IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 24TH MARCH 2010 / 3RD CHAITHRA 1932 WA.No. 2936 of 2009() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.12077/2008 Dated 17/07/2009 .................... APPELLANT/ 7TH RESPONDENT ---------------------------- BELSI M., UPPER PRIMARY SCHOOL ASSISTANT, S.H. U.P. SCHOOL, CHULLIMANNOOR, NEDUMANGAD, THIRUVANANTHAPURAM. BY ADV. SRI.V.A.MUHAMMED SRI.K.E.HAMZA RESPONDENTS/PETITIONER AND RESPONDENTS 1 TO 6 --------------------------------------------------------------------------------- 1. THE CORPORATE MANAGEMENT OF LATIN CHATHOLIC SCHOOLS, DIOCESE OF NEYYATTINKARA, LOGOS PASTORAL CENTRE, NEYYATTINKARA, REP. BY ITS MANAGER FR.JAYARAJ P.JOICE. 2. THE STATE OF KERALA, REP. BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 3. THE DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY, THIRUVANANTHAPURAM. 4. THE DISTRICT EDUCATIONAL OFFICER, ATTINGAL, THIRUVANANTHAPURAM. 5. THE ASSISTANT EDUCATIONAL OFFICER, PALODE, THIRUVANANTHAPURAM. 6. SMT.N.Y.AMMINI, HEADMISTRESS, ST.GEORGE L.P. SCHOOL, PALODE, THIRUVANANTHAPURAM. 7. SMT.KUMARI SOBHANA, HEADMISTRESS, S.H.L.P. SCHOOL, THEVANPARA, THIRUVANANTHAPURAM. BY SR. GOVT. PLEADER SRI. BENNY GERVASIS FOR R2 TO R5 SRI. JACOB VARGHESE (SR) FOR R1 SRI. M.A.FIROZ FOR R1 SRI. GEORGE MECHERIL FOR R1 SRI. V.C.JAMES FOR R6 & R7 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 24/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.R. K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. --------------------------- W.A. No. 2936 OF 2009 -------------------------- Dated this the 24th day of March, 2010 J U D G M E N T Balakrishnan Nair, J. The appellant was the seventh respondent in the Writ Petition. The first respondent herein was the writ petitioner. The point that arises for decision in this case is whether the appointment of the sixth respondent Smt. N.Y.Ammini as Headmistress of a Lower Primary School, overlooking the claim of the appellant herein was valid for the reason that the first respondent did not follow a fair procedure as directed by this Court in Kurian Lizy v. State of Kerala (2006 (4) KLT 264 (F.B). The brief facts of the case are the following: 2. The first respondent manages a few schools, including St.George L.P. School, Palode. It is not disputed before us that the said educational agency belongs to a minority community and therefore, is entitled to the protection of Article 30(1) of the Constitution of India. A vacancy in the post of Headmaster arose in St.George L.P.School, Palode on 1.4.2004. The management W.A..No.2936/09 2 appointed Smt. N.Y.Ammini, who is admittedly junior to the appellant in the cadre of LPSA/UPSA. The management asserted their rights under Article 30(1) of the Constitution of India in making their choice. But, the motion made before the Assistant Educational Officer (AEO) for approval of the said appointment met with rejection, as evident from Ext.P2 communication of the AEO, Palode dated 6.8.2004. The Manager appealed. The appeal was dismissed by the District Educational Officer (DEO) by Ext.P3 order dated 27.5.2005. AEO and DEO took the view that the appointment cannot be approved for the reason of overlooking the claim of the appellant, who is a senior. The Manager preferred Ext.P4 revision before the Director of Public Instruction (DPI). The said revision was dismissed by Ext.P5 order dated 21.3.2006, on the ground that the management did not produce any material to show they have the protection of Article 30(1) of the Constitution of India. The management filed Ext.P6 revision before the Government, challenging Ext.P5. The Government disposed of the revision by Ext.P7 order dated 11.3.2008. The Government held that the management belongs to a minority community having the protection W.A..No.2936/09 3 of Article 30(1) of the Constitution of India. But, it was held by the Government that for not following the dictum laid down in Kurian Lizy (supra) the appointment is vitiated. Normally, the Government should have remitted the matter, directing the management to take a fresh decision in accordance with Kurian Lizy (supra). Instead of doing that, the Government ordered to appoint the appellant as Headmistress of the school. Challenging the said decision, Ext.P7 of the Government as also Exts.P2, P3 and P5, the Writ Petition was filed by the first respondent. 