Suja P. Varughese v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 20[TH] DAY OF MAY 2024 / 30TH VAISAKHA, 1946** ## **WP(C) NO. 20854 OF 2023** ## **PETITIONER/S:** **SUJA P VARUGHESE AGED 55 YEARS W/O. LATE. MONCY KOSHY HST (MATHEMATICS) MTSHSS, KOTTAYAM- 686002 (RESIDING AT KAITHAYIL, KOLLADU P.O, KOTTAYAM) 686004, PIN - 686004 BY ADVS. V.PHILIP MATHEWS ASHISH MATHEW JOHN ABY SKARIA ABIYA MARIYAM MATHEW MATHEWS PHILIP V.** ## **RESPONDENT/S:** - **1 STATE OF KERALA STATE OF KERALA, REPRESENTED BY SECRETARY DEPARTMENT OF GENERAL EDUCATION, KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695001, PIN – 695001** - **2 THE DIRECTOR GENERAL OF EDUCATION JAGATHY, THIRUVANANTHAPURAM -695001, PIN – 695001** - **3 DISTRICT EDUCATIONAL OFFICER, KOTTAYAM KOTTAYAM DISTRICT EDUCATION OFFICE, NSS BUILDING, NEAR THIRUNAKKARA TEMPLE, KOTTAYAM- 686001., PIN – 686001** - **4 DISTRICT EDUCATIONAL OFFICER KOTHAMANGALAM 5TH FLOOR,NEAR PRIVATE BUS STAND REVENUE TOWER, KOTHAMANGALAM - 686691, PIN – 686691** - **5 THE MANAGER, M.T AND E. A. SCHOOLS CORPORATE MANAGEMENT, S.C.S. CAMPUS, THIRUVALLA P. O PATHANAMTHITTA DISTRICT689101, PIN – 689101** - **6 RUBY JOHN HEADMISTRESS, M.T.S.H.S.S,KOTTAYAM RAILWAY STATION RD, NAGAMPADAM, KOTTAYAM,- 686002, PIN – 686002** - **7 MINI THOMAS HEADMISTRESS, ST.THOMAS H.S.S, KEEZHILLAM ERNAKULAM - 680541, PIN - 680541** **BY ADVS.** ## **W.P.C No. 20854 of 2023** 2 **ADVOCATE GENERAL OFFICE KERALA S.SUBHASH CHAND TONY GEORGE KANNANTHANAM THOMAS GEORGE(K/000407/1990)** **ADV SAROJINI K A-GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.P.C No. 20854 of 2023** 3 ## **JUDGMENT** The basic challenge in this writ petition is with respect to the denial of appointment of the petitioner as the Headmistress in any of the schools under the corporate management of the 5[th] respondent. The prayers sought in this writ petition are as follows: - “i. Issue appropriate writ or order declaring that appointments of respondents 6 and 7 as Headmistresses in MTSHSS, Kottayam and St. Thomas HSS, Keezhillam are illegal, unsustainable and invalid. - ii. Issue a writ of mandamus or other appropriate writ or order directing respondents 2 ,3 and 4 not to approve appointment of respondents 6 and 7 as headmistresses under fifth respondent in MTSHSS, Kottayam and St. Thomas HSS, Keezhillam. - iii. Issue appropriate writ or order declaring that denial of appointment to the Petitioner as Headmistress under fifth respondent is illegal and unenforceable and that Petitioner has a right to get appointment as Headmistress. - iv. Issue a writ of mandamus or other appropriate writ or order directing 5th respondent to appoint the Petitioner as Headmistresses in MTSHSS, Kottayam with effect from 01-062023 with all consequential service benefits. - v. Issue a writ of mandamus or other appropriate writ or order directing respondents 2 and 3 to consider and take appropriate action on Exhibits P 6 and P7 and not approve the appointments of respondents 6 and 7 till a decision is taken on Exhibits P6 and P7. ## **W.P.C No. 20854 of 2023** 4 - vi. Pass appropriate orders dispensing with production of English translation of Exhibits in Malayalam. - vii. Pass such other reliefs which this Hon'ble Court deems just and necessary and that may be prayed for by the Petitioner while hearing the Writ Petition.” 2. The facts which are necessary for adjudication of the issues in this writ petition are as follows: The petitioner is working as the HST Mathematics in MTSHSS, Kottayam which is under the corporate management of the 5[th] respondent. According to the petitioner, she is the senior most higher secondary school Teacher in the schools managed by the 5[th] respondent and therefore fully qualified to be appointed as the Headmistress in any of the schools of the 5[th] respondent. The 5[th] respondent, invited applications from the qualified hands among the Teachers of the institution managed by them for filling up the post of Headmistress. In response to the same the petitioner submitted an application and after a selection process, the respondents 6 and 7 were appointed as the Headmistresses of M.T.H.S.S, Kottayam and St.Thomas H.S.S. Keezhillam respectively, which are the schools under the 5[th] respondent. The basic challenge raised in this writ petition is against the said appointments. ## **W.P.C No. 20854 of 2023** 5 3. The 5[th] respondent submitted a detailed counter affidavit wherein, the process of appointment adopted by them has been mentioned in detail. Besides the same, they also contended that the institution being a minority institution, they have the right under Article 30 (1) of the Constitution of India to make a choice of their own as far as the appointment of the head of the institution is concerned. The appointment of the 6[th] and 7[th] respondents were made in exercise of their constitutional rights and therefore the petitioner cannot raise any challenge with respect to the same. Reliance was placed on the judgments rendered by the Honourable Supreme Court in **Manager, Corporate Educational Agency v. James Mathew and others** [2017 (4) KHC 83] and **Reena R.P v.R.S Geetha and others** [2010 (2) KHC 110]. 