High Court of KeralaSingle Judge2023-03-23Writ petitions dismissed; petitions disposed of...

Lalitha Bai A.V. v. D.E.O., Ernakulam and Others; Lalitha Bai A.V. v. National Commission for Minority Educational Institutions and Others

Case / Petition Number:WP(C) No. 33571 of 2007; WP(C) No. 2826 of 2009

Neutral Citation:/

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Amit Rawal
Judgment Date: 2023-03-23
Court Decision / Holding: Writ petitions dismissed. The court held that the 2007 promotion was not retroactively defeated by the later minority status declaration and the orders examined were not set aside; the petitions for quashing these orders were accordingly dismissed.
Final Disposition: Writ petitions dismissed; petitions disposed of by judgment on merits; no reversal of the promotion order; no retroactive effect accorded to minority declaration.

Parties to the Case

Appellants / Petitioners

Lalitha Bai A.V.

Respondents

National Commission for Minority Educational Institutions
State of Kerala represented by its Secretary, General Education Department
The District Educational Officer Ernakulam
The Manager Hidayathul Islam Higher Secondary School, Edavanakkad
A.A. Abdul Nazir, Headmaster, Hidayathul Islam Higher Secondary School
Director of Public Instructions, Thiruvananthapuram

Legal Representation & Advocates

Counsels for Petitioners

• Sri K. Raman Kumar (Sr.)
• Smt. Smitha George
• Sri T. Ramprasad Unni

Counsels for Respondents

• Manu S., DSG of India
• Sri Lal K. Joseph
• Sri P.M. Mohammed Shiraz
• Sri M.R. G. Manju
• Sm. Sheena Samuel
• Sri KKM. Sherif
• Sri V.R. Rekesh
• Sri M.M. Saidu Muhammed
• Sri P.H. Savan Kumar
• Sri A.A. Ziyad Rahman

Case Synopsis & Summary

This is a consolidated writ petition decision of the High Court of Kerala (Single Judge: Justice Amit Rawal) rendered on 23 March 2023. The petitions arise from challenges to the promotion of a staff member as Headmaster of Hidayathul Islam Higher Secondary School (Edavanakkad) and to a set of orders related to minority status declarations under the National Commission for Minority Educational Institutions Act, 2004. In WP(C) No. 33571 of 2007, Lalitha Bai A.V. (Deputy Headmistress) seeks to quash Exts. P12 and P13 (approval of the 5th respondent’s appointment as Headmaster and related NCMEI actions) and to secure the promotion order from 1.4.2007. In WP(C) No. 2826 of 2009, Lalitha Bai A.V. challenges the show-cause notice and disputes the appraisal of fairness when, despite her seniority and qualifications, the 5th respondent was promoted; she also questions the minority status declaration granted in 2008. The court considers whether minority status can override seniority and whether government/multi-agency declarations carry retroactive effect. Relying on Manager, Corporate Educational Agency v. James Mathew and N. Ammad v. Manager, Emjay High School (and affined doctrine that minority declaration reflects an existing status), the court finds no retroactive enforcement that would reverse the 2007 promotion. Ultimately, both writ petitions are dismissed, with observations on due process and fair play.

Provisions of Law Cited

National Commission for Minority Educational Institutions Act, 2004 — Section 10 (procedure for no objection certificate for declaration of minority status)National Commission for Minority Educational Institutions Act, 2004 — Section 12BArticle 30(1) of the Constitution of IndiaKerala Education Act and Rules

Legal Doctrines & Maxims

Declaration of minority status is a declaration of an existing status (N. Ammad v. Manager, Emjay High School and Others, [(1998) 6 SCC 674])
Declaration by the Government is a recognition of a factual position; the status exists prior to declaration (Paras 12-13 of Ammad)
Fair play and impartiality are essential in the exercise of power to appoint; minority status does not override all due process without reason

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that a vacancy for Headmaster arose on 1.4.2007 following the retirement of the then Headmistress. She argues that promotion should follow seniority and merit, and that the school—though a minority institution—still requires due process and fairness. The petition asserts that the 4th respondent’s appointment of the 5th respondent contravened seniority rules and that Exts. P11 (enquiry) and the subsequent minority declaration cannot nullify the petitioner’s legitimate claim. It contends that Section 10/Section 12B procedures of the NCMEI Act were not properly followed and that retroactive minority status cannot be used to undermine an existing promotion decision. The petitioner relies on Ivy C. Da Conceicao v. State of Goa for fairness and cites Manager, Corporate Educational Agency v. James Mathew and N. Ammad to emphasize that minority status could not be retroactively applied to defeat merit-based promotion.

