G.H. Guttal, J.
1. The petitioner Mrs. Varghese and the respondent No. 5 Smt. Malati Bhide currently hold the offices of Assistant Teacher, and Assistant headmistress respectively in S.I.C.E.S. High School, Ambarnath. The respondent No. 1 is the Secretary of the S.I.C.E.S. Society who own the School known as 'the S.I.C.E.S. High School' Ambarnath. The respondent No. 2 Smt. Sabitadevi Menon is the Headmistress. The respondents Nos. 3 and 4 are, respectively, the Education Officer and the Chief Executive Officer of Zilla Parishad, District Thane. The State of Maharashtra is the respondent No. 6. The petitioner who claims to be the senior most teacher in the School impugns the validity of the decision of the respondent Nos. 1 and 2 to appoint the respondent No. 5 as the Assistant headmistress and seeks a writ of mandamus directing the respondents to appoint her as the Assistant Headmistress.
2. On the 1st June, 1973, the petitioner applied for a job as teacher in the School. On 5th June, 1983, she received the order of appointment signed by the Principal which reads :
'I have pleasure in informing you that you have been appointed as an Assistant Teacher on Rs. 120/- per month in the scale of Rs. 120-4-140-5-165-E8-5-190-6-220 with effect from 11-6-1973'.
The appointment was unconditional without reference to the subject she was expected to teach or the division of the School. The petitioner accepted the appointment by her letter dated 10th June, 1973 and has been teaching mathematics in the School ever since. On 14th June, 1981, she was promoted to the position as Supervisor for which she received Rs. 40/- per month as Special Pay. On 23rd September, 1985, she was reversed to the position of Assistant Teacher, presumably, because the post was abolished. The Resolution of the Managing Committee appointing her as Supervisor is dated 27th June 1981. Meanwhile, on 1st June, 1974 Mrs.. Malati Bhide-respondent No. 5 was appointed as Assistant Teacher in the scale of pay Rs. 165-500. She has been teaching Marathi in the higher division.
3. The Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977, hereinafter referred to as 'the Act' and the Maharashtra Employees of Private Schools (Conditions of Service) Rules 1981, hereinafter referred to as 'the rules', came into force, respectively, on 15th July ,1981 and 16th July, 1981. It became necessary for the respondents to act in accordance with the Act and the Rules.
4. Rule 12(1) enjoins every Management to prepare and maintain seniority list of the teachers. A seniority list of teachers styled as 'seniority list as on 13-7-1982', hereinafter referred to as 'the first list', was prepared and circulated by the respondent No. 2 on 13th July, 1982. The list was prepared on the instructions of the respondent No. 1 (Affidavit of Smt. Menon, the respondent No. 2 paragraph 6). The petitioner is shown at Sr. No. 4 and Mrs. Malati Bhide-respondent No. 5 at Sr. No. 5. The teachers at Sr. Nos. 1, 2, and 3 are not involved in the contest and therefore, it is not necessary to make a reference to their seniority. All the teachers including the respondent No. 5 accepted the seniority list without any objection (Affidavit of Smt. Menon, the respondent No. 2 paragraph 6) and affixed their signatures in token of acceptance. The seniority list prepared and circulated by the respondent No. 2 on 13th July, 1982 was accepted by the Management (Affidavit of Smt. Menon, the respondent No. 2 paragraph 10) the respondent No. 1.
The list was eventually submitted to the Secretary the respondent No. 1, soon after 13th July, 1982 in accordance with Rule 22(1). The respondent No. 1 submitted it to the respondent No. 3 the Education Officer for approval. The list has not yet been approved.
5. Meanwhile, it was found that the respondent No. 3 did not have in his office the first list prepared on 13-7-1982. Therefore, on the request of the respondent No. 3, the respondent No. 2-the Headmistress-prepared another list on the lines of the first list. This was done in September, 1984. This list also shows that the petitioner is senior to the respondent No. 5. This list was submitted to the Secretary and to the Education Officer on or about 20th September, 1984, under Rule 22(1) of the Rules.
