Elsamma Joseph v. Joint Secretary, General Education Department, & Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE S.SIRI JAGAN** **WEDNESDAY, THE 16TH JANUARY 2008 / 26TH POUSHA 1929** **WP(C).No. 16295 of 2007(M)** **--------------------------** **PETITIONER:** ## **----------------** **ELSAMMA JOSEPH, AGED 50 YEARS, W/O CHACKO, RESIDING AT KEERANCHIRA HOUSE, MARIKUNNU P.O., KOZHIKODE. LPSA (REVERTED POST) CHELAVUR MUZHIKKAL AMLP SCHOOL CHELAVUR P.O., KOZHIKODE.** **BY ADV. SRI.A.X.VARGHESE SRI.A.V.JOJO** **RESPONDENTS:** - **------------------** **1. JOINT SECRETARY, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.** **2. DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM.** **3. THE DISTRICT EDUCATIONAL OFFICER, KOZHIKODE.** **4. THE ASSISTANT EDUCATIONAL OFFICER, CHEVAYUR, KOZHIKODE.** **5. THE MANAGER, CHELAVUR MUZHIKKAL AMLP SCHOOL, CHELAVUR P.O., KOZHIKODE.** **6. P.PUSHPAVATHY, LPSA, AMLP SCHOOL, CHELAVUR P.O., KOZHIKODE.** **BY ADV. SRI.K.D.BABU SRI.T.VENUGOPALAN (ALUVA) GOVERNMENT PLEADER SMT. M.R. SREELATHA.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/01/2008, ALONG WITH WPC NO. 28482 OF 2007 WPC NO. 31320 OF 2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **S. SIRI JAGAN, J.** ## **-------------------------------------W.P.(C)Nos.16295, 28482 & 31320 OF 2007** **----------------------------------------** Dated this the 16[th] day of January, 2008 ## **JUDGMENT** These three writ petitions relate to inter - se claim between Smt. Elsamma Joseph the petitioner in W.P. (C) No.16295/07 and Smt. P. Pushpavathy the petitioner in W.P. (C) No.31320/07 who are teachers of the L.P. School managed by the petitioner in W.P. (C) No.28482/07, for promotion to the post of Headmaster in the School. Earlier there was a seniority dispute between Smt. Pushpavathy and Smt. Elsamma Joseph. Smt. Pushpavathy filed a suit namely, O.S. No.100.1985 against the Manager of the School and Smt. Elsamma Joseph with the Manager and the Educational officers also on the party array, claiming seniority over Smt. Elsamma Joseph. That suit was decreed and it was declared that Smt. P. Pushpavathy was senior to Smt. Elsamma Joseph. The said judgment and decree was not subjected to further challenge either by Smt. Elsamma Joseph or the Manager and the same became final. While so, a vacancy of Headmistress arose in the School on 1.5.2005. The Manager of the School, W.P.(c) Nos.16295/07 & Con.cases 2 who is the petitioner in W.P.(C) No.28482/07 appointed Smt. Elsamma Joseph as the Headmistress in that vacancy. This was challenged by Smt. P. Pushpavathy on the ground that being the senior most teacher of the School, she is entitled to be promoted to that vacancy in preference to Smt. Elsamma Joseph. By Ext.P1 order in W.P.(C) No.31320/07, the District Educational Officer, Kozhikode upheld the claim of Smt. P. Pushpavathy for such promotion. Smt. Elsamma Joseph challenged the same before the Additional Director of Public Instruction, who by Ext.P2 order rejected the challenge. This was taken in further revision before the Government and by Ext.P3 order, the Government also upheld the claim of Smt. P. Pushpavathy. 2. Smt. Elsamma Joseph filed W.P.(C) No.16295/07 challenging the order of the Government in revision. The Manager of the School who supports Smt. Elsamma Joseph also filed W.P. (C) No. 28482/07 challenging the very same order. Smt. P. Pushpavathy filed W.P. (C)No.31320/07 seeking a direction to implement the orders, which are impugned in the other two writ petitions. It is accordingly W.P.(c) Nos.16295/07 & Con.cases 3 that these three writ petitions are being heard together and disposed of. 3. Smt. Elsamma Joseph and the Manager of the School raise two contentions. First is that Smt. Elsamma Joseph is senior to Smt. P. Pushpavathy. As far as the judgment and decree of the Munsiff Court is concerned, they would argue that the same were passed without jurisdiction and therefore cannot be relied upon for the purpose of deciding inter-se seniority between the two. The second contention is that the School in question is a minority School and therefore the Manager of the School has absolute right to appoint any qualified person of his choice as Headmaster of the School, irrespective of considerations of seniority, which alone has been done in this case, which cannot be termed illegal or unsustainable. 4. I have considered the rival contentions in detail. As far as the first contention of Smt. Elsamma Joseph and the Manager is concerned, I am of opinion that it is too late in the day to take such a contention. Assuming that the Munsiff Court judgment was passed without jurisdiction it remains a W.P.(c) Nos.16295/07 & Con.cases 4 fact that ever since that judgment from the year 1985 onwards Smt. P. Pushpavathy was accepted as senior to Smt. Elsamma Joseph all along. Smt. Elsamma Joseph has not cared to get her seniority suitably restored by resorting to any remedies legally available to her. As such, she cannot now, after 22 years, come forward with a claim that she is senior to Smt. P. Pushpavathy. 