JUDGMENT
Dharmadhikari, J.
1. In this Writ Petition, it is the case of the petitioner that he was appointed as Head Master by respondent No. 7 Jana Seva Sangh on April 8, 1977. He resumed his duties as Head Master on June 13, 1977. His appointment was then approved by the Deputy Director of Education on July 18 1981 with restrospective effect from June 13, 1977. Later on the Joint Director of Education the respondent No. 1 declared the said appointment as invalid by his order dated January 8, 1982. It is this order of the Joint Director of Education which is challenged by the petitioner in the present petition.
2. It is an admitted position that the Jana Seva Sangh which is a registered body is conducting three secondary schools and two- night schools since the year 1944. Out of these three secondary schools, one is at village Nere, Taluka Panvel, District Raigad and others are Kumari Kasturi Vidyalaya, Bhandup, Janata Vidyalaya, Dongri, Mazgaon Night High School, Dongri and Bhandup Night High School, Bhandup, Bombay. However, in this petition we are not concerned with the Night High Schools but are only concerned with three regular secondary schools. When the petitioner was appointed in the year 1977 as Head Master at Nere High School, his services were made transferable inter se so also the services of respondent Nos. 8 to 13 were transferable in any of the schools run by the Jana Seva Sangh. One Miss Jayashri Balkrishna Joshi was working as Head Mistress at Nere High School at the relevant time. She resigned on January 21, 1977 and was relieved from June 12, 1977. According to the petitioner as none of the other senior teachers were willing to go to Nere, an advertisement was issued in the news papers and he came to be appointed in the said post. On March 4, 1977 the Executive Committee of Jana Seva Sangh directed that the advertisement should be given in Loksatta. Such an advertisement was given in the news papers and thereafter by a letter dated June 8, 1977 the petitioner came to be appointed as Head Master at Nere. School on probation for a period of one year. On July 28, 1977 the Education Officer, Zilla Parishad, approved the appointment of Shri Godse as acting Head Master so as to avoid inconvenience to the teachers in regard to the payment of their salaries, which, it appears were withheld. Since the appointment of Shri Godse was without following the procedure prescribed by Rule 61.2 of the Secondary Schools Code, the Education Officer also informed that Godse is not eligible to be appointed as Head Master and, therefore, directed that the School may approach the Deputy Director of Education, Pune in that behalf. Then a declaration was sought from other teachers on February 2, 1980 to the effect that Shri Godse’s appointment as Head Master at Nere High School should be regularised as they were not willing to go as Head Master at Nere High School even in the year 1977. The senior teachers which included the respondents clarified the position by saying that this declaration will be applicable exclusively to the appointment of Shri Godse as head master at Nere High School on June 13, 1977 and it shall not be used in any manner for any further appointment as head masters in High Schools conducted by the Jana Seva Sangh, After getting this declaration from the respondents and other teachers, the management approached the Deputy Director who by relaxing the condition enumerated in Rule 61.2 of the Secondary Schools Code approved his appointment by imposing two per cent penal cut in the grant. It appears that in the meantime by letter dated December 3. 1980 one Mrs. Ghosalkar was transferred to Nere High School and the petitioner was transferred to Bombay School at Dongri in her place. This was objected to by Mrs. Ghcsalkar. Therefore petitioner Shri Godse was retransferred to Nere High School and Mrs. Ghosalkar was appointed as Head Mistress at Dongri School. The order of transfer of the petitioner Shri Godse to Dongri High School was challenged by the respondents Nos. 8 to 13 by filing an appeal to the Director of Education, State of Maharashtra. The said appeal came to be decided by the Joint Director by his order dated January 8, 1982. The Joint Director allowed the appeal filed by the respondents and it is this order which is challenged in writ petition No. 542 of 1982.
