JUDGMENT - RATNAPARKHI M.S., J.:---The petitioner seeks a mandate of this Court commanding the respondents that she be appointed as Assistant Head Mistress in the Girls Secondary School run by the respondent No. 2 with retrospective effect and the appointment of respondent No. 3 to that post is sought to be quashed. 2. Facts giving rise to this limitation may be briefly stated as follows : The petitioner holds a degree of M.Sc. and B.Ed. The respondent No. 2 Nevjabai Hitkarini Education Society runs two High Schools at Brahmapuri, of which the Girls High School is one. The petitioner entered the service of respondent No. 2 on 19-6-1978 vide Annexure 1. She joined as Assistant Teacher in the Girls High School on the pay scales admissible then. She was confirmed in that post subsequently. She continue to serve with that Girls High School even today. The respondent No. 3 was also serving as Assistant Teacher in the High School run by the respondent No. 3. He joined sometime in 1966 and continues to be one of the seniormost teachers in that institution even today. 3. According to the petitioner the post of Astt. Head Mistress was created in the Girls High School. The petitioner being the seniormost lady teacher she applied for that post on 30th November, 1985. According to her she was the seniormost lady teacher in the Girls High School and she belongs to the scheduled caste. In addition, she also had all the requisite qualifications for the appointment to that post. According to her, it being a Girls High School the principle laid down in sub-rule (4) of Rule 3 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 should be applicable to the post of Assistant Head Mistress also. However, ignoring her claim, the respondent No. 2 appointed the respondent No. 3 to that post sometime in December 1986. She made representations to the respondent No. 2. She also made representations to the educational authorities. A direction was issued by the educational authorities to the respondent No. 2 to appoint the petitioner as Assistant Head Mistress as the school was exclusively a Girls High School and the petitioner was a seniormost in that school. In spite of this direction the respondent No. 2 has failed to carry out the same. A direction was issued by the educational authorities to the respondent No. 2 to appoint the petitioner as Assistant Head Mistress as the school was exclusively a Girls High School and the petitioner was a seniormost in that school. In spite of this direction the respondent No. 2 has failed to carry out the same. According to her the educational authorities who are joined as respondents 1 to 4 have mala fide acted in negativing her claims for the appointment to that post. 4. The respondents Nos. 1 to 4 preferred not to respondent to the notice issued by this Court. Respondents 2 and 3 appeared before this Court. The respondents 2 and 3 filed their submissions before admission. According to respondent No. 3, he was appointed long back on 20-6-1966 and he is one of the teachers in the school and definitely senior to the petitioner. According to him, the Girls High School is not a separate entity. It is a part and parcel of the Boys High School run by that institution and teachers are freely transferred from one branch to another. According to him, as shown in the seniority list he is senior to the petitioner and he also belongs to scheduled caste community. He being the seniormost man was appointed to the post of Assistant Head Master and this appointment was perfectly legal. His appointment dates back to 12-12-1986 and since then he is working in that post. According to him exception carved out in sub-rule (4) of Rule 3 of the Rules is applicable to the post of Head Master and not to the post of Assistant Head Master. 5. Mr. Masodkar, learned Advocate for the petitioner took us extensively through the record. The undisputed position which prevails at this stage is that the petitioner was appointed in 1978, whereas the respondent No. 3 was appointed in 1966. In fact the petitioner has raised the contention at one stage that the seniority list was never prepared by the respondent No. 2. A request was made before this Court for directing the respondent No. 2 to produce the seniority list for the perusal of the Court. Accordingly on the date of hearing a seniority list has been produced in this Court. It is common seniority list which appears to have been prepared on 1-2-1988. A request was made before this Court for directing the respondent No. 2 to produce the seniority list for the perusal of the Court. Accordingly on the date of hearing a seniority list has been produced in this Court. It is common seniority list which appears to have been prepared on 1-2-1988. In this seniority list the respondent No. 3 is shown at serial No. 4, whereas the petitioner is shown at serial No. 26. This seniority list bears the signature of the respondent No. 3. It however does not bear the signature of the petitioner. However, there is one circumstance which has been brought on record. This seniority list has been challenged by the present petitioner. The objections raised by her are contained in her letter dated 6-4-1988. 