Elsamma John v. State of Kerala and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE MONDAY, THE 12TH DAY OF OCTOBER 2015/20TH ASWINA, 1937 WP(C).No. 21920 of 2006 (H) ---------------------------- PETITIONER: ---------- ELSAMMA JOHN, H.S.A. (PHYSICAL SCIENCE), C.C.P.L.M. ANGLO INDIAN HIGH SCHOOL, PERUMANOOR ERNAKULAM. BY ADV. SRI.P.SANTHOSH KUMAR (PANAMPALLI NAGAR) RESPONDENTS: ----------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, GENERAL EDUCATION DEPARTMENT GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DEPUTY DIRECTOR OF EDUCATION, ERNAKULAM. 3. THE DISTRICT EDUCATIONAL OFFICER, ERNAKULAM. 4. THE MANAGER, C.C.P.L.M. ANGLO INDIAN HIGH SCHOOL, PERUMANOOR ERNAKULAM. 5. SMT. JESSENTHA AUREO, HEADMISTRESS, C.C.P.L.M. ANGLO INDIAN HIGH SCHOOL PERUMANOOR, ERNAKULAM. R5 BY ADV.T.R.MADHU BY GOVERNMENT PLEADER SRI.VIJU THOMAS THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/12/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **APPENDIX TO W.P.C.No.21920 OF 2006** ## **PETITIONER'S EXHIBITS:** EXT.P1: TRUE COPY OF THE ORDER OF THE 5TH RESPONDENT BEARING NO.B6-3449/2005/K.Dis DATED 5-8-2005. EXT.P2: TRUE COPY OF THE JUDGMENT IN W.P.C.No.6937/2006-A DATED 9-3-2006 OF THE HON'BLE HIGH COURT OF KERALA. EXT.P3: TRUE COPY OF THE GO Rt.3015/06/GE DATED 17-07-2006. EXT.P4: TRUE COPY OF THE JUDGMENT IN W.A.NO.1163/2002 DATED 7-62005 OF THE HON'BLE HIGH COURT OF KERALA. EXT.P5: TRUE COPY OF THE OBJCTION FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED NIL. EXT.P6: TRUE COPY OF THE GOVERNMENT ORDER NO.GO Rt.NO.4317/06/GE DATED 4-10-2006 DECLARING C.C.P.L.M. SCHOOL IS A MINORITY STATUS INSTITUTION AND THEREBY APPROVED THE ILLEGAL APPOINTMENT OF 5TH RESPONDENT. EXT.P7: TRUE COPY OF THE GOVERNMENT ORDER GO (Rt) NO.4317/06/GE DT.4/10/2006. EXT.P7: RELEVANT PORTION OF THE SENIORITY LIST OF HSA AS ON 1-289. EXT.P8: RELEVANT PORTION OF THE SENIORITY LIST OF HSA AS ON 1-103. ## **4TH RESPONDENT'S EXHIBITS:** EXT.R4(a): A TRUE COPY OF GO Rt NO.4317/06/GE. EXT.R4(b): A TRUE COPY OF THE ORDER NO.K.DIS.F5-90432/88 ISSUED BY THE DPI. // True Copy// PA to Judge ## **A.M.SHAFFIQUE, J * * * * * * * * * * * *** W.P.C.No.21920 of 2006 ---------------------------------------Dated this the 8[th] day of April 2016 ## **J U D G M E N T** This writ petition has been filed challenging Ext.P3 and for a direction to declare that the petitioner is the only qualified person to be appointed as Headmistress in the School managed by the 4[th] respondent in preference with the 5[th] respondent. 2. Petitioner's case is that petitioner was working as High School Assistant (H.S.A) in the C.C.P.L.M Anglo Indian High School. She has continuous service as H.S.A and had passed Account test (Lower). There arose a vacancy of Headmaster on 01/04/2005. As on the said date, petitioner was the only qualified person, being the senior most H.SA to be appointed as Head Mistress. However, the 4[th] respondent appointed the 5[th] respondent as Head Mistress with effect from 07/04/2005. 3. Petitioner has a case that the 5[th] respondent did not have the qualification as on the date when the vacancy had arisen, that is 01/04/2005. Hence the petitioner submitted a representation to the District Educational Officer (DEO). The DEO passed an order dated 05/08/2005 directing the Manager to W.P.C.No.21920/2006 2 promote the petitioner as Head Mistress with effect from 01/04/2005 and the appointment of the 5[th] respondent was rejected. The 5[th] respondent filed a review petition before the Government under Rule 92. The Manager preferred an appeal before the Deputy Director of Educations (DDE) wherein further proceedings were kept in abeyance. According to the petitioner, the 5[th] respondent passed Account Test (Lower) only on 04/04/2005, which is an essential qualification. Since the revision was pending before the Government, petitioner filed W.P.C.No.6937/2006, which was disposed of as per the judgment dated 09/03/2006 directing the Government to pass orders on the review petition within two months. Government passed Ext.P3 order dated 17/07/2006 declaring that the appointment of the 5[th] respondent as Head Master with effect from 07/05/2005 is required to be approved as per Rule 182 of the Rules for Kerala State Anglo Indian Schools issued as per notification dated 28/10/1974. Subsequently, the Government had issued an order dated 04/10/2006 modifying Ext.P3 order clarifying that the 4[th] respondent School is entitled to get minority status and they had appointed the 5[th] respondent in terms with Article 30(1) of the W.P.C.No.21920/2006 3 Constitution. Petitioner challenged the same inter alia contending that in terms of Rule 43 read with Rule 44A and 44B of the KER, promotion shall be in accordance with seniority and the qualification has to be taken into consideration as on the date of occurrence of the vacancy and not from the date of appointment. 4. Counter affidavit has been filed by the 5[th] respondent inter alia contending that being a minority institution, the 4[th] respondent was justified in appointing the 5[th] respondent as Head Mistress. It is stated that the benefit available to the Minority Institution under Article 30(1) cannot be taken away. The very appointment of Head Master is purely a discretion of the Manager and merely for the reason that the 5[th] respondent had passed the qualifying test only on 04/04/2005 by itself will not preclude the Manager in exercising his right to appoint her in the post of Head Mistress. 