U. Ramachandran v. State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE FRIDAY, THE 8TH DAY OF APRIL 2016/19TH CHAITHRA, 1938 WP(C).No. 25801 of 2012 (A) ---------------------------- PETITIONER: ---------- U.RAMACHANDRAN AGED 51 YEARS LOWER PRIMARY SCHOOL ASSISTANT NADUVANNUR SOUTH AMUP SCHOOL, NADUVANNUR P.O. KOZHIKODE DISTRICT 673 616, RESIDING AT "WHITE ROSE" KOTTOOR P.O., NADUVANNUR (VIA) KOZHIKODE DISTRICT 673 614. BY ADVS.SMT.SUMATHY DANDAPANI (SR.) SRI.MILLU DANDAPANI RESPONDENTS: ----------- 1. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT GENERAL EDUCATION DEPARTMENT, SECRETARIAT THIRUVANANTHAPURAM 695 001. 2. THE DISTRICT EDUCATIONAL OFFICER, THAMARASSERY, KOZHIKODE 673 014. 3. THE ASSISTANT EDUCATIONAL OFFICER, PERAMBRA KOZHIKODE 673 525. 4. THE MANAGER, NADUVANNUR SOUTH AMUP SCHOOL, NADUVANNUR P.O KOZHIKODE DISTRICT 673 616 5. SHRI.P.P.MURALI, HEADMASTER NADUVANNUR SOUTH AMUP SCHOOL NADUVANNUR P.O. KOZHIKODE DISTRICT 673 616.RESIDING AT PATINHARE PALLIYIL HOUSE ORAVIL P.O.NADUVANNUR (VIA) KOZHIKODE DISTRICT 673 614. R5 BY ADV. SRI.E.S.ASHRAF R4 BY ADV. SRI.P.C.SASIDHARAN R1-R3 GOVERNMENT PLEADER SRI.VIJU THOMAS THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-04-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **APPENDIX TO W.P.C.No.25801 OF 2012** ## **PETITIONER'S EXHIBITS:** EXT.P1: PHOTOCOPY OF LETTER DATED 3.4.2010 OF THE PETITIONER TO THE 4TH RESPONDENT. EXT.P2: PHOTOCOPY OF SENIORITY LIST OF TEACHERS OF THE 4TH RESPONDENT SCHOOL AS ON 1.1.2008. EXT.P3: PHOTOCOPY OF ORDER NO.B-178/2020 DATED 1.6.2010 OF THE 3RD RESPONDENT ISSUED TO THE PETITIONER AND OTHERS. EXT.P4: PHOTOCOPY OF JUDGMENT DATED 7.3.2011 OF THIS HONOURABLE COURT RENDERED IN W.P.C.No. 6930 OF 2011. EXT.P5: PHOTOCOPY OF APPOINTMENT ORDER ISSUED TO THE 5TH RESPONDENT BY THE 3RD RESPONDENT VIDE REF.NO.K.DIS.B-1223/11 DATED 11.4.2011. EXT.P6: PHOTOCOPY OF REVISION PETITION DATED 10.8.2011 PRFERRED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXT.P7: PHOTOCOPY OF ORDER G.O.(Ms)No.3864/2012/G.Edn. DATED 8.8.2012 OF THE 1ST RESPONDENT ISSUED TO THE 4TH RESPONDENT. EXT.P8: PHOTOCOPY OF REPRESENTATION DATED 4.9.2012 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. EXT.P9: PHOTOCOPY OF COMMUNICATION DATED 11.9.2012 RECEIVED BY THE PETITIONER FROM THE 4TH RESPONDENT. EXT.P10: PHOTOCOPY OF COMMUNICATION DATED 7.9.2012 ISSUED BY THE 4TH RESPONDENT TO THE 3RD RESPONDENT. EXT.P11: TRUE COPY OF THE REPLY DATED 30.12.2013 GIVEN BY THE 5TH RESPONDENT TO THE PETITIONER. EXT.P12: TRUE COPY OF THE MEMOS SUPPLIED TO THE PETITIONER BETWEEN 5.1.2010 TO 30.3.2010. ## **5TH RESPONDENT'S EXHIBITS:** EXT.R5(a): TRUE COPY OF THE COMMUNICATION ISSUED BY THE DEPUTY DIRECTOR OF EDUCATION DATED 6.12.2012. EXT.R5(b): TRUE COPY OF THE COMMUNICATION ISSUED BY THE MANAGER OF THE SCHOOL DATED 26.3.2011. ## **4TH RESPONDENT'S EXHIBITS:** EXT.R4(a): TRUE COPY OF THE ORDER ISSUED BY THE NATIONAL COMMISSIONER FOR MINORITY EDUCATIONAL INSTITUTIONS. EXT.R4(b): TRUE COPY OF THE PROCEEDINGS ISSUED BY THE MANAGER OF THE SCHOOL DATED 02.03.2010. EXT.R4(c): TRUE COPY OF THE LETTER GIVEN BY SMT.MARIYAM DT.8.3.2010. EXT.R4(d): TRUE COPY OF THE LETTER GIVEN BY SRI.A.K.RAJEESH. EXT.R4(f): TRUE COPY OF THE PETITION FILED BEFORE THE GOVERNMENT. EXT.R4(g): TRUE COPY OF THE COMMUNICATION ISSUED BY THE DEPUTY DIRECTOR OF EDUCATIONAL DATED 6.12.2012. // True Copy// PA to Judge ## **A.M.SHAFFIQUE, J * * * * * * * * * * * *** W.P.C.No.25801 of 2012 ---------------------------------------Dated this the 8[th] day of April 2016 ## **J U D G M E N T** This writ petition is filed seeking to grant a direction to the 4[th] respondent to appoint the petitioner in the post of Headmaster in Naduvannur South AMUP School against a vacancy that had occurred on 01/04/2004 and for other consequential reliefs including quashing of Ext.P9 order by which 5[th] respondent was appointed as Head Master of the said School. 