IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 30TH OCTOBER 2009 / 8TH KARTHIKA 1931 WP(C).No. 7529 of 2009(I) ----------------------------------- PETITIONERS: --------------------- 1. FR.SEBASTIAN MANICKTHAN, AGED 57 YEARS, S/O. KOCHU MATHEW, CORPORATE MANAGER OF SCHOOLS, ST. MARY'S FORANE CHURCH, MUTTOM, CHERTHALA ALAPPUZHA DIST.- 688 524. 2. J. VARKEY KUNNUMPURAM, HEADMASTER (RETIRED) ST. MARY'S GIRLS HIGH SCHOOL CHERTHALA (RESIDING AT KUNNUMPURAM HOUSE C.M.C. CHERTHALA-24. BY ADVS. MR.V.A.MUHAMMED, MR.K.E.HAMZA. RESPONDENTS: ------------------------ 1. THE STATE OF KERALA, REP. BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION,. JAGATHY, THIRUVANANTHAPURAM -14. 3. THE DEPUTY DIRECTOR OF EDUCATION, ALAPPUZHA DISTRICT. 4. THE DISTRICT EDUCATIONAL OFFICER, CHERTHALA, ALAPPUZHA DISTRICT. 5. SMT. P.V. KOCHUTHERESSIA, HEADMISTRESS (RETIRED), HOLY FAMALY HIGH SCHOOL, CHERTHALA, (RESIDING AT CHOKKAMTHAYIL, P.O. MARUTHORVATTOM, CHERTHALA – 688 545, ALAPPUZHA DISTRICT. R1 TO R4 BY GOVT. PLEADER SMT. M.R. SREELATHA, R5 BY ADV. MR.T.M.ABDUL LATHEEF. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/10/2009, ALONG WITH W.P.(C).NO.19811 OF 2009,THE COURT ON 30/10/2009 DELIVERED THE FOLLOWING: W.P.(C). NO.7529/2009-I: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ORDER OF APPOINTMENT DTD. 01/04/2003. EXT.P.2: COPY OF THE LETTER OF THE MANAGER DTD. 01/09/2007. EXT.P.3: COPY OF THE LETTER OF THE MANAGER DTD. 03/12/2007. EXT.P.4: COPY OF THE ORDER NO. B4/3718/07 OF THE DISTRICT EDUCATIONAL OFFICER DTD. 15/12/2007. EXT.P.5: COPY OF THE DECISION REPORTED IN 2005 (3) K.L.T. 238 DTD. 23/06/2005. EXT.P.6: COPY OF THE DECISION REPORTED IN 1998 (6) S.C.C. 674 DTD 07/09/1998. EXT.P.7: COPY OF THE DECISION REPORTED IN 2007 (1) KLT 22 (SC) DTD. 27/11/2006. EXT.P.8: COPY OF THE G.O.(RT).NO.1853/99/G. EDN. OF THE GOVERNMENT DTD. 19/04/1999. EXT.P.9: COPY OF THE LETTER NO. 17541/06/G. EDN. OF THE GOVT. DTD. 27/09/2006. EXT.P.10: COPY OF THE G.O.(RT).NO.4389/08/G. EDN. OF GOVT. DTD. 04/10/2008. EXT.P.11: COPY OF THE JUDGMENT IN W.P.(C).NO.17534/08 DTD. 27/05/2009. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) Nos.7529 of 2009-I 19811 of 2009-V - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of October, 2009. JUDGMENT These two writ petitions concern a dispute regarding promotion to the post of Headmaster of St.Mary's Girls High School, Cherthala. In W.P. (C) No.7529/2009, the petitioners are the manager and the teacher who was promoted as Headmaster and in W.P.(C) No.19811/2009, the petitioner is the rival claimant for the post. 2. The petitioners in W.P.(C) No.7529/2009 contend that there are three schools under St. Mary's Forane Church, Muttom, Cherthala, viz. St. Mary's Girls High School, Holy Family Higher Secondary School and Holy Family Girls L.P. School. These were established and administered by St. Mary's Forane Church and are therefore minority institutions entitled to protection under Article 30(1) of the Constitution of India. The second petitioner was promoted as Headmaster on 1.6.2007 and proposal was submitted for approval also. Earlier, the manager promoted one Shri K.E. Thomas as Headmaster which was approved by the District Educational Officer by Ext.P1 stating that the institution is a minority one. wpc 7529/2009 & 19811/2009 2 3. The promotion of the second petitioner was opposed by the 5th respondent who is the petitioner in W.P.(C) No.19811/2009. She is claiming promotion based on seniority. By Ext.P4, the District Educational Officer declined approval for the reason that the appointment is made overlooking the seniority of the 5th respondent and the manager has failed to prove that the school is a minority institution under Article 30(1) of the Constitution of India. This order stands confirmed by the Government as per Ext.P10. It is found in Ext.P10 that the manager could not produce any evidence to prove that the school has acquired minority status. Minority status cannot be claimed merely on the fact that the educational institution is being administered by a minority community. 4. Heard Shri K.E. Hamsa, learned counsel for the management and the promotee and Shri T.M. Abdul Latheef, learned counsel appearing for the senior claimant who also belongs to the very same minority community. 5. Learned counsel for the petitioners submitted that in the light of the various decisions of this Court and the Apex Court, the stand taken by the authorities cannot be said to be correct. The management of a minority school has got a right to appoint a qualified person as Headmaster without strictly adhering to the seniority and reliance is placed on the Full Bench wpc 7529/2009 & 19811/2009 3 decision of this Court in Rt. Rev. Aldo Maria Patroni v. E.C. Kesavan and others (1964 KLT 791), Division Bench decisions of this court in Manager, Corporate Educational Agency v. State of Kerala (1990 (2) KLT 240), and Prasad v. Philipose Mar Dilshus U.P. School (2005 (3) KLT 487), a decision of the Supreme Court in N.Ammed v. Manager, Emjay High School and others {(1998) 6 SCC 674} and also a recent decision of this Court in Manager, Malankara Syrian Catholic Colleges Association and others v. Kerala University (2009 (4) KT 241). 6. It is also submitted that even by Ext.P9, the Government has clarified that educational officers need not insist for certificates, as the Government are yet to frame guidelines. 