Kerala High Court
Jayasree V.V vs State Of Kerala on 8 September, 1983
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
MONDAY, THE 4TH DAY OF AUGUST 2014/13TH SRAVANA, 1936
WP(C).No. 2525 of 2014 (M)
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PETITIONER(S)/PETITIONER:-:
----------------------------------------------------
JAYASREE V.V.,
H.S.A.(PHYSICAL SCIENCE), CHAKKALAKAL HIGH SCHOOL
P.O.MADAVOOR, KOZHIKODE.
BY ADV. SRI.P.C.SASIDHARAN
RESPONDENT(S)/RESPONDENTS:-:
--------------------------------------------------------
1. STATE OF KERALA,
REPRESENTED BY ITS SECRETARY TO GOVERNMENT
GENERAL EDUCATION DEPARTMENT, SECRETARIAT
THIRUVANANTHAPURAM- 695 001
2. THE DISTRICT EDUCATIONAL OFFICER,
THAMARASSERY, KOZHIKODE- 673 573
3. THE MANAGER,
CHAKKALAKAL HIGH SCHOOL, P.O.MADAVOOR,\
KOZHIKODE-573 583
4. N.P.ABDUL GAFOOR,
H.S.A.(ARABIC), CHAKKALAKAL HIGH SCHOOL, P.O.MADAVOOR
KOZHIKODE- 673 583
R4 BY ADV. SRI.V.A.MUHAMMED
R4 BY ADV. SRI.M.SAJJAD
R1-R2 BY ADV. GOVERNMENT PLEADER, SRI. A.J.JOSE AEDAIODI
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-08-2014,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 2525 of 2014 (M)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1. TRUE COPY OF THE ORDER APPOINTING THE PETITIONER AS H.S.A
(PHYCICAL SCIENCE).
EXHIBIT P2. TRUE COPY OF THE ORDER APPOINTING THE 4TH RESPONDENT AS
PART TIME H.S.A (ARABIC).
EXHIBIT P3. TRUE COPY OF THE PROCEEDINGS ISSUED IN THIS REGARD DATED
08.09.1983.
EXHIBIT P4. TRUE COPY OF THE SENIORITY LIST AS ON 01.10.1995.
EXHIBIT P5. TRUE COPY OF THE SENIORITY LIST AS ON 01.01.2013.
EXHIBIT P6. TRUE COPY OF THE COMMUNICATION ISSUED BY THE GOVERNMENT
DATED 25.07.2013.
EXHIBIT P7. TRUE COPY OF THE 2ND RESPONDENT HAS ISSUED AN ORDER ON
22.11.2013 APPROVING THE APPOINTMENT OF THE 4TH RESPONDENT
AS H.S.A (ARABIC) WITH EFFECT FROM 15.06.1983.
EXHIBIT P8. TRUE COPY OF THE APPOINTMENT ORDER ISSUED BY THE MANAGER
OF THE SCHOOL.
RESPONDENT(S)' EXHIBITS
---------------------------------------
EXHIBIT R4(a) TRUE COPY OF THE CERTIFICATE ISSUED BY THE NATIONAL
COMMISSION FOR MINORITY EDUCATIONAL INSTITUTIONS DATED
05.01.2012.
// True copy //
PA to Judge
das
ALEXANDER THOMAS, J.
==========================
W.P.(C). No. 2525 of 2014
=================================
Dated this the 4th day of August, 2014
JUDGMENT
The petitioner was appointed as High School Assistant (Physical Science) in the aided school under the managership of the third respondent and her appointment to that post was also approved with effect from 16.06.1983 as per Ext.P1. The fourth respondent was initially appointed as High School Assistant (Arabic) in a part-time post as per Ext.P2 order dated 19.07.1982 and the second respondent, the District Educational Officer had approved his appointment in terms of Ext.P2 with effect from 15.07.1983. The said post of part-time HSA (Arabic) was converted as a Full Time HSA (Arabic) later and the 4th respondent was appointed as HSA (Arabic) in that Full Time post with effect from 15.07.1983 and approval was also granted for such appointment with effect from 15.07.1983 as can be seen from Ext.P3 dated 08.09.1983.
