Thomas Antony v. State of Kerala and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 14TH DAY OF MARCH 2018 / 23RD PHALGUNA, 1939** **WP(C).No. 18439 of 2014** **-----------------------** ## **PETITIONER:** **----------** **THOMAS ANTONY, H.S.A (PHYSICAL SCIENCE), DARUL ULOOM HIGHER SECONDARY SCHOOL, PANAKKAD, P.O. PATTARKADAVU - 676 519, MALAPPURAM DISTRICT.** **BY ADVS.SRI.M.V.BOSE SRI.VINOD MADHAVAN SMT.NISHA BOSE** ## **RESPONDENT(S): -------------** **1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** **2. THE DISTRICT EDUCATIONAL OFFICER, CIVIL STATION, MALAPPURAM - 676 505.** **3. THE MANAGER, DARUL ULOOM HIGHER SECONDARY SCHOOL, PANAKKAD, P.O. PATTARKADAVU -676 519, MALAPPURAM DISTRICT.** **4. HAMZA P., H.S.A (ARABIC), DARUL ULOOM HIGHER SECONDARY SCHOOL, PANAKKAD, P.O. PATTARKADAVU -676 519, MALAPPURAM DISTRICT.** **R1 & R2 BY SENIOR GOVERNMENT PLEADER SRI.SAIGI JACOB PALATTY R3 BY ADVS. SRI.ESM.KABEER SRI.ABDUL MAJEED.N** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **mbr/** ## **WP(C).No. 18439 of 2014 (D) --------------------------** ## **APPENDIX** ## **PETITIONERS' EXHIBITS: ----------------------** |**EXHIBIT-P1-**|**TRUE COPY OF THE EXTRACT OF SENIORITY LIST OF TEACHERS**| |---|---| ||**IN THE SCHOOL.**| |**EXHIBIT-P2-**|**TRUE COPY OF THE SECONDARY SCHOOL LEAVING CERTIFICATE.**| |**EXHIBIT-P3-**|**TRUE COPY OF THE REQUEST MADE BY THE PETITIONER**| ||**DATED 31/03/2014.**| |**EXHIBIT-P4-**|**TRUE COPY OF THE REQUEST MADE BY THE PETITIONER BEFORE**| ||**THE D.E.O.**| |**EXHIBIT-P5-**|**TRUE COPY OF THE LETTER ISSUED IN THE NAME OF MANGER**| ||**DATED 12/06/2014.**| |**EXHIBIT-P6-**|**TRUE COPY OF THE REPRESENTATION DATED 18/06/2014 BEFORE**| ||**THE D.E.O, MALAPPURAM.**| |**EXHIBIT-P7-**|**TRUE COPY OF THE REPRESENTATION SUBMITTED BEFORE THE**| ||**GOVERNMENT DATED 01/07/2014.**| |**EXHIBIT-P8-**|**A COPY OF ORDER DATED 13.6.2014 GRANTING EXEMPTION**| ||**FROM THE TEST QUALIFICATION.**| |**EXHIBIT-P9-**|**A COPY OF C.E. SCORE SHEET FOR THE YEAR 2014-15.**| **RESPONDENTS' EXHIBITS: ---------------------** |**EXHIBIT R3A-**|**TRUE COPY OF THE CERTIFICATE ISSUED TO THE SCHOOL**| |---|---| ||**GIVING MINORITY STATUS FROM THE NATIONAL COMMISSION**| ||**FOR MINORITY EDUCATION INSTITUTIONS DATED 17.9.2012.**| |**EXHIBIT R3B-**|**TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT GRANTING**| ||**PERMISSION TO THE 4TH RESPONDENT TO DEAL WITH THE**| ||**DAY TODAY DUTIES AS HEAD MASTER.**| |**EXHIBIT R3C-**|**TRUE COPY OF THE COMPLAINT SUBMITTED BY ONE PARENT**| ||**BEFORE THE HEAD MISTRESS DATED 29.1.2014.**| |**EXHIBIT R3D-**|**TRUE COPY OF THE STAFF MEETING NOTICE DATED NIL.**| |**EXHIBIT R3D(A)-**|**TRUE COPY OF THE DECISION OF THE STAFF MEETING**| ||**DATED 29.1.2014.**| |**EXHIBIT R3D(B)-**|**TRUE COPY OF THE LIST OF STAFFS PARTICIPATED IN THE**| ||**STAFF MEETING DATED 29.1.2014.**| ||**/TRUE COPY/**| ||**P.S.TO JUDGE**| **mbr/ 30.04.2018.** ## **ALEXANDER THOMAS, J.** ---------------------------------------- W.P.(C) No.18439 of 2014 ----------------------------------------- Dated this the 14[th] day of March, 2018 ## _**JUDGMENT**_ The petitioner is mainly aggrieved by the impugned action of respondents 1 to 3 in not considering him for appointment by way of promotion to the post of Headmaster in the third respondent aided school in terms of the provisions contained in Rule 44B of Chapter XIVA of the Kerala Education Rules (KER). The facts leading to this petition are as follows : At the time of filing of the present Writ Petition on 17.7.2014, the petitioner was holding the post of High School Assistant (Physical Science), viz., HSA (Physical Science) in the third respondent school, which is an aided school regulated by the provisions contained in the KER, more particularly Chapter-XIVA thereof which have been framed under the enabling provisions contained in the Kerala Education Act, 1958. The petitioner was appointed to the post of HSA (Physical Science) in the said school on 8.10.1984. In Exhibit-P1 seniority list of High School Assistants in the third respondent school issued by the competent authority, the petitioner has been assigned Serial No.3 thereof. It is not in dispute that the petitioner has the qualifications of : **:2::** W.P.(C) No.18439/14 B.A., M.A., B.Ed., pass in SET (State Eligibility Test) and has also passed the prescribed departmental test and that he has acquired all the requisite qualifications for holding the post of Headmaster, as on the relevant date of occurrence of the vacancy, viz., 1.4.2014. Serial No.1 of Exhibit-P1, one Smt.V.P.Padmakumari Amma was the Headmaster of the school till 31.3.2014 and she had retired from service on that day and vacancy to the post of Headmaster of the school had arisen on 1.4.2014. Serial No.2 of Exhibit-P1 seniority list is one Sri.Roy Zachariah, who was stated to be on long leave and he does not possess all the requisite qualifications. Further it is the case of the petitioner that the said incumbent does not have the prescribed test qualification to hold the post of Headmaster, but that he was even exemption from possessing the said test qualification in terms of Rule 44B(2) of Chapter-XIVA KER. It is the further case of the petitioner that Serial No.2 of Exhibit-P1, Sri.Roy Zachariah, has never claimed that he should be considered for appointment for the post of Headmaster of the school either when the vacancy had arisen or before that. The petitioner would also assert that all the other persons junior to the petitioner in the category of HSA in the school as per Exhibit-P1 seniority list are not fully qualified to hold the post of Headmaster as on the abovesaid date of occurrence of the vacancy and that he was the only qualified claimant for the post of Headmaster when the vacancy had arisen. It is also : **:3::** W.P.