Contentions of Respondents

The respondents contend that the school’s minority status allows the management to appoint a Headmaster without being strictly bound by the seniority list when fairness and due process are observed. They note that the District Educational Officer had recommended promotion in 2007 and that the minority declaration was issued later in 2008 after the order of 26.10.2007; they argue that the declaration itself recognizes an existing status and that the government’s declaration does not negate the merit-based appointment. They rely on case law (Manager, Corporate Educational Agency; N. Ammad) to justify retrospective recognition and to uphold the appointment of the 5th respondent in light of minority administration. They argue there was no unfettered abuse of power and that due procedure and statutory requirements under NCMEI Act were complied with to the extent possible, with minority status providing the legitimate basis for appointment and eligibility.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Ivy C. Da Conceicao v. State of Goa and Others	2017 (3) SCC 619	Mentioned Only	Cited by petitioner to support fairness in minority appointments but not adopted as controlling authority in the final decision.
Manager, Corporate Educational Agency v. James Mathew and Others	2017 (4) KHC 83	Positive	Quoted to support the view that minority status can be recognized in a manner that does not retroactively negate pre-existing merit-based promotions.
N. Ammad v. Manager, Emjay High School and Others	(1998) 6 SCC 674	Positive	Cited for the proposition that declaration of minority status is recognition of an existing fact; used to justify retrospective effect principles in the context.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL THURSDAY, THE 23[RD] DAY OF MARCH 2023 / 2ND CHAITHRA, 1945 WP(C) NO. 2826 OF 2009** ## **PETITIONER/S:** LALITHA BAI.A.V. HIDAYATHUL ISLAM HIGHER SECONDARY SCHOOL,, (H.I.H.S.S)EDAVANAKAD - 682592,ERNAKULAM DISTRICT. BY ADVS. SRI.K.RAMAKUMAR (SR.) SMT.SMITHA GEORGE ## **RESPONDENT/S:** 1 NATIONAL COMMISSION FOR MINORITY EDN. EDUCATIONAL INSTITUTIONS, 1ST FLOOR, JEEVAN TARA, BUILDING,5,SANSAD MARG, PATEL CHOWK, NEW DELH-, 110001. 2 STATE OF KERALA REPRESENTED BY ITS SECRETARY, GENERAL EDUCATION DEPARTMENT,, SECRETARIAT, THIRUVANANTHAPURAM. 3 THE DISTRICT EDUCATIONAL OFFICER ERNAKULAM. 4 THE MANAGER HIDAYATHUL ISLAM HIGHER SECONDARY SCHOOL, EDAVANAKAD-682502,, ERNAKULAM DISTRICT. 5 A.A.ABDUL NAZIR HEADMASTER HIDAYATHUL ISLAM HIGHER SECONDARY SCHOOL,, EDAVANAKAD682502,ERNAKULAM DISTRICT. 6 THE DIRECTOR OF PUBLIC INSTRUCTION THIRUVANANTHAPURAM - 695001. BY ADVS. MANU S., DSG OF INDIA SRI.LAL K.JOSEPH SRI.P.M.MOHAMMED SHIRAZ SMT.G.R.MANJU SMT.SHEENA SAMUEL SRI.KKM.SHERIF ## **OTHER PRESENT:** DSGI-- SRI. S. MANU GP-- SRI. JIMMY GOERGE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.03.2023, ALONG WITH WP(C).33571/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 2826 OF 2009 and conctd. case** **2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE AMIT RAWAL THURSDAY, THE 23[RD] DAY OF MARCH 2023 / 2ND CHAITHRA, 1945** **WP(C) NO. 33571 OF 2007** ## **PETITIONER/S:** LALITHA BAI A.V. DEPUTY HEADMISTRESS, HIDAYATHUL ISLAM HIGHER, SECONDARY SCHOOL (HIHSS), EDAVANAKKAD-682 592,, ERNAKULAM DISTRICT. BY ADVS. SRI.K.RAMAKUMAR (SR.) SRI.T.RAMPRASAD UNNI SMT.SMITHA GEORGE ## **RESPONDENT/S:** 1 D.E.O. ERNAKULAM. 2 THE MANAGER HIDAYATHUL ISLAM HIGHER SECONDARY SCHOOL,, EDAVANAKAD-682 502, ERNAKULAM DISTRICT. 3 A.A. ABDUL NAZIR H.S.A. (NATURAL SCIENCE), NOW PROMOTED AS, HEADMASTER, HIDAYATHUL ISLAM HIGHER SECONDARY, SCHOOL, EDAVANAKAD -682 502, ERNAKULAM DISTRICT. BY ADVS. SRI.LAL K.JOSEPH SRI.V.R.REKESH SRI.M.M.SAIDU MUHAMMED SRI.KKM.SHERIF SRI.P.H.SAVAN KUMAR SRI.A.A.ZIYAD RAHMAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.03.2023, ALONG WITH WP(C).2826/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 2826 OF 2009 and conctd. case** **3** ## **JUDGMENT** This order of mine shall dispose of two writ petitions ie., 33571 of 2007 titled as Lalitha Bai A.V v. D.E.O and Others seeking the implementation of the order of the District Educational Officer dated 26.10.2007 ordering promotion as Headmistress with effect from 1.4.2007 and for quashing of the show cause notice Ex.P11 dated 22.10.2007 and WP(C) No.2826 of 2009 tilted as Lalitha Bai v. the National Commission for Minority Educational Institutions and others for quashing of the order dated Ext.P12 dated 4.12.2008 and Ext.P13 dated 13.1.2009 approval of the appointment of the 5 th respondent as Headmaster, as common question of facts and law are involved. 