Kerala High Court
K.K.Lalitha vs The State Of Kerala on 20 September, 2007
Author: C.N.Ramachandran Nair
Bench: C.N.Ramachandran Nair
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.N.RAMACHANDRAN NAIR
&
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
WEDNESDAY, THE 11TH DAY OF APRIL 2012/22ND CHAITHRA 1934
WA.No. 2892 of 2007 (E)
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AGAINST THE JUDGMENT IN WPC.11114/2004 DATED 20-09-2007
APPELLANT /PETITIONER:
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K.K.LALITHA, W/O.M.M.HARI, AGED 56
YEARS, SANSKRIT TEACHER (RETD), ST.MARY'S U.P.SCHOOL
NJARAKKAL, ERNAKULAM DISTRICT.
BY ADVS.SRI.C.K.PAVITHRAN
SRI.M.X.XAVIER
SRI.K.BAIJU
RESPONDENT(S)/RESPONDENTS:
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1. THE STATE OF KERALA, REPRESENTED BY
THE SECRETARY TO GOVERNMENT
GENERAL EDUCATION DEPARTMENT, SECRETARIAT
TRIVANDRUM.
2. THE DIRECTOR OF PUBLIC INSTRUCTION
JAGATHY, TRIVANDRUM - 14.
3. THE DISTRICT EDUCATIONAL OFFICER,
ERNAKULAM DISTRICT.
4. THE ASSISTANT EDUCATIONAL OFFICER,
VYPEEN, ERNAKULAM DISTRICT.
5. THE MANAGER,
ST.MARY'S U.P.SCHOOL, NJARAKKAL, ERNAKULAM DISTRICT.
**6. SMT.K.A.MARY,
(HEADMISTRESS (NOT APPROVED), ST.MARY'S U.P.SCHOOL
NJARAKKAL, ERNAKULAM DISTRICT.
(** CORRECTED AS SMT. K.A.MARY, W/O.SEBASTIAN, KUZHUKKARAN HOUSE, P.O,
MANNAM PIN 683 520 AS PER THE ORDER IN I.A. NO.1208/2009 DT.5.9.2011)
BY ADV. SRI.V.M.KURIAN
BY ADV. SRI.MATHEW B. KURIAN
BY ADV. SRI.K.T.THOMAS
BY
BY GOVERNMENT PLEADER SRI. GEORGE MECHERIL
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 15.02.2012, THE COURT
ON 11.04.2012 DELIVERED THE FOLLOWING:
WA.No. 2892 of 2007 (E)
APPENDIX
APPELLANT'S ANNEXURES:
ANNEXURE I : TRUE COPY OF THE SENIORITY LIST OF THE SCHOOL(2001-02)
ANNEXURE I (a) : TRUE COPY OF THE SENIORITY LIST OF THE SCHOOL(2002-03)
ANNEXURE I (b) : TRUE COPY OF THE SENIORITY LIST OF THE SCHOOL(2003-04)
ANNEXURE I (c) : TRUE COPY OF THE SENIORITY LIST OF THE SCHOOL(2004-05)
ANNEXURE I (d) : TRUE COPY OF THE SENIORITY LIST OF THE SCHOOL(2005-06)
ANNEXURE II : TRUE COPY OF THE G.O(Ms)No.43/78/G.EDN. OF THE GOVT. DT.
13.4.1978
ANNEXURE III : TRUE COPY OF THE G.0(Ms) No.371/2000/G.Edn OF THE GOVT.
DT.13.11.2000
ANNEXURE IV : TRUE COPY OF THE G.O.(Ms)NO.178/2002/G.Edn. OF THE GOVT.
DT. 28.6.2002
ANNEXURE V : TRUE COPY OF THE APPENDIXOF THE STAFF FIXATION ORDER
1982-83 OF THE SCHOOL
ANNEXURE V(a) : TRUE COPY OF THE ORDER NO. D.DIS. 4317/87/B OF THE
ASST.EDL. OFFICER DT. 15.7.1987
ANNEXURE VI : TRUE COPY OF THE ORDER NO. B2/18481/06/K.DIS. OF THE
DEPUTY DIRECTOR OF EDN. DT. 31.5.2007
ANNEXURE VII : TRUE COPY OF THE LETTER OF THE ASST.EDL. OFFICER
DT.6.11.2007
ANNEXURE VIII : TRUE COPY OF THE DRAFT STATEMENT OF FACTS
ANNEXURE IX : TRUE COPY OF THE REPRESENTATION SUBMITTED BEFORE THE
GOVERNMENT
ANNEXURE X : TRUE COPY OF THE LETTER NO. B 2104/08 OF THE ASST.EDL.
