W.P.C.No.24745 of 2010 (P) and W.P.C.No.25995 of 2010

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **WEDNESDAY, THE 6TH DAY OF FEBRUARY 2013/17TH MAGHA 1934** ## **WP(C).No. 24745 of 2010 (P)** **---------------------------** **PETITIONER(S):** **--------------------------** **MANAGER, CORPORATE EDUCATIONAL AGENCY, NIRMALA BHAVAN, THODUPUZHA.** **BY ADVS. SRI.V.M.KURIAN, SRI.MATHEW B. KURIAN, SRI.K.T.THOMAS.** - **RESPONDENT(S): -------------------------** **1. GOVERNMENT OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM-1.** **2. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM-1.** **3. THE DEPUTY DIRECTOR, EDUCATION,** - **ERNAKULAM-1.** **4. THE DISTRICT EDUCATIONAL OFFICER, MUVATTUPUZHA-686 661.** **5. SRI.JAMES MATHEW, H.S.A, VIMALA MATHA HIGH SCHOOL, KADALIKAD, P.O.MUVATTUPUZHA, PIN-686 670.** **6. SR.DAISAMMA MICHAEL, HEADMISTRESS, V.M.H.S. VIMALA MATHA HIGH SCHOOL, KADALIKAD, PIN-686 670.** **R1 TO R4 BY GOVT. PLEADER MR.NOUSHAD THOTTATHIL. R5 BY ADV. SRI.SIJI ANTONY.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-02-2013, ALONG WITH W.P.(C)NO. 25995 OF 2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs.** **WP(C).No. 24745 of 2010 (P)** **APPENDIX** ## **PETITIONER'S EXHIBITS:-** **EXT.P1 COPY OF THE CERTIFICATE DATED 15/07/2010. EXT.P2 COPY OF THE APPROVED CONSTITUTION DATED 23/04/1976. EXT.P3 COPY OF THE APPOINTMENT ORDER DATED 31/03/2009. EXT.P4 COPY OF THE COMPLAINT FILED BY THE 5TH RESPONDENT BEFORE THE 4TH RESPONDENT. EXT.P5 COPY OF THE PETITIONER'S EXPLANATION DATED 12/05/2009 SUBMITTED BEFORE THE 5TH RESPONDENT BY THE PETITIONER.** **EXT.P6 COPY OF THE PETITIONER'S EXPLANATION DATED 02/06/2009 SUBMITTED BEFORE THE 5TH RESPONDENT BY THE PETITIONER. EXT.P7 COPY OF THE PETITIONER'S EXPLANATION DATED 24/06/2009 SUBMITTED BEFORE THE 5TH RESPONDENT BY THE PETITIONER. EXT.P8 COPY OF THE ORDER DATED 24/07/2009. EXT.P9 COPY OF THE APPEAL PETITION DATED 01/08/2009. EXT.P10 COPY OF THE ORDER DATED 26/03/2009 ISSUED BY THE 3RD RESPONDENT IMPOSING PENALTY ON THE 5TH RESPONDENT. EXT.P11 COPY OF THE ORDER DATED 09/10/2009 PASSED BY THE 3RD RESPONDENT. EXT.P12 COPY OF THE APPEAL PETITION DATED 06/11/2009 AGAINST EXT.P11 ORDER. EXT.P13 COPY OF THE ORDER DATED 16/10/2009 ISSUED BY THE 3RD RESPONDENT. EXT.P14 COPY OF THE ORDER DATED 06/10/2009. EXT.P15 COPY OF THE REVISION PETITION DATED 25/11/2009 FILED BEFORE THE 1ST RESPONDENT.** - **EXT.P16 COPY OF THE NOTICE DATED 22/05/2010 ISSUED BY THE 2ND RESPONDENT.** - **EXT.P17 COPY OF THE WRITTEN EXPLANATION DATED 01/06/2010 PRESENTED BEFORE THE 2ND RESPONDENT ON 03/06/2010.** - **EXT.P18 COPY OF THE ORDER DATED 15/06/2010 PASSED BY THE 2ND RESPONDENT.** ## **RESPONDENT'S EXHIBITS:-** - **EXT.R5A COPY OF THE CLAIM PETITION.** ## **//TRUE COPY//** **P.A. TO JUDGE** **rs.** ## **A.M.SHAFFIQUE, J** *** * * * * * * * * * * * *** W.P.C.Nos.24745 & 25995 of 2010 ---------------------------------------Dated this the 6[th] day of February 2013 ## **J U D G M E N T** W.P.C.No.24745 of 2010 is filed by the Manager of the Corporate Educational Agency challenging Exts.P11, P13, P14 and P18 . 2. W.P.C.No.25995 of 2010 is filed by the 5[th] respondent in W.P.C.No.24745 of 2010. The parties are referred to as shown in W.P.C.No.24745 of 2010. 3. The issue relates to the appointment of the 6[th] respondent as the Headmistress which was not approved by the educational authorities. Admittedly, the 5[th] respondent is senior to the 6[th] respondent. But the petitioner appointed the 6[th] respondent contending that she was more qualified and that there were some allegations against the 5[th] respondent. However, educational authorities did not approve the said appointment on the basis of the representations submitted by the 5[th] respondent inter alia W.P.C.No.24745 & 25995 of 2010 2 contending that there is violation of Rule 44(1) of Chapter XIV A of Kerala Education Rules (KER). According to the educational authorities, senior most person is to be appointed as Headmaster of the school and therefore the appointment of the 6[th] respondent is bad in law. 4. It is seen from the records that the petitioner institution had claimed rights of a Minority Institution under Article 30(1) of the Constitution of India. But the educational authorities seem to have rejected the contention on the ground that necessary documents to substantiate the status of the petitioner was not produced. 5. W.P.C.No.25995 of 2010 is filed by the 5[th] respondent for implementing the orders passed by the educational authority. The main contention urged by the 5[th] respondent is that even if it is a case where the petitioner is entitled for the protection of minority institution under Article 30(1) of the Constitution of India, still going by the law laid down in **Kurian Lizy v. State of Kerala** [2006(4) W.P.C.No.24745 & 25995 of 2010 3 KLT 264] which is reiterated by another Full Bench in **Belsi v. Corporate Management of Latin Catholic Schools** [2010(2) KLT 260], in so far as the management has not framed any procedure for appointment of Head Masters, the appointment made by the petitioner is bad in law. 6. The parties have filed counter affidavits in both the cases. Government have