C. Reghunathan Pillai v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR** ## **THURSDAY, THE 15TH DAY OF MARCH 2012/25TH PHALGUNA 1933** ## **WP(C).No. 32327 of 2009 (I)** **---------------------------** **PETITIONER(S):** **-------------------------** **C.REGHUNATHAN PILLAI, HIGH SCHOOL ASSISTANT (PHYSICAL SCIENCE) M.K.L.M.H.S. SCHOOL, KANNANALLUR, KOLLAM DISTRICT.** ## **BY ADVS.SRI.V.A.MUHAMMED SRI.M.SAJJAD** ## **RESPONDENT(S):** ## **---------------------------** **1. THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT,GENERAL EDUCATION DEPARTMENT, SECRETARIAT ANNEX,TRIVANDRUM.** **2. THE DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY, TRIVANDRUM-14.** **3. THE DEPUTY DIRECTOR OF EDUCATION, KOLLAM DISTRICT.** **4. THE DISTRICT EDUCATIONAL OFFICER, KOLLAM DISTRICT.** **5. THE MANAGER, M.K.L.M.H.S. SCHOOL, KANNANALLUR, KOLLAM DISTRICT.** ## ***ADDL.R6TH IMPLEADED** - ***R6: K.RADHAMANI AMMA (HSA) M.K.L.M.H.S.S, KARANANALLOOR.** - ***IS IMPLEADED AS ADDITIONAL 6TH RESPONDENT AS PER ORDER** - **DATED 30/1/10 IN I.A.NO.1187/2010.** **R1 TO R4 BY GOVERNMENT PLEADER SMT.SUNITHA VINOD ADDL.R6 BY ADV.SRI.M.V.THAMBAN SRI.R.REJI** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 5-03-2012, ALONG WITH WPC.NO.14373/2010 AND CONNECTED CASES,THE COURT ON 15/3/2012 DELIVERED THE FOLLOWING:** **sts** ## **WP(C)NO.32337/2009** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1 COPY OF THE RELEVANT PAGE OF THE SERVICE BOOK, DATED NIL** - **P2 COPY OF THE ATTENDANCE REGISTER FOR THE MONTH OF JUNE 1980 OF THE SCHOOL, DATED NIL** - **P3 COPY OF THE ATTENDANCE REGISTER OF STUDENTS DATED NIL** - **P4 COPY OF THE STAFF FIXATION ORDER NO.DIS.21208/80/B4(B) OF THE DISTRICT EDUCATIONAL OFFICER, DATED 26/10/1980.** - **P5 COPY OF THE ORDER NO.ETI/9543/09/DPI/K.DIS OF THE 2ND RESPONDENT, DATED 06/03/2009.** - **P6 COPY OF THE APPEAL MEMORANDUM OF THE PETITIONER DATED 27/03/2009** - **P7 COPY OF THE ORDER NO.42165/A3/2009/G.EDN OF THE GOVERNMENT DATED 27/07/2009.** ## **RESPONDENT'S EXHIBITS:** - **R6(A) COPY OF THE APPOINTMENT ORDER DATED 2/6/1980** - **R6(B) COPY OF THE APPOINTMENT ORDER DATED 10/6/1980** - **R6(C) COPY OF THE SENIORITY LIST DATED 01/1/1998 AS APPROVED BY THE DEO.** ## **/TRUE COPY/** ## **P.S.TO.JUDGE** **sts** ## **T.R. Ramachandran Nair, J.** **- - - - - - - - - - - - - - - - - - - - - - - -** ## **W.P.(C) Nos. 32327/2009, 14373/2010, 35761/2010 & 246/2012** **- - - - -- - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 15th day of March, 2012** ## **JUDGMENT** These writ petitions concern the claim for seniority among two High School Assistants for promotion as Headmaster/Headmistress and the claim raised by the Management of the school for protection under Article 30(1) of the Constitution of India, in exercising the right of promotion to the post of Headmaster. 2. The two claimants for the post are the petitioner in W.P.(C) No.32327/2009, Shri C. Reghunathan Pillai and the petitioner in W.P.(C) Nos.14373/2010 and 35761/2010, Smt. K. Radhamony Amma. The vacancy arose on 1.4.2010 when the then Headmaster, Shri R.I. Paul retired after attaining superannuation. Smt. Radhamony Amma claimed promotion based on her seniority and qualification. As per the pleadings in the two writ petitions filed by her, she has got continuous service from 2.6.1980 as H.S.A. and in the approved seniority list her place is at serial No.12, whereas the other petitioner, Shri Raghunathan Pillai is serial No.14, having continuous service from 10.6.1980. Initially, she was appointed as Teacher WPC.1674/2010 2 in- full additional charge in the vacancy. The same has been approved by the District Educational Officer by Ext.P5 order produced in W.P.(C) No.14373/2010. Claiming promotion, she approached the Manager. While the said writ petition was pending, the Manager appointed Shri Raghunathan Pillai as Headmaster by an order dated 9.10.2010 (produced as Ext.P6 in W.P.(C) No.35761/2010) in exercise of his right under Article 30(1) of the Constitution of India and the said order is therefore under challenge in W.P.(C) No.35761/2010. 3. In W.P.(C) No.32327/2009, the challenge made by Shri Raghunathan Pillai is against Exts.P5 and P7 orders whereby the claim for approval of appointment as H.S.A. from 2.6.1980 instead of 10.6.1980, has been rejected. 4. In W.P.(C) No.246/2012 the Manager is challenging Ext.P6 order by which the Government rejected the claims of the Management, regarding their right under Article 30(1) of the Constitution of India and directed the District Educational Officer to approve the appointment of Smt. Radhamony Amma as Headmistress with effect from 1.4.2010. 