IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 6TH NOVEMBER 2008 / 15TH KARTHIKA 1930 WP(C).No. 946 of 2005(K) ------------------------------------- PETITIONER(S): ------------------------- E.A.PAULOSE, UPSA, MDPS - UPS, EZHUR, TIRUR P.O., MALAPPURAMA DISTRICT. BY ADV. SRI.ABRAHAM VAKKANAL (SR.) SRI.SAJI KURIACHAN SRI.M.R.NANDAKUMAR SRI.PAUL ABRAHAM VAKKANAL SMT.MERIN THALIATH RESPONDENT(S): ----------------------------- 1. DISTRICT EDUCATIONAL OFFICER, TIRUR. 2. THE ASSISTANT EDUCATIONAL OFFICER, TIRUR 3. THE MANAGER, MDPS-UPS, EZHUR, TIRUR P.O. 4. K.RAVINDRAN, HEADMASTER, MDPS-UPS, EZHUR, TIRUR P.O. GOVERNMENT PLEADER SMT. T.B.REMANI FOR R1 & R2 ADV. SRI.GOVIND K.BHARATHAN (SR.) FOR R3 & R4 SRI.MANU MOHAN FOR R3 & R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: KSS WPC.NO.946/2005 K APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE APPOINTMENT ORDER ISSUED TO THE PETITIONER DTD. 9/11/89. EXT.P2: COPY OF THE PETITION SENT BY THE PETITIONER DTD.30/12/2003. EXT.P3: COPY OF THE LETTER ISSUED BY THE MANAGER DTD. 30/04/2004. EXT.P4: COPY OF THE PETITION SENT BY THE PETITIONER TO 2ND RESPONDENT DTD. 30/04/2004. EXT.P5: COPY OF THE PETITION SENT BY THE PETITIONER TO 2ND RESPONDENT DTD. 20/05/2004. EXT.P6: COPY OF JUDGMENT IN WP(C) 15963/04 DTD. 28/05/2004. EXT.P7: COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT DTD. 2/07/2004. EXT.P8: COPY OF THE LETTER ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER DTD. 2/09/2004. EXT.P9: COPY OF THE LETTER SENT BY THE PETITIONER TO THE 1ST RESPONDENT DTD. 8/10/2004. EXT.P10: COPY OF THE ARGUMENT NOTES SUBMITTED BY PETITIONER BEFORE 1ST RESPONDENT DTD. 27/11/2004. EXT.P11: COPY OF THE ORDER PASSED BY THE 1ST RESPONDENT DTD. 14/12/2004. EXT.P12: COPY OF THE AMENDMENT TO THE BYE-LAWS OF THE SANGHOM DTD. 23/09/1964. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE KSS ANTONY DOMINIC, J ----------------------------------------------------------- W.P.(C).No.946/2005 ----------------------------------------------------------- Dated this the 6th day of November, 2008 J U D G M E N T The prayers in this writ petition are for quashing Ext.P11 and the order of appointment of the 4th respondent as Headmaster in the school, of which the 3rd respondent is the Manager. There is a further prayer to require respondents 1 to 3 to ensure that the petitioner is appointed as Headmaster. 2. The issue raised in this writ petition is mainly the conflicting claims of the petitioner and the 4th respondent to be appointed as Headmaster of MDPS-UPS, Ezhur in Malappuram District in the vacancy that arose on 1.5.2004. 3. Briefly stated, the facts of the case are that, the petitioner is a Post Graduate with B. Ed. By Ext.P1 dated 24.6.1989 order he was appointed in the school as a UPSA. He has passed all necessary departmental tests for promotion to the post of Headmaster. In so far as the 4th WP(C) No.946/2005 -2- respondent is concerned, his qualifications are SSLC and TTC and was appointed in the School as UPSA with effect from 6.6.1979. A vacancy of Headmaster arose in the school with effect from 1.5.2004 and according to the petitioner, he was entitled to be appointed to that vacancy. Ext.P2 is a representation made by the petitioner, in anticipation of the vacancy, requesting the Manager to promote and post him to the vacancy that was to arise on 1.5.2004. It is stated that, despite the fact that the petitioner had claimed the Headmaster's post, by Ext.P3 the Manager asked the retiring Headmaster to hand over charge to the 4th respondent. 4. Thereupon, the petitioner submitted Ext.P4 complaint to the AEO, but in spite of this the 4th respondent was appointed as Headmaster with effect from 1.5.2004. It is stated that immediately thereafter, the petitioner filed Ext.P5 complaint to the AEO and as orders were not passed, he approached this court by filing WP(c).No.15963/2004. That writ petition was disposed of by Ext.P6 judgment WP(C) No.946/2005 -3- directing the AEO to dispose of Ext.P5. In the meanwhile, an application made by the Manager to the AEO for conferring minority status to the school was rejected by the AEO by order dated 23.6.2004. Pursuant to Ext.P6 judgment of this court, AEO after hearing all concerned passed Ext.P7 order rejecting the appointment of the 4th respondent, and directed that appointments shall be made in terms of the Rule governing the same. 5. Despite Ext.P7, the petitioner was not appointed as Headmaster and he again complained to the AEO. There upon AEO issued Ext.P8 order informing the petitioner that an appeal against Ext.P7 order filed by the Manager was pending before the first respondent and that the decision thereon was