OFFICER
ANNEXURE XI : TRUE COPY OF THE LETTER OF THE ASST.EDL. OFFICER
ANNEXURE XII : TRUE COPY OF THE LETTER NO. B2104/08 OF THE ASST.EDL.
OFFICER DATED 15.7.2008
ANNEXURE XIII : TRUE COPY OF THE LETTER NO. B2104/08 OF THE ASST.EDL.
OFFICER DATED 20.10.2008
ANNEXURE XIV : TRUE COPY OF THE LETTER NO. B2/15718/08 OF THE DY.
DIRECTOR OF EDUCATION DT. 30.8.2008
ANNEXURE XV : TRUE COPY OF THE LETTER NO. B21104/2008 OF THE ASST.EDL.
OFFICER DT. 13.8.2008
ANNEXURE XVI : TRUE COPY OF THE DECLARATION (BOND) OF SMT. K.A. MARY
ANNEXURE XVII : TRUE COPY OF THE LETTER OF THE ASST. EDL. OFFICER
29.11.2007
ANNEXURE XVIII : TRUE COPY OF THE LETTER NO. O&M(3)/1707/09/DPI/K.DIS. OF
THE 2ND RESPONDENT ALONG WITH ENQUIRY REPORT
RESPONDENTS' ANNEXURES: NIL
//TRUE COPY//
P.A. TO JUDGE
jma
C.N. RAMACHANDRAN NAIR &
K. VINOD CHANDRAN, JJ
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W.A Nos. 2892 & 2926 of 2007
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Dated this the 11th day of April, 2012
J U D G M E N T
K. Vinod Chandran, J The appellant in the above writ appeals was the petitioner in WP(C) No.11114 of 2004 and the 3rd respondent in WPC No.26374 of 2004. The appellant filed writ petition seeking implementation of the orders issued by the statutory authorities to appoint her as Headmistress of St. Mary's UP School, Njarakkal. The school represented by its Manager filed other writ petition challenging the orders of the statutory authorities. The bone of contention is the appointment to the post of Headmistress in St. Mary's UP School, Njarakkal which vacancy arose on 1.6.2001. Suffice it to say that there had been litigations with respect to the subject matter of the appointment earlier, none of which resulted in any finding on merits. In compliance of the various orders directing consideration of the conflicting claims, the Assistant Educational Officer, Vypin passed order dated 22.11.2001 rejecting the approval to the appointment of Smt. K.A Mary, Writ Appeal Nos.2892 & 2926/2007 : 2 : Upper Primary School Assistant as Headmistress of the school with effect from 1.6.2001. The said order is produced as Ext.P1 in the writ petition filed by the appellant herein; wherein Smt.K.A Mary, whose approval was rejected, was impleaded as the 6th respondent. Ext.P1 order was challenged unsuccessfully by the management in appeal before the District Educational Officer, Ernakulam and Additional Director of Public Instructions (Academic, Thiruvananthapuram), and the respective orders are produced as Exts.P2 and P3 by the appellant in the writ appeal. The writ petition was filed by the appellant after issuance of Ext.P3 order seeking implementation of Ext.P3. Subsequently, the revision filed by the management before the Government was also dismissed by Ext.P4 dated 2.8.2004, which was produced subsequently in the writ petition. The order in revision passed by the Government was challenged by the School by a separate writ petition in which the orders in the above mentioned proceedings were produced respectively as Exts.P3, P5, P7 and P9. This Court had also granted a stay in the writ petition filed by the management.