5. First I shall deal with the dispute regarding inter-se seniority between Shri Raghunathan Pillai and Smt. Radhamony Amma. According to Shri Raghunathan Pillai who is the petitioner in W.P.(C) No.32327/2009, WPC.1674/2010 3 he was actually appointed in the school on 2.6.1980 and is having more than 28 years of uninterrupted service. The appointment was approved accordingly from 10.6.1980 as per the entries in the Service Book and Ext.P1 is the copy of the relevant page of the Service Book. His case is that he has actually been appointed from 2.6.1980 and Exts.P2 and P3 are copies of the extract of attendance register of June 1980. 6. It appears that a representation was filed by him before the Director of Public Instruction which resulted in rejection as evident from Ext.P5 order. In Ext.P5 order, while rejecting his claim, mainly two reasons have been pointed out. One is that his date of commencement of service is noted as 10.6.1980 in the Service Book and the other reason is that his appointment has been approved with effect from 10.6.1980 by order dated 17.3.1981 of the District Educational Officer, Kollam and he has not filed any representation before the higher authorities to rectify the discrepancy during the last 28 years. Accordingly, it was found that in the absence of specific documentary evidence, his request cannot be considered. The said reason has been confirmed by the Government by Ext.P7. 7. Learned counsel for the petitioner in W.P.(C) No.32327/2009 submitted that the petitioner is entitled for grant of approval from 2.6.1980 WPC.1674/2010 4 based on his date of commencement of service and performance of duty. It is submitted that those aspects should have been considered by the authorities concerned. 8. It can be seen that the representation referred to in Ext.P5 in W.P. (C) No.32327/2009 filed by the petitioner is dated 15.9.2008. His approval of appointment is evident from the document produced as Ext.R6(b) by the sixth respondent which shows that the appointment itself by the Manager is from 10.6.1980 to 31.5.1981 and it was approved as per order No.B4/2910/80/K.Dis. dated 17.3.1981. The endorsement reads as follows: “Approved as probationary H.S.A. (Phy.Sc.) from 10.6.1980 till that vacancy exists.” 9. It can be seen from the pleadings of the parties that the petitioner's approval was as per an order passed in the year 1981. There was no challenge against the same at any point of time. It is clear from the appointment order itself that the appointment is in a vacancy from 10.6.1980 to 31.5.1981 which was granted approval by the District Educational Officer. Therefore, the contention raised by the petitioner that he is entitled for approval from 2.6.1980 itself cannot have any acceptance. The reasons stated by the Director of Public Instruction, are supported by the entries in the Service Book as well as the order of approval. There is no WPC.1674/2010 5 dispute regarding the entries in the Service Book and the date of approval in the appointment order. If that be so, it can be seen that the contention raised by the petitioner that too, at the fag end of his career is without any substance. The reasons to reject his claim for approval from 2.6.1980 are clearly supported by the documents. 10. Therefore, the attendance register, etc. will not help the petitioner. As rightly held by the Director of Public Instruction, he did not challenge the approval order for a long time, viz. 28 years. The Government also reiterated the position by Ext.P7, that the relevant entries in the Service Book alone are taken as documentary evidence as far as such service details are concerned and the petitioner has not raised any challenge against the order of approval for a long number of 28 years. Therefore, clearly the petitioner is not entitled for any relief in the said writ petition. 11. The claims raised by Smt. Radhamony Amma, therefore, will have to be considered. First I will consider the pleas raised by the Manager in W.P.(C) No.246/2012. Therein, the Government took the view in Ext.P6 that Smt. K. Radhamony Amma is the seniormost claimant, which fact was relied upon by the District Educational Officer in rejecting the proposal for approval of Shri Raghunathan Pillai. The added reason is that claim raised by the rival claimant, Shri Raghunathan Pillai before the Director of Public WPC.1674/2010 6 Instruction regarding the seniority has also been rejected. 