(C) No.18439/14 stated that though the fourth respondent, who is working as HSA (Arabic), on the same school did not have the prescribed qualification to hold the post of Headmaster, the third respondent Manager had posted him as teacher-in-charge in terms of the provisions contained in Rule 45C(6) of Chapter-XIVA KER, after the occurrence of vacancy in the post of Headmaster of the school. It is averred further that the petitioner had made Exhibit-P3 request dated 31.3.2014 before the third respondent Manager to appoint him to the post of Headmaster of the school in respect of the above vacancy. Since no action was taken by the third respondent Manager on the said request, the petitioner was constrained to submit Exhibit-P4 representation dated 2.6.2014 before the second respondent DEO, who is the competent authority in the matter of granting approval for appointment. It is further averred that the third respondent Manager had furnished Exhibit-P5 reply dated 12.6.2014 to Exhibit-P3 representation dated 31.3.2014 stating that there are various complaints against the functioning of the petitioner and that merely because the petitioner has all the qualifications, will not create any obligation on the third respondent to grant such claimed appointment as the school is the minority school which is entitled for protection under Article 30(1) of the Constitution of India. The petitioner was constrained to submit Exhibit-P6 representation dated 18.6.2014 to the second respondent DEO, requesting the attention of the said : **:4::** W.P.(C) No.18439/14 authority that the allegations made by the third respondent Manager against the petitioner in Exhibit-P5, etc., are not tenable and relevant and that the DEO should intervene in exercise of the statutory power, so as to ensure that the petitioner’s case for appointment to the post of Headmaster of the school is effectuated in accordance with law. Since no further action was coming from the second respondent DEO, the petitioner had submitted Exhibit-P7 representation dated 1.7.2014 before the first respondent State Government, reiterating the abovesaid grievances and requesting the intervention of the Government and the authorities concerned to ensure appointment of the petitioner by way of promotion to the post of Headmaster of the school in the said vacancy which arose on 1.4.2014. It is thereafter the petitioner has filed the present Writ Petition (Civil) on 17.7.2014 with the following prayers : _“(i) Declare that the petitioner is eligible and entitled to be appointed as Headmaster in Darul Uloom Higher Secondary School Panakkad, P.O. Pattarkadavu in Malappuram District with effect from 1.4.2014. (ii) issue a writ in the nature of mandamus or any other appropriate writ, direction or order commanding the respondents to appoint the petitioner as the Headmaster of the third respondent school with effect from 1.4.2014 with all consequential benefits attached to the post. (iii) issue in the nature of mandamus or any other appropriate writ, direction or order refraining the respondents from bringing in a teacher from a Government school to function as Headmaster on deputation in the school. (iv) to issue any other order or direction as this Honourable Court may deem fit an proper in the nature and circumstances of the case._ _and_ _(v) to award the cost of the petitioner in these proceedings.”_ 2. The second respondent DEO has filed counter affidavit dated 30.11.2014, wherein it is stated that the petitioner is not a : **:5::** W.P.(C) No.18439/14 seniormost qualified High School Assistant in the third respondent school. Further it is stated that one Sri.Roy Zachariah, the aforementioned Serial No.2 of Exhibit-P1 seniority list, is the seniormost High School Assistant in the school as on the date of occurrence of the vacancy and that though he did not possess the prescribed test qualification to hold the post of Headmaster, he was earlier granted exemption from acquiring the said test qualification inasmuch as he had completed 50 years of age by taking recourse to the provisions contained in Rule 44B(2) of Chapter-XIVA KER, etc. It is thus contended in the counter affidavit of the second respondent DEO that Serial No.2 of Exhibit-P1, Sri.Roy Zachariah is also qualified for being appointed as Headmaster. The sheet anchor of the defence projected in the counter affidavit of the second respondent DEO is that the third respondent school is a minority educational institution as contemplated in Article 30(1) of the Constitution of India and that the said school has been duly recognised by the authorities concerned as the school which is entitled for the protection of Article 30(1) of the Constitution and that the third respondent management of the said school had a fundamental right under Article 30(1) to appoint any qualified High School Assistant of their choice for being promoted to the post of Headmaster of the school. Yet another contention taken in the counter affidavit of the second respondent DEO is that the third respondent Manager had : **:6::** W.P.(C) No.18439/14 approached in advance the first respondent State Government for ensuring appointment to the post of Headmaster of the school by way of deputation of a Government hand and that the Government had issued G.O.(Rt) No.2723/2014/G.Edn. dated 9.7.2014 permitting deputation of one Sri.Mohamed Iqbal Karuvally, Headmaster of Government Higher Secondary School, Pookkottur, for being appointed on deputation basis to the post of Headmaster of the third respondent school. Further it is stated that since the third respondent school has the protection of Minority Management under Article 30(1) of the Constitution of India, appointment of the third respondent as teacher-in-charge of the school pending regular appointment to the post of Headmaster is in order. It is also stated that the third respondent Manager is not obliged to fill up the post of Headmaster by merely following seniority alone and that the constitutional right has to be effectuated by permitting them to appoint any person who has qualified to be appointed as Headmaster of the school, for filling up the post of Headmaster, so long as the said incumbent is having the qualifications to hold the post of Headmaster in the school. Further that the proposed deputation of Sri.Mohamed Iqbal Karuvally, Headmaster of the abovesaid Government school as permitted in G.O.