6. The petitioner at one stage had taken a stand that no seniority list is at all prepared. We have just made a reference to the seniority list prepared sometime in 1988. It is a caste wise seniority list. The respondent No. 3 is shown in scheduled caste category and he is at No. 2. The petitioner is in the same category and she is at No. 5. These documents thus clearly show that the seniority list was in fact prepared. As the seniority list contains the signatures of different persons it also shows that it was circulated. The petitioner however has taken a stand at the stage of arguments that unless a seniority list is circulated and the signature of the incumbent is obtained thereon in lieu of the receipt of the copy it cannot be held that the seniority list was prepared according of Rule 12. Thus he wants to strike at the very root of the factual aspect. What Mr. Masodkar urged before us was that in law no such seniority list was prepared. 7. We find ourselves unable to accept the arguments of Mr. Masodkar. Preparation and circulation of the seniority list is a question of fact. It is not the question of law. It is true that under the Rules the institution is required to prepare a seniority list. It is the institution which is under obligation to prepare the seniority list. Rule 12 requires this seniority list to be circulated amongst the members and their signatures obtained in lieu of the receipt of the copy. What Mr. It is true that under the Rules the institution is required to prepare a seniority list. It is the institution which is under obligation to prepare the seniority list. Rule 12 requires this seniority list to be circulated amongst the members and their signatures obtained in lieu of the receipt of the copy. What Mr. Masodkar urged before us was that unless the copy is supplied to the incumbent and unless his signature is obtained on the seniority list in lieu of the receipt of the copy it cannot be justifiably held that the seniority list was prepared according to law. According to us the obligation to furnish the copy of the seniority list and obtaining the signature of the incumbent has nothing to do with the preparation of seniority list. The preparation of seniority list is independent. The obligation to furnish the copy thereof to the incumbent is quite different. For failure to discharge the obligation created by Rules does not affect the factual existence of the seniority list. The seniority list remains. Sub-rules (2) and (3) of Rule 12 prescribe the machinery for vindicating the grievances arising out of the seniority list. A person aggrieved by the seniority list can raise objections and these objections are to be referred to the appropriate authorities. Even stretching the imagination to its logical end, what the rule contemplates is that the seniority list has to be prepared and the incumbents covered by that seniority list must have a knowledge that the seniority list has been prepared. If these two conditions are satisfied the existence of the seniority list remains intact. 8. Looked at from this angle, it could be said without any difficulty that the petitioner had the knowledge of the seniority list. The very fact that she raised the objections to this seniority list in February 1988 is a circumstance which will show that she had a knowledge of this seniority list. Once she has the knowledge of the seniority list she cannot now raise a defence in this Court that there was no seniority list at all. She cannot even object to that seniority list before this Court because a separate machinery has been provided by law itself and it was incumbent on her part to take resort to that machinery which she has not done. She cannot even object to that seniority list before this Court because a separate machinery has been provided by law itself and it was incumbent on her part to take resort to that machinery which she has not done. Thus there is no escape from the conclusion that a seniority list was prepared and in that seniority list the respondent No. 3 is shows senior to the petitioner. 9. Mr. Masodkar urged before us that the post of Assistant Head Master in the Girls High School was sanctioned in the academic year 1955-56. His contention was that in 1985-86 the petitioner was a senior teacher working in the institution. She belonged to scheduled caste and it being a Girls High School exclusively only a lady teacher could be appointed to the post of Head Mistress and no male candidate could be appointed. As such according to her the appointment of respondent No. 3 (a male teacher) is illegal. This is the crux of the whole dispute. 