2. The short facts involved in the writ petition would disclose that the petitioner was appointed as Lower Primary School Assistant (LPSA) in the School managed by the 4[th] respondent in 1982. He was regularised in service with effect from 14/07/1983. 3. A vacancy of Head Master had arisen in the School on retirement of one K.P.Asokan with effect from 01/04/2010. The petitioner requested the Manager to consider him, as he was the senior most LPSA as per the seniority list in the School. According to him, he is the only eligible and qualified person to be considered for appointment to the post as on 01/04/2004. W.P.C.No.25801/2012 2 Petitioner submitted Ext.P1 representation as well. However, the 4[th] respondent appointed 5[th] respondent provisionally as Headmaster for a period of one year as per order dated 01/04/2010. Petitioner preferred a complaint before the Assistant Educational Officer (AEO), who rejected his claim against which an appeal was preferred before the District Educational Officer (DEO). In the meantime, the Manager appointed the 5[th] respondent as Headmaster with effect from 01/04/2010, which was approved by the AEO. As per the directions issued by this Court in WP(C) No. 14605 of 2011, at the instance of the petitioner this Court directed the DEO to consider the petitioner 's appeal. However, the same came to be rejected, against which a revision was filed before the Government. Government rejected the revision on the ground that the School, being a minority institution, has the protection under Article 30(1) of the Constitution of India and it was open for the Manager to appoint any person as Headmaster overlooking seniority. Taking into account the law laid down by the Full Bench in **Kurian Lizy v. State of Kerala** [(2006) 4 KLT 264], Government directed the Manager to appoint the Headmaster after complying with the conditions therein. Ext.P7 is the said order. Petitioner, therefore, W.P.C.No.25801/2012 3 approached the authorities for complying with the directions of the Government. The Manager has sent a communication to the petitioner on 11/09/2012, which is produced as Ext.P9, informing that the petitioner's claim cannot be considered. 4. Petitioner, therefore, contends that no action has been taken by the Management in terms with the judgment in **Kurian Lizy** (supra). Therefore the appointment given to the 5[th] respondent is liable to set aside and the petitioner is entitled to be appointed to the vacancy of Headmaster with effect from 01/04/2010. 5. Counter affidavit has been filed by the 4[th] respondent supporting the stand taken in the matter. It is stated that the School is a minority educational institution and it is open for the Management to appoint a person of their choice, as Headmaster. It is further stated that when the post of Headmaster fell vacant on 01/04/2010, Management issued proceedings dated 02/03/2010 inviting applications from teachers. It is stated that the petitioner had not submitted any application within the stipulated time, whereas the 5[th] respondent submitted an application. Two of the teachers Smt.Mariam and Sri.A.K.Rajessh relinquished their claim and expressed unwillingness. The W.P.C.No.25801/2012 4 application of the petitioner was received by the office only on 05/04/2010 for which the time limit prescribed was 18/03/2010. By the time the selection procedure was completed and 5[th] respondent was appointed. It is stated that the Government in Ext.P7 order proceeded on the basis that the Management has not followed the dictum laid down in **Kurian Lizy** (supra). It is stated that the matter was brought to the notice of the Government as per Ext.R4(a). The Deputy Director of Education has also issued a communication dated 06/12/2012, stating that there is no irregularity in the selection of the 5[th] respondent. It is stated that in so far as the said proceedings had attained finality, the petitioner cannot challenge the appointment. 