A. Ramayyan Nadar v. State of Kerala and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **TUESDAY, THE 18TH DAY OF AUGUST 2020 / 27TH SRAVANA, 1942** ## **WP(C).No.3734 OF 2012(N)** ## **PETITIONER:** **A.RAMAYYAN NADAR, AGED 64 YEARS R.V.BHAVAN, VAMANAPURAM, VAMANAPURAM.P.O., THIRUVANANTHAPURAM-695 606. (HIGH SCHOOL ASSISTANT (MALAYALAM) ST.JOSEPH'S HIGHER SECONDARY SCHOOL, PULINCUNNOO.P.O., ALAPPUZHA (RETIRED).** **BY ADVS.SRI.B.RAGHUNATHAN SRI.G.GOPALAKRISHNA PILLAI SRI.R.SRINATH SRI.VIPIN VARGHESE** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.695 001.** - **2 JAGATHI, THIRUVANANTHAPURAM-695 014.** - **3 DEPUTY DIRECTOR OF EDUCATION ALAPPUZHA-688 001.** - **4 DISTRICT EDUCATIONAL OFFICER, CHERTHALA-688 524.** WPC.No.3734/2012 -2- **5 MANAGER CORPORATE EDUCATIONAL AGENCY OF CMI SCHOOLS, PROVINCE OF ST.JOSEPH, THIRUVANANTHAPURAM.695 004.** **R1TO R4 BY GOVERNMENT PLEADER SMT G RANJITHA R5 BY ADV. SRI.JIJI THOMAS R5 BY ADV. SRI.TONY GEORGE KANNANTHANAM** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WPC.No.3734/2012 -3- ## **JUDGMENT** ## **Dated this the 18[th] day of August, 2020** The petitioner joined service as High School Assistant (HSA) in a school under the management of the 5[th] respondent. Admittedly, the school belongs to a minority community and is regarded as a minority institution. The petitioner joined service on 25.7.1980. While the petitioner was working as HSA, he was temporarily promoted and appointed to the post of Headmaster in St.Joseph’s Higher Secondary School in the leave vacancy of Fr. Thomas Joseph for the period from 1.4.2001 to 31.7.2001. He was reverted to the post of HSA on 1.8.2001. The petitioner retired on attaining the age of superannuation on 31.5.2002. 2. While the petitioner was working as HSA, a vacancy of Headmaster arose in Mother Theresas Higher Secondary School, under the same management. The vacancy arose on 31.3.2002. According to the petitioner, even though he was the senior most eligible candidate, one Georgekutty Antony was appointed in that WPC.No.3734/2012 -4- vacancy. The petitioner submits that he had represented to the 3[rd] and 4[th] respondents by submitting Exhibits P4 and P3 representations, putting forth his claim, but the same were not considered. Several years after his retirement, the petitioner submitted a representation on 15.6.2010 to the 1[st] respondent. He thereafter approached this Court by filing W.P.(C) No.12131 of 2011, which was disposed of by Exhibit P6 judgment, directing the 1[st] respondent to take a decision on the representation submitted by the petitioner. The petitioner thereafter was heard by the 1[st] respondent and by Exhibit P8 order, his claim was rejected, finding that in the case of minority institutions, Article 30(1) of the Constitution of India gives the management the right to appointment persons of their choice to the post of Headmaster and such institutions are not bound to appoint the senior most person as Headmaster. The 1[st] respondent ordered that since the petitioner has no right to be appointed as Headmaster, it follows that he cannot claim any notional promotion to the post of Headmaster and make a request for WPC.No.3734/2012 -5- retirement benefits on the basis of such notional promotion. The petitioner has challenged Exhibit P8 order of the 1[st] respondent in this writ petition. 3. Heard Sri B.Reghunathan on behalf of the petitioner, Smt.G Renjita, Government Pleader on behalf of respondents 1 to 4 and Sri Thomas George on behalf of the 5[th] respondent. 4. The counsel for the petitioner relies on a Full Bench judgment of this Court in **Kurian Lizy Vs. State of Kerala,** reported in **[2006 (4) KLT 264]** , to contend that even though a minority educational institution has freedom to appoint Headmaster or Principal of their choice, such institution has necessarily to evolve a rational procedure for selection and should frame and publish regulations or bye laws, containing a transparent procedure governing such selection. According to the petitioner, no such method was followed while overlooking his seniority and appointing another person as Headmaster in a vacancy which arose on 31.3.2002. The counsel for the 5[th] respondent submits that the petitioner never challenged the WPC.No.3734/2012 -6- appointment, when Sri Georgekutty Antony was appointed as Headmaster, overlooking his seniority. A claim was put forth after 8 years of his retirement. Apart from that, he also submits that the issue is no longer res integra and is governed by subsequent decisions of the Hon'ble Supreme Court. 5. In **Manager, Corporate Educational Agency vs.