IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 19TH NOVEMBER 2008 / 28TH KARTHIKA 1930 WP(C).No. 28358 of 2007(A) -------------------------- PETITIONER(S): ------------------ M.K.LEELA, H.S.A., VIMALA HRIDAYA HIGH SCHOOL, VIRALI, UCHAKADA P.O., NEYYATTINKARA, THIRUVANANTHAPURAM. BY ADV. SRI.P.N.MOHANAN RESPONDENT(S): ------------------- 1. GOVT. OF KERALA, REP. BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. DIRECTOR OF PUBLIC INSTRUCTIONS, TRIVANDRUM. 3. DISTRICT EDUCATIONAL OFFICER, NEYYATTINKARA, TRIVANDRUM. 4. MANAGER, VIMALA HRIDAYA HIGH SCHOOL, VIRALI, UCHAKADA P.O., NEYYATTINKARA, THIRUVANANTHAPURAM. 5. SR. PHILOMINA P.L., HSA, VIMALA HRIDAYA HIGH SCHOOL, VIRALI, UCHAKADA P.O., NEYYATTINKARA, THIRUVANANTHAPURAM. 6. NESAMMAL M., H.S.A., VIMALA HRIDAYA HIGH SCHOOL, VIRALI, UCHAKADA P.O., NEYYATTINKARA, THIRUVANANTHAPURAM. ADV. SRI.S.GOPAKUMARAN NAIR (SR.) FOR R4&5 GOVERNMENT PLEADER SRI.T.T.MOHAMOOD FOR R1 TO 3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/11/2008, THE COURT ON 19/11/2008 DELIVERED THE FOLLOWING: WPC NO.28358/07 APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF THE ORDER DT 21.4.98 OF THE 1ST RESPONDENT. EXT.P2: TRUE COPY OF THE ORDER IN G.O(MS) 181/87 GEN.EDN DTD 1.9.87. EXT.P3: TRUE COPY OF THE ORDER IN G.O.(MS) 172/88/GEN.EDN DTD 21.11.88. EXT.P4: TRUE COPY OF THE CIRCULAR DTD 2.3.95. EXT.P5: TRUE COPY OF THE ORDER PASSED BY THE DIRECTOR OF PUBLIC INSTRUCTIONS DTD 5.10.2004. EXT.P6: TRUE COPY OF THE ORDER OF THE GOVT. DTD 7.6.05. EXT.P7: TRUE COPY OF THE ORDER OF THE GOVT. DATED 3.10.2005. EXT.P8: TRUE COPY OF THE JUDGMENT IN WPC NO.30984/05 DATED 29.11.2006. EXT.P9: TRUE COPY OF THE ORDER DTD. 4.8.07 OF THE 1ST RESPONDENT. EXT.P10: TRUE COPY OF THE JUDGMENT IN OP NO.14896/2000. EXT.P11: TRUE COPY OF THE JUDGMENT DTD 8.2.01 IN W.F. NO.2032/2000. EXT.P12: TRUE COPY OF THE GO(RT) NO.352/02 G.EDN DTD 30.1.2002. EXT.P13: TRUE COPY OF THE RELINQUISHMENT LETTER OF THE 6TH RESPONDENT. EXTS. OF R4 EXT.R4(a): TRUE COPY OF THE ORDER F. NO.429 OF 2007/27218 DT.21.4.2008 PASSED BY THE GOVERNMENT OF INDIA, NATIONAL COMMISSION FOR MINORITY EDUCATIONAL INSTITUTIONS. //TRUE COPY// P.A. TO JUDGE ANTONY DOMINIC, J. ============== W.P.(C) NO. 28358 OF 2007 (A) ==================== Dated this the 19th day of November, 2008 J U D G M E N T In this writ petition, the controversy is regarding the filling up of the post of Headmistress of an aided High School, of which the 4th respondent is the Manager. Petitioner commenced continuous service as HSA in the aforesaid school w.e.f. 15/7/89 and was test qualified in December, 2001. Petitioner completed 12 years graduate service on 15/7/2001. In so far as the 5th respondent is concerned, her continuous service in the school as HSA commenced on 7/6/93 and she got the test qualifications in June, 2000 and completed 12 years graduate service on 7/6/2005. As far as the 6th respondent is concerned, even according to the petitioner, she is senior to both the petitioner and the 5th respondent and was also qualified for the post in all respects. Therefore, details regarding her service particulars are not necessary. 2. There arose the vacancy of Headmistress in the school w.e.f. 01.04.2001. At that time, both the petitioner and the 5th respondent were unqualified. Petitioner submits that despite her eligibility and seniority, the 5th respondent was posted as Teacher in charge and that subsequently, she was promoted on a regular basis w.e.f. 7/6/2005. The appointment of WPC 28358/07 :2 : the 5th respondent as Headmistress was approved by the DEO and in appeal to the DPI, by Ext.P5 order, the 5th respondent's promotion was set aside on the ground that the school did not have minority status and that the petitioner was the rightful claimant. In the revision filed by the Manager before the 1st respondent, Ext.P6 order was rendered taking the view that the school is a minority educational institution and on that basis, the promotion of the 5th respondent was also upheld. Petitioner sought review of Ext.P6 and that was rejected by Ext.P7. The aforesaid orders were challenged before this Court in WP(C) No.30984/05, in which this Court rendered Ext.P8 judgment. 