Kerala High Court
Saji Thomas vs Regional Deputy Director on 30 September, 2022
Author: Murali Purushothaman
Bench: Murali Purushothaman
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
FRIDAY, THE 30TH DAY OF SEPTEMBER 2022 / 8TH ASWINA, 1944
WP(C) NO. 6735 OF 2011
PETITIONER:
SAJI THOMAS
PRINCIPAL IN CHARGE
NIRMALA HIGHER SECONDARY SCHOOL, ERUMAMUNDA,,
CHUGATHARA, NILAMBUR, MALAPPURAM DISTRICT.
BY ADV SRI.K.T.SHYAMKUMAR
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY ITS SECRETARY, GENERAL EDUCATION,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM,PIN 695001
2 THE DIRECTOR OF HIGHER SECONDARY EDUCATION,
HOUSING BOARD BUILDING, SANTHI NAGAR,
THIRUVANANTHAPURAM
PIN 695001
3 REGIONAL DEPUTY DIRECTOR
HIGHER SECONDARY EDUCATION, REGIONAL OFFICE,
KOZHIKODE, PIN 673001
GOVERNMENT PLEADER SRI C.N PRABHAKARAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
30.09.2022, ALONG WITH WP(C).5842/2012 AND WP(C).5731/2014, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP (C) 6735/2011, 5842/2012 &
5731/2014 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
FRIDAY, THE 30TH DAY OF SEPTEMBER 2022 / 8TH ASWINA, 1944
WP(C) NO. 5842 OF 2012
PETITIONER:
SAJI THOMAS,PRINCIPAL-IN-CHARGE, NIRMALA HIGHER
SECONDARY SCHOOL, ERUMAMUND, CHUGTHARA, NILAMBUR,
MALAPPURAM DISTRICT.
BY ADVS
SRI.K JAYAKUMAR
SRI.K.T.SHYAMKUMAR
RESPONDENTS:
1 REGIONAL DEPUTY DIRECTOR
HIGHER SECONDARY EDUCATION, REGIONAL OFFICE,
KOZHIKODE
2 MANAGER,NIRMALA HIGHER SECONDARY SCHOOL, ERUMAMUNDA,
CHUGATHARA, NILAMBUR, MALAPPURAM DISTRICT.
3 SUNNY M.P.,HIGHER SECONDARY SCHOOL TEACHER, NIRMALA
HIGHER SECONDARY SCHOOL, ERUMAMUNDA, CHUGATHARA,
NILAMBUR, MALAPPURAM DISTRICT.
GOVERNMENT PLEADER SRI C.N PRABHAKARAN
SRI.B.S.SURESH (CHIRAKKARA)
SRI.JOHNSON P.JOHN
SRI.B.S.SURESH CHIRAKKARA
SRI T.KRISHNANUNNI
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
30.09.2022, ALONG WITH WP(C).6735/2011 AND 5731/2014, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
WP (C) 6735/2011, 5842/2012 &
5731/2014 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
FRIDAY, THE 30TH DAY OF SEPTEMBER 2022 / 8TH ASWINA, 1944
WP(C) NO. 5731 OF 2014
PETITIONER:
SAJI THOMAS,PRINCIPAL-IN-CHARGE, NIRMALA HIGHER
SECONDARY SCHOOL, ERUMAMUNDA, CHUGATHARA, NILAMBUR,
MALAPPURAM DISTRICT.
BY ADVS.
SRI K JAYAKUMAR
SRI.K.T.SHYAMKUMAR
SMT.K.N.ABHA
SMT.ANU ASHOK
SRI.HARISH R. MENON
RESPONDENTS:
1 REGIONAL DEPUTY DIRECTOR,HIGHER SECONDARY EDUCATION,
REGIONAL OFFICE, KOZHIKODE, PIN-673 001.
2 MANAGER,NIRMALA HIGHER SECONDARY SCHOOL, ERUMAMUNDA,
CHUGATHARA, NILAMBUR, MALAPPURAM DISTRICT,PIN-679329.
3 SUNNY M.P.,HIGHER SECONDARY SCHOOL TEACHER, NIRMALA
HIGHER SECONDARY SCHOOL, ERUMAMUNDA, CHUGATHARA,
NILAMBUR, MALAPPURAM DISTRICT,PIN-679 329.
4 STATE OF KERALA,REPRESENTED BY ITS SECRETARY TO
GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001.
5 REGIONAL DEPUTY DIRECTOR,HIGHER SECONDARY EDUCATION,
REGIONAL OFFICE, MALAPPURAM, PIN-676 505.
BY ADVS.
SRI.T.KRISHNAN UNNI SR.
