W.P.C.No.20811 of 2010 (B) & W.P.C.No.23259 of 2012

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **THURSDAY, THE 12TH DAY OF SEPTEMBER 2013/21ST BHADRA, 1935** **WP(C).No. 20811 of 2010 (B)** **--------------------------------------** ## **PETITIONER(S):** **--------------------------** **THE CORPORATE MANAGER** **CORPORATE EDUCATIONAL AGENCY, DIOCESE OF MANANTHAVADY MANANTHAVADY.** **BY ADVS.SRI.KURIAN GEORGE KANNANTHANAM (SR.) SRI.TONY GEORGE KANNANTHANAM** ## **RESPONDENT(S):** **----------------------------** **1. STATE OF KERALA, REPRSENTED BY ITS SECRETARY TO GOVT., GEN. EDUCATION DEPARTMENT, GOVT. SECRETARIAT THIRUVANANTHAPURAM.** **2. DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM.** **3. DISTRICT EDUCATIONAL OFFICER, WAYANAD.** ## **4. M.C.VINCENT,** **HEADMASTER, ST.JOSEPH'S T.T.I., MANANTHAVADY-670 645.** **5. SEBASTIAN J.MUKKADAN, HEADMASTER, C.K.H.S., MANIMOOLY.** ## **6. C.L.VINCENT,** - **H.S.A., C.K.H.S., MANIMOOLY MALAPPURAM DISTRICT.** **R1 TO R3 BY GOVERNMENT PLEADER SRI. NOUSHAD THOTTATHIL R4 BY ADV. SRI.THOMAS GEORGE R6 BY ADVS. SRI.P.MURALEEDHARAN (IRIMPANAM) SRI.S.EASWARAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12-09-2013 ALONG WITH WPC. 23259/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DCS** **WP(C).No. 20811 of 2010 (B)** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS :-** - **EXT.P1 COPY OF THE PROCEEDINGS DATED 31.03.2004 BY THE PETITIONER PROMOTING THE 4TH RESPONDENT AS PRINCIPAL** - **EXT.P2 COPY OF THE PROCEEDINGS DATED 12.04.2004 BY THE PETITIONER PROMOTING THE 5TH RESPONDENT AS HEADMASTER** - **EXT.P3 COPY OF THE APPOINTMENT ORDER DATED 1.04.2004 WITH ENDORSEMENT REGARDING THE APPROVAL ISSUED TO THE 4TH RESPONDENT** - **EXT.P4 COPY OF THE APPOINTMENT ORDER DATED 12.04.2004 WITH ENDORSEMENT REGARDING THEIR APPROVAL ISSUED TO THE 5TH RESPONDENT** - **EXT.P5 COPY OF THE JUDGMENT DATED 11.12.2008 IN W.P.(C). NO. 16203/2004** |**EXT.P6**|**COPY OF THE REPRSENTATION OF THE 6TH RESPONDENT TO**| |---|---| ||**THE DEO**| |**EXT.P7**|**COPY OF THE REPRSENTATION OF THE 6TH RESPONDENT DATED**| ||**19.04.2004**| |**EXT.P8**|**COPY OF THE ORDER DATED 4.3.2009 OF THE DEO, WANDOOR**| ||**REJECTING EXT. P7**| |**EXT.P9**|**COPY OF THE ORDER DATED 17.03.2009 OF THE DEO, WAYANAD**| ||**ALLOWING EXT. P6 REPRESENTATION OF THE 6TH RESPONDENT**| |**EXT.P10**|**COPY OF THE APPEAL DATED 25.03.2009 AGAINST EXT. P9 FILED**| ||**BY THE PETITIONER BEFORE THE D.P.I.**| |**EXT.P11**|**COPY OF THE ORDER DATED 6.7.2009 PASSED BY THE ADDL. DPI**| ||**REJECTING EXT. P10 APPEAL OF THE PETITIONER**| |**EXT.P12**|**COPY OF THE PAGE 5 OF W.P.(C). NO. 16203/2004**| |**EXT.P12(a)**|**COPY OF THE PAGE 6 OF W.P.(C). NO. 16203/2004**| |**EXT.P13**|**COPY OF THE REVISION PETITION FILED BY THE PETITIONER**| ||**DATED 31.07.2009 AGAINST EXT.P11 BEFORE THE GOVT.**| |**EXT.P14**|**COPY OF THE JUDGMENT IN WRIT PETITION W.P.(C). NO.**| ||**25079/2009**| |**EXT.P15**|**COPY OF THE JUDGMENT IN WRIT PETITION W.P.(C). NO.**| ||**26152/2009**| **DCS** ## **WP(C).No. 20811 of 2010 (B)** - **EXT.P16 COPY OF THE GOVT. ORDER DATED 26.05.2000 ACCEPTING THE PETITIONER AS A RELIGIOUS MINORITY** - **EXT.P17 COPY OF THE PROCEEDINGS OF THE ADDL. DPI DATED 8.8.2001** - **EXT.P18 COPY OF THE JUDGMENT IN O.P. NO. 18591/2000** - **EXT.P19 COPY OF THE JUDGMENT DATED 09.01.2009 IN W.A. 68/2009** - **EXT.P20 COPY OF THE GOVT. ORDER DATED 29.04.2010 REJECTING PETITIONER'S EXT. P13 REVISION PETITION** - **EXT.P21 COPY OF THE ORDER DATED 10.02.2011 ISSUED BY THE NATIONAL COMMISSION FOR MINORITY EDUCATIONAL INSTITUTIONS** - **EXT.P22 COPY OF THE ORDER AS CERTIFICATE DATED 7.7.2011 OF -DO-** - **EXT.P23 COPY OF THE ORDER DATED 14.11.1979 ISSUED BY THE DPI, TRIVANDRUM** - **EXT.P24 COPY OF THE CERTIFICATE DATED 11.04.2012 ISSUED BY THE NATIONAL COMMISSION FOR MINORITY EDUCATIONAL INSTITUTIONS** ## **RESPONDENTS' EXHIBITS :-** - **EXT.R6(a) COPY OF THE ORDER NO. B3/5789/D.DIS. DATED 9.1.1989 ISSUED BY THE DEO WAYANAD.** - **EXT.R6(b) COPY OF APPOINTMENT ORDER ALONG WITH ORDER NO. B3/851/09 K. DIS. DATED 27.02.2009 ISSUED BY THE DEO WAYANAD.** - **EXT.R6(c) COPY OF APPLICATION DATED 5.12.2008 FILED BY THE PETITIONER IN W.P.