High Court Kerala High Court

Manager vs State Of Kerala Represented By The on 26 February, 2007

Kerala High Court
Manager vs State Of Kerala Represented By The on 26 February, 2007
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) No. 456 of 2007(D)


1. MANAGER, I.I.V.U.P.SCHOOL,
                      ...  Petitioner

                        Vs



1. STATE OF KERALA REPRESENTED BY THE
                       ...       Respondent

2. THE DIRECTOR OF PUBLIC INSTRUCTIONS,

3. DISTRICT EDUCATIONAL OFFICER,

4. ASSISTANT EDUCATIONAL OFFICER,

5. SMT.P.V.THANKAMANI,

6. T.U.ABDUL KHADER,

                For Petitioner  :SRI.KRB.KAIMAL (SR.)

                For Respondent  :SRI.ESM.KABEER

The Hon'ble MR. Justice K.M.JOSEPH

 Dated :26/02/2007

 O R D E R
                                  K.M.JOSEPH, J.

                    ------------------------------------------

                         W.P.(C).No.456 OF 2007

                   --------------------------------------------

                    Dated this the 26th day of February, 007



                                 JUDGMENT

Petitioner challenges Exts.P5 to P7 and P10 orders. He

seeks a direction to respondents 1 to 4 to recognise petitioner’s

school as established and managed by a religious minority entitled

for the protection of Article 30(1) of the Constitution and a further

direction to approve the appointment of the 6th respondent as

Headmaster with effect from 01-04-2004.

Case of the petitioner in brief is as follows:

Petitioner is the manager of I.I.V.U.P. School, Malippuram.

The school was established in the year 1934 by the Malippuram

Ikhuvathul Islam Sabha in which members are all belonging to

Muslim community. The Sabha was established in the year 1934.

President of the Sabha elected from time to time, is the manager of

the school. Sabha was not registered till the year 1972.

WPC No.456/07 2

2. Ext.P1 is the minutes of the combined meeting of the

outgoing and incoming managing committee held on 23-4-1967.

Ext.P2 is the minutes of the meeting of the General Body held on

22-10-1972 which resolved to register the Sabha at the earliest.

Ext.P3 is the registered Bye-laws of the Sabha. The school is

governed by the provisions of the Kerala Education Act and Rules.

According to the petitioner, the post of Headmaster is filled up by

promoting teachers irrespective of their seniority, who are

considered to be best suited for the school. The post of

Headmaster became vacant on 31-03-2004 and 6th respondent was

appointed. 6th respondent is having SSLC and TTC with test

qualification. 5th respondent is a graduate with B.Ed and he is rank

No.1 in the cadre of U.P.S.A.. Being a minority institution, the

management decided to appoint the 6th respondent, who is also a

member of the Muslim community. Ext.P4 is the letter seeking

approval of appointment of the 6th respondent. 5th respondent filed

petition claiming promotion on the basis of seniority and the

WPC No.456/07 3

possession of B.Ed. By Ext.P5, 4th respondent declined approval

stating reasons that the manager is not entitled to protection under

Article 30(1) of the constitution and also that manager has failed to

prove the minority status of the school. The third reason is that 5th

respondent is senior to the 6th respondent and he is having graduate

degree and B.Ed. Petitioner preferred appeal which was rejected

by Ext.P6 order. Against Ext.P6 order, petitioner filed a revision

petition. Ext.P7 is the order in revision. Petitioner filed Ext.P8

revision petition before the first respondent under Rule 92 of

Chapter XIV A K.E.R. Ext.P9 is the certificate issued by the

Tahsildar showing that school is running by the Sabha.

3. Heard counsel for the parties.

4. Learned counsel for the petitioner would submit that

petitioner is entitled to protection under Article 30(1). He would

submit that the reasons given in the impugned order that Sabha was

registered after the establishment of the school is not a ground for

denying the right under Article 30. The absence of status

WPC No.456/07 4

declaration as minority by Government is another reason which is

impugned. He referred to Exts.P1 and P2 to indicate that there

was a Sabha. He would further submit that the minority institution

is entitled to appoint any qualified person and it is for the minority

institution to decide who is the person to get appointment.