2. In the seniority list of the teachers of the school as on 01.10.1995, the petitioner was assigned serial No.7, -2- W.P.(C). No. 2525 of 2014 whereas the 4th respondent was assigned seniority serial No.10 therein. In the latest seniority list published as on 01.10.2013 as per Ext.P5, the seniority position assigned to the petitioner is at serial No.3 thereof and that of the 4th respondent is at serial No.5 thereof. It is common ground that the petitioner was treated as senior to the 4th respondent all through out for the last three decades. The vacancy in the post of Head Master/Head Mistress of the school was to arise as on 31.03.2014, due to the retirement of the then incumbent in that post on attaining the age of superannuation. It appears that the 4th respondent had submitted a representation referred to as first paper in Ext.P6, addressed to the Minister for Education, and the Government as per Ext.P6 dated 25.07.2013 directed that as the 4th respondent was appointed as HSA (Arabic) in the Full Time post with effect from 15.06.1983, he should be given seniority in that post with effect from 15.06.1983, if he is otherwise eligible. Based on Ext.P6, the second respondent-District Educational Officer issued Ext.P7 dated 22.11.2013 ordering to grant approval to the appointment of the 4th respondent as HSA (Arabic) with -3- W.P.(C). No. 2525 of 2014 retrospective effect from 15.06.1983, in the above said Full Time post. This is justified by reference to the provisions in Rule 12B of Chapter XXIII of the Kerala Education Rules (KER). It is these orders as per Exts.P6 and P7, that are mainly under challenge in this writ proceedings.
3. The petitioner primarily contends that the Government has no power or authority to issue an order in the nature of Ext.P6 to disturb the seniority settled more than three decades ago at this distance of time. It is also contended that the Manager has not issued any order actually appointing the 4th respondent with effect from 15.06.1983 for the above said Full Time post of HSA (Arabic) and that the Government and the other official respondents cannot directly order that the 4th respondent should be treated to have been appointed retrospectively with effect from 15.06.1983. At any rate, the impugned directions issued to disturb the well settled seniority at this long distance of time, is certainly amounting to improper exercise of power, it is contended. -4- W.P.(C). No. 2525 of 2014
4. It is in the background of these facts and circumstances that the petitioner has chosen to file this Writ Petition (Civil) with the following prayers:
i) Issue a writ of certiorari or any other writ, order or direction to quash Exhibits-P6 and P7 ;
ii) Declare that the action of the respondents in changing the date of approval of the 4th respondent to an anterior after the inter-se seniority of the petitioner with 4th respondent has been settled long back is highly unjust and it is an action without any power, authority or jurisdiction ;
iii) Declare that the 4th respondent cannot claim any seniority in the cadre of H.S.A based on Exhibit-P6 ;
iv) Issue a writ of mandamus or any other writ, order or direction commanding and compelling the respondents not to revise the seniority list based on Exhibits-P6 and P7 ;
v) Issue an order to stay the operation and
implementation of Exhibits-P6 and P7 ;
vi) Further declare that petitioner is entitled to enjoy the
benefit of the seniority position obtained by her long back and such an accrued cannot be taken away illegally ;
5. The second respondent DEO has filed a statement dated 06.03.2014 in the Writ Petition. It is admitted in paragraph 4 thereof that the petitioner whose appointment as HSA (Physical Science) was approved with effect from 16.06.1983 was senior to the 4th respondent, whose appointment as HSA (Arabic) in the Full Time post was approved only with effect from 15.07.1983. The seniority -5- W.P.(C). No. 2525 of 2014 positions reflected in Ext.P5 is also admitted. It is stated in paragraph 5 thereof that the 4th respondent had commenced his continuous service as Part Time HSA (Arabic) in the School with effect from 15.07.1982 and during the year 1982-83, the school had started standard VIII and there was eight periods to teach the subject Arabic and during the next academic year 1983-84, standard IX was also started and the periods for Arabic got increased to 20. It is thus stated that the 4th respondent who was the only Arabic teacher in the school during the said time, was actually attending 20 periods of work during the re-opening of the school from 15.06.1983 onwards, in the academic year of 1983-84. It is further stated that as per Rule 12B Chapter XXIII KER, the order of staff fixation shall take effect on 15th of July of the year concerned and that if any additional divisions are sanctioned against which appointments are made in anticipation of sanction of posts, such posts shall be deemed to have been created from the date of appointment. Accordingly it is stated that since seven additional divisions and one Full Time HSA (Arabic) posts was newly sanctioned to the School with effect from -6- W.P.(C). No. 2525 of 2014 16.06.1983, the 4th respondent is eligible to get the impugned benefit. It is accordingly that the Government issued Ext.P6 communication directing the department to grant the benefit of seniority with effect from 15.06.1983 and that the petitioner, who has continuous service only with effect from 16.06.1983, has to be accordingly treated as junior to the 4th respondent.