3. In the said judgment, referring to the judgment in Rev.K.C.Seth v. State of Kerala (1991(2) KLT 662), the learned Judge took the view that it is clear that unless the institution is established and administered by the minority community, it will not be entitled to the benefit of rights under Article 30 of the Constitution of India. Proceeding further, Learned Judge took note of the contention of the management that the school was originally established in 1950 and administered by a member of Nadar Christian community and therefore the school was founded by a member of the Christian Nadar Community. Reference was also made to the judgment of the Apex Court in Manager, St.Thomas WPC 28358/07 :3 : U.P.S. v. Commissioner (2002(2) SCC 497). Thereafter the learned Judge held as follows: It is to be noted that in Ext.P6, there is no finding that the school was established by a member of the minority institution. If there has been such a finding and the petitioner has given up his claim, I would not have been inclined to interfere with the finding that the institution enjoys rights under Article 30. This is a patent case where the authority has proceeded on the basis opposed to law as declared by the Apex Court. In such circumstances, it becomes necessary that the matter be reconsidered by the Government. 4. Again dealing with the claim of the petitioner herein for the post of Headmaster, the learned Judge held as follows: Of course, even if it is found that the respondent is a minority institution, still the question would arise as to whether it was correct to approve of the appointment of fourth respondent. 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 . (Emphasis supplied) Against Ext.P8 judgment, though the Manager filed WA 2387/07, it was submitted that the same was dismissed as withdrawn. 5. Accordingly, the matter was reconsidered by the 1st WPC 28358/07 :4 : respondent and it was thereafter that the 1st respondent issued Ext.P9 order. In Ext.P9 order, in so far as the claim of the 4th respondent that the educational institution in question was entitled to protection of Article 30 of the Constitution, it was held that; “During the hearing, it became convinced that the school has minority right as it being administered by a community having minority status and that administration alone is sufficient for getting minority right vide Section 2(5) of K.E.Act”. 6. After holding the school to be a minority institution, the appointment of the 5th respondent was upheld in the following terms. Government have examined the case in detail with reference to the rules and orders in force and the decision of the Supreme Court in various cases. Under Article 30(1) of the Constitution of India and based on various Supreme Court Orders on minority status of the Educational Institutions Government find that Vimala Hridaya HS, Virali is a minority institution. But the article 30(1) of the constitution does not extend to appointing a person who is not qualified. Sr.Philomina was not qualified at the time of her appoint but there was a senior hand, Smt.Nesammal who was fully qualified as on 01/04/2001. She had rightful claim as on that date. She had not relinquished the right explicitly. But the petitioner was not qualified on the date of occurrence of vacancy and hence she has no superior claim over the present incumbent, though she got qualified a little earlier than the present incumbent, subsequently. As the minority institution had no right to post an unqualified person the only qualified person at that time had the right to be appointed though she did not stake the claim in the last 6 years. On the date of appointment, Sr.Philomina was not qualified and there was a qualified senior. So her appointment as teacher was not in order. Smt.Nesammal ought to have been appointed. But on her part she never staked claim or challenged the posting of WPC 28358/07 :5 : Sr.Philomina. The original petitioner is equally unqualified on the date of occurrence of vacancy. The only claim she can make is about the delay in posting of an HM by the management and that it is not justifiable as she was in the zone of consideration, a little before. But as Mrs.Nesammal is senior to her, she can't claim any right to question the delay. In the light of the above facts and circumstances, Government are pleased to direct the Manager, 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 01/04/2001, 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) 7. It is challenging Ext.P6, P7 and P9 and to declare that the petitioner is entitled to be appointed as teacher in charge w.e.f. 01.04.2001 and as Headmistress w.e.f. 15/7/2001, on her completing 12 years of service that this writ petition is filed. Directions are also sought for to declare that the word “or administered” contained in Section 2(5) of the K.E Act is ultra vires of Article 30(1) of the Constitution of India and to declare that the 5th respondent is not entitled to get minority protection. It should