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2003 DIGILAW 971 (BOM)

Aleyama Mathai Almeida v. State of Goa

2003-09-10

P.V.HARDAS, R.J.KOCHAR

body2003
JUDGMENT R. J. Kochar. J.-The petitioner in Writ Petition No. 202 of 1998/ respondent No.3 in Writ petition No. 206 of 1998 a Teacher is aggrieved by the act of denial of promotion to her as a head Mistress or a head of the School of respondent No. 3/petitioner in Writ Petition No. 206 of 1998. She has prayed for a writ of mandamus or an appropriate writ direction and order commanding respondent No. 3. to promote the petitioner to the post of Head Mistress in the School of respondent No.3. with effect from 1st May. 1985. 2. According to the petitioner she was employed as an Assistant Teacher in the School which is aided by the State Government from 1965. According to her she was the senior most Teacher in the School and she was entitled to be promoted to the post of the Head Mistress in the year 1981 when vacancy in that post arose. At that time, she was superseded and one Mrs. Irene Ferreira. who was junior to the petitioner was promoted as Head Mistress of the School. She approached this Court by filing a writ petition to challenge the promotion given to the said Mrs. Ferreira. During the pendency of the petition the said Mrs. Ferreira reached the age of superannuation and. therefore, nothing survived in the said petition, which was rejected. According to the petitioner, even thereafter the school management did not consider her claim to be promoted to the post of Head Mistress on the specious ground that there were adverse remarks in her confidential record. Instead of promoting the petitioner, the school management promoted respondent No.4, who was also much junior to the petitioner. According to the petitioner, as and when vacancy in the post of Head Master arose on several occasions, her claim was rejected and the Directorate of Education on all the occasions refused to approve the decision of the School Management to promote the other Teacher, except the petitioner. On 1st May, 1985, the Departmental Promotion Committee recommended the candidature of Shli Conception Almeida and not the petitioner. This proposal was turned down by the Department on the ground that the petitioner was the seniormost trained graduate teacher and that she was by-passed without tangible reasons. It further appears that on 20th December. On 1st May, 1985, the Departmental Promotion Committee recommended the candidature of Shli Conception Almeida and not the petitioner. This proposal was turned down by the Department on the ground that the petitioner was the seniormost trained graduate teacher and that she was by-passed without tangible reasons. It further appears that on 20th December. 1985 the Departmental Promotion Committee again considered the claim of the petitioner and the said Shri Conception Almeida and repeated its recommendation by recording its reasons. The Department again did not accept the recommendations of the Departmental Promotion Committee. It further appears that on 22nd August, 1986, a third Departmental Promotion Committee was constituted to consider the promotion to the post of Head Master. The Department Promotion Committee again considered the claims of the petitioner as well as the said Shri Conception Almeida and recorded its reasons not to grant promotion to the petitioner. 3. The Directorate of Education appears to have been irked by the non-compliance of the orders given by the Director to promote the petitioner. It imposed a penalty cut in the maintenance grant of 25%. By an order dated 5th December, 1990, the Administrative Tribunal allowed the appeal filed by the Management and held that the post of head Master was correctly filled in and no fault could be found with the same. The Tribunal quashed and set aside the action of the Department in imposing penalty without hearing the Management. It further appears that after a period of two years. the Department issued a Show Cause Notice as to why the Management of the School should not be taken over for not giving promotion to the petitioner. 4. The nub of the complaint of the petitioner-Teacher is that the School Management has wrongfully denied her promotion to the post of the Head Mistress by superseding her from 1981 onwards. According to her she being the senior-most Assistant Teacher in the School she is rightfully entitled to get the promotion instead of the respondent No. 4 who is less qualified and junior in service to the petitioner. The petitioner has been fighting this battle since 1981 in the Courts but she has not been successful in her fight till she reached her age of superannuation in 1998. The petitioner has been fighting this battle since 1981 in the Courts but she has not been successful in her fight till she reached her age of superannuation in 1998. The Director of Education has every time turned down the proposal of the School Management to appoint/confirm the respondent No. 4 on the ground that the claim of the petitioner was by-passed without tangible material contrary to Rule 58. The Director has fully supported the petitioner as against the Management. After the final round in the Supreme Court the case of the petitioner was once again considered by the Departmental Promotion Committee and her claim was rejected. The Director has again refused to grant approval to the appointment of the respondent No.4 by her Order 26th February. 1997 which is also under challenge in the companion Writ Petition No. 206 of 1998 filed by the Management. 