HON'BLE SRI JUSTICE GHULAM MOHAMMED AND HON'BLE SRI JUSTICE NOOTY RAMAMOHANA RAO WRIT APPEAL NO. 962 OF 2011 Between: HMM High School, Railway Kodur ………….Appellant AND The State of Andhra Pradesh and three others ………….Respondents JUDGMENT: (Per Hon'ble Sri Justice Ghulam Mohammed) This Writ Appeal is preferred by the Management of Minority Educational Institution assailing the directions issued by the learned Single Judge while disposing of W.P.No. 1211 of 2011 preferred by it. The In-charge Headmaster of the appellant high school has retired from service on attaining the age of superannuation. According to the Management, the 4th respondent, the senior most teachers in the school has declined to accept the assignment of the Headmistress of the School. In those set of circumstances, the Management has proposed the name of one other teacher for appointment as Headmaster of the School and instead of considering the same, the District Educational Officer, Kadapa, the third respondent, through his proceedings dated 4.11.2010 appointed the 4th respondent as the Headmistress of the School. Learned Single Judge has recognised that a Minority Educational Institution has a right to appoint a Headmaster of its choice. On behalf of the 4th respondent, the claim of the appellant was disputed that she has declined to accept the assignment as the Headmistress of the School. Far from that, it is pointed out that the Management of the School is grossly divided and while one faction has appointed the 4th respondent as Headmistress and the other faction has chosen as another teacher be the Headmaster of the School, creating a false record that the 4th respondent was not willing to accept the assignment as the Headmistress of the School. In those set of circumstances, the learned Single Judge directed fresh proposals to be submitted by the Management for approval of appointment of a Headmaster for the institution. Until such exercise is completed the 4th respondent was directed to function as in-charge Headmistress, unless she expresses her unwillingness. Hence, this appeal has been preferred. Heard Sri Ch. Samson Babu, leaned counsel for the appellant as well as the learned Government Pleader for School Education and Sri T. Kumar Babu, learned counsel appearing on behalf of the 4th respondent. Learned Government Pleader for School Education has placed reliance upon the guidelines framed by the State Government in its Minorities Welfare Departments, which were published through G.O.Ms.No. 1, of the said department on 16.1.2004. It is appropriate to notice that the Government have issued several guidelines recalling the issue of Minority Status Certificate to Minority Educational Institutions and to safeguard the interest of the minority students in paragraph VII of the said G.O., general instructions have been issued, wherein it is pointed out that the Minority Educational Institutions shall follow the criteria for establishment, admissions, fee structure, appointment of teaching and non-teaching staff and salaries etc., as prescribed by the Government/concerned University/All India Council for Technical Education/National Council for Teacher Education/Medical Council of India etc., from time to time. It was also further set out that the State Government through the Departmental Machinery, are empowered to enforce the rules and regulations of the department so far as they are not repugnant to the provisions of the Constitution of India aiming at the furtherance of educational standards and excellence of education. It was also further pointed out that every Educational agency shall follow the instructions issued by the Competent Authority from time to time, which are meant to strengthen and streamline the educational standards and discipline. Therefore, the Government Pleader would contend that the Government acting through the District Educational Officer or the Regional Joint Director of Education or the Director of School Education can regulate the exercise of appointment of teaching and non-teaching staff in Minority Educational Institutions. The learned counsel for the un-official respondent No. 4, while reiterating the fact that the 4th respondent has never given any unwillingness to shoulder the responsibilities as the Headmistress of the school, would contend that the faction retain management of the appellant should not be allowed to dilute the standards of education by appointing any candidate of its choice as the Headmaster and it should be appropriate the senior most teacher should be preferred as the Headmaster/Headmistress of the institution. Learned counsel for the appellant in support of the contentions canvassed by him has placed strong reliance on the judgment rendered by the Supreme Court in N. AMMAD VS. MANAGER, EMJAY HIGH SCHOOL AND OTHERS[1]. The Supreme Court in the aforementioned judgment has held that when the Government declared an Educational Institution as a Minority Educational Institution, it has merely acknowledged and recognised a factual position that the said education institution was established and is being administered by a minority community. It merely amounts to acceptance of a legal character, which existed antecedent to such declaration. The Supreme Court has further pointed out that the dictum laid down earlier by it in KERALA EDUCALTION BILL, 1957, Re[2] and SIDHRAJBHAI SABBAI VS. STATE OF GUJARAT[3] and subsequently in AHMEDABAD ST. XAVIER’S COLLEGE SOCIETY VS. STATE OF GUJARAT[4], clearly recognized the absolute character of the guarantee held under Article 30(1) of our Constitution. However, the importance of selection and appointment of a Headmaster has been considered in paragraphs 18,19, 20, 21, 23, 24 and 26, of the judgment, which read as under: “18. Selection and appointment of Headmaster in a school (or Principal of a college) are of prime importance in administration of that educational institution. Headmaster is the key post in the running of the school. He is the hub on which all the spokes of the school are set around whom they rotate to generate result. A school is personified through its Headmaster and he is the focal point on which outsiders look at the school. A bad Headmaster can spoil the entire institution; an efficient and honest Headmaster can improve it by leaps and bounds. The functional efficacy of a school very much depends upon the efficiency and dedication of its Headmaster. This pristine precept remains unchanged despite many changes taking place in the structural patterns of education over the years. 