Sasikala M. v. The State of Kerala and Others

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MR. JUSTICE AMIT RAWAL` ``` FRIDAY, THE 3[RD] DAY OF MARCH 2023 / 12TH PHALGUNA, 1944 ``` ``` WP(C) NO. 20213 OF 2012 ``` ## `PETITIONER:` ``` SASIKALA M, TEACHER, A.M.U.P.SCHOOL, KLARI NORTH, PALACHIRAMAD, MALAPPURAM. BY ADV SRI.R.K.MURALEEDHARAN ``` ## `RESPONDENTS:` ``` 1THE STATE OF KERALA REP. BY ITS SECRETARY TO GENERAL (F) EDUCATION, THIRUVANANTHAPURAM-695001. 2THE DISTRICT EDUCATIONAL OFFICER TIRUR, MALAPPURAM-676101. 3THE ASSISTANT EDUCATIONAL OFFICER TANUR, MALAPPURAM-676505 4THE MANAGER A.M.U.P.SCHOOL, KLARI NORTH, PALACHIRAMAD, MALAPPURAM-676505. 5A.P.MOIDU TEACHER, A.M.U.P.SCHOOL, KLARI NORTH, PALACHIRAMAD, MALAPPURAM-676505. BY ADVS.SRI.K.E.HAMZA SRI.V.A.MUHAMMED ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C) No. 20213 of 2012 2 ## **JUDGMENT** Dated this the 3[rd] day of March, 2023 Order dated 14.08.2012 Ext.P9 conferring minority status to the UP school is under challenge in the present writ petition on behalf of the petitioner. 2. Petitioner was appointed as a teacher on 1-12-1988. A vacancy of Headmaster arose in the school with effect from 1-05-2005 on retirement of M.P Kurian on 30-04-2005. As per the seniority list maintained by the school under the provisions of the Kerala Education Act & Rules(KER), petitioner was the next qualified teacher to be promoted as Headmistress of the school. However, the manager of the school, 4[th] respondent, ignoring the seniority and the qualification given charge to the 5[th] respondent who started his career only in the year 1991, that is, after three years of the petitioner joining the school. 3. The Assistant Education Officer rejected the proposal of approval of the 5[th] respondent on the ground that the seniority was not followed. The said order dated 03-08-2005 was assailed by the 4[th] respondent, Manager before the District W.P.(C) No. 20213 of 2012 3 Education Officer, 2[nd] respondent, which was allowed by order dated 07-10-2005 (Ext.P3). 4. The request dated 19-10-2005 was submitted to reconsider the order dated 07-10-2005. However, subsequently the petitioner obtained the order of the government granting minority status to the school with effect from 24-05-2005. In case the school is granted minority status, the seniority is not required to be followed. The said order was assailed in this Court in writ petition bearing No.29723/2005. This Court vide judgment dated 26-07-2011 directed the Government to pass fresh order and treated the order granting minority status as provisional. Thereafter, Ext.P9 order has been passed which is under challenge. 5. Learned counsel appearing on behalf of the petitioner submitted that the delay between the hearing and passing of the order is so big that the cause of action with regard to the appointment of the 5[th] respondent, for no fault of the petitioner, stood eroded. The vacancy arose on 01-05-2005 whereas the minority status was granted on 24-05-2005 and rightly so, W.P.(C) No. 20213 of 2012 4 approval of the appointment of the respondent was rejected for not complying with the seniority. 6. The impugned order Ext.P9 has not taken into consideration the aforementioned fact and therefore, liable to be set aside on that short round alone. The school does not have 92% of the minority status much less the faculty. Findings are wholly erroneous without any record. 7. On the other hand, the counsel representing the 4[th] respondent submitted that as per the earlier record, the school belonged to muslim community, that is minority; out of 1369 students 1325 belonged to Muslim community and 30 out of 45 teachers also belonged to Muslim community. On account of that, minority status was granted with effect from 24-05-2005, which have been upheld by the order impugned Ext.P9. Once the status of minority was accorded, the college is not required to follow the principles of the Kerala Education Rules, in other words, person more meritorious can be appointed as headmistress irrespective of seniority. This is precisely what has been done. W.P.(C) No. 20213 of 2012 5 8. Sri.Justin Jacob, the learned Senior Government Pleader submitted that the impugned order is well reasoned and is based on the strength of the students viz-a-viz the faculty, thus no prejudice has been caused to the petitioner. 9. I have heard counsel for the parties and appraised the paperbook. ## 10. The order impugned reads as under: ## “GOVERNMENT OF KERALA ## Abstract General Education - Judgment dated 26.07.2011 in WP(C) No. 29723/2005 filed by Smt. Sasikala. M. - Direction of the Hon'ble High Court Complied with-Orders issued -------------------------------------------------------------------------------------- GENERAL EDUCATION (F) DEPARTMENT GO (Rt) No.3954/12/G.Edn. Dated,Thiruvananthapuram,14th August, 2012. ## Read: - 1) G.O. (Rt.) No. 2112/2005/G.Edn. Dated 24.05.2005. 