Bombay High CourtMrs. Pushpa Surendra Dhaktode vs The Versova Education Trust on 7 June, 2010Author:S.J. KathawallaBench:S.J. Kathawalla1

             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
jmi              ORDINARY ORIGINAL CIVIL JURISDICTION




                                                                                 
                     WRIT PETITION NO.  683 OF 2002.




                                                         
      Mrs. Pushpa  Surendra Dhaktode                              ..Petitioner.
            v/s.
      The Versova Education Trust




                                                        
      and others                                                  ..Respondents.
                               ALONGWITH

                     WRIT PETITION NO.  1948   OF 2003




                                        
                        ig  (APPELLATE SIDE)

      Vitthal Jankar.                                     ..Petitioner.
            v/s.
                      
      Versova Education Trust & Ors.                      ..Respondents.

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


      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. .
                                          ....





                          CORAM : S.J. KATHAWALLA, J.Reserved on           :   23  April, 2010
                                                         rd


                         Pronounced on :   7  June, 2010
                                                    th





      J U D G  M E N TBy  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::: Downloaded on - 09/06/2013 15:59:03 :::2taken 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 




                                                           
        th
     13   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 
                                                                                              th 
     Inspector   as   recorded   in   paragraph   65   of   the   order   dated   15::: Downloaded on - 09/06/2013 15:59:03 :::3February   2003   passed   by   the   Presiding   Officer,   School   Tribunal, 




                                                                                  
     Mumbai.2.             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   theBombay   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 
      

                                                                             st
     appointed as Head Mistress of Respondent no. 2 from 1  December 
   



     2001 and was reverted back to the post of Assistant Teacher on and 
              th
     from 15  March 2002.  However, the order reverting her status was 
                                                                       th
     stayed   by   the   Tribunal   by   its   order   dated   15   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.3.             Mr.   Vitthal   Jankar,   the   Petitioner   in   Writ   Petition   No. 

     1948 of 2003 has inter-alia prayed for quashing and setting aside of 
                                                   th
     the   judgment   and   order   dated   15   February   2003   passed   by   the::: Downloaded on - 09/06/2013 15:59:03 :::4Presiding 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 2003.4.            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.5.            Sometime   in   the   year   1962   or   thereabout,   several::: Downloaded on - 09/06/2013 15:59:03 :::5prominent   residents   of   Versova,   Andheri   (West),   Mumbai,   came 




                                                                                 
     together   and   formed   an   Organization   called   "Versova   Welfare 

     Association",  duly  registered  under  theSocieties   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 


                th
                          
     granted by the Director of Education vide his letter   No.67(C)-C-1, 
                                                           th
     dated   11   April   1962.     Accordingly,   on   11   June   1962,   the   said 
                         
     Association started standard V in the said School.6.              The   members   of   the   said   association   were   of   the 
   



     opinion that the administration of the said school should be in the 
                                                                rd
     hands of an independent body.  Therefore, on 3  February 1963, the 

     Versova Education Trust was formed and registered as a public Trust 





     under   the   provisions   ofBombay   Public   Trusts   Act,   1950vide 

     registration No.E-2503.   The object clause of the said Trust as set 





     out in the Trust Deed reads thus :-"(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::: Downloaded on - 09/06/2013 15:59:03 :::6motivation and the object of the general public utility.(a) To conduct  the said Versova Welfare Associations  

                   High School.(b) To conduct other educational institutions.(c) To give relief to deserving persons in Education.(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.(e) To establish of help any school or research.(f) To award prizes for essays.(g)   To   help   in   publishing   useful   literatures   in   any  

                   language.(h) To award scholarships or donations in High Schools,  
   



                   Primary Schools or Colleges or Research centres and  

                   other allied institutions."7.            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.8.            The Trust comprised of trustees belonging to different::: Downloaded on - 09/06/2013 15:59:03 :::7caste,   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 
                                                         st
     30(1) of the Constitution of India.   On 21   July 1997, the Trust had 




                                                         
     the following trustees on its Board :-Name                 Mother Tongue       Religion
               1.  Dr. R.P. Kapoor                 Punjabi                   Hindu            




                                           
              2.  A.R.  Britto 
                           ig               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               Hindu9.             Some   of   the   trustees   on   the   Board   to   extract   more 

     benefits   to   the   Trust   and   themselves,   decided   to   claim   minority 