4. A reply affidavit was filed by the petitioner in response to the same. The Government has also filed a counter affidavit upholding the rights of the 5[th] respondent in a minority institution. 5. Heard, Sri.V.Philip Mathew, the learned counsel appearing for the petitioner, Sri.S.Subash Chand, the learned counsel appearing for the 5[th] respondent, Sri.Tony George ## **W.P.C No. 20854 of 2023** 6 Kannanthanam, the learned senior counsel appearing for the respondents 6 and 7. 6. The specific contention put forward by the learned counsel for the petitioner is to the effect that the selection process by which the 6[th] and 7[th] respondents were appointed was not transparent, and the criteria fixed for selection has not been disclosed by the 5[th] respondent. Another contention raised by the learned counsel for the petitioner is that, one of the members of the interview board, was the relative of one of the candidates and at the time of the selection process he did not participate in the selection. It was also contended that the selection was to the post of the Headmaster/Headmistress of a high school and the same cannot be treated as the head of the institution, since those schools are higher secondary schools for which the head of the institution is the Principal of the higher secondary school. Therefore it was contended that, the rights of the minority institution as contemplated under Article 30(1) of the Constitution cannot be extended, as according to him, the same is applicable to the post of the head of the institution. 7. On the other hand, the learned counsel appearing for the 5[th] respondent contended that, the selection process was ## **W.P.C No. 20854 of 2023** 7 conducted in a fair and transparent manner with the intention to find out the most suitable candidate who can also promote the objects of the community of the minority institution. In pursuance of the same, a fair selection procedure was adopted and a select list which is produced as Ext.R5(g), was prepared. 8. The learned senior counsel appearing for the 6[th] and 7[th] respondent pointed out that, the petitioner cannot raise a challenge against the selection procedure adopted by the 5[th] respondent, as he participated in the selection process on the basis of the notification issued in this regard without any demur. According to the learned senior counsel, after having participated in the entire selection process, he cannot now turn around and challenge the appointments made, on the ground that the selection process itself was bad. 9. I have carefully gone through the records. The main contention raised by the learned counsel for the petitioner is by placing reliance upon the decision rendered by a full Bench of this Court in **Kurian Lizy v. State of Kerala** [2006 (4) KLT 264]. In the said decision, even while upholding the right of the minority institution to make appointments of the head of the institution by making their own choices, certain observations ## **W.P.C No. 20854 of 2023** 8 were made with regard to the manner in which such powers and rights have to be invoked, particularly when the question of making appointments of the person among the same community arises. The relevant observations which were relied on by the learned counsel for the petitioner are at paragraph 8 of the said decision which reads as follows: - “8.The discussion made above based upon the two decisions of the Honourable Supreme Court apart, what however really clinches the issue is the question framed by the Honourable Supreme Court as 5(c) and the answer thereto, Question 5(c) in T.M.A. Pai Foundation's case (supra) which reads as follows: “Whether the statutory provisions which regulate the facets of administration like control over educational agencies, control over governing bodies, conditions of affiliation including recognition/withdrawal thereof, and appointment of staff, employees, teachers and Principals including their service conditions and regulation of fees, etc. would interfere with the right of administration of minorities.” This the Supreme Court answered as follows: “So far as the statutory provisions regulating the facets of administration are concerned, in case of an unaided minority educational institution, the regulatory measure of control should be minimal and the conditions of recognition as well as the conditions of affiliation