JUDGMENT - DABHOLKAR N.V., J. [Dissenting view from 2004(3) Bom.C.R. 117 (F.B.)]:—I have gone through the concurring judgment recorded by brother Judges S/Shri Vagyani and Bagga, JJ. [ 2004(3) Bom.C.R. 117 (F.B.)], being unable to agree with the view on the issue of reference, I am recording dissenting view for the reasons hereinbelow. Referring Division Bench of this High Court (Coram: B.H. Marlapalle and D.G. Karnik, JJ); while dealing with the aforesaid writ petitions pertaining to contest between petitioners in the two petitions for appointment as Vice Principal (Assistant Head Master) in Girls High School i.e. Kanya Vidya Mandir at Ahmednagar, run by respondent Nava Vidya Prasarak Mandal, a society registered under the Societies Registration Act; was confronted with the ratio laid down by this High Court in a couple of earlier judicial pronouncements by respective Division Benches in the matters of (Vasant Ambadas Hanchate v. State of Maharashtra others)1, 1985 Mh.L.J. 699 and (Shobha Nathuji Chahande v. Education Officer, Zilla Parishad, Chandrapur others)2, 1990(Supp.) Bom.C.R. (N.B.)429 (Both decisions of Division Benches at Nagpur). Having regard to Rule 3(4) and Rule 5(2) of Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (Hereinafter referred to as MEPS Rules, 1981, for the sake of brevity) r/w section 2(9) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (Hereinafter referred to as MEPS Act, 1977, for the sake of brevity), the Division Bench could not persuade itself to concur with the view of earlier Division Bench in the matter of Shobha (supra) and therefore, referred the matter under Rule 7 of Chapter I of Bombay High Court Appellate Side Rules, 1960 to the Honble the Chief Justice for appropriate orders. The Division Bench, while referring the matter to the Honble the Chief Justice vide order dtd. 2-8-2002, has expressed that issue regarding appointment to the post of Assistant Head Mistress in the Girls High School is required to be considered by a larger Bench, in view of its inability to agree with the view in the matter of Shobha (supra), that requirement of appointment of a lady teacher was applicable only for the appointment of Head and so far as Assistant Head is concerned, any male teacher could also be appointed. 2.Consequently, we are required to consider the provisions of section 2(9) of MEPS Act, 1977, together with Rules 3 and 5 of MEPS Rules, 1981, in order to determine: Whether the provisions permit appointment of a male teacher as an Assistant Head in a Girls High School (Secondary School) or the post is necessarily required to be filled in only by a lady teacher? 3.The relevant provisions, to the extent those are required to be referred, may usefully be reproduced hereinbelow, together with the provisions from earlier Secondary Schools Code, which were relied upon by the ld. Counsel during the course of their arguments to point out the trend of legislation, for the purpose of gathering intentions of the legislation. 3.The relevant provisions, to the extent those are required to be referred, may usefully be reproduced hereinbelow, together with the provisions from earlier Secondary Schools Code, which were relied upon by the ld. Counsel during the course of their arguments to point out the trend of legislation, for the purpose of gathering intentions of the legislation. Section 2(9) of MEPS Act, 1977, defines the term "Head of a School" as follows: "2(9): Head of a School or Head means a person, by whatever name called, in-charge of the academic and administrative duties and functions of a school conducted by any Management and recognized or deemed to be recognized under this Act, and includes a principal, vice-principal, head master, head mistress, assistant head master, assistant head mistress or superintendent thereof." (Emphasis added.) Chapter I, Clause 18 of Secondary Schools Code defines the same term as follows: (18) The Head of a School means the person who is appointed as Head Master or Head Mistress of a school by a management to be in-charge of and be reasonable for the proper running of the school." Relevance portion of Rule 3 of MEPS Rules, 1981, reads as follows : "(3) Qualification Appointment of a Head: (1) A person to be appointed as the Head: (a) (i) xx (ii) xx (b) of a secondary school including night school or a Junior College of Education shall be a graduate processing Bachelors degree in teaching or education of a statutory University or any other qualification recognized by Government as equivalent thereto and possessing not less than five years, total full time teaching experience after graduation in a secondary school or a Junior college of Education out of which at least two years experience shall be after acquiring Bachelors degree in teaching or education: Provided that, (i) xx (ii) xx (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 desires 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 of 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 Schedule "F" from amongst those employed in a school (if it is the only school run by the Management) or schools (if there are more than one school (excluding nigh school) conducted by it) who fulfils the conditions laid down in sub-rule (1) and who has a satisfactory record of service. Explanation : xxx Provided that.... (4) In the case of girls secondary school or Junior College of 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. (5) (a) xxx (b) xxx (6) xxx Explanation: xxx" (Emphasis added.) 