                                                                                    th
     status  for the said Trust.   Therefore, a resolution dated 10   June 

     1997   was   passed   claiming   minority   status   for   Respondent   no.2- 





     school and junior college run by the Respondent no.1- Trust, which 

     is reproduced hereunder :-"Resolved that as per M.E.P.S. (conditions of service)  

                    regulation Act, 1977, Revised 1978 under Rule No.3 (2)  

                    application be forwarded to Dy. Director of Education,::: Downloaded on - 09/06/2013 15:59:03 :::8Mumbai   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."Pursuant   to   the   above   resolution   passed,   certain   names   were 

     notified to the State Government under Rule 3(2) of theMaharashtra 
      

     Employees   of   Private   Schools   (Conditions   of   Service)   Regulation 
   



     Act, 1977(MEPS Act).10.           The said trustees prepared an incorrect list showing the 





     names of 8 trustees and submitted the same to the Deputy Director 
                               st
     of   Education   on   21   July   1997   alongwith   a   covering   letter.Interestingly, the said list included  the name of Mr. S.H. Daya, who 
                                                th
     had   resigned   as   a   trustee   on   30   September   1996   and   whose 
                                                                                          th 
     resignation   was   accepted   by   the   Board  vide   resolution   dated   10

     November 1996.     In   place   of   Mr. S.H. Daya, Mr. Pradeep Garg 
                                                                                          th 
     was   taken   on   Board   of   trustees   vide   change   report   dated   29::: Downloaded on - 09/06/2013 15:59:03 :::9December 1996.   Dr. Arun Kumar was also taken on Board as a 




                                                                                       
                                                     th
     trustee vide change report dated 18  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.11.
                         
                     On the basis of the misrepresentation by some of the 

     trustees   of   the   Respondent   no.1-Trust,   the   Deputy   Director   of 
                        
                                            th
     Education by his order dated 26  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 
                th                                        th
     dated   17   September   1997   and   25   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::: Downloaded on - 09/06/2013 15:59:03 :::10was granted to the said Trust by the department after verifying the 




                                                                                  
     records.12.            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 
                         
                                                                                            rd 
     Trust and also to the complainants for hearing in his Office on 23
                     th                     st                                th
     July 1999, 25   August 1999, 31   October 2000 and 16   November 
      


     2000.  Thereafter, the Deputy Director of Education issued an order 
   



               th                                                        th
     dated 18  May 2001 revoking its earlier order dated 26  August 1997 
                                                                                            th 
     granting   minority   status   to   the   Respondent   no.1   -   Trust.   On   20

     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 
                                                                         th
     Zone,   Greater   Mumbai,   vide   his   letter   dated   25   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::: Downloaded on - 09/06/2013 15:59:03 :::11No. 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 




                                                           
                                     th                         th
     the said orders dated 20   June 2001 and 25   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 
                           ig                                  th
     allowed by an order of this Court dated 27   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.13.            Though   Respondent   no.  4  Ms.  Pushpa  John  was  not 

     the senior-most qualified teacher of the Respondent no.2-school and 





                                               th
     junior   college,   she   had   on   13   November   2001   applied   to   the 

     Respondent   no.1   -   Trust   for   the   post   of   Head   Mistress   of   the 
                                                                                              th 
     Respondent no.2 - school and junior college.   Thereafter, on 27

     November 2001, the seniority list was revised by the Respondent no.1- Trust.  In the seniority list, Mr. Jankar (Petitioner herein) has been::: Downloaded on - 09/06/2013 15:59:03 :::12shown 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 




                                                       
                                                               th
     as   per   the  directions   of   this   Court   dated   27   August   2001,   the 
                                                th
     Respondent  no.1   -   Trust   on   27   November   2001,   passed   the 




                                          
     following resolution :-"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.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)"th
     The Respondent no.1- Trust by its letter dated 29  November 2001 

     informed   Respondent   no.   4  Ms.   Pushpa   John   that  she   has   been 

     appointed  as the Head Mistress of Respondent no.2 - school and 
                                          st
     junior college with effect from 1  December 2001.  In the  said letter,::: Downloaded on - 09/06/2013 15:59:03 :::13it is categorically stated by the Respondent no.1 - Trust that "This  