to a university or board have to be complied with, but in the matter of day-to-day management, like the appointment of staff, teaching and non-teaching, and administrative **W.P.C No. 20854 of 2023** 9 control over them, the management should have the freedom and there should not be any external controlling agency. However, a rational procedure for the selection of teaching staff and for taking disciplinary action has to be evolved by the management itself.” After answer to the question directly covering the issue in hand with regard to appointment of Headmaster or Principal, nothing else survives for determination. It would be unnecessary in this order in probing further the matter. We, thus, hold that the management of a minority educational institution would have freedom to appoint Headmaster or Principal. Rule 44(1) of the Rules of 1959 would have no control over the powers conferred under Article 30(1)of the Constitution, although such institution has necessarily to evolve a rationale procedure for selection of the Headmaster or Principal, this context, 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, which runs the institution are superseded without assigning any reason. Article 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 Article 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 ## **W.P.C No. 20854 of 2023** 10 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 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.” 9. Of course it is true that, as per the observations made by this Court in **Kurian Lizy** 's case, the institution ought to have published the regulations or bylaws containing a transparent procedure governing such a situation. It was also observed that the said publication can be made in the notice board of the educational institution concerned and a copy of it should be available in school/college library for reference. In this case, it is to be noted that Ext.R5(c) is the notification issued by the 5[th] respondent inviting the application for filling up the said post. In the same it has been specifically mentioned ## **W.P.C No. 20854 of 2023** 11 that the selection shall be as per the Sabha Council norms, governing body decisions and Government orders from time to time. Of course the petitioner in paragraph 6 of the writ petition has raised a specific contention that, the criteria fixed for selection has not been disclosed by the 5[th] respondent. However, while considering the said contention, the fact that, the petitioner participated in the selection process in response to the Ext.R5 (c) notification that contains the basis of selection process, which includes Sabha Council norms, governing body decision, Government orders etc., has some crucial importance. The fact that he participated, in the selection process without any demur at that point of time with respect to the selection procedure, itself is an indication of the fact the petitioner was aware of the criteria that was being followed by the 5[th] respondent institution. Since he voluntarily participated without making any challenge with respect to the procedure of the same, and/or without seeking any further explanation on the details as to the method of appointment that was to be followed by the 5[th] respondent, the contention now raised by the petitioner at this belated stage, when she was not selected, cannot be entertained. ## **W.P.C No. 20854 of 2023** 12 10. Besides the same, as rightly pointed out by the learned counsel for the 5[th] respondent, the question with regard to the selection to be made among the candidates of the community of the institution, was specifically considered by the Honourable Supreme Court in **James Mathew** case (supra), the judgment of which is produced as Ext.R5(b). In paragraph 5 of the said judgment, the Honourable Supreme Court extracted the observations made by the Honourable Supreme Court in another judgment in **Secretary, Malankara Syrian Catholic College v. T Jose and others** [2007 (1) SCC 386]. In the said decision, after observing about the rights of the person belonging to the same community of the management and the right of the minority institution available under Article 30(1) of the Constitution of India, the following observations are made. “The emerging position is that, once the Management of a minority educational institution makes a conscious choice of a qualified person from the minority community to lead the institution, either as the Headmaster or Principal, the Court cannot go into the merits of the choice or the rationality or propriety of process of choice. In that regard, the right under Art.30(1) is absolute.” ## **W.P.C No. 20854 of 2023** 13 11. It is also to be noted in this regard that, in the said decision, the statutory provision which limits the powers of the management, was held to be not applicable to the minority educational institution, by virtue of the Constitutional rights available to such institution under Article 30(1) of the Constitution of India. Moreover, in the said decision, it was categorically observed by the Honourable Supreme Court that, as far as the appointment of the Headmaster or Principal by a minority institution is concerned, the Court cannot go into the merits of the choice or the rationality or proprietary of the process of choice. 