7. Shri T.M. Abdul Latheef supported the order passed by the Government by contending that minority status has not been got declared by the management without which they cannot promote a person of their choice. Relying upon the decision of this Court in Varkey v. State of Kerala (2005 (2) KLT 468) and a Full Bench decision in Kurian Lizy v. State of Kerala (2006 (4) KLT 264), it is submitted that since the 5th respondent belongs to a minority community itself, her claim for seniority cannot be denied as it will violate Articles 14 and 16 of the Constitution of wpc 7529/2009 & 19811/2009 4 India. 8. The first question is whether without getting a declaration of the minority status the management could have promoted the second petitioner. In fact, the right of a minority community under Article 30(1) of the Constitution is well settled. As early as in 1964 a Full Bench of this court in Rt. Rev. Aldo Maria Patroni's case (1964 KLT 791) held that “the right to choose the headmaster is perhaps the most important facet of the right to administer a school; and the imposition of any trammel thereon - except to the extent of prescribing the requisite qualifications and experience - cannot but be considered as a violation of the right guaranteed by Article 30(1) of the Constitution.” It was held therein that cancellation of the appointment on the ground that the appointee is junior in the service of the school, amounts to violation of the right guaranteed under Article 30(1) of the Constitution of India. This legal position was followed by a Division Bench in Annie Francis v. D.E.O., Aluva (2005 (3) KLT 238). The position was reiterated by the Apex Court also in N. Ammed's case {1998) 6 SCC 674), wherein it was held thus in para 15: “The right guaranteed under Article 30(1) is a right that is absolute and any law or executive direction which infringes the substance of the right will not preclude making of regulations in the true interests wpc 7529/2009 & 19811/2009 5 of efficiency or instruction, discipline, health, sanitation, morality, public order and the like, as such regulations are not restrictions on the substance of the right guaranteed by the Constitution.” With regard to the appointment of Principal of a college, the Apex Court upheld the right of the management of a minority institution to appoint a person of their choice in Secretary, Malankara Syrian Catholic College v. T. Jose (2007 (1) KLT 22). 9. The question whether a certificate showing declaration of minority status is required, is now settled by a Division Bench of this Court in St. Berkman's College, Changanacherry and others v. Principal Secretary to Government, Higher Educational Department and others (2009 (2) KHC 41). It was held thus in para 4: “The question of declaration arises if only somebody disputes the status of an educational agency.” Reliance was placed on N. Ammed's case {(1998) 6 SCC 674}. In Managr, Malankara Syrian Catholic Colleges Association's case (2009 (4) KHC 241), the said position was reiterated. 10. Going by the fact that the schools have been established by the church, viz. St. Mary's Forane Church and the fact that the same belongs to a minority community and in view of the further fact that even in regard to wpc 7529/2009 & 19811/2009 6 the earlier appointment by Ext.P1 the right under Article 30(1) was recognised, it is not required that every time it should get a declaration of minority status. As held by the Division Bench in the above decision, if only somebody disputes the same, then only the question of declaration arises. Therefore, merely because of the non production of a declaration, it cannot be said that the petitioners are not entitled to make the appointment. 11. The important question vehemently argued by the Shri T.M. Abdul Latheef is that the 5th respondent is a senior claimant belonging to the very same minority community and her right to get due promotion cannot be defeated by the management. Reliance is placed on the decision of a Division Bench of this Court in Varkey v. State of Kerala (2005 (2) KLT 468). In fact, the decision of the Division Bench referred to above, was dissented by a subsequent Division Bench in Annie Francis's case (2005 (3) KLT 238) taking the view that the right of the institution to appoint candidates of its choice from among the qualified candidates is part of administration provided the candidates are fully qualified, and the right of appointment cannot be interfered with. Reliance was placed on the decision of this Court in N. Ammad's case {(1998) 6 SCC 674}. 12. Strong reliance is placed on the following paragraph of the wpc 7529/2009 & 19811/2009 7 decision of a Full Bench of this Court in Kurian Lizy's case (2006 (4) KLT 264 - FB): “We notice that in many cases senior teachers belonging to the minority community, which runs the institution are superseded without assigning any reason. Art.30(1) of the Constitution of India is an armour to protect the minority against the legislative and executive actions of the State, which is normally controlled by the majority. The said armour cannot be used as a weapon against other members of the same minority community. The protection under Art.30(1) is to the minority community and for the minority community. The Manager may supersede the members of other communities and also members of the minority community, who are found unsuitable for promotion