6. It is further significantly stated in paragraph 11 in the Statement of the second respondent DEO that the third respondent Aided School is a religious minority educational institution and that the manager of the third respondent school, has the fundamental right under Article 30 of the Constitution of India to appoint a qualified incumbent of his choice overlooking the seniority of teachers, while making appointment to the post of Head Master. It is stated that the petitioner or the 4th respondent or any other senior teacher may be appointed as Head Master as and when the next vacancy arises and that seniority is not a criteria for promotion to the post of Head Master in the minority -7- W.P.(C). No. 2525 of 2014 management school like the third respondent. It is accordingly prayed that the petition is devoid of any merit and is liable to to be dismissed.
7. The contesting respondent No.4 has filed a counter affidavit dated 16.03.2014. It is contended that since the 4th respondent was discharging duties as HSA (Arabic) in the school from the commencement of the academic year 1983-84, viz, 15.06.1983 onwards, and since the post became Full Time in the staff fixation order with effect from 15.07.1983, such Full Time post of HSA (Arabic) shall be deemed to have been sanctioned with effect from 15.06.1983, by the operation of Rule 12B, Chapter XXIII of KER. But that approval of the appointment as Full Time teacher was granted to the 4th respondent as per Ext.P3 only with effect from 15.07.1983, on the premise that the staff fixation order had taken effect only on 15.07.1983, but by overlooking the provision in Rule 12B of Chapter XXIII of KER that if any additional post are sanctioned against which appointments are made in anticipation of sanction of such posts, according to the Rules, such posts shall -8- W.P.(C). No. 2525 of 2014 be deemed to have been created from the date of such appointments etc. Therefore the Government as per the impugned Ext.P6 dated 27.09.2013, has only corrected the illegality committed by the second respondent DEO in Ext.P3 dated 08.09.1983.
8. It is further significantly stated in paragraph 3 of the counter affidavit of the 4th respondent that the apprehension of the writ petitioner that on regularisation of the 4th respondent as Full Time HSA (Arabic) with effect from 15.06.1983, the chance of the writ petitioner for promotion as Head Master/Head Mistress will be effected, is unfounded. This contention of the 4th respondent is expatiated by stating that the third respondent school is a minority educational institution and therefore, the management of the third respondent school has the right to appoint any qualified teacher of the choice of the management as the Head Master of the school by over looking seniority, in view of their fundamental rights under Article 30(1) of the Constitution of India. To buttress this contention, the 4th respondent has also -9- W.P.(C). No. 2525 of 2014 produced Ext.R4(a) certificate dated 05.01.2012 issued by the National Commission for Minority Education Institutions whereby it is certified that the third respondent school is a Minority Educational Institution covered under Sec.2(g) of the National Commission for Minority Educational Institutions Act, 2014. Accordingly, it is prayed by the 4th respondent that the writ petition lacks merit and is liable to be dismissed.
9. The petitioner has filed an additional affidavit dated 02.07.2014, producing as Ext.P8, the true copy of the appointment order issued by the third respondent Manager, whereby the writ petitioner has been appointed as the Head Mistress of the third respondent school as per the said appointment order dated 01.04.2014.