                                                                                 
     appointment   is   by   virtue   of   our   being   a   minority   school/   Trust."st
     Respondent   No.1-Trust   by   its   letter   dated   1   December   2001 




                                                         
     addressed to the Education Inspector (Respondent No.3) forwarded 

     the proposal of Ms. Pushpa John for the post of Head Mistress with 




                                                        
                    st
     effect from 1  December 2001.th14.            Pursuant to the order passed by this Court dated 27
                              
                              th
     August 2001, on 11  January 2002, show cause notices were issued 

     to the Respondent no.1 -Trust and also to the complainants for a 
                             
                         th
     hearing   on   16   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.th15.            The   Education   Inspector   by   his   letter   dated   12

     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.th16.            Respondent no.1-Trust by its letter dated 9 March 2002::: Downloaded on - 09/06/2013 15:59:03 :::14addressed   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.th17.           On 13   March 2002, Ms. Pushpa John filed an appeal 




                                          
     undersection 9of MEPS Act, before the Presiding Officer, School 
                         
     Tribunal, Mumbai being Appeal No. 37 of 2002 challenging the order 
                                th
     of reversion dated 9   March 2002 of Respondent no.1 - Trust.   On 
                        
       th
     15   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 
       th
     15  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.nd18.           On 22   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::: Downloaded on - 09/06/2013 15:59:03 :::15th
     26  September 1998 and also for his promotion to the post of Head 




                                                                               
                                  st
     Master with effect from 1  December 2001.  In the said appeal, the 
                                                                                th
     Petitioner also sought vacation of the interim order dated 15  March 




                                                       
     2002 granted in Appeal No. 37 of 2002.19.           Pursuant   to   the   order   passed   by   this   Court   in   Writ 

     Petition No. 5341 of 2002 filed by the petitioner challenging his non-impleadment  in the appeal filed by the Respondent no. 4 before the 
                           
     School Tribunal, Mumbai being Appeal No. 37 of 2002 and the ex-parte   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.st20.        On   21   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::: Downloaded on - 09/06/2013 15:59:03 :::16order, 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 




                                                           
                                                                                       th
     followed, when in fact, the Trust was called for hearings on 19  July 
                th                th                           st                             rd 
     1999,   25   July   1999,   5   February   2000,   21   February   2000,   23




                                                          
                                 th
     October   2000   and   10   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 
               st
                         
     dated 21  May 2002 revoking the minority status of the Respondent 

     no.1 - Trust till date and therefore, the same has become final.21.             The Presiding Officer of the School Tribunal,   Mumbai, 
      

                                                                      th
     after   hearing   the   parties,   by   his   order   dated   15   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 





                                                      th
     appellant  Ms.  Pushpa  John  was   on  29   November  2001  and  the 

     minority   status   of   the   Respondent   no.1-Trust   was   withdrawn   and 





                                         st
     cancelled subsequently on 21  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::: Downloaded on - 09/06/2013 15:59:03 :::17Petitioner 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.22.           Being aggrieved and dis-satisfied by the judgment and 





                       th
     order   dated   15   March   2003   passed   by   the   Presiding   Officer   of 

     School Tribunal in Appeal No. 37 of 2002,   the Petitioner has filed 





     the present writ petition.23.           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::: Downloaded on - 09/06/2013 15:59:03 :::18junior college also does not enjoy minority status.  The Respondent 




                                                                                  
     no.   2   -   school   and   junior   college   therefore,   cannot   avail   of   any 

     benefit/concession   provided   undersection   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 
                th
     dated 26  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 
                                                              nd
     school which was given minority status on 2   August 1994 cannot 
                                                    nd
     claim to be a minority school before 2  August 1994 was rejected by::: Downloaded on - 09/06/2013 15:59:03 :::19the 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 




                                             
                         st
     order   dated   21   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.24.             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::: Downloaded on - 09/06/2013 15:59:03 :::20the 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 




                                                      
                                              th
     Petitioner  that   the  order   dated  15   February  2003   passed   by  the 

     Presiding   Officer,   School   Tribunal,   Mumbai,   allowing     Appeal   No. 




