Writ Appeal No.716 of 2013

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HON'BLE THE CHIEF JUSTICE DR. MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN TUESDAY, THE 28TH DAY OF MAY 2013/7TH JYAISHTA 1935 WA.No. 716 of 2013 () IN WP(C).10577/2011 ------------------------------------------------- AGAINST THE ORDER IN WP(C) 10577/2011 DATED 11-03-2013 APPELLANT(S): - --------------- 1. SR. JESSY MANAGER, LITTLE FLOWER HIGH SCHOOL, NARAKKAL COCHIN 682 505. ## 2. MOTHER SUPERIOR LITTLE FLOWER CONVENT, NARAKKAL, COCHIN 682 505. BY ADV. SRI.T.M.ABDUL LATHEEF RESPONDENT(S): - ------------------- 1. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT GENERAL EDUCATION DEPARTMENT THIRUVANANTHAPURAM 695 001. 2. THE DISTRICT EDUCATIONAL OFFICER ERNAKULAM 682 030. 3. HEADMISTRESS (THRESSIAMMA M.J) LITTLE FLOWER HIGH SCHOOL, NARAKKAL, COCHIN 682 505. 4. SR.GINIMOL T.JOHN HIGH SCHOOL ASSISTANT, LITTLE FLOWER HIGH SCHOOL NARAKKAL, COCHIN 682 505. ## 5. V.A.VARGHESE HIGH SCHOOL ASSISTANT, LITTLE FLOWER HIGH SCHOOL NARAKKAL, COCHIN 682 505. R5 BY SRI.C.P.SAJI R1 & R2 BY GOVERNMENT PLEADER SMT.GIRIJA GOPAL THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 28-05-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **MANJULA CHELLUR,C.J. & K.VINOD CHANDRAN, J.** **= = = = = = = = = = = = = = = = Writ Appeal No.716 of 2013 = = = = = = = = = = = = = = = = = = = = = Dated this the 28th day of May, 2013** ## **JUDGMENT** ## **Manjula Chellur,CJ** Heard learned counsel for the appellants as well as the party respondent and learned Government Pleader. 2. Appellants 1 and 2 herein approached the learned Single Judge as writ petitioners. The 1[st] petitioner is the Mother Superior, Little Flower Convent, Narakkal and the Manager of the Little Flower Girls High School. The challenge was with regard to Ext.P6 order dated 29.03.2011 which reads as under:- “Due to the pendency of the dispute regarding the Management of the school before the Honourable High Court of Kerala nobody has been appointed as the Manager of LFHS, Narakkal from 01.10.2010 onwards. The post of Headmaster of the school will fall vacant on 31.3.2011 due to your retirement and hence you are directed to hand over the charge of the Headmaster of the school to the senior most H.S.A working in the school on 31.3.2011 who qualified to be promoted as the next Headmaster.” **Writ Appeal No.716 of 2013** **2** 3. According to the appellants, the institution being a minority institution, Rule 44 of the Kerala Education Rules has to be applied to the facts of the present case, therefore there was no justification for the Deputy Educational Officer to direct handing over charge of the Headmaster of the school to the senior most H.S.A working in the school on 31.03.2011 who was qualified to be promoted as next Headmaster/Headmistress on the eve of retirement of earlier Headmaster on 31.03.2011. There also seems to be some litigation with regard to the appointment of the 1[st] appellant/petitioner as Manager. However we are not concerned with the said dispute. We are only concerned with the option claimed by the appellants to choose a person of their choice as in-charge Headmaster/Headmistress with effect from 01.04.2011 and also making regular promotion to the post of Headmaster/Headmistress with regard to the vacancy that arose on 01.04.2011. The appellants/petitioners were aggrieved by the so called direction given by the officer at Ext.P6 to appoint the senior most H.S.A as the Headmaster/Headmistress of the school with effect from 01.04.2011. The 5[th] respondent herein **Writ Appeal No.716 of 2013** **3** contested the matter. 4. The learned Single Judge after referring to Rule 44A of Chapter XIVA of Kerala Education Rules especially with reference to Sub-rule 1 of Rule 44 and conditions required for such appointment even if the appellants' institution intends to exercise their option proceeded to hold that though the minority institution has a right to appoint a person of their choice as the Headmaster/Headmistress, it does not mean that the educational agency or manager can appoint an unqualified teacher as Headmaster/Headmistress as the case may be. In other words, the emphasis was on the non-compliance of qualification requirement as provided in Kerala Education Rules and therefore proceeded to hold that there was no justification to interfere with Ext.P6 as contended by the writ petitioners. Aggrieved by the said judgment of the learned Single Judge the appeal is filed. 5. According to the learned counsel for the appellants/petitioners, the recommendation by the earlier Headmaster was only to make in-charge arrangements by recommending the name of 4[th] respondent as in-charge **Writ Appeal No.716 of 2013** **4** Headmaster/Headmistress of school and it was not at all for a regular appointment or promotion as Headmaster/Headmistress of the school. Therefore, there was no justification in the wordings read above found at Ext.P6. 6. What one has to note from the submissions and the material placed on record is the vacancy arose as early as 01.04.2011. What exactly was the case of the petitioners when they approached the learned Single Judge is also of much relevance. Perusal of writ petition clearly indicates, the case of the 4[th] respondent was championed by the appellants/writ petitioners all along. As a matter of fact at Ground C in so many words they have stated so, which reads as under:- “Under Rule 45(C) of Chapter XIV-A of the Kerala Education Rules it is to prerogative of the Manager as appointing authority to effect temporary promotion. Since the 2[nd] respondent is not the appointing authority nor given any power of the appointing authority by the statute it cannot give any temporary promotion and accordingly Ext.P6 order is liable to be set aside. Moreover Rule 45(C) is also subject to the right confirmed by the Constitution of India in respect of Minority Institution. So a person of the choice of the Minority institution having the qualification to be promoted as Headmistress even if present, the Management is not bound to give any temporary promotion to such person. On the contrary the **Writ Appeal No.716 of 2013** **5** Manager is entitled to appoint a person of their choice from among the teacher and it was accordingly the 4[th] respondent was given appointment. However, under Sub Rule 6 a teacher-in-charge can be appointed in the case of absence of qualified teacher for promotion as Headmistress. In this case no such contingency arises since the Manager is not interested in appointing the 5[th] respondent. The Manager can look out for persons of its choice withholding such promotion till a person of their choice found suitable is fixed. So exercising such power the first petitioner has appointed the 4[th] respondent and such appointment is to be approved. However the 2[nd] Respondent has no right to effect appointment by invoking the power under sub Rule 6 of Rule 45(C) of Chapter XIV-A of the Kerala Education Rules. Hence the order is illegal.” 