5. The short question involved in the writ petition is whether the Government was justified in issuing Exts.P3 and P4 order when the 5[th] respondent was not qualified to be appointed as Head Mistress as on the date when the vacancy had arisen. W.P.C.No.21920/2006 4 6. It cannot be disputed that as on the date when the vacancy had arisen, the only person who was qualified for the post of Head Master was the petitioner. In the judgment in **Manager v. H.M.High School v. State of Kerala** [1987(2) KLT 555], it is held that qualification shall be as on the date of occurrence of vacancy and not on the date of appointment. The qualification prescribed by the Rules are applicable to minority institutions as well **[R.T.Rev.Dr.Aldo Maru Patroni v. AEO, Telicherry]** _(1974 KLT 78)]_ . In **Padmanabhan Nair v. Dy.Director** [1991(1) KLT 337] a Full Bench of this Court held that, if no one is qualified at the time of occurrence of the vacancy, then the person who first becomes qualified thereafter shall be entitled to be considered for the purpose of appointment. 7. No doubt, being a minority institution, Management has the right to appoint any qualified person of his choice as held in the Full Bench judgment in **Kurian Lizy v. State of Kerala** [(2006) 4 KLT 264]. However, the management has to evolve a selection process if there are several qualified candidates. 8. The law governing the right of Minority Educational Institutions to appoint Headmaster of their choice is well settled. W.P.C.No.21920/2006 5 The Full Bench has held that management of a Minority Educational Institution would have freedom to appoint Headmaster or Principal. Rule 44(1) of the Kerala Educational Rules, 1959 would have no control over the powers conferred under Article 30(1) of the Constitution of India. It is, however, observed that such institution has to evolve a rationale procedure for selection of Headmaster or Principal. The Full Bench further observed that in order to evolve a procedure for selection to the post of Headmaster, the Court had prescribed certain guidelines. It is observed that there may be teachers, who are in every respect qualified and suitable to head a Minority Educational Institution. The Management has to select best among them. The selection procedure should be fair reasonable and transparent. The purpose is also mentioned that the eligible members of the minority community may not have a feeling that they have been superseded without any valid grounds. Paragraph 8 is relevant which reads as under: _"8. The discussion made above based upon the two decisions of the Honourable Supreme Court apart, what however really clinches the issue is the question framed by the Honourable Supreme Court as 5(c) and the answer thereto, Question 5(c) in T.M.A. Pai_ W.P.C.No.21920/2006 6 _Foundation's case (supra) which reads as follows: “Whether the statutory provisions which regulate the facets of administration like control over educational agencies, control over governing bodies, conditions of affiliation including recognition/withdrawal thereof, and appointment of staff, employees, teachers and Principals including their service conditions and regulation of fees, etc. would interfere with the right of administration of minorities.”_ _This the Supreme Court answered as follows:_ _“So far as the statutory provisions regulating the facets of administration are concerned, in case of an unaided minority educational institution, the regulatory measure of control should be minimal and the conditions of recognition as well as the conditions of affiliation to a university or board have to be complied with, but in the matter of day-to-day management, like the appointment of staff, teaching and non-teaching, and administrative control over them, the management should have the freedom and there should not be any external controlling agency. However, a rational procedure for the selection of teaching staff and for taking disciplinary action has to be evolved by the management itself.”_ _"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_ W.P.C.No.21920/2006 7 _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_ W.P.C.No.21920/2006 8 _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 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 records. The question as framed in the beginning of this order is thus answered accordingly."_ 9. Having regard to the aforesaid factual situation, in the present case, it is clear that the petitioner alone was the only qualified person as on 01/04/2005. Though a minority institution, if there are no other qualified hands, Manager is bound to appoint the qualified person as Head Mistress. Under such circumstances, I am of the view that the Government was not justified in setting aside the order passed by the DEO. As matters stand now, the W.P.C.No.21920/2006 9 petitioner as well as the 5[th] respondent had retired from service. Therefore, equities have to be worked out based on the decision already taken. Accordingly this writ petition is allowed as under: i) Exts.P3 and P4 are set aside. ii) The petitioner shall be entitled for promotion as Head Mistress on the basis of Ext.P1 order passed by the DEO. iii) However, the pay of the petitioner shall be fixed on the basis of promotion to the post of Head Mistress with effect from the date of approval in terms of Ext.P1 order. She will be entitled for notional promotion, without any monetary benefits. However, her pension shall be refixed based on such refixation of pay pension. This shall be done within a period of one month from the date of receipt of a copy of this judgment, and arrears of pension on such refixation shall be paid within a further period of one month. (sd/-) **(A.M.SHAFFIQUE, JUDGE)** jsr True Copy PA to Judge