, J.
Date of Reserving the Judgment : 1062013.
Date of Pronouncing the Judgment : 2162013.
Judgment :
1. Heard Shri Anand Parchure, the learned counsel for the
petitioner; and Shri M.G. Bhangde, the learned Senior Counsel,
assisted by Shri G.R. Agrawal, Advocate, for the respondent
No.1.
2. The petitioner was promoted to the post of Head Master
of the School by an order dated 2341997, which was the
::: Downloaded on - 02/06/2024 03:03:12 :::
3
wp1369.99.odt
subjectmatter of challenge in Appeal No.STN/40 of 1997 filed
by the respondent No.1 under Section 9 of the Maharashtra
Employees of Private Schools (Conditions of Service) Regulation
Act, 1977 (“MEPS Act”) before the School Tribunal, Nagpur.
The School Tribunal, by its judgment and order dated 1931999,
has allowed the said appeal by setting aside the order of
promotion of the petitioner as Head Master and directing the
respondent No.2Management to appoint the respondent No.1
Prabhudas Pundlik Rangari to the post of Head Master of the
School. Hence, this writ petition.
3. The facts of the case are in a very short compass. The
question of inter se seniority between the petitioner and the
respondent No.1 is concluded by the common judgment passed
by the Division Bench of this Court in Letters Patent Appeals
::: Downloaded on - 02/06/2024 03:03:12 :::
4
wp1369.99.odt
Nos.70 and 71 of 1999 on 2062012. The petitionerBhimrao
Keshao Telang is held to be senior to the respondent No.1
Prabhudas Pundlik Rangari in the cadre of Assistant Teacher.
4. The promotion of the petitioner to the post of Head
Master has been set aside by the Tribunal on the ground that the
petitioner has failed to submit his willingness for promotion
within a period of fifteen days from the date of communication of
occurrence of vacancy, issued by the Management in terms of the
Explanation to subrule (3) of Rule 3 under the Maharashtra
Employees of Private Schools (Conditions of Service) Rules,
1981 (“MEPS Rules”) and this amounts to relinquishment of
claim by the petitioner. It has been held that when the
willingness of the petitioner was called for the first time by the
Management on 1721997, the petitioner expressed his
::: Downloaded on - 02/06/2024 03:03:12 :::
5
wp1369.99.odt
unwillingness in writing on 2421997 and thereafter in response
to second offer given on 631997, the petitioner expressed his
willingness for the same on 14/1531997. According to the
Tribunal, the requirement to submit the willingness within a
period of fifteen days was mandatory and breach of it, has
resulted in relinquishment of the claim for the post of Head
Master by the petitioner.
5. It is not in dispute that the Management by its
communication dated 1721997, called upon the petitioner to
express his willingness for being appointed as Head Master
within a period of fifteen days from the date of receipt of the
communication. The communication states that if the petitioner
is not willing to have such an appointment, then he should
express his voluntary unwillingness in his own handwriting
::: Downloaded on - 02/06/2024 03:03:12 :::
6
wp1369.99.odt
before the Education Officer and to submit it to the Management
duly endorsed by the Education Officer.
6. Initially, the petitioner expressed his to
unwillingness
the Management for being appointed as Head Master on
2421997, with an intimation that he shall produce his statement
of voluntary unwillingness duly endorsed by the Education
Officer, to the Management. The Management sent a reminder to
the petitioner for it on 631997, but the petitioner on
14/1531997 expressed his willingness for being appointed as
Head Master and informed the Management that the earlier
communication was given in haste and that he has not submitted
his statement of unwillingness before the Education Officer, as
required by the rule. He, therefore, submitted that his earlier
communication dated 2421997 is being withdrawn and claimed
::: Downloaded on - 02/06/2024 03:03:12 :::
7
wp1369.99.odt
an appointment to the post of Head Master by way of promotion.
7. Shri Parchure, the learned counsel appearing for the
petitioner, submits that the Tribunal has committed an error in
holding that there is a requirement of submitting the willingness
by a teacher concerned, within a period of fifteen days from the
date of receipt of the communication of occurrence of vacancy,
issued by the Management. He further submits that even if there
is any such requirement, the same is not mandatory, and failure to
submit the willingness within a period of fifteen days shall not
result in the consequences of disregarding the claim of a teacher.