3. In the meantime the management appointed Shri Godse as Head Master of Kumari Kasturi Vidyalaya, Bhandup. Being aggrieved by the said order the writ petition No. 899 of 1985 on the Original Side of this Court, was filed by Mrs. Sulabha Kamalakar Jambhorkar. Since both these writ petitions involved common questions of law and fact they were heard together and are being disposed of by this common judgment.
4. Shri Limaye, learned Counsel appearing for the petitioner-Godse in writ petition No. 542 of 1982 who is also respondent No. 2 in Original Side writ petition No. 899 of 1985, contended before us that Shri Godse was duly appointed as head master at Nere High School as per rules. When Shri Godse was appointed as head master none of the senior teachers, including the respondents were prepared to go and serve as head master at Nere High School. Because of this refusal an advertisement was given in the news papers. In pursuance of this advertisement Shri Godse applied for the post. He was duly interviewed by the Selection Committee and thereafter was appointed as head master at the said School. Thus Rule 61.2 of the Secondary Schools Code was duly complied with. His appointment was also approved by the Education Department. This was approved by relaxing the condition enumerated in Rule 61.2 of the Code and a penal cut in the grant at 2% was also levied. Thus the appointment made was duly regularised. By letter dated February 2. 1980, the senior teachers, including the respondents, gave a solemn declaration that they were never willing to work as head master at Nere High School even on the day when Shri Godse was appointed as head master. Therefore in any case it could safely be said that there was substantial compliance with the provisions of Rule 61.2 of the Secondary Schools Code. Thus according to the petitioner his seniority will have to be reckoned in the cadre of the head master and on that basis he is entitled to be transferred to any of the schools run by the management, including the schools at Bombay. Therefore the belated order passed by the Joint Director of Education holding that the initial appointment of Shri Godse as head Master to the Nere High School was illegal, is bad in law. Once it is held that initial appointment was good then his subsequent transfers to Dongri or to Kumari Kasturi High School are also legal and valid. It is also contended by Shri Limaye that the provisions of Rule 61.2 of the Code are directory, and not mandatory, hence substantial compliance with the said provisions is enough. On that basis it could safely be said that Shri Godse was appointed as head master after complying with the provisions of Rule 61.2 of the Code.
5. Shri Govilkar the learned Counsel appearing for the management adopted the arguments advanced by Shri Limaye. He also brought to our notice that Smt. Ghosalkar and Duse were present at the meeting of the Executive Committee held on December 21, 1977 wherein it was decided that advertisement should be issued in the newspapers inviting applications for the post of head master at Nere High School. In pursuance of this advertisement Shri Godse applied and was duly selected. Allegations made in the petition about the mala fides of the management are wholly incorrect. Mr. Vaidya was never member of the managing committee, therefore his relationship with Shri Godse was wholly irrelevant. Hence his appointment was perfectly legal and valid.
6. In reply to the contentions raised by the petitioner or the management, it is contended by Shri Vashi and Shri Abhale that the initial appointment of Shri Godse as head master at Nere High School was in itself void ab initio. An advertisement was issued in the newspapers without seeking prior permission of the Deputy Director of Education. The appointment of Shri Godse as head master to Nere High School was surrentitiou made. Advertisement was inserted in an innocuous corner of the newspaper and that too for the post of Assistant Teachers. No advertisement was ever issued for the post of head master. Before issuing the advertisement or appointing Shri Godse as head master of Nere High School, the statements in writing of the senior teachers as contemplated by Rule 61.2 of the Code were neither recorded nor they were consulted. The so-called letter written by the respondents on February 2, 1980 cannot cure the illegality. Further, by the said letter the respondents Nos. 8 to 13 had informed the management in clearest terms that the said letter should not be used in any way for future appointments of head master in the High Schools, conducted by the Jana Seva Sangh. Therefore at best the said letter could be relevant for the purpose of appointment of Shri Godse in Nere High School as Assistant Teacher or Head Master, but on that basis he cannot claim any appointment as head master in any other school in Bombay. Further the learned Counsel have contended that the provisions of Rule 61.1 of the old Code and 61.2 of the new Code are mandatory, and non-compliance with the said provisions must render the initial appointment of Shri Godse void ab initio. Therefore the Director of Education was perfectly right in coming to the conclusion that the advertisement issued by the management and the subsequent appointment of Shri Godse from July 13, 1977 as head master of Nere High School were not proper. Further the alleged approval given by the Deputy Director of Education by his letter dated July 18, 1980 is also not according to rules, and therefore, the Joint Director was further justified in holding that the said appointment was ultra vires and was done with mala fide intention to do injustice to senior teachers.