SMT.LAKSHMI SURESH
SRI.B.S.SURESH CHIRAKKARA
GOVERNMENT PLEADER SRI C.N PRABHAKARAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
30.09.2022, ALONG WITH WP(C).5842/2012 AND CONNECTED CASES,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP (C) 6735/2011, 5842/2012 &
5731/2014 4
"C.R"
JUDGMENT
Since common issues arise for consideration in these writ petitions, they were heard together and are disposed of by this common judgment. For the sake of convenience, unless otherwise specifically indicated, the status of the parties as well as the exhibits referred to hereinbelow shall be as obtaining in W.P.(C) No.5731/2014.
2. The Government, as per Ext. P2 order dated 15.02.1982, accorded sanction for opening new private schools in the State for the academic year 1982-1983. Permission was accordingly granted to open a new school in the aided sector in Malappuram District by name 'Nirmala Higher Secondary School, Erumamunda' (hereinafter referred to as 'school', for brevity) pursuant WP (C) 6735/2011, 5842/2012 & 5731/2014 5 to an application made by the Vicar, St. Mary's Catholic Church, Erumamunda.
3. Sri. Saji Thomas, the petitioner in all these writ petitions, was appointed as High School Assistant by the 2nd respondent, the manager of the school, with effect from 15.07.1994. When Higher Secondary section was sanctioned to the school, the petitioner was appointed as Higher Secondary School Teacher (HSST) with effect from 24.08.1998 and the appointment was approved by the Director of Higher Secondary Education vide Ext. P1.
4.Consequent to the retirement of Sri. C.P. Thomas, the Principal of the school on 31.03.2010, a vacancy to the post of Principal arose with effect from 01.04.2010. The petitioner states that, as per Rule 6 (1) (3) of Chapter XXXII of the Kerala Education Rules (for short, 'KER') reckoning his service as HSA and HSST, he WP (C) 6735/2011, 5842/2012 & 5731/2014 6 became qualified for being appointed as Principal in the school on 15.07.2006. In the seniority list published in the web portal of the Department of Higher Secondary Education relating to the school, Smt. Solly Augustine is placed as rank No.1, the petitioner is placed as rank No. 2 and Sri. Sunny. M.P. (the 3rd respondent in W.P. (C) Nos. 5842 of 2012 and 5731 of 2014) as rank No. 8. Smt. Solly Augustine submitted her relinquishment for appointment as Principal of the school as per Ext. P5 letter dated 03.04.2010. In view of the relinquishment given by Smt. Solly Augustine, the petitioner, being the next seniormost teacher, submitted Ext.P6 application dated 30.03.2010 before the Manager requesting to appoint him as Principal of the school.
5. The manager appointed the 3rd respondent as the Principal of the school as per Ext.P7 order dated WP (C) 6735/2011, 5842/2012 & 5731/2014 7 01.04.2010. According to the petitioner, the 3rd respondent is not qualified to be appointed as Principal of the school. The 3rd respondent was appointed as HSST (Junior) in the school from 24.08.1998 to 14.07.1999 and as HSST (Senior) from 15.07.2006 and he acquired the requisite 12 years teaching experience as per Rule 6 (1) (3) of Chapter XXXII of KER under the same educational agency only on 24.08.2010. The petitioner, therefore, preferred Ext. P8 representation before the Regional Deputy Director of Higher Secondary Education, the 1 st respondent, contending that the 3rd respondent was not qualified to be appointed as Principal of the school as he did not possess 12 years teaching experience in the same educational agency mandatory for appointment as Principal of Higher Secondary School and that the WP (C) 6735/2011, 5842/2012 & 5731/2014 8 appointment is made overlooking the seniority of six teachers.
6. The Regional Deputy Director, as per Ext. P9 order dated 17.04.2010, returned the proposal for approval of appointment of the 3rd respondent as Principal with a further direction to appoint the seniormost teacher as HSST in charge of Principal and to submit the proposal for approval of appointment for the purpose of drawing and disbursing the salary of the staff and for performing the routine duties of Principal. The petitioner states that since the manager did not comply with the direction in Ext. P9, the Regional Deputy Director issued Ext. P10 order placing the petitioner as HSST in charge of the post of Principal on a provisional basis for the purpose of drawing and disbursing the salary of the staff of the school and for performing the routine duties of Principal WP (C) 6735/2011, 5842/2012 & 5731/2014 9 of the school.
7.The Manager, along with the 3rd respondent, challenged Ext. P9 order before this Court by filing WP.(C) No. 15657/2010 and this Court passed interim order dated 28.05.2010 directing the 1st respondent to pass the salary bills submitted by the 3rd respondent who was appointed as Principal by the manager. The petitioner got himself impleaded in the said writ petition and produced Ext. P10 order and this Court, by Ext. P11 order dated 04.06.2010, recalled the interim order granted on 28.05.2010.