6. There was a change in the composition of the Managing Committee of the Society in February, 1984. Another seniority list styled as 'seniority list for the year 1985-86 as on 31st August, 1985' the second seniority list was prepared and circulated by the respondent No. 2.
7. Meanwhile, one Mr. M.M. Rajput, who was aggrieved by the first seniority list resigned. The respondent No. 2 became the Principal as the senior-most teacher. The second seniority list made a change in the relative seniority of the petitioner and the respondent No. 5. The respondent No. 5 was placed at Sr. No. 2 and the petitioner who was senior to the respondent No. 5 in the first seniority list was placed below the respondent No. 5. The petitioner naturally objected to this change in the seniority and drew the attention of the authorities to her representation dated 21st September, 1984.
8. On 21st July, 1986, the respondent No. 5 was promoted as Assistant Headmistress on the basis of the revised seniority list made on 31st August, 1985.
9. Upon the promotion of the respondent No. 5 to the office of the Assistant Headmistress, the petitioner was appointed as Supervisor by the letter dated 23/31st July, 1986.
10. The questions arising in this petition have to be determined on the construction of the Act, the Rules, and the Secondary Schools Code issued by the Government of Maharashtra. It is necessary to set out briefly the scheme of the Act, the Rules and the Secondary Schools Code, hereinafter referred to as 'the Code'.
11. The objects of the Act are :---
(i) to regulate the recruitment and conditions of service of employees in certain private schools in the State with a view to providing such employees security and stability of service to enable them to discharge their duties towards the pupils and their guardians in particular, and the institution and the society in general, and
(ii) to subserve the public interest by laying down the duties and functions of such employees so that they become accountable to the management ( Preamble of the Act).
'Management' means the person or body of persons whether incorporated or not and by whatever name called, administering the school which is not a school administered by the State Government or by the local authority (section 2(12) of the Act). Private School is a school which is a recognised school established or administered by a Management other than the Department (section 2(20) of the Act). A recognised school (section 2(21) of the Act) is a school recognised by the Director or an officer authorised by him or by the State Board of Secondary and Higher Secondary Education. 'School' means a primary school, secondary school, or higher secondary school, or any part of any such school in which education or training below the degree level is imparted (section 2(24) of the Act). No distinction between lower division or higher division of standards is discernible from this definition. Teacher includes the Head of a School.
The provisions of the Act apply to all private schools whether receiving any graint-in aid from the State Government or not (section 3(1) of the Act). However, an exception is created in respect of minority schools. The provisions of the Act shall not apply to the recruitment of the Head of a minority school or any other persons (not exceeding three) employer in such school and whose names are notified by the Management to the Deputy Director for this purpose (section 3(2) of the Act). The State Government is empowered to prescribe the minimum qualifications for recruitment, duties, pay, allowances, post-retirement and other benefits of employees of private schools (section 4(1) of the Act). The rule-making power of the State Government extends to matters, such, as, minimum qualifications for recruitment of employees of private schools, its procedure, pay and allowances, conditions of service including leave, superannuation, promotions and so on (section 16 of the Act).
12. The relevant provisions of the Rules are as under :
The head of a secondary school shall be a graduate possessing a bachelor's degree in teaching or education or any other qualification recognised by Government as equivalent thereto (Rule 3(1) (b) of the Rules). The claim of the senior-most qualified teacher having satisfactory record of service may be disregarded only if he, of his own free will, makes a statement in writing to the Education Officer that he has voluntarily relinquished his claims to the post (Explanation to Rule 3 of the Rules) .The 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 (Rule 5(1) of the Rules). Such Assistant Head has to be the senior most trained teacher in the school (Rule 5(2) read with Rule 3(3) of the Rules). Supervisor is an intermediate post between the Teacher and the Assistant Head. The posts of supervisors shall be filled in only from amongst the permanent staff strictly on the basis of seniority-cum-merit. The seniority of teachers shall be determined in accordance with the guidelines laid down in Schedule 'F' to the Rules (Rule 5(5) of the Rules).