3. The learned Single Judge allowed the Writ Petition, by quashing the impugned orders. The learned Judge noticed that in Manager, S.S.H.S. School v. Lijin (2007 (3) KLT 663) a Division Bench of this Court observed that Kurian Lizy (supra) is no longer good law in view of the decision of the Apex Court in Secy. Malankara Syrian Catholic College v. T.Jose & Others (2007(1) SCC 386). So, it was held that for not following the dictum laid down in Kurian Lizy (supra) interference with the action of the management could not have been made. In that view of the matter, the impugned orders were quashed and the AEO was directed to W.A..No.2936/09 4 approve the appointment of Smt. N.Y.Ammini as Headmistress. When the Writ Appeal came up for hearing, the Division Bench took the view that the observation in Manager, S.S.H.S. School v. Lijin (supra) that Kurian Lizy (supra) is overruled by Secy. Malankara Syrian Catholic College v. T.Jose (supra) is not correct. Therefore, the matter was referred to the Full Bench to consider the said point. The Full Bench answered the reference by order dated 18.3.2010 in the following manner: “In the result, we answer the reference, stating that the direction in Kurian Lizy (supra), to follow a fair procedure for overlooking the seniors and appointing a junior, is not impliedly overruled by Malankara Syrian Catholic College (Supra). The Writ Appeal may be posted for hearing before the appropriate Bench, as per the roster.” In view of the above order of the Full Bench, the Writ Appeal was listed before us for final hearing. 4. Sri. V.A.Muhammed, learned counsel appearing for the appellant submitted that though the directions in Kurian Lizy (Supra) were issued subsequently, the managements of private educational institutions always have a duty to follow a fair procedure in selecting the Headmaster. In T.M.A.Pai Foundation v. State of Karnataka (2002 (8) SCC 481), the Apex Court reminded about the duty of the W.A..No.2936/09 5 minority educational institutions in this regard. The learned counsel further pointed out that the appellant has been found unsuitable, relying on Exts.P8 and P10. They are cooked up only for the purpose of this case. Ext.P10 is a document which is purportedly written long after the supersession of the appellant on 1.4.2004. So, the supersession has been made in an arbitrary and irrational manner. Further, the management did not have a case before the statutory authorities that the appellant was an unsuitable hand and was, therefore, superseded. 5. Sri. George Mecheril, learned counsel appearing for the first respondent submitted that the direction in Kurian Lizy (supra) concerning selection of Headmaster in minority educational institutions is unsustainable in law, as the same cannot stand with the absolute right of the minority educational institution under Article 30(1) of the Constitution of India, to appoint persons of its choice as Headmaster/Principal. In fact, while issuing the above directions in Kurian Lizy (supra), the Full Bench went beyond the reference made to it and therefore, the directions issued are not legally sustainable. The learned counsel also submitted that in the case on hand, the W.A..No.2936/09 6 vacancy arose on 1.4.2004 and therefore, the directions issued in Kurian Lizy (supra) on 16.8.2006 could not apply to the selection made on the 1.4.2004. Therefore, the view taken by the Government that the selection is bad for not complying with the directions issued after two years in Kurian Lizy (supra) is unsustainable in law. 6. Finally, it is pointed out that, the appellant is an unsuitable person and that will be evident from Ext.P8 communication of the Headmistress of the school. Ext.P9 is a communication issued by the AEO on a representation made by the appellant seeking permission to come late to the school. The learned counsel also relied on Ext.P10, which is a petition filed by the Headmaster of S.H.U.P. School, Chullimanoor before the first respondent pointing out the indisciplined conduct of the appellant. The learned counsel also took us through the pleadings of the first respondent on above aspect in para 5 and also Ground B of the Writ Petition. Therefore, it is pointed out that the appellant has been superseded for valid reasons. So, the learned counsel prayed for dismissing the appeal. 7. We also heard the learned senior Government Pleader Sri. Benny Gervasis, who appeared for the official respondents. The W.A..No.2936/09 7 learned Senior Government Pleader supported the impugned orders of the Government and other statutory authorities. 8. The direction issued by the Full Bench of this Court in Kurian Lizy (supra) reads as follows: “After answer to the question directly covering the issue in hand with regard to appointment of Headmaster or Principal, nothing else survives for determination. It would be unnecessary in this order in probing further the matter. We, thus, hold that the management of a minority educational institution would have freedom to appoint Headmaster or Principal. R.44(1) of the Rules of 1959 would have no control over the powers conferred under Art.30(1) of the Constitution, although such institution has necessarily to evolve a rationale procedure for selection of the Headmaster or Principal, this context, we feel that some directions