5. Regarding the second contention, it is an admitted fact that neither Smt. Elsamma Joseph nor the Manager has at any time raised any contention before any of the authorities below that the School is run by a minority community and therefore eligible to constitutional protection in the matter of appointment of Headmaster of the choice of the Manager of the School. It is also an admitted fact that the Manager has not filed any petition before any authority seeking recognition as a School run by a minority community. 6. However, on the basis of the decisions of the Supreme Court in **In Re, Kerala Education Bill, 1957 [AIR 1958 SC 956]** and **Ammad** V. **Emjay High School [1998** **(2) KLT 828(SC)]** , they would contend that even without any W.P.(c) Nos.16295/07 & Con.cases 5 formal order recognising the School as a School run by a minority community, the School is entitled to constitutional protection under Article 30(1). I am not inclined to accept this contention also. According to me although once recognition is granted as a School run by a minority community that recognition would be applicable without limitations of time, such right can be claimed only after some authority competent to do so accepts the School as a School run by a minority community following a procedure known to law. I am supported in this view by two Division Bench decisions of this Court in **Evan's U.P. School** v. **State of Kerala [2001(1) KLT 849]** and **Younus Kunju** v. **State of Kerala [2002(1) KLT SN 91]** (case No.115) as also a judgment of a learned Single Judge of this Court in W.P. (C)No. 26074/06 and connected cases. The learned Judge of this Court has after considering a Supreme Court decision and the Division Bench decisions has come to the following conclusion. “The next question that arises for consideration is whether institutions established by minority religious congregations, Trusts or such other Organisations or individuals can, as a matter of course right, W.P.(c) Nos.16295/07 & Con.cases 6 claim minority status without a formal declaration by a competent authority to that effect. The contention of the petitioners is that such a formal declaration is not at all necessary since the very fact that these institutions are established by a religious minority community will ipso facto make them eligible to get minority status. Is the above contention tenable? Sri. Raveendranath, learned Senior Government Pleader contends that no private aided educational institution, even assuming it is established by a minority community, can claim “minority status” as a matter or right, in the absence of a formal order issued by a competent authority recognising or declaring such status. Only those institutions which have satisfactorily established their eligibility to get the above status can seek the protection of Article 30(1) of the Constitution. He further contends that no individual or to a Organization/Congregation belonging religious minority community can claim minority status for the institution established by him unless and until the competent authority has formally declared it to be a minority institution. The competent authority is entitled to consider the question whether or not minority status has to be conferred on an institution when such a request is received in that regard. In this connection my attention has been invited to a decision rendered by a Division Bench of this Court in Evan's U.P. School v. State of Kerala (2001(1) KLT 849). This Court W.P.(c) Nos.16295/07 & Con.cases 7 held that when a dispute or claim is raised with regard to the minority status of an institution, a declaration to that effect is inevitable so as to adjudicate the right of the parties. Learned Senior Government Pleader submits that the Government has not so far accorded minority status to the institutions run by the petitioners. Therefore petitioners cannot on their own, “confer” minority status to their institutions and claim immunity from the application of the statutory provisions under Section 59 of the Act and the relevant statutes. In Younus Kunju V. State of Kerala (2002 (1) KLT SN 91) (case No.115) a Division Bench of this Court had yet again held that the claimant has to establish that the institution is administered by a minority community or individual as the case may be. If a dispute about the “status” arises, the issue has to be decided by the competent authority. In N. Ammad v. Manager, Emjay High School (1998(6) SCC 674) their Lordships of the Supreme Court have held thus: “.......a school which is otherwise a minority school would continue to be so whether the Government declared it as such or not. Declaration by the Government is at best only a recognition of an existing fact. Article 30(1) of the Constitution reads thus: “30(1). All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.” When the Government declared the W.P.