Writ Appeal Nos.2892 & 2926/2007 : 3 :
2. Before the learned Single Judge, the appellant urged that she was appointed as a part time Sanskrit (L.G) Teacher on 21.7.1975 and was later made full time on 15.7.1979. The appellant having obtained her graduate qualification in 1981, post graduate qualification in 1984 and B.Ed in 1987 staked her claim to the post of Headmistress in the school when a vacancy arose on 1.6.2001. The claim was made on the strength of Rule 45 of Chapter XIV A of the Kerala Education Rules( for short 'KER'). The appellant's claim was that she having five years teaching experience after acquisition of B.Ed Degree and being a graduate teacher; having service equal to half of the period of the services of the senior most under graduate teacher was to be appointed as Headmistress. The management, however, contended that the 6th respondent was appointed as the Headmistress by a valid exercise of the right of the management under Article 30(1) of the Constitution of India, since the school was recognized as a minority institution. It was also contended that the appellant being a protected hand in the school from 1998-99, she could not claim appointment as Headmistress. The latter contention Writ Appeal Nos.2892 & 2926/2007 : 4 : of the management was sought to be repelled by the appellant on the ground that by virtue of G.O(MS) No.62/73/G.Edn. Dated 2.5.1973 she was entitled to be treated as a full time teacher for consideration of appointment as Headmistress.
3. The learned Single Judge on the question of minority status under Article 30(1) of the Constitution of India found that though the statutory authorities had negated such claim made by the management, the Government in its revisional order has not approved such finding but had approved the claim of the appellant under Rule 45 of Chapter XIV of the KER on the ground that the appellant had a preferential claim. The learned Single Judge held that it is the settled proposition of law that the minority status does not depend upon any declaration and any declaration so made can only be deemed to be a recognition of an existing fact. Relying on Ext.P2 order dated 17.4.1984 approving the appointment of Headmistress exercising the minority right flowing from Article 30(1) of Constitution of India; the learned Single Judge held that the institution in question is one which has been recognized by the Government as contemplated in Article 30 Writ Appeal Nos.2892 & 2926/2007 : 5 : (1) of the Constitution of India; for all purposes. On the question of petitioner's eligibility to be considered for the post of Headmistress of the school, the learned Single Judge held the preferential claim of the appellant to be unsustainable. The learned Single Judge found that the continuance of the appellant as a full time teacher on the strength of Clause 6 of G.O(MS) 62/73 having not figured against any of the posts sanctioned as per staff fixation order; she could not be treated as the member or staff of the school to be within the zone of consideration for appointment as Headmistress. It was on the strength of such finding that preferential claim by the appellant as a graduate teacher was held to be unsustainable.
4. Before we deal with the issue it is to be noticed that the 6th respondent who was appointed to the post of Headmistress had retired while the appellant was in service. The management had then appointed another teacher to the post of Headmaster/headmistress who, also retired before the appellant superannuated. One another teacher was then appointed, who also retired subsequently. The said appointments were made in exercise of the minority rights Writ Appeal Nos.2892 & 2926/2007 : 6 : claimed by the management. The above factual situation is admitted by the appellant; though the minority status is still disputed. However, the appellant has not sought to implead the persons who were appointed as Headmistress/Headmaster after the retirement of the 6th respondent, either in the writ petition or in the writ appeals. We are of the opinion that the said persons who were subsequently appointed to the post claimed by the appellant in the management school are necessary parties while considering the claim of the appellant. The appellant's claim if eventually successful would necessarily prejudice the said persons and this Courts hands are tied in so much as no such orders can be passed without the said persons in the party array and without hearing them.
5. Be that as it may we proceed to first consider the claim of the appellant. The proposition that the minority status does not depend upon any declaration and the effect of any such declaration made only recognizes the existing fact; which found favour with the learned Single Judge is unassailable The right to appoint a Headmaster exercising minority rights flowing from Article 30(1) has already been Writ Appeal Nos.2892 & 2926/2007 : 7 : exercised by the management school by Ext.P2 produced in their writ petition. There being no dispute to the said fact, the next question to be addressed is as to the preferential claim made under Rule 45. Before addressing the effect of G.O(MS) 62/73/G.Edn. dated 2.5.1973 we will first address the question of whether the right to appoint a Headmaster/Headmistress granted to a minority institution would override the preferential claim, if any, of the appellant. The appellant would urge before us that the Division Bench of this Court in Prasad v. Philipose Mar Dilshus U.P School(2005(3)KLT
487) has held the word "may" used in Rule 45 to mean "shall" and if there is a graduate teacher with 5 years experience and more than 50% service of the senior most non graduate teacher, then the said teacher alone should be appointed as Headmistress in preference of any teacher with SSLC/TTC.
