IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 29TH JULY 2009 / 7TH SRAVANA 1931 WP(C).No. 6325 of 2007(C) ------------------------------------- PETITIONER: ------------------- MARY T.S., AGED 47 YEARS, W/O. K.G.BOOBILY, TEACHER, M.I.H.S., POOMKAVOO, ALLEPPEY, RESIDING AT LHY VILLA, C.M.C.-30/80, SHERTHALLAY. BY ADVS. SMT.JEENA JOSEPH, MR.G.D.PANICKER. RESPONDENTS: ------------------------ 1. MANAGER, MARY IMMACULATE HIGH SCHOOL, (M.I.H.S), POOMKAVOO, ALLEPPEY. 2. D.E.O., ALLAPPUZHA. R1 BY ADV. MR.TONY GEORGE KANNANTHANAM, R2 BY GOVT. PLEADER MR. K. RAMESH. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/07/2009, ALONG WITH W.P.(C).NO. 34436 OF 2007,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.6325/2007-C: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE CERTIFICATE OF THE PETITIONER PASSED ACCOUNT TEST (LOWER) CONDUCTED BY THE KERALA PUBLIC SERVICE COMMISSION IN THE YEAR 2000. EXT.P.2: COPY OF THE CERTIFICATE OF THE PETITIONER PASSED THE TEST IN KERALA EDUCATION ACT AND RULES CONDUCTED BY THE KERALA PUBLIC SERVICE COMMISSION IN THE YEAR JUNE 2000. EXT.P.3: COPY OF THE RELEVANT PAGES OF THE SERVICE BOOK OF THE PETITIONER. EXT.P.4: COPY OF THE REQUISITION DTD. 24/04/2001. EXT.P.5: COPY OF THE REQUISITION OF THE PETITIONER BEFORE THE RESPONDENTS DTD. 15/02/2007. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. T.R. RAMACHANDRAN NAIR, J. ------------------------------------------- W.P.(C) Nos.6325 & 34436 OF 2007 -------------------------------------------- Dated this the 29th day of July, 2009. J U D G M E N T These writ petitions are filed respectively by the Teacher seeking promotion as Headmistress and by the Manager seeking for a direction to approve the appointment of the promotee. 2. The petitioner in W.P.(C) No.6325/2007 is a senior most H.S.A (Malayalam) working in the school. She has completed 24 years of service at the time of filing of the writ petition. She is qualified for promotion to the post of Headmistress also. A permanent vacancy of Headmistress arose on 01.04.2001. Even though she applied for promoting her to the said post, overlooking her seniority, a junior was appointed. The next vacancy arose in March 2007. The petitioner again filed a representation. W.P(C) No.6325/2007 is filed seeking for a direction to promote her as Headmistress. 3. Mainly it is contended that the parameters under Article 30(1) of the Constitution of India that is available to the W.P.(C) Nos.6325 & 34436/07 2 Management do not confer them any power to ignore excellence and perfection in the filed of Education. It is also contended that unless the minority status is declared by any competent authority, the Management cannot rely upon Article 30 of the Constitution of India for appointment of Headmistress and by promoting a person of their choice ignoring seniority. 4. In W.P.(C) No.34436/2007, Exhibits P3 and P4 are under challenge. Exhibit P3 shows that approval of appointment of Sr.Kochuthresia T.I as Headmistress with effect from 01.04.2007 is rejected on the ground that it is made overlooking the seniority and the copy of the order allowing minority right is not produced. That was upheld in appeal by Exhibit P4. Even though the rejection of approval as per Exhibit P3 is sustained in Exhibit P4, the only reason stated therein is the pendency of W.P.(C) No.6325/2007. The question that is raised in the writ petition is now covered by the decision of a Division Bench of this Court in St.Berkuman's College vs. Principal Secretary (2009(2) KLT 209). In fact, the learned counsel for the petitioner relied W.P.(C) Nos.6325 & 34436/07 3 upon the decision of a learned Single Judge in Assumption College vs. State of Kerala (2008(1) KLT 235). The learned Single Judge therein had taken the view that the institution should get a formal declaration of minority status for appointing a person of their choice as Principal of private aided college. After adverting to the statutory scheme, the Division Bench has held that “the question of declaration arises if only somebody disputes the status of an educational agency”. 5. The Division Bench referred the decision of the Apex Court in Ammad vs. Emjay High School (1998(2) KLT 828 (SC)) also. It was held by the Apex Court in paragraph 12 thus: “When the Government declared the school as a minority school it has recognised a factual position that the school was established and is being administered by a minor community. The declaration is only an open acceptance of a legal character which should necessarily have existed antecedent to such declaration.....” The said view of the Apex Court was followed by this Court. W.P.(C) Nos.6325 & 34436/07 4 6. Learned counsel for the Management has produced for my perusal the proceedings of the National Commission for Minority Educational Institutions dated 03.04.2008 whereby the particular school namely, Mary Immaculate High School, Poomkavu, Alappuzha has been declared as a minority educational institution covered under Article 30 of the Constitution of India. In that view of the matter, there cannot be any dispute that the Management is entitled for protection under Article 30(1) of the Constitution of India. Therefore, the petitioner in W.P.(C) No.6325/2007 cannot successfully contend for the position that on the basis of seniority alone, she is entitled for promotion as Headmistress. Hence, W.P(C) No.6325/2007 fails and the same is dismissed. Exhibits P3 and P4 in W.P.(C) No.34436/2007 are quashed. The Management will produce a copy of the order passed by the National Commission for Minority Educational Institutions before the 2nd respondent. The 2nd respondent will pass appropriate orders regarding the approval of appointment of the W.P.(C) Nos.6325 & 34436/07 5 Headmistress appointed to fill up the vacancy which arose on 01.04.2007. Appropriate orders shall be passed within a period of one month from the date of receipt of a copy of this judgment. T.R. RAMACHANDRAN NAIR JUDGE smp