12. With regard to the claim by the Manager that the institution is a minority institution, the Government was of the view that the school is not a minority institution and is not entitled to any privileges as contemplated under Article 30(1) of the Constitution of India. 13. Learned counsel for the Management, Shri M. Sajjad submitted that the school was established by his father late Alikunju Labba during 1933 as a Lower Primary School. He was a philanthropist in Kollam area. It is stated that the Apex Court in **N. Ammad v. Manager, EMJAY High School and others** {(1998) 6 SCC 674} took the view that declaration by the Government is a recognition of an existing fact. Ext.P2 is the judgment of the Apex Court in **St. Thomas U.P. School v. Commissioner and Secretary to Government** (2002 (1) KLT 655 - SC). Ext.P3 is the representation submitted by the petitioner before the Government for declaring the minority status. It was forwarded by the Director of Public Instruction to the Government by Ext.P4. Apprehending delay, the petitioner approached this Court in W.P.(C) No.25258/2011 and this Court, by Ext.P5 judgment directed to pass orders on the representation. It is therefore submitted that the order Ext.P6 cannot be supported and the petitioner was not heard in the matter also. WPC.1674/2010 7 14. Shri M.V.Thamban, learned counsel appearing for Smt. Radhamony Amma submitted that there is no documentary evidence in support of the plea of the Manager that the school is having minority right. The allegation that the school was established by his father as a minority institution, is also false. The previous Manager was a politician and was a member of the local grama panchayat. He was a freedom fighter. He was not involved in any religious activities and was purely a politician. It is therefore submitted that the plea raised is only to deny the eligible right of Smt. Radhamony for promotion and is without any bonafides. 15. I have examined the rival contentions and the principles stated in the judgments relied upon by the learned counsel for the Management. In **N. Ammad's case** {(1998) 6 SCC 674}, the principle stated is mainly regarding the legal effect of the declaration by the Government. My attention was invited to para 13 of the judgment, wherein it was held as follows: “When the Government declared the School as a minority school, it has recognised a factual position that the School was established and is being administered by a minority community.” It is therefore submitted that the non declaration of the minority right earlier will not be fatal. But still, there should be cogent material to show that the WPC.1674/2010 8 school was established and is being administered as a minority institution. 16. The facts of the above case show that the school therein was declared by the Government as a Muslim minority community school as per G.O.(Rt) 2959/94/G.Edn. The contention by the appellant was that he being the seniormost graduate teacher, should necessarily have been appointed as Headmaster. It is in that context the question was examined. The right of the minority to appoint a person of their choice, was upheld by the said judgment. But in this case there is no such declaration by the Government. 17. The next decision relied upon is **St. Thomas U.P. School's case** 2002 (1) KLT 655- SC). Therein, it was held, by relying upon the judgment of the Apex Court in **State of Kerala v. V.R.M. Provincial** {(1970) 2 SCC 417} that “the right to establish an institution would include a case where a single philanthropic individual with his own means, found the institution.” 18. It is thus argued by the learned counsel for Smt. Radhamony Amma, Shri M.V. Thamban that merely because the present Manager's father established the school, that will not confer a minority right on the present Manager/petitioner in W.P.(C) No.246/2012 unless the necessary aspects are proved to the hilt. Of course, the said observation would have helped the petitioner, if the petitioner was able to establish before the WPC.1674/2010 9 Government that the school is one established as a minority institution. 