(C). NO. 16203 OF 2004.** - **EXT.R6(d) COPY OF COUNTER AFFIDAVIT FILED BY THE PETITIONER IN O.P.NO. 18591 OF 2000.** - **EXT.R6(e) COPY OF JUDGMENT DATED 22.10.1997 IN O.P.NO. 5138 OF 1991.** **/TRUE COPY/** ## **P.A. TO JUDGE** **DCS** ## **A.M.SHAFFIQUE, J** *** * * * * * * * * * * * *** W.P.C.No.20811 of 2010 & 23259 of 2012 ---------------------------------------Dated this the 12[th] day of September 2013 ## **J U D G M E N T** Since common issues arise for consideration in the above writ petitions they are decided together. 2. In WP(C)No.20811 of 2010 the petitioner is the Corporate Management of a Corporate Educational Agency and challenges Ext.P9 order passed by the District Educational Officer directing the petitioner to appoint Sri.C.L.Vincent as Headmaster of the school, Ext.P11, the appellate order of the Director of Public Instruction confirming the very same directions and the Government Order at Ext.P20 again confirming the directions issued by the lower authorities at Exts.P9 and P11. 3. WP(C)No. 23259 of 2012 is filed by C.L.Vincent, the beneficiary of Ext.P9, P11 and P20 orders in WP(C) No.20811 of 2010 to implement the directions issued by the W.P.C.No.20811/2010 & 23259 of 2012 2 Government. The main contention urged by the Corporate Manager is that it is a minority institution protected under Article 30 (1) of the Constitution of India and therefore, it is always open for such an institution to appoint the Headmaster of their choice and seniority is not an issue involved in such appointment. In fact this position is covered by various judgments of the Supreme Court as well as of the High Court as reported in **Malankara Syrian Catholic College v. Jose** [2007(1) KLT 22 SC], **Kurian Lizy v. State of Kerala (2006(4) KLT 264)** and **Belsi v. Corporate Management of Latin Catholic Schools [2010(2) KLT** **260]** . Apparently if the petitioner school or educational agency is a minority institution, it shall always be open for them to appoint Headmaster of their choice and the contrary finding by the educational authorities and the Government is wrong. The further question therefore would be whether the factual considerations mentioned in the counter affidavit filed by the party respondent would throw a different picture W.P.C.No.20811/2010 & 3 23259 of 2012 than the right available to the Corporate Educational Agency. A narration of the aforesaid facts are therefore required for a proper adjudication of the case. 4. It is the contention of the Corporate Manager that the 4[th] respondent was appointed as Principal by virtue of Ext.P1 dated 31.3.2004 and the 5[th] respondent was appointed as Headmaster as per Ext.P2 dated 12.4.2004 invoking Article 30(1) of the Constitution of India in the vacancies available, overlooking seniority of the 6[th] respondent. The 6[th] respondent challenged those appointments by filing WP(C) No.16203 of 2004 which was disposed of as per Ext.P5 judgment directing the District Educational Officer to take a decision on the representations submitted by the 6[th] respondent. The District Educational Officer by Ext.P8 rejected the representation submitted by the 6[th] respondent with reference to the appointment of the 5[th] respondent by holding that the said institution is a minority institution. However, by Ext.P9 the representation W.P.C.No.20811/2010 & 23259 of 2012 4 of the 6[th] respondent was considered and allowed indicating that the appointment of the 4[th] respondent was bad in law. The Corporate Manager filed an appeal against Ext.P9 decision before the Director of Public Instruction which was rejected as per Ext.P11. Thereafter they filed a revision before the Government and Ext.P20 is the order rejecting the revision. According to the petitioner, the reasons stated in Ext.P20 order is factually and legally incorrect. One of the reasons stated in Ext.P20 order is based on judgment in W.A.No.68 of 2009. It was also found that the Manager had not produced any additional materials for consideration by the Government. 