IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 25TH FEBRUARY 2009 / 6TH PHALGUNA 1930 WP(C).No. 2457 of 2004(P) ------------------------- PETITIONER(S): --------------- L.J.GIRIJA, HIGH SCHOOL ASSISTANT, C.S.I. VOCATIONAL HIGH SCHOOL AND HIGHER SECONDARY SCHOOL FOR DEAF, (C.S.I.V.H.S. & H.S.S. FOR THE DEAF) VALAKOM, KOTTARAKKARA, KOLLAM DISTRICT. BY ADV. SRI.PIRAPPANCODE V.SREEDHARAN NAIR SRI.S.P.ARAVINDAKSHAN PILLAY SRI.PIRAPPANCODE V.S.SUDHIR SRI.R.V.SREEJITH RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM. 2. SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 3. DIRECTOR, HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDINGS, SANTHI NAGAR, THIRUVANANTHAPURAM. 4. THE DISTRICT EDUCATIONAL OFFICER, KOTTARAKKARA, KOLLAM DISTRICT. 5. THE CORPORATE MANAGER OF C.S.I.V.H.S. AND H.S.S. FOR THE DEAF, VALAKOM, CHURCH OF SOUTH INDIA (C.S.I) SOUTH KERALA DIOCESE (L.M.S. SCHOOLS) L.M.S COMPOUND, THIRUVANANTHAPURAM. 6. SOPHY GABRIEL, H.S.A. (HIGH SCHOOL ASSIS TANT) TEACHER IN CHARGE), C.S.I. VOCATIONAL HIGH SCHOOL AND HIGHER SECONDARY SCHOOL FOR THE DEAF, (C.S.I.V.H.S. AND H.S.S. FOR THE DEAF) VALAKOM, KOTTARAKKARA, KOLLAM DISTRICT. ADDL. R7. K.SANTHAMMA, HSA (SS) CSI VOCATIONAL HIGHER SECONDARY HIGH SCHOOL FOR DEAF, VALAKOM, KOTTARAKKARA KOLAM DISTRICT. ( ADDITIONAL R7 IS IMLEADED AS PER ORDER DATED 10.9.2004 ON I.A. 10383 / 2004) ADV. SRI.KRB.KAIMAL, SENIOR ADVOCATE FOR R5 SRI.A.N.RAJAN BABU FOR R6 SMT.K.SUNITHA VINOD FOR R6] SRI.V.N.ACHUTHA KURUP, SENIOR ADVOCATE FOR ADDL.R7 GOVERNMENT PLEADER SRI.T.K.VIPINDAS FOR R.1TO4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/02/2009 ALONG WITH WPC NO. 16553 OF 2006 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 2457 of 2004(P) APPENDIX Ext.P1: True copy of the Order No. 533/98/CM dated 1.6.1998 of the 5th respondent. Ext.P2: True copy of the judgment of this Hon'ble Court in O.P No. 15607/202 dated 12.6.2002 Ext.P3: true copy of the order No.B5/4062/02 dated 29.8.2002 of the 4th respondent. Ext.P4: true copy of the order no.A/419/02/CM dated 28.5.2002 of the 5th respondent. Ext.P5: true copy of the judgment of this Hon'ble Court in O.P 28160/2002 dated 19.6.2003. Ext.P6: true copy of the order No.B/1116/2003/CM dated 17.11.2003 of the 5th respondent. Ext.P7: True copy of the representation dated 7.1.2004 submitted by the petitioner before the Government without its annexures. Ext.P8: true copy of the provisional certificate of Master of Philosophy (History) in the examination held in 2002 in second class. Ext.P9: true copy of the representation dated 3.2.2005 submitted by the petitioner before the 5th respondent, without its Annexures. Ext.P10: True copy of the representation dated 5.2.2005 submitted by the petitioner before the Government. Ext.P11: true copy of the G.O (Ms) No.43/2005/G.Edn dated 11.2.2005 Ext.R7(1) true copy of the order No.M5-71569/2002/K.Dis. Dated 16.4.2004 of the Joint Director. Ext.R5(a): True copy of the order No.k.Dis.20125/85/B3 dated 16.7.1985 issued by the Dy.Director of Education, Kollam. Ext.R5(b): True copy of the Government Order No.G.O.(MS) No.198/79/G.Edn.dated 22.11.1979. Ext.R5(c); true copy of the Order No. B4/15731/2002/R.Dis dated 25.3.2003 issued by the Dy.Director of Education, Kollam. Ext.R5(d): true copy of the letter No.B5/10197/2003 dated 9.1.2004 of the 4th respondent to the 5th respondent. Ext.R5(e): True copy of the Reply submitted by the 5th respondent to the 4th respondent dated 21.1.2004. //true copy// HARUN-UL-RASHID, J. ---------------------------------------- W.P.(C) No. 2457 of 2004 and W.P.(C) No16553 of 2006 ---------------------------------------- Dated this the 25th day of February , 2009 JUDGMENT Writ petition No. 2457/2004 is filed by a teacher working as HSA in the CSI Vocational High School and Higher Secondary School for Deaf, Valakom, Kottarakkara. The petitioner's case is that she is eligible and qualified as per the relevant rules to be appointed as the Headmistress and then to be appointed as principal by transfer in the Higher Secondary school. It is her case that she is the only qualified teacher for appointment by transfer to the post of Principal. 