JUDGMENT - S.D. GUNDEWAR, J.:---By the present petition, the petitioner impugns the order dated 29-10-1985 and seeks directions against respondent Nos. 1 and 2 to treat her as Head Mistress, Urdu Boys High School, Amravati, from 6-3-1976 and pay regular pay scale of Head Mistress to her with effect from 1-10-1976 till 25-6-1980, as since 26-6-1980 she was appointed as Head Mistress vide order dated 26-6-1980 (Annexure-IV), by treating her as senior to respondent No. 3 for all the purposes. 2. Heard Shri S.V. Purohit, learned Counsel for the petitioner. Shri Jichkar, learned A.G.P., for respondent No. 1, Education Officer and Shri J.N. Chandurkar, learned Counsel for the respondent No. 3. None for respondent No. 2, society. 3. Shri Purohit, learned Counsel for the petitioner, contended that the petitioner has passed her M.A. (Urdu) Examination in the year 1976 and B.Ed. Examination on 10-9-1974 and as such she was qualified to be appointed as Assistant Teacher in the Secondary School. It is also contended by the learned Counsel for the petitioner that respondent No. 2 Urdu Education Society, Amravati, runs three Secondary Schools, namely Urdu Boys High School, Pathan Chowk, Amravati, Urdu Girls High School, Chandni Chowk, Amravati and Urdu High School, Badnera, District Amravati, and there are classes from Vth Standard to Xth Standard in all the aforesaid schools. The services of the employees working in all the aforesaid schools are transferable inter se and, therefore, common seniority list of the employees working in the said schools is maintained. As per the said seniority list, the petitioner who stood at Serial No. 3 in the said list was senior to respondent No. 3, who was shown at Serial No. 4 in the said list, as the petitioner had passed her B.Ed. Examination about three months prior to that of respondent No. 3. 4. It is also contended by the learned Counsel for the petitioner that the Administrator of respondent No. 2, society vide letter dated 5-3-1976 (Annexure-II) appointed respondent No. 3 as the Head Master of Urdu Boys High School, Amravati, though respondent No. 3 was junior to the petitioner and hence the petitioner made a representation to the Administrator against the said order and showed her willingness to work on the said post. The petitioner was then orally informed that since the posting of respondent No. 3 was temporary and as in-charge Head Master, the claim of the petitioner would be considered at the time of making appointment on regular basis. Since the appointment of respondent No. 3 was temporary and as in-charge Head Master, the petitioner was under the impression that at the most the respondent No. 3, would be given post-allowance for discharging the said duties and hence the petitioner did not make an appeal to the Director as provided under Rule 61.2(d) of the Secondary School Code (hereinafter referred to as the "Code"). 5. It is further submitted by the learned Counsel for the petitioner that vide Rule 61.1 of the Code, in the year 1976 the respondent No. 3 could not have been appointed as Head Master since he had no post-training experience of two years nor the said condition was relaxed vide Rule 61.1(b) of the Code. Respondent No. 3 was, therefore, not entitled for the scale of Head Master. According to the learned Counsel for the petitioner, under Rule 61.2 of the Code, there is an obligation upon the management to fill up the post of the Head of the school by appointing the senior most teacher from among those employed in the school run by the management and at the relevant time the petitioner being the senior most teacher from among those employed in the aforesaid schools run by the respondent No. 2, Society, she ought to have been appointed as the Head Mistress of Urdu Boys High School, Amravati, in preference to respondent No. 3. 6. Thereafter, in the year 1980 vide orders dated 26-6-1980 (Annexure-IV V) the petitioner as well as respondent No. 3 both were appointed as Head Mistress and Head Master in Urdu Boys High School, Badnera and Urdu Boys High School, Amravati, respectively. So also Ku. Iqbal Fatma, who was also a senior teacher, was appointed as Head Mistress in Urdu Girls High School, Amravati, and as such all the three senior most teachers of respondent No. 2, Society were appointed as Heads of three different schools run by it. So also Ku. Iqbal Fatma, who was also a senior teacher, was appointed as Head Mistress in Urdu Girls High School, Amravati, and as such all the three senior most teachers of respondent No. 2, Society were appointed as Heads of three different schools run by it. However, on 10-3-1981 Shri Kamdi, the then interim Receiver of Urdu Education Society and Deputy Director of Education, Amravati, appointed respondent No. 3 as Head Master of Urdu Boys High School, Amravati, with effect from 6-3-1976 and hence the petitioner had made a grievance about the same vide her representation dated 22-4-1981 (Annexure-VII) to respondent No. 4 and urged that the confirmation of respondent No. 3 in the post of Head Master of Urdu Boys High School, Amravati, cannot be given effect from 6-3-1976 inasmuch as by doing so the claim of the petitioner would be superseded, for which she is fighting since long and as neither any post allowance or regular pay scale of Head Master was paid to the respondent No. 3 the petitioner did not approach the higher authorities. Thereafter on 29-10-1985 the respondent No. 1, Education Officer vide impugned order accepted the final claim of respondent No. 3 for the post of Head Master in Urdu Boys High School, Amravati, from 1-1-1977, on which date he became eligible for the said post. This order dated 29-10-1985 is under challenge in this petition. 