(Rt) No.2723/2014/G.Edn. dated 9.7.2014, is only a stopgap arrangement and not a permanent arrangement. It is also stated that the National Minority Education Commission constituted : **:7::** W.P.(C) No.18439/14 under the provisions of the National Minority Education Commission Act (framed by the Parliament) has also recognised minority status to the third respondent school for entitling it to the protection under Article 30(1) of the Constitution of India. 3. The third respondent Manager has filed counter affidavit dated 27.7.2015 wherein it is contended that the third respondent aided High School has secured recognition as a Minority Educational Institution, as per Exhibit-R3(a) proceedings dated 17.9.2012 issued by the National Commission for Minority Educational Institutions constituted as per the abovesaid Central Act. After the occurrence of vacancy in the post of Headmaster in the school on 31.3.2014, the third respondent Manager had submitted proposal dated 10.4.2014 before the second respondent DEO requesting for permission to post the fourth respondent herein as a teacher-in-charge of the school as per Rule 45(C)(6) of Chapter-XIVA KER and that the second respondent DEO as per ExhibitR3(b) order dated 28.4.2014 had accorded permission for the functioning of the fourth respondent to carry out the day to day duties of the school and for making treasury transactions, etc., and to carry out the day to day duties as Headmaster till the new Headmaster joins duty on deputation basis. Further it is stated that there were many complaints against the functioning of the petitioner, as referred to in Exhibits-R3(c), R3(d), R3(d)(a) and R3(d)(b). Exhibit-R3(c) petition : **:8::** W.P.(C) No.18439/14 dated 29.1.2014 is the one submitted by the parent of a girl student of Standard X of the school, etc. Pursuant to Exhibit-R3(d) meeting of the school staff, a decision was taken as per Exhibit-R3(d)(a) dated 3.2.2014 merits of the meeting, it was recorded therein that the petitioner has apologised for the said incident, etc. However, it is relevant to note that no contentions are raised by the third respondent in his counter affidavit that Serial No.2 of Exhibit-P1 Sri.Roy Zachariah has made any claim for appointment by way of promotion to the post of Headmaster in the school in respect of the vacancy which arose on 31.3.2014 or that the third respondent Manager had requested the first respondent Government to effect deputation, so as to post a Government School Teacher as Headmaster in the abovesaid vacancy. However, there is an averment in paragraph-5 of the said counter affidavit of the third respondent Manager that the said respondent had requested the second respondent DEO to grant permission for treasury transactions to the fourth respondent and to conduct the day to day duties of the Headmaster till the new Headmaster joins duty on deputation. But no specific averments are made in the said counter affidavit that the Manager had taken a conscious decision that the suitable and qualified feeder category hands are not available in the school for filling up the post of Headmaster and that an appointment by way of deputation of a Government School Teacher is required and : **:9::** W.P.(C) No.18439/14 necessary for filling up the said post and that request in that regard was duly taken and conveyed by the third respondent Manager to the first respondent Government much before the date of occurrence of the vacancy, etc. 4. The petitioner has filed a reply affidavit dated 7.2.2014 to the abovesaid counter affidavit of the second respondent DEO as well as a separate reply affidavit dated 10.10.2015 to the abovesaid counter affidavit of the third respondent Manager. The petitioner has raised various contentions in the said reply affidavit. It is also contended therein that going by the statutory presumption in the KER as framed under the provisions of the Kerala Education Act, it is not statutorily permissible for effecting a deputation appointment for filling up the post of Headmaster in aided school, more so particularly when qualified feeder category hands in the post of HSA are available. Further the allegations raised against the petitioner in respect of the abovesaid alleged untoward incidents have also been denied. Further it is stated that at no point of time, the third respondent Manager has issued any memo or showcause notice or memo of charges to the petitioner in respect of the said allegations and that those allegations have been made only to deny the promotion due to the petitioner and that no disciplinary proceedings were pending against the petitioner as on the date of occurrence of the vacancy. Further that the third respondent : **:10::** W.P.(C) No.18439/14 Manager has not even taken that matter bringing to the notice of the authorities concerned about any such allegations against the petitioner as is now projected in the present pleadings. Therefore, it is contended that since no disciplinary action was validly contemplated or pending as on the date of occurrence of the vacancy, and as the petitioner was fully qualified to hold the post and the only senior of the petitioner (Serial No.2 of Exhibit-P1) who is not qualified, had never raised any claim for promotion and since deputation is not a permissible mode, etc., and since all the other juniors of the petitioners in Exhibit-P1 seniority list are not qualified, etc., it was the bounden duty of the third respondent Manager to have appointed the petitioner by way of promotion, so as to fill up the post of Headmaster which occurred on 31.3.2014. Further that though the third respondent Manager may claim rights and privileges on the basis of Article 30 (1) of the Constitution of India, it is well established that the Manager is otherwise bound by the statutory prescriptions in KER and that the only deviance that is permitted in filling up the post of Headmaster in aided minority school that he could make appointment to that post from any personnel in the school who is duly qualified, etc. 5. Heard Sri.Vinod Madhavan, learned counsel appearing for the petitioner, Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for official respondents 1 and 2, and W.P.