6. In the instant case, there is no doubt that the 6th respondent, who was appointed to the post of Headmistress though senior in service to the appellant was a non graduate teacher. The issue as to whether a minority educational Writ Appeal Nos.2892 & 2926/2007 : 8 : institution would have freedom to appoint Headmaster/Headmistress de-hors the provisions of the KER by drawing separate sustenances from the power conferred under Article 30(1) of the Constitution of India had been a contentious issue before this court and the Hon'ble Supreme Court. We deem it appropriate to refer to a Full Bench decision of this Court in Kurian Lizy v. State of Kerala (2006(4)KLT 264). The apparent conflict between two Division Bench decisions of this Court culminated in the matter being listed for decision before a Full Bench. While a Division Bench of this Court in Varkey v State of Kerala 2005(2)KLT 468 held that unbridled power cannot be given to every minority institution in the matter of selection of Headmaster overlooking the claims of the other eligible teachers, another Division Bench in Annie Francis v. D.E.O., Aluva(2005(3)KLT 238) held that management of a minority educational institution has got every right to appoint a qualified teacher of its choice to head the institution without strictly looking into seniority and other aspects. The issue arose in the context of deviation from the statutory right in Writ Appeal Nos.2892 & 2926/2007 : 9 : favour of seniority in Rule 44(1)of Chapter XIV A of the KER, the preference to seniority given under Rule 44 was sought to be overlooked. The decision in Varkey's case(Supra) was disapproved by the Full Bench holding that the judgment of the Hon'ble Supreme Court in T.M.A Pai Foundation's case cannot be read or interpreted to mean that thelaw earlier held by this Court and the Supreme Court that Headmaster of the institution can be appointed by a minority institution subject only to the incumbent having the requisite qualification has been impliedly overruled. The Full Bench categorically held that the management of the minority institution would have the freedom to appoint Headmaster/Principal of their choice and Rule 44(1) of KER would have no control over the powers conferred under Article 30(1) of the Constitution. The decision in Varkey's case(Supra) was on the premise that the decision of the constitution bench in T.M.A Pai Foundation & Others v. State of Karnataka(AIR 2003 SC
355) to the effect that the right under Article 30(1) was not so absolute as to prevent the Government from making any regulation whatsoever. The Division Bench also noticed a Full Writ Appeal Nos.2892 & 2926/2007 : 10 : Bench decision of this court in Aldo Maria Patroni v. E.C.Kesavan(1964 KLT 791) which held that the prescription of appointment of Headmaster on the basis of seniority by Rule 44(1) did not disable the management to make a departure therefrom considering the pivotal role played by the Headmaster; in the case of a minority institution; but the same was not followed. It is pertinent that the latest Supreme Court decision in Malankara Syrian Catholic College v. Jose 2007(1)KLT 22(SC) quoted with approval, the Full Bench decision of this Court in A.M Patroni's case(Supra) and held so:-
"It is thus clear that the freedom to choose the person to be appointed as Principal has always been recognized as a vital facet of the right to administer the educational institution. This has not been, in any way diluted or altered by TMA Pai. Having regards to the key role played by the Principal in the management and administration of the educational institution, there can be no doubt that the Writ Appeal Nos.2892 & 2926/2007 : 11 : right to choose the Principal is an important part of the right of administration and even if the institution is aided, there can be no interference with the said right. The fact that the post of the Principal/Headmaster is also covered by State aid, will make no difference."
7. In our opinion what applied to Rule 44(1) applies equally to Rule 45 of Chapter XIV A of KER. In such circumstances, we are of the opinion that the judgment of the learned Single Judge requires no interference especially in the context of the affected parties having not been impleaded.
Writ Appeal hence fails and is accordingly dismissed, however with no costs.
Sd/-
C.N. RAMACHANDRAN NAIR (Judge) Sd/-
K. VINOD CHANDRAN
(Judge)
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P.A to Judge