IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 2936 of 2009()
1. BELSI M.,
... Petitioner
Vs
1. THE CORPORATE MANAGEMENT OF LATIN
... Respondent
2. THE STATE OF KERALA,
3. THE DIRECTOR OF PUBLIC INSTRUCTION,
4. THE DISTRICT EDUCATIONAL OFFICER,
5. THE ASSISTANT EDUCATIONAL OFFICER,
6. SMT.N.Y.AMMINI,
7. SMT.KUMARI SOBHANA,
For Petitioner :SRI.V.A.MUHAMMED
For Respondent : No Appearance
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :24/03/2010
O R D E R
C.R.
K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ.
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W.A. No. 2936 OF 2009
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Dated this the 24th day of March, 2010
J U D G M E N T
Balakrishnan Nair, J.
The appellant was the seventh respondent in the Writ Petition.
The first respondent herein was the writ petitioner. The point that
arises for decision in this case is whether the appointment of the
sixth respondent Smt. N.Y.Ammini as Headmistress of a Lower
Primary School, overlooking the claim of the appellant herein was
valid for the reason that the first respondent did not follow a fair
procedure as directed by this Court in Kurian Lizy v. State of
Kerala (2006 (4) KLT 264 (F.B). The brief facts of the case are the
following:
2. The first respondent manages a few schools, including
St.George L.P. School, Palode. It is not disputed before us that the
said educational agency belongs to a minority community and
therefore, is entitled to the protection of Article 30(1) of the
Constitution of India. A vacancy in the post of Headmaster arose in
St.George L.P.School, Palode on 1.4.2004. The management
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appointed Smt. N.Y.Ammini, who is admittedly junior to the appellant
in the cadre of LPSA/UPSA. The management asserted their rights
under Article 30(1) of the Constitution of India in making their
choice. But, the motion made before the Assistant Educational
Officer (AEO) for approval of the said appointment met with rejection,
as evident from Ext.P2 communication of the AEO, Palode dated
6.8.2004. The Manager appealed. The appeal was dismissed by the
District Educational Officer (DEO) by Ext.P3 order dated 27.5.2005.
AEO and DEO took the view that the appointment cannot be
approved for the reason of overlooking the claim of the appellant,
who is a senior. The Manager preferred Ext.P4 revision before the
Director of Public Instruction (DPI). The said revision was dismissed
by Ext.P5 order dated 21.3.2006, on the ground that the
management did not produce any material to show they have the
protection of Article 30(1) of the Constitution of India. The
management filed Ext.P6 revision before the Government,
challenging Ext.P5. The Government disposed of the revision by
Ext.P7 order dated 11.3.2008. The Government held that the
management belongs to a minority community having the protection
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of Article 30(1) of the Constitution of India. But, it was held by the
Government that for not following the dictum laid down in Kurian
Lizy (supra) the appointment is vitiated. Normally, the Government
should have remitted the matter, directing the management to take a
fresh decision in accordance with Kurian Lizy (supra). Instead of
doing that, the Government ordered to appoint the appellant as
Headmistress of the school. Challenging the said decision, Ext.P7 of
the Government as also Exts.P2, P3 and P5, the Writ Petition was
filed by the first respondent.
3. The learned Single Judge allowed the Writ Petition, by
quashing the impugned orders. The learned Judge noticed that in
Manager, S.S.H.S. School v. Lijin (2007 (3) KLT 663) a Division
Bench of this Court observed that Kurian Lizy (supra) is no longer
good law in view of the decision of the Apex Court in Secy.
Malankara Syrian Catholic College v. T.Jose & Others (2007(1)
SCC 386). So, it was held that for not following the dictum laid down
in Kurian Lizy (supra) interference with the action of the
management could not have been made. In that view of the matter,
the impugned orders were quashed and the AEO was directed to
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approve the appointment of Smt. N.Y.Ammini as Headmistress.
When the Writ Appeal came up for hearing, the Division Bench took
the view that the observation in Manager, S.S.H.S. School v. Lijin
(supra) that Kurian Lizy (supra) is overruled by Secy. Malankara
Syrian Catholic College v. T.Jose (supra) is not correct. Therefore,
the matter was referred to the Full Bench to consider the said point.
The Full Bench answered the reference by order dated 18.3.2010 in
the following manner:
“In the result, we answer the reference, stating that the direction in
Kurian Lizy (supra), to follow a fair procedure for overlooking the
seniors and appointing a junior, is not impliedly overruled by
Malankara Syrian Catholic College (Supra). The Writ Appeal
may be posted for hearing before the appropriate Bench, as per the
roster.”