(C) No.18439/14 : **:11::** Sri.E.S.M.Kabeer, learned counsel appearing for R3. 6. Sri.Vinod Madhavan, learned counsel appearing for the petitioner, would submit that going by the rules regulating deputation of Government servants as mandated in the provisions in KS & SSR and KSR, it is not permissible in law to depute a Government servant to an aided school. In that regard, the petitioner would place reliance on the provisions contained in Rule 9B Part-II of KS & SSR as well as the provisions contained in Rule 12(9) of KSR Part-I which deals with Foreign Service. The petitioner would contend that what is permitted by Rule 9B Part-II of KS & SSR is only in respect of deputation of a Government servant from one service to another within the State Government or from one Government Department to another Government Department within the same service of the State Government or send to or take in officers from other State Governments or Central Government or statutory bodies, etc., and that the provisions contained in Rule 9B Part-II of KS & SSR does not even remotely contemplate effecting deputation of a Government servant working under the Government of Kerala to an aided school which is regulated by the provisions contained in KER. Therefore, it is argued that Rule 9B Part-II of KS& SSR, does not permit any such deputation of a Government servant to an aided school. Rule 9B Part-II of KS&SSR, provides as follows : : **:12::** W.P.(C) No.18439/14 _“9B. Notwithstanding anything contained in these rules or in the Special Rules, the Government may, in public interest and for reasons to be recorded in writing depute or transfer officers from one service to another or from one department to another within the same service or send to or take in officers from other Governments or statutory bodies subject to such conditions as the Government may in each case impose :_ _Provided that in the case of transfers in the interest of security of State, the reasons need not be recorded if Government are satisfied that it is not expedient to disclose the reasons for such transfer :_ _Provided further that the Commission shall be consulted in respect of such deputations and transfers whenever such consultation has not been specifically excluded by the provisions of the Kerala Public Service Commission (consultation) Regulations, 1957.”_ Further the petitioner would also place reliance on Rule 12(9) Part-I Chapter-II of KSR, which deals with the definition of Foreign Service. Rule 12(9) Part-I Chapter-II of KSR reads as follows : _“_ _**12(9)** ._ _**Foreign Service** : Means service in which an officer receives his pay with sanction of Government from any source other than the Consolidated Fund of India or of a State.”_ Rule 12(9) Part-I Chapter-II of KSR – Foreign Service means service in which an officer receives his pay with sanction of the Government from any source other than the Consolidated Fund of India or of a State. Accordingly, it is contended by the petitioner that only if the said appointment process fulfills the definition of Rule 12(9) (Foreign Service) could such appointment process be even contemplated and the modalities for such foreign service as contained in Chapter-XI, Rules 139 to 159 Part-I KSR would apply only if such process of appointment fulfills the basic definition of Foreign Service as contemplated in Rule 12(9) Part-I Chapter-II of KSR. It is further asserted by the petitioner that the source of payment of salary of teachers in aided school in the State of Kerala is from the consolidated fund of Kerala as envisaged in : **:13::** W.P.(C) No.18439/14 Article-266(1) of the Constitution of India. Therefore, it is contended that since the source of salary of aided school teachers in State is from the consolidated fund of State of Kerala, there is no question of invoking the appointment modalities of Foreign Service as contemplated in Rule 12(9) Part-I Chapter-II of KSR read with Rules 139 to 159 Part-I Chapter-X of KSR. Hence it is argued that even Foreign Service as contemplated in Part-I KSR is not permissible, so as to effect the appointment of a Government servant working under the Government of Kerala to an aided school functioning under the State of Kerala as regulated by the provisions contained in the KER. Accordingly, it is pointed out that the contentions of the respondents that deputation hand would be appointed to man the vacancy in the post of Headmaster of the third respondent aided school, is absolutely untenable. 7. Having heard both sides, this Court, prima facie, feels that there is force in the abovesaid contentions faced by Sri.Vinod Madhavan, learned counsel appearing for the petitioner. But, however, in the nature of the orders proposed to be passed in this petition, this Court is of the considered view that it is not necessary to render any final opinion on the said issue and therefore, the said issue is left open to be decided in appropriate proceedings where such a point should necessarily be decided. Coming to the aspects regarding the contention based on deputation, it is to be initially noted that no contention has : **:14::** W.P.(C) No.18439/14 been raised in the counter affidavit of the third respondent Manager that he had taken a conscious view that none of the qualified teachers in the school including the petitioner cannot be appointed to the post of Headmaster for any valid reasons and that therefore, he finds it imperative to request the State Government to effect the deputation of appointment of a Government school teacher to man the post of Headmaster in the third respondent aided school. All what is stated in the counter affidavit of the second respondent DEO is in paragraph-5 thereof wherein it has been only stated that pending regular appointment to the post of Headmaster in the school, the third respondent Manager had requested the State Government to permit him to entrust the responsibilities of the day to day administration of the school to the fourth respondent, who is not qualified, presumably in terms of the provisions contained in Rule 45C(6) of Chapter-XIVA KER which deals with the posting of teacher-in-charge, till the new Headmaster joins duty on “deputation basis”. Thus it is only stated in paragraph-5 of the counter affidavit that the said posting of the fourth respondent as per Exhibit-R3(b) dated 28.4.2014 was only till the new Headmaster enters duty on deputation. More than the third respondent Manager, it is the second respondent DEO who would raise specific contention in his counter affidavit regarding the deputation aspect. Even in the said counter affidavit of the second respondent DEO all what is : **:15::** W.P.