should be issued to the Managements of minority educational institutions, to evolve a procedure for selection to the post of Headmaster, in the light of the observations in the answer to question 5(c) in T.M.A.Pai Foundation's case (supra) quoted above. We notice that in many cases senior teachers belonging to the minority community, which runs the institution are superseded without assigning any reason. Art.30(1) of the Constitution of India is an armour to protect the minority against the legislative and executive actions of the State, which is normally controlled by the majority. The said armour cannot be used as a weapon against other members of the same minority community. The protection under Art.30(1) is to the minority community and for the minority community. The Manager may supersede the members of other communities and also members of the minority community, who are found unsuitable for promotion to the post of Headmaster. But there may be teachers, who are, in every respect, qualified and suitable to head a minority educational institution. The management may select the best among them. The selection procedure should be fair, reasonable and transparent. The eligible members of the minority community may not have a feeling that they have been superseded without any valid grounds. So, 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 W.A..No.2936/09 8 teachers, should frame and publish regulations or bye-laws, containing a transparent procedure, governing such selection. The publication can be made in the Notice Board of the educational institution concerned and a copy of it should be available in school/college library for reference. When superseding a senior qualified member of the minority community the reasons thereof should be clear from the record. The question as framed in the beginning of this order is thus answered accordingly.” 9. We are bound by the decision in Kurian Lizy (supra). It is a Full Bench decision. So, we cannot go into the contentions raised by the learned counsel for the management against the correctness of the decision in Kurian Lizy (supra). In view of the finding of the Full Bench that Kurian Lizy (supra) is not impliedly overruled by Malankara Syrian Catholic College (supra), all minority institutions are bound to follow the directions issued in Kurian Lizy (supra), concerning selection of Headmaster/Principal in minority educational institutions, especially when, they propose to deviate from the seniority rule. In this case, we notice that the Government interfered with the selection of Smt. N.Y.Ammini only for the reason that the management did not follow the procedure as directed by this Court in Kurian Lizy (supra). But, as rightly pointed out by the learned counsel for the first respondent, the decision to supersede the appellant was taken on 1.4.2004. While taking that decision, the W.A..No.2936/09 9 management cannot follow the decision of the Full Bench of this Court, which was rendered in August 2006. So, the interference made by the Government with the decision of the management on that ground is unsustainable in law. 10. The next point to be considered is whether the decision of the Government could be sustained on other grounds. According to the management, the appellant is an unsuitable hand. According to the learned counsel for the appellant, the management did not have such a case, except before this Court. But for Kurian Lizy (supra), the right of the management to appoint any teacher of their choice, who is having the prescribed qualifications, as Headmaster is unfettered. Relying on this well-settled legal position, the management defended the case before the statutory authorities and the Government. But, ultimately when they were defeated before the Government, the Writ Petition was filed. They were, therefore, constrained to give the reasons for superseding the appellant. The appellant seriously disputes the reasons given by the management. But, we cannot under Article 226 of the Constitution of India sit in appeal over that dispute. The same being a disputed question, the W.A..No.2936/09 10 same will go against the appellant. In other words, based on the dispute raised by the appellant, we cannot interfere with the decision of the management on the choice of Headmaster, when they say that the person superseded is unsuitable. In the result, we sustain the decision of the learned Single Judge though on a different ground. We hold that the directions in Kurian Lizy (supra) have no application to the present case and no valid grounds are available for interfering with the choice of the management of Smt. N.Y.Ammini, as Headmistress of St.George L.P.School, Palode. Accordingly, the Writ Appeal fails and it is dismissed. K.BALAKRISHNAN NAIR, (JUDGE ) P.N.RAVINDRAN, (JUDGE) vps W.A..No.2936/09 11 W.A..No.2936/09 12