Susamma Thomas v. State of Kerala and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 3RD DAY OF FEBRUARY 2012/14TH MAGHA, 1933 WPC.No. 17074 of 2005 (G) ------------------------- PETITIONER: - ------------- SUSAMMA THOMAS, H.S.A. ST. MICHAELS' GIRLS HIGH SCHOOL WEST HILL P.O., KOZHIKODE-673 005. BY ADVS.SRI.P.K.SURESH KUMAR SMT.P.JAYALAKSHMI RESPONDENT(S): - ----------------- 1. THE STATE OF KERALA, REP. BY THE SECRETARY, GENERAL EDUCATION DEPARTMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE ADDITIONAL DIRECTOR OF PUBLIC INSTRUCTION, OFFICE OF THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 3. THE DISTRICT EDUCATION OFFICER, OFFICE OF THE D.E.O., KOZHIKODE. 4. THE MANAGER, ST. MICHAELS' GIRLS HIGH SCHOOL, WEST HILL KOZHIKODE-673 005. 5. SR. GRACY IGNATIUS, HEADMISTRESS, ST. MICHAELS' GIRLS HIGH SCHOOL, WEST HILL KOZHIKODE-673 005. R1, 2 & 3 BY GOVERNMENT PLEADER SMT.LOWCY A. R4 & R5 BY SRI.KURIAN GEORGE KANNANTHANAM (SR.) THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03-022012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **APPENDIX IN W.P.(C)No.17074/05** ## **PETITIONER'S EXTS:** - EXT.P1: COPY OF LETTER DT.24.5.04 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER. - EXT.P2: COPY OF APPEAL DT.31.5.04 ISSUED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. - EXT.P3: COPY OF PROCEEDINGS DT.13.10.04 ISSUED BY THE 3RD RESPONDENT. - EXT.P4: COPY OF ORDER DT.13.10.04 APPROVING THE APPOINTMENT OF THE 5TH RESPONDENT, PASSED BY THE 3RD RESPONDENT. - EXT.P5: COPY OF ORDER DT.22.4.05 PASSED BY THE 2ND RESPONDENT. - EXT.P6: COPY OF LETTER NO.28228/A2/05/GL.EDN. DT.19.5.06 ISSUED BY THE GOVERNMENT, GENERAL EDUCATION(A)DEPARTMENT. ## **RESPONDENTS' EXTS:** - EXT.R4(A); COPY OF ORDER NO.B5-10766/03/K.DIS. DT.20.9.03. - EXT.R4(B): COPY OF ORDER OF THE DEO, KOZHIKODE DT.14.7.90. - EXT.R4(C): COPY OF MEMORANDUM OF ASSOCIATION AND RULES AND REGULATIONS OF THE BETHANY EDUCATIONAL SOCIETY. - EXT.R4(D): COPY OF AMENDED MEMORANDUM OF ASSOCIATION AND RULES AND REGULATIONS OF THE BETHANY EDUCATIONAL SOCIETY. **T.R.RAMACHANDRAN NAIR, J. -------------------------------------------------W.P.(C)No.17074 of 2005** **-------------------------------------------------DATED THIS THE 3[rd] DAY OF FEBRUARY, 2012** ## **JUDGMENT** The Writ Petitioner herein was working as High School Assistant in the St.Michael's Girls High School, West Hill, Kozhikode at the time of filing of the Writ Petition and now she is no longer in the service as she retired from service on 31.5.2007. Her claim for promotion as Headmistress of the school was not conceded by the Management which led to the filing of the Writ Petition, after she had approached various statutory authorities and failed to get any positive order. 2. The details of service of the petitioner, her seniority and the qualifications are not under dispute. The 5[th] respondent who was a High School Assistant in another school under another Management was brought to the school by way of intermanagement transfer as Headmistress. 3. A vacancy arose on 1.4.2004 and the 5[th] respondent was appointed on 13.10.2004 after the inter-management transfer was approved by the District Educational Officer as per W.P.(C)No.17074/05 Exhibit P4 order. -2- 4. The crucial question that arises for a decision is whether the 5[th] respondent who was not qualified as on the date of occurrence of vacancy on 1.4.2004 could be brought as Headmistress, even though after getting approval, for intermanagement transfer, since, according to the petitioner, the qualification for promotion will have to be considered in terms of the date of occurrence of vacancy, i.e., 1.4.2004. 5. First I will refer to the orders passed by the statutory authorities. Exhibit P3 is the order passed by the District Educational Officer dated 13.10.2004. In Exhibit P3, the only consideration was regarding the right for promotion of the petitioner, which was met by the Management by stating that in the light of the protection under Article 30(1) of the Constitution of India, the Management is at liberty to take a decision with regard to the person to be promoted. It was ordered that the Management is free to take a decision. Therefore, the scope of Exhibit P3 is only regarding the said aspect. 6. Exhibit P4 is the order passed by the District Educational Officer whereby inter-management transfer of W.P.