10. Mr. Masodkar took us extensively through the scheme of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 and the Rules framed thereunder. Our attention was invited particularly to Rule 3 which is captioned as "Qualifications and appointment of Head" Sub-rule (1)(a)(i) and (ii) concerns with the primary school teachers and, therefore, it is not relevant for our purpose. Sub-rule (b) is relevant for our purpose. Our attention was invited particularly to Rule 3 which is captioned as "Qualifications and appointment of Head" Sub-rule (1)(a)(i) and (ii) concerns with the primary school teachers and, therefore, it is not relevant for our purpose. Sub-rule (b) is relevant for our purpose. The Rule is reproduced as follows : "3(1) : A person to be appointed as the Head (b) of a secondary school including night school or a Junior College of Education shall be a graduate possessing Bachelor's degree in teaching or education of a statutory University or any other qualification recognised by Government as equivalent thereto and possessing not less than five years total full time teaching experience after graduation a secondary school or a Junior College of Education out of which at least two years experience shall be after acquiring Bachelor's degree in teaching or education : (2) In the case of appointment to the post of Head of a secondary school including night school or a Junior College of Education if there is no person with the teaching experience mentioned in Clause (b) of sub-rule (1) available on the staff of the school or if the qualified persons though available and eligible, relinquish their claims for the post of Head and if a Management desire to appoint a person from the teaching staff of the school who does not possess the requisite teaching experience mentioned in Clause (b) of sub-rule (1) it shall apply to the Deputy Director for relaxing the requirement. The Deputy Director may after recording reasons in writing grant or refuse such relaxation. In such cases, the appointment shall not be made without obtaining the previous approval of the Deputy Director. (3) The Management of a school including a night school shall fill up the post of the Head by appointing the seniormost member of the teaching staff (in accordance with the guidelines laid down in Scheduled "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 fulfils the conditions laid down in sub-rule (1) and who has a satisfactory record of service. (Explanation and proviso are not relevant for our purpose). (Explanation and proviso are not relevant for our purpose). (4) In the case of a girls secondary school Junior College Education for Women the seniormost lady teacher fulfilling the conditions laid down in Clause (b) of sub-rule (1) and having satisfactory record of service shall be appointed as the Head of that school irrespective of her seniority vis-a-vis the male teachers". (Remaining part of this Rule is not necessary for our purpose). 11. This is regarding the appointment of a Head. This term has not been defined in the Rule. It has, however been defined in section 2(9) of the Main Act. The definition reads : "Head of a school" or "Head" means the person by whatever name called in charge of the academic and administrative duties and functions of a school conducted by any Management and recognised or deemed to be recognised under this Act and includes a principal vice-principal head master head mistress assistant head master assistant head mistress or superintendent thereof. Enough to point out at this stage that the definition is inclusive and it also includes "Assistant Head Mistress." 12. Just as Rule 3 reproduced above speaks of the qualifications and appointment of Head Rule 5 speaks of qualifications and appointment of Assistant Head and Supervisor. Enough to point out at this stage that the definition is inclusive and it also includes "Assistant Head Mistress." 12. Just as Rule 3 reproduced above speaks of the qualifications and appointment of Head Rule 5 speaks of qualifications and appointment of Assistant Head and Supervisor. To appreciate the real controversy it would be necessary to reproduce this Rule: "5(1) : Management of a secondary school with more than twenty classes shall appoint an Assistant Head to assist the Head in his organisational, administrative and supervisory duties: Provided that where in accordance with the Rules in force before the commencement of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 the Management has appointed a Supervisor instead of an Assistant Head, then-- (i) on the commencement of the Maharashtra Employees of Private Schools (Conditions of Service) (Amendment) Rules, 1984 the Supervisor so appointed shall be appointed as Assistant Head if he is the seniormost teacher eligible for being appointed as Assistant Head, or (ii) if the Supervisor so appointed is not the seniormost teacher and his term of appointment as such Supervisor is to expire after the commencement of the Maharashtra Employees of Private Schools (Conditions of Service) (Amendment) Rules, 1984 the Management shall appoint the seniormost teacher eligible for being appointed as an Assistant Head under these Rules as the Assistant Head immediately after expiry of the term of appointment of such Supervisor; (2) subject to the provisions of sub-rule (5) the provisions of Rule 3 relating to qualifications and appointment of Head shall mutatis mutandis apply to the post of an Assistant Head and Supervisor." (Rest of the portion is not necessary for our purpose). What Mr. Masodkar urged before us was that under the Rules two separate posts are