2) Judgment dated 26.07.2011 in WP(C) No. 29723/2005 filed by Smt. Sasikala.M., Teacher, AMUP School, Klari North, Palachiramad, Malappuram District. ## W.P.(C) No. 20213 of 2012 6 ## ORDER The Hon'ble High Court of Kerala in the judgment in WP(C) No. 29273/2005 dated 22.07.2011 directed that an appropriate decision will be taken after hearing the parties and after assessing various materials within a period of four months from the date of receipt of a copy of this judgment. Smt. Sasikala M., Teacher, AMUP School, Klari North, Palachiramad, Malappuram District is the petitioner in the Writ Petition and the State of Kerala represented by the Secretary, General Education Department, Director of Public Instructions, District Educational Officer, Tirur, Assistant Educational Officer, Tanur, Sri. A.P. Moidu, Teacher, AMUP School, Klari North and the Manager of the School are the respondents. The Government vide G.O. (Rt.) No. 2112/2005/G.Edn. dated 24.05.2005 accorded minority status to AMUP School, Klari North, Palachiramad so as to enjoy benefits under article 30(1) of the Indian Constitution. The Hon'ble High Court in the judgment read as 2nd paper above observed that the aforesaid order will be treated as provisional decision only. 2) As directed by the Hon'ble High Court, the undersigned heard the parties and the Educational Officers concerned. 3) Smt. Sasikala contended that the Ext. P7 Government Order is issued without considering the adverse impact on the staff of the school who never knew in their entire service that the school has a minority status. For the very reason it cannot be contended that it is a recognition of an existing status from W.P.(C) No. 20213 of 2012 7 ## the very date of establishment of the school. 4. Sri. M.P. Kurian, Headmaster of the school retired on superannuation on 30.04.2005. The petitioner was the senior most qualified teacher to be promoted as Headmaster against the retirement vacancy. But the Manager appointed Sri. A.P. Moidu, a teacher of the school who is junior to the petitioner as Headmaster in violation of statutory provision. The petitioner claimed her right to be appointed as Headmaster under Rule 45 of Chapter XIV A of Kerala Education Rules. But the Manager submitted proposal for approval of Sri. A.P. Moidu which was rejected by Assistant Educational Officer, Tanur. The Manager appealed before the District Educational Officer, Tirur and the District Educational Officer, Tirur approved the appointment of Sri. A.P. Moidu on the ground that the school has been conferred minority status by the Government vide order read as 1st paper above. The petitioner contended that the Ext. P7 order is only provisional and that the school has no right to get minority status. The school and its property after being founded during 1928 by the founder Manager late T. Mammali, for catering to the educational requirement of the school going children of the entire communities in the village in and around the school, irrespective of whether they belong to minority community or any other community, has been in the legal possession of his successors as a family property. Hence there is no involvement of the Minority Community as such in the administration of the school after being established by an individual. The school management cannot claim to have established the school for the benefit of the minority, it ## W.P.(C) No. 20213 of 2012 8 belatedly claim to represent, nor claim to have been administered by the minority community to derive the protection under Article 30(1) of the Indian Constitution. 5) The petitioner prayed to issue necessary orders revoking Government Order read as first paper above and issue necessary direction to the manager of the school to promote Smt. Sasikala M. as Headmistress of school w.e.f. 01.5.2005. 6) The Manager, AMUP School, Klari North has submitted that the Klari Palachiramad (North) Mappila School was established in the 1928 by the social reformist Sri. Mammali and approved by the Malabar District Education Council under Malabar District Board in Malabar State. The school was set up with avowed objective of upliftment of the Muslim students living in the locality. In 1962 the school was upgraded as U.P. school and renamed as AMUP School. The founder Manager of the school namely T. Mammali and the subsequent Managers T. Pocker and Smt. Amikutty belong to the minority community. The school was established and administered by the minority community. From 1928 onwards approximately 90% of the students undergone studies belonging to the Muslim community. 30 out of the total staff also belonged to the Muslim Community. From 1928 onwards the school was following Muslim calendar. in the months of Ramzan there would be holidays for the school. In short, school in question is a minority institution in all respects. No person has at any point of time raised any dispute regarding minority status of the school. The Respondent submitted a petition dated 11.02.2005 before the Government claiming minority ## W.P.