awaited. It is stated that, thereupon, the petitioner filed Ext.P9 to the first respondent requesting for a copy of the appeal and other records, which according to him were not given. Be that as it may, a hearing took place on 27.11.2004, when the petitioner submitted Ext.P10 notes of argument as well. Finally the first respondent WP(C) No.946/2005 -4- passed Ext.P11 order dated 14.12.2004, declaring the school to be a minority institution and directing approval of the 4th respondent as Headmaster. It was at that stage, this writ petition has been filed with the prayers mentioned above. It is stated that pursuant to the interim order of stay passed by this court on 11.1.2005, the 4th respondent is still continuing as teacher in charge. 6. Senior counsel for the petitioner raised two contentions. One is that the first respondent had no jurisdiction for declaring the minority status of the 3rd respondent. The 2nd contention is that even in spite of a minority institution, the person who is to be appointed as Headmaster should satisfy the requirements of rule 45 Chapter XIV-A KER. In support of the contentions he is relied on the decisions in Evan's UP School V. State of Kerala(2001(1) KLT 849), Manager AMUP School V. State of Kerala(2001(1)KLT 155), Manager, Philipose Mar Dinishus UP School V. State of Kerala(2001(3) KLT shortnote 23(case No.31) and Secy., Malankara Syrian Catholic College V. WP(C) No.946/2005 -5- T. Jose and others (2007(1) SCC 386). 7. I heard the senior counsel appearing for respondents 3 and 4. He contends that, in view of Article 30 of the Constitution, once a teacher is found to be qualified for the post, irrespective of Rule 45 Chapter XIV-A KER, they are entitled to appoint him as Headmaster. It was also contended that the declaration of the minority status as per Ext.P11, cannot be challenged in this writ petition on the ground of want of jurisdiction for the reason that the order conferring power on the first respondent to declare minority status is not under challenge. Learned senior counsel also relied on the apex court judgment in Secy., Malankara Syrian Catholic College V. T. Jose and others (2007(1)SCC 386). Apart from that, reliance was placed on the apex court judgment in Ammad V. Emjay High School (1998(2)KLT 828) and this court's judgment in Rev. Fr. I. Daniel V. Director of Public Instruction (1965 KLT 927). WP(C) No.946/2005 -6- 8. As already stated two issues arise for consideration. First one is regarding the minority status declared by Ext.P11 and the other is regarding the correctness of the order of the first respondent directing approval of the appointment of the 4th respondent. As regards the minority status conferred on the 3rd respondent by Ext.P11 order is concerned, according to the learned counsel appearing for the petitioner, minority status can be declared only by the Government and not by the 3rd respondent. He placed reliance on the Division Bench judgment of this court in Evan's UP School V. State of Kerala (2001(1) KLT 849). A reading of that judgment shows that, that was a case where Director of Public Instruction had declared minority status of the school. However, in view of the several conflicting orders that come to the notice of this court, and since there are no rules or orders conferring jurisdiction on any authority to declare the minority status, this court took the view that Government would be the more competent authority to WP(C) No.946/2005 -7- determine a claim raised with regard to the minority status of an institution. 9. However, the fact remains that, in both Exts.P7 and P11 orders passed by the AEO and the first respondent, reference is made to Govt. letter No.13099/F2/99/G.Edn. dated 5.9.2000 issued by the Secretary to Government informing that there is no necessity that Government itself should declare an institution as minority institution and that the minority could represent to the concerned educational officer at the time of appointment of Headmaster of the School. This Government order is not seen referred by the Division Bench when the judgment referred to above was rendered. This Government circular is not under challenge in this writ petition. So long as the order dated 5.9.2000 is not under challenge, I am not persuaded to accept the contention raised by the learned counsel for the petitioner that the first respondent lacks jurisdiction to decide the issue of the minority status of the 3rd respondent. WP(C) No.946/2005 -8- 10. The second question that remains to be considered is regarding the correctness of Ext.P11 order directing approval of the 4th respondent. Admittedly, the petitioner is a post graduate with B. Ed. In