IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 17TH JULY 2009 / 26TH ASHADHA 1931 WP(C).No. 12077 of 2008(K) ------------------------------------ PETITIONER: ----------------------- THE CORPORATE MANAGEMENT LATIN CATHOLIC SCHOOLS, DIOCESE OF NEYYATTINKARA, LOGOS PASTORAL CENTRE, NEYYATTINKARA, REPRESENTED BY ITS MANAGER FR.JAYARAJ P.JOICE. BY ADV. SRI.P.JACOB VARGHESE, SENIOR ADVOCATE SRI.M.A.FIROZ SRI.GEORGE MECHERIL RESPONDENTS: ------------------------- 1. THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 3. THE DISTRICT EDUCATIONAL OFFICER, ATTINGAL. 4. THE ASST.EDUCATIONAL OFFICER, PALODE. 5. SMT.N.Y.AMMINI, HEAD MISTRESS, ST.GEORGE L.P. SCHOOL, PALODE, THIRUVANANTHAPURAM. 6. SMT.KUMARI SOBHANA, HEAD MISTRESS, S.H.L.P.SCHOOL, THEVANPARA, THIRUVANANTHAPURAM. 7. SMT.BELSI.M., U.P.S.A., S.H.U.P.S., CHULLIMANNOOR, NEDUMANGAD, THIRUVANANTHAPURAM. ADV. SRI.V.A.MUHAMMED FOR R.7 SRI.K.E.HAMZA FOR R.7 SRI.V.C.JAMES FOR R5 & 6 SRI. DILIP MOHAN, GOVERNMENT PLEADER FOR R1 TO R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 12077 /2008 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1: A TRUE COPY OF THE ORDER NO.ET5/34360/97 L/ DOS DATED 12/08/1997. EXHIBIT P2: A TRUE COPY OF PROCEEDINGS NO. C/1545/04 DATED 6/08/2004 OF THE A.E. O PALODE. EXHIBIT P3: A TRUE COPY OF THE ORDER NO. L. DIS/6362/04/B1 DATED 27/05/2004 OF THE D.E.O. EXHIBIT P4: A TRUE COPY OF THE REVISION PETITION FILED BEFORE THE D.P.I. EXHIBIT P5: A TRUE COPY OF THE PROCEEDINGS OF THE D.P.I DATED 21/03/2006. EXHIBIT P6: A TRUE COPY OF THE REVISION PETITION DATED 6/05/2006. EXHIBIT P7: A TRUE COPY OF THE G.O.(Rt) NO.1266/2008/G. Edn DATED 11/03/2008. EXHIBIT P8: A TRUE COPY OF THE COMMUNICATION DATED 7/02/2003 OF THE HEAD MASTER, ST GEORGE L.P SCHOOL ADDRESSED TO THE PETITIONER. EXHIBIT P9: A TRUE COPY OF THE COMMUNICATION NO. E. 3050/2004 DATED 1/10/2004. EXHIBIT P10: A TRUE COPY OF THE WRITTEN COMPLAINT TO THIS PETITIONER ON 21/08/2004. EXHIBIT P11: TRUE COPY OF RELINQUISHMENT APPROVAL ORDER OF THE A.E. O. RESPONDENTS' EXHIBITS: EXHIBIT R7(a): TRUE COPY OF THE APPOINTMENT ORDER OF THE 7TH RESPONDENT. EXHIBIT R7(b): TRUE COPY OF THE APPOINTMENT ORDER OF THE 7TH RESPONDENT. EXHIBIT R7(c): TRUE COPY OF THE CERTIFICATE IN B.A. EXHIBIT R7(d): TRUE COPY OF THE CERTIFICATE IN B.ED. EXHIBIT R7(e): TRUE COPY OF THE CERTIFICATE OF DEPT. TESTS. EXHIBIT R7(f): TRUE COPY OF THE CERTIFICATE OF DEPT. TESTS. EXHIBIT R7(g): TRUE COPY OF THE REQUEST OF THE PETITIONER. /TRUE COPY/ P.A. TO JUDGE rhs S. SIRI JAGAN, J ............................................... W.P(C) No.12077 of 2008 ................................................. Dated this the 17th day of July, 2009 J U D G M E N T A corporate management, running the St. George L.P. School, Palode and other aided schools, is the petitioner herein. They are challenging orders of the educational authorities and the Government refusing to approve the appointment of the 5th respondent as the Headmistress of St.George L.P. School, Palode, on the ground that another teacher working under the same corporate management has a better claim for appointment to that post. 2. The manager appointed the 5th respondent as the Headmistress and forwarded the appointment order for approval of the 4th respondent. By Ext.P2 order dated 6.8.2004, the 4th respondent refused to approve the appointment on the ground that that appointment is ignoring the service seniority of the 7th respondent in violation of Rule 44 of Chapter XIV A of the Kerala Education Rules. Petitioners appeal was rejected by the District Educational Officer by Ext.P3 order. In Ext.P3 order claim of the W.P(C) No.12077 of 2008 -2- petitioner on the basis of minority status of the school under Article 30(1) of the Constitution of India was also rejected without assigning any reasons. The petitioner filed a revision before the 2nd respondent which was rejected by Ext.P5 on the ground that Management has not produced any documentary evidence to prove the minority status of the management under Article 30(1) of the Constitution of India and since the 7th respondent is senior to 5th respondent, the appointment of the 5th respondent as Headmistress overlooking the claim of the 7th respondent is not sustainable. The petitioner approached the Government also. By Ext.P7 order, the Government after accepting the minority status of the petitioner held against the petitioner, relying on the decision of this court in Kurian Lizy v. State of Kerala 2006(4)KLT 264, in which a Full Bench of this Court held that 