recognised. Qualifications for each post have been specified and therefore whatever is necessary for Rule 3 must be made necessary for Rule 5 also particularly in view of the language used in sub-rules (2) and (3). According to Mr. Mosodkar in the case of appointment of a Head in the Girls' High School, sub-rule (4) specifically lays down that in such school a lady teacher shall be appointed as Head Mistress irrespective of the fact whether she is seniormost or not. Even if she is junior in the seniority list she supersedes, the senior males. According to Mr. Mosodkar in the case of appointment of a Head in the Girls' High School, sub-rule (4) specifically lays down that in such school a lady teacher shall be appointed as Head Mistress irrespective of the fact whether she is seniormost or not. Even if she is junior in the seniority list she supersedes, the senior males. What he urged before us was that in the case of appointment of Assistant Head Mistress also the same principle should be applied. We find the difficulties more than one in accepting the arguments of Mr. Masodkar and we therefore propose to scrutinise the whole scheme of Rules 3 and 5 of the Rules comparatively. 13. The duties and functions of the Head are enumerated in Rule 4. We may not reproduce the same as it is not necessary for our purpose. Rule 5 contemplates the appointment of Assistant Head to assist the head in his organisational administrative supervisory duties. The very reading of Rules 4 and 5 thus shows that the duties and functions of the Head are multifarious whereas the duty of the Assistant Head is to assist the head in his organisational administrative and supervisory duties. It means that some of the duties which are exclusively all the duties of the Head Master are assigned to the Assistant Head and the Assistant Head has to assist the head only in these specified duties. It is thus clear that the sphere of the duties of the Assistant Head is very much limited compared to that of the Head. Secondly "Head" has to be appointed in all the schools but the Assistant Head is permitted only in some schools. We have pointed out these differences only to show that there are different areas of function of the these two functionaries. But that is not the basis of our rationale though it may be relevant for our purpose. The real difficulty in the way of Mr. Masodkar who insisted upon applying the requirements of sub-rule (4) of Rule 3 even to Rule 5 is insurmountable. As already pointed out though Rule 3 as well as Rule 5 are captioned "qualifications and appointment of Head and Assistant Head respectively" the scheme of Rule 3 is different that the scheme of Rule 5. Masodkar who insisted upon applying the requirements of sub-rule (4) of Rule 3 even to Rule 5 is insurmountable. As already pointed out though Rule 3 as well as Rule 5 are captioned "qualifications and appointment of Head and Assistant Head respectively" the scheme of Rule 3 is different that the scheme of Rule 5. Sub-rule (b) of sub-rule (1) of Rule 3 speaks about the educational qualifications and the length of service that is required for appointment of a Head. Sub-rule (2) requires that he should be from amongst the teaching staff of the institution. Sub-rule (3) requires that he must be the seniormost amongst the teaching staff. These are the three positive requirements that a person has to fulfil before he can aspire to become the Head Master. Thus sub-rules (1), (2) and (3) of Rule 3 speak about the general rule, namely, educational qualifications professional qualifications working on the teaching staff for at least a specified period and seniority. These are considered to be the qualifications. A person aspiring for the appointment as Head has to satisfy these requirements before he wants to be appointed. Sub-rule (4) however creates an exception to the general rule and this exception is carved out in case of a school which is a Girls' school (where the girls are exclusively admitted). In case of head of such institution the requirement of seniority contemplated in sub-rule (3) of Rule 3 has been waived though other qualifications including the academic professional length of service etc. have not been waived. There is only one exception and i.e. the exception of rule of seniority. The scrutiny of this scheme would itself show that in case of appointment of the head of the school the general qualifications are laid down which include the educational qualifications professional qualifications minimum service on teaching side etc. etc. and seniority. It is only the person fulfilling all these qualifications and conditions, who is entitled to be appointed. However, a category of girls school is carved out from the other institutions and exception has been made only for this category where the condition of seniority has been waived. The waiver is not absolute. Rules do not permit even a juniormost lady teacher to be appointed. However, a category of girls school is carved out from the other institutions and exception has been made only for this category where the condition of seniority has been waived. The waiver is not absolute. Rules do not permit even a juniormost lady teacher to be appointed. What it permits is that in such institution if a lady teacher fulfilling all the requirements is available then she should be appointed to the post of Head even though there may be other senior males above her. Thus what sub-rule (4) specifies is an exception to the general rule of essential qualifications and conditions including the seniority. 