so far as the 4th respondent is concerned, his qualification is SSLC with TTC. It is also the admitted position that both are test qualified and that the 4th respondent is senior to the petitioner by 10 years. As already noticed, the claim of the manager is that, the 4th respondent is qualified to be appointed as teacher and therefore the school being a minority institution they are entitled to appoint any one of the qualified teachers as Headmaster. It is stated that in the matter of appointment of Headmaster in a minority school, the choice of the minority educational institution is not fettered either by Rule 44 or Rule 45 of Chapter XIV-A KER. 11. On the other hand the counsel for the petitioner contended that this contention is wrong for the reason that in terms of the qualification laid down by Rule 45 Chapter IXV-A KER, it is the petitioner who is entitled to be WP(C) No.946/2005 -9- appointed as the Headmaster of the school. 12. This controversy has to be resolved taking into account the provisions contained in Rule 45 Chapter XIV-A KER and the authorities that were cited by both sides. Rule 45 Chapter XIV-A KER reads as thus; “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 5 years experience in teaching{ after acquisition of B. Ed degree} he may be appointed as Headmaster provided he has got a service equal to 1/2 of the period of service of the senior most undergraduate 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 SSLC or equivalent and {TTC issued by the Board of Public Examination Kerala or T.C.H issued by the Karnataka Secondary Education Examination Board, Bangalore, or a passing pre-degree examination with Pedagogy as a elective subject conducted by the WP(C) No.946/2005 -10- University of Kerala or any other equivalent training qualification prescribed for appointment as Primary School Assistant} may be appointed.” 13. Since I have already upheld Ext.P11 to the extent it declared Minority status of the 3rd respondent, I will have to answer to what extent the provisions in Rule 45 of Chapter XIV-A KER can have relevance in so far as the school is concerned. In my view, this question is already answered by this court in the judgments cited in the court. 14. In this connection I shall make reference to the decisions of the Apex Court in Ammad V. Emjay High School (1998(2)KLT 828) and Secy. Malankara Syrian Catholic College V. T. Jose and others (2007(1) SCC 386). The decision in Ammad Vs. Emjay High School (1998(2) KLT 828) dealing with the right of minority educational institutions to make appointment to the post of Headmaster of a school, it has been held by the Apex Court that, if the management of such a school is not given very wide freedom to choose personnel for holding the post of WP(C) No.946/2005 -11- Headmaster, subject of course to the restrictions regarding qualifications be prescribed by the statute, the right to administer the school also would get much diminished. The issue of minority's right to appoint Principal of a College, in the context of Section 57(3) of the Kerala University Act arose for consideration in Secretary, Malankara Syrian Catholic College Vs. T.Jose and Others, (2007(1) SCC 386). Paragraphs 19, 21, 28 & 29 of the judgment, being relevant, are extracted below for reference:- “Para 19. The general principles relating to establishment and administration of educational institution by minorities may be summarised thus: (i) The right of minorities to establish and administer educational institutions of their choice comprises the following rights: (a) to choose its governing body in whom the founders of the institution have faith and confidence to conduct and manage the affairs of the institution; (b) to appoint teaching staff (teachers/lecturers and Headmasters/Principles) as also non-teaching staff, and to take action if there is dereliction of duty on the part of any of its employees; (c) to admit eligible students of their choice and to set up a reasonable fee structure; WP(C) No.946/2005 -12- (d) to use its properties and assets for the benefit of the institution. (ii) The right conferred on minorities under Article 30 is only to ensure equality with the majority and not intended to place the minorities in a more advantageous position vis-a-vis the majority. There is no reverse discrimination in favour of minorities. The general laws of the land relating to national interest, national security, social welfare, public order, morality, health, sanitation, taxation, etc. applicable to all, will equally apply to minority institutions also. (iii) The right to establish and administer educational institutions is not absolute. Nor does it include the