10. Heard Sri.P.C.Sasidharan, the learned counsel for the writ petitioner, the learned Government Pleader appearing for the official respondents 1 and 2 and Sr.V.A.Mohammed, the learned counsel for the contesting respondent No.4. -10- W.P.(C). No. 2525 of 2014
11. The main question that arises for consideration is as to whether the first respondent Government and the second respondent DEO has the power and competence to disturb the inter se seniority between the petitioner and the 4th respondent settled more than three decades ago as evidenced by Exts.P4, P5 etc, at this point of time as per the impugned Ext.P6 dated 25.07.2013 and Ext.P7 dated 22.11.2013. Rule 34 of Chapter XIV A KER mandates that every management shall subject to the provisions contained in Rule 37, prepare and maintain a staff list in the statutory format prescribed, a staff list or the seniority list of teachers in the manner stipulated therein. Rule 37(1) of Chapter XIV A KER mandates that the seniority of the teacher in any grade in any unit shall be decided with reference to the length of continuous service in that grade in that unit provided he is duly qualified for the post. Rule 37(2) thereof further stipulates that, in the case of teachers in the same grade in the same unit whose date of commencement of continuous service is the same, seniority shall be decided with reference to the date of first appointment and if the date of first appointment is also the -11- W.P.(C). No. 2525 of 2014 same, seniority shall be decided with reference to age, the older being the senior etc. Indisputably, it is common ground for all the parties that Exts.P4 and P5 are the seniority lists that have been prepared in strict compliance of the statutory provisions of the Kerala Education Rules. This position is clearly admitted expressly in the statement filed on behalf of the second respondent DEO. This position is not in any way disputed and is impliedly admitted in the pleadings of the 4th respondent as well. The only ground taken by the official respondents and the contesting respondent No.4 to justify the impugned orders is that the provisions in Rule 12B of Chapter 23 KER was over looked while issuing Ext.P3 dated 08.09.1983, whereby the appointment of the 4th respondent in Full Time post of HSA (Arabic) was approved only with effect from 15.07.1983. This was sought to be rectified only on the basis of the representation of the 4th respondent referred to as the first paper in Ext.P6 dated 25.07.2013, addressed to the Minister for Education. This has resulted in the impugned directions in Ext.P6 dated 25.07.2013 and Ext.P7 dated 22.11.2013, whereby the inter se seniority settled in favour of -12- W.P.(C). No. 2525 of 2014 the writ petitioner more than three decades back, has been unsettled. The question is as to whether it is lawful and proper for the official respondents to disturb this well settled seniority after three decades of time. The question is no longer a res integra, and the matter is fully covered in favour of the writ petitioner, by the enunciation of the well known "sit back theory", in a series of decisions of the Apex Court and of various High Courts. In the case, Rabindra Nath Bose and others v. Union of India and others (AIR 1970 SC 470 at 478) the Apex Court has succinctly held as follows:
"Each person ought to be entitled to sit back and consider that his appointment and promotion effected a long time ago would not be set aside after a lapse of a number of years."
12. The Full Bench of this court in the case Sreedharan Pillai v. State of Kerala reported in 1973 KLT 151, para 47, page 177 held as follows :
"47. The petitioners were duly qualified for inclusion in the 1962 list and they had been granted promotions to the upper division in the list for 1962. By virtue of that promotion they had acquired a right to have their ranks and seniority in that category reckoned on the basis of the principles laid down in Rule 27(a) of the Kerala State and Subordinate Services -13- W.P.(C). No. 2525 of 2014 Rules. The position of the officers in relation to the promotions of 1961 and 1962 had become settled at least by the orders Exts.P1 and P2 passed in February, 1965. No statutory appeals or revision petitions are shown to have been filed against those orders and hence it must be taken that those lists had become final. It is not in the interests of the maintenance of the morale, efficiency and contentment in the service to disrupt after such long lapse of time matters pertaining to vital service conditions like seniority and rank which have already become settled. We may usefully refer in this context to the observations of the Supreme Court in Rabindra Nath Bose and others v. Union of India and others (AIR 1970 SC 470 at 478):
"Each person ought to be entitled to sit back and consider that his appointment and promotion effected a long time ago would not be set aside after a lapse of a number of years."