be noted here that arguments were not addressed on the vires of Section 2(5) of the K.E.Act. 8. Petitioner has also produced as Ext.P13, relinquishment executed by the 6th respondent as provided in the note to Rule 44 of WPC 28358/07 :6 : Chapter XIV A KER. The contentions raised by the petitioner are two fold. One is that in Ext.P8 judgment, this Court has already held that unless the school is established and administered by a minority community, the school is not entitled to protection of Article 30 of the Constitution. It is argued that despite this binding direction, only on the basis that under Section 2(5) of the Kerala Education Act, a school administered by a minority community is entitled to the protection of Article 30 of the Constitution, the 1st respondent illegally took the view that the school is entitled to minority status. 9. In so far as the petitioner's claim for appointment as teacher in charge and as Headmistress is concerned, it is contended that in Ext.P8 judgment, following the Full Bench judgment in Padmanabhan Nair v. Dy.Director (1991(1) KLT 337), this Court has already held that admittedly, the 5th respondent herein became qualified only in 2005 and therefore the rival claimants are the petitioner and the 6th respondent herein. It is stated that the 6th respondent has relinquished her claim for appointment as per Ext.P13 and if that be so, petitioner is the only rightful claimant, who alone could have been appointed as the teacher in charge and as Headmistress on her becoming qualified. It is therefore contended that the conclusion to the contrary in Ext.P9 is illegal. WPC 28358/07 :7 : 10. On the other hand, the learned Senior Counsel Sri.Gopakumaran Nair, who argued for respondents 4 to 6 contended that the school is entitled to minority status. Referring to the counter affidavit filed, it was contended that the school was established by a member of the same minority community by name late Tapasimuthu Nadar and was thereafter taken over by the 4th respondent. According to them, the school having been established by a member of the minority community and is still administered by another member of the same community, is entitled to minority status and protection of Article 30 of the Constitution. It was also submitted that the National Commission for Minority Educational Institutions have by order dated 21/4/2008 declared that the school is a minority educational institution. On this basis, it was contended that the school being a minority educational institution, it is entitled to have a choice of its own, in the matter of appointment of Headmistress of the school and that the said right of theirs has been confirmed by the Apex Court and also this court in the various judgments. Counsel relied on the judgments of this Court in Annie Francis v. D.E.O, Aluva (2005(3) KLT 238) and the Apex court in Secy.Malankara Syrian Catholic College v. T.Jose {(2007) 1 SCC 368)} and Ammad v. Emjay High School (1998(2) KLT 828). WPC 28358/07 :8 : 11. According to the learned counsel since both the petitioner and the 5th respondent were unqualified as on the date of occurrence of vacancy, the eligibility of the 5th respondent who has since been appointed need be assessed only as on the date of appointment. It was stated that the 5th respondent was appointed on 7/6/05 and that as on that date, she was fully qualified in terms of Rule 44A of Chapter XIV A KER. 12. Thus what arises for consideration is the correctness of the finding of the 1st respondent on the minority status of the school and also the correctness of the claim of the petitioner to be appointed as Headmistress of the school in the vacancy that arose on 01/04/2001 to which the 5th respondent has been appointed. 13. In so far as the minority status of the school in question is concerned, Article 30 of the Constitution provides that all minorities, whether based on religion or language shall have the right to establish and administer educational institution of their choice. Section 2(5) of the Kerala Education Act defines minority schools, as schools established and administered or administered by such minorities as have the right to do so under Clause 1 of Article 30 of the Constitution. What is important to be noticed is that while the right under Article 30 is available only to minorities, who have established and administered educational institutions, WPC 28358/07 :9 : the definition in Section 2(5) applies to educational institutions established and administered or administered by minorities. These provisions came up for the interpretation of this