19. Even with regard to the pleadings in the case, it can be seen that the only and the main plea is that his father was a philanthropist in Kollam area. There is nothing to show that at any point of time an attempt was made by late Shri Alikunju Labba to claim minority right. He was the Manager till 14.8.1984. Even thereafter also, the Management never claimed any minority right. It is only much after the present vacancy arose and Smt. Radhamony Amnm claimed right for promotion, the Manager has sought to raise it. According to Shri Thamban, learned counsel appearing for Smt. Radhamony, the attempt is only to deny the rights of Smt. Radhamony Amma. 20. The pleadings in the writ petition are so deficient with regard to the minority status claimed by the petitioner. In ground 'e' it is stated that “petitioner's school was established by the late Al-Haj M. Alikunju Labba during 1933. He was a philanthropist in Kollam area. He was an active member of the independent movement. He declined Government job in order to join independence movement. He was a member of Thrikkovilvattom Panchayat for a pretty long period. He was scholar in religious teachings.” In spite of the fact that the Government rejected the claim, the petitioner has not substantiated his claim by any reliable WPC.1674/2010 10 documents to show that the school was established and administered in exercise of minority right. Evidently, it was established in 1933, before the coming into force of the Constitution of India itself. He was a freedom fighter on his own right and there is nothing to show that the school was established mainly for the purpose of minorities. None of the details with regard to the service, if any, rendered by the school to the minority community in the area, especially students, have been stated in the writ petition. ## 21. The Apex Court in **A.P. Christian Medical Educational Society** **v. Government of Andhra Pradesh and another** (AIR 1986 SC 1490), in para 8, had occasion to observe, while interpreting Article 30(1) of the Constitution of India, as follows: “What is important and what is imperative is that there must exist some real positive index to enable the institution to be identified as an educational institution of the minorities. In the instant case apart from the half of dozen words 'as a Christian minorities institution' occurring in one of the objects recited in the memorandum of association, there is nothing whatever, in the memorandum or the articles of association or in the actions of the society to indicate that the institution was intended to be a minority educational institution. These half a dozen words were introduced merely to found a claim on Art. 30(1). They were a smoke screen.” WPC.1674/2010 11 The Apex Court did not agree that such a description in the Memorandum of Association will be of assistance, evidently on the facts of the said case. What is important to notice that there should be some worthwhile actions taken by the institution to indicate that it was intended to be a minority institution and is being administered as such, which alone will provide the privilege under Article 30(1) of the Constitution of India. This is totally absent in this case. 22. The Apex Court in **St. Thomass U.P. School's case** (2002 (1) KLT 655- SC), laid down the principle, after examining the facts of the case, as follows: “7. Assuming that the school was established for the purpose of Art. 30(1) when P.J. Thomas started it, the reasoning is erroneous and contrary to the ratio of the decision of this Court in _State of Kerala v. V.R.M. Provincial_ (1970 (2) SCC 417) where construing Art. 30(1), Hidayatullah, C.J. said that the right to establish an institution would include a case where "a single philanthropic individual with his own means, founds the institution." Therein, the facts of the case show that the Government recognised the school as a minority institution and allowed to enjoy the said benefit. Initially it was established by one Shri P.I. Thomas as a Christian, in 1964. It was bought by the then Archbishop of Thiruvananthapuram of the Malankara Syrian Christians in 1980. From paragraphs 2 and 3 of the WPC.1674/2010 12 judgment, it can be seen that the Government has acknowledged the right under Article 30(1) of the Constitution of India. The claim for promotion as Headmaster was raised by respondents 5 and 6 by challenging the order granting approval of appointment of the person of choice by the Manager. This Court interfered with the same, by saying that the school was not established by a minority community, but by an individual and therefore, it could not rely upon Article 30(1) of the Constitution of India. The Division Bench also agreed with the said view. The Apex Court interfered with the same saying that “the right to establish an institution would include a case where a single philanthropic individual with his own means, founds