It will be neither just or equitable to deprive persons who have been promoted many years ago, of the rights that have accrued to them regarding their rank and seniority by purporting to conduct a review of promotions after the lapse of many years."
13. The Full Bench decision of this court in the case Sajeev N.J. v. Union of India and others reported in 2009 (4) ILR (Ker.) 469, paragraph 19 thereof held that the question revolves around the principle that the incumbents in the service are entitled, as of right, to assume the prevalence of a state of affairs relating to their position in service, including inter se seniority amongst persons included in a cadre, and sit back with the belief that such state of affairs -14- W.P.(C). No. 2525 of 2014 have assumed finality and should accordingly govern the parties.
14. In Paragraphs 21 to 23 it has been held by the Full Bench in Sajeev's case (Supra) that:
21. We consider it advantageous to extract the dictum laid down by the Supreme Court in Rabindra Nath v. Union of India. We note that the principles laid down therein have been almost unwaveringly quoted by the Supreme Court in the subsequent judgments. It was held as follows in paragraphs 34 and 35 of the judgment in Rabindra Nath v. Union of India (AIR 1970 SC 470).
"34. The learned counsel for the petitioners strongly urges that the decision of this court in Trilokchand and Motichand's case, [(1969} 1 S.C.C.110] (supra) needs review. But after carefully considering the matter, we are of the view that no relief should be given to petitioners who without any reasonable explanation, approach this Court under Article of the Constitution after inordinate delay. The highest Court in this land has been givenn Original Jurisdiction to entertain petitions under Article 32 of the Constitution. It could not have been the intention that this Court would go into stale demands after a lapse of years. It is said that Article 32 is itself a guaranteed right. So it is, but it does not follow from this that it was the intention of the Constitution makers that this Court should discard all principles and grant relief in petitions filed after inordinate delay.
35. We are not anxious to throw out petitions on this ground, but we must administer justice in accordance with law and principles of equity, justice and good conscience. It would be unjust to deprive the respondents of the rights which have accrued to them. Each person ought to be entitled -15- W.P.(C). No. 2525 of 2014 to sit back and consider that his appointment and promotion effected a long time ago would not be set aside after the lapse of a number of years. It was on this ground that this Court in Jaisinghani's case, [1967-2 SCR 703=(AIR1967 SC 1427)] observed that the order in that case would not affect Class II officers who have been appointed permanently as Assistant Commissioners. In that case, the Court was only considering the challenge to appointments and promotions made after 1950. In this case we are asked to consider the validity of appointments and promotions made during the periods of 1945 to 1950. If there was adequate reason in that case to leave out Class II officers, who had been appointed permanently Assistant Commissioners, there is much more reason in this case that the officers who are now permanent Assistant Commissioners of Income Tax and who were appointed and promoted to their original posts during 1945 to 1950, should be left alone."
22. The theory of 'sit back' has been applied almost uniformly in the context of a contention of delay and laches on the part of any person, who makes an attempt to prosecute a claim, which, if accepted, would result inn a situation where inter se positions which have been settled over the years will have to be revised. These contentions have often been raised in proceedings under Articles 226 or 32 of the Constitution and therefore, the Supreme Court had taken note of the fact that though there is no statutory period of limitation applicable to proceedings under Articles 226 and 32 of the Constitution, where settled positions of seniority are sought to be questioned after a considerable lapse of time, the court would be inclined to decline jurisdiction in such cases, on the ground of delay and laches. The court would be loathe to interfere with settled affairs in matters of seniority and promotion effected in any cadre or service after a lapse of time. As observed by the Supreme Court in Rabindra Nath v. Union of India, though the courts would not be anxious to throw out petitions on the ground of delay on the part of the petitioner in approaching the court, justice will have to be administered in accordance with law and principles of -16- W.P.(C). No. 2525 of 2014 equity, justice and good conscience. As the court observed in the said case, it would be unjust to deprive the respondents (in the said case) the rights which have accrued to them; "each person ought to be entitled to 'sit back' and consider that his appointment and promotion effected a long time ago would not be set aside after the lapse of a number of years.