7. Shri J.N. Chandurkar, learned Counsel for respondent No. 3, contended that though the aforesaid three schools are run by respondent No. 2, society, no any common seniority list of the employees working in those schools, as alleged by the petitioner, is maintained by respondent No. 2, society. According to him, the respondent No. 3 who came to be appointed as far back as on 1-11-1963 has wrongly been shown as having the length of service as 14 years, particularly when he came to be appointed 7 years earlier than the petitioner and merely because respondent No. 3 who had appeared for B.Ed. Examination of Nagpur University, the result of which were declared three months later than the result of B.Ed. Examination of Aurangabad University from where the petitioner had obtained B.Ed. Degree, it cannot be said that the petitioner is in an advantageous position qua the respondent No. 3. The respondent No. 3 is not junior to the petitioner. 8. Examination of Nagpur University, the result of which were declared three months later than the result of B.Ed. Examination of Aurangabad University from where the petitioner had obtained B.Ed. Degree, it cannot be said that the petitioner is in an advantageous position qua the respondent No. 3. The respondent No. 3 is not junior to the petitioner. 8. It is further submitted by Shri Chandurkar, learned Counsel for respondent No. 3, that the petitioner had never raised any grievance about the appointment of respondent No. 3 as in charge Head Master. Respondent No. 3 worked as Head Master right from 6-3-1976 and continued till 26-6-1980 on which date he was given an order appointing him as Head Master of Urdu Boys High School, Amravati. During the aforesaid period the petitioner did not work as Head Mistress nor did she look after the charge in that capacity and consequently was entitled to be paid the pay scale of Assistant Teacher only. According to Shri Chandurkar, respondent No. 3 was duly qualified for being appointed as Head Master having obtained the degree of Bachelor of Education as required by Rule 61.1(a) of the Code and had more than five years of total teaching experience and two years post training experience if counted from 18-12-1974. According to him, in the present case, the Administrator himself was the Deputy Director of Education of the region in question and consequently the appointment made by him was not in any way contrary to Rule 61.1 of the Code and, therefore, relaxation in the condition of two years post training experience was not necessary. 9. Shri Chandurkar, learned Counsel for respondent No. 3, then submitted that the respondent No. 2, society having been a minority institution, running educational institutions, is not in any way liable to be affected in the matter of administration in view of the fundamental right guaranteed by Article 30 of the Constitution of India. According to him the provisions of the Code, particularly Rule 61, has no applicability whatsoever in the matter of appointment of Head Master. The institution has unrestricted right in the matter of appointment and such a right cannot in any way be infringed. 10. Shri Jichkar, learned Asstt. Govt. According to him the provisions of the Code, particularly Rule 61, has no applicability whatsoever in the matter of appointment of Head Master. The institution has unrestricted right in the matter of appointment and such a right cannot in any way be infringed. 10. Shri Jichkar, learned Asstt. Govt. Pleader, appearing for respondent No. 1, Education Officer also supported the impugned order dated 29-10-1985 and submitted that the respondent No. 1 did consider the mandate of Rule 61.2(a) of the Code while passing the impugned order. According to him, respondent No. 3 is the person, who had actually worked in the post of Head Master, and, therefore, he is entitled for the pecuniary benefits. Looking to this aspect, respondent No. 1, Education Officer has passed the impugned order, which needs no interference by this Court. It is also submitted by Shri Jichkar, learned Asstt. Govt. Pleader, that if the petitioner was really aggrieved by the appointment of respondent No. 3 as Head Master she ought to have made an appeal to the Director as provided under Rule 61.2(d) of the Code, but she did not make any such appeal within 30 days of the appointment of respondent No. 3 as Head Master and, therefore, now she is not entitled to the relief claimed. 