5. In nutshell, the case of the Management is two-fold viz. that firstly it is minority institution protected under Article 30 of the Constitution and. therefore the Director of Education has no power to interfere in the administration of the School and appointment of a Head Master and therefore, the impugned order of the Director is in breach of Article 30; secondly without prejudice to the first contention, the case of the petitioner was considered by the Departmental Promotion Committee four times and every time the Departmental Promotion Committee rejected her claim and selected the respondent No.4 on the basis of merit and service record. According to the Departmental Promotion Committee, the service record of the petitioner is not good and hence she was not suitable for the post of the Head Mistress. 6. These are the parameters of the contentions of both the sides in these two petitions. We have considered the proceedings and also the fact that the petitioner-Teacher has already retired in 1998 and therefore, she will not get the benefit of the post even if she finally succeeds. 6. These are the parameters of the contentions of both the sides in these two petitions. We have considered the proceedings and also the fact that the petitioner-Teacher has already retired in 1998 and therefore, she will not get the benefit of the post even if she finally succeeds. Instead of going into the ticklish and contentious point of 'minority' card played by the school which is certainly a larger issue, we have first gone into the issue of the merit of the claim of the petitioner being a smaller issue and the legal position in respect of promotions as observed by the Supreme Court in the case of Hussan Mithu Mhasvadkar v. Bombay Iron & Steel Labour Board and another, (2001) 7 SCC 394 . It is well-established that the right of an employee is restricted only to be considered for promotion and as such the petitioner has no right of promotion. It is an admitted fact that the Departmental Promotion Committee constituted by the School has five times considered the claim of the petitioner and found her not suitable on account of her bad service record. The Departmental Promotion Committee has recorded the reasons to refuse to grant promotion to the petitioner. The reasons recorded are as under : The Promotion Committee did not consider the selection promotion of Mrs. Aleyamma Mathai A. to the post of Head Mistress in the school due to the following reasons : 1. The C.Rs. of the teacher are not found to be satisfactory compared to the other teachers. 2. There is enough evidence in her personal file that she has been working against the interest of the school. 3. It is found that the teacher has been working in one of the training institution for a additional monetary benefits without the approval of the management of the school. 4. It is on record that the teacher tried her best to instigate the other members of the staff not to co-operate with the Management. 5. The Ex-principal (Management) viz late Shri Jose Pinheiro had severely constigated (castigated) the teacher for her unbecoming behaviour. The entire correspondence about the indisciplined and unbecoming behaviour of the teacher is resting with the department." 7. We are of the opinion that the Departmental Promotion Committee had validly considered the case of the petitioner and has refused to select her for promotion. The entire correspondence about the indisciplined and unbecoming behaviour of the teacher is resting with the department." 7. We are of the opinion that the Departmental Promotion Committee had validly considered the case of the petitioner and has refused to select her for promotion. The decision arrived at by the Departmental promotion Committee is procedurally correct and the Departmental Promotion Committee has recorded reasons. It is neither open to the Director, nor to this Court under Article 226 of the Constitution of India to sit in appeal over the decision of the Departmental promotion Committee validly arrived at. Under Rule 58 the powers of the Director of Education are restricted to the extent of grant of "approval" and not that of an appellate authority to sit in appeal over the decision of the School Management bonafide reached in respect of promotion of a Teacher. If the Management has acted fairly by constituting a Departmental Promotion Committee and placing all the relevant material, including service records of the candidates and if the Departmental Promotion Committee has properly reached its own conclusion on the basis of merits and in accordance with Rules and without there being any extraneous consideration or mala fides and if it records its brief summary of impressions of the candidates from service record and interview, there is hardly any reason for the Director to reject the decision of the School Management. The power of "approval" is vested in the authority only for the purpose to check and control the Management acting not bona fide but mala fide and for extraneous considerations, arbitrarily, recklessly and unfairly. Finally, the Teacher or the concerned employee, has to get the dispute resolved Judicially before the appropriate forum in accordance with law. It was not at all proper for the Director of Education to plead relentless for the petitioner by setting aside the order of the School Management every time and to adopt an unfair and vindictive approach by going to the extent of ordering cut in grant of aid and to take over the Management of the School which is otherwise properly functioning and only for the avowed reason to get promotion for the petitioner. Such conduct of the Director of Education reflects badly on the administration and abuse of its powers. Such conduct of the Director of Education reflects badly on the administration and abuse of its powers. The Director appears to have misunderstood the power of approval under Rule 76, to say the least be taking a charitable view of the extraordinary enthusiasm exhibited by the Director of Education in favour of the petitioner and against the Management and the promoted Teacher, respondent