IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 8TH FEBRUARY 2010 / 19TH MAGHA 1931 WA.No. 1381 of 2005(D) ---------------------- AGAINST THE JUDGEMENT IN WPC.2554/2005 DTD. 10.2.2005 .................... APPELLANT/PETITIONER: -------------- V.ASKAR ALI, AGED 37 YEARS, S/O.V.MOHAMMED KUNJU, HEADMASTER, VISWAVIDYALAYAM U.P.SCHOOL, CHENNARA (ON DEPUTATION AS CLERK IN THE O/O. THE HON'BLE MINISTER FOR GENERAL EDUCATION, TRIVANDRUM). BY ADV. SRI.V.A.MUHAMMED SRI.K.E.HAMZA RESPONDENT(S)/RESPONDENTS: --------------- 1. THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY, TRIVANDRUM-14. 3. THE DISTRICT EDUCATIONAL OFFICER, TIRUR, MALAPPURAM DISTRICT. 4. THE ASSISTANT EDUCATIONAL OFFICER, TIRUR, MALAPPURAM DISTRICT. 5. THE MANAGER, VISWAVIDYALAYAM U.P.SCHOOL, CHENNARA (OWNED BY MOULANA EDUCATIONAL CHARITY TRUST, TIRUR SUB DISTRICT, MALAPPURAM DISTRICT). WA.No. 1381 of 2005(D) 2 6. SRI.GEORGE GEORGE, TEACHER-IN-CHARGE, VISWAVIDYALAYAM U.P.SCHOOL, CHENNARA, TIRUR SUB DISTRICT, MALAPPURAM DISTRICT. BY SR.G.P.SRI.BENNY GERVASIS FOR R1 TO R4 SRI.V.RAJENDRAN (PERUMBAVOOR) FOR R6 SRI.GEORGE VARGHESE KIZHAKKAMBALAM FOR R6 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 08/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ---------------------------------------- W.A.No. 1381 of 2005 ---------------------------------------- Dated 8th February, 2010 JUDGMENT Balakrishnan Nair, J. The point that arises for decision in this appeal is whether the Manager of an educational institution, claiming protection of Article 30(1) of the Constitution of India, can overlook the preferential claims of a graduate UPSA for promotion as Headmaster in a U.P. School and appoint an under-graduate to that post. 2. The writ petitioner is the appellant. He joined the school of the fifth respondent as UPSA and he has continuous qualified approved service from 2.6.1986. His qualifications were SSLC and TTC. A vacancy in the post of Headmaster arose on 1.4.2001. The Manager appointed the appellant in that vacancy on 2.4.2001. The 6th respondent was a rival claimant to that post. He was a graduate with B.Ed. Degree. He has continuous qualified approved service as UPSA from 29.6.1992. He had about nine years' service as UPSA when the vacancy arose, which was more than half of the service of the appellant. In view of the above position, by virtue of Rule 45 of Chapter XIV A of the Kerala Education Rules, as it stood then, the sixth respondent was entitled to preference in the matter of appointment. W.A.No.1381/2005 2 When a graduate teacher with B.Ed. Degree and not less than half the service of the senior under-graduate teacher is available, he has to be appointed. Only in the absence of such graduate teachers, undergraduates could be considered for promotion. 3. In view of the said legal position, the appointment of the appellant was not approved by the District Educational Officer. The District Educational Officer also directed to appoint the sixth respondent as Headmaster. Though the matter was carried before the Government in revision, the Government, by Ext.P8 order, rejected the claims of the appellant and the Manager. Even the claim of the Manager that it is a minority educational institution was also repelled by the Government. Challenging the above order of the Government and the preceding orders of the statutory authorities, the appellant preferred W.P(C)No.2554 of 2005 and the Manager preferred W.P.(C) No.2938 of 2005. Both the Writ Petitions were heard together and dismissed by a common judgment dated 10.2.2005 by the learned Single Judge. 4. The appeal preferred by the Manager against the said judgment was already dismissed by a Division Bench of this Court. We heard the learned counsel on both sides. The learned counsel for the appellant submitted that the educational institution concerned is a W.A.No.1381/2005 3 minority institution and therefore, its management has the right to appoint persons of its choice, having the prescribed qualifications, to the post of Headmaster. The learned Government Pleader and the learned counsel for the contesting respondent pointed out that normally, the post of Headmaster of a U.P.School has to be filled up by a graduate teacher. Only in the absence of graduate teacher qualified for appointment, undergraduates can be considered. In support of that submission, they relied on a decision of the learned Single Judge of this Court in Manager, Philipose Mar Dinishus U.P.School v. State of Kerala (2001 (3) KLT S.N.23). 5. We considered the rival submissions made at the Bar. Rule 45 of Chapter XIV A of the Kerala Education Rules, as it stood when the vacancy arose, reads as follows: “45. Subject to rule 44, when the post of Headmaster of complete U.P.School is vacant or when an incomplete U.P.School becomes a complete U.P.School, the post shall be filled up from among the qualified teachers on the staff of the School or Schools under the Educational Agency. If there is a Graduate teacher with B.Ed. Or other equivalent qualification and who has got at least five years experience in teaching (after acquisition of B.Ed. Degree) he may be appointed as Headmaster provided he has got a service equal to half of the period of service of the senior most under graduate teacher. If graduate teachers with the aforesaid qualification and service are not available in the School or Schools under the same Educational Agency, the senior most primary School Teacher with W.A.No.1381/2005 4 S.S.L.C. or equivalent and (T.T.C. issued by the Board of Public Examination Kerala or T.C.H. Issued by the Karnataka Secondary Education Examination Board, Bangalore or a pass in Pre-degree Examination with pedagogy as an elective subject conducted by the University of Kerala or any other equivalent training qualification prescribed for appointment as primary School Assistant) may be appointed.” Going by the above rule, we think, normally a graduate teacher shall be appointed as Headmaster of a U.P.School. Only in the absence of a graduate teacher, having the qualifications prescribed in the rules, an undergraduate can be considered for appointment. If that be so, the Manager of a minority educational institution can appoint only a graduate teacher as Headmaster of a U.P.School, if one is available in that category. The qualifications prescribed for a post cannot be got over by pressing into service the minority rights under Article 30(1) of the Constitution of India. The qualifications for the said post have been prescribed having regard to academic interest. The rule making authority intended that the Headmaster should have a superior qualification and only in the absence of such a teacher an undergraduate could be considered. We fully agree with the view taken by the learned Single Judge of this Court in Manager, Philipose Mar Dinishus U.P.School v. State of Kerala (2001 (3) KLT S.N.23). The above judgment has been affirmed by a Division W.A.No.1381/2005 5 Bench of this Court in Prasad v. Philipose Mar Dilshus U.P.School (2005 (3) KLT 487). In view of the above position, we find no merit in the appeal. Accordingly, the Writ Appeal is dismissed. K.BALAKRISHNAN NAIR Judge P.N.RAVINDRAN Judge TKS