(C) No.18439/14 stated is that the third respondent Manager had in advance approached the first respondent State Government in the matter of appointment to the post of Headmaster and that G.O.(Rt.) No.2723/2014/G.Edn. dated 9.7.2014 was issued whereby the State Government had granted permission to send one Sri.Mohamed Iqbal Karuvally, Headmaster of the Government Higher Secondary School, Pookkottur, on deputation basis as Headmaster of the third respondent school. Neither the third respondent Manager nor the second respondent DEO has stated with any clarity as to when exactly the third respondent had made the request to the State Government to effect the appointment process. Only thing that is clear in the counter affidavit of the second respondent as evident from paragraph-3 thereof is that G.O.(Rt.) No.2723/2014/G.Edn. dated 9.7.2014 was so issued by the State Government. Therefore, obviously the issuance of the deputation process as per G.O.(Rt.) No.2723/2014/G.Edn. dated 9.7.2014 is much after the date of occurrence of the vacancy in the post of Headmaster which arose on 1.4.2014. Still further even the second respondent DEO would concede that the said process by G.O.(Rt) No.2723/2014/G.Edn. dated 9.7.2014 was indeed not a permanent arrangement, but is only a stopgap arrangement. 8. A Division Bench of this Court in the judgment in Susamma Thomas v. State of Kerala (Writ Appeal No.734 of 2012, judgment dated : **:16::** W.P.(C) No.18439/14 5.6.2012) reported in 2012 (3) KLT 476 had dealt with a similar situation wherein it was categorically and unequivocally held that the privilege available under Article-30(1) of the Constitution of India to a Manager of an aided school to appoint a Headmistress of choice of Minority Management is not a right to be exercised notionally after failing to appoint Headmistress in exercise of such right when the vacancy arose. That the Minority right under Article-30(1) of the Constitution is a privilege to achieve an objective that is, to run the school under a Headmaster/Headmistress of the choice of the management and not a right on the management to confer notional benefits on teachers of their choice after their retirement. That when the right under Article 30(1) of the Constitution is not exercised by the management when the vacancy of the Headmistress arose, they forfeit their privilege once for all and for notional promotion and benefits, normal Rule for appointment takes over. In the facts of that case, the appellant therein was the seniormost teacher of the High School when the vacancy of the Headmistress had arose on 1.4.2004. At that time, when the management did not get a qualified nun for appointment as Headmistress either from the very same school or from outside, the fifth respondent who was a nun selected by the management for appointment as Headmistress had acquired qualification only on 3.8.2004, i.e., four months after the date of occurrence of the vacancy. On acquiring the qualification, the fifth : **:17::** W.P.(C) No.18439/14 respondent therein was appointed as Headmistress and the same was approved by the DEO on 13.10.2004. The senior most qualified teacher, the appellant therein, was made to continue as a teacher until she retired on 31.5.2007. This was challenged by her in the above writ proceedings where the learned Single Judge upheld the claim of the appellant/writ petitioner therein and directed the Minority Management to choose an eligible teacher with qualification as on 1.4.2004 for appointment as Headmistress on notional basis. The Division Bench also held that the management did not want to appoint a qualified teacher from the school as Headmistress is evident from the fact that when the vacancy arose on 1.4.2004, they did not choose any such teacher or promote such teacher to the post of Headmistress. Accordingly, the Division Bench held that the management is not entitled to exercise the privilege available under Article 30(1) of the Constitution of India for the appointment of Headmistress on a notional basis, to defeat the claim of the appellant therein. It will be profitable to refer to paragraph-2 of the abovesaid Division Bench of this Court in _Susamma Thomas_ ’ s case (supra) reported in 2012(3) KLT 476, p.p. 478-479, paragraph-2, which reads as follows : _“2. After hearing counsel for the appellant, counsel appearing for the management and also Government Pleader for the Educational authorities, we are of the view that the learned Single Judge rightly held that the fifth respondent should not have been considered for appointment as Headmistress in the vacancy that arose on 1.4.2004 because on that day she was not qualified to be appointed as Headmistress and admittedly she acquired the required qualification only on 3.8.2004. The learned Single Judge also rightly held that the normal rule for appointment of Headmistress going by R.43 of Chapter_ : **:18::** W.P.