12. The consequence of the aforesaid observations is that the scope of an inquiry into the selection process adopted by the minority institution with respect to the Headmaster or Principal is very much limited, and unless there is patent illegality, the same cannot be interfered with. As far as the observations made by this Court in **Kurian Lizy** 's case are concerned, even though the same refers to the publication of the bylaws or the criteria to be followed for the selection process, the same as such cannot be made applicable to the facts of this case. This is particularly because in the notification itself, the criteria which is ## **W.P.C No. 20854 of 2023** 14 to be followed for the selection process has been specifically mentioned and the petitioner submitted application on the basis of such notification without raising any challenge or seeking any clarification. Therefore it cannot be concluded that there were any lapses on the part of the 5[th] respondent in making the assessment of merits of the candidate and appointing the respondents 6 and 7. 13. Another contention raised by the learned counsel for the petitioner is that, the rights of the 5[th] respondent under Article 30(1) of the the Constitution of India cannot be extended to the appointment of the Headmaster/Headmistress of high school, as they cannot be treated as a head of the institution in view of the fact that the schools which are the subject matter of this Writ Petition were higher secondary schools which are headed by the Principal of higher secondary school. Therefore, the Headmaster/Headmistress not being the head of the institution, the protection under Article 30(1) of the Constitution of India cannot be extended. However, I am not inclined to accept the said contention. This is particularly because, I am unable to find any statutory provision which enables the Principal of the higher secondary school to exercise ## **W.P.C No. 20854 of 2023** 15 administrative control over the functions of the high school. It is also evident from the statutory scheme of the Kerala Education Act and the Rules that the high school and higher secondary school are different and the process of admission are also different. Therefore, in the absence of any specific provision providing administrative control for the Principal over the affairs of the high school, under no circumstances, the Principal can be treated as the head of the institution of the high school. Therefore, the only conclusion possible is that the Headmaster/Headmistress is the head of the institution of the high school and therefore, the protection under Article 30(1) of the Constitution of India is available to the 5[th] respondent. 14. As regards the lack of transparency of the procedure, the learned counsel for the petitioner contended that, one of the members of the interview board was a relative of the 6[th] respondent. However, as is discernible from the records that, the said member did not participate in the selection process of the said post. Even though the learned counsel for the petitioner highlighted this as an improper procedure, I am not inclined to accept the same. It is pointed out that, at the time of the selection of that particular candidate the member ## **W.P.C No. 20854 of 2023** 16 concerned went outside. It was also pointed out by the learned counsel for the respondent that, the said member did not award any marks to any of the candidates as well. In such circumstances, I do not find this as a reason which affects the transparency of the procedure adopted. 