6. The 5[th] respondent also has filed a counter affidavit in which almost similar contentions have been raised. 7. The petitioner has filed a reply affidavit refuting the averments in the counter affidavit. The petitioner denied the fact that applications were called for. 8. The issue involved in the above writ petition is whether the action of the 4[th] respondent in appointing the 5[th] respondent as Headmaster of the School as against the seniority claim of the W.P.C.No.25801/2012 5 petitioner, is in violation of the statutory provisions or the rights of Minority Educational Institutions in terms of Article 30(1) of the Constitution. The main contention raised is based on the judgment in **Kurian Lizy** (supra). 9. The law governing the right of Minority Educational Institutions to appoint Headmaster of their choice is well settled. The Full Bench has held that management of a Minority Educational Institution would have freedom to appoint Headmaster or Principal. Rule 44(1) of the Kerala Educational Rules, 1959 would have no control over the powers conferred under Article 30(1) of the Constitution of India. It is, however, observed that such institution has to evolve a rationale procedure for selection of Headmaster or Principal. The Full Bench further observed that in order to evolve a procedure for selection to the post of Headmaster, the Court had prescribed certain guidelines. It is observed that there may be teachers, who are in every respect qualified and suitable to head a Minority Educational Institution. The Management has to select best among them. The selection procedure should be fair reasonable and transparent. The purpose is also mentioned that the eligible members of the minority community may not have a feeling that W.P.C.No.25801/2012 6 ## they have been superseded without any valid grounds. Paragraph 8 is relevant which reads as under: _"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 control over them, the management should have the freedom and there should not be any external controlling agency._ W.P.C.No.25801/2012 7 _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. R.44(1) of the Rules of 1959 would have no control over the powers conferred under Art.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. Art.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_ W.P.C.No.25801/2012 8 _Art.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 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."_ From a reading of the law laid down by the Full Bench, it is clear W.P.C.No.25801/2012 9 that, under normal circumstances, seniority should be the criteria. But, in the case of a minority institution, the Manager has the absolute power. The only factor to be looked into is whether a fair procedure has been adopted or not. Therefore, there is nothing wrong in the Management adopting a fair procedure to select Headmaster of their choice. In so far as the 4[th] respondent has taken such a contention and it is supported by the orders issued by the DDE as Ext.R4(g), by which the DDE has confirmed that the procedure prescribed in the judgment in **Kurian Lizy** (supra) has been complied with. 10. Under such circumstances, I do not think that the impugned orders call for any interference and any direction can be issued in favour of the petitioner, as claimed for in the writ petition. Hence the writ petition is dismissed. (sd/-) ## **(A.M.SHAFFIQUE, JUDGE)** jsr //True Copy// PA to Judge