14. If the scheme of Rule 5 is examined and scrutinised we find no such exception carved out. Though Rule 5 is captioned as "qualifications and appointment of Assistant Head and Supervisor" it does not contain any qualifications or requisites mentioned in Rule 2. Sub-rule (1) gives a mandate that the management with more than 20 classes must have a post of assistant head to assist the head in his organisational, administrative and supervisory duties. The proviso to this sub-rule says that if under the amended Rules of 1984 a supervisor has already been appointed he shall be appointed as assistant head. Thus there is no change either in the qualifications or in the other requirements. Sub-rule (2) then says that subject to the provisions of sub-rule (5) the provisions of Rule 3 relating to qualifications and appointment of Head shall mutatis mutandis apply to the post of an Assistant Head and Supervisor. What is made applicable "mutatis mutandis" to the appointment to the post of assistant head or the supervisor are the qualifications laid down in Rule 3. Sub-rule (4) of Rule 3, to repeat again does not lay down any qualifications or requirements. It creates only an exception which enables the waiver of the requirement of seniority. 15. Thus looked at from this angle, the scheme of Rule 3 and Rule 5 is not the same. Sub-rule (4) creates an exception to the general Rule 3 whereas no exception has been carved out in Rule 5. 16. The law relating to interpretation of statute is very clear on this point. When the Court is called upon to interpret the exception it has to interpret it only as an exception to the general rule. Sub-rule (4) creates an exception to the general Rule 3 whereas no exception has been carved out in Rule 5. 16. The law relating to interpretation of statute is very clear on this point. When the Court is called upon to interpret the exception it has to interpret it only as an exception to the general rule. Rules of interpretation do not permit extending the exception to other categories unless the legislation itself creates an exception. This point came to be discussed by this Court in (Vasant Ambadas Hanchate v. State of Maharashtra)1, 1985 Mh.L.J. 699. This Court observed : "The expression "mutatis mutandis" as used in Rule 5(2) will not cover the exception incorporated in Rule 3(4) of the Rules. Even otherwise, 'mutatis mutandis' means with due alteration of details or appropriate change. Further the provisions of Rule 3(4) are by way of exception, and therefore, will have to be strictly construed. If the said provision is read in its context and harmoniously together with the other Rules, then it is quite clear that the framers of the Rules wanted to restrict to the post of Head Mistress only." Mr. Masodkar, learned Advocate for the petitioner, however, urged before us that whatever has been observed by this Court in paragraph 5 of the above mentioned ruling, is only a obiter dictum inasmuch as the point did not arise in that case. The point which arose in that case was whether Rule 3(4) was ultra vires the constitution being violative of Articles 14, 15 and 16 of the Constitution. Mr. Masodkar may be correct to some extent. But the rationale that has been adopted by the Court was a correct one and we respectfully agree with the rationale. 17. Thus, in our opinion, the exception carved out by sub-rule (4) of Rule 3 cannot be injected in Rule 5, because Rule making authorities did not do it. It was completely within their competence. But the Court would not inject something in the statute which is not there. This Court has to interpret the law as it is. It will not be proper for this Court to trod into the province of probability. 18. Mr. Masodkar, learned Advocate for the petitioner urged before us that the petitioner represented her case before the education authorities prior to the appointment and even after the appointment of the respondent No. 3. This Court has to interpret the law as it is. It will not be proper for this Court to trod into the province of probability. 