(C) No.18439/14 _XIV-A K.E.R. is appointment by promotion based on seniority. So much so, appellant being the seniormost teacher as on 1.4.2004 should have been the normal choice for appointment as Headmistress. This is certainly subject to the privilege of the fourth respondent as a minority institution to appoint from among qualified persons a teacher of their choice as Headmistress. In this case the management has no case that the appellant or any of the senior teachers qualified to be appointed as Headmistress are not eligible for appointment. All what they wanted was to go by the practice of appointing from the school, if available, or from outside, a qualified nun as Headmistress of the school. The question, therefore, is when the management could not find a suitable nun for appointment as Headmistress, shouldn't they have appointed the seniormost teacher as Headmistress as provided under R.43 extracted above. It is in this context we have to consider the legality and correctness of the direction issued by the learned Single Judge to the management to select a qualified teacher of their choice for appointment as Headmistress on notional basis after appellant and the other senior teachers retired from service. We do not think the privilege available under Article 30(1) to appoint a Headmistress of the choice of the Minority Management is a right to be exercised notionally after failing to appoint Headmistress in exercise of such right when the vacancy arose. Minority right under Art.30(1) is a privilege to achieve an objective that is, to run the school under a Headmaster/Headmistress of the choice of the management and not a right on the management to confer notional benefits on teachers of their choice after their retirement. Therefore, when the right under Art.30(1) of the Constitution is not exercised by the management when the vacancy of Headmistress arose, they forfeit their privilege once for all and for notional promotion and benefits, normal Rule for appointment takes over. The management did not want to appoint a qualified teacher from the school as Headmistress is evident from the fact that when the vacancy arose on 1.4.2004, they did not choose any such teacher or promote such teacher to the post of Headmistress. So much so, we do not think they are entitled to exercise the privilege in the appointment of Headmistress on a notional basis now only to defeat the claim of the appellant. Since the 4th respondent had no choice among any of the qualified teachers of the school for promotion as Headmistress and they were only keen to appoint a qualified nun as Headmistress which they did not get until the selected nun acquired the qualification on 3.8.2004, we feel the appellant who was the seniormost teacher was entitled under R.43 to be appointed as Headmistress on notional basis and only she is entitled to get consequential benefits. We, therefore, allow the Writ Appeal in part by vacating the direction issued by the learned Single Judge to the 4th respondent to select a Headmistress of their choice notionally for appointment with effect from 1.4.2004 and direct the management to grant notional appointment to the appellant as Headmistress on 1.4.2004 which will be approved by educational authorities. The educational authorities are directed to treat the appellant as having served as Headmistress from 1.4.2004 till the date of her retirement i.e. 31.5.2007 and give her terminal benefits and fix eligible pension in the scale of pay of Headmistress. However, since appellant has not served as Headmistress, she shall not be entitled to any arrears of pay applicable to Headmistress. Consequently there will be direction to the D.E.O. to approve appointment of 5th respondent as Headmistress with effect from 1.6.2007. If any salary or financial benefit is drawn by the 5th respondent in the post of Headmistress until 31.5.2007, the same shall be recovered by the Government from the 4th respondent within two months from date of receipt of copy of this judgment.”_ It is interesting to note that neither in the counter affidavit of the second : **:19::** W.P.(C) No.18439/14 respondent nor in the counter affidavit of the third respondent, it is even remotely stated that so called deputation hand had acquired all the qualifications to hold the post of Headmaster of the school at the time of the present vacancy on 1.4.2014. The entire process has been sought to be finalised only on 9.7.2014 on the date of issuance of the said G.O. (Rt.), which is much after the date of occurrence of the vacancy on 1.4.2014. More importantly the third respondent Manager has no case that he had duly applied his mind and had come to the considered conclusion that none of the qualified hands in the school could be appointed for any valid reasons and that therefore, it warrants the appointment by way of deputation to man the said vacancy. Even the second respondent DEO would concede that what was contemplated by G.O.(Rt.) dated 9.7.2014 was indeed only a temporary ad-hoc arrangement and not a permanent one. The school cannot function without a regular Headmaster and it is the statutory duty of the Manager as well as the statutory authorities to ensure that a duly qualified incumbent is duly appointed and approved in the post of Headmaster of the school. It has now been apprised before this Court that Serial No.2 of Exhibit-P1 as well as the petitioner has retired from service on 31.3.2015 and 31.3.2016 retrospectively and even till date, the fourth respondent has been given temporary charge of the day to day administration of the Headmaster of the school as per Exhibit-R3(b) or : **:20::** W.P.(C) No.18439/14 such similar subsequent orders. It is clear like crystal that even till date no regular appointment has been made to fill up the post of Headmaster in the school as against the vacancy which arose as early as on 1.4.2014. Therefore, the abovesaid contention raised by the respondents that the petitioner’s right should be defeated merely on the basis of the deputation process contemplated by the Government, is bereft of any merit. More so, when the third respondent himself has no case that he had consciously applied his mind about the need for any such deputation process. This is all the more so, the second respondent DEO would concede fairly that the said process was indeed an adhoc and temporary arrangement and not a permanent arrangement. For all these reasons, the said contention of the respondent based on the deputation aspect is overruled. 