11. We have considered the contentions raised by the respective Counsel and perused the impugned order dated 29-10-1985 passed by the respondent No. 1, Education Officer as well as the relevant provisions of the Code. Before we proceed to consider the controversy in question, it would be appropriate to consider the relevant provisions of the Code applicable to the present case. Rule 61 of the Code deals with the appointment and duties of Heads of schools. For the purpose of ready reference, Rules 61.1(a), (b) and 61.2(a), (b) are reproduced as below : "61.1(a) The person to be appointed as the Head of a school shall be a graduate possessing prescribed training qualifications (B.T./B.Ed. or its equivalent), with at least five years of total teaching experience, after graduation, in a recognised secondary school or schools, out of which, experience of at least two years should be post training experience. (b) If a Management desires to appoint a person who does not posses the prescribed teaching experience as mentioned in Clause (a) above, it may approach the Deputy Director of the region, for relaxing this requirement. (b) If a Management desires to appoint a person who does not posses the prescribed teaching experience as mentioned in Clause (a) above, it may approach the Deputy Director of the region, for relaxing this requirement. The Deputy Director may, after recording his reasons in writing, grant the relaxation at his discretion. The appointment of such person as Head of the school may be made by the Management only if such relaxation is granted by the Deputy Director. When such relaxation is granted, the person so appointed will not be held eligible for the Head Master's scale till he satisfied the conditions laid down in Clause (a) above. He will be eligible for the scale of a teacher only. 61.2(a) The Management of a school shall fill up the post of the Head of the school by appointing the senior most teacher from among those employed in the school (if it is the only school run by the Management) or schools conducted by it, who fulfills the conditions laid down in Rule 61.1(a) above and who has a satisfactory record of service. Seniority shall be determined only in accordance with the guidelines issued by the department from time to time. Record of service shall be deemed to be satisfactory if there is nothing adverse in the annual confidential record of the teacher concerned during the previous five years. Adverse remarks not duly communicated to the teacher concerned shall be disregarded for this purpose. In case the Management had not maintained annual confidential reports of teachers, it will be necessary for the Management to produce a recorded evidence in support of unsatisfactory work of the teacher concerned before rejecting his claim for the post of Head/Assistant Head. The claims of the senior most qualified teacher having satisfactory record of service, to the post of the Head, may be disregarded only if he, of his own free will, gives a statement in writing to the Education Officer/Educational Inspector that he has voluntarily relinquished his claim to the post. (Such statement of the teacher concerned shall be recorded in the hands of the teacher himself before the Education Officer/Educational Inspector and the latter shall endorse it as having been recorded in his presence. Such statement once duly made before the Education Officer/Educational Inspector shall not be allowed to be withdrawn). (Such statement of the teacher concerned shall be recorded in the hands of the teacher himself before the Education Officer/Educational Inspector and the latter shall endorse it as having been recorded in his presence. Such statement once duly made before the Education Officer/Educational Inspector shall not be allowed to be withdrawn). Exception.---In the case of a Girl's School, that is a school run exclusively for girls, the senior most lady teacher, fulfilling the conditions laid down in Rule 61.1(a) above and having satisfactory record of service shall be appointed as Head Mistress of that school irrespective of her seniority vis-a-vis the male teachers. (b) If a suitable teacher in accordance with the provisions of Clause (a) above is not available to fill up the post of Head of the school, the Management shall, with the prior permission of the Deputy Director of Education of the Region concerned, advertise the post and select and appoint as the head a suitable, qualified and experienced person fulfilling the provisions of Clause (a) Rule 61.1. The application for permission to advertise the post shall be made at least two months in advance. The period of two months may be relaxed by the Deputy Director in the cases of new schools or in emergent cases wherein the vacancy could not have been anticipated. The advertisement shall be given only after the permission of the Deputy Director has been received. The advertisement shall appear in at least one daily newspaper having sizable circulation in the Region wherein the school is located." In the present case, it is not disputed that the petitioner was appointed as a teacher in respondent No. 2, society on 1-8-1970. She had passed her M.A. (Urdu) Examination in 1976 and B.Ed. Examination in 1974. She had five years teaching experience, out of which two years experience was post-training experience. The petitioner was senior to respondent No. 3 as per the seniority list (Annexure-I) approved by the Deputy Director of Education. In the said seniority list, the petitioner stood at Sr. No. 3, whereas respondent No. 3 has been shown at Sr. No. 4. Further, undisputedly the petitioner acquired B.Ed. qualification on 