13. The minimum qualifications of the posts of teachers have been prescribed by Schedule 'B' to the Rules. The petitioner and the respondent No. 5 possess such qualifications. The scales of pay and allowances of the teaching staff have been laid down in Schedule 'C'.
14. Every management is bound to prepare and maintain seniority list of the teaching staff including Head Master and Assistant Head Master in accordance with the guidelines laid down in Schedule 'F' (Rule 12(1) of the Rules). The seniority list so prepared shall be circulated amongst the members of the staff concerned and their signatures in taken of having received a copy of the list shall be obtained (Rule 12(1) of the Rules). The objections to the seniority list or to the changes made therein shall be duly taken into consideration by the Management (Rule 12(2) of the Rules) and the disputes, if any, in the matter of inter se seniority shall be referred to the Education Officer for his decision (Rule 12(3) of the Rules) .
15. Since the legal sanction for fixing seniority is in Schedule 'F' to the Rules, a close look at the provisions of the Schedule is necessary.
16. The seniority of primary school teachers shall be based 'on the date of joining service and continuous officiation (Schedule F paragraph 1 of the Rules) However, the teaching staff of secondary schools has been classified into different categories for the purpose of fixation of seniority. The categories A, B, C, D, E, F, G and H 'represent the ladder of seniority' so that the teachers in category A are necessarily senior to those in category B, those in category B senior to category C and so on. Therefore, Note 4 in Schedule F explains that the categories are mentioned in descending order (Note 1-below paragraph 2 of Schedule F of the Rules).
Categories A and B represent Heads of Secondary Schools having enrolment of students above 500 and below 500 respectively.
Category C which is relevant to this case, covers teachers holding graduate and post-graduate degree together with degree or diploma in teaching. However, a distinction is made between graduate/posts graduate teachers who hold degrees in teaching like B.T. & B.Ed. and those holding leaser qualifications like S.T.C./Dip. T. The teachers in Category 'C' even if they hold graduate/post graduate degrees but do not hold B.T./B. Ed. qualifications rank as untrained teachers and their seniority is fixed in the lower rung of the ladder (Note 1 below paragraph 2 of Schedule F). viz. in Category F or G. Therefore, the graduate teachers B.A./B. Sc./B. Com. or post graduate teachers--M.A./M. Sc./M. Com. who hold the degrees of B. Ed. or B.T. rank together for the purpose of seniority. Teachers holding 'B.A./B. Sc./B. Com. BT/B. Ed. or its equivalent' qualifications rank together. The petitioner and the respondent No. 5 who hold the degrees of 'B.Sc. B.Ed.' and B.A. B.Ed. respectively thus rank in the same category. Categories D, E, F, & G include teachers with lesser qualifications. They are not relevant to this case. A significant rule is found in note B in Schedule F. A management may run more than one Secondary School or a Secondary School and a Junior College. Naturally trained graduate teachers in Junior Colleges or teachers in another School may draw higher scales of pay than the trained teachers in the Secondary School run by the same management. Anticipating claims to seniority based on higher pay scales, it has been provided that 'a combined seniority list of all teachers' in both the types of Institutions (Secondary School and Junior College) 'shall be maintained in such schools and Junior College of Education (Note-8--Where a Management runs one or more secondary schools and a Junior College of Education, then notwithstanding the fact that trained graduate teachers in Junior College of Education are in a higher scale of pay, a combined seniority list of all teachers in both the types of institutions shall be maintained in such schools and Junior College of Education in accordance with the guidelines laid down in paragraph 2 of this schedule. This seniority list shall form the basis for purpose of promotion to the posts of head Masters and Assistant Head Masters in secondary school (s) and principal (s) of Junior College of Education). Such common seniority list shall be the basis for purpose of promotion to the posts of Asstt. Head masters or Head Masters'. Such seniority list is required to be prepared in accordance with paragraph (Paragraph 2 Guidelines for fixation of seniority of teachers in the secondary school, Junior Colleges of Education and Junior College Classes attached to secondary schools and Senior College :-- For the purpose of fixation of seniority of teachers in the secondary schools, Junior Colleges of Education and Junior College Classes attached to Secondary Schools the teachers should be categorised as follows : Category A, Category B, Category D, Category E, Category F, Category G and Category H. Category C-Holders of--- M.A./M. Sc./M. Com. B.T./B. Ed or its equivalent; or B.A./B. Sc./B. Com. B.T./B. Ed. or its equivalent; or B.A./B.Sc. B.Com. Dip.T (Old two years course) or B.A/B. Sc./B. Com, S.T.C./Dip Ed./Dip.T. (one year course) with 10 years post S.T.C. etc. Service) of Schedule F viz. the Rules set out above.