the institution”. In fact, therein the Government had already recognised the school as a minority institution and therefore the facts are totally different. Article 30(1) of the Constitution was explained by the Apex Court by pointing out that even a single individual can found an institution. Therefore, that was a case wherein already there was a declaration by the Government. Hence, the fact that a single philanthropic person can establish an institution alone will not help the petitioner unless other aspects are proved to hilt. 23. A Division Bench had occasion to consider a similar case in **Haji Abdul Salam v. State of Kerala** (2004 (3) KLT 826). It was held, WPC.1674/2010 13 following the decision of the Apex Court in **St. Thomas U.P. School's case** (2002 (1) KLT 655- SC) that “the benefit of Article 30(1) is available to a single philanthropic individual if he being a member of the minority community has established and maintained an institution.” Therein, the Government rejected the claim raised by the Manager under Article 30(1) of the Constitution, to promote their own person as Headmaster. Para 6 of the judgment is extracted below: “6. We have already held that the burden is entirely on the Manager to establish that the School is a minority institution. For claiming the minority status to the school, the following points were urged before the Government. 1. On Friday mid-day interval is between 12.30 to 2.30 p.m. 2. Second Friday of every month declared as holiday instead of 2nd Saturday. 3. No open meal during Ramzan. 4. Managed by members of a Muslim family. Government took the view that the above mentioned facts would show that the school is established and run by the minority community but by an individual. Copy of the Will dated 21.2.1983 executed by the father of the writ petitioner, bye-laws and other relevant documents were produced. We are of the view those documents, first of all, would not show that the school was established and maintained by a minority community. In the facts WPC.1674/2010 14 and circumstances of the case, we are of the view, Government is justified in rejecting the claim that the school is not entitled to the benefit of Art.30(1) of the Constitution. Consequently we reject the claim of Arifa for the post of headmistress for the period from 6.1.1998 to 30.4.1998 and on subsequent periods. It is pointed out that Abraham's appointment was also not approved and the salary was not given to him. If that be the case, we are of the view, Sudharma is also entitled to be appointed as headmistress and she is entitled to get salary for the period from 6.1.1998 onwards if it had not been paid to any other person. We, therefore, uphold Ext.P10 order passed by the Government. We are of the view the petitioner's school is not entitled to protection under Art.30(1) of the Constitution of India on the basis of the materials already on record. However, this will not prevent the petitioner to move the Government if they got sufficient materials to establish the claim with which we express no opinion. The Writ Appeal is disposed of as above.” In fact, four aspects were pointed out to establish the minority right which were not accepted by the Government. This Court considered the documents produced by the petitioner including the bye-laws and was of the view that that would not show that the school was established and maintained by a minority community and accordingly it was found that the Government is justified in rejecting the claim that the school is entitled to the benefit of Article 30(1) of the Constitution. WPC.1674/2010 15 24. In the light of the above judgment, it can be seen that herein there is no positive material to support the plea of the petitioner. No documentary evidence is available and the details of activities are also not at all explained. Support is not drawn from any material worth the same. 25. Ext.P5 judgment relied upon by the learned counsel for the Manager, is a case wherein this Court directed to consider the representation. In fact, Ext.P3 representation herein, only refers to the two judgments of the Apex Court, viz. **N. Ammad's case** {(1998) 6 SCC 674} and the later judgment in **St. Thomas U.P. School's case** (2002 (1) KLT 655 - SC). A reading of Ext.P5 judgment will show that this Court only acceded to the prayer of the petitioner to consider the representation without entering into any finding on the merits of the matter. It is well settled that when, in exercise of judicial review this Court, after