7. Therefore, from the rival contentions raised before us it will have to be seen as to whether there was compliance with the provisions of the Rule 61.1 of the old Code and 61.2 of the new Code, when Shri Godse was appointed as head master of Nere High School in the year 1977. The Rule 61.1 of the old Code and 61.2 of the new Schools Code read as under:
61.1(i) The management of a school shall give careful consideration to the question of filing up the post of the Head of a school and shall appoint a well-qualified and competent person from among those available including those already employed, in the schools run by the same management, as the Head. Seniority should be given due consideration in the appointment of the Head. In case, the management intends to deviate from this procedure the reasons for the same shall be communicated to the Director and his previous permission should be obtained.
(ii) Any teacher who considers that injustice has been done to him may appeal to the Director within one month from the date of the appointment of the Head.
(iii) Managements may make the appointment of the Head on probation and communicate his full particulars to the appropriate authority. The period of probation shall not exceed two years.”
“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 fulfils 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 hand 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) of 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,
(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.
(d) A teacher who is, in any way, aggrieved by the appointment made by the Management of the Head or Assistant Head of his school may make an appeal to the Director within thirty days from the date of such appointment. The Director may entertain an appeal after the expiry of the said period of thirty days if he is satisfied that the appellant had sufficient cause for not preferring the appeal within such period. The Director may pass such order on the appeal as he deems fit. A copy thereof shall be forwarded to the management which shall comply with the orders forthwith. The order of the Director shall be final.
From the bare reading of these rules it is quite clear that normal rule is to fill in the post of head master from amongst the senior teachers employed in the school or schools. The claim of senior most qualified teacher having satisfactory record could 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 is to be recorded in the presence of the concerned authorities. It must bear the endorsement of the Officer of the department to the effect that it is recorded in his presence. Clause (b) of the said rule, then lays down that if a suitable teacher within the contemplation of Clause (c) is not available to fill up the post of the head master of the school, then the management shall with prior permission of the Deputy Director of Education advertise the post and and select/appoint as head master a suitable, qualified, experienced person. Application for such an appointment is to be made at least two months in advance. The advertisement could be issued only after the permission of the Deputy Director has been obtained. The expression used is ‘shall, with prior permission of the Deputy Director of Education’. If this expression is read with other provisions of the rule then it is more than clear that it is a condition precedent to the issuance of the advertisement itself. It is well settled – that wbati a condition precedent is laid down by a statute or instrument, then subsequently complying with it, will not cure the illegality. To say the least a condition precedent cannot be permitted to become condition subsequent-There appears to be some cogent reasons for obtaining such prior or previous permission. It appears that having regard to the predicament of the teachers in the privately run Institutions and the prevailing conditions in employment market, as a condition of grant and recognition, authorities thought it fit to protect these teachers from exploitation. This is the reason why even a statement voluntarily relinquishing the claim to the post of head master is directed to be recorded in their own hand and that too before an Educational Officer. This is not the end of the matter. The Education Officer is also obliged to endorse it as having been recorded in his presence. If it is held that the condition of prior permission could be cured by post-facto sanction or permission or could be treated as condition subsequent then the very purpose of rule will be frustrated and the intention behind it to give protection to the poor teachers from the vagaries as well as exploitation by the management will have no meaning. The very purpose of laying down of such a condition is to provide the teachers security and stability in their service, so as to enable them to discharge their duties towards the pupils and their guardians in particular and institutions and the society in general effectively and efficiently. Therefore it is not possible for us to accept the contention of Shri Limaye that the provisions of Rule 61 should be construed as directory. On the other hand, in our view, from the words and expressions used in the said rule* it is more than clear that the said rule is intended to be mandatory. The position is further clear from Rule 97 of the Code which provides for withholding or reduction in grant. Rule 97(2) lays down that the case of infringement of the provisions of rules of the Code, which in the opinion of the Deputy Director is of serious nature, grant could be reduced or withdrawn without any previous warning. Thus a penalty has been provided for the infringement of the provisions of the Rules of the Code. It is well settled that when a provision providing penalty is made for the breach of any rule, then normally such a rule should be construed as mandatory. Therefore taking any view of the matter we are of the opinion that Rule 61 is mandatory in nature.