9. It is also interesting to note that the third respondent Manager has no case that he wanted to appoint Sri.Roy Zachariah Serial No.2 of Exhibit-P1 as Headmaster of the school and that he was duly qualified to hold such post as on the date of occurrence of the vacancy. As per Exhibit-P1, Roy Zachariah, is senior most to the petitioner and therefore the petitioner cannot have any unilateral claim for the appointment for the post of Headmaster, etc. The second respondentDEO would also place reliance on Exhibit-P8. Further it is to be noted that apart from the aspect that the 3[rd] respondent-Manager has not : **:21::** W.P.(C) No.18439/14 raised any such case that he had preferred to appoint Sri.Roy Zachariah, there are no averments in the counter affidavit of either the 2[nd] respondent or the 3[rd] respondent-Manager, that Roy Zachariah, serial No.2 at Exhibit-P1 had at any point of time had claimed appointment for the post of Headmaster in the vacancy, which arose on 1.4.2014. On the other hand, it is asserted by the petitioner in his pleadings that Roy Zachariah was on long leave and though he has never submitted any claim for appointment for the post of Headmaster either on 1.4.2014 or after the vacancy and that Roy Zachariah has retired from service on 31.3.2015 which is clear from his date of birth as recorded in Exhibit-P2 seniority list. It is also to be noted that the said incumbent never has claimed the post of Headmaster, that he was on long leave and that he had retired from service on 31.3.2015. For these reasons, the contention raised by R-2/DEO with respect to serial No.2 of Exhibit-P1 and Exhibit-P8 are not tenable or sustainable and the said contentions are also overruled. 10. The third contention is the one raised by R-3/Manager inasmuch as there are serious complaints as against the petitioner, etc. True, that R-3 has made available certain objections/complaints as per Exhibits-R3(c) dated 29.1.2014, R-3(d) dated 29.1.2014, R-3(d)(a) minutes dated 3.2.2014, etc. The petitioner has denied those allegations. R-3 and R-2 have no case that any show cause notice or : **:22::** W.P.(C) No.18439/14 memo of charge sheet or memo of charges have ever been issued to the petitioner before the occurrence of the vacancy or thereafter. The petitioner has retired from service on 31.3.2015. Therefore, it cannot be said that any valid disciplinary proceedings have been issued, initiated or pending against the petitioner either at the time of occurrence of the vacancy or thereafter. Therefore, the said contention raised by R-3 is only to be overruled and it is accordingly so ordered. Coming to the last contention raised by R-3 that Article 30(1) of the Constitution of India, it is now well established by a catena of rulings of the Apex Court and various High Courts and this Court as in _**Secy., Malankara Syrian Catholic College v. T. Jose,**_ reported in (2007) 1 SCC 386 and _**Manager, Corporate Educational Agency v. James Mathew,**_ reported in AIR 2017 SC 3762, that the Manager of a minority educational institution has the right to make appointment to the post of Headmaster/Principal of the College, etc., from among the qualified incumbent of their choice and that therefore the rigor of statutory prescription which is stipulated in Rule 44A of the KER that the senior most qualified incumbent in the school should be appointed as Headmaster of the School to the extent it insists on seniority criteria is not binding on minority Manager. But it is by now well established that the Manager of an aided school covered by the statutory provisions in the KER is certainly bound to other statutory prescriptions in the KER : **:23::** W.P.(C) No.18439/14 that he is bound to make his choice for appointment of personnel to the post of Headmaster from among the qualified hands and that the Manager is not obliged to appoint the senior most qualified incumbent and he has the liberty to appoint even the junior most person as the Headmaster of the School, as long as that incumbent is qualified. In the instant case, serial No.1 of Exhibit-P1 is the retired Headmaster and serial No.2 has never claimed appointment to the post of Headmaster, even if it is assumed that he is exempted from test qualification. The next incumbent is serial No.3 thereof, who is the petitioner. The petitioner has asserted that all the other incumbents are not qualified to hold the post of Headmaster and the said factual assertion made by the petitioner has not been even remotely denied by the respondents herein in their counter affidavits. Therefore, it is to be noted that the petitioner is the sole qualified claimant among the feeder category personnel in the school who is qualified for the post of Headmaster. The various objections raised by the respondents against the petitioner herein has already been overruled by this Court. Even now, the Manager has not taken any steps to complete the process of filling the vacancy and the post of Headmaster is remaining vacant. The petitioner has also retired from service on 31.3.2015. Therefore, this is a fit case where the directions granted by Division Bench in _Susamma Thomas_ 's case (supra), could be befittingly invoked in this case. : **:24::** W.P.(C) No.18439/14 11. Accordingly, it is declared that action of respondents, more particularly the third respondent, in denying appointment by way of promotion to the petitioner as Headmaster in the vacancy, is illegal and ultravires. It is further held that the third respondent Manager and respondents 1 & 2 were under the bounden statutory duty to have considered the petitioner for appointment to the post of Headmaster and in view of the aforesaid reasons overruling the above said objections, the petitioner has the right to be appointed in the vacancy, which arose on 1.4.2014. Accordingly, it is so declared and ordered. Further it is ordered that the third respondent-Manager will issue necessary orders appointing the petitioner as Headmaster to the school with effect from 1.4.2014 and send the proposal to the second respondent-DEO for his approval in terms of the provisions contained in the KER. It is also held that the petitioner is entitled to all consequential benefits including in the post of Headmaster and the said benefits shall be paid to the petitioner for the period from 1.4.2014 to 31.3.2016 (date of superannuation). The terminal benefits of the petitioner should also be consequently revised by correctly treating his last pay as if he retired from the post of Headmaster. 