IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR FRIDAY, THE 10TH JULY 2009 / 19TH ASHADHA 1931 W.A.No. 2342 of 2008 ------------------------------------ AGAINST THE JUDGEMENT IN WPC.28358/2007 Dated 19/11/2008 .................... APPELLANT(S)/PETITIONER: --------------------- M.K. LEELA, H.S.A., VMALA HRIDYA HIGH SCHOOL, VIRALI, UCHAKADA P.O., NEYYATTINKARA, THIRUVANANTHAPURAM. BY ADV. SRI.P.N.MOHANAN RESPONDENT(S)//RESPONDENTS: ------------------------ 1. GOVT OF KERALA REP. BY SECRETARYTO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 3. DISTRICT EDUCATIONAL OFFICER, NEYYATTINKARA,THIRUVANANTHAPURAM. 4. MANAGER, VIMALA HRIDYA HIGH SCHOOL, VIRALI, UCHAKADA P.O.,NEYYATTINKARA, THIRUVANANTHAPURAM. 5. SR. PHILOMINA P.S., HSA, VIMALA HRIDYA HIGH SCHOOL, VIRALI, UCHAKADA P.O., NEYYATTINKARA, THIRUVANANTHAPURAM. 6. NESAMMAL M, H.S.A., VIMALA HRIDYA HIGH SCHOOL, VIRALI, UCHAKADA P.O., NEYYATTINKARA, THIRUVANANTHAPURAM. R1 TO R3 BY GOVT. PLEADER SRI. BENNY GERVASIS. R4 & R5 BY ADV. SRI. S.GOPAKUMARAN NAIR, SENIOR ADVOCATE, & ADVS. M/S. M. CHANDRABOSE, A. RAJASIMHAN & ABRAHAM P.MEACHINKARA. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 10/07/2009 ALONG WITH W.A. NO.2338/08, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. ------------------------------ W.A. Nos.2342 and 2388 of 2008 ------------------------------ Dated this, the 10th day of July, 2009 JUDGMENT Balakrishnan Nair, J. W.A. Nos.2342 of 2008: The appellant is the writ petitioner. The brief facts of the case are the following: The appellant is a High School Assistant working in the 4th respondent's school. Respondents 5 and 6 are also working in the same school as High School Assistants. Among them, 6th respondent is the senior most and the 4th respondent the junior most. A vacancy in the post of Headmaster arose in the school on 1.4.2001. On the said date, only the 6th respondent was qualified. The appellant and the 5th respondent were not having the requisite 12 years graduate service. The appellant has also not cleared the obligatory tests. The manager appointed the 5th respondent as teacher-in-charge. The District Educational Officer approved the same. The appellant W.A.Nos.2342 & 2388/08 - 2 - challenged that order of the D.E.O. before the Director of Public Instructions. The Director of Public Instructions, by Ext.P5 order dated 5.10.2004, set aside the order of the D.E.O. and directed the appointment of the appellant as teacher-in-charge and also ordered to promote her when she completes 12 years service as High School Assistant. The said decision was rendered based on the finding that the educational institution is not one entitled to get protection under Article 30(1) of the Constitution of India. The matter was carried in revision by the manager of the school. The Government by Ext.P6 order dated 7.6.2005, set aside the order of the Director of Public Instructions and upheld the approval of appointment of the 5th respondent as teacher-in-charge. The petitioner filed review petition before the Government. The said petition was dismissed by Ext.P7 order dated 3.10.2005. The appellant challenged Exts.P6 and P7 orders before this Court by filing W.P.(C) No.30984/2005. The said writ petition was allowed, quashing Exts.P6 and P7. It was held that the right under Article 30(1) of the Constitution does not extend to appointing W.A.Nos.2342 & 2388/08 - 3 - an unqualified person. So, it was held that, if the 6th respondent is not entitled to be appointed as Headmistress, the appellant would be eligible for appointment. The relevant portion of the said judgment reads as follows: “....When the vacancy arose, it was open to a minority institution to appoint any qualified person irrespective of seniority as HM. But the right under Article 30 does not extend to appointing a person who is not qualified. Certainly it is for the third respondent to take note of the claim of sixth respondent also in accordance with law. If the sixth respondent is not found entitled to be appointed as HM, then certainly it is the petitioner who would be eligible, as admittedly the fourth respondent has become qualified only in the year 2005. This is on the basis of the decision of the Full Bench in Padmanabhan Nair's case. Accordingly, Exts.P6 and P7 are quashed. There will be a direction to the third respondent to reconsider the matter in accordance with law and take a decision afresh after hearing all the parties, within a period of two months from the date of receipt of a copy of this Judgment.”