18. Mr. Masodkar, learned Advocate for the petitioner urged before us that the petitioner represented her case before the education authorities prior to the appointment and even after the appointment of the respondent No. 3. According to him, the educational authorities acted mala fide in considering her case. Our attention was invited to Annexure XI, which is a communication from the Education Officer to the Secretary of the respondent No. 2 institution. It reads as follows : ^^lanHkkZafdr fo"k;kpk vuq"kaXkkus dGfo.;kr ;srs dh] vki.k lknj dsysY;k lwpho:u vls vk<Gwu ;srs] fd ,l-Vh-MkaXks] l- f'k{kd gs T;s"Bre f'k{kd vlY;keqGs R;kaph usotkckbZ fgrdkfj.kh dU;k fo|ky;krhy eq[;k/;kidkP;k inh fu;qDrh dj.;kl vuqerh ns.;kr ;sr vkgs- R;kaph fu;qDrh d:u izLrko eatwjh dfjrk lknj dj.;kr ;kok-^^ A reference has been made to a letter addressed by the institution to the Education Officer and this letter is dated 20-6-1986. It can, therefore, be reasonably inferred that the educational authorities addressed this communication in view of the letter dated 20-6-1986 addressed by the institution to the Educational Officer. What Mr. Masodkar urged before us was that Education Officer has commanded the respondent No. 2 to appoint the respondent No. 3 as Head Master and this according to him was beyond the competence of the education authorities. We find some misconception regarding the interpretation of this letter. The educational authorities have not given any mandate to the institution. They only say that they give short approval to the appointment of the respondent No. 3 as proposed by the institution. Before giving this approval the Education Officer did go through the seniority list and did satisfy himself of the position regarding the seniority of the respondent No. 3 vis-a-vis the petitioner. Thus this letter, according to us, is not a command or a mandate given by the Education Officer directing the respondent No. 2 to appoint a particular person in the post. He has only approved the proposal that was sent by the institution, to the appointment by the institution itself and it is on their own accord without any directions from the stranger. This was the basis of the arguments of Mr. Masodkar that the Education Officer acted mala fide. We find ourselves unable to agree with the arguments of Mr. Masodkar. 19. Mr. This was the basis of the arguments of Mr. Masodkar that the Education Officer acted mala fide. We find ourselves unable to agree with the arguments of Mr. Masodkar. 19. Mr. Masodkar then invited our attention to an application filed by him on 30th July, 1990. By this application he wanted this Court to ask the respondent No. 1 to produce the Government circular issued on 19-12-1986. According to him, this circular has clarified the position of sub-rule (2) of Rule 5. According to him, the Government has issued a circular to the effect that even in the case of Asstt. Head Mistress in Girls' School a lady teacher should be appointed irrespective of her seniority. It is not necessary for us to go into the merits of this circular. Assuming for the time being that on 19-12-1986 the Government has issued the said circular, according to us this circular cannot take the place of the Rules. This circular is only an administrative direction, whereas the Rules are prepared under the statute and they are placed before both the Houses of Legislature. Thus even assuming that such a circular is in existence and it contains what Mr. Masodkar says, we feel that it cannot take the place of the Rule so as to amend Rule 5(2) to carve out an exception like the one contained in sub-rule (4) of Rule 3. 20. Another reason is that though such a circular has been issued on 19-12-1986, it cannot have a retrospective operation. In the present case, the respondent No. 3 has been appointed on 12-12-1986. He has already taken the charge before the 19th and he continued in that post. That whatever has been done validly under the Rules, cannot be made ineffective by artificially giving a retrospective effect to the circular. We do not find any merits in this application and, therefore, the application is rejected. The point remains that the appointment of respondent No. 3 cannot be challenged even on a circular which has been issued subsequently. 21. Mr. Masodkar then invited out attention to some correspondence between the educational authorities and the respondent No. 2. Some correspondence has been filed on record. The point remains that the appointment of respondent No. 3 cannot be challenged even on a circular which has been issued subsequently. 21. Mr. Masodkar then invited out attention to some correspondence between the educational authorities and the respondent No. 2. Some correspondence has been filed on record. But even assuming that the educational authorities have directed the respondent No. 2 to appoint the petitioner as Head Mistress in place of respondent No. 3, we do not think that this circumstance should come in the way of interpreting Rule 5(2). This is a province of interpretation and the actions of the educational authorities are completely irrelevant. 22. In the result, though the petitioner is female teacher, she cannot get an advantage of the exception carved out by sub-rule (4) of Rule 3 as she is aspiring for the post of Assistant Head Mistress and no such exception is carved out in Rule 5(2). She cannot legitimately ask this Court to stretch that principle even for interpreting the Rule 5 because it will amount to injecting something which the Rules do not contain. Thus the very basis of the case of the petitioner stumbles. We, therefore, find no merits in the petition. It deserves to be dismissed and is hereby dismissed. Rule is discharged. In the circumstances of the case, there shall be no order as to costs. Petition dismissed. -----