No.4. In the case of State of Madhya Pradesh v. Srikant Chaphekar, 1993 Lab IC 96, the Supreme Court has in the similar facts observed as under : "4. We are of the view that the Tribunal fell into patent error in substituting itself for the DPC. The remarks in the annual confidential report are based on the assessment of the work and conduct of the official/officer concerned for a period of one year. The Tribunal was wholly unjustified in reaching the conclusion that the remarks were vague and of general nature. In any case, the Tribunal out stepped its jurisdiction in reaching the conclusion that the adverse remarks were not sufficient to deny the respondent his promotion to the post of Deputy Director. It is not the function of the Tribunal to assess the service record of a Government servant and order his promotion on that basis. It is for the DPC to evaluate the same and make recommendations based on such evaluation. This Court has repeatedly held that in a case where the Court/Tribunal comes to the conclusion that a person was not considered for promotion or the consideration was illegal then the only direction which can be given is to reconsider his case in accordance with law. It was not within the competence of the Tribunal, in the facts of the present case, to have ordered deemed promotion of the respondents. 5. We are further of the view that this is not a fit case where even a direction to consider the respondents for promotion from the year 1981 can be given. The adverse reports were expunged on October 11, 1982. The only representation made by him was in the year 1984. Thereafter the respondent kept quiet till November, 1991, when he approached the Tribunal. The adverse reports were expunged on October 11, 1982. The only representation made by him was in the year 1984. Thereafter the respondent kept quiet till November, 1991, when he approached the Tribunal. It would not be in the interest of Justice to issue any such direction after a period of more than a decade." We are also fortified by another judgment of the Supreme Court, in our view that there is no right of promotion and that while considering an employee for promotion his/her whole record has to be taken into consideration. In the present case, the Departmental Promotion Committee of the School Management has rightly considered the service record of the petitioner and we do not find fault with its decision merely on the ground that the adverse remarks were not communicated to her earlier. In the case of Union of India and others v. K. V. Jankiraman and others, (1991) 4 SCC 109 , the Supreme Court observed as under :.........An employee has no right to promotion. He has only a right to be considered for promotion. The promotion to a post and more so, to a selection post, depends upon several circumstances. To qualify for promotion, the least that is expected to an employee is to have a unblemished record. That is the minimum expected to ensure a clean and efficient administration and to protect the public interests. An employee found guilty of a misconduct cannot be placed on par with the other employees and his case has to be treated differently. There is, therefore, no discrimination when in the matter of promotion, he is treated differently. The least that is expected of any administration is that it does not reward an employee with promotion retrospectively from a date when for his conduct before that date he is penalised in presenti. When an employee is held guilty and penalised and is, therefore, not promoted at least till the date on which he is penalised, he cannot be said to have been subjected to a further penalty on that account. A denial of promotion in such circumstances is not a penalty but a necessary consequence of his conduct. When an employee is held guilty and penalised and is, therefore, not promoted at least till the date on which he is penalised, he cannot be said to have been subjected to a further penalty on that account. A denial of promotion in such circumstances is not a penalty but a necessary consequence of his conduct. In fact, while considering an employee for promotion his whole record has to be taken into consideration and if a promotion committee takes the penalties imposed upon the employee into consideration and denies him the promotion, such denial is not illegal and unjustified." This judgment has been followed by the Supreme Court in The Collector of Tharyavur Distt v. S. Rcyagopalan and others, JT 2000 (3) SC 376. Now let us examine the scope of the power of the Director of Education to approve the decision of promotion taken by the Management. Rules 75 and 76 of the Goa School Education Rules, 1986, read as under : "75. Relaxation to be made with the approval of the Director.-Where the relaxation of any essential qualification for the recruitment of an employee is recommended by the appropriate Selection Committee, the Managing Committee of the school shall not give effect to such recommendation unless such recommendation has been previously approved by the Director of Education : Provided that the Director of Education shall not give relaxation to the training qualifications when trained candidates are available and when they satisfy the subject requirements as notified by the school. 76. Appointing Authority and Appointment.