** **James Matthew and others,** reported in **[(2017) 15 SCC 595]** , the Hon'ble Supreme Court, after referring to several decisions on the subject held as follows. “5. As far as the selection and appointment of the Headmaster or the Principal, as the case may be, is concerned, this Court in _Malankara Syrian Catholic College_ v. _T. Jose_ [(2007) 1 SCC 386] after referring to all the celebrated cases on minority rights, viz. _T.M.A. Pai Foundation_ v. _State of Karnataka_ [(2002) 8 SCC 481], _P.A. Inamdar_ v. _State of Maharashtra_ [(2005) 6 SCC 537], _State of Kerala_ v. _Very Rev. Mother Provincial_ [(1970) 2 SCC 417], _Ahmedabad St. Xavier's College Society_ v. _State of Gujarat_ [(1974) 1 SCC 717], _Frank Anthony Public School Employees' Assn._ v. _Union of India_ [(1986) 4 SCC 707], _Sidhrajbhai Sabhai_ v. _State of Gujarat_ [(1963) 3 SCR 837], _D.A.V. College_ v. _State_ WPC.No.3734/2012 -7- _of Punjab_ [(1971) 2 SCC 269], _All Saints High School_ v. _State of A.P._ [(1980) 2 SCC 478] , _St. Stephen's College_ v. _University of Delhi_ [(1992) 1 SCC 558], _N. Ammad_ v. _Emjay High School_ [(1998) 6 SCC 674], _Board of Secondary Education & Teachers Training_ v. _Director of Public Instructions_ [(1998) 8 SCC 555] has held in Paras 27 to 29 that the management of a minority aided educational institution is free to appoint the Headmaster or the Principal, as the case may be, of its own choice and has no obligation to appoint the available senior qualified member from the same community. Paras 27, 28 and 29 are quoted hereunder: ( _Malankara Syrian case [_ (2007) 1 SCC 386] “ _27._ It is thus clear that the freedom to choose the person to be appointed as Principal has always been recognised as a vital facet of the right to administer the educational institution. This has not been, in any way, diluted or altered by _T.M.A. Pai Foundation_ v. _State of Karnataka_ , [(2002) 8 SCC 481]. Having regard to the key role played by the Principal in the management and administration of the educational institution, there can be no doubt that the right to choose the Principal is an important part of the right of administration and even WPC.No.3734/2012 -8- if the institution is aided, there can be no interference with the said right. The fact that the post of the Principal/Headmaster is also covered by State aid will make no difference. _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_ WPC.No.3734/2012 -9- _teaching staff, even those belonging to the same community, should have to yield to the right of the management under Article 30(1) to establish and administer educational institutions_ . 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.” 6. The emerging position is that, once the management of a minority educational institution makes a conscious choice of a qualified person from the minority community to lead the institution, either as the Headmaster or Principal, the court cannot go into the WPC.No.3734/2012 -10- merits of the choice or the rationality or propriety of the process of choice. In that regard, the right under Article 30(1) is absolute.” 6. In the light of the above judgment, it is not possible to hold that the 5[th] respondent could not have overlooked the seniority of the petitioner while appointing Sri Georgekutty Antony as Headmaster, and that too at this distance of time. The petitioner did not want to invite any decision at the time he was overlooked and another person was chosen as the Headmaster. He continued in service and retired on superannuation. It is 8 years later that he has put forth a claim that the 5[th] respondent did not Act in accordance with law. Possibly, he awoke from his slumber only after coming to know of the decision of the Full Bench referred above. The decision of the Full Bench, which suggests a transparent procedure, came much after the retirement of the petitioner and it is not possible to examine retrospectively whether the procedure stated in a judgment of 2006 was followed while making a selection in 2002. WPC.No.3734/2012 -11- The writ petition fails and is hence dismissed. The parties will bear their respective costs. Sd/- **T.R. RAVI** **JUDGE** dsn ## **APPENDIX OF WP(C)3734/2012** **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER DATED 31.3.2001 ISSUED BY THE 5TH RESPONDENT. EXHIBIT P2 TRUE COPY OF THE ORDER DATED 31-03-2001 OF THE 5TH RESPONDENT EXHIBIT P3 TRUE COPY OF THE REPRESENTATION DATED 1-4-2002 TO THE 4TH RESPONDENT. EXHIBIT P4 TRUE COPY OF THE LETTER DATED 9-4-2002 OF THE 3RD RESPONDENT TO THE PETITIONER EXHIBIT P5 TRUE COPY OF THE REPRESENTATION DATED 15-062010 TO THE 1ST RESPONDENT.** **EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 12-4-2011 IN W.P.(c) 12131 OF 2011-N EXHIBIT P7 TRUE COPY OF THE REPRESENTATION DATED 15-6-2011 TO THE 1ST RESPONDENT. EXHIBIT P8 TRUE COPY OF GO (Rt) NO. 4619/2011/G.EDN DATED 29-10-2011**