Thus, higher pay scale is not relevant for the purpose of fixation of seniority of teachers. A teacher with B.A. B. Ed. wherever he teaches will take his place according to the date of appointment and continuous officiation.
17. Before the commencement of the Act and the Rules, the conditions of service of teachers in the Secondary Schools were governed by the Secondary Schools Code issued by the Government of Maharashtra. Only two categories of employees are recognised (Rule 68.1 Chapter III-Section II of the Code) viz. the permanent and non-permanent employees. The Management of the school has to fill up the post of the Head of the school by appointing the senior most teacher from among those employed in the school (Rule 61-2 Chapter III-Section I of the Code). The seniority of teachers for the purpose of appointment of Head of the school shall be determined only in accordance with the guidelines issued by the Department from time to time (Rule 61.2 Chapter III Section 1 of the Code). The Management is also enjoined to appoint Assistant Head to assist the Head of the school in his administrative and supervisory duties, if the School has more than 20 Classes (Rule 61.2 (c) Chapter III-Section I of the Code). Like the Head of the School the Assistant Head has to be the senior-most teacher. Duties of the Head, Assistant Head, Supervisors and Teachers have been prescribed in Appendix 12 of the Code. Supervisor is the position above the teacher and below the Assistant Head Master. His duties include teaching and supervision of teachers. Like the Head and Assistant Head, the Supervisors shall also be the senior-most teacher (Rules, 63.2(i) and (ii) Chapter III-Section I of the Code).
18. Annexure 45 issued under the Rules 61 and 63 of the Code lays down the rules in regard to the seniority of teachers in non-government secondary schools. Schools are divided into Higher Secondary School which is the Junior College and the Secondary School which includes the classes upto S.S.C. The petitioner and the respondent No. 5 fall in Category 'B' of Annexure 45 which is identifical to category 'C' in Schedule 'F' to the Rules. Note 3 of Annexure 45 which has been in existence at all times as part of the Code before 1971 and after 1971 is again consistent with the guidelines laid down in Schedule 'F' of the Rules (Note 3, Annexure 45 of the Code :-- Seniority of M.A. (M.Sc.), M.Com, B.Ed. and B.A. (B.Sc.) B.Com., B.Ed teachers would be common and their seniority would be determined on the basis of length of service after B.Ed., in the school or schools of the same Management. There would not be a separate category 'A' for determining the seniority of the teachers in Higher Secondary Schools. Seniority of M.A./M.Sc./M.Com with B.Ed. and B.A./B.Sc./B.Com. with B.Ed, teachers is common and their seniority is determined on the basis of length of service after B.Ed. in the School or Schools of the same management. Significantly, this note enjoins the authorities to direct that there should not be a separate category 'A' for determining the seniority of teachers in Higher Secondary Schools. In other words, all teachers who fell in the same category rank together. Thus, whether it is the Secondary Schools Code or the Rules and the Act, identical considerations determine the seniority of teachers.