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 Government held that the procedure adopted by W.P(C) No.12077 of 2008 -3- the petitioner for appointing the 5th respondent overlooking the claims of the 7th respondent, who is a member of the minority community is not transparent. It is under the above circumstances, the petitioner has filed this writ petition challenging Exts.P2, P3, P5, P7 orders seeking the following reliefs: “(i) Issue a writ in the nature of certiorari or such other appropriate writ, order or direction calling for the records leading up to the issuance of Exhibits P2, P3, P5 and P7 and quash the same. (ii) Issue a writ in the nature of mandamus or such other appropriate writ, order or direction commanding respondent No.4 to approve the appointment of respondents 5 and 6 as Headmistress forthwith. (iii) Stay the operation of Exhibits P2, P3, P5 and P7 pending disposal of the writ petition.” 3. The petitioner's contention is that the decision in Kurian Lizy's case is no longer good law in view of the decision of the Supreme Court of India in Secretary, Malankara Syrian Catholic College v. T.Jose and others 2007(1) SCC 386, which has been held so by a DB of this Court in Manager, S.S.H.S. School v. Lijin 2007(3) KLT 663. The petitioner would further contend that the 7th respondent by her conduct as evidenced by Exts.P8, P9 and P10 has rendered herself unfit to W.P(C) No.12077 of 2008 -4- be promoted as Headmistress of the School. 4. Counter affidavits have been filed by the 1st respondent and the respondents 5 and 6 and the 7. The 1st respondent takes the stand that the 7th respondent also belongs to the same community under which the educational agency is formed and therefore the Manager should have appointed the 7th respondent before considering the claims of the 5th respondent. The 7th respondent also takes the same stand. Respondents 5 and 6 supports the petitioner, as is only to be expected. 5. I have considered the rival contentions in detail. 6. At the outset it has to be noted that nobody disputes before me the fact that the educational institutions under the petitioner management are minority institutions entitled to protection of rights guaranteed under Article 30(1) of the Constitution of India. In fact the Government themselves have recognised the same in Ext.P7 order. Therefore that is no longer a question which requires to be decided in this case. But I note that in the writ petition, the petitioner espouses the cause of the 6th respondent also to be appointed as headmistress. But no order rejecting her appointment is under challenge before me. Therefore I am not expected to consider the claim of the 6th W.P(C) No.12077 of 2008 -5- respondent in this writ petition. 7. Now the only question is as to whether despite the right of the petitioner under Article 30(1) of the Constitution of India on the basis of minority status, the management is bound to consider the claims of other teachers belonging to the same minority community for appointment as headmaster/ headmistress. I have not been apprised of any decision of any court to the effect that the person to be chosen by the minority institution for being appointed as Headmaster/Principal should be a member of the same minority community itself. In fact that question was specifically considered by the Supreme Court in Malankara Syrian Catholic College's case (supra) held thus: “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 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.” 8. Further in view of the said decision of the Supreme W.P(C) No.12077 of 2008 -6- Court a Division Bench of this Court has, in Lijin's case (supra), held that the decision in Kurian Lizy's case is no longer good law. That being so, the rejection of approval of the appointment of the 5th respondent by the petitioner on the basis of the decision in Kurian Lizy's case cannot be supported under law. The result of the above discussion is that the impugned orders are not sustainable in law, in view of the legal position made clear by the judgments of the Supreme Court and this court. Accordingly, Exts.P2, P3, P5 and P7 orders are quashed. The 4th respondent is directed to approve the appointment the 5th respondent, as expeditiously as possible, at any rate, within one month from the date of resubmission of the appointment order by the manager. The 5th respondent would naturally be eligible for all consequential monetary and other service benefits. The writ petition is allowed as above. S. SIRI JAGAN, JUDGE rhs