2. One Smt.C.Vijayamma , the principal of the aforesaid school retired from service on superannuation on 31.5.2002 . So a permanent vacancy to the post of principal arose in the said school on 1.6.2002. The petitioner contended that despite her eligibility to hold the post of Principal, the 5th respondent- Manager had appointed the 6th respondent as Headmistress and gave charge of Principal of the school by Ext.P7 order dated 1.7.2002 in writ petition No. 16553 of 2006. Ext.P6 in W.P. (C) 2457/2004 is the order of the Corporate manager appointing Smt.Sophy Gabriel(6th respondent) by giving full additional charge of the Principal. It is the petitioner's case that the 6th respondent is not a qualified teacher to hold the post of Headmistress and therefore her W.P.(C) No. 2457 of 2004 and W.P.(C) No16553 of 2006 -2- appointment is illegal and malafide. The petitioner challenged Ext.P6 order and sought a direction to respondents 1 to 5 to appoint the petitioner as Headmistress then as the Principal in the above said school 3. W.P.(C) No. 16553/2006 was filed by the Bishop and Corporate Managers of Higher Secondary School and High Schools including special schools of the Religious denomination of South Kerala Diocese of Church of South India. The said writ petition was filed to quash of Ext.P10 order passed by the Joint Director of Public Instruction, and Ext.P11 order passed by the Government and also for a declaration that the educational institutions of South Kerala Diocese of Church of South India are entitled for minority right guaranteed under Article 30(1) of the Constitution of India. 4. Another H.S.A by name Smt. K.Santhamma who is the 6th respondent in writ petition No. 16553/2006 and additional 7th respondent in W.P.(C) 2457/2004, the petitioner in W.P.(C) No.2457/2004 Smt.L.J.Girija, and one H.S.A Sri.Ananda Mohan have put forward their respective claims for the post of Headmaster/Headmistress in the aforesaid School The District Educational Officer vide his letter dated 11.2.2004 reported that the said school, is a special school being run by L.M.S. Corporate Management, that the Headmistress Smt.C Vijayamma had retired from service on superannuation on 31.5.2002, that consequent on the retirement of the said Vijayamma the Manager appointed Smt. Sophy Gabriel a junior H.S.A as Headmistress with effect from 1.7.2002 presumably, exercising minority right under Article 30(1) of W.P.(C) No. 2457 of 2004 and W.P.(C) No16553 of 2006 -3- the Constitution of India. The claim of Smt. L.J.Girija and other teachers for appointment as Headmaster/Headmistress was ordered to be considered Accordingly the corporate Manager constituted a selection Committee and interviewed all the candidates. The Committee has opined that none of the candidates appeared for the interview are eligible for the post of Principal and decided to give full additional charge of the principal to Smt. Sophy Gabriel. 5. In the appeal filed by Smt.L.J.Girija,(petitioner in W.P.(C) No.2457/2004) the District Educational Officer,Kollam passed order vide Ext.P8 Exhibited in W.P.(C) 16553 of 2006 that she is the eligible claimant for promotion as Principal/Headmaster. The Corporate manager of L.M.S. Schools filed appeal before the Deputy Director of Education , Kollam and the D.D.E interfered with Ext.P8 Order and issued directions to the District Educational Officer to re-examine the entire issue in the light of Government Order dated 22.11.1979 and Chapter 14A of KER 6. It is the manager's case that the management enjoyed minority right, therefore the entitlement to appoint a person of their choice as Headmaster/Headmistress or principal of the School from among the qualified persons vested with the Management. The petitioner in writ petition No.2457/2004 submitted that she is the only eligible person to be appointed as Headmistress on the date of occurrence of the vacancy. According to her since she is the only candidate who had possessed prescribed qualifications as per Rule 44A(1) of Chapter XIV A of K.E.R., she alone can be appointed as the Headmistress of the School The 6th respondent in writ petition 2457/2004 also claimed to hold the W.P.(C) No. 2457 of 2004 and W.P.