23. The principles laid down in Rabindra Nath v. Union of India were followed in Amrit Lal Berry v. Collector of Central Excise. The Court again reiterated the position in R.S.Makashi v. I.M.Menon, and thereafter in K.R. Mudgal v. R.P.Singh.
15. In paragraph 25, the Full Bench noted that though the theory of 'sit back' as such, was not referred to in Mudgal's case (AIR 1986 SC 2086), essentially the principle upheld therein by the Supreme Court was that settled positions of seniority should not be permitted to be agitated again, after a reasonable lapse of time and the Apex court observed that it would not be in the interest of administrative efficiency to let disputes of seniority to be permitted to be raised and prosecuted several years after the seniority had been settled in the department in the ordinary course of business. Therefore, it is by now too well established that each person ought to be entitled to sit back and treat his appointment and promotion effected a long term -17- W.P.(C). No. 2525 of 2014 ago could not be disturbed or unsettled after a lapse of number of years.
16. In the instant case, the un-settlement of the seniority has been made after the lapse of more than three decades. Irrespective as to the tenability of the main contention raised by the official respondents based on Rule 12B Chapter XXIII KER, it is clear like the day light that the official respondents cannot be permitted to unsettle the seniority which was settled in terms of the official course of business of the authorities concerned as evidenced from Exts.P4 and P5, at this point of time. For this reason alone the impugned orders as per Exs.P6 and P7 are unlawful and ultravires and are liable to be interdicted in judicial proceedings.
17. There is yet another cardinal aspect of the matter. The appointing authority of an aided school is undoubtedly the manager of the school concerned. There is no material produced before this court either by the official respondents -18- W.P.(C). No. 2525 of 2014 or by the contesting respondents that the third respondent manager had issued any order appointing the 4th respondent as HSA(Arabic) in the Full Time post with effect from 15.6.1983. It is quite trite that it is only after such an order has been issued by the manager, that the official respondents could have considered the question as to whether or not approval should be granted to such appointment made with effect from 15.06.1983. Be that as it may, the impugned orders as per Exts.P6 and P7, cannot be legally justified, in view of the action being against the basic tenets of the sit back theory enunciated by the Apex court and by this court in a catena of decisions. Moreover the jurisdiction available with the Government is under Rule92 of Chapter XIVA of KER which is only revisional in nature, which could have been exercised only after the teacher had agitated the matter in time before the Manager and after the hierarchy of statutory functionaries had exercised their original and appellate powers in the matter. Indisputably, the 4threspondent has not agitated this matter before the Manager and the statutory functionaries concerned and so the impugned Ext.P6 order unilaterally -19- W.P.(C). No. 2525 of 2014 passed by the Government is liable to be interfered with. Therefore, Exts.P6 and P7 are liable to be interdicted and the said impugned orders set aside accordingly. It is consequently declared that the settled seniority as between the petitioner and the 4th respondent will continue to hold the field.
18. It is the common case of both the official respondents and respondent No.4 that the third respondent, who is a minority management education institution, and therefore, the manager of the third respondent school has the untrammeled right under Article 30(1) of the Constitution of India, to appoint any qualified teacher as the Head Master/Head Mistress in the School, in view of the position well settled in this regard by a catena of rulings of the Apex Court. In such consideration of this undisputed aspect to the matter, this court had issued an interim order dated 09.07.2014 in IA No.8893/2014 in WP(C) 2525/2014, which reads as follows:
"It is submitted in the counter affidavit dated 16.03.2014 filed by the 4th respondent that the 3rd respondent school is a minority management and that Ext.R4(a) certificate -20- W.P.(C). No. 2525 of 2014 dated 05.01.2012 has been issued by the National Commission for Minority Educational Institutions certifying that the said school is a Minority Educational Institution. It is further contended by the 4th respondent in the said affidavit that in view of this, the 3rd respondent school is fully free to select anyone of the qualified hands in the school as Headmaster, dehors the seniority. So this contention is that the 3rd respondent school is entitled to invoke its fundamental right conferred under Article 30 of the Constitution of India as a Minority Educational Institution and that the 3rd respondent school management is at liberty to appoint any person of their choice as Headmaster of the school, from among the incumbents who have the qualifications to hold the post of Headmaster.