8. Pursuant to Ext. P10, the manager passed Ext. P12 order dated 07-07-2010 authorising the petitioner to draw and disburse the salary of the staff and the petitioner is continuing as Principal in charge of the school. However, the manager refused to acknowledge WP (C) 6735/2011, 5842/2012 & 5731/2014 10 the claim of the petitioner for appointment to the post of Principal. The claim of the petitioner for leave surrender benefit for having worked during the vacation was rejected by the 1st respondent stating that the request can be considered only based on the outcome of W.P.(C) No.15657/2010. The petitioner has, accordingly, filed W.P. (C) No.6735/2011 for direction to grant him the benefit of leave surrender for having worked as Principal -in- charge during the vacation.
9. After the date of arising of the vacancy in the post of Principal, the individual manager, the Vicar, St. Mary's Catholic Church, Erumamunda made application for change of management without involving change of ownership and the DEO allowed change of management of the school without involving change of ownership, in the name of Corporate Educational Agency of the WP (C) 6735/2011, 5842/2012 & 5731/2014 11 Catholic Diocese of Bathery. After effecting change of management, the Corporate Educational Agency of the Catholic Diocese of Bathery applied before the National Commission for Minority Educational Institutions ('NCMEI', for brevity), Government of India for grant of minority status for the schools under it. The said application was allowed by the NCMEI as per order dated 27.03.2012. In Ext. P13 certificate issued by the NCMEI, Nirmala Higher Secondary School, Erumamunda run by the Corporate Educational Agency of the Catholic Diocese of Bathery is declared as a minority educational institution covered under Section 2 (g) of the National Commission for Minority Educational Institutions Act, 2004 (hereinafter referred to as 'NCMEI Act', for short).
10. After obtaining minority status to the school, WP (C) 6735/2011, 5842/2012 & 5731/2014 12 the Corporate Manager issued Ext. P14 order dated 02.07.2012 appointing the 3rd respondent as Principal of the school with effect from 02.07.2012 in the vacancy of Sri. C.P.Thomas who retired from service on 31.03.2010. The petitioner challenged Ext. P14 before the 1 st respondent and later approached this Court by filing W.P. (C) No. 5842 of 2012 with prayer to quash Ext. P14 and to declare that the declaration of minority right obtained by a subsequent manager of the school will not enable the management to appoint a person of its choice to a vacancy of Principal in the school which arose prior to the approval of the change of management by the department.
11. The 1st respondent did not consider the proposal for approval of appointment of the 3rd respondent as Principal of the school and the manager filed W.P.(C) WP (C) 6735/2011, 5842/2012 & 5731/2014 13 No.11798/2012 before this Court praying for direction to approve the appointment of the 3rd respondent to the post of Principal in terms of Ext. P14 order and on the strength of Ext. P13 minority certificate. The said writ petition was heard along with W.P.(C) No. 15657/2010 referred to earlier and both the writ petitions were dismissed as withdrawn by Exts. P15 and P16 judgments.
12. Later, the manager preferred W.P. (C) No. 244/2013 before this Court and pursuant to the directions of this Court therein to consider the proposal for approval of Ext. P14 appointment order of the 3 rd respondent, the 1st respondent issued Exts P17 and P18 orders dated 09.05.2013 rejecting the approval of appointment of the 3rd respondent as Principal of the school. The 1st respondent rejected the proposal holding WP (C) 6735/2011, 5842/2012 & 5731/2014 14 that the 3rd respondent is not qualified for appointment to the post of Principal. The manager filed revision petition before the Government against Exts. P17 and P18 orders and later filed W.P.(C) No.14766/2013 before this Court and this Court directed the Government to dispose of the statutory revision petition.
13.The Government passed Ext.P20 order dated 14.02.2014 holding that the 2nd respondent has minority right to appoint a person of their choice and therefore, the appointment of the 3rd respondent as Principal of the school vide Ext.P14 with effect from 02-07-2012 is in order. However, it was observed that the approval will be subject to the outcome of W.P(C) No.5842/2012 pending before this Court. The relevant portion of Ext.P20 is extracted hereunder:
"4.Government have examined the matter in detail. WP (C) 6735/2011, 5842/2012 & 5731/2014 15 The vacancy of the post of principal in Nirmala Higher Secondary School, Erumamunda arose on 01.04.2010 and the school got minority status on 27.03.2012. In N. Ammad vs the Manager, Emjay High School (1998 (6) SCC 674) the Hon'ble Supreme Court has held that the declaration of minority status of an institution by Government is an open acceptance of legal character which should necessarily have existed antecedent to such declaration, the management is free to appoint a candidate of their choice with required qualifications as per rules as principal of the school. Sri. Sunny.M.P already possessed 12 years of HSST service on 02.07.2012, the date of appointment as principal by the manager.
5. In the above circumstances the Regional Deputy Director, Higher Secondary Education, Kozhikkode is directed to approve the appointment of Sri. Sunny.M.P, HSST (Political Science), Nirmala HSS, WP (C) 6735/2011, 5842/2012 & 5731/2014 16 Erumamunda as the Principal of the school w.e.f the date of appointment by the Manager, ie. w.e.f 02.07.2012 itself, subject to the outcome of WP(C) No. 5842/12 filed by Sri. Saji.P. Thomas, HSST (Chemistry) which is still pending before the Hon'ble High Court of Kerala."