Referring to the decision of this court in Prasad v. Philipose Mar

Dilshus U.P. School (2005(3) KLT 487), learned senior counsel

Sri.K.R.B.Kaimal would submit that a perusal of Rule 44 and 45

would show that a person who is possessing TTC and SSLC could

not be said to be not qualified and all that Rule 45 contemplates is

a preference in favour of the graduates. In view of the fact that

petitioner is entitled to enjoy minority rights, he would contend

that petitioner is entitled to appoint a person who is junior

provided that the person is qualified in terms of the provisions of

Rule 45. Admittedly 6th respondent has SSLC and TTC and he is

qualified under Rule 45(b), he submits and therefore there is

nothing illegal in the appointment of the 6th respondent. Being

WPC No.456/07 5

confronted with the decision of the Division Bench reported in

2005(2)KLT 487, learned senior counsel would contend that rule

actually contemplates only preference and that the decision really

does not lay down anything to the contrary. He would point out

that the embargo against appointment of an under graduate teacher

would no doubt apply in the normal case, but it may not be

applicable in the case of minority institution.

5. Per contra, learned counsel for the respondent would

contend that when there is a graduate teacher present, the manager

has no choice even if it is a minority institution and the manager is

duty bound to appoint the graduate teacher.

6. I would think that my decision on the question as to

whether Rule 45 contemplates that when there is a graduate teacher

it is only the graduate teacher who can be treated as qualified need

alone be considered and answered in this writ petition. It is to be

noted that in the Division Bench in 2005(3)KLT 487 the very same

question arose. The Division Bench dealt with the case under

WPC No.456/07 6

Article 30. The court held as follows:

” 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 Art.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. 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.

A reading of R.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

WPC No.456/07 7

senior most teacher. The appellant in W.A.1163 of

2002 was not he senior most 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-

6-1964. 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 R.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.

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

WPC No.456/07 8

experience of the second petitioner. This Court has

held repeatedly that the word ‘may’ used in R.45

means ‘shall’ and if there is graduate teacher with

five years’ teaching experience and more than 50%

service of senior most 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 & 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 R.44 and R.45 is only a

preferential right and minority management can

appoint senior most qualified UPSA as headmaster

notwithstanding availability of graduate teacher for

promotion under R.45. But, after the above decision,

R. 45 was substituted by new R.45 with effect from

9-11-1971. R. 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 R.45, no teacher with SSLC and TTC alone could

WPC No.456/07 9

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.”

7. In 1992(2)KLT 87 learned Single Judge of this court

had to deal with the constitutional validity of Rule 45 of Chapter

XIV A of K.E.R. Learned Single Judge inter-alia held as follows:

” A Division Bench of this Court had occasion

to consider the preference granted to certain persons

having the qualification of graduation with B.Ed. for

appointment to the post of Headmaster in U.P.

School under R.45 of Ch.XIV-A of K.E.R. in a

different context in W.A.Nos. 399 and 444 of 1974.

This Court held that R.45 prescribes the

qualification for appointment of Headmaster of

U.P.School and if there is a graduate teacher with

B.Ed. and he has the required years of experience,

no teacher with S.S.L.C. or equivalent and T.C.C.

could be appointed as Headmaster. In view of the

wording of R.45, I do not find any merit in the

contention raised by the petitioners that the

qualification of S.S.L.C. and T.T.C. is mandatory

WPC No.456/07 10

for appointment to the post of Headmaster in

U.P.School.”

8. In such circumstances, I am of the view that when there

is a teacher who is graduate and who is otherwise qualified, it may

not be open even to the minority institution to appoint an under

graduate teacher. That appears to be the principle enunciated in

2005(3)KLT 487. I respectfully follow the said judgment.

Petitioner is duty bound to appoint the 5th respondent.

In such circumstances, I feel that the writ petition is liable to

be dismissed. I make it clear that I leave open the challenge in

regard to finding that petitioner is not entitled to protection under

Article 30(1). Accordingly, subject to leaving open the challenge

of the petitioner to the finding that petitioner is not entitled to

invoke Article 30, the writ petition shall stand dismissed.

K.M.JOSEPH

JUDGE

sv.

WPC No.456/07 11