also filed counter affidavit supporting their stand and contending that though the petitioner in W.P.C.No.24745 of 2010 claims to be a minority institution, the orders in that regard was issued by the Government of India, National Commission for Minority Educational Institution only on 15/07/2010. It is therefore the contention of the Government that the petitioner was not considered as a minority institution entitled for the benefit under Article 30(1) of the Constitution of India while the educational authorities were considering the claims of the petitioner and the party respondents. W.P.C.No.24745 & 25995 of 2010 4 6. The short question to be considered in the above case is whether on the basis of Ext.P1 the petitioner is entitled for protection under Article 30(1) of the Constitution of India. It cannot be disputed that Ext.P1 order passed by the National Commission for Minority Educational Institution relates back to the date of submission of the application which is referred to as F.No.1299/09 of Vimalamatha Higher Secondary School and F.No.423 of 2010 of Vimalamatha High School. The learned counsel for the petitioner also relied upon the judgment of the Supreme Court in **N.Ammad v. Manager, Emjay High School** [(1998) 6 SCC 674]. Paragraph 13 of the above judgment is extracted below: “When the Government declared the School as a minority school, 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 W.P.C.No.24745 & 25995 of 2010 5 antecedent to such declaration. Therefore, we are unable to agree with the contention that the School can claim protection only after the Government declared it as a minority school on 02/08/1994.” 7. The fact remains that Ext.P1 is an acceptance of the fact that the petitioner is a minority institution. Therefore it has to be held that the petitioner is entitled for the benefit of minority institution as held by the Supreme Court in **Malankara Syrian Catholic College v. Jose** [2007(1) KLT 22 SC]. 8. The only question therefore to be considered is whether the educational agency could have formulated a procedure as held by the Full Bench in paragraph 8 of **Kurian Lizy** (Supra). 9. Learned counsel for the 5[th] respondent contended that the 5[th] respondent also being a member of the minority community, unless necessary rules have been framed to W.P.C.No.24745 & 25995 of 2010 6 prescribe the selection procedure by the minority institutions they cannot take shelter under Article 30(1) of the Constitution of India. This argument is countered by the learned counsel for the petitioner by contending with the judgment of **Kurian Lizy** (Supra) was pronounced on 27/11/2006. Subsequently, the Supreme Court pronounced **Malankara Syrian Catholic College** (Supra) on 25/7/2007 by which the understanding was that the selection procedure 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.School v. Lijin** [2007(3) KLT 663]. The Division Bench opined that in view of the judgment in **Malankara Syrian Catholic College** (Supra), the procedure prescribed in **Kurian Lizy** (Supra) is not good law. This issue subsequently came before the Full Bench in **Belsi** (Supra) which was decided only on 24/03/2010. The 6[th] respondent was appointed as Head Mistress on 01/04/2009 while the law was, as declared W.P.C.No.24745 & 25995 of 2010 7 by this Court in **Manager S.S.H.S.School** (Supra) with reference to **Malankara Syrian Catholic College** (Supra). 10. That being the situation, at that point of time, there was no insistence on the part of the minority institution to prepare any selection procedure. This argument is definitely acceptable since the judgment in **Belsi** (Supra) came to be pronounced only on 24/03/2010 wherein the Full Bench of this Court had indicated that the procedure prescribed in **Kurian Lizy** (Supra) was not impliedly overruled in **Malankara Syrian Catholic College** (Supra). 11. Hence the petitioner cannot be found fault in not prescribing a procedure for selection of Head Master. 12. That apart, it is relevant to note that the 6[th] respondent was appointed as Head Mistress as she was having a higher qualification and according to the management, there was some allegation against the 5[th] respondent. Whatever that may be, in view of the judgment W.P.C.No.24745 & 25995 of 2010 8 in **Malankara Syrian Catholic College** (Supra), I am of the view that the petitioner was justified in choosing the Headmaster of their choice and appointing 6[th] respondent as 5[th] respondent cannot claim any right to become the Headmaster on the basis of the Rules. 13. Such being the situation, W.P.C.No.24745 of 2010 is only to be allowed. Since the writ petition filed by the Manager is allowed, W.P.C.No.25995 of 2010 is only to be dismissed. Hence Exts.P11, P14, P18 and P13 are set aside. The 4[th] respondent shall approve the appointment of the 6[th] respondent as Head Mistress of the School managed by the petitioner. The 4[th] respondent shall pass appropriate orders within a period of one month from the date of receipt of a copy of this judgment. (sd/-) ## **(A.M.SHAFFIQUE, JUDGE)** jsr W.P.C.No.24745 & 25995 of 2010 9 W.P.C.No.24745 & 25995 of 2010 10 W.P.C.No.24745 & 25995 of 2010 11