M. Hameed v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **FRIDAY, THE 29TH DAY OF JANUARY 2016/9TH MAGHA, 1937** ## **WP(C).No. 25093 of 2014 (J)** ## **PETITIONER:** **M.HAMEED, AGED 53 YEARS S/O. M.MOHAMMED, U.P.S.A. SLECTION GRADE A.U.P.S. PAYYANADAM, PALLIKUNNU POST (VIA) MANNARKAD COLLEGE, PALAKKAD DISTRICT-678 583.** **BY ADVS.SRI.C.A.MAJEED SRI.K.H.ASIF SMT.RAAGA R.RAMALAKSHMI SMT.ANNA JOHN SRI.RAMEEZ NOOH** ## **RESPONDENTS:** **1. STATE OF KERALA** - **REPRESENTED BY PRINCIPAL SECRETARY GENERAL EDUCATION DEPARTMENT, SECRETARIAT THIRUVANANTHAPURAM-695 001.** **2. THE DIRECTOR OF PUBLIC INSTRUCTIONS JAGATHI, THIRUVANANTHAPURAM-691 001.** **3. THE DEPUTY DIRECTOR OF EDUCATION CIVIL STATION, PALAKKAD-678 001.** **4. THE DISTRICT EDUCATION OFFICER DEO'S OFFICE, MANNARKAD, PALAKKAD DISTRICT-678 582.** **5. THE ASSISTANT EDUCATION OFFICER AEO'S OFFICE, MANNARKAD, PALAKKAD DISTRICT-678 582.** **6. THE MANAGER, A.U.P.S., PAYYANADAM, PALLIKUNNU POST (VIA) MANNARKAD COLLEGE PALAKKAD DISTRICT-678 583.** **7. K.A.RADHIKA, AGED 49 YEARS HEADMISTRESS, A.U.P.S., PAYYANADAM PALLIKUNNU POST, (VIA) MANNARKKAD COLLEGE PALAKKAD DISTRICT-678 583.** **R6 BY ADV. SRI.RENJITH THAMPAN (SR.) R6 BY ADV. SMT.P.R.REENA R7 BY ADV. SRI.JACOB SEBASTIAN R1-R5 BY ADV. GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 25093 of 2014 (J)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS :-** ## **-----------------------------------** - **EXT.P1 - COPY OF THE SENIORITY LIST OF TEACHERS ENGAGED IN 6TH RESPONDENT SCHOOL DATED 20-06-2014.** - **EXT.P2 - COPY OF THE APPOINTMENT ORDER OF THE 7TH RESPONDENT DATED 22-05-2014 ALONG WITH THE ENDORSEMENT OF THE 5TH RESPONDENT.** - **EXT.P3 - COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE 6TH RESPONDENT DATED 07-06-2014 WITH TRANSLATION.** - **EXT.P4 - COPY OF THE REPLY NO.C/989/2014 ISSUED BY THE 5TH RESPONDENT DATED 30-06-2014 WITH TRANSLATION.** - **EXT.P5 - COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE 4TH RESPONDENT WITH TRANSLATION.** - **EXT.P6 - COPY OF THE SHOW CAUSE NOTICE ISSUED BY THE 6TH RESPONDENT SCHOOL TO THE PETITIONER DATED 30-06-2014 WITH TRANSLATION.** - **EXT.P7 - COPY OF THE REPLY FILED BY THE PETITIONER TO EXT. P-6 NOTICE DATED 04-07-2014 WITH TRANSLATION.** - **EXT.P8 - COPY OF THE JUDGMENT RENDERED BY THIS COURT IN WPC NO . 21943 OF 2014 DATED 22-08-2014.** - **EXT.P9 - COPY OF THE REPLY SUBMITTED BY THE PETITIONER TO EXT. P6 SHOW CAUSE NOTICE DATED 03-09-2014.** ## **RESPONDENTS' EXHIBITS:-** **---------------------------------------** **EXT.R6(A) - COPY OF THE PROCEEDINGS DATED 28.03.2014 OF THE MANAGER, A.U.P. SCHOOL.** ## **//TRUE COPY//** **P.A. TO JUDGE** ## **sp** **K. VINOD CHANDRAN, J. ---------------------------------W.P(C). No.25093 of 2014-J ---------------------------------Dated this the 29[th] day of February, 2016** ## **JUDGMENT** The rival claim for the post of Headmaster in an Upper Primary School arises for adjudication in the above writ petition. The issue arose when the Manager, the 6[th] respondent, threw his mite with the 7[th] respondent, who is an admitted junior of the petitioner. The petitioner claims the post on the basis of his qualifications and the exemptions available to him, on having crossed the age of 50 and asserts it on the basis of his admitted seniority. The Manger however _W.P(C). No.25093 of 2014-J_ **2** asserts his right under Article 30(1) of the Constitution of India; the School being a minority institution, established and managed by a minority community. 2. The petitioners eligibility on the basis of his qualification and the exemptions available is undisputed. The petitioner also belongs to the same minority community,which is of no help since the Hon'ble Supreme Court and this Court has held that a minority institution can appoint a person of their choice to head the institution as Headmaster, for reason of the pivotal importance of the post in the administration of a School;even overlooking the claim of an admitted senior belonging to the same community { **N. Ammad v. Manager, Emjay High School 1998 (6) SCC 674}** . 