2. In W.P.(C) No.2826 of 2009, petitioner, Lalitha Bai A.V was appointed as H.S.A (Maths) in Hidayathul Islam Higher Secondary School (H.I.H.S.S), Edavanakkad on 25.7.1980 and thereafter in 1982 as H.S.A (Natural Science). After having rendered more than twelve(12) years continuous service, passed the test, as per the provisions of Kerala Education Act and the Rules and also passed Account Test (Lower), Ext.P3 and P3(a). 3. Learned counsel for the petitioner submitted that a vacancy of Headmaster arose on 1.4.2007 due to the retirement of the Headmistress Smt.Zainaba Beebi K.A on 31.3.2007. **WP(C) NO. 2826 OF 2009** 4 Before the retirement of Smt. Zainaba Beevi K.A on 31.3.2007 the petitioner came to understand that the 4[th] respondent was taking steps to appoint the 5[th] respondent, junior to the petitioner, as the Headmaster of the school. A representation dated 15.3.2007, was submitted, before the 4[th] respondent pointing out the fact that the petitioner who is the senior most teacher and fully qualified was entitled to be promoted, which was replied by reply dated 20.3.2007, Ext.P7 whereby it was informed that the H.I.H.S.S is a minority institution therefore they are not entitled to appoint a qualified teacher from the staff of the school untrammeled by the rule of seniority. In this regard, representation dated 23.3.2007, Ext.P8 was submitted pointing out that the school was not a minority institution and the petitioner who is the senior most qualified hand was entitled to be promoted as Headmistress. No order was passed on the representation Ext.P8. 4. The 4[th] respondent appointed the 5[th] respondent as Headmaster which was challenged by the petitioner by preferring an appeal. In the absence of any decision of the appeal, writ jurisdiction of this Court vide WP(C) No.12425 of 2007 was invoked. This Court vide judgment dated 11.4.2007 directed the appellate authority to consider and pass orders on **WP(C) NO. 2826 OF 2009** 5 the appeal within two months. However during the interregnum, respondent No.4 approached the National Commission for declaration of the institution as a minority and certificate was granted. 5. It was submitted that in the meantime vide order dated 26.10.2007 before the order of the minority status would be passed, the District Educational Officer found, the petitioner, to be the most suitable person for promotion to the post of Headmistress. For the reason best known, respondent No.5 was appointed as Headmaster. In that background petitioner had to file the other writ petition W.P.(C) No.33571 of 2007 for implementation of the order dated 26.10.2007 and also for quashing of the memo whereby the case of the promotion was sought to be withdrawn on the basis of the enquiry report. 6. Learned counsel for the petitioner, further, submitted that no doubt, the minority institution can appoint a person as Headmaster untrammeled by the list of the seniority but there has to be adherence to the principles of fair play and impartiality is required to be followed. In support of the aforementioned contention, relied the judgment of the Supreme Court in **Ivy C. DA Conceicao v. State of Goa and** **WP(C) NO. 2826 OF 2009** 6 **others (2017 (3) SCC 619)** . The order of the National Commission dated 4.12.2008 did not deal with the facts which are alleged to have been admitted according the status of the minority. Section 10 of Chapter III National Commission for Minority Educational Institutions Act, 2004 prescribes a procedure for issuance of no objection certificate for declaring institution as a minority educational institution. The said procedure has not been even followed whereas the Commission exercised the power under Section 12B of the Act and granted the status of minority in a most slip shod manner without referring to the contents of the application submitted by the petitioner particularly, the application of the petitioner submitted to the Government for declaration of the minority status, had already been dismissed vide Government order dated 16.8.2007 vide Ext.P5 in the second writ petition. The institution was not declared minority on the date when the case of the petitioner for promotion as headmistress with effect from 1.4.2007 was passed. Therefore no objection certificate Ext.P12 of the National Commission for Minority Educational Institutions cannot have a retroactive effect. 