-(1) The Appointing Authority for every employee shall be the Managing Committee subject to the approval under Rule 75. The appointment of every employee of a school shall be made by the Chairman of the Managing Committee on behalf of the Managing Committee in a form to be specified by the Director of Education; (2) Every appointment made by the Managing Committee of a recognised school shall initially be provisional and shall require approval of the Director of Education; (3) The particulars of every appointment made by the Managing Committee of an aided school shall be communicated by such committee to the Director (either by registered post acknowledgment due or by a messenger who will obtain an acknowledgement of the receipt thereof) within 7 days from the date on which the appointment is made. (4) The Director of Education shall be deemed to have approved an appointment made by the Managing Committee of an aided school subject to the provision of Rule 75 if within 3 weeks from the date on which the particulars of the appointment are received by him under sub-rule (3) he does not intimate the Managing Committee his disapproval of the appointment; (5) There any appointment made by the Managing Committee of an aided school is not approved by the Director. such appointment may (pending the regular appointment to the post) be continued on an ad hoc basis for a period not exceeding three months and the salary and allowances of the person so continued on ad hoc basis shall qualify for the computation of the aid to be given to such school provided the provision of Rule 75 is not contradicted." It is clear that the Director has to see that the Appointing Authority acts bona fide while appointing or promoting a candidate and observes that training qualifications are strictly observed and no candidate who is not qualified for the posts is appointed/promoted. The requisite qualifications are prescribed in Rule 78. It is not the case of the Director that the respondent no. 4 who is promoted to the post of Head Master is not qualified. According to him the petitioner being senior to the respondent No. 4 ought to have been promoted. It is well- established that it is the prerogative of the Management to appoint/promote a eligible and suitable candidate in every respect as the head of the School. The Director cannot step in the shoes of the Management to promote the petitioner, nor the power of approval can be stretched to the extent of denying approval even if the respondent No. 4 is otherwise eligible qualified and otherwise suitable and when there are no mala fides alleged. According to us, the Director of Education erred in not granting approval to the promotion of the respondent No. 4 instead of the petitioner. 8. The petitioner's case has been time and again considered by the Departmental Promotion Committee and has been rejected by recording reasons which cannot be said to be not tangible. According to us, the Director of Education erred in not granting approval to the promotion of the respondent No. 4 instead of the petitioner. 8. The petitioner's case has been time and again considered by the Departmental Promotion Committee and has been rejected by recording reasons which cannot be said to be not tangible. The whole service record of the petitioner was before the Departmental Promotion Committee and on the basis of the same the petitioner was found to be not a suitable candidate for the post of the Head Mistress. In view of the Service Record of the petitioner we are not able to find any fault with the decision of the Departmental Promotion Committee. We cannot substitute our opinion for that of the Departmental Promotion Committee and the School Management and we cannot foist upon it an unwanted and five-times rejected candidate as the Head Mistress of the School. Even assuming that technically the adverse remarks recorded in the Confidential Record of the petitioner were not communicated that was a tangible material for the Departmental Promotion Committee not to select her for the highest post in the School. Further. it is not her case that those remarks are written maliciously by the Management with a view to deliberately deny her promotion. It. indeed goes to the credit of the Management that inspite of the remarks the petitioner was continued in service till her regular retirement. Any reasonable person would also similarly decide in the best interest of the Management. According to us even the Director of Education could not sit in appeal over the decision of the Departmental Promotion Committee which is supported by the tangible material. The Director cannot substitute her own opinion in the place of the Departmental Promotion Committee in the matter of appointment to the post of Head Mistress which is the highest post in the school and the incumbent must enjoy full confidence of the Management. Besides we cannot direct the Management to promote the petitioner retrospectively and grant her difference in the pay after lapse of more than fifteen years. No useful purpose would be served to direct the Management to consider her case as on the date of rejection of her claim last by the Departmental Promotion Committee on 26th February. 1997. Besides we cannot direct the Management to promote the petitioner retrospectively and grant her difference in the pay after lapse of more than fifteen years. No useful purpose would be served to direct the Management to consider her case as on the date of rejection of her claim last by the Departmental Promotion Committee on 26th February. 1997. In view of our conclusion on the merits of the right or claim of the petitioner it is not necessary for us to consider the issue of the rights of the School Management as a minority Institution under Article 30 of the Constitution of India. We have not decided this issue and it is left open to be decided in an appropriate case. 9. In the peculiar facts and circumstances narrated by us hereinabove the Writ Petition No. 202 of 1998 stands dismissed. Rule is discharged. 10. For the same reasons recorded by us hereinabove we quash and set aside the impugned order dated 26th February, 1997 passed by the Director in Writ Petition No. 206 of 1998. We make the rule absolute in that writ petition. No order as to costs. Both these petitions are disposed by this common judgment. Petition dismissed.