He submits that there is no prohibition under the rule for the
Management to repeatedly ask for willingness of a concerned
teacher, and even if it is shown that a teacher has communicated
his willingness within a period of fifteen days from the date of
::: Downloaded on - 02/06/2024 03:03:12 :::
8
wp1369.99.odt
receipt of any such communication from the Management, the
same will be sufficient to show the compliance. He further
submits that in response to the second communication
dated 631997, the petitioner had furnished his willingness on
14/1531997, which was within a period of fifteen days, and
hence the claim of the petitioner could not have been disregarded.
8. Shri Bhangde, the learned Senior Counsel appearing for
the respondent No.1, submits that the first part of the Explanation
below subrule (3) of Rule 3 of the MEPS Rules obliges a teacher
to furnish his willingness within a period of fifteen days. He
further submits that the last part of the said Explanation clearly
provides that in the event of a teacher, failing to submit his
willingness to the appointment to the post, it shall be assumed
that he has relinquished his claim for the post. He submits that
::: Downloaded on - 02/06/2024 03:03:12 :::
9
wp1369.99.odt
the requirement of submitting the willingness within a period of
fifteen days from the date of receipt of the communication from
the Management regarding occurrence of vacancy, is mandatory,
and failure to comply with it by a teacher results in the
consequences of disregarding the claim of such a teacher on the
ground that he has relinquished his claim.
9. Rule 3 of the MEPS Rules deals with the qualification
and appointment of Head. The controversy revolves around the
interpretation of the provision of subrule (3) of Rule 3 of the
MEPS Rules along with the Explanation therein; the relevant
portion of which, is reproduced below :
Subrule (3) of Rule 3 – Qualifications and
appointment of Head :
“The Management of a school including a night school
shall fill up the post of the Head by appointing the
::: Downloaded on - 02/06/2024 03:03:12 :::
10
wp1369.99.odt
seniormost member of the teaching staff (in accordance
with the guidelines laid down in Schedule “F” from
amongst those employed in a school (if it is the only
school run by the Management) or schools [if there are
more than one school (excluding night school)
conducted by it] who fulfills the conditions laid down in
subrule (1) and who has a satisfactory record of
service.
Explanation. For the purpose of this rule, the
Management shall communicate the occurrence of
vacancy of the Head to the seniormost qualified teacher
having satisfactory record of service and ask him to
submit his willingness for appointment to the post within
a period of fifteen days from the date of receipt of the
communication. The claim of the seniormost qualified
teacher having satisfactory record of service, for
appointment to the post of Head, may be disregarded
only if he, of his own free will, gives a statement in
writing to the Education Officer that he has voluntarily
::: Downloaded on - 02/06/2024 03:03:12 :::
11
wp1369.99.odt
relinquished his claim to the post. This shall not debar
him from being considered for subsequent vacancies as
and when they occur. Such a teacher shall record his
statement in his own handwriting before the Education
Officer within a period of fifteen days from the date of
receipt of the communication as aforesaid and the
Education Officer shall endorse it as having been
recorded in his presence. A statement once duly made
by such teacher before the Education Officer shall not
be allowed to be withdrawn. In the event of the teacher
failing to submit his willingness for appointment to the
post or to give a statement to the Education Officer
within a period of fifteen days, it shall be assumed that
he has relinquished his claim on the said post. ...”
10. Rule 3 deals with the qualifications and appointment of
Head. Subrule (3) therein confers a right upon a seniormost
member of the teaching staff, who fulfills the conditions laid
::: Downloaded on - 02/06/2024 03:03:12 :::
12
wp1369.99.odt
down in subrule (1), having satisfactory record of service, to be
appointed to the post of the Head of the School. The Explanation
below subrule (3) is in the nature of proviso dealing with the
situation in which only, a teacher can be deprived of his right of
being appointed as the Head of the School, under subrule (3) of
Rule 3. The Explanation also provides the mode and manner in
which a claim of a teacher for appointment to the post of Head
can be disregarded. It is, therefore, clear that a claim of a teacher
for appointment to the post of Head can be disregarded only in
the mode and manner, which is prescribed and not in any other
manner. The requirement is mandatory. The deprival of claim in
any other manner or in breach of the mode and manner prescribed
shall stand vitiated.
11. The Division Bench of this Court has rendered the
::: Downloaded on - 02/06/2024 03:03:12 :::
13
wp1369.99.odt
judgment in the case of Sukhdeo Ragho Deore v. Chairman,
Gram Shikshan Samiti, Umrane, Dist. Nasik and others , reported
in 2002(1) Mh.L.J. 885 , holding that the procedure contemplated
under Rule 61.2(a) of the Secondary School Code (which is
similar to the provision in the Explanation in question, though
may not be in pari materia ) is mandatory in nature and must be
complied with strictly. By applying the ratio of the said decision
also, it will have to be held that the mode and manner prescribed,
to disregard the claim of a seniormost teacher in the second part
of the Explanation is mandatory. The strict compliance of it is
required to be shown by the Management so as to disregard such
claim by treating it as relinquished.