14. Challenging Ext. P20 order passed by the Government, the petitioner has filed W.P.(C) No.5731/2014. On 28.02.2014, this Court granted stay of Ext. P20 order. In this writ petition, the petitioner has also sought for direction to the 2nd respondent to appoint the petitioner as Principal of the school and to declare that in the absence of any other willing senior claimants and being the seniormost qualified hand within the educational agency, the petitioner is entitled to be promoted as Principal in the school and to declare WP (C) 6735/2011, 5842/2012 & 5731/2014 17 that the declaration of minority right obtained by a subsequent manager of the school will not enable the management to appoint a person of its choice to a vacancy of Principal in the school which arose prior to the approval of the change of management by the department. According to the petitioner, he is the person qualified to be appointed to the post of Principal in the school as on the date of occurrence of vacancy and the 3rd respondent was not qualified as on the date of occurrence of vacancy and that as on the date of occurrence of vacancy, the institution was not a minority educational institution and the manager waited for the institution to be declared a minority institution by the NCMEI and for the 3rd respondent to acquire the mandatory qualification to the post and the same has infringed his fundamental rights. It is contended that the WP (C) 6735/2011, 5842/2012 & 5731/2014 18 declaration of minority right obtained by a subsequent manager of the school will not enable the management to appoint a person of its choice to a vacancy of Principal which arose prior to the approval of the change of management by the department.
15.A counter affidavit has been filed on behalf of the Regional Deputy Director in W.P.(C) No.6735/2011 stating that the benefit of surrender of earned leave for the vacation period during which the petitioner has worked as Principal in charge was declined since the petitioner was given charge of Principal only on provisional basis and that the benefit would be granted subject to the outcome of W.P.(C) No.15657/2010.
16. A counter affidavit is filed by the Regional Deputy Director in W.P.(C) No.5842/2012 wherein it is stated that the School was sanctioned under the WP (C) 6735/2011, 5842/2012 & 5731/2014 19 management of Vicar, St.Mary's Catholic Church, Erumamunda as an individual management and the DEO had approved the change of management without change of ownership of the school after 01.04.2010 and the school is thereafter under the management of the corporate agency of Catholic Diocese of Batheri. It is further stated that the petitioner is the seniormost H.S.S.T qualified for appointment to the post of Principal and that the vacancy of Principal arose on 01.04.2010, prior to effecting the change of management and before the new management acquiring minority status of the school.
17. The Manager has filed a counter affidavit in W.P. (C) No.5842/2012 stating that the school belongs to St.Mary's church of Bathery Diocese, a religious denomination of Christian community and the NCMEI WP (C) 6735/2011, 5842/2012 & 5731/2014 20 has certified the school as a minority education institution under Section 2(g) of the NCMEI Act. It is further stated that no teaching staff is having 12 years experience as per clause 6(1)(3) of Chapter XXXII of KER as on 01.04.2010, the date of occurrence of vacancy and the 3rd respondent became qualified for the post of Principal on 24.08.2010.
18.The 3rd respondent has filed a counter affidavit in W.P.(C) No.5731/2014 wherein it is contended that the school is a minority institution entitled to the protection under Article 30 of the Constitution of India and that on being conferred minority status on the school by the NCMEI, the Manager appointed the 3rd respondent as Principal of the school in the vacancy of Sri.C.P.Thomas who retired from service on 31.03.2010, with effect from 02.07.2012. Pursuant to the direction of this Court in WP (C) 6735/2011, 5842/2012 & 5731/2014 21 WP.(C) No.244/2013, the Regional Deputy Director considered the proposal for approval of appointment of the 3rd respondent and rejected the same. Pursuant to the judgment in W.P.(C) No.14766/2013, the Government considered the review petition filed by the Manager and the Government approved the appointment of the 3 rd respondent as Principal of the school with effect from 02.07.2012. It is contended that the minority status of the school was not disputed by the petitioner in any of the writ petitions and the declaration by the NCMEI is conclusive proof of the fact that the school was established and is administered by a minority community.
19. Heard Sri. K.Jayakumar, the learned senior counsel assisted by Sri.K.T.Syam kumar for the petitioner, Sri.T.Krishnanunni, the learned senior counsel WP (C) 6735/2011, 5842/2012 & 5731/2014 22 assisted by Sri.B.S.Suresh(Chirakkara) for respondents 2 and 3 and Sri.C.N.Prabhakaran, the learned Government Pleader for the official respondents.