4.Taking into consideration Rule 3 as a whole, it can be seen that, it not only prescribes the qualifications, but, to some extent, also lays down procedure for appointment of Head. Sub-rules (2), (3) and (5) are exclusively devoted to the method of appointment. Sub-rule (6) lays down that the Education Officer or the Deputy Director shall direct the Management to cancel the appointments done without following the procedure laid down in the Rule. 5.On reference to sub-rule (4) it certainly cannot be said that to be procedure for appointment. Earlier decisions in the matter of Vasant (supra) and Shobha (supra) have labelled this sub-rule as an exception. Even if this sub-rule is to be said to be an exception, same is an exception carved out for the purpose of prescribing additional requirement in an individual for being appointed as "Head" of a girls secondary school. It can be said to be exception carved out applicable to the category of the school and not applicable to the category of the post, more so, when definition of "Head of a School" is expanded, as it is, by section 2(9) of the MEPS Act, 1977. It can be said to be exception carved out applicable to the category of the school and not applicable to the category of the post, more so, when definition of "Head of a School" is expanded, as it is, by section 2(9) of the MEPS Act, 1977. Even by reading sub-rule (4) of Rule (3) in a liberal manner, it is felt : the exception carved out in appointment of a lady teacher for girls High School, is not an exception carved out only for disregarding the seniority of a lady teacher, for appointment only as Head, as observed in the matter of Shobha (supra) in para 14 of that judgment. With due respect, the observation as contained in last sentence of said para. "It creates only an exception which enables the waiver of the requirement of seniority" is not acceptable. 6.It may be useful to refer Rule (5) regarding qualifications and appointment of Assistant Head and Supervisor. (5) Qualifications and Appointment of Assistant Head and Supervisor: (1) Management of secondary school with more than twenty classes shall appoint an Assistant Head to assist the Head in his organizational, administrative and supervisory duties. Provided that..... (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. (3) xxx (4) xxx (5) The posts of supervisors shall be filled in only from amongst the permanent staff strictly on the basis of seniority-cum-merit. Seniority shall be determined on the basis of guidelines given in Schedule "F". Merit shall be determined in accordance with the record of service within the meaning of that expression in the explanation below sub-rule (6) of Rule 3." (Emphasis added) Thus, it is evident that by virtue of sub-rule (1) Assistant Head is appointed only when the number of classes exceeds 20 and management requires the Head to be assisted in his organizational, administrative and supervisory duties. The provisions indicates that the Assistant Head would be performing organizational, administrative and supervisory duties, may be by rendering assistance to the Head. Sub-rule (2) borrows Rule 3 relating to qualification and appointment of Head, as applicable to appointment as Assistant Head and supervisor. The provisions indicates that the Assistant Head would be performing organizational, administrative and supervisory duties, may be by rendering assistance to the Head. Sub-rule (2) borrows Rule 3 relating to qualification and appointment of Head, as applicable to appointment as Assistant Head and supervisor. It may not be out of place to record here itself that in sub-rule (2) of Rule 5, there is nothing to indicate that sub-rule (4) of Rule 3 is excluded so far as application of Rule 3 to the appointment of Assistant Head is concerned. On plain reading of sub-rule (2) of Rule 5, it will have to be said that Rule 3, regarding qualifications and appointment of Head, shall apply in all its details to the appointment of Assistant Head, except to any extent saved by sub-rule (2) and sub-rule (2) itself refers only to sub-rule (5) which is pertaining to post of Supervisor, which is required to be filled in only from amongst permanent staff strictly, thereby, eliminating possibility of appointment of a supervisor by an advertisement, as contemplated by Rule 3(5)(b) in case of Head of a School. 7.In the matter of Vasant (supra), by relying upon Rule 61.2 of Secondary Schools Code, it was observed that Rule 3(4) of MEPS Rules, 1981, is by way of an exception and therefore, will have to be strictly construed. The expression "mutatis mutandis" as used in Rule 5(2) will not cover the exception incorporated in Rule 3(4). This is because "mutatis mutandis" means "with due alteration of details or appropriate change". As rightly pointed out by the Advocates, while recording these observations, the Division Bench did not take any note of Clause (c) of Rule 61.2 of Secondary Schools Code. "(c) Management of a school with more than 20 classes may appoint an Assistant Head to assist the Head in his administrative and supervisory duties. Provisions of Clause (a) above (together with the exception thereunder) and of Clause (b) above shall apply also to the appointment of the Assistant Head." From the portion bracketed in Clause (c), it is evident that exception, as it then stood, was not carved out for only appointment of Head Mistress of girls school, but that was applicable also to the appointment of Assistant head. The exception to Rule 61.2 (a) reads as follows: "Exception :- In the case of a Girls School, that is a school run exclusively for girls, the seniormost 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." Taking into consideration the qualifications which are prescribed only for Head of a school in Rule 61.1 together with method prescribed for the appointment in Rule 61.2 of the Secondary Schools Code and more particularly, Clause (c) of Rule 61.2, together with exception to Rule 61.2(a), it will have to be said that the observations in the matter of Vasant (Supra), that an exception is carved out only for appointment of a Head of a school, is not well founded. On the contrary, Clause (c) clearly indicates the intentions of the Legislature to make applicable, if that be an exception; of an appointment of a lady