12. In order to deprive a claim under the Explanation, it has
to be shown that a teacher has on his own freewill, given a
::: Downloaded on - 02/06/2024 03:03:12 :::
14
wp1369.99.odt
statement in his own handwriting to the Education Officer, stating
that he has voluntarily relinquished his claim for the post of Head
Master, within a period of fifteen days from the date of receipt of
the communication of the offer by the Management and that such
a statement is duly endorsed by the Education Officer, as having
been recorded in his presence. A statement once duly made by
such a teacher before the Education Officer is not permitted to be
withdrawn, and it is assumed that such a teacher has relinquished
his claim for the said post. Thus, the burden of proof is upon the
Management, if it wanted to disregard the claim of such teacher,
to show that there is a relinquishment of a claim by such a
teacher.
13. The last portion of the Explanation heavily relied upon
by Shri Bhangde states that in the event of a teacher failing to
::: Downloaded on - 02/06/2024 03:03:12 :::
15
wp1369.99.odt
submit his willingness for appointment to the post or to give a
statement to the Education Officer, within a period of fifteen
days, it shall be assumed that he has relinquished his claim for the
post. Two questions fall for consideration in respect of the
interpretation of the this provision, viz. (i) whether a teacher
concerned is required to submit his willingness for the
appointment to the said post, within a period of fifteen days from
the date of receipt of the communication regarding occurrence of
vacancy by the Management?, and (ii) if there is any such
requirement, whether it is mandatory, and failure to submit such
willingness within a period of fifteen days should result in
disregarding the claim of a teacher as relinquished?
14. The first part of the Explanation casts a duty upon the
Management to communicate the occurrence of such vacancy and
::: Downloaded on - 02/06/2024 03:03:12 :::
16
wp1369.99.odt
to ask a teacher concerned to submit his willingness for the
appointment to the post. The further obligation upon the
Management is, to provide a period of fifteen days to a teacher, to
think of submitting his willingness for the appointment to the
post. Thus, the provision deals with the duties and obligations of
the Management and not with the duties and obligations of a
teacher. The provision does not create any obligation upon a
teacher concerned to submit his willingness, within a period of
fifteen days. It is open for such teacher to submit his willingness,
even after expiry of the period of fifteen days. It is, therefore,
difficult to accept the proposition that in terms of the first part of
the Explanation, the teacher is bound to submit his willingness
within a period of fifteen days, as urged.
15. There is no provision preventing the Management from
::: Downloaded on - 02/06/2024 03:03:12 :::
17
wp1369.99.odt
issuing repeated communications calling upon a teacher to
furnish his willingness for the appointment to the post of Head
upon occurrence of vacancy. Similarly, there is no provision
preventing a teacher concerned from withdrawing any such
willingness, if submitted within a period of fifteen days. It is
open for a teacher to withdraw such willingness and he is not
bound to accept the offer of the Management for appointment to
the post of Head Master, even if the willingness furnished is not
withdrawn. It is, therefore, held that the submission of
willingness by a teacher for appointment to the post, in response
to any one of the communications repeatedly issued, can be
accepted and acted upon by the Management.
16. In the first part of the Explanation, it is merely an
expectation from a teacher concerned, to submit his willingness
::: Downloaded on - 02/06/2024 03:03:12 :::
18
wp1369.99.odt
asked for by the Management, within a period of fifteen days.
Simultaneously, a teacher unwilling to accept the offer of the
Management is expected to furnish within a period of fifteen
days, a statement on his own freewill recorded in his own
handwriting before the Education Officer stating that he has
relinquished his claim to the post and such statement is endorsed
by the Education Officer as having been recorded in his presence.
It may happen that a teacher submits his unwillingness for
appointment to the post, within a period of fifteen days, but fails
to give a statement to the Education Officer within such period.