                                                     
                                                                      th
     Mum-   37/2002 and setting aside the order dated 9   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.25.           The learned Advocate appearing for Ms. Pushpa John 

     has   submitted   that   Ms.   Pushpa   John   was   promoted   as     Head 
      

                                                                                         st 
     Mistress   of   Respondent   no.   2   -   School     with   effect   from   1
   



                                                                th
     December 2001 by an appointment letter dated 29  November 2002.th
     She was reduced in rank by an order dated 9  March 2002 which is 

     contrary to law.  Ms. Pushpa John has an excellent service record.Undersection 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.26.           The learned Advocate appearing for the Respondent no.::: Downloaded on - 09/06/2013 15:59:03 :::214 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 theMEPS Act, 1977and the Rules.27.            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 -"The trust will be a public  trust for the general public::: Downloaded on - 09/06/2013 15:59:03 :::22irrespective 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."Despite the aforestated known secular object, some of the trustees 
                                                                                th
     of the Respondent no.1- Trust obtained an order dated 26   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 
               th
     dated   26   August   1997   was   erroneous.     The   said   order   was   set 
      

                                        th                th
     aside by an order dated 18   May 2001/ 20   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 





                                                                                th
     said order was set aside by an order of this court dated 27  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 
               th
     dated 27   August 2001, once again the Government issued show 
                                   th
     cause   notices   dated   11   January   2002   to   the   parties   and   after 
                                                                       st
     hearing   the   parties,   by   its   order   dated   21   May   2002::: Downloaded on - 09/06/2013 15:59:03 :::23withdrew/cancelled   the   order   dated   26.8.1997,   granting   minority 




                                                                                   
                                                                                       st
     status to the Respondent no.1-Trust.  The said order dated 21  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 non-acceptance 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 
                        st
     order dated 21  May 2002 passed by the Government withdrawing/ 
                                             th
     revoking   the   order   dated   26   August   1997   comes   into   effect 





     prospectively and not retrospectively.28.      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::: Downloaded on - 09/06/2013 15:59:03 :::24Supreme 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 
                        
                st
     dated   21   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 inBaburam   Vs. C.C. Jacob and others(supra) therefore cannot be 

     applied to the present case.::: Downloaded on - 09/06/2013 15:59:03 :::2529.           Minority   school   means   a   school   established   and 




                                                                               
     administered by a minority having the right to do so underArticle 30of 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 theMEPS Act, 1977and 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.30.           As set out hereinabove the Respondent no.1-Trust was 
                                                                      th
     aware that as per the directions of this Court dated 27  August 2001, 

     the  Government  shall   be  proceeding  to  decide  the  issue  qua  the::: Downloaded on - 09/06/2013 15:59:03 :::26minority   status   of   the   Respondent   no.1-Trust   afresh.   However, 




                                                                               
     despite  this   the Respondent no.1-Trust entertained an application 
               th
     dated 13   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.1-





     Trust   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 
                                                                       th
     the basis of the fact that the erroneous order dated 26  August 1997 

     subsisted on the date of her appointment.  As held hereinabove, the 

     Respondent   -Trust   /School   never   enjoyed   the   minority   status   and::: Downloaded on - 09/06/2013 15:59:03 :::27therefore, 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 theMEPS Act, 1977and 




                                                         
     the Rules, is not tenable and is rejected.31.            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 theMEPS Act, 1977and the Rules.   Therefore, in 





     that case, admittedly, the appointment was as envisaged under the 

     law i.e. theMEPS Act, 1977and the Rules.   In the instant case, 





                                                              st
     since   it   is   decided   by   an   order   dated   21   May   2002   that   the 

     Respondent-Trust / School does not enjoy minority status and the 
                                  th
     earlier   order   dated   26   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::: Downloaded on - 09/06/2013 15:59:03 :::28teachers available for appointment to the post of Head Master/Head 




                                                                                     
     Mistress.    The  appointment of  Ms. Pushpa John is  therefore, not 

     covered under the provisions ofMEPS Act, 1977and 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.32.            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 
   



                                                        th
     order of Respondent no.1 - Trust dated 9  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.::: Downloaded on - 09/06/2013 15:59:03 :::2933.            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.Order accordingly.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.[S.J. KATHAWALLA, J.]::: Downloaded on - 09/06/2013 15:59:03 :::