2. Sri. P.C. Sasidharan, learned counsel for the petitioner submits that as per Ext.P8, the Manager of the 3rd respondent school has appointed the petitioner as Headmistress of the school with effect from 01.04.2014 and that Ext.P8 proceedings has been forwarded to 2nd respondent - District Educational Officer (DEO), Thamarassery, Kozhikode, for approval of the said appointment covered by Ext.P8, in terms of the provisions of the Kerala Educational Rules. He further submits that in view of the pendency by this Writ Petition, the 3rd respondent - DEO is apparently under the impression that he may be precluded from taking any decision on the question of approval of the appointment as per Ext.P8.
3. Accordingly it is prayed in this IA that appropriate orders may be issued to the 2nd respondent - DEO to direct him to approve the appointment of the petitioner as Headmistress.
4. Indisputably, even as per the case of the 4th respondent, the 3rd respondent school is a Minority Educational Institution as evidenced by Ext.R4(a), which is entitled for the protection of Article 30 of Constitution of India, and the said school is thus conferred with the fundamental right under Article 30 to appoint any person of their choice as the Headmaster/Headmistress of the school, dehors the seniority, from among the qualified incumbents. Moreover, as per the seniority list prepared in accordance with the provisions of the KER, the petitioner is the senior most incumbent in the school. Though there is dispute relating to the seniority, that issue may not be very relevant at this stage, in view of the specific -21- W.P.(C). No. 2525 of 2014 contention raised by the 4th respondent that the 3rd respondent school is a Minority Educational Institution. Since the Manager of the 3rd respondent school has chosen to appoint the petitioner as the Headmistress of the school, the Educational Authorities are bound to grant necessary approval for the same, unless they have a case that the petitioner does not possess any of the prescribed qualifications to hold the post of Headmaster/Headmistress. No such case is forthcoming from the part of the respondents.
In these circumstances, it is ordered that the 2nd respondent District Educational Officer, Thamarassery shall take up the proposal contained in Ext. P8 on the question of approval of the appointment of the petitioner as Headmistress of the 3rd respondent school and pass necessary orders thereon granting approval to said appointment. It is made clear that the 2nd respondent - DEO can decline approval only if the petitioner is not possessing the prescribed qualifications to the post of Headmistress. The decision as aforesaid shall be taken by the DEO within a period of two weeks from the date of receipt of a copy of this order. The DEO shall thereafter forward the proceedings of the decision taken by him to the 3rd respondent Manager and shall file a statement before this Court producing a copy of the said decision."
19. The above said order dated 09.07.2014 was issued as the third respondent manager had appointed the petitioner as the Head Mistress of the school as per Ext.P8 with effect from 01.04.2013 and in view of the above aspects stated by the respondents. Today when the matter is taken up for hearing, the learned Government Pleader produced a letter No. B3/1191/14 dated 31.07.2014, issued by the second respondent DEO, informing that pursuant to the directions -22- W.P.(C). No. 2525 of 2014 issued in the above said order dated 09.07.2014 granted by this court in this WP(C), the promotion of the writ petitioner as Head Mistress of the third respondent school with effect from 01.04.2014 has been approved by the office of the DEO as per Order NO. Kdis B3/2399/14 dated 24.07.2014. In view of the fact that all the parties concerned including the petitioner, official respondents and the contesting respondent No.4 as well as the 3rd respondent manager has taken the position that the third respondent has untrammeled right under Article 30(1) of the Constitution of India, to appoint a qualified teacher of his choice as the Headmaster in the third respondent school, the order dated 09.07.2014 issued by this court in this WP(C) is made absolute.
With these observations and directions, the Writ Petition (Civil) stands finally disposed of.
Sd/-
ALEXANDER THOMAS, JUDGE das