MINIMOL P.P. v. STATE OF KERALA AND OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.K.JAYASANKARAN NAMBIAR & THE HONOURABLE MR.JUSTICE GOPINATH P.** **THURSDAY, THE 18TH DAY OF MARCH 2021/27TH PHALGUNA, 1942** ## **W.A.No.211 OF 2021** **AGAINST THE JUDGMENT IN W.P(C).NO.22009/2020(A) OF HIGH COURT OF KERALA** ## **APPELLANT/PETITIONER:** **MINIMOL P.P. AGED 51 YEARS W/O MATHEW P THOMAS, FORMERLY PRINCIPAL-IN-CHARGE, NOW WORKING AS HIGHER SECONDARY SCHOOL TEACHER (ECONOMICS), ST.PETER'S VOCATIONAL AND HIGHER SECONDARY SCHOOL, KOLENCHARRY-682311, RESIDING AT POOKKOLAYIL HOUSE, KOLENCHERY- 682311.** **BY ADVS.SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.V.VARGHESE SRI.PETER JOSE CHRISTO SRI.S.A.ANAND SMT.K.N.REMYA SMT.L.ANNAPOORNA SHRI.VISHNU V.K. KUM.ABHIRAMI K. UDAY** ## **RESPONDENTS/RESPONDENTS 1 TO 6:** **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.** **2 THE DIRECTOR OF HIGHER SECONDARY EDUCATION HOUSING BOARD BUILDINGS, SANTHI NAGAR, THIRUVANANTHAPURAM - 695001.** **3 THE REGIONAL DEPUTY DIRECTOR HIGHER SECONDARY EDUCATION DEPARTMENT, S.R.V.G.H.S.S. BUILDING, KASTHURI RANGAN HALL, ERNAKULAM – 682011.** **4 THE MANAGER ST.PETER'S VOCATIONAL AND HIGHER SECONDARY SCHOOL, KOLENCHERRY-682011.** - **5 SMT.HONEY JOHN THENUMGAL H.S.S.T. (BOTANY), ST.PETER'S VOCATIONAL AND HIGHER SECONDARY SCHOOL, KOLENCHERRY-682311.** **BY SMT.RAJI T. BHASKAR, GOVT. PLEADER R4 BY ADV. SRI.GEORGE POONTHOTTAM (SR.) R4 BY ADV. SMT.NISHA GEORGE BY ADV. SRI.N.ANAND** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 18.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.A.No.211/2021 :: 3 ::** ## **J U D G M E N T** ## **A.K.Jayasankaran Nambiar, J.** The petitioner in W.P.(C).No.22009/2020 is the appellant herein, aggrieved by the judgment dated 9.11.2020 of the learned Single Judge in the writ petition. The brief facts necessary for a disposal of the Writ Appeal are as follows: 2. The petitioner was appointed as High School Assistant [HSA] with effect from 7.1.1998 in the St.Peter's Vocational and Higher Secondary School, Kolencherry, which is a minority educational institution. Thereafter, when the Higher Secondary Section was sanctioned to the said School, the petitioner was appointed by transfer as a Higher Secondary School Teacher [HSST] in Economics with effect from 7.8.2000. The 5[th] respondent too was appointed as HSST (Botany), but through direct recruitment, with effect from 16.7.2001. It would appear that a vacancy of Principal of the Higher Secondary School arose **W.A.No.211/2021 :: 4 ::** on 1.6.2006. Since there were no qualified teachers available in the School for appointment as Principal, owing primarily to the want of 12 years teaching experience at Higher Secondary Level, the petitioner was put as Principal-in-charge of the School. As per Rule 6 of Chapter XXXII of the Kerala Education Rules [hereinafter referred to as the 'KER'] that prescribes the qualifications required for appointment as Principal, the incumbent has inter alia, to have minimum approved teaching experience of 12 years at the Higher Secondary Level under the same educational agency. A Note to the said Rule clarifies that in the absence of persons having qualification as specified above, approved teaching experience at High School/Upper Primary/Lower Primary Schools under the same educational agency shall be considered. The Note further clarifies that such experience would be reckoned only for qualifying service and will not be reckoned for the purposes of seniority, and further that, such alternately qualified persons must possess minimum service of six years as HSST (Senior/Junior). In the case of the petitioner, she acquired the alternate qualification, as prescribed under the Note referred above, on 7.1.2010. The petitioner was not however appointed as Principal with effect from that date, primarily because, there was a management dispute that was **W.A.No.211/2021 :: 5 ::** ongoing, and the petitioner did not deem it appropriate to approach the management with a claim for appointment as Principal. The arrangement, whereby the petitioner was appointed as the Principal-in-charge, therefore continued till 2020. By Ext.P14 order, dated 12.10.2020, the petitioner was divested of her post of Principal-in-charge, and the Manager appointed the 5[th] respondent as Principal. It was aggrieved by the said order, that the petitioner approached this Court through the writ petition aforementioned. 3. The primary contention of the petitioner in the writ petition was regarding the status of the School as a minority educational institution. It was her contention that the School in question could not be seen as a minority educational institution for the purposes of conferring a discretion on the management to choose a candidate of its choice for appointment as Principal. An alternate contention was also raised that, even if the management was to be conceded a choice in the appointment of a Principal, that choice had necessarily to be made between qualified candidates, and in the instant case, the 5[th] respondent was not qualified as on the date of occurrence of the vacancy in the post of Principal. The learned Single Judge, who considered **W.A.No.211/2021 :: 6 ::** the matter, rejected the contentions of the petitioner, and held that the School in question was indeed a minority educational institution, and hence, the choice of the management to appoint the 5[th] respondent could not be faulted. Reliance was placed in this regard on the decision of this Court in **Corporate Manager, St.Roch's HS/TTI/LPS and another v. State of Kerala and Others – [ILR 2019 (2) Kerala 333]** as also the decision of the Supreme Court in **N.Ammad v. Manager, Emjay High School and Others - [(1998) 6 SCC 674]** to find that the management of a minority aided school obtains unrestricted freedom to appoint any person as its Head and that the statutory provisions to the contrary would not apply to them. 4. Before us, it is the contention of Sri.S.P.Aravindakshan Pillay, the learned counsel for the appellant that the learned Single Judge did not consider the issue in its true legal perspective. It is argued that although the management of a minority educational institution has a choice to appoint a principal of its choice