(C) No16553 of 2006 -4- post of Headmistress as a qualified senior teacher in the said school 7. The Government by G.O (Ms) 198/79/G.Edn dated 22.11.1979 (Ext.R5(b) in W.P.(C) 2457/2004 and Ext.P5 in W.P.(C) 16553/2006)prescribed the qualification and method of appointment of Headmasters in special schools. The required qualifications are prescribed in the said G.O. It is not disputed that that all the aforesaid teachers have acquired the qualifications mentioned in the said Government Order. The G.O. does not prescribe additional qualification of a pass in the test in Kerala Education Act and a pass in account test (Lower) conducted by the Kerala Public Service Commission. The said test qualifications are prescribed in Rule 44A(1) of Chapter XIV A KER. The prescription of qualification and method of appointment of Headmaster in special schools by the aforesaid G.O. dated 22.11.1979 is a clear answer to the dispute in question. So long as the qualifications are prescribed in the G.O for appointment of Headmasters in the special schools, it is not correct to say that in addition to the qualification prescribed in the G.O the aforesaid test qualifications must be acquired by teachers in the aided schools and Government Schools for the post of Headmaster. The Government Order is intended as a special rule prescribing the qualification and method of appointment for the post of Headmaster in a special school. 8. The Joint Director by Order dated 16.4.2004 produced as Ext.P10 in Writ petition No. 16553/2006 took the view that the qualification prescribed under Rule 44A (1) Chapter XIV A KER is applicable to the special schools and therefore all the educational and training qualifications W.P.(C) No. 2457 of 2004 and W.P.(C) No16553 of 2006 -5- and test qualifications prescribed in the KER is applicable to the post of Headmaster in a Special School The Joint director also considered the question of protection under Article 30(1) of the Constitution of India. The Joint Director ordered that “Establishment and Administer” shall be construed conjunctively that 'Establish' is a condition precedent to administer of their choice and that the absence of either of the above will nullify the claim. The Joint Director held that none of the teachers working in the school have 12 years of Graduate Service prescribed under the KER and that considering the service seniority and qualification, Smt. Santhamma is the better claimant for promotion as Headmistress. The Joint Director also ordered that since there is no special rule for the method of appointment and qualifications prescribed for an Aided Special Higher Secondary School, the question of promotion of Smt. L.J.Girija as principal cannot be entertained at this level . 9. In the representation filed before the Government by Smt.Sophy Gabriel, against Ext.P10 order, the Government again considered the issues and affirmed that Ext.P10 order passed by the Joint Director is valid. The Government also observed that none of the teachers working in the school have 12 years of Graduate service and that there is no special Rule for the method of appointment and qualifications prescribed for Aided Special Higher Secondary School and the question of promotion of Smt. L.J.Girija as Principal cannot be entertained. The very same reasons stated by the Joint Director are restated in Ext.P11 Government Order. 10. I have referred to the qualification and method of appointment W.P.(C) No. 2457 of 2004 and W.P.(C) No16553 of 2006 -6- prescribed by the Government in the Government Order MS/198/79/G.Edn dated 22.11.1979 I have also found that the above referred teachers working in the School as High School Assistants are all qualified as per the G.O dated 22.11.1979 to hold the post of Headmistress/Headmaster or Principal. Then the next question is who among the four namely the petitioner in Writ petition No. 2457/2004 or Smt.K. Santhamma or Smt.Sofy Gabriel or Sri.Ananda Mohan is entitled to be appointed as Headmistress/Headmaster or Principal in the school . According to the Management the choice of Headmaster in a minority institution is entirely within the discretion of the Management. 11. In the counter- affidavit filed by the Government in Writ petition No. 16553/2006 in Paragraph 14 it is stated that as per G.O.