12. Sri.E.S.M.Kabeer, learned counsel for R-3 and the learned Senior Government Pleader for respondents 1 & 2, would seriously contend that as a matter of fact the petitioner has not worked as : **:25::** W.P.(C) No.18439/14 Headmaster for the above said period and that therefore, this Court may not exercise the discretion to direct payment of consequential monetary benefits. Learned Senior Government Pleader appearing for official respondents 1 & 2 would also specifically submit that at best if this Court directs, notional benefits alone could be granted, etc. To a specific query posed to the learned Senior Government pleader appearing for R- 1 & R-2 as well as R-3 as to whether any regular incumbent was appointed by the Manager to the post Headmaster for the period from 1.4.2014 to 31.3.2016, the respondents would fairly submit that no such appointment has been made and no incumbent in the post of Headmaster was appointed for the said period. If that be so, the respondents cannot take advantage of the wrong that is inflicted on the petitioner in denying the right of appointment of the petitioner and in evading payment to monetary benefits, when statutory duty is cast on the Manager and the departmental authorities in ensuring that the post of Headmaster of every school is filled by appointing a qualified incumbent. What is contemplated in Rule 45C(6) of the KER is only a a temporary arrangement for posting a teacher-in-charge for discharging the day today responsibilities of Headmaster pending regular appointment to the post of Headmaster. The said ad-hoc process pursuant to Exhibit R-3(b) dated 28.4.2014 has continued even now. Therefore, the said process is nothing but throwing the mandate of the : **:26::** W.P.(C) No.18439/14 statutory provisions to the winds. In the instant case, no incumbent has been paid salary as Headmaster in the above school and so there is no question of any double payment. In the facts of this case, this Court has no hesitation to hold that all the consequential benefits including monetary benefits should be paid to the petitioner as Headmaster of the School for the period from 1.4.2014 to 31.3.2016 (date of superannuation). 13. Yet another contention raised by R-3 is regarding the appointment of teacher-in-charge as Headmaster of the school as contemplated in Rule 45C(6) of Chapter XIV KER. It is seen that R-4 was posted only on temporary basis for discharging the day-to-day responsibilities of Headmaster pending regular appointment to the post of Headmaster. 14. Sri.Vinod Madhavan, learned counsel for the petitioner has placed reliance on the judgment of this Court in the case in _**Manager, S.S.H.S. School v. Lijin,**_ reported in 2007 (3) KLT 663 (DB) = ILR 2007 (3) Ker 284. In that the Division Bench held that unqualified teacher belonging to minority community cannot be Principal-in-Charge of Aided Higher Secondary School. It was held therein that the Manager is bound to appoint the qualified seniormost teacher as Principal-inCharge even if he is not a member of the minority community. In other words, an unqualified teacher belonging to the minority community : **:27::** W.P.(C) No.18439/14 cannot be posted as Principal-in-charge and in such circumstances, the Manager has no other alternative but to appoint the seniormost qualified person even if he does not belong to minority community as Principal-incharge of the school. That the management has always got the freedom to make regular appointment to the post of Principal and it is open to the management to appoint a qualified incumbent of their choice. Till such time, seniormost qualified teacher can be put in charge of the Principal though he does not belong to that community, etc. Going by the dictum laid down by the Division Bench in this case, the appointment of teacher-in-charge under Rule 45C(6) of Chapter XIV KER cannot be said to be in order. This Court is not inclined to given any further direction in that regard in the light of the specific reliefs that are granted to the petitioner in this case. 15. The third respondent Manager should pass necessary orders in the matter of appointment of the petitioner as Headmaster of the school with effect from 1.4.2014, without much delay, within a period of one month from the date of production of a certified copy of this judgment. He should thereafter forward the proposal/requisition to the second respondent -DEO for approval of the appointment of the petitioner as Headmaster of the school and a copy of the proposal should also be furnished to the petitioner. The second respondent will take necessary steps in the matter of approval of appointment and also : **:28::** W.P.(C) No.18439/14 shall take expeditious action in that regard. The third respondent should forward the salary bill of the petitioner as Headmaster of the school after such approval process by R-2. The second respondent should ensure that salary bill requisition forwarded by R-3 in the matter of pay and allowances of the petitioner as Headmaster of the school for the period from 1.4.2014 to 31.3.2016 and arrears in that regard should be duly disbursed by the respondents without much delay, at any rate, within a period of two months from the date of receipt of such requisition/salary bill concerned. The last pay of the petitioner should be fixed by the respondents as if he has retired from the post of Headmaster and terminal benefits should be re-fixed on the basis of last pay on the date of retirement and arrears of terminal benefits should be disbursed without much delay, preferably within a period of 3 to 4 months therefrom. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. ## **ALEXANDER THOMAS JUDGE** csl