(C)No.17074/05 -3- the 5[th] respondent as High School Assistant (Social Science) from St.Agnes Girls High School to St.Michael's Girls High School,West Hill has been approved. The order shows that the District Educational Officer had issued orders on 20.9.2003 approving the minority status of St.Michael's Girls High School, West Hill. The application for inter-management transfer was forwarded by the District Educational Officer, Kollam which was acted upon for the purpose of issuing Exhibit P4 order. Exhibit P5 is the proceedings of the Director of Public Instruction, whereby the revision petition filed by the petitioner was disposed of holding the view that the request for promotion deserve no merit, since the District Educational Officer has already approved the appointment of the 5[th] respondent as Headmistress of the school. The final order passed by the Government is produced as Exhibit P6 along with I.A.No.1123/2012. Therein the view taken is that the Management has effected promotion to the post of Headmaster under minority right, which entitles them to appoint a qualified person as Headmaster, overlooking the seniority criterion and hence the representation was rejected. W.P.(C)No.17074/05 -4- 7. The learned counsel for the petitioner relied upon the following decisions of this Court in support of the plea that the Management could not have overlooked the claims of qualified persons as on the date of occurrence of vacancy. The first one relied on is a decision of the Full Bench of this Court in **Padmanabhan Nair v. Dy.Director (1991(1) KLT 337(FB)** . The other decision relied on is **Manager, P.S.High School v. The State of Kerala (ILR 1998(1) Kerala 98)** . The decision of this Court in **Mohanan v. Manager A.U.P.School (2007(4) KLT SN 48 (Case No.52)** also was referred to in support of the above plea and the last of the decision referred to is of a Full Bench decision in **Belsi v. Corporate Management of Latin Catholic Schools (2010 (2) KLT 134)(FB)** . 8. Regarding inter-management transfer, the relevant Rule that is material for consideration is Rule 11(1) of Chapter XIV-A KER and the Note therein, which reads as follows: 11(1). A teacher serving in any school under one Educational Agency may be transferred to a school under another Educational Agency with the previous approval of the District Educational Officer provided the two Educational Agencies and the teacher agree in writing; and in such cases the number and date of the order of the District Educational Officer W.P.(C)No.17074/05 -5- containing the approval shall be quoted in the Last Pay Certificate. **==> picture [278 x 10] intentionally omitted <==** Note: The Transfer under this rule may be to a post carrying the same scale of pay, a higher scale of pay or a lower scale of pay. Provided that no transfer to a higher post shall be made if the person to be transferred does not possess the prescribed qualification for such post or if there are persons with the prescribed qualification in the school eligible for promotion to that post to which the transfer is proposed.” Rule 43 of Chapter XIV-A concerning promotion provides as follows: Subject to rules 44,45 and 51A and considerations of efficiency and any general order that may be issued by the Government, vacancies in any higher grade of pay shall be filled up by promotion of qualified hands in the lower grade according to seniority, if such hands are available: Provided that in the case of promotion to the post of High School Assistant (Subject), the minimum subject requirements alone need be satisfied, to safeguard the interests of trained graduates who are awaiting promotions as High School Assistants. Provided further that where a Headmaster or a teacher who has been promoted under this rule faces retrenchment for want of vacancy, he shall be reverted to the category of post from which he has been promoted provided he is not eligible for protection in the retrenched post as per the orders issued by the Government from time to time. The Note(2) therein is material for the purpose of deciding the issue raised herein . The same is extracted below: W.P.(C)No.17074/05 -6- Note:-(2) Promotion under this rule shall be made from persons possessing the prescribed qualifications at the time of occurrence of vacancy”. 