(Rt) No.912/2001/G.Edn dated 8.3.2001 conferred minority rights to L.M.S. Parassala was issued based on the report of Director of Public Instruction. Subsequently DPI has reported as per letter No.M5/30538/03/DPI dated 22.2.2006 that all the orders relating to minority status in respect of LMS Parassala were based on the basis of an incorrect report of Assistant Educational Officer, Parassala. Accordingly after detailed examination as per G.O.(Rt) No.2114/06/G.Edn dated 4.5.2006 Government declared that the L.M.S. Educational Institution administered by CSI Management now have no minority right under Article 30(1) of the Constitution of India. The minority right as per Article 30(1) of the Constitution of India claimed has to be established. As per G.O. (Rt) 3754/06/G.Edn. Dated 23.8.2006 Government have constituted a High Level Committee to frame the Principles and guidelines to be followed for granting minority status to W.P.(C) No. 2457 of 2004 and W.P.(C) No16553 of 2006 -7- such institutions. The petitioner has the liberty to move the Committee for redressal of grievance. 12. Be that as it may, the Deputy Director of Education, Kollam by order No.K.Dis 20125/85/B3 dated 16.7.1985 exhibited as P3 in W.P. (C) No. 16553/2006, ordered that the L.M.S. Schools are established and administered by the London Mission Society which is a religious body of the denomination of the Christian Community and thereby the Management deserves the special right for minority communities envisaged under article 30(1) of the Constitution As per the Government Circular No.52677/A1/77/G.Edn dated 25.12.1977 the management of L.M.S. Schools comes under minority schools. Such minority Schools are not always obligatory to appoint Headmasters in schools according to strict seniority. 13. I cannot agree with the stand taken by the Government in G.O. (Rt) 912/01/G.Edn dated 8.3.2001 conferring minority rights to LMS Parassala Ext.P4 in W.P.(C) 16553/2006 is the Government order referred above which confer minority right on the said institution on the basis of a circular No. 526777/A1/77/G.Edn dated 25.12.1977 It is a fact that the said School was enjoying minority status right from 1985 vide Ext.P3 in W.P.(C) 16553/2006 and continued by virtue of Ext.P4 Government Order dated 8.3.2001. The G.O. 2114/06/452/G.Edn dated 4.05.2006 mentioned in paragraph 14 is under challenge. The Government have examined the matter in detail and have accepted the minority right of the C.S.I. Management. At the same time Government affirmed that the LMS Educational institution now administered by CSI W.P.(C) No. 2457 of 2004 and W.P.(C) No16553 of 2006 -8- Management have no minority right under Article 30(1) of the Constitution of India This stand taken by the Government is very strange So long as the institution is enjoying a minority status the said status shall continue till a decision is taken by the High level committee constituted by the Government to frame the Principles and guidelines to be followed for granting minority status to such institutions in Kerala The question whether a particular institution has got minority status or not is a matter for the Government to examine in the light of guidelines and principles to be framed by a High Level Committee. So long as the question of minority status was not finally decided based on the principles and guidelines to be framed by a High Level Committee the status conferred by Government's own circular shall continue till the same is finalised. Therefore the said school is a minority institution coming under the purview of the Article 30(1) of the Constitution of India as matters stand now. In view of the findings arrived at on the basis of the facts and circumstances in these two writ petitions, I allow writ petition No. 16553/2003 and quash Ext.P10 and P11 orders . In the light of the detailed discussion above the Petitioner in writ petition No 2457/2004 is not entitled to any reliefs Accordingly W.P.(C) No. 2457 /2004 is dismissed. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- W.P.(C) No. 2457 of 2004 and W.P.(C) No16553 of 2006 ---------------------------- JUDGMENT 25th February 2009