(c) Nos.16295/07 & Con.cases 8 school as a minority school it has recognised a factual position that the School was established and is being administered by a minority community. The declaration is only an open acceptance of a legal character which should necessarily have existed antecedent to such declaration.........” In the above case the admitted position was that the school was declared by the Government as a minority school on August 2, 1994. The question that arose for consideration was whether the school could have claimed any protection as a minority school prior to the date of such declaration by the Government. The above decision does not support the contention raised by the petitioners that a formal declaration or order by the Government is not necessary or warranted, in the case of an institution established by a religious minority community. What has been held by the Supreme Court is that the declaration of minority status by the Government would only be “an open acceptance of a legal character which should necessarily have existed antecedent to such declaration”. Thus the apex Court has not laid down that a declaration or order is not contemplated. It is true that the petitioners have asserted that their institutions have been established by a religious minority community. But no documents have been produced before this Court to substantiate, atleast prima facie, that these institutions are entitled to get the protection of Article 30(1) of the Constitution, W.P.(c) Nos.16295/07 & Con.cases 9 they being minority institutions. The status of “religious minority” which is a privilege sanctioned by the Constitution can be conferred on an institution only on satisfaction of requisite parameters and in terms of the procedure prescribed under the National Commission for Minority Educational Institutions Act, 2004 or other relevant orders of the Government. Even assuming a legal character of minority status is ingrained in an institution established or administered by such a community, that legal character should find a formal expression through an order to be passed by a competent authority. In my view, a mere assertion by a minority community or institution may not be sufficient to get “minority status”. There must be a formal order or declaration by a competent authority to that effect. Therefore the petitioners cannot be heard to say that they are entitled to get the protection of Article 30(1) of the Constitution even without formal order/declaration issued by a competent authority. Therefore the questions posed in the judgment are answered as follows: a) Only the management of a religious minority institution can appoint a candidate of its choice as Principal of a private aided college. In the absence of a formal declaration of minority status, the management is bound to comply with the mandate contained in Section 59(3) of the M.G. University Act.” W.P.(c) Nos.16295/07 & Con.cases 10 Of course, that judgment relates to a College but the law laid down therein applies equally to a School. 7. In so far as in this case no competent authority has recognised the School in question as a School run by a minority community, in view of the above said decisions, no right can be claimed by the Manager of the School on the basis that the School is one run by a minority community. In view of the above findings, W.P. (C)Nos.16295/07 and 28482/07 are dismissed. W.P. (C)No. 31320/07 is disposed of with a direction to the 5[th] respondent Manager therein to forward an order appointing the petitioner as Headmistress of the School with effect from 1.5.2005 by implementing the orders of the Educational authorities. This shall be done within a period of two weeks from the date of receipt of a copy of this judgment. The 4[th] respondent in that writ petition namely the AEO, Chevayur shall, on receipt of the same, pass appropriate orders regarding approval of such appointment of Smt. P. Pushpavathy and disburse arrears of salary due to the petitioner consequent to such approval within a period of one month from the date of receipt of the order of appointment W.P.(c) Nos.16295/07 & Con.cases 11 from the Manager. It would be open to respondents 1 to 4 in that writ petition to recover any excess salary, if any, paid to the 6[th] respondent by proceeding against either Smt. Elsamma Joseph or the Manager of the School. If the Manager does not comply with the above directions, the 2[nd] respondent in that writ petition namely the Director of Public Instruction shall take appropriate disciplinary proceedings against the Manager including proceedings for disqualification of the Manager. ## **S. SIRI JAGAN, JUDGE** Acd W.P.(c) Nos.16295/07 & Con.cases 12