right to maladminister. There can be regulatory measures for ensuring educational character and standards and maintaining academic excellence. There can be checks on administration as are necessary to ensure that the administration is efficient and sound, so as to serve the academic needs of the institution. Regulations made by the State concerning generally the welfare of students and teachers, regulations laying down eligibility criteria and qualifications for appointment, as also conditions of service of employees (both teaching and non-teaching), regulations to prevent exploitation or oppression of employees, and regulations prescribing syllabus and curriculum of study fall under this category. Such regulations do not in any manner interfere with the right under Article 30(1). (iv) Subject to the eligibility conditions/qualifications prescribed by the State being met, the unaided minority WP(C) No.946/2005 -13- educational institutions will have the freedom to appoint teachers / lecturers by adopting any rational procedure of selection. (v) Extension of aid by the State does not alter the nature and character of the minority educational institution. Conditions can be imposed by the State to ensure proper utilisation of the aid, without however diluting or abridging the right under Article 30(1). -------- ---------- ---------- ----------- Para 21 : We may also recapitulate the extent of regulation by the State, permissible in respect of employees of minority educational institutions receiving aid from the State, as clarified and crystallised in T.M.A.Pai. The State can prescribe : (i) the minimum qualifications, experience and other criteria bearing on merit, for making appointments. (ii) the service conditions of employees without interfering with the overall administrative control by the management over the staff, (iii) a mechanism for redressal of the grievances of the employees, (iv) the conditions for the proper utilisation of the aid by the educational institutions, without abridging or diluting the right to establish and administer educational institutions. WP(C) No.946/2005 -14- In other words, all laws made by the State to regulate the administration of educational institutions and grant of aid will apply to minority educational institutions also. But if any such regulations interfere with the overall administrative control by the management over the staff, or abridges/ dilutes, in any other manner, the right to establish and administer educational institutions, such regulations, to that extent, will be inapplicable to minority institutions. -------- ---------- ---------- ----------- para 28 : The appellant contends that the protection extended by Article 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 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 WP(C) No.946/2005 -15- the right of the management under Article 30(1) to establish and administer educational institutions. Para 29: Section 57(3) of the Act provides that the post of Principal when filled by promotion is to be made on the basis of seniority-cum-fitness. Section 57(3) trammels the right of the management to take note of merit of the candidate or the outlook and philosophy of the candidate which will determine whether he is supportive of the objects of the institution. Such a provision clearly interferes with the right of the minority management to have a person of their choice as head of the institution and thus violates Article 30(1). Section 57(3) of the Act cannot therefore apply to minority-run educational institutions even if they are aided.” A reading of these paragraphs show that though minority educational institutions have been given the right to select a Principal of its choice, such entitlement to make appointment is subject to the condition that he/she possessed the qualifications prescribed for the post. The Section requires that for the appointment of Principal, seniority cum fitness should be followed, which has found to be offending to the rights of minority educational institutions. Thus, the law is settled that though minority WP(C) No.946/2005 -16- educational institutions have the absolute freedom to choose the best candidate of its choice for appointment as Headmaster, such candidate should be one meeting the specifications of the statute, in so far as qualifications are concerned. 