Kerala High Court
Prasad vs Philipose Mar Dilshus U.P. School on 7 June, 2005
Equivalent citations: 2005(3)KLT487
Author: J.B. Koshy
Bench: J.B. Koshy, K.T. Sankaran
JUDGMENT J.B. Koshy, J.
1. All the three Writ Appeals were filed against the common judgment passed by the learned Single Judge. Writ Appeal No. 1163 of 2002 is filed by a party with leave as he was not a party in the Original Petition. W.P.(C) No. 35254 of 2003 is filed by the manager to drop the proceedings to recover the loss suffered by the Government. For describing the parties, we will refer to the parties mentioned in the judgment in O.P.No. 3409 of 1999 and exhibits mentioned therein unless otherwise stated.
2. Second petitioner as well as fifth respondent and appellant in W.A.No. 1163 of 2002 were members of the teaching staff in the first respondent's school. A post of headmaster arose on 1.6.1994. The management appointed the second petitioner on 12.1.1996 with effect from 1.6.1994. The Assistant Educational Officer rejected the appointment by order dated 15.5.1995. The District Educational Officer allowed the appeal filed by the management and this Court in O.P.No. 13249 of 1995 directed the District Educational Officer to reconsider the matter. The District Educational Officer approved the appointment of the second petitioner. A revision petition was filed by the fifth respondent and the revision petition was allowed on 10.9.1997. The management challenged the Government Order by filing O.P. No. 16888 of 1997. Since the Government order passed in favour of the fifth respondent was not passed by the officer who heard the revision petition, that was set aside and the matter was remanded. Government again reconsidered the matter and directed to appoint fifth respondent as headmistress by Ext.P4 order dated 27.1.1999 and second petitioner filed O.P.No. 3409 of 1999. O.P.No. 4017 of 2002 was filed by the fifth respondent for implementation of the Government Order. The learned Single Judge by the impugned judgment dated 8.4.2002 allowed the Writ Petition filed by the fifth respondent and dismissed the Writ Petition filed by the management and second petitioner. In the light of the above decision, fifth respondent is entitled to be appointed with effect from 1.6.1994, that is, the date of occurrence of the vacancy. Second petitioner retired from service on 31.3.2002. Appellant in W.A.No. 1163 of 2002 approached this Court contending that he has relinquished his right only in favour of the second petitioner and on her retirement, he is entitled to be appointed. Now, the question is who is entitled to be appointed as headmaster with effect from 1.6.1994.
3. It is contended by the learned counsel for the appellants that the school is a minority institution and, therefore, it has got freedom to appoint any of the qualified teachers as headmaster. Article 30(1) of the Constitution of India protects the right of the management to establish and administer the schools. Headmaster is the person who is in charge of the school and immediate management and supervision of both the teaching staff as well as the students. He has to control the discipline and it is pivotal to the administration and hence under Article 30(1), the management has got freedom to appoint any qualified person as headmaster. In fact, the learned Single Judge accepted that position. In various Division Bench decisions of this Court as well as in the decision of the decision of the Supreme Court in N. Ammad v. Manager, Emjay High School and Ors., , interpreting the position with respect to Kerala Education Rules itself it was held that the management has got a right to choose qualified persons as headmaster of the school. The Supreme Court observed in paragraph 28 as follows:
"28. Thus the management's right to choose a qualified person as the Headmaster of the School is well insulated by the protective cover of Article 30(1) of the Constitution and it cannot be chiselled out through any legislative act or executive rule except for fixing up the qualifications and conditions of service for the post. Any such statutory or executive fiat would be violative of the fundamental right enshrined in the aforesaid article and would hence be void".
However, we note that the right of the management in selecting headmaster is only from among the qualified persons. It is settled proposition that if qualified person is available, the minority rights protected under Article 30(1) of the Constitution will not enable the management to select unqualified persons in preference to qualified candidates. It was held in various Apex Court decisions that institutions run by minority are also bound by regulations fixing qualifications of teaching and methods to improve standards of education etc. (See: In Re: Kerala Education Bill, 1957, 1958 KLT 465 SC : AIR 1958 SC 956, Ahmedabad St. Xavier's College v. State of Gujarat, AIR 1974 SC 349. Fixing higher qualification for headmaster is to ensure educational standard and excellence. The question is who is qualified amongst the contesting three candidates on 1.8.1994.