(C) No. 20213 of 2012 9 status of the school. Necessary enquiry was conducted and the Government vide Ext. P7 was pleased to accord minority status of the school. 7) The Hon'ble Supreme Court in St. Thomas U.P. School v. Commissioner and Secretary to Government (2002) (1) KLT 655 (SC) held that the right to establish an institution would include a case where a single philanthropic individual with his own means founds the institution. Government vide G.O. (Rt.) No. 3720/2005/G.Edn. dated 27.07.2005 and G.O. (Rt.) No. 904/2006/G.Edn. dated 28.02.2006 appreciated the minority status of such institutions which are established by single philanthropist belonging to Muslim minority community, established and administered in order to cater the educational need and upliftment of the Muslim Community as a whole. Therefore the Manager prayed to confirm the Ext. P7 order and issue direction to approve the appointment of Sri. A.P. Moidu as Headmaster w.e.f. 01.05.2005. 8) Government have examined the contentions of both the parties and the documents of A.U.P. School, Klari North which was granted minority status vide Government Order read as first paper after due process of law i.e., after obtaining the report of the Educational Officers and other connected documents. At the time of granting minority status 92% of the students and majority of the teachers belong to minority community. Apart from the above, the school was following Ramzan holidays and the P.T.A. had also requested for granting minority status. The school was established in the year 1928 and recognized by the Malabar District Education Council under Malabar District Board mainly for nurturing the W.P.(C) No. 20213 of 2012 10 educational needs of the minority community. The school established by a single philanthropic individual can also claim the status of minority institution. The Government is the competent authority to declare an institution as minority institution and in the instant case Government have already granted minority right to the school after following the procedural formalities to a certain extend. The institution has not violated any of the provisions in the Kerala Education Rules warranting withdrawal of the status already granted. 9) In the circumstances, taking into account the observations of the Hon'ble High Court, minority status granted to the AMUP School, Klari North is restored. The direction of the Hon'ble High Court vide judgment read as 2nd paper above is complied with accordingly. (By Order of the Governor) M. SIVASANKAR, SECRETARY TO GOVERNMENT” 11. It reveals that the minority status has been granted keeping in view the students that out of 1369 students 1325 belonged to Muslim community and 30 out of the 45 teachers also belonged to Muslim community. It is a settled law that once minority status is granted then the procedure prescribed W.P.(C) No. 20213 of 2012 11 regarding the seniority is not to be followed for the purpose of promotion as headmistress. Junior having more merit can be appointed. 12. Much water has flown. There is no interim order putting the condition that the approval of appointment of the 5[th] respondent shall be subject to the outcome of the writ petition. The writ petition is accordingly dismissed. Sd/- **AMIT RAWAL** mtk **JUDGE** W.P.(C) No. 20213 of 2012 12 ## `APPENDIX OF WP(C) 20213 OF 2012` ``` PETITIONER’S EXHIBITS ``` ``` A TRUE COPY OF THE REPRESENTATION EXHIBIT P1 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT DATED 30.04.2005 A TRUE COPY OF THE ORDER OF THE 3RD EXHIBIT P2 RESPONDENT DATED 3.08.2005 A TRUE COPY OF THE ORDER OF THE 2ND EXHIBIT P3 RESPONDENT DATED 7.10.2005. A TRUE COPY OF THE REPRESENTATION DATED EXHIBIT P4 19.10.2005 ATRUECOPYOFTHEGO(Rt) EXHIBIT P5 No.2112/05/G.Edn dated 24.05.2005. A TRUE COPY OF THE JUDGMENT IN WP(C) EXHIBIT P6 NO.29723/2005 DATED 26.07.2011. A TRUE COPY OF THE AFFIDAVIT FILED ON EXHIBIT P7 BEHALF OF THE 1ST RESPONDENT IN I.A 5623/2012. A TRUE COPY OF THE AFFIDAVIT IN SUPPORT OF EXHIBIT P8 THE PETITION FOR EXTENSION OF TIME. A TRUE COPY OF THE GO(Rt) No.3954/12MG.Edn EXHIBIT P9 DATED 14.08.2012. ``` ``` RESPONDENTS EXHIBITS ``` ``` TRUE COPY OF THE EXTRACT FROM THE EXHIBIT R4(a) PROCEEDINGS OF THE MADRAS DISTRICT EDUCATIONAL COUNCIL DATED 26TH JULY 1928 ``` ## W.P.(C) No. 20213 of 2012 13 ``` EXHIBIT R4(b) ``` ``` TRUE COPY OF THE MEMORANDUM DATED 1.12.1938 OF THE DEPUTY INSPECTOR OF SCHOOLS, PONNANI MAPILA RANGE. ``` ``` EXHIBIT R4(c) ``` ``` TRUE COPY OF THE ORDER No. Dis.2379 G1/59 DATED 26.05.1959 ISSUED BY THE 2ND RESPONDENT ``` ``` EXHIBIT R4(d) ``` ``` TRUE COPY OF THE ORDER No.K.Dis B/2880/04 DATED 31.05.2004 ISSUED BY ASSISTANT EDUCATIONAL OFFICER, TANUR ``` ``` EXHIBIT R4(e) ``` ``` TRUE COPY OF THE DETAILS OF ADMISSION CALCULATED FROM THE ADMISSION REGISTER ``` ``` EXHIBIT R4(f) ``` ``` TRUE COPY OF THE LETTER No. B/1889/05 DATED 23.04.2005 ISSUED BY ASSISTANT EDUCATIONAL OFFICER, TANUR. ``` ``` TRUE COPY OF THE RELEVANT PAGES OF THE EXHIBIT R4(g)INSPECTION BOOK. ```