19. How important is the post of Headmaster of a school has been pithily stated by a Full Bench of the Kerala High Court in Aldo Maria Patroni vs. E.C. Kesavan & ors. (1964 Kerala law Times 791). Chief Justice M.S. Menon has, in a style which is inimitable, stated thus : "The post of the headmaster is of pivotal importance in the file of a school. Around him wheels the tone and temper of the institution; on him depends the continuity of its traditions, the maintenance of discipline and the efficiency of its teaching. the right to choose the headmaster is perhaps the most important facet of the right to administer a school, and we must hold that the imposition of any trammel thereon – except to the extent of prescribing the requisite qualifications and experience - cannot but be considered as a violation of the right guaranteed by Article 30(1) of the Constitution. To hold otherwise will be to make the right 'a teasing illusion, a promise of unreality'." 20. The importance of the key role which a Headmaster plays in the school cannot be better delineated than that. The Nine Judge Bench in the Ahmedabad St. Xaviers Society College supra) has highlighted the importance of the role of Principal of a college. In support of the majority view in that decision K.K. Mathew, J. has observed thus: "It is upon the principal and teachers of a college that the tone and temper of an educational institution depend. On them would depend its reputation, the maintenance of discipline and its efficiency in teaching. The right to choose the principal and to have the teaching conducted by teachers appointed by the management after an overall assessment of their outlook and philosophy is perhaps the most important act of the right to administer an educational institution." 21. H.R. Khanna, J has adopted a still broader view that even selection of teachers is of great importance in the right to manage a school. Learned Judge has stated thus: "The selection and appointment of teachers for an educational institution is one of the essential ingredients of the right to manage an educational institution and the minorities can plainly be not denied such right of selection and appointment without in fringing Article 30(1).” 23. Whatever is said about the importance of the post of Principal of a college vis-a-vis the administration of the institution would in pari materia apply to the Headmaster of a school with equal force. 24. If management of the school is not given very wide freedom to choose the personnel for holding such a key post, subject of course to the restrictions regarding qualifications to be prescribed by the State, the right to administer the school would get much diminished. 26. If the said observations were meant for a non-minority school, we would not have considered its implications here. But as the observations are meant for a minority school in that case we may state at once that we are unable to concur with it. The management of a minority school is free to find out a qualified person either from the staff of the same school or from outside to fill up the vacancy. We may point out, in this context, that the Division Bench in Henry Gomes's case (supra) has quoted with approval the following observation of another earlier Division Bench decision of the same High Court in Manager Corporate E. Agency vs. State of Kerala (1990 2 Kerala Law Times 240) " "The right to appoint the Headmaster of a school or the Principal of a college, is one of prime importance in the administration of the institution. The right of the minority to administer an educational institution of its choice requires the presence of a person in whom they can repose confidence. Who will carry out their directions, and to whom they can look forward to maintain the traditions, discipline and the efficiency of the teaching. When once the pivotal position of the Headmaster is recognised, it has to be held that the right to appoint a person of its choice as Headmaster is of paramount importance to the minority, any interference with which (otherwise than by prescribing qualifications and experience) will denude the right of administration of is content, reducing it to mere husk, without the grain. Such an inroad cannot be saved as regulation which the State might impose for furthering the standards of education. (emphasis supplied) Approval of the above observations of the earlier Division Bench decision of the same court does not go in consonance with the direction issued in Henry Gomez case that the management is bound to find out a qualified teacher from among the members of its staff to be posted as headmaster of the school.” In view of the principles enunciated by the Supreme Court, as noticed in the preceding paragraphs, we are inclined to hold that the following direction of the learned Single Judge may not be warranted: “Till this exercise is completed, respondent No. 4 shall function as In-charge Headmistress, unless she express her unwillingness.” The Writ Appeal stands allowed to the extent indicated supra. There shall be no order as to costs. ________________________ GHULAM MOHAMMED, J ________________________________ NOOTY RAMAMOHANA RAO, J DATE: 23.12.2011 KA ... REGISTRAR // TRUE COPY // SECTION OFFICER To 1. 2 CD copies. [1] (1998) 6 SCC 674 [2] AIR 1958 sc 956 [3] AIR 1963 SC 540 : 1962 KER LT 135 [4] (1974) 1 SCC 717