20.It is contended by Sri.K.Jayakumar, the learned senior counsel that as on the date of occurrence of vacancy in the post of Principal of the school, i.e., on 01.04.2010, the petitioner was qualified for appointment as Principal as per clause 6(1)(3) of Chapter XXXII of KER and the 3rd respondent became qualified only on 24.08.2010. It is further contended that as on the date of occurrence of the vacancy, the school did not have minority status and the minority status was conferred only on 27.03.2012 and the manager waited for getting minority status to the school to appoint the 3rd respondent and that the appointment of the 3rd respondent as Principal is violative of WP (C) 6735/2011, 5842/2012 & 5731/2014 23 fundamental right of the petitioner under Article 14 of the Constitution of India. The learned senior counsel contends that, for claiming minority status, the institution shall be one established and administered by a minority and the conferment of minority status on the school does not satisfy the twin conditions of establishment and administration laid down by the Division Bench in Raju A. and Others v. Manager, Nalloor Narayana L.P.Basic School and Others [2019(5) KHC 1: 2019 (4) KLT 500]. The learned senior counsel also relied on the decision in the Manager, M.M.L.P.School v. Sajitha [2014 (2) KLT 367] wherein the Division Bench of this Court held that, when a declaration is granted by the competent authority under the NCMEI Act, such declaration would be relevant to operate only as regards acts done by the WP (C) 6735/2011, 5842/2012 & 5731/2014 24 management of that institution on and from the date of grant of certificate of minority status by the Commission.
21. Per contra, Sri.T.Krishnanunni, the learned senior counsel for respondents 2 and 3 would contend that, the declaration by the NCMEI is only an acceptance of the legal character of the school as a minority institution and would exist antecedent to such declaration. The learned senior counsel would rely on pargraph '12' of the judgment in Ammad v. Emjay High School (1998 (6) SCC 674: AIR 1999 SC 50:
1998 (2) KLT 828: 1998 KHC 460], which reads as under:
"12. When the Government declared the school as a minority school it has recognised a factual position WP (C) 6735/2011, 5842/2012 & 5731/2014 25 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. 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 2.8.1994."
According to Sri.T.Krishnanunni, the learned senior counsel, it is the right of the minority institution under Article 30(1) of the Constitution of India that has been exercised by the manager while appointing the 3rd respondent as Principal vide Ext.P14. It is also submitted that the appointment was w.e.f. 02.07.2012 and as on that date, the 3rd respondent is fully qualified for appointment as Principal and Ext.P20 order passed by WP (C) 6735/2011, 5842/2012 & 5731/2014 26 the Government does not require any interference by this Court.
22.I have considered the rival submissions. It is pertinent to note that, in none of the three writ petitions, there is challenge to the order dated 27.03.2012 of NCMEI leading to issuance of Ext.P13 certificate declaring the school as a minority educational institution. The prayer of the petitioner is for a declaration that the minority right obtained by a subsequent Manager of a school will not relate back to 01.04.2010, the date of occurrence of vacancy, when the school was under an individual management. In Raju A. (supra), the challenge was with regard to the order of the NCMEI declaring minority status of the school therein. In the light of the decision in Ammad (supra), once the school is conferred the status of a WP (C) 6735/2011, 5842/2012 & 5731/2014 27 minority educational institution, the declaration by the NCMEI is only the recognition of an existing factual position that the school was established and administered by a minority community. Since there is no challenge to the order passed by the NCMEI certifying the school as a minority educational institution, this Court need not consider the twin test laid down by the Division Bench in Raju A. (supra), by examining the question as to whether the school is established and administered by minority. Though the copy of a sale deed dated 21.03.1990 has been produced by the petitioner as Ext. P21 to canvass the factual position that the school was not established by minorities, it only shows that the ownership and management of one Muthukad UP school was transferred by one Jayakumar to a corporate educational agency under Malankara WP (C) 6735/2011, 5842/2012 & 5731/2014 28 Catholic Diocese of Bathery on 21.03.1990 and cannot have any relevance with respect the new school opened in 1982 pursuant to Ext. P2 Government order.
23. As per Section 11(f) of the NCMEI Act, the NCMEI, before declaring the educational institution as a minority institution under Section 2 (g) of the NCMEI Act, has to decide all questions relating to the status of any institution as a minority institution. The Hon'ble Supreme Court in Sisters of St. Joseph of Cluny and another v. State of West Bengal and others [(2018) 6 SCC 772: 2018 KHC 6309: 2018 (2) KLT 521] considered the scope of Section 11 (f) of the NCMEI Act and held that the said provision is a very wide provision which empowers the NCMEI to decide all questions relating to the status of an institution as a minority institution, at all stages, and to declare its WP (C) 6735/2011, 5842/2012 & 5731/2014 29 status as such. The Court, after referring to the decision in Corporate Educational Agency v. James Mathew [(2017) 15 SCC 595: AIR 2017 SC 3762: 2017 (4) KHC 83: 2017 (3) KLT 713], held that Section 11 (f) of NCMEI Act confers jurisdiction on the NCMEI to issue certificate regarding the status of existing minority educational institutions and once the NCMEI issues such certificate, it is the declaration of an existing status. The Hon'ble Supreme Court in James Mathew (supra) observed as under:
"10. Therefore, after the introduction of the National Commission for Minority Educational Institutions Act, 2004, it is also within the jurisdiction and mandate of the National Commission to issue the certificate regarding the status of a minority educational institution. Once the Commission thus issues a certificate, it is a declaration of an existing status."