19. The Secondary Schools Code has undergone amendments since it was suggested that at the time when the petitioner was appointed, different rules governed the seniority, we have gone through the Code published in 1972 also. Its provisions are not different from those in the Revised Edition of 1979. The Head of the School shall be appointed from among those available including those already employed in the school run by the same management (Rule 61.1 of the Code 1972). Annexure 45 which lays down the guidelines for fixation of seniority list of teachers in the non-government Secondary Schools is identical to the annexure 45 in the Revised Edition of 1979. The petitioner and the respondent No. 5 fall in Category 'B' as in the Revised Edition of 1979. The category A, B, C, D, and so on represent the ladder of seniority in the descending order (Annexure 45-Paragraph 3 of the Code 1972). The inter se seniority of teachers falling in any single category has to be determined on the basis of the continuous service in that category in a single school or schools of the same management. For the purpose of appointment as Head Masters of Supervisors in the S.S.C. level Schools M.A., M.Sc., B.T., B.Ed. Teachers should not be considered as belonging to higher categories of seniority but they should be considered as part of category 'B' for the purpose of inter se seniority (Annexure 45-Paragraph 4 of the Code 1972).
20. On the basis of the Rules set out above, Counsel for the petitioner urged that since the petitioner has been continuously officiating as Assistant teacher since 10th June 1973, she is senior to the respondent No. 5 who has been so officiating since 1st June, 1974.
21. The case of the School, the respondent No. 1 is this :
(i) Since there was no vacancy of teacher with B.Sc. B.Ed. qualifications and there was a vacancy of teacher in Mathematics in the Lower Division (Standards V to VII), the petitioner was appointed in the Lower Division on the pay scale of Rs. 120-320. The respondent No. 5 was appointed in the higher Division on the pay scale of Rs. 165-400 since there was a vacancy for teaching Marathi. Since the appointment of the petitioner was in the Lower Division on a lower scale of pay, the petitioner is not senior to the respondent No. 5.
(ii) The 1st seniority list prepared by Mrs. Menon was without seniority, because the authority to prepare the seniority list belongs to Management.
(iii) The Secondary Schools Code was applicable when the petitioner was appointed. According to this Code, her seniority has been correctly fixed as junior to the Respondent No. 5.
22. The Education Officer of the Zilla Parishad, the respondent No. 3, himself has not affirmed any affidavit. A Superintendent in his office has made affidavit.
Although the petitioner and the respondent No. 2 have stated that the seniority list of 1982 was sent to the Education Officer, Zilla Parishad for approval, the respondent No. 3 has not chosen to make an affidavit to explain as to whether it is approved or not. According to him, the petitioner who holds B.Ed. Degree is an untrained teacher falling in category 'D; of Schedule 'F'. He has recorded an opinion that since the petitioner accepted the post to the lower Division, she is considered as untrained teacher.
23. The provisions of the Act, Rules and the Code when analysed reduce themselves to the following principles :
Firstly, the Act and the Rules clearly stipulate that all teachers having B.A., B.Ed, or B.Sc. B.Ed. rank together for the purposes of fixation of seniority (Note 1 Paragraph 2, Schedule F to the Rules).
Secondly, the Act, Rules or the Code make no distinction based on the Division of the School in which a teacher teaches. The only distinction made is between permanent and temporary teachers (Rule 10-Categories of Employees, Rule 68.1 Chapter III Section II of the Code).
Thirdly, the Rules and the Code reject the relevance of pay scale for the purpose of seniority. That is why Note 8 quoted at foot-note 26, enjoins the school to prepare a combined seniority list of teachers, notwithstanding the fact that trained graduate teachers in Junior Colleges draw higher scale of pay (Note 8 Paragraph 2 Schedule F to the Rules).
Fourthly, for the purpose of appointment of Head Masters and Supervisors in the S.S.C. level Schools, the trained teachers with M.A./M.Sc./M.Com. are considered equal to trained teachers with B.A./ B.Sc./ B.Com. degree. Therefore, a higher academic qualification too is not relevant for fixations of seniority of trained teachers (Note 3 Annexure 45 of the Code).
Fifthly, the only criterion for fixation of seniority of trained graduate teachers is the continuous officiation in such post of teacher (Notes 1, 2 and 3 below paragraph 2 of Schedule F to the Rules), depending upon, their position on the ladder.