7. Reading of Ground C as stated above clearly indicates while putting forth their claim that under Rule 45(C), they have exercised their power in recommending the name of in-charge Headmaster/Headmistress they have said various aspects which clearly indicate case of the 4[th] respondent was recommended by the appellants/petitioners. Rule 45(C) of Chapter XIV-A of the Kerala Education Rules clearly indicates only in the absence of availability of suitable qualified candidate in-charge arrangements could be made. Therefore, the question is **Writ Appeal No.716 of 2013** **6** whether on 1.04.2011 it was a situation where no suitable candidate was available to be promoted as Headmaster/Headmistress of the school in question. Apparently, case of the 5[th] respondent is as on the date of arising vacancy on 01.04.2011, he was the senior most qualified teacher available for promotion, therefore he was entitled to be promoted as the Headmaster of the school. 8. According to the appellants/writ petitioners, the institution being a minority institution so long as the person having qualification is appointed, it is the choice of the minority institution to choose a candidate for promotion and therefore there was no justification in the direction given at Ext.P6. It is trite that even a minority institution cannot appoint a person who is unqualified to hold the post. 9. Learned counsel appearing for the 5[th] respondent relies upon the decision reported in **Susamma Thomas v. State of Kerala and others** (2012 KHC 554) to contend when the right under Article 30(1) of the Constitution is to be exercised and when it is not to be exercised by the Management. Portion of paragraph 2 is relevant for the purpose of this case and to **Writ Appeal No.716 of 2013** **7** ## understand the stand of the appellants/ writ petitioners which reads as under:- “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, should not 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 Art.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.20(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.” **Writ Appeal No.716 of 2013** **8** 10. As a matter of fact, during the course of arguments when the court pointed out to the learned counsel for the appellants that even the minority institution has to follow the procedure contemplated under Educational Rules though they have option to choose a candidate of their choice so far as qualification etc. is concerned, learned counsel persistently submitted that only a qualified teacher as per the rules from among the same community (especially a nun) would be selected. As a matter of fact, Sl.Nos.7 and 11, Sr.Valsamma Thomas and Sr.Luciamma C.S were indicated. When we ask whether they were qualified as on the date of arising of vacancy either in pursuance of Rule 44A or in pursuance of Rule 44B(2), learned Counsel for the appellants submitted that he has no instructions to the said effect and then sought time till afternoon. 11. When the matter was taken up again he fairly submitted, the above said two persons were not qualified as on the date of vacancy on 1.4.2011 but he suggested Sl.Nos.20 and 24 i.e. Sathi Devi B and Antony K.V. as choice of the management. When we pointed out Sathi Devi not being a person belonging to minority community, immediately **Writ Appeal No.716 of 2013** **9** submission was Sl.No.24 would be recommended being a person belonging to the said community. As of now, we do not even know whether Antony is qualified as per the Educational Rules, especially looking at the answer to the RTI query received by the 5[th] respondent which is placed on record as per Ext.R5(b) and R5 (c). Question No. 6 in Ext.R5(b) and the answer at R5(c) are relevant which read as under:- “ xxx xxx xxx xxx 6) Are there any fully qualified H.S.A. in that school to be promoted as Headmasters as on 01.04.2011, if so who are they? ## Yes. Sri.V.A.Varghese” 12. As per this document, the Public Information Officer of District Educational Office, Ernakulam informed that 5[th] respondent Sri.V.A.Varghese was the only fully qualified H.S.A. available in the school as on 1.04.2011. 13. In the light of the above materials placed on record and having regard to the stand of the appellant /writ petitioners from time to time so far as exercising their choice as a minority institution especially at the relevant time of vacancy that is 01.04.2011, the reading of pleadings placed by the writ **Writ Appeal No.716 of 2013** **10** petitioners before the learned Single Judge clearly indicates, except 4[th] respondent no one else was in the mind of the appellants for promotion as Headmaster/Headmistress. For the sake of arguments now they are pointing Sl.Nos.7,11,20 and 24. As indicated in the judgment of the Division Bench if the appellants/petitioners have forfeited the exercise of their right as early as on 01.04.2011 can they be allowed to exercise their choice at this belated stage, which cannot be permitted as indicated in the above judgment? In view of the above discussion and reasoning, we are of the opinion, there is no justification to interfere with the judgment of the learned Single Judge as contended by the appellants and accordingly the appeal is dismissed. ## **MANJULA CHELLUR, CHIEF JUSTICE** **K.VINOD CHANDRAN, JUDGE** sj 29/5