WP (C) 6735/2011, 5842/2012 & 5731/2014 30 Once the NCMEI has decided all questions relating to the status of the school as a minority institution and declared its status as such, unless there is a specific challenge to the said declaration, this Court cannot go into the question as to whether the school is established and administered by a minority. Further, once the NCMEI declares an educational institution as a minority educational institution under Section 2(g), it is a declaration of an existing status ie., declaration of an existing educational institution to be a minority educational institution. Once such a declaration is made by NCMEI, as held in Ammad (supra), such declaration recognises the factual position that the school is established and administered by minority. What is declared is a status which was already in existence. WP (C) 6735/2011, 5842/2012 & 5731/2014 31 Therefore, even though the school was conferred minority status only on 27.03.2012, the school has to be treated as a minority institution established and administered by a minority or minorities as defined under Section 2 (g) of the NCMEI Act and the manager has the choice to appoint any person as Principal without following the seniority. Article 30(1) of the Constitution of India provides that all minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice. The right of minority educational institutions to choose the person to be appointed as Principal is recognized as a vital facet of the right to administer the educational institution. Therefore, the contention of the petitioner that minority right obtained by a subsequent manager of the school will not enable WP (C) 6735/2011, 5842/2012 & 5731/2014 32 the management to appoint a person of its choice to a vacancy of Principal in the school which arose prior to the approval of the change of management by the department or declaration under Section 2 (g) by the NCMEI cannot be sustained.
24. The judgment in Sajitha (supra) relied on by Sri.Jayakumar, learned senior counsel was set aside by the Hon'ble Supreme Court in appeal (James Mathew (supra)), and it can no longer be contended that the minority status would be available only from the date on which the declaration is granted by the NCMEI. Sri.Jayakumar, learned senior counsel pointed out that Ammad's case was rendered on the basis of the National Commission for Minorities Act, 1992 where provision similar to Section 11 (f) of NCMEI Act, 2004 was absent and therefore cannot be relied on. The WP (C) 6735/2011, 5842/2012 & 5731/2014 33 decisions in James Mathew (supra) and Sisters of St. Joseph of Cluny (supra) were rendered in the context of NCMEI, Act 2004 wherein the same proposition as in Ammad's case has been restated.
25.In view of the decisions in Ammad, James Mathew and Sisters of St. Joseph of Cluny (supra), the manager is entitled for the benefits under Article 30(1) of the Constitution of India. Though the petitioner is senior to the 3rd respondent and became qualified to the post of Principal on 15.07.2006 as per clause 6 (1) (3) of Chapter XXXII of KER read with Note 1 thereto, since the school is a minority educational institution, the manager has availed the rights under Article 30 (1) of the Constitution and appointed the 3rd respondent who became qualified for the post of Principal on 24.08.2010, with effect from 02.07.2012. In the WP (C) 6735/2011, 5842/2012 & 5731/2014 34 circumstances, I find no reason to interfere with Ext.P14 order of appointment of the 3rd respondent as Principal and Ext.P20 order passed by the Government. The challenge against Exts.P14 and P20 fails. W.P. (C) Nos. 5842 of 2012 and 5731 of 2014 are, accordingly, dismissed. Consequently, the 1st respondent has to comply with the directions in Ext. P20.
It is submitted that the petitioner has retired from service on 31.05.2022. The 1st respondent shall regularise the placement of the petitioner as Principal in charge pursuant to Ext. P10 up to 01.07.2012 and shall disburse all benefits due to him in the post of Principal in charge up to 01.07.2012. This shall be done within a period of three months from the date of receipt of a copy of the judgment. If the petitioner had already been granted any benefits for the placement and continuance WP (C) 6735/2011, 5842/2012 & 5731/2014 35 as Principal in charge till his retirement, in the facts and circumstances of the case, it is ordered that the same shall not be recovered from the petitioner. W.P. (C) No.6735 of 2011 is disposed of with the above directions. There will be no order as to costs.
Sd/-
MURALI PURUSHOTHAMAN JUDGE WP (C) 6735/2011, 5842/2012 & 5731/2014 36 APPENDIX OF WP(C) 6735/2011 PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE ORDER DATED 17-04-2010 ISSUED BY THE 3RD RESPONDENT.
EXHIBIT P2 TRUE COPY OF THE ORDER DATED 26-04-2010 ISSUED BY THE 3RD RESPONDENT.