7. On the other hand, learned counsel appearing on behalf of the 4[th] respondent submitted that the question with **WP(C) NO. 2826 OF 2009** 7 regard to the applicability of the certificate with retrospective effect and doing away with the procedure of the seniority has already been pondered by the Supreme Court in **Manager, Corporate Educational Agency v. James Mathew and Others (2017 (4) KHC 83).** No doubt the case of the petitioner on 26.10.2007 was recommended for promotion as Headmistress. But it was noticed that four days back enquiry th proceedings were initiated against the petitioner. 5 respondent appointed in the place of the petitioner alleged to be junior the has also retired. There was no exercise of unfettered power while selecting the 5[th] respondent as the Headmaster. 8. I have heard the learned counsel for the parties and appraised the paper book. Order dated 26.10.2007 no doubt reveals that at that relevant point of time, respondent No.4, educational institution was not a minority institution. Considering the merit and seniority, the case of the promotion of the petitioner as Headmistress was recommended. While so the respondent had approached the National Commission for Minority Educational Institutions and accorded the status of minority under Article 30 of the Constitution of India vide order dated 4.12.2008; almost one year and two months of **WP(C) NO. 2826 OF 2009** 8 26.10.2007. But during this period the aforementioned order dated 26.10.2007 was not implemented for the reasons best known. In that background, one of the relief has been sought and WP.(C) 33571 of 2007 for implementation of the said order. In the first blush, the argument of the learned counsel for the petitioner look very attractive, but once the case of the petitioner was recommended for promotion and at the relevant point of time order of according of the minority status wwas not in existence but was post the said date ie., on 4.12. 2008, therefore would not have a retroactive effect, but in view of the ratio decidendi culled out in the judgment in **Manager, Corporate Educational Agency** (supra) in paragraph 6, the said objection has also been taken care of. Paragraph 6 of the judgment reads as follows: 6. As far as the validity of the declaration of minority status is concerned, this Court in N. Ammad Vs. Manager, Emjay High School and Others, [(1998) 6 SCC 674], has held that the certificate of the declaration of minority status is only a declaration of an existing status. Therefore, there is no question of availability of the status only from the date of declaration. What is declared is a status which was already in existence. Paras 12 and 13 of the Judgment are quoted hereunder :- 12. Counsel for both sides conceded that there is no provision in the Act which enables the Government to declare a school as a minority school. If so, 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 **WP(C) NO. 2826 OF 2009** 9 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." 13. 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. The declaration is only an open acceptance of a legal character which should necessarily have existed antecedent to such declaration. Therefore, we are unable to agree with the contention that the school can claim protection only after the Government declared it as a minority school on 2-8-1994.” Petitioner and 5[th] respondent have already retired. Until and unless the appointment of the 5[th] respondent is not set aside, the notional benefits which the petitioner entitled to cannot be granted in view of the rejection of the argument of the learned Senior counsel. While looking at the