24. The Act, the Rules and the Code have made the petitioner and the respondent No. 5 equal in all respects for the purpose of fixation of seniority for the simple reason that they fall in the same category-graduate teachers with B.Ed. There is a clear statutory rejection of the respondents, contention that the respondent No. 5 is senior to the petitioner because she draw a higher pay. Similarly, the Act, Rules and the Code do not admit of any distinction based on the division in which the petitioner of the respondent No. 5 teaches. This immediately negatives the claim of the respondents that the respondent No. 5 is senior to the petitioner because the former teaches in what the respondents call the Higher Division. Such distinction is alien to the Rules and the Act. Once a person is a graduate teacher with B.Ed. degree, she ranks in seniority according to the date of continuous officiation. The legislature and the authors of the Code have so strongly asserted the equality of the petitioner and the respondent No. 5 that they thought it necessary to declare that the appointment in a higher scale of pay or possession of post graduate degree is not relevant. We have no doubt that the petitioner is senior to the respondent No. 5.
25. The argument that the respondent No. 2, the Head-Mistress, has no authority to prepare the seniority list of teachers is untenable. No doubt. Rule 12 requires that 'Every Management shall prepare and maintain seniority list ------------'. But the Management is required to be assisted in the administration by the Head of the school. That is why Rule 22(1) read with Schedule I prescribes the duties of the Head', 'with regard to general administrative matters', conferring thereby on the Head, administrative duties. Among such duties is the duty to 'assist the Management in the preparation and maintenance of the Seniority List of the employees in his School'. It is in the performance of this statutory duty that the respondent No. 2 prepared the 1st seniority list. The Management may approve the list, modify it and then 'prepare' it. Of necessity, it is the head of the school that is invested with the authority to assist the management in the preparation of seniority list. But this question is now of academic importance for two reasons : Firstly the management accepted the 1st seniority list and forwarded it to the Education Officer, the respondent No. 3. Secondly, the 1st seniority list, whether approved by the Management or not, is not final. If there is a dispute-as indeed there is it has to be resolved by the Education Officer. What is important is that the respondent No. 5, who has the right to object, raised no objection to the 1st seniority list. Nevertheless a dispute has thereafter arisen which the respondent No. 3 is required to resolve in accordance with the Rules.
26. The Resolution of the Government date 27th September, 1971 from which the respondents seek support, does not support them. The subject of the Resolution is 'programme of attaching classes of standards V-VII to Secondary Schools-Implementation of the'. This resolution seeks to lay down procedure for implementation of the programme of attaching the classes of Standards V-VII to the Secondary Schools. It does not purport to lay down rules of seniority inconsistent with the Secondary Schools Code. The resolution is intended to spell out the conditions of grant to the schools during the year 1972-73. It is not relevant for considering seniority.
27. The next question whether this writ petition is competent. The argument is that the argument is that the respondent No. 1 or respondent No. 3 or respondent No. 4 do not fall within the definition of 'State'. The argument is based on the assumption-not warranted by the words used in article 226 that a writ under article 226 can issue only against 'State'. It is not necessary to decide whether the respondents Nos. 1 to 4 are 'State' because the petition is also under article 227 of the Constitution of India. The respondent No. 1 and the respondent No. 3 discharge statutory functions under the Act and the Rules. The respondent No. 3, the Education Officer is by the rules empowered to resolve the disputes as to seniority [Rule 12. Seniority List (1) Every Management shall prepare and maintain seniority list of the teaching staff including Head Master and Assistant Head Master and non-teaching staff in the school in accordance with the guidelines laid down in Schedule 'F'. The seniority list so prepared shall be circulated amongst the members of the staff concerned and their signatures for having received a copy of the list shall be obtained. Any subsequent change made in the seniority list from to time shall also be brought to the notice of the members of the staff concerned and their signatures for having noted the change shall be obtained). (2) (Objections, if any, to the seniority list or to the changes therein shall be duly taken into consideration by the Management.) (3) (Disputes, if any, in the matter of inter se seniority shall be referred to the Education Officer for his decision). His failure to uphold the petitioner's claim and the consequent act of the respondent No. 1 in appointing respondent No. 5 as Assistant Head Mistress, result from the statutory functions.