Court in Rev.K.C.Seth v. State of Kerala (1991(2) KLT 662), where in para 7, this Court has held as follows: In view of the above, the institution in question cannot be considered as one established by the 2nd and 3rd respondent even though it is administered by them. If that be so, the institution cannot be treated as a minority school entitled to the protection of Article 30(1) of the Constitution of India notwithstanding the vide definition of minority school contained in S.2(5) of the Kerala Education Act. Therefore, Rule 44 Chapter XIV (A) of the Kerala Education Rules has to be strictly applied in the matter of appointment of Headmaster. Hence, the petitioner being senior to the 4th respondent, is entitled to be promoted to the post of Headmaster which fell vacant on 31/3/1989 in preference to the 4th respondent in O.P.No.9158 of 1989. It is also be noticed that in that case there was no challenge to the vires of Section 2(5) of the K.E. Act and therefore this Court held that the section should be read down as conferring minority status only to schools established and administered by minorities. 14. In so far as this case is concerned, this issue was raised in WP (C) No. 30984/05 and was considered in Ext.P8 judgment. After noticing the judgment in the case of Rev.K.C.Seth, taking note of the contention of the management that the school was established by a member of the religious minority of Nadar Christian Community and after referring to the Apex Court judgment in Manager, St.Thomas U.P. v. Comissioner WPC 28358/07 :10 : (2002(2) SCC 497), this Court held that it was necessary that the matter shall be reconsidered by the Government. Accordingly, the issue regarding minority status was directed to be reconsidered by the Government. However, a reading of Ext.P9 Government order shows that the Government upheld the claim of the 4th respondent for minority status only on the ground that the school is administered by a community having minority status and that administration alone is sufficient for getting minority right vide Section 2(5) of the K.E.Act. 15. In my view, Government ought to have examined the question in the light of the judgment of this Court in Rev.K.C.Seth's case where it has been held that administration alone will not confer minority status and that establishment of the educational institution is also necessary. Section 2(5) of the K.E.Act also has been read down, consistent with Article 30 of the Constitution. The judgment in Rev.K.C.Seth's case shows that it has been specifically held that the words “established and administered” have been used conjunctively and not disjunctively. If that be so, satisfaction of both these conditions are necessary. However, this aspect has not been considered by the Government in Ext.P9 and therefore the finding that the school is entitled to minority status cannot be approved. 16. True, relying on Exts. P10 to P12, counsel for the petitioner WPC 28358/07 :11 : was arguing that Nadar Christian community, a member of which is stated to have established the school in question, is not a minority community. I am not persuaded to accept the contention of the learned counsel that the above documents suggest such a conclusion. A reading of these documents show that all that has been held in Exts. P10, P11 and P12 is that minority status cannot be granted to the school in question for the reason that there was nothing to prove that the school was established by a member of the minority community. Therefore, these orders do not conclude the issue that the Nadar Christian Community is not a minority community. In this context, it is also stated that along with IA 14400/08, respondents have produced copy of order No.F.No.429 of 2007/27218 dated April 21, 2008 of the National Commission for Minority Educational Institutions, signed by its Secretary, declaring the school to be a minority educational institution covered by Article 30 of the Constitution of India. Though, the finding in this behalf contained in Ext.P9 cannot be sustained, so long as the aforesaid order dated April 21, 2008 stands, any further dispute is purely academic. 