teacher, also to the post of Assistant Head. 8.In this context, even the changed manner, in which, the duties of an Assistant Head are laid down under MEPS Rules, 1981, as compared to those laid down under the Secondary Schools Code, is required to be taken a note. Under the Secondary Schools Code, the duties of Assistant Head Master were prescribed in Clause (2) of Appendix Twelve as follows :- "2. Duties of Assistant, Head Master:- (1) To help the Head Master in connection with work regarding new admissions to school, holding of examinations and preparing their results. (2) To look after correspondence other than that with the Management and the Department. (3) To prepare the class-wise time table of the school with the consent of the Head Master. (4) XX (5) XX (6) XX (7) XX (8) XX.........." It is evident that particular work was assigned to the Assistant Head Master and he was expected to do it with the consent of Head Master. Correspondence with the Management and Department was specifically excluded from his duties/responsibilities. (4) XX (5) XX (6) XX (7) XX (8) XX.........." It is evident that particular work was assigned to the Assistant Head Master and he was expected to do it with the consent of Head Master. Correspondence with the Management and Department was specifically excluded from his duties/responsibilities. As against this, the duties of Assistant Head, after expansion of definition of "Head of a School" or "Head" under MEPS Rules, 1981, as prescribed by Schedule "I" of the said Rules, read as under: (2) Duties of the Assistant Head:—In addition to his duties as a teacher in respect of the class or classes taught by him personally and subject to such instructions as may, from time to time, be issued by the Head, the Assistant Head shall : (1) assist the Head in performance of the Head Masters duties so far as he is in-charge of the class or classes, (2) maintain the Log Book in respect of teachers in his charge, observe at least one lesson of a Supervisor or Teacher per week and maintain a record thereof and also periodically inspect the log book maintained by the Supervisors, (3) subject to such instructions by the Head, supervise the work done by the teachers placed in his charge and be responsible for their conduct, discipline and efficient work , (4) XX (5) XX (6) XX (7) be responsible for one of the shifts as per the directions of the Head, (8) XX (9) XX"(Emphasis added) It will be found from some of the sub-clauses of Clause (2) reproduced hereinabove that Assistant Head is practically required to perform the duties of the Head, in a limited sphere carved out by the Head, in the light of increase in number of clauses beyond 20. It may not be out of place to say that he performs duties of the Head in that limited sphere, although under instructions of the Head. It may not be out of place to say that he performs duties of the Head in that limited sphere, although under instructions of the Head. 9.As already discussed hereinabove, the observations in the matter of Vasant (supra), which were borrowed with approval in the matter of Shobha (supra), to the effect that appointment of a lady teacher was an exception carved out only for the post of Head of a school, are not sustainable in the light of Clause (c) to Rule 61.2 of Secondary Schools Code and hence, now it is not open to argue that sub-rule (4) of Rule 3 also carves out an exception for appointment of a Head. On the contrary, if the expression "mutatis mutandis" as contained in sub-rule (2) of Rule 5, is to be read with due alteration of details or appropriate change, then it must be said that, in Rule 3, sub-rule (4), for its applicability to the post of Assistant Head, by virtue of Rule 5(2), expression "Head of that school" as contained in Rule 3(4), is required to be read as "Assistant Head of that school", especially in the light of expansion of definition of "Head of a school" or "Head" by MEPS Act, 1977. It also cannot be ignored that the requirement of appointment of a lady teacher as Head of a girls secondary school, by MEPS Rules, 1981, is not labelled as an "exception" as in Secondary School Code. Sub-rule (4) of Rule 3 is not excluded from its applicability to the post of Assistant Head by language of sub-rule (2) of Rule 5. 10.To confirm this, in the light of the fact that, now Assistant Head is required to perform the duties of the Head in the limited sphere, may be pertaining to certain classes only, the reasons given in the matter of Vasant (Supra), while upholding the constitutional validity of Rule 3(4), may usefully be reproduced.:- "Bearing in mind these principles and precedents, let us examine whether keeping the post of Head of an educational institution meant exclusively for girls as a woman preserve militates against right of equality. We do not think so. This is a pure policy decision having nexus to the object sought to be achieved viz. benefit to girl student and the teachers as well. We do not think so. This is a pure policy decision having nexus to the object sought to be achieved viz. benefit to girl student and the teachers as well. It does not require great imagination to visualize various situations arising in administration in which the girl students can be better at ease with a Head Mistress. Several awkward situations can be avoided if the Head is a lady with whom better and easier rapport and communications can be established. Considered even from the point of view of special benefits to the lady teachers as a class, the provisions can be sustained as reasonable." The reasons, for which, the Division Bench in the matter of Vasant (supra) upheld the constitutional validity of reservation of the post of Head of girls school for a lady teacher, should also apply for such reservation of the post of Assistant Head. 11.I, therefore, feel that dissent expressed by the referring Division Bench is justifiable. -----