Significantly, this is not the event or situation to be considered
under the second part of the Explanation to disregard the claim
and/or to treat the claim of such a teacher as relinquished. It may
also happen that a teacher may not submit his willingness, within
a period of fifteen days, but he may give a statement of his
::: Downloaded on - 02/06/2024 03:03:12 :::
19
wp1369.99.odt
unwillingness to the Education Officer, in the manner prescribed
and submits it to the Management, as contemplated by the second
part of the Explanation. In such an event, a statement once duly
made cannot be permitted to be withdrawn, and mere failure to
submit willingness within a period of fifteen days, as
contemplated in the first part of the Explanation, will not prevent
the assumption of relinquishment of claim. Such assumption
shall start operating upon endorsing the statement of
unwillingness by the Education Officer. It is, therefore, difficult
to accept that the requirement, if any, of submitting willingness
within a period of fifteen days, is mandatory.
17. Relying upon the two decisions of the Apex Court – one
Mohd. Shabir State of Maharashtra
in the case of v. , reported in
(1979) 1 SCC 568 ; and second in the case of Dr. M.K. Salpekar v.
::: Downloaded on - 02/06/2024 03:03:12 :::
20
wp1369.99.odt
Sunil Kumar Shamsunder Chaudhari and others , reported in
(1988) 4 SCC 21 , Shri Bhangde has urged that the absence of
punctuation comma before the word ' or' in the last part of the
Explanation, indicates that the sentence is one indivisible whole
and hence the period of fifteen days specified in the sentence
applies also to the event of a teacher failing to submit his
willingness for the appointment to the post. As against this, the
argument of Shri Parchure is that the word ' ' in the last portion
or
of the Explanation has to be read as ' and ' to urge that mere failure
to submit willingness within fifteen days will not suffice to
disregard the claim, but in addition to it a statement duly made in
the mode and manner prescribed, also needs to be established to
assume the relinquishment of claim.
18. The entire scheme of the Explanation shows that a claim
::: Downloaded on - 02/06/2024 03:03:12 :::
21
wp1369.99.odt
of a teacher can be disregarded only upon the assumption to be
drawn, as contemplated by the Explanation, in respect of the
relinquishment of the claim by such a teacher. It is only in the
mode and manner prescribed under the Explanation that a claim
can be relinquished. It is not the case of the Management, nor it
is established that the petitioner has relinquished his claim in the
mode and manner prescribed under the Explanation, which is
held to be mandatory. Mere failure to submit willingness within
a period of fifteen days from the date of receipt of offer by the
Management for appointment to the post of Head, does not result
in the consequences of relinquishment of claim. Keeping in view
the object of the Explanation, and the context in which the
requirement is placed, it is not possible to hold that the last
portion of the Explanation is indivisible and the period of fifteen
days specified therein applies also to the event of a teacher failing
::: Downloaded on - 02/06/2024 03:03:12 :::
22
wp1369.99.odt
to submit his willingness for appointment to the post. This
provision has to be construed keeping in view the object and the
context in which the requirement is prescribed. Hence, the
decisions relied upon by Shri Bhangde, are not at all attracted. It
is also not possible to read the word ' ' occurring therein as
or
' and ', as suggested by Shri Parchure. If such argument is
accepted, then even if a teacher submits his unwillingness to
accept the offer of the Management in the mode and manner
prescribed under the provision, it will not be treated as the claim
relinquished.
19. In view of above, the School Tribunal has committed an
error of law in holding that the requirement to submit the
willingness within a period of fifteen days was mandatory and the
breach of it, has resulted in relinquishment of claim for the post
::: Downloaded on - 02/06/2024 03:03:12 :::
23
wp1369.99.odt
of Head Master by the petitioner. The judgment and order passed
by the School Tribunal, impugned in this cannot, cannot,
therefore, be sustained. The same needs to be quashed and set
aside and the appeal filed by the respondent No.1 needs to be
dismissed.
20. In the result, the writ petition is allowed. The judgment
and order dated 1931999 passed in Appeal No.STN/40 of 1997
by the School Tribunal, Nagpur, is hereby quashed and set aside
and the said appeal filed by the respondent No.1 is dismissed.
21. Rule is made absolute in above terms. No order as to
costs.
.
JUDGE
22. At this stage, the learned counsel for the respondent No.1
::: Downloaded on - 02/06/2024 03:03:12 :::
24
wp1369.99.odt
submits that the respondent No.1 is working as Head Master
since 1999 and, therefore, the effect, operation and
implementation of this judgment be stayed for a further period of
six weeks. It is informed that the petitioner is left with one year
for his retirement on superannuation. In view of this, the prayer
for grant of stay of this judgment, is rejected.
JUDGE .
PDL
::: Downloaded on - 02/06/2024 03:03:12 :::