17. Now what remains is the claim of the petitioner for appointment as Teacher in charge and as Headmistress. This contention has to be appreciated in the background of Ext.P8 judgment, where it was WPC 28358/07 :12 : held by this Court that when the vacancy arose, it was open to the minority institution to appoint a Headmistress from among the qualified persons, irrespective of their seniority. It was also held that the 5th respondent had become qualified only in the year 2005 and that the claim of the 6th respondent herein will have to be taken note of. 18. As far as the rule that governs appointment of Headmistress of the school in question is concerned, it is Rule 44(A) of Chapter XIV A KER. The vacancy arose on 01/04/2001 and admittedly both the petitioner and the 5th respondent were not qualified as on that date. It was in these circumstances, that the 5th respondent was appointed as Teacher in charge. 19. Petitioner contends that in the absence of a qualified person to be appointed as Headmistress, in terms of Rule 45, Chapter XIV A KER, the senior most teacher should have been appointed as the teacher in charge and that in terms of Rule 45(c)(2) such temporary promotee shall be replaced as soon as possible by the member of the service who becomes entitled for promotion under the Rules. It is stated that being the senior most, the petitioner should have been temporarily promoted and that, on her becoming qualified by completing 12 years of service on 15/7/2001, she should have been regularly appointed as WPC 28358/07 :13 : the Headmistress. Although she has no dispute about the superior claim of the 6th respondent, petitioner bases her claim on Ext.P13, the relinquishment given by the 6th respondent w.e.f. 01/04/2001. It is stated that this Court has already held that the 5th respondent was ineligible to be considered, referring to the Full Bench judgment in Padmanabhan Nair v. Dy.Director (1991(1) KLT 337) and that therefore, the rival claimants are only the petitioner and the 6th respondent. According to her, since the 6th respondent has relinquished her claim by Ext.P13, the only eligible person is the petitioner. Counsel for the petitioner also relied on the judgment of this Court in Prasad v. Philipose Mar Dilshus U.P.School (2005(3) KLT 487) contended that even if it is argued that the school in question is a minority educational institution having the right to choose the suitable person to be appointed as Headmistress, such right of choice is confined to persons having the qualifications prescribed under the statute. It was contended that in view of Ext.P13 relinquishment, she being the only qualified person, should have been appointed as the teacher in charge and as Headmistress. 20. This contention of the counsel for the petitioner is contradicted by the counsel for the respondents 4 to 6 by arguing that as on the date of occurrence of vacancy both were unqualified. It is stated WPC 28358/07 :14 : that if that be so, since the school has right of choice, irrespective of seniority, to appoint a suitable person as its Headmistress, it is immaterial that the petitioner got qualified first. According to them, as on the date of appointment, the 5th respondent was qualified and if that be so, the appointment is valid and proper. 21. I have considered the respective contentions. In the Full Bench judgment in Padmanabhan Nair v. Dy.Director (1991(1) KLT 337), this Court referring to the Full Bench judgments in James Thomas and others v. Chief Justice, High Court of Kerala and others (1977 KLT 622) and Varghese and others v. State of Kerala and others (1981 KLT 458) held that for promotion, eligibility has to be reckoned with reference to the date of occurrence of vacancy and that if there was a vacancy and none is available to be promoted, when a person became qualified for being promoted to such vacancy, he would be entitled to be considered for promotion in that vacancy. Proceeding further, it was held in that case that as there was a vacancy available and on the teacher becoming qualified, he should have been appointed to that vacancy in terms of the provisions contained in the KER. This judgment has been referred to in Ext.P8 judgment and it is on that basis it has been held that the 5th respondent having become qualified only in 2005, the claim of the WPC 28358/07 :15 : petitioner and 6th respondent alone is to be considered. 22. What is to be now examined is the contention of the counsel for respondents 4 to 6 that being a minority educational institution, they have the freedom to choose a person of their choice to occupy the post of Headmistress. The right of minority communities to choose a person, whom they consider fit to be appointed as Headmaster has been recognised by the Apex Court and also this Court in various judgments. The Apex Court judgments in this context are Ammad v. Emjay High School (1998(2) KLT 828) and Secy.Malankara Syrian Catholic College v. T.Jose and others (2007(1) SCC 386). In so far as some of the judgments rendered by this court