5. Counter affidavit is filed by the 6[th] respondent inter alia contending that the District Educational Officer Wayanad as per order dated 9.1.1989 has approved the transfer of Management subject to the condition that status quo of the staff should be maintained. Ext.R6(a) is the said order. This argument is based on the contention that the W.P.C.No.20811/2010 & 5 23259 of 2012 school was transferred to the Management of the petitioner only during the year 1989-90 and until such time the school was under the Management of Fr.Sebastian Palackey. A common seniority list of Headmasters of High Schools and Training Schools and High School Assistants and Training School Assistants and also senior language teachers were prepared and published by the petitioner. The 6[th] respondent was rank No.81 and M.C.Vincent the 4[th] respondent was not even included in the said list. Mr.Sebastian was rank No.107. He was the 5[th] respondent. The respondent contended that he is fully qualified to the post of Headmaster. But the seniority had been overlooked by the petitioner which resulted in the impugned orders to be passed. It is contended that the claim under Article 30(1) of the Constitution was raised by the petitioner in W.A.No.68 of 2009. But the Division Bench declined to accept the said contention as revealed in Exts.P8 and P19 judgments. In Ext.P19, the Division Bench observed that “but when the W.P.C.No.20811/2010 & 23259 of 2012 6 matter was challenged appellant Manager has taken the stand that in fact the appointment was made in exercise of the minority right available under Article 30(1) of the Constitution of India. Since the appellant does not have any such case in the appointment orders, the said contention could not have been accepted by any of the statutory authorities.” This apparently is the basis on which the respondent contends that the petitioner had not invoked the minority right under Article 30(1) of the Constitution of India. It is further contended that another person one Sri.K.V.Varkey who was senior to the respondent also approached the High Court for similar reliefs. The said writ petition was allowed by the High Court and Writ Appeal preferred by the petitioner was dismissed and Sri.K.V.Varkey was given all the benefits and promoted to the post of Headmaster. It is also denied that the petitioner is the minority institution. That apart it is contended that the minority rights cannot be used as a weapon against other W.P.C.No.20811/2010 & 23259 of 2012 7 members of the same community. It was inter alia observed that the Management may supersede members of other communities and also members of the minority community who are found unsuitable for promotion to the post of Headmaster. But in respect of teachers who are in every respect qualified and suitable to head a minority educational institution, the Management may select the best among them and the selection procedure should be fair, reasonable and transparent. It was therefore held that the Management 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 the school/college library for reference. It is contended that the petitioner had not complied with the above direction and therefore, they cannot claim the benefit of being a minority institution. Further it is contended that no material had been produced by the petitioner to indicate W.P.C.No.20811/2010 & 8 23259 of 2012 before any of the authorities that it is a minority institution entitled to get protection under Article 30(1) of the Constitution of India. Based on these contentions the 6[th] respondent sought for dismissal of the writ petition and also sought for allowing the writ petition filed by him as WP(C) No.23259 of 2012. 6. The first question to be considered in the present writ petition is whether the petitioner is a minority educational institution. 