15. It is in this context, the next issue to be considered is the impact of Rule 45 Chapter XIV-A K.E.R. I do not think, I need labour much on this issue, as this Rule has already been interpreted by a learned Single Judge of this Court in the decision in Manager, Philipose Mar Dinishus U.P.School Vs. State of Kerala (2001(3) KLT Short Note 31, at page 23), which is extracted below for reference :- “Whenever the post of Headmaster of an Upper Primary School becomes vacant, “it shall be filled up from among the qualified teachers on the staff of the school under the Educational Agency”. What shall be the qualification is mentioned in the subsequent sentence in the rule. The second sentence reads that, if there is a Graduate teacher with at least 5 years experience in teaching after acquisition of B.Ed degree, he may be appointed as Headmaster provided he has got service equal to half of WP(C) No.946/2005 -17- the period of service of the senior most under-graduate teacher. The third sentence further provides that “if graduate teachers with aforesaid qualification and service are not available”, teachers with SSLC, TTC, TCH or other equivalent training qualification prescribed for appointment as a Primary School Assistant may be appointed. Thus as per the last sentence in the rule, the manager can appoint an under graduate only “if graduate teachers with the aforesaid qualifications” as mentioned in the second sentence in the rule is not available. That means, non- graduate become qualified for the post of headmaster of U.P.Schools only in the absence of graduate teachers with the essential requirements on the staff of the school. It further means that when such a graduate teacher is available on the staff of the school, he has to be appointed as headmaster. This is therefore a provision prescribing the qualification for the post of Headmaster.” Though this judgment has been rendered in the context of a minority educational institution, the learned Judge has held that the effect of the Rule is that the Manager can appoint an undergraduate teacher as Headmaster, only if graduate with the aforesaid qualifications as mentioned in the 2nd sentence of the rule is not available, and that a non- graduate teacher becomes qualified for the post of Headmaster only in the absence of a graduate teacher. It is WP(C) No.946/2005 -18- further held that, when a graduate teacher is available, he has to be appointed as Headmaster. Thus, the effect of Rule 45 is such that, if a graduate teacher is available, he has the right to be appointed, and the right of the management is to choose one among the graduate teachers for appointment to the post of Headmaster. 16. In this case, the 4th respondent, who is not a graduate teacher, has been appointed as Headmaster, and such appointment has been made at a time, when the petitioner, a graduate teacher, is available. However, the learned counsel for the Management contended for the position that the Rule only provides preference to graduate teachers and that such preference, is not available when it comes to a minority educational institution. 17. In this context, the learned counsel relied on the decision of this Court in Rev.Fr.I.Daniel Vs. Director of Public Instruction (1965 KLT 927), wherein it has been held that Rule 45 only lays down the circumstances under which a graduate teacher is entitled to preference for WP(C) No.946/2005 -19- appointment to the post of Headmaster in a school, where there is a non-graduate teacher, who is senior to the graduate teacher, and that it has nothing to do with the qualification necessary for appointment to the post of Headmaster. It is stated that Rule 45 would not stand in the way of the Manager to make appointment exercising the minority rights that are guaranteed under the Constitution of India. However, while understanding this judgment, I must bear in mind that Rule 45 as it stood then has been substituted by G.O.P.No.14771/S/Edn. dated 22/10/1971 and what was available in the statute book as on 01/05/2004 when the vacancy arose is the rule as extracted above. Since the judgment in Manager, Philipose Mar Dinishus U.P.School Vs. State of Kerala (2001(3) KLT Short Note 31, at page 23) has been rendered in the context of the Rule as on 01/05/2004, I would respectfully follow that judgment and rest my conclusion on that basis. The inevitable conclusion is that the petitioner ought to have been appointed as Headmaster in the vacancy that arose on WP(C) No.946/2005 -20- 01/05/2004 and, therefore, the direction to the contrary in Ext.P11 cannot be sustained. Therefore, Ext.P11 to the extent it directs approval of the 4th respondent as Headmaster cannot be sustained, and is set aside. 18. Therefore, this writ petition is disposed of quashing Ext.P11 to the extent it directs approval for 4th respondent as Headmaster against the vacancy that arose in the 3rd respondent school on 01/05/2004. There will be direction to the respondents 1 to 3 to appoint the petitioner in