EXHIBIT P3 TRUE COPY OF THE ORDER DATED 04-06-2010 IN WP(C)NO. 15657/2010 EXHIBIT P4 TRUE COPY OF THE ORDER 07-07-2010 ISSUED BY THE MANAGER.
EXHIBIT P5 TRUE COPY OF THE ORDER DATED 21-10-2010 ISSUED BY THE 3RD RESPONDENT.
EXHIBIT P6 TRUE COPY OF THE GO(MS) NO. 75/07/G.EDN.
DATED 02-04-2007 ISSUED BY THE 1ST
RESPONDENT
EXHIBIT P7 TRUE COPY OF THE G.O. (ORD) NO.
3188/09/G.EDN. DATED 30-07-2009 ISSUED BY THE 1ST RESPONDENT.
WP (C) 6735/2011, 5842/2012 & 5731/2014 37 APPENDIX OF WP© 5842/2012 PETITIONER'S EXHIBITS:
P1:TRUE COPY OF ORDER DATED 16.8.1999 ISSUED BY THE DIRECTOR OF HIGHER SECONDARY EDUCATION.
P2:TRUE COPY OF GO(MS)NO.21/82/G.EDN DATED 15.2.1982 ALONG WITH THE LIST OF SCHOOLS OPENED IN MALAPPURAM EDUCATIONAL DISTRICT. P3:TRUE COPY OF LETTER DATED 22.3.2005 SENT BY THE DEO, MALAPPURAM TO THE DPI ALONG WITH THE APPENDED PROFORMA. P4:TRUE COPY OF SENIORITY LIST PUBLISHED IN THE WEB PORTAL OF THE DEPARTMENT OF HIGHER SECONDARY EDUCATION. P5:TRUE COPY OF RELINQUISHMENT LETTER DATED 3.4.2010 SUBMITTED BY SMT.SOLLY AUGUSTINE.
P6:TRUE COPY OF APPLICATION DATED 29.3.2010 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. P7:TRUE COPY OF LETTER DATED 1.4.2010 SENT BY THE SECOND RESPONDENT.
P8:TRUE COPY OF REPRESENTATION DATED 3.4.2010 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. P9:TRUE COPY OF ORDER DATED 17.4.2010 ISSUED BY THE 1ST RESPONDENT.
P10:TRUE COPY OF ORDER DATED 26.4.2010 ISSUED BY THE 1ST RESPONDENT.
P11:TRUE COPY OF INTERIM ORDER DATED 4.6.2010 IN WP© NO.15657/2010.
P12:TRUE COPY OF THE ORDER DATED 7.7.2010 ISSUED BY THE MANAGER. WP (C) 6735/2011, 5842/2012 & 5731/2014 38 P13:TRUE COPY OF THE CERTIFICATE DATED 27.3.2012 ISSUED BY THE NATIONAL COMMISSION FOR MINORITY EDUCATIONAL INSTITUTIONS, NEW DELHI.
P14:TRUE COPY OF THE ORDER DATED 2.7.2012 ISSUED BY THE 2ND RESPONDENT.
P15:TRUE COPY OF THE JUDGMENT IN WP© NO.15657/2010. P16:TRUE COPY OF THE JUDGMENT IN WP© NO.11798/2012. RESPONDENTS' EXHIBITS:
R2(A):TRUE COPY OF THE CERTIFICATE ISSUED BY THE NATIONAL COMMISSION FOR MINORITY EDUCATIONAL INSTITUTIONS DATED 27.3.2012.
R2(B):TRUE COPY OF THE APPOINTMENT ORDER DATED 1.4.2010. R2©:TRUE COPY OF THE PROCEEDINGS OF THE MANAGER TO THE APPROVING AUTHORITY DATED 1.4.2010.
R2(D):TRUE COPY OF THE GO(OP)NO.93/2009/GEN.EDU.DATED 27.3.2009. R2(E):COPY OF THE ORDER OF THE 1ST RESPONDENT TO THE 2ND RESPONDENT DATED 17.4.2010.
R2(F):COPY OF THE STAFF STATEMENT AS ON 1.4.2010. R2(G):COPY OF THE APPROVAL ORDER NO.C6/2836/HSE/99 DATED 13.7.1999.
R2(H):COPY OF THE APPROVAL ORDER NO.C6/2836/HSE/99 DATED 16.8.99.
R2(I):TRUE COPY OF ORDER DATED 26.4.2010 ISSUED BY 1ST RESPONDENT TO THE 2ND RESPONDENT.
R2(J):COPY OF THE INTERIM ORDER ISSUED BY THIS HONOURABLE COURT IN WP© NO.15657/2010 DATED 28.5.2010.
R2(K):COPY OF THE REPRESENTATION SUBMITTED BY THE 2ND RESPONDENT TO THE 1ST RESPONDENT DATED 3.5.2012.