9. Therefore Rule 43 and the Note therein will show that the promotion has to be made from the persons possessing prescribed qualification at the time of occurrence of vacancy. The Full Bench in **Padmanabhan Nair v. Dy.Director (1991(1)** **KLT 337(FB)** reiterated the principle in the following words: “When qualifications are prescribed for a promotion post, eligibility for appointment to the post has to be reckoned with reference to the date on which the vacancy arose. If there was a qualified hand, on that date, in the feeder category, he is entitled for appointment to the post in preference to his unqualified seniors. The date on which the appointment is actually made is immaterial as the title to the appointment arises on the date of occurrence of the vacancy and is not defeated by the acquisition of qualifications by a senior thereafter. If, however, none was qualified on that date, the person who first becomes qualified thereafter is entitled to be considered for appointment, if the vacancy continues to remain.” Hence the legal principles on this aspect cannot be of any dispute. The date of occurrence of vacancy is the crucial one as far as consideration of the question of promotion of qualified hands is concerned. In fact the Full Bench decision as above was followed by a learned Single Judge of this Court in the decision W.P.(C)No.17074/05 -7- reported in **Mohanan v. Manager, A.U.P.School (2007(4) KLT SN 48 (Case No.52)** and the principles were laid down thus: “When qualifications are prescribed for a promotion post, eligibility for appointment to that post has to be reckoned with reference to the date on which the vacancy arose. This is further clear from the Note to R.45 of Chapter XIVA of K.E.R. Although the manager of a minority school has the right to appoint a person of his choice as headmaster, the person chosen by him should be qualified as per the K.E.R., failing which the manager is bound to appoint the qualified senior-most teacher as headmaster. The Manager cannot postpone filling up the vacancy until a teacher of his choice gets qualified for promotion when a claimant is awaiting appointment as on the date of occurrence of vacancy.” This was in the case of a school run by a minority institution and the Management has the choice of the person for promotion, the date of occurrence of vacancy is the material factor and the filling up of the vacancy cannot be postponed till a person of his choice gets qualified. 10. Herein the learned counsel for respondents 4 and 5 submitted that the petitioner cannot have an automatic right to be promoted as Headmistress especially since the Management is entitled for protection under Article 30(1) of the Constitution of India. It is submitted that there are other eligible hands who W.P.(C)No.17074/05 -8- were qualified as on the date of occurrence of vacancy. 11. As far as the 5[th] respondent is concerned, it is clear from the pleadings that as on the date of occurrence of vacancy, she has not completed 12 years of service required for promotion. Her appointment as Headmistress was made on 4.8.2004. But the approval as evident from Exhibit P4 is dated 13.10.2004. Therefore, for the purpose of considering, the issue as far as the 5[th] respondent is concerned, only after approval, she can be termed as a person eligible and qualified to be transferred to a school. 12. Therefore, the 5[th] respondent as on the date of occurrence of vacancy in the school cannot have a claim. Then the question is whether by inter-management transfer, rights of any of the eligible claimants have been defeated. 13. In this respect, the learned counsel for the petitioner relied upon the Note to Rule 11, wherein the proviso clearly protects the rights of persons with the prescribed qualification and eligibility for promotion as against a person to be transferred. Therefore, even if inter-management transfer is permissible, that should not be at the cost of a person who was W.P.(C)No.17074/05 -9- eligible for promotion. This will have to be considered as on the date of occurrence of vacancy, going by the legal principles laid down by this Court. 14. Herein the learned counsel for the petitioner relied upon the principle stated by a learned Single Judge of this Court in **Manager, P.S.High School v. The State of Kerala (ILR 1998(1) Kerala 98).** The facts of the said case also are similar. Therein also by inter-management transfer, the vacancy of a Headmaster was proposed to be filled up. This Court considered various aspects including the contention that the management of a minority education institution has got free hand in appointing/promoting or filling up the vacancy of Headmaster by way of inter-management transfer and the said right cannot be defeated by any statutory prescription. The same is the argument raised by the learned counsel for the Management herein also with particular emphasis to the Note to Rule 11 of Chapter XIV-A KER. 15. The learned Single Judge (K.A.Abdul Gafoor, J.) considered the question whether as on the date of occurrence of vacancy, the transferee can be reckoned as a member of staff of W.P.