to the post of Headmaster. But there may be teachers, who are, in every respect, qualified and suitable to head a minority educational institution. The management may select the best among them. The selection procedure should be fair, reasonable and transparent. The eligible members of the minority community may not have a feeling that they have been superseded without any valid grounds. So, all minority educational institutions, which propose to select the best person to the post of Headmaster/Principal of a School or College, as the case may be, ignoring seniority in the feeder category or ignoring the available teachers, should frame and publish regulations or bye-laws, containing a transparent procedure, governing such selection. The publication can be made in the wpc 7529/2009 & 19811/2009 8 Notice Board of the educational institution concerned and a copy of it should be available in school/college library for reference. When superseding a senior qualified member of the minority community the reason thereof should be clear from the records. The question as framed in the beginning of this order is thus answered accordingly.” 13. Relying upon the above decision, Shri Abdul Latheef, learned counsel for the 5th respondent submitted that there should be reasons for superseding the 5th respondent who belongs to the same minority community and in the absence of the same, her right to claim promotion cannot be interfered with. In fact, the question whether the absence of such a procedure will vitiate the appointment, was considered by the Apex Court itself in N. Ammad's case {(1998) 6 SCC 674}. The Apex Court in the said decision held thus in paragraphs 24, 26, 27 and 28: “The management’s right to choose a qualified person as the Headmaster of the school is well insulated by the protective cover of Article 30(1) of the Constitution and it cannot be chiselled out through any legislative act or executive rule except for fixing up the qualifications and conditions of service for the post. Any such statutory or executive fiat would be violative of the fundamental right, enshrined in the aforesaid article and would hence be void. The management of a minority school is free to find out a qualified wpc 7529/2009 & 19811/2009 9 person either from the staff of the same school or from outside to fill up the vacancy. If management of the school is not given very wide freedom to choose the personnel for holding such a key post, subject of course to the restrictions regarding qualifications to be prescribed by the State, the right to administer the school would get much diminished. Hence, it is for the management of the minority educational institution to choose the modality for selecting the qualified persons for appointment.” 14. The Apex Court in Malankara Syrian Catholic College v. Jose (2007 (1) KLT 22 (SC), considered the similar contention that protection under Article 30(1) of the Constitution of India cannot be used against a member of the teaching staff who belongs to the same minority community and rejected the same. It was held thus in para 28: “The appellant contends that the protection extended by Art.30(1) cannot be used against a member of the teaching staff who belongs to the same minority community. It is contended that a minority institution cannot ignore the rights of eligible lecturers belonging to the same community, senior to the person proposed to be selected, merely because the institution has the right to select a Principal of its choice. But this contention ignores the position that the right of the minority to select a Principal of its choice is with reference to the assessment of the person's outlook and philosophy and ability to implement its objects. The management is entitled to appoint the wpc 7529/2009 & 19811/2009 10 person, who according to them is most suited, to head the institution, provided he possesses the qualifications prescribed for the posts. The career advancement prospects of the teaching staff, even those belonging to the same community, should have to yield to the right of the management under Art.30(1) to establish and administer educational institutions.” The above completely answers the argument raised by the learned counsel for the 5th respondent. When the minority institution is entitled to appoint a person of their choice, it cannot be insisted that separate reasons should be shown as to why the claims of a senior claimant from the very same community is overlooked. Any such insistence will interfere with the right of the minority institution under Article 30(1) of the Constitution itself. 15. In the light of the above, since the said judgment is later in point of time than the decision of the Full Bench in Kurian Lizhy's case (2006 (4) KLT 264 (FB)), the same is binding on this Court and hence the reliance placed on the decision in Kurian Lizy's case cannot help the case of the 5th respondent. In the result, W.P.(C) No.7529/2009 is allowed. Exts.P4 and P10 are quashed. There will be a direction to the 4th respondent to approve the appointment of the second petitioner as Headmistress from 1.6.2007 wpc 7529/2009 & 19811/2009 11 onwards. Appropriate orders shall be passed and consequential benefits also will be disbursed within a period of two months from the date of receipt of a copy of this judgment. W.P.(C) No.19811/2009 stands dismissed. No costs. (T.R. Ramachandran Nair, Judge.) kav/