28. The Zilla Parishad of which the respondent No. 4 is the Chief Executive Officer is constituted under the Maharashtra Zilla Parishads and Panchayat Samities Act, 1961 (Maharashtra Act No. V of 1962) (section 6 of the Maharashtra Zilla Parishad Act) and is a body corporate (section 8 of the Maharashtra Zilla Parishad Act). It discharges its statutory functions through the Departments, led by the Officers like, the respondent No. 3 and respondent No. 4. The executive power of the Zilla Parishad vests in the respondent No. 4, the Chief Executive Officers (section 95 of the Maharashtra Zilla Parishad Act). The various departments of the Zilla Parishad function under the Rules made under the Maharashtra Zilla Parishads and Panchayat Samities Act. Education including the management of schools is a subject entrusted to the Zilla Parishad which is administered through the statutory Education Committee (sections 78, 79 & 80 of the Maharashtra Zilla Parishad Act). Education Officer appointed for this purpose is, by the Rules, called upon to adjudicate where the petitioner is senior to the respondent No. 5. His duty to adjudicate upon a dispute as to seniority is created by the Act and the Rules [Rule 12(3) of the Rules]. Therefore, his adjudicatory function is the creature of the State who made the state and the Rules.
29. This Court's authority of superintendence under Article 227 of the Constitution of India extends 'over all courts and tribunals' through out the territory of Maharashtra, Does this petition Impugn any act of a Tribunal? In other words, is the respondent No. 3 or the respondent No. 4 a Tribunal? What are the attributes of a Tribunal?. The respondents Nos. 3 and 4 are administrative or executive bodies. But if they are, by law, called upon to perform adjudicatory functions, their role ceases to be purely administrative Engineering Mazdoor Sabha v. Hind Cycles Ltd. Bombay, 1963 Sup. 1 S.C.R. 625. If in the performance of such adjudicatory functions, they are required to act according to general principles of law their duty clearly approaches judicial functions. Engineering Mazdoor Sabha v. Hind Cycles Ltd. Bombay 1963 Su 1 S.C.R. 625. Again if the respondents the Nos. 3 and 4 are required to decide the dispute as to the seniority under Rule 10(3) objectively and not subjectively their functions become quasi-judicial. However, the determinative attribute of 'Tribunal' is that it should be constituted by the State and must be invested with the State's inherent judicial power. Engineering Mazdoor Sabha v. Hind Cycles Ltd. Bombay, 1963 Su. 1 S.C.R. 625. Durga Shankar Mehta v. Raghuraj Sing & others, : [1955]1SCR267 . The mode of exercise of such power may very according to the nature of the power and procedure prescribed. But the function must be essentially judicial.
30. Seniority of teachers in Schools is determined in accordance with the Act and the rules. The senior-most member of the teaching staff is appointed as the Assistant-Head of the School [Rules 3(3) and 5(2)].The seniority list has to be prepared and circulated amongst the members of the staff [Rule 12(1)].The circulation of the seniority list is in the nature of a notice to the concerned teachers of their position on the ladder of seniority, so that they are made aware of their position in regard to the prospect of promotions. The management is required to obtain signatures of the teachers in taken of having received a copy of the seniority list [Rule 12(1)].The duty of the management to obtain the signatures of the teachers implies two things-firstly if not objected to the teacher is bound by the seniority determined by the management and secondly an aggrieved teacher may object to the seniority assigned to him. A specific right to object to the seniority has been created (Rule 12(2)). It follows that such objection has to be adjudicated upon Rule 12(2) enjoins the management to take into consideration the objector's raised to the seniority list. This procedure prescribed by Rule 12 creates an adjudicatory mechanism. That is why Rule 12(2) enjoins the management to consider the objections. Rule 12(3) creates the forum for adjudication of the dispute. The Education Officer, the respondent No. 3 to this petition, is the forum. These facts clearly establish the adjudicatory role of the Education Officer. The Education Officer cannot, in the very nature of things, adjudicate upon such a dispute in vacuum of arbitrarily. The act and the Rules provide the guidelines which shall inform the Education Officer in discharging his adjudicatory function. He is required to follow the rules prescribed by the statute. What is referred to the Education Officer is a 'dispute'. It follows therefore, that there are rival parties whose competing claims have to be adjudicated upon. This brings into play the principles of fair play and objectivity. The obligation to circulate the Seniority List to the teachers, the obligation, of the Management to take into consideration the objection, reference of the disputes as to seniority to the Education Officer, and his duty to decide in accordance with the Rules in Schedule F, create in the Education Officer quasi-judicial authority. He may not posses the trappings of a Court such as the power to issue summons, examine witness and so on. Yet his a judicatory function together with the factors set out above undoubtedly clothe him with quasi-judicial authority.