WP (C) 6735/2011, 5842/2012 & 5731/2014 39 APPENDIX OF WP(C) 5731/2014 PETITIONER'S EXHIBITS:
EXT.P1: COPY OF ORDER DATED 16-8-1999 ISSUED BY THE DIRECTOR OF HIGHER SECONDARY EDUCATION.
EXT.P2: COPY OF GO(MS)NO:21/82/G.EDN DATED 15-2-1982 ALONG WITH THE LIST OF SCHOOLS OPENED IN MALAPPURAM EDUCATIONAL DISTRICT. EXT.P3: COPY OF LETTER DATED 22-3-2005 SENT BY THE DEO,MALAPPURAM TO THE DPI ALONG WITH THE APPENDED PROFORMA EXT.P4: COPY OF SENIORITY LIST PUBLISHED IN THE WEB PORTAL OF THE DEPARTMENT OF HIGHER SECONDARY EDUCATION EXT.P5: COPY OF RELINQUISHMENT LETTER DATED 3-4-2010 SUBMITTED BY SMT.SOLLY AUGUSTINE EXT.P6: COPY OF APPLICATION DATED 30-3-2010 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT EXT.P7: COPY OF LETTER DATED 1-4-2010 SENT BY THE 2ND RESPONDENT EXT.P8: COPY OF REPRESENTATION DATED 3-4-2010 SUBMITTED BY THE PETITIONER BEFORE THE IST RESPONDENT EXT.P9: COPY OF ORDER DATED 17-4-2010 ISSUED BY THE 1ST RESPONDENT EXT.P10: COPY OF ORDER DATED 26-4-2010 ISSUED BY THE IST RESPONDENT EXT.P11: COPY OF INTERIM ORDER DATED 4.6.2010 IN WP(C)NO.15657/2010.
EXT.P12: COPY OF THE ORDER DATED 7-7-2010 ISSUED BY THE MANAGER EXT P13: COPY OF THE CERTIFICATE DATED 27-3-2012 ISSUED BY THE NATIONAL COMMISSION FOR MINORITY EDUCATIONAL INSTITUTIONS,NEW DELHI EXT.P14: COPY OF THE ORDER DATED 2-7-2012 ISSUED BY THE 2ND RESPONDENT EXT.P15: COPY OF THE JUDGMENT IN W.P.(C)15657/2010 EXT.P16: COPY OF THE JUDGMENT IN W.P.(C)NO:11798/2012 EXT.P17: COPY OF THE ORDERS DATED 9-5-2013 ISSUED BY THE IST RESPONDENT EXT.P18: COPY OF THE ORDERS DATED 9-5-2013 ISSUED BY THE IST RESPONDENT EXT.P19: COPY OF THE ARGUMENT NOTES SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT EXT.P20: COPY OF THE ORDER DATED 14-2-2014 ISSUED BY THE 4TH RESPONDENT WP (C) 6735/2011, 5842/2012 & 5731/2014 40 EXT.P21: COPY OF SALE DEED NO.833/1990 OF NILAMBUR SUB REGISTRAR'S OFFICE.
EXT.22:TRUE COPY OFO THE OBJECTION DATED 24.7.2012 FILED BY THE PETTIONER BEFORE THE 1ST RESPONDENT.
RESPONDENTS' EXHIBITS:
R3(A):THE COPY OF THE VERIFICATION REPORT OF THE HIGHER SECONDARY ADMISSION-2010 DATED 8.4.2010. R3(B):THE COPY OF THE CERTIFICATE ISSUED BY THE NATIONAL COMMISSION FOR MINORITY EDUCATIONAL INSTITUTIONS DATED 27.3.2012.
R3©:THE COPY OF THE STAFF STATEMENT AS ON 1.1.2010. R3(D):THE COPY OF THE APPOINTMENT ORDER ISSUED BY THE PETITIONER DATED 1.4.2010.
R3(E):THE COPY OF THE ORDER DATED 26.4.2010 ISSUED BY THE RDD TO THE 2ND RESPONDENT.
R3(F):THE COPY OF THE APPOINTMENT ORDER DATED 2.7.12. R3(G):THE COPY OF THE JUDGMENT OF WP(C)NO.244/2013 DATED 13.2.13.
R3(H):THE COPY OF THE ORDER NO.A5/7618/12/HSE DATED 9.5.2013. R3(I):THE COPY OF THE ORDER NO.A5/188/13/HSE DATED 9.5.13. R3(J):THE COPY OF THE JUDGMENT IN WP(C)NO.14766/13 DTD 18.07.2013.
R3(K):THE COPY OF THE ORDER OF THE GOVERNMENT DATED 14.2.2014. R3(L):COPY OF THE REPRESENTATION SUBMITTED BY THE 3RD RESPONDENT TO THE FIRST RESPONDENT ALONG WITH EXT.R3(K) DATED 21.2.14. spc/