ignoring the inter-se seniority between the teachers, such choice has nevertheless to be between two or more teachers who are qualified to hold the post of principal. In the instant case, it is pointed out that, as on 1.6.2006, when the **W.A.No.211/2021 :: 7 ::** vacancy to the post of Principal arose in the School, there was admittedly no qualified teacher available for appointment to the said post. However, it was the petitioner who qualified first thereafter by obtaining the necessary experience as contemplated in the Note to Rule 6(1) of Chapter XXXII of the KER for, on 7.1.2010. The 5[th] respondent obtained the necessary experience as per the Rules only in 2013. It is therefore contended that the Management ought to have taken note of the above facts and chosen the petitioner in preference to the 5[th] respondent for appointment as Principal. In support of his contention, the learned counsel also relies on the oft-quoted judgment of the Full Bench of this Court in **Varghese and Others v. State of Kerala and Others - [1981 KHC 148]** , which holds that it is the time of occurrence of vacancy that should be relevant for determining the question of promotion and not the time the order of promotion is passed. The rationale that informed the said decision appears to be that the relevant date must be definite and not depending upon the volition of the authorities as otherwise the determination would be arbitrary. If it were to be the date of promotion that is to be relevant for determining the title to such promotion, the Rule is capable of arbitrary exercise. Even if it is an honest exercise, that would be **W.A.No.211/2021 :: 8 ::** arbitrary because the fate of the service career would depend in each instance upon the time taken by the authority concerned in passing the order of promotion. On the other hand, there is definiteness in treating the date of occurrence of the vacancy as that which would determine the title of the person to be considered for promotion. 5. Persuasive though the submissions of the learned counsel for the appellant may appear at first blush, we are afraid, we cannot accept the said contention on the facts of the instant case. It is, no doubt, true that the appellant obtained the necessary service experience for being considered for appointment to the post of Principal, on 7.1.2010. She was not, however, appointed to the post of Principal on that date or immediately thereafter. On her part, she continued to function as the Principal-in-charge based on the said charge arrangement that was conferred on her in the immediate aftermath of the arising of vacancy to the post of Principal with effect from 1.6.2006. Thereafter, for a period of almost 10 years, she did not pursue the matter with the management, save for making representations before the educational authorities in 2014, seeking higher grade of pay as applicable to Principal. Perhaps, **W.A.No.211/2021 :: 9 ::** she refrained from staking a claim for appointment as Principal taking note of the dispute that was subsisting with regard to the management of the educational institution. That, however, does not insulate her from the legal consequences of her inaction. As a result, when the management decided to choose a principal on 12.10.2020 (Ext.P14), the choice was in fact between two qualified teachers viz. the petitioner and the 5[th] respondent. That the management in the instant case had a right to choose between qualified candidates is well settled through decision in **N.Ammad (supra)** as also the decision of a Full Bench of this court in **Aldo Maria Patroni v E.C.Kesavan – AIR 1965 Kerala 75** , where Chief Justice M.S. Menon in his imitable style observed: “The post of the headmaster is of pivotal importance in the life of a school. Around him wheels the tone and temper of the institution; on him depends the continuity of its traditions, the maintenance of discipline and the efficiency of its teaching. The right to choose the headmaster is perhaps the most important facet of the right to administer a school, and we must hold that the imposition of any trammel thereon – except to the extent of prescribing the requisite qualifications and experience – cannot but be considered as a violation of the right guaranteed by Article 30(1) of the Constitution. To hold otherwise will be to make the right 'a teasing illusion, a promise of unreality'.” **W.A.No.211/2021 :: 10 ::** Taking cue from the above settled position, we are of the view that when it comes to minority educational institutions, the choice of the management becomes an integral aspect of the qualification of a claimant to the post of principal. Between two candidates who possess the qualifications prescribed by the statutory rules for appointment to the post of principal, it is the choice exercised by the management in his/her favour that clothes the candidate with the right to appointment as principal. It follows, therefore, that when the manager eventually made the choice in favour of the 5[th] respondent, it was the 5[th] respondent who became qualified in all respects to hold the post of Principal, notwithstanding that the petitioner had attained educational qualifications and the necessary experience as mandated in the Rules prior to the 5[th] respondent. The legal position with regard to the promotion of a candidate as Principal taking effect from the date on which the vacancy arose, or alternatively from the date on which the person became qualified to hold the promotion post, would have enured to the benefit of the petitioner only in the event the choice of the manager had to be in his favour when there was no other qualified candidate available, or was in his favour despite the availability of other qualified candidates. In the instant case, the inaction of the petitioner in pursuing her **W.A.No.211/2021 :: 11 ::** claim when she was the only qualified candidate available, prevented an effective consideration of her candidature during the period upto 12.10.2020. Thus, in any view of the matter, we see no merit in the Writ Appeal, and for the reasons stated in the impugned judgment, as supplemented by the reasons in this judgment, we dismiss the same. **Sd/-** **A.K.JAYASANKARAN NAMBIAR JUDGE** **Sd/GOPINATH P. JUDGE** **prp/19/3/21**