(C)No.17074/05 -10- the school, in **Manager, P.S.High School v. The State of Kerala (ILR 1998(1) Kerala 98)** . The issue was answered in paragraph No.7 as follows: “7. On the basis of Rule 11 of Chapter XIV A, K.E.R. which governs inter-management transfer, previous approval by the District Educational Officer concerned is a pre-condition. It is only from that date the transfer could have been given effect to. When transfer is applied for by a teacher on a particular date, and when the management of both the schools accord consent for such requests, the District Educational Officer has to consider all relevant aspects and to grant previous approval to effect the transfer. So, on the basis of the scheme of rule 11 it is only after granting approval by the District Educational Officer, the transfer takes effect. Therefore, that is the relevant date of transfer and not the date of application for transfer. In the service jurisprudence the transfer takes effect only after the date of transfer or approval of transfer and not from the date of application. The rule does not provide for to effectuate the transfer retrospectively from the date of application. This is more clear from rule 7, Chapter XIV A K.E.R. dealing with approval of appointment of teachers. An appointment made by the management shall take effect only when it is approved. Thus, approval will be subsequent to appointment. Rule 7 provides that “the appointment shall be effective from the date on which the teacher is admitted to duty, provided the appointment is duly approved.” Thus, the statute enables appointment to take effect from the date the teacher is admitted to duty, though approval is granted subsequently. Such a provision is absent in rule 11. Therefore, an inter-management transfer will take effect at the earliest from the date of approval by the D.E.O. So, the contention of the petitioner that the first respondent went wrong in taking into account the date when D.E.O. approved transfer of W.P.(C)No.17074/05 -11- the 3[rd] respondent and that once approval is granted it relates back to the date of occurrence of vacancy cannot be accepted. Appointment of the 3[rd] respondent by the petitioner can take effect only after previous sanction is given by the District Educational Officer. That was on 7[th] June 1994. Only thereafter the 3[rd] respondent could be relieved from the transferee school. By that time, admittedly by the petitioner, as already mentioned above, the 4[th] respondent had become qualified and therefore transfer of the 3[rd] respondent became violative of Note to rule 11 of Chapter XIV-A, K.E.R.” Therefore, as far as the transfer by way of inter-management transfer is concerned, being not a member of staff of the school, the 5[th] respondent cannot claim for promotion as on the date of occurrence of vacancy, since what is material is eligibility among the staff of the school as well as the seniority as per the seniority list maintained by that school. 16. Then the other aspect is the vehement plea raised by the learned counsel for respondents 4 and 5 that the proviso in the Note to Rule 11 cannot be invoked by the petitioner as the Management herein is administering a minority institution and the 5[th] respondent was already appointed as a Headmistress. In fact, this aspect is also covered by paragraph No.10 of the judgment in **Manager, P.S.High School v. The State of Kerala (ILR 1998(1) Kerala 98)** , which reads as follows: W.P.(C)No.17074/05 -12- “Another contention raised by the petitioner is that his school is entitled to the protection under Article 30(1) of the Constitution of India being a minority institution and therefore the petitioner can choose the headmaster of his choice. In order to get the protection under Article 30(1) of the Constitution, the educational institution should have been established and administered “by a minority community”. On the other hand, the averment of the petitioner in paragraph 2 of the original petition is that “the school is conducted by the religious minority of Roman Catholics entitled to the protection granted under Article 30(1) of the Constitution of India”. Even if it is accepted, it is not averred that the school was established by a minority community and it was being administered by a minority community. This twine test shall be applied to examine whether an institution is entitled for the protection under the said Article. The 4[th] respondent had averred in his original petition that the school