3. When the incumbent Headmistress of the _W.P(C). No.25093 of 2014-J_ **3** School retired on 31.03.2014, the petitioner was the senior most, as is evident from Ext.P1 seniority list. The 7[th] respondent, who was chosen above the petitioner, was the 4[th] in the seniority list at the time of arising of vacancy. The only issue to be determined is whether the petitioner was properly overlooked, as has been laid down in the various decisions. One need not labour much, since the position is lucidly stated in **Kurian Lizy and Others v. State of Kerala and Others [2006 (4) KLT 264 (FB)]** . The Full Bench of this Court laid down certain guidelines on the following lines: “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, _W.P(C). No.25093 of 2014-J_ **4** 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 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 _W.P(C). No.25093 of 2014-J_ **5** 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.” ## 4. The learned Senior Counsel appearing for the Manager attempts to draw a distinction and also points to Ext.R6(a) as a proper evaluation having been conducted. The claim of the Manager, as argued by the learned Senior Counsel, is that of the four senior most teachers, who were evaluated, the 7[th] respondent stood far above the others for reason of the qualifications, which included a Post Graduation,a pass in the State Eligibility Test (SET) with a TTC and B.Ed. None of the others could hold a candle to the qualifications, the 7[th] respondent possessed. Apart from the _W.P(C). No.25093 of 2014-J_ **6** academic qualifications, the 7[th] respondent was found suitable for reason of her long tenure, which guaranteed a consistent administration at the top. Ext.R6(a) would stand testimony to a selection having been conducted and evidence the superior eligibility of the 7[th] respondent to be posted to the pivotal post of the Headmistress of the School, argues the learned Senior Counsel. The 7[th] respondent too, through counsel, contend that the Manger had chosen her and her eligibility and superior suitability being crystal clear no caprice could be alleged on the Manager, going by her academic achievements. 5. The decisions relied on by the learned Senior Counsel is of the Hon'ble Supreme Court in **Secretary, Malankara Syrian Catholic College v. T. Jose and Others [2007 (1) KLT 22]** and by _W.P(C). No.25093 of 2014-J_ **7** this Court in **Manager, Malankara Syrian Catholic Colleges Association and Others. v. Kerala University, Thiruvananthapuram and Others [2009 (4) KHC 241]** . In **Secretary, Malankara Syrian Catholic College** [supra] reference is made to paragraph 25, wherein **N. Ammad** [supra] was quoted to emphasize the importance of the post of Headmaster/ Headmistress. The choice was un-disputedly conferred on the Manager of a minority institution. It was also held that the Management of a minority institution has very wide freedom to choose the personnel for holding the post of Headmaster and the only restriction is regarding the qualification as framed by the legislature. The absence of a regulation framed by the Management itself will not defeat their rights to make the appointment _W.P(C). No.25093 of 2014-J_ **8** was declared on the basis of the other decisions of the Hon'ble Supreme Court. Reference was specifically made to the decision of the Apex Court in **Ahmadabad St. Xavier's College Society v. State of Gujarat [1974 (1) SCC 717]** and the following extract was made: _“17. ... The right to choose the principal and to have the teaching conducted by teachers appointed by the management after an overall assessment of their outlook and philosophy is perhaps the most important facet of the right to administer an educational institution... So long as the persons chosen have the qualifications prescribed by the University, the choice must be left to the management. That is part of the fundamental right of the minorities to administer the educational institution established by them.”