8. The advertisement issued by the management inviting application was produced before us. This advertisement was published in the daily Loksatta on Wednesday May 18, 1977 in the column of small advertisements which reads as follows: –
eqacbZrhy laL;sP;k ikp ek/;fed ‘kkGklkBh loZLoh okgwu ?ks.kkjs ‘kS{kf.kd vkfFkZdº”V;k laLFkk HkjHkjkVhpkh bZ”kkZ ckGx.kkjs Vz~saM vkVZl@lk;Ul xzsT;q,V ikfgtsr- nksu o”kkZps dke ikgwu R;kauk dk;e vktho lsod Eg.kwu use.;kar ;sbZy- —ckWaDl ua- 94935 yksdlRrk] ujheu] ikabZV] eqacbZ&400001*
Apart from grammatical mistakes in the advertisement neither a reference is made to the educational Institution nor to the posts for which the applications were invited. It appears that the applications were invited for more than one post. In this advertisement a reference is not made to the post of head master at Mere High School. Therefore in our view this cannot be equated with the advertisement contemplated by Rule 61.2 of the Code. It is the case of the management as well as Shri Godse that in pursuance of the said advertisement he applied for the post and came to be appointed as head master. To say the least this whole argument is wholly unfounded. It may be that when the resolution was passed by the management the post in contemplation was that of the head master at Nere High School. That is not enough. The advertisement should have been for the post of head master of Nere High School ruin by the respondent – management. This advertisement gives no information about the management of the school, or the post. Therefore, we have no hesitation in accepting the argument of the learned Counsel for the respondents that the initial appointment of the petitioner-Shri Godse was surreptitiously made. In any case the conduct of the management and the subsequent appointment cannot be termed as bonafide. It is needless to say that the advertisement is issued in the news papers so as to enable eligible persons to apply. Therefore while issuing such an advertisement it is not only expedient but also necessary that all necessary information should be incorporated in the advertisement itself. While making appointment to such posts, it is not only expedient but also necessary that the persons duly qualified should be called upon to submit their applications.
9. However, it is contended by Shri Limaye that when the advertisement was issued in May 1977, old rules were in vogue which did not provide for any advertisement. It is not possible for us to accept this contention. Once the management thought it fit to deviate from the procedure then previous permission from the Director of Education was absolutely necessary. If by deviating from the procedure the management wanted to appoint an outsider then an advertisement or public notice was a must, so that the persons eligible or duly qualified, could have offered their services. Even if it is assumed that without advertisement or public notice appointment could be made as head master then also in our view once the management decided to fill in the post by issuance of advertisement, the advertisement must be complete in all respects. Appointments to the posts of teachers or head of the school cannot be lightly taken. It is the State Government which is paying the salaries of the teachers working in the recognised schools. The grant is cent percent. Therefore, while making appointments of the teachers the management cannot act, as if it is appointing a domestic servant. If the salary of the teachers is paid from the public exchequer, then normally the procedure followed for filling the public posts, should be followed. Therefore taking any view of the matter the appointment of Shri Godse as head master of Nere High School, or his subsequent transfer to Bombay schools in the same capacity, cannot be upheld, it being contrary to mandatory rules of the Code.