finding in favour of a person on the issues raised directs the competent authority to pass an order, the effect of the judgment will be different. But as far as Ext.P5 judgment is concerned, the direction is only to consider the representation without entering any finding into the merits of the matter. Thus, it will not render any help to the petitioner. Directions of this nature without adjudicating anything on the rights of the parties, is simply to alert the authority to pass an order within a specified time. The authority itself will have to consider WPC.1674/2010 16 the matter on the basis of the facts, if any, pleaded. In fact, the Government after considering various aspects, has already decided in Ext.P6 that the school is not a minority institution. Evidently, the petitioner has no other strong proof to claim minority status. 26. Therefore, even going by the pleadings of the petitioner which are lacking on the activities done by the school to get privilege under Article 30(1) of the Constitution, this Court cannot direct the Government to reconsider the matter. In fact, going by the decision of the Apex Court in **S.L. Kapoor v. Jagmohan** (AIR 1981 SC 136), this Court need not issue a futile writ simply to observe natural justice in cases where the observance of natural justice would have made no difference on the admitted or indisputed facts. Herein, it can be seen that there is no factual foundation which is raised by the petitioner to claim the minority rights. 27. It can be seen that the Manager was trying to support Shri Raghunathan Pillai whose claim for seniority was found against by the authority concerned. Evidently, Smt. Radhamony Amma has been found as senior in the seniority list as she was appointed on 2.6.1980 whereas Shri Raghuanathan Pillai was appointed on 10.6.1980. The vacancy arose on 1.4.2010. She was initially appointed as Teacher in full charge which was approved by the District Educational Officer. The said order is produced as WPC.1674/2010 17 Ext.P5 in W.P.(C) No.14373/2010 which is dated 12.4.2010. It is much after that the Manager tried to appoint Shri Raghuathan Pillai as Headmaster in exercise of his right under Article 30(1) of the Constitution of India. Even at that point of time he had not sought a declaration from the Government. The representation itself is filed as evident from Ext.P3 produced in W.P.(C) No.246/2012, is 4.7.2011. The District Educational Officer rejected the claim for approval of Shri Raghunathan Pillai as Headmaster which is evident from Ext.P6 order produced in W.P.(C) No.246/2012. Therefore, clearly this is a case where the petitioner Manager was trying to deny the rightful claim for promotion of Smt. Radhamony Amma. These aspects are also important while trying to analyse the plea raised by the Manager, now for establishing the minority status. The District Educational Officer denied the approval of Shri Raghunathan Pillai as per Ext.P9 produced in W.P.(C) No.35761/2010 which is dated 20.12.2010. Thus, the context in which the claim for minority right is rejected, is important as it is long after the rejection of approval of Shri Raghunathan Pillai also. Therefore, the Manager is not right in denying the promotion to the senior claimant. He was bound to promote the seniormost person. 28. In the light of the above, W.P.(C) Nos.32327/2009 and 246/2012 WPC.1674/2010 18 are dismissed. W.P.(C) Nos.14373/2010 & 35761/2010 are allowed. Ext.P6 in W.P.(C) No.35761/2010 is quashed. The petitioner's claim having been accepted by the Government, she will be approved as Headmistress of the school from 1.4.2010 and an appropriate order will be passed by the District Educational Officer within one month from the date of receipt of a copy of this judgment and she will be sanctioned all consequential benefits including monetary benefits. In fact, learned counsel for the Manager had submitted that Shri Raghunathan Pillai is retiring on 31.3.2012 and Smt. Radhamony Amma can be appointed from 1.4.2012. Shri M.V. Thamban, learned counsel for Smt. Radhamony Amma submitted that that will clearly defeat the rights of Smt. Radhamony to claim the benefits from 1.4.2010 and therefore the same is not agreeable. 29. It is made clear that the judgment as above will be without prejudice to the right of the Manager to produce sufficient materials before the Government, if he proposes to pursue the benefit claimed under Article 30(1) of the Constitution of India, in future. No costs. ## **(T.R. Ramachandran Nair, Judge.)** ## **kav/**