4. First, we will consider the claim of the petitioner in W.A.No. 1163 of 2002. He was not a UPSA on the date of occurrence of the vacancy. He was a specialist teacher in drawing at that time and even though he obtained B.Ed. degree in 1989, he was on protection from 1.6.1989 to 31.7.1997 and he availed leave for study purposes from 1.6.1991 to 28.2.1993. So, he was not having five years' teaching experience when the vacancy arose on 1.6.1994. The relevant rules are Rules 44 and 45 of Chapter XIVA of the Kerala Education Rules. Rule 44(1) provides for appointment of a seniormost UPSA as headmaster in the U.P. school. Earlier, graduate teachers had got preference of appointment as headmasters. But, with effect from 22.10.1971, the rule was amended and Rule 45 now reads as follows:
"45. Subject to Rule 44, when the post of Headmaster of complete U.P. School is vacant or when an incomplete U.P. School becomes a complete U.P. School, the post shall be filled up from among the qualified teachers on the staff of the school or schools under the Educational Agency. If there is a Graduate teacher with B.Ed. or other equivalent qualification and who has got at least five years experience in teaching after acquisition of B.Ed. degree he may be appointed as Headmaster provided he has got a service equal to half of the period of service of the seniormost under graduate teacher. If graduate teachers with the aforesaid qualification and service are not available in the school or schools under the same Educational Agency, the seniormost primary school teacher with SSLC or equivalent or TTC issued by the Board of Public Examination Kerala or T.C.H. issued by the Karnataka Secondary Education Examination Board, Bangalore or a pass in Pre-degree Examination with pedagogy as an elective subject conducted by the University of Kerala or any other equivalent training qualification prescribed for appointment as primary school Assistant may be appointed.
Note: The language/specialist teachers, according to their seniority in the combined seniority list of teachers shall also be appointed as Headmaster of U.P. School or Schools under an Educational Agency provided the teacher possesses the prescribed qualifications for promotion as Headmaster of U.P. School on the date of occurrence of vacancy".
A reading of Rule 45 will clearly show that if there is a graduate teacher with B.Ed. qualification and he has got at least five years' experience in teaching after acquisition of B.Ed. degree, he should be appointed as headmaster provided he has got service equal to half of the period of service of the seniormost teacher. The appellant in W.A. No. 1163 of 2002 was not the seniormost teacher on the date of occurrence of the vacancy and he was also not having five years' teaching experience after obtaining B.Ed. when the vacancy arose, that is, on. 1.6.1994. The leave availed for study purposes from 1.6.1981 to 28.2.1993 cannot be taken a actual teaching experience. He was also on protection on 1.6.1994 when the vacancy arose. It was held in Mar Sleeba UPS v. State of Kerala, 1990 (1) KLT 626, that a protected teacher has no claim for the post of headmaster as he is not a member of the staff of that school during that time though he has a claim under Rule 51A. So, he was not qualified to be appointed as headmaster on the date of occurrence of the vacancy, that is, 1.6.1994. Therefore, there is no merit in that Writ Appeal.
5. Then, the question is whether the second petitioner or fifth respondent is qualified to be appointed in that vacancy. Admittedly, second petitioner was not a graduate teacher. But the fifth respondent was a graduate teacher with 13 years' teaching experience. It is more than 50% teaching experience of the second petitioner. This Court has held repeatedly that the word 'may' used in Rule 45 means 'shall' and if there is a graduate teacher with five years' teaching experience and more than 50% service of seniormost of non-graduate teacher, he should be appointed as headmaster. This is so held in Karunakaran v. DEO, Badagara, 1976 KLN 51, V. Abdul Rahiman, Manager, AMUPS, Poovambai v. AEO, Balussery and Ors., ILR 1976 (2) Kerala 458, etc. and those decisions are repeatedly followed. Even though in Rev. Fr. Daniel v. Director of Public Instruction, 1965 KLT 927, it was held that minority schools are exempted from Rule 44 and Rule 45 is only a preferential right and minority management can appoint seniormost qualified UPSA as headmaster notwithstanding availability of graduate teacher for promotion under Rule 45. But, after the above decision, Rule 45 was substituted by new Rule 45 with effect from 9.11.1971. Rules 44 and 45 should be read together. In Kunjappa v. State of Kerala, 1992 (2) KLT 87, it was held that if there is a graduate teacher with B.Ed. and required number of years of experience as mentioned in Rule 45, no teacher with SSLC and TTC alone could be appointed as headmaster. In the above circumstances, only fifth respondent was entitled to be appointed in the vacancy that arose on 1.6.1994.
6. We note that the second petitioner was actually doing the work of a headmaster till her retirement. Apart from the normal work of a UPSA, supervisory work is to be done by the headmaster. In view of the above, salary paid to the second petitioner as headmistress shall not be recovered. However, fifth respondent should be appointed as headmistress with effect from 1.6.1994 even though she will not be entitled to arrears of salary for the period upto the retirement of the second petitioner. She will be entitled to all service benefits (notionally) with effect from 1.6.1994 and she will be entitled to arrears of salary from the date of retirement of second petitioner. We fully agree with the learned Single Judge. We have already held that during the period second respondent was actually working, salary cannot be denied and Government is also not at loss as we have not directed to pay arrears of salary for that period to the fifth respondent. Once Educational Authority also approved the appointment of second appellant. Hence, we cannot say that action of the management is not bona fide. Therefore, Ext.P5 notice in O.P.No. 39254 of 2003 ordering recovery of alleged loss from the manager is set aside. Ext.P4 passed by the Government in O.P.No. 3409 of 1999 is affirmed subject to the above directions regarding equitable relief with respect to drawal of salary. Arrears and other benefits as per the observations in this judgment should be paid to the fifth respondent who is the petitioner in O.P.No. 4017 of 2002 within three months from the date of receipt of a copy of this judgment and she should be posted as headmistress and appointment order with effect from 1.6.1994 shall be issued on or before 1st August, 2005.
All the Writ Appeals and Writ Petition are disposed of with the above directions.