15. Another contention put forward by the learned counsel for the petitioner is by placing reliance on Ext.R5(o) wherein, the various heads on which the marks were to be granted to the candidates were contemplated. It was pointed out that one of the criteria related to Church oriented activities, Sunday School/VBS/Sevika Sangam, Yuvajana Sakhyam, Membership in Choir and other Church related organizations for the last 5 years. It was pointed out that as far as the said criteria is concerned, the same may not be available to the other members of the community or the same community. Therefore, it was not a fair selection process according to the petitioner. However, it is discernible from the various decisions rendered by the Honourable Supreme Court including **James Mathew** 's case that, the right of the minority institution includes their right to make conscious choice by finding out the most suitable candidate and among other qualifications, it can also be intended for promoting the interest ## **W.P.C No. 20854 of 2023** 17 of the community. While considering the aforesaid aspects, the philosophy of the community may also become relevant and for finding out the suitable person for the said purpose the criteria mentioned in Ext R5(o) may have some relevance. Therefore, the said criteria by itself cannot be treated as unreasonable so as to hold that the selection process adopted and the criteria on the basis of such selection process made were not transparent or fair. Thus when all the aforesaid aspects are taken into consideration, in the light of the settled position of law with regard to the absolute right of the 5[th] respondent, being a minority institution, to make appointment of the head of the institution of their own choice, I do not find any scope for considering the reliefs sought by the petitioner in this Writ Petition. Of course it is an admitted position that the petitioner was the senior most among the qualified person. However, Article 30(1) of the Constitution of India specifically contemplates right to the minorities to establish and administer the educational institutions of their choice and the same enables the 5[th] respondent to make a conscious choice of their own for filling up the vacancies of the head of the institution. A ## **W.P.C No. 20854 of 2023** 18 selection process on the basis of the same was also conducted and the petitioner voluntarily participated in the selection process without raising any challenge. The challenge now raised is only when she became unsuccessful in the selection process. As the 5[th] respondent is entitled to make appointments irrespective of the seniority of the petitioner, by virtue of the Constitutional rights, which has been upheld by the Honourable Supreme Court in various judgments, I do not find any merit in the Writ Petition. Therefore, this Writ Petition is dismissed. Sd/- **ZIYAD RAHMAN A.A.** **JUDGE** rpk **W.P.C No. 20854 of 2023** 19 ## **APPENDIX OF WP(C) 20854/2023** **PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE CERTIFICATE OF DISABILITY DATED 18-02-2020 ISSUED FROM GENERAL HOSPITAL, KOTTAYAM Exhibit P2 TRUE COPY OF G.O.(MS)NO. 22/2022 AD.R.GD THIRUVANANTHAPURAM DATED 2609-2022 ISSUED BY FIRST RESPONDENT . Exhibit P3 TRUE COPY OF LETTER DATED 10.5.23 FROM THE FIFTH RESPONDENT REQUESTING PETITIONER TO APPEAR FOR THE INTERVIEW ON12.5.23. Exhibit P4 TRUE COPY OF THE REPRESENTATION DATED 16.5.23 SUBMITTED BY PETITIONER TO THE FIFTH RESPONDENT. Exhibit P5 TRUE COPY OF THE REPRESENTATION DATED 17.5.23 SUBMITTED BY THE PETITIONER TO THE FIFTH RESPONDENT . Exhibit P6 TRUE COPY OF REPRESENTATION DATED 1.6.23 SUBMITTED BY PETITIONER TO SECOND RESPONDENT Exhibit P7 TRUE COPY OF REPRESENTATION DATED 1.6.23 SUBMITTED BY PETITIONER BEFORE THIRD RESPONDENT. RESPONDENT EXHIBITS Exhibit R5 (b) A true copy of the ruling of the Hon'ble Apex Court in Manager, Corporate Educational Agency v. James Mathew and others (2017 (4) KHC 83). Exhibit R5(c) A true copy of the notice dated 12.01.2023, issued by respondent No.5. Exhibit R5(f) A true copy of the call letter dated 10.05.2022 issued by respondent No.5 to the petitioner. Exhibit R5(a) A true copy of the certificate dated 12.01.2012 issued by the Secretary, National Commission for Minority Educational Institutions, New Delhi. Exhibit R5 (h) A true copy of the ruling of this Honourable Court in Xavier T.J. v. State of Kerala Exhibit R5(g) A true copy of the select list dated 12.05.2023 published on the notice board of the office of the Corporate Educational Agency** ## **W.P.C No. 20854 of 2023** 20 **Exhibit R5(d) Exhibit R5(j)** **A true copy of the list of applicants in alphabetical order dated 12/5/2023 True copy of the appointment order dated 01.06.2023 issued to respondent No.7.** **Exhibit R5 (k) True copy of the ruling reported as Madras Institute of Development Studies and another v. Dr.K. Sivasubramanyan and others 2015 KHC 4547 of the Honourable Apex Court Exhibit R5 (l) True copy of the ruling reported as Ranjith K.K. and another v. Kannur University and others and this Honourable Court. Exhibit R5 (m) A true copy of the ruling reported as Reena R.P. v. R.S. Geetha and others Exhibit R5 (i) True copy of the appointment order dated 01.06.2023 issued to respondent No.6.** **Exhibit R5(e) A true copy of the relevant pages of the provisionally approved seniority list of High School Teachers under the Corporate Educational Agency, 01.01.2023.**