10. It is no doubt true that subsequent to this, a writing was taken from the respondents on February 2, 1980, that is about three years after the appointment, itself, that they were not willing to go to Nere. This was done with an intention to regularise the appointment of Shri Godse. However it cannot be forgotten that while giving such a writing the respondents clarified the position by stating that their declaration will be applicable only to the appointment of Shri Godse as head master of Nere High School on June 13, 1977 and it cannot be used for any other purpose. Therefore by giving backdoor entry and that too illegally, it was not open to the management to bring Shri Godse at Bombay, . over and above the heads of senior teachers. It is well settled that what cannot be done directly, cannot be permitted to be done indirectly.
11. In the view which we have taken it is not necessary to consider the allegations made by the respondents against the management about the mala fide exercise of power. It was contended by the respondents that Shri Godse was closely related to Mr. Vaidya who was secretary of the society. It is the case of the management that at the relevant time Mr. Vaidya was not secretary of the society, though his father-in-law was in office. Once it is held that the appointment of Shri Godse was made surreptitiously and was wholly illegal, than it is not necessary to deal with this aspect of the matter any further.
12. It was then contended by Shri Limaye that the appointment of Shri Godse was made in the year 1977 and at least till 1981 the said appointment was not challenged by anybody. Therefore it will have to be held that the respondents acquiesced to it and are now estopped from challenging the said appointment. In our view this will not be the correct approach. The respondents were not interested in going to Nere High School and to that extent were prepared to accommodate Shri Godse. When they saw that. Shri Godse is being brought over and above their heads in the schools at Bombay, by back door they obviously felt aggrieved. Admittedly in service they are senior to Shri Godse. In the seniority list of Assistant Teachers, produced. before us, Shri Godse’s name figures at Sr. No. 20 and respondents are senior to him as Assistant Teachers. Therefore as per the provisions of the schools Code they were entitled to be appointed as head master on the basis of their seniority. When this seniority came to be by-passed they filed appeal. Filing of the appeal was also not necessary till then, as Shri Godse’s appointment was not approved by the Educational Department till July 18, 1980. In the approval letter also the Deputy Director had observed that while appointing Shri Godse the Institute had not obtained prior permission as par the rules from the Deputy Director of Education and therefore a penal cut in the grant was imposed. The Joint Director of Education has found that the Deputy Director had no authority to relax the conditions and his order in that behalf ‘was ultra vires of his power. Therefore, it cannot be said that either the appeal filed by the respondents was belated or there was any acquiescence on their part. Therefore we do not find any reason to interfere with the order passed by the Joint Director of Education.
13. However, at this stage, learned Counsel appearing for the respondents have fairly made a statement before us that the respondents will not object to the continuance of Shri Godse as head master at Nere High School. They will also not object to his coming to Bombay on the basis of his seniority as disclosed in the seniority list in which he is placed at Srl. No. 20. We feel that this gesture on the part of the respondents is quite commendable and deserves consideration. Since Shri Godse has been working as head master from 1977, whatever salary is paid to him deserves to be regularised and hence question of refund will also not arise. Shri Limaye for Shri Godse also makes a statement that he is prepared to go back to Nere High School as a head master. However, this will have to be done as per rules with the permission of the concerned authorities, treating it as an exceptional case. In the view which we have taken Rule stands discharged in writ petition No. 542 of 1982 with no orders as to costs.
14. In the view which we have taken while deciding the writ petition No. 542 of 1982 the Original Side Writ Petition No. 899 of 1985 will have to be allowed and the appointment of Shri Godse as head master to Kumari Kasturi Vidyalaya, Bhandup, Bombay will have to be set aside. Hence Rule is made absolute in the said writ petition with no orders as to costs.