order of the appointment of the 5[th] respondent, there did not appear to be any exercise of unfettered or unbiased discriminating approach. Had there been so, a malafides ought to have been attributed by imputing allegations against the persons by impleading them in person. No such exercise has been followed. In view of the aforementioned observations, the writ petitions are accordingly dismissed. SD/- sab **AMIT RAWAL** **JUDGE** **WP(C) NO. 2826 OF 2009** 10 ## **WP(C) NO. 33571 OF 2007** ## PETITIONER'S EXHIBITS: Ext. P1 True copy of the relevant page of the Service Book of the petitioner. Ext. P1 True copy of the relevant page of the Service Book of the 3[rd] respondent Ext.P3 - True copy of the Certificate dt. 26-3-1990 issued by the P.S.C. Ext. P3 (a) - True copy of the Certificate dt. 26-3-1990 issued by the P.S.C. Ext.P3 (b) - True copy of Order, G.O. dt. 16-8-2007 issued by the Govt. 9. Ext.P4 - True copy of representation dt. 15-3-07 submitted by the petitioner. Ext.P5 - True copy of the communication dated 20.3.2007 issued by the 2[nd] respondent Ext.P6 - True copy of the representation 11. dt. 23-3-07 submitted by the petitioner. Ext.P7 - True copy of the Appeal dt. 3-4-2007 submitted by the petitioner before 23.. the Ist respondent, Ext.P8 - True copy of Judgment dt. 11-4-2007 in W. P. (C) No. 12425/2007 of this Hon. Court. Ext.P9 - True copy of Order dated 26-10-2007 issued by the 1st respondent. Ext. P10 True copy of the representation dated 12-4-2007 submitted by the 407 teachers to the Camp Officer. Ext. P11 - True copy of the Memo dated 22-10-2007 along with the Enquiry Report issued by the 2nd respondent. Ext.P12- True copy of the Order dt. 31-10-2007 issued by the Manager, S.N.H.S Nankicity. **WP(C) NO. 2826 OF 2009** 11 Ext.P13- True copy of the Order dated 25-5-2007 issued by the D.P.I. Ext.P14- True copy of the Report submitted by the Secretary, Irshadul Muslimeen Sabha Ext.P15- True copy of the order dated 13.4.2008 issued by the Dy. Director of Edn., Ernakulam. ## RESPONDENT'S EXHIBITS: Exhibit-R2(a):- True copy of the Memorandum of Appeal dated 12.11.2007 3. Exhibit-R2(b):- True copy of the Byelaw Exhibit-R2(c)- True copy of the Registration Certificate from District Registrar Ernakulam Exhibit-R2(d)- True copy of the Chief Executive Officer Kerala State Wakf Board Exhibit-R2(e):- True copy of the Order No. D.Dis 36 19675/66/G4 dated 19.09.1966 Exhibit-R2(f):- True copy of the Government Letter No.1754/06 dated 27.9.2006 **WP(C) NO. 2826 OF 2009** 12 ## **WP(C) NO. 2826 OF 2009** ## **PETITIONER'S EXHIBITS:** Exhibit P1 true extract of the relevant page of the service book of the petitioner. Exhibit P2 true extract of the relevant page of the service book of the 5th respondent. Exhibit P3 - true copy of certificate dated 26.3.1990 issued by the Public Service Commission to the petitioner Exhibit P3(a)true copy of certificate dated 26.3.1990 issued by the Public Service Commission to the petitioner Exhibit P4 - true copy of report of the 54th Annual General Body meeting of Irshadul Muslimeen Sabha Exhibit P5 - true copy of G.O.(Rt) No. 3842/07/G. Edn.Dt. 16.8.2007 issued by the Government of Kerala Exhibit P6 - true copy of representation dt. 15.3.2007 submitted by the petitioner before R4 Exhibit P7 - true copy of communication dt. 20.3.2007 sent by R4 to the petitioner Exhibit P8 true copy of representation dt. 23.03.2007 submitted by the petitioner before R3 **WP(C) NO. 2826 OF 2009** 13 Exhibit P9 true copy of appeal dt. 3.4.2007 filed by the petitioner before R3 Exhibit P10 - true copy of judgment dt. 11.4.2007 in W.P.(c) No. 12425 of 2007 Exhibit P11- true copy of order No. B5-8677/2007 dt. 26.10.2007 issued by R3 Exhibit P12 - true copy of order No. Appeal No. 01 of 200832625 dt. 4.12.2008 issued by R1 Exhibit P13 - true copy of Order No ET(4)/39412/08/DP1/DIS dt. 13.01.2009 issued by Addl. R6 ## **RESPONDENT'S EXHIBITS:** R5(a). True copies of the Registration Certificate from the District Registrar, Ernakulam. R5(b) True copies of the Registration Certificate from the Chief Executive Officer, Kerala State wakf Board. R5(C) True copy of the Order dated 19-9- 1966 by the Regional Deputy Director of Public Instructions, Ernakulam.