10-10-1974, i.e. prior to respondent No. 3, who acquired the same on 18-12-1974. The petitioner was, therefore, eligible to be appointed to the post of the Head Mistress on 6-3-1976. No. 3, whereas respondent No. 3 has been shown at Sr. No. 4. Further, undisputedly the petitioner acquired B.Ed. qualification on 10-10-1974, i.e. prior to respondent No. 3, who acquired the same on 18-12-1974. The petitioner was, therefore, eligible to be appointed to the post of the Head Mistress on 6-3-1976. It was, therefore, necessary for the respondent No. 2, Society to appoint the petitioner as Head Mistress in Urdu Boys High School, Amravati, because Rule 57.3 of the Code provides that all the posts substantively vacant or substantively created must be filled in by substantive appointments, if eligible persons are available. So also as per Rule 61.2(a) of the Code there is an obligation on the Management to fill up the post of the Head of the school by appointing the senior most teacher from among those employed in the school or schools conducted by it, who fulfils the conditions laid down in Rule 61.1(a) of the Code and who has a satisfactory record of service. However, this was not done by the Management and instead respondent No. 3 was appointed as in charge Head Master of Urdu Boys High School, Amravati. In fact, in view of Rule 61.1(a) of the Code, the appointment of respondent No. 3 as Head Master could not have been made since respondent No. 3 had no post training experience of two years as on 6-3-1976, as admittedly he passed his B.Ed. Examination on 18-12-1974. It is no doubt true that in view of Rule 61.1(b) of the Code the requirement of prescribed teaching experience can be relaxed by the Deputy Director of the Region. However, nothing has been placed on record to show that the said requirement had been relaxed by the Deputy Director of the Region. This clearly indicates that the appointment of respondent No. 3 to the post of the Head Master of Urdu Boys High School, Amravati, was made in violation of the provisions of the Code as well as by ignoring the seniority of the petitioner. 12. The contention raised by respondent No. 3 regarding non applicability of Rule 61 of the Code in the matter of appointment of Head Master by respondent No. 2 Society, which is minority institution, is misconceived and devoid of substance. 13. 12. The contention raised by respondent No. 3 regarding non applicability of Rule 61 of the Code in the matter of appointment of Head Master by respondent No. 2 Society, which is minority institution, is misconceived and devoid of substance. 13. Similarly, the contention raised on behalf of respondent No. 1, Education Officer that in view of Rule 61.2(d) of the Code, the petitioner ought to have made appeal to the Director within thirty days from the date of appointment of respondent No. 3 as Head Master and as she did not make any such appeal she is not entitled to the relief claimed, cannot be accepted for the reason that the petitioner has specifically stated in the petition that she did not make any such appeal, as on the representation dated 5-5-1996 (Annexure-III) made by her in this behalf, she was informed that the appointment of respondent No. 3 as Head Master was purely temporary and only by way of stop gap arrangement and that respondent No. 3 will not be paid any post allowance and the petitioner's claim would be considered at the time of appointment of Head Master on regular basis. In view of the aforesaid submissions made by the petitioner, it cannot be said that simply because the petitioner had not made an appeal as provided in Rule 61.2(d) of the Code she can be deprived of the benefits to which she is legally entitled. 14. In the facts and circumstances of the case, we find that the Management without legitimate reasons deprived the petitioner from being appointed as Head Mistress though she became eligible for the same on 1-10-1976 as she passed her B.Ed. Examination on 10-9-1976 and that she was senior to respondent No. 3. The actions of respondent No. 2, management as well respondent No. 1, Education Officer are obviously incorrect and the same are not sustainable. Consequently, the impugned order dated 29-10-1985 passed by respondent No. 1, Education Officer needs to be quashed and set aside. 15. In the result, the writ petition is allowed. The impugned order dated 29-10-1985 passed by respondent No. 1, Education Officer (Secondary), Zilla Parishad, Amravati, is hereby quashed and set aside. The petitioner is entitled to get pay scale of Head Mistress with effect from 1-10-1976. 15. In the result, the writ petition is allowed. The impugned order dated 29-10-1985 passed by respondent No. 1, Education Officer (Secondary), Zilla Parishad, Amravati, is hereby quashed and set aside. The petitioner is entitled to get pay scale of Head Mistress with effect from 1-10-1976. The respondent No. 1 and 2 are hereby directed to pay the difference of emoluments and all retrial benefits on this basis to the petitioner within three months from today. The respondent No. 1 Education Officer is, therefore, directed to grant approval to the petitioner in the said category with effect from 1-10-1976. Rule made absolute in above terms with costs. Rule made absolute. -----