. (emphasis supplied) Pursuant to the said judgment, the Government reconsidered the matter and passed Ext.P9 order dated 4.8.2007. The W.A.Nos.2342 & 2388/08 - 4 - operative portion of the said order reads as follows: “In the light of the above facts and circumstances, Government are pleaded to direct the Manger, Vimalahridaya H.S., Virali to ascertain the willingness of Smt.Nesammal to be posted as H.M. in writing within 15 days after issuing notice and to appoint her as H.M. with retrospective effect from 1/4/01, after reverting the present H.M. Sr.Philomina, if the former does not relinquish her claim for the post of HM. Government also order that Sr.Philomina will continue as HM, if Smt.Nesammal relinquishes her claim, as contemplated in the KER.”. (emphasis supplied) By the above direction, the 5th respondent was able to continue as Headmistress on the relinquishment of the claim by the 6th respondent, Smt.Nessammal. Soon thereafter, the 6th respondent, by Ext.P13 relinquished her claim for promotion as Headmistress on 20.8.2007 with effect from 1.4.2001. The appellant filed the writ petition challenging Ext.P9 and also seeking consequential reliefs. 2. According to the appellant, in view of Ext.P8 judgment, once the 6th respondent relinquishes her claim, she W.A.Nos.2342 & 2388/08 - 5 - has to be appointed as teacher-in-charge from 1.4.2001 and thereafter as Headmistress from December 2001, the date on which she became qualified. It is pointed out that the 5th respondent acquired qualification only on 7.6.2005, whereas the appellant completed 12 years graduate service on 15.7.2001 and became test qualified in December 2001. By virtue of Rule 45C of Chapter XIV-A, of Kerala Education Rules (hereinafter referred to as, “the K.E.R.”), the appellant being the first person who became qualified, she is entitled to be appointed as Headmistress. Only if there is a qualified teacher in the school preferred by the Management, they can invoke the minority right under Articled 30(1) of the Constitution, for superseding the appellant and appointing that teacher. In this case, in the absence of a qualified and willing hand, especially in view of Ext.P8 judgment, which has become final, the appellant should have been appointed. So, the finding of the Government to the contrary in Ext.P9 is unsustainable, it is submitted. The 4th respondent has filed a counter affidavit resisting the prayers in the writ petition. The appellant filed a reply affidavit. The W.A.Nos.2342 & 2388/08 - 6 - learned Single Judge after hearing both sides, upheld the claim of the management. The learned Single Judge found that relinquishment made by the 6th respondent was to enable the 5th respondent to continue as teacher-in-charge and therefore, the appellant cannot stake her claim based on the relinquishment letter of 6th respondent. Feeling aggrieved by the said judgment, this writ appeal is filed. 3. We heard Sri.P.N.Mohanan for the appellant, learned Senior Government Pleader Sri.Benny Gervasis for the official respondents and also the learned counsel for respondents 4 and 5. The learned counsel for the appellant reiterated the contentions raised in the writ petition, which we have already noticed above. The learned counsel for the manager submitted that the appellant even though qualified, is unsuitable for appointment as Headmistress of a minority educational institution. Therefore, even if she became qualified for promotion earlier, she could not have been appointed. W.A.Nos.2342 & 2388/08 - 7 - 4. We have quoted the relevant portion of Ext.P8 judgment, which has became final. Everyone including us, are bound by that. The learned Single Judge in Ext.P8 has held that if the 6th respondent is not in the field, then the appellant is entitled to be preferred for appointment to the post of Headmistress, as the person who became qualified first, among the unqualified hands. This is also the mandate of Rule 45C of Chapter XIV-A, K.E.R. Rule 45C reads as follows: “45C. Temporary Promotion:-(1) Where in any aided school a qualified teacher is not available to be promoted as Headmaster in accordance with the provisions contained in rule 44, 44A, 45, 45A and 45B the appointing authority shall promote, the senior most teacher on the staff of the school or the schools under the Educational Agency as Headmaster, temporarily. Provided that in the case of High Schools and Training Schools the teacher so promoted shall be the senior most graduate teacher on the staff of the school or the schools under the Educational Agency who has put in at least 12 years of continuous graduate service as provided in sub-rule (1) of rule 44A of this Chapter and in the case of primary schools it shall be the senior most teacher possessing qualifications prescribed in rule 45 or, as the case may be, rule 45A. (2) A teacher temporarily promoted under