was established by his grandfather. Establishment of a school by an individual will not make the institution eligible for protection under Article 30(1) of the Constitution of India. Though, the petitioner submits that the school has been “recognised by the District Educational Officer as a school established and administered by a minority community”, no orders are produced in support of that averments. Even if it is taken that the school is one entitled to such protection, that will not enable the management to get out of the fold of the restrictions and regulations contained in the statutory rules. True, a management entitled to the protection under the minority can choose a headmaster even without regard to the seniority. But, that shall be a qualified candidate among the staff of the school. The field of choice does not extend beyond the staff of the school. Even if the minority protection is granted to the petitioner, that will not enable the petitioner to choose a person in another management to be appointed as headmaster overlooking an existing claimant, the 4[th] respondent, in the petitioner' own management”. W.P.(C)No.17074/05 -13- Therefore it is clear that the field of choice cannot extend beyond the staff of the school and even if minority protection is granted to respondents 4 and 5, that will not enable the Management to choose a person from outside the eligible ones, namely the staff members of the school and from another Management to appoint such person as a Headmaster in the school. The provisions under Rule 11 and Rule 43 are regulatory. Even though the learned counsel for the Management submitted that the right under Article 30(1) of the Constitution of India cannot be restricted, I do not subscribe the argument that there is a total restriction or prohibition as far as the right of the Management of a minority institution is concerned. The Management cannot transfer a person by way of inter-management transfer so as to defeat the claims of persons who are already staff members of the school. Therefore, there is no absolute prohibition as far as the power to grant promotion and effect a transfer is concerned. Similar is the position under Rule 43. The Note to Rule 11 and the Note to Rule 43 will not go against the rights conferred under the Management of the minority institution under Article 30(1) of the Constitution of India. Hence, I reject the said argument. W.P.(C)No.17074/05 -14- 17. In that view of the matter, the view taken up by the Officers and by the Government that the school being a minority institution, the petitioner cannot have a right and the choice is left to the Management, even to fill up the vacancy by intermanagement transfer cannot be sustained. 18. Thus the orders Exhibits P4, P5 and P6 to the extent to which it denied the right of the petitioner for consideration for appointment as Headmistress are unsustainable and are accordingly quashed. 19. It is submitted by the learned counsel for the petitioner that the petitioner has since retired from service, but that cannot defeat her right for consideration as on the date of occurrence of vacancy. 20. The learned counsel for the Management submitted that even if this Court interferes with the appointment of the 5[th] respondent, that will not automatically confer a right on the petitioner for promotion. The legal right of the petitioner evidently is for consideration for promotion and this Court at this stage cannot direct the Management to promote the petitioner as Headmistress as the claims of the petitioner will have to be W.P.(C)No.17074/05 -15- considered along with other eligible persons and as the Management has got a right under Article 30(1) of the Constitution of India with regard to the right of choice of an eligible candidate for promotion as on the date of occurrence of vacancies. 21. It is also stated that the 5[th] respondent has since retired from service and her appointment was approved and she has drawn salary also. Therefore, even though this Court will not be justified in directing the petitioner to be promoted, the Management will have to choose the eligible person among the staff members of the school for appointment as Headmaster/ Headmistress in the vacancy which arose on 1.4.2004. The salary paid to the 5[th] respondent will not be recovered also. Appropriate decision will be taken by the Management within a period of two months from the date of receipt of a copy of this judgment. The Writ Petition is allowed to the above extent. No costs. ## Sd/-( **T.R.RAMACHANDRAN NAIR** , **JUDGE)** dsn