_ 6. The decisions of the Hon'ble Supreme Court pointed out by the learned Senior Counsel does not at all detract from the proposition as laid down by the Full Bench in **Kurian Lizy** _W.P(C). No.25093 of 2014-J_ **9** [supra]. Even if a regulation is not framed by the management, there should be a fair assessment of the eligible candidates “outlook and philosophy”, which was laid down to be the “most important facet of the right to administer an educational institution.” A conjoint reading of the above decisions, specifically the extracts herein above, would indicate that ideally there should be a selection procedure, which also should be fair, reasonable and transparent. While, the minority institution has the right to even overlook the claim of the senior most faculty, who also is a member of the very same community; he or she should not be left with a feeling that they have been excluded without any reason. When having such selection procedure, **Kurian Lizy [supra]** also laid down that it should be _W.P(C). No.25093 of 2014-J_ **10** properly framed and published, which publication could be made in the notice board and copies made available in the School or College Library. The Hon'ble Supreme Court in fact had held that the absence of such regulation would not stand in the way of a choice being made from among the qualified persons. But it cannot at all be said that there should be an overall assessment made, which should be evident from the records. 7. Here, no such regulations have been framed and the evaluation said to have been made is sought to be placed on record as per Ext.R6(a). The absence of a regulation may not necessarily stand in the way. But however the procedure adopted should be fair, transparent and reasonable. The learned Senior Counsel would urge the superior qualification of the 7[th] _W.P(C). No.25093 of 2014-J_ **11** respondent and the long tenure she has, to sustain the choice made by the Manager. However Ext.R6(a) does not show any such evaluation, but for stating that the 7[th] respondent is the best among the four. Further, though an evaluation is said to have been done on 18.03.2014, none have been put to notice. The vacancy arose on 31.03.2014 and prior to that an evaluation is said to have been conducted. Even if Ext.R1(a) is to be taken to have been done, the same was in the knowledge of the Manager alone. That cannot be said to be a fair, reasonable and transparent selection. For that reason alone, the appointment of the 7[th] respondent has to be set aside. 8. The learned counsel for the petitioner then would urge that the petitioner may be given notional promotion from 01.06.2014, which _W.P(C). No.25093 of 2014-J_ **12** is not permissible, since then under Article 226, this Court would be interfering with the freedom granted to the management of a minority institution,under Article 30(1) of the Constitution of India. 9. The next plea of the learned counsel for the petitioner is that, at least the petitioner be put in charge of the School, till a fresh selection is made. That again would go against the binding precedents placed on record. In such circumstance, the appointment of the 7[th] respondent is set aside, for reason only of there being no proper selection procedure. The Manager would be entitled, if so advised, to frame a selection procedure and after a fair, reasonable and transparent procedure appoint the person of his choice, but however, who is eligible under the statute and the Rules. _W.P(C). No.25093 of 2014-J_ **13** The petitioner is said to have initiated statutory remedies against the appointment of the 7[th] respondent, which would stand closed, since this Court has considered the issue itself, on consent of parties. The Manger shall conduct the selection at any rate within one month from the date of receipt of a certified copy of this judgment, failing which the petitioner shall be promoted. The writ petition is disposed of. Parties are left to suffer their respective costs. Sd/- ## **K. VINOD CHANDRAN, JUDGE.** //True Copy// P.A. to Judge. sp/29/01/16