sub-rule (1) shall be replaced as soon as possible by the member of the W.A.Nos.2342 & 2388/08 - 8 - service who becomes entitled to the promotion under the rules. (3) A teacher temporarily promoted under sub-rule (1) shall not be regarded as a probationer in the higher category or be entitled by reason only of such promotion to any preferential claim to future promotion to such higher category. (4) If such person is subsequently promoted to the higher category in accordance with the rules, he shall commence his probation, if any, in such category from the date of such subsequent promotion or from such earlier date as the appointing authority may determine without prejudice to the seniority of others. (5) The pay of the promotee shall be fixed as provided in Rule 43A. Provided that in the case of Headmaster of Aided primary school the promotee is entitled to draw the scale of pay applicable to the Headmaster of Government School only on completion of the period of service as specified in sub-rule(1) of rule 1, Chapter XXVI, and in the case of Headmaster of Aided High Schools and training schools, the promotee is entitled to draw the departmental Headmaster's scale of pay only on completion of the period of service as specified in rule 3, Chapter XXVI. Those who have not completed the prescribed service qualification for drawing the respective departmental Headmaster's scale of pay will be paid their grade pay and supervision allowance only. (6) If no teacher with the prescribed service qualification is available on the staff on the school or the schools under the Educational Agency for temporary promotion as Headmaster W.A.Nos.2342 & 2388/08 - 9 - under sub-rule(1) and the proviso thereunder, the seniormost teacher on the staff of the school or the schools under the Educational Agency shall be appointed as Teacher-in-charge, provided that in the case of a High School, the teacher-in-charge should be the Senior most Graduate teacher on the staff of the school or the Unit, and he shall be replaced as soon as a fully qualified teacher as provided in the rules becomes available. (7) The Teacher-in-charge so appointed under sub-rule (6) shall be eligible for his grade pay plus charge allowance fixed by Government. He shall be counted against the post of the Headmaster and the consequential vacancy shall also be filled.”. Going by the above rule, if nobody is qualified, the senior most H.S.A. has to be posted as teacher-in-charge and the first person, who gets qualified should be appointed as the Headmistress of the school. As rightly held by the learned Single Judge in Ext.P8, the right of the management of a minority educational institution does not extend to appointing an unqualified hand. In this case, we notice that the 6th respondent relinquished her claim under Ext.P13 w.e.f. 1.4.2001, the date on which the vacancy arose. Thereafter, only the appellant and the 5th respondent remained in the field. W.A.Nos.2342 & 2388/08 - 10 - If the 5th respondent was qualified on 1.4.2001 or she became qualified first, she could have been preferred by the management. But, we notice that the appellant became qualified in December, 2001 and the 5th respondent became qualified only on 7.6.2005. So, the appellant was entitled to be appointed as Headmistress with from December, 2001. In the face of Ext.P13 relinquishment letter of the 5th respondent, the Manager has no other option, but to appoint the appellant as Headmistress. The order of the Government permitting a contrary course of action is plainly untenable and also runs counter to the mandate of Ext.P8 judgment. The reasons given by the learned Single Judge to sustain the impugned order is unsupportable in law. Once Ext.P8 has become final and the 6th respondent relinquish her claim, the manager was bound to appoint the appellant. 5. In the result, the writ appeal is allowed. The judgment under appeal is reversed and the writ petition is allowed by quashing Ext.P9 and also directing the 4th respondent to appoint the appellant as Headmistress with retrospective W.A.Nos.2342 & 2388/08 - 11 - effect from December 2001. The D.E.O. shall approve the appointment. The appellant shall be entitled to all consequential benefits except arrears of salary. But, she shall be entitled to get arrears of salary from today. The Manager shall pass orders appointing the appellant as directed above, within one month and forward the same to the D.E.O. The D.E.O. shall pass orders approving the appointment within one month thereafter. W.A. No.2388 of 2008: In view of the judgment in W.A. No.2342 of 2008, this appeal is dismissed. Sd/- K. Balakrishnan Nair, Judge. Sd/- C.T. Ravikumar, Judge. DK. (True copy)