7. Exts.P21 to P24 would show that the Corporate Management was declared as a Minority Institution by the National Commission for Minority Educational Institutions, Government of India. Ext.P24 is a specific certificate issued indicating that St.Joseph's T.T.I. Mananthavady run by the Corporate Educational Agency, Diocese of Mananthavady as a minority educational institution covered under Section 2(g) of the National Commission for Minority Educational Institutions Act, 2004. On the basis of these certificates it W.P.C.No.20811/2010 & 23259 of 2012 9 cannot be complained that the petitioner organisation is not a minority institution. That apart, once such a declaration has been made it relates to the date of submission of the application which is referred in the aforesaid documents. In **N.Ammad v. Manager, Emjay High School** [(1998) 6 SCC 674) the Supreme Court has held that when the Government declares a school as a minority institution, it has recognised a factual position that the school was established and is being administered by a minority community. The declaration is only an open acceptance of a legal character which should necessarily have existed antecedent to such declaration. In view of the aforesaid law laid down by the Supreme Court, I have no hesitation to hold that the petitioner is a minority institution and once the declaration has been made, all appointments that have been made by the petitioner can be treated as appointments with reference to their status as a minority institution and all such appointments are entitled to get the protection of W.P.C.No.20811/2010 & 10 23259 of 2012 Article 30(1) of the Constitution of India. 8. The next question is regarding the observation made by a Division Bench of this Court in W.A.No.68/09. While deciding the said case, the Division Bench clarified that the issue whether the petitioner's educational institution is a minority institution is kept open and anything observed in the judgment under the appeal will not bind the appellant in raising the said contention before the statutory authorities or in any other proceedings. Therefore, it is clear that the decision taken in the said appeal was confined to that case alone and cannot be brought into effect for any other proceedings. Any other proceedings has to be considered on its own facts and not on the basis of the judgment aforesaid. 9. The other question to be considered is regarding the validity of Ext.P1 order. It is clearly observed that the appointment of Sri.M.C.Vincent, the 4[th] respondent herein is in terms of the provisions of Section 2(5) of the Kerala W.P.C.No.20811/2010 & 11 23259 of 2012 Education Act read with Article 30(1) of the Constitution of India without observing rule of seniority. Therefore, the authorities cannot take a position that the appointment order does not contain the fact that the said appointment was made on the basis of a claim under Article 30(1) of the Constitution of India. 10. In regard to the contention that rules were not framed for selecting persons who were having minority status, it is clear that **Kurian Lizy** (supra) was pronounced on 27/11/2006. Subsequently the Supreme Court pronounced **Malankara Syrian Catholic College** (Supra) on 25/07/2007. At that time, the understanding was that the selection procedure as contemplated in **Kurian Lizy** (supra) was impliedly overruled. This matter was considered by a Division Bench of this Court in **Manager, S.S.H.S. V. Lijin (2007(3) KLT 663)** and it was observed that the procedure prescribed in **Kurian Lizy** (supra) was not good law. This issue was subsequently considered by the Full Bench in W.P.C.No.20811/2010 & 12 23259 of 2012 **Belsi** (supra) which was decided only on 24/03/2010. Ext.P1 order is issued on 31/03/2004. Therefore, at the time when Ext.P1 was issued, there was no rule of law which provided a selection procedure to be conducted before issuing an order of appointment to a person belonging to a minority community. 11. Having found so, I am of the view that the decision taken by the Government in Ext.P20 and the educational authorities in Exts.P9 and P11 are absolutely baseless and are liable to be set aside. 12. Accordingly, W.P.C.No.20811 of 2010 is allowed. Exts.P9, P11 and P20 are set aside and it is declared that the appointments made by the petitioner with reference to respondents 4 and 5 as Principal and Headmaster respectively on 01/04/2004 and 12/04/2004 is in accordance with law and is liable to be approved by the educational authorities. W.P.C.No.20811/2010 & 13 23259 of 2012 In the light of the judgment in W.P.C.No.20811 of 2010, W.P.C.No.23259 of 2011 is dismissed. (sd/-) **(A.M.SHAFFIQUE, JUDGE)** jsr