31. For the reasons stated in paragraph 29 and 30 above, we are of the opinion that the Education Officer appointed under the Maharashtra Zilla Parishad and Panchayat Samitis Act, 1961 and the Rules made thereunder, is an authority invested with the power to adjudicate upon the disputes. In regard to seniority of teachers. He possesses the adjudicatory authority by virtue of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, and the Maharashtra Employees of Private Schools (Condition of Service) Rules. His office is a creature of the statute. While deciding the disputes as to the seniority he performs quasi-judicial functions. We, therefore, hold that in the discharge of his functions under Rule 12, the Education Officer is a Tribunal within the meaning of article 227 of the Constitution of India. This Court, therefore, has jurisdiction to entertain the petition and issue appropriate direction.
32. A feeble attempt was made on behalf of the respondents to urge that the School run by the respondent No. 1 is a minority School and, therefore, by virtue of section 3(2) of the Act, the provisions of the Act and the Rules relied upon by the petitioner have no application. Admittedly, no names of the teachers, as required by section 3(2), have been notified by the management to the Deputy Director of Education. The question of excluding the application of the Act to such persons does not, therefore, arise.
33. We now summarise our conclusions :
The petitioner and the respondents were appointed as Assistant Teachers in the same school run by the respondent No. 1. Having regard to the rules which we have examined in the foregoing paragraphs, the petitioner, by virtue of her longer and continues officiation in the post of Assistant Teacher, is senior to the respondent No. 5. This is so notwithstanding the fact that the respondent No. 5 was appointed on a higher pay scale of Rs. 165-400 and actually taught in what the respondents have, without any justification characterised as the higher division of the school. The petitioner and the respondent No. 5 rank together for the purpose of determination of their inter-se seniority.
Under the rules, the senior-most member of the teaching staff is required to be appointed as Assistant Head of the school. No ground except the seniority has been set up for the purpose of denying to the petitioner the position of the Assistant Head of the school. Therefore, the petitioner is entitled to be appointed as Assistant Head of the School in the place of the respondent No. 5.
Mrs. Menon the respondent No. 2, possesses the authority to assist the Management in preparing the list of seniority. In the first seniority list as on 13th July, 1982, so far as the petitioner and the respondent No. 5 are concerned, the petitioner has been correctly shown as senior to the respondent No. 5. The respondent No. 3 is bound to approve the seniority list and give effect to it.
34. In view of our conclusions summarised above and for the reasons set out in this judgment, we allow the petition. We direct that the respondent No. 3 :
(i) shall hold the petitioner to be senior to the respondent No. 5 in the care of the Assistant Teacher and forthwith direct the respondent No. 1 to appoint the petitioner as the Assistant Head Mistress with effect from 1st August, 1986.
(ii) shall forthwith approve the first seniority list prepared as on 13th July, 1982.
(iii) The respondent No. 1 shall immediately comply with the directions issued by the respondent No. 3.
(iv) The respondent No. 1 shall pay costs of the petition to the petitioner. The costs are qualified at Rs. 1500/-.
(v) This order shall be complied with within three weeks from 28th September, 1989.
(vi) The rule is made absolute with costs.