In view of the above order of the Full Bench, the Writ Appeal
was listed before us for final hearing.
4. Sri. V.A.Muhammed, learned counsel appearing for the
appellant submitted that though the directions in Kurian Lizy (Supra)
were issued subsequently, the managements of private educational
institutions always have a duty to follow a fair procedure in selecting
the Headmaster. In T.M.A.Pai Foundation v. State of Karnataka
(2002 (8) SCC 481), the Apex Court reminded about the duty of the
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minority educational institutions in this regard. The learned counsel
further pointed out that the appellant has been found unsuitable,
relying on Exts.P8 and P10. They are cooked up only for the
purpose of this case. Ext.P10 is a document which is purportedly
written long after the supersession of the appellant on 1.4.2004. So,
the supersession has been made in an arbitrary and irrational
manner. Further, the management did not have a case before the
statutory authorities that the appellant was an unsuitable hand and
was, therefore, superseded.
5. Sri. George Mecheril, learned counsel appearing for the first
respondent submitted that the direction in Kurian Lizy (supra)
concerning selection of Headmaster in minority educational
institutions is unsustainable in law, as the same cannot stand with
the absolute right of the minority educational institution under Article
30(1) of the Constitution of India, to appoint persons of its choice as
Headmaster/Principal. In fact, while issuing the above directions in
Kurian Lizy (supra), the Full Bench went beyond the reference made
to it and therefore, the directions issued are not legally sustainable.
The learned counsel also submitted that in the case on hand, the
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vacancy arose on 1.4.2004 and therefore, the directions issued in
Kurian Lizy (supra) on 16.8.2006 could not apply to the selection
made on the 1.4.2004. Therefore, the view taken by the Government
that the selection is bad for not complying with the directions issued
after two years in Kurian Lizy (supra) is unsustainable in law.
6. Finally, it is pointed out that, the appellant is an unsuitable
person and that will be evident from Ext.P8 communication of the
Headmistress of the school. Ext.P9 is a communication issued by
the AEO on a representation made by the appellant seeking
permission to come late to the school. The learned counsel also
relied on Ext.P10, which is a petition filed by the Headmaster of
S.H.U.P. School, Chullimanoor before the first respondent pointing
out the indisciplined conduct of the appellant. The learned counsel
also took us through the pleadings of the first respondent on above
aspect in para 5 and also Ground B of the Writ Petition. Therefore, it
is pointed out that the appellant has been superseded for valid
reasons. So, the learned counsel prayed for dismissing the appeal.
7. We also heard the learned senior Government Pleader Sri.
Benny Gervasis, who appeared for the official respondents. The
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learned Senior Government Pleader supported the impugned orders
of the Government and other statutory authorities.
8. The direction issued by the Full Bench of this Court in
Kurian Lizy (supra) reads as follows:
“After answer to the question directly covering the issue in hand
with regard to appointment of Headmaster or Principal, nothing
else survives for determination. It would be unnecessary in this
order in probing further the matter. We, thus, hold that the
management of a minority educational institution would have
freedom to appoint Headmaster or Principal. R.44(1) of the Rules
of 1959 would have no control over the powers conferred under
Art.30(1) of the Constitution, although such institution has
necessarily to evolve a rationale procedure for selection of the
Headmaster or Principal, this context, we feel that some directions
should be issued to the Managements of minority educational
institutions, to evolve a procedure for selection to the post of
Headmaster, in the light of the observations in the answer to
question 5(c) in T.M.A.Pai Foundation’s case (supra) quoted
above. We notice that in many cases senior teachers belonging
to the minority community, which runs the institution are
superseded without assigning any reason. Art.30(1) of the
Constitution of India is an armour to protect the minority against
the legislative and executive actions of the State, which is
normally controlled by the majority. The said armour cannot be
used as a weapon against other members of the same minority
community. The protection under Art.30(1) is to the minority
community and for the minority community. The Manager may
supersede the members of other communities and also members
of the minority community, who are found unsuitable for promotion
to the post of Headmaster. But there may be teachers, who are,
in every respect, qualified and suitable to head a minority
educational institution. The management may select the best
among them. The selection procedure should be fair, reasonable
and transparent. The eligible members of the minority community
may not have a feeling that they have been superseded without
any valid grounds. So, all minority educational institutions, which
propose to select the best person to the post of
Headmaster/Principal of a School or College, as the case may be,
ignoring seniority in the feeder category or ignoring the availableW.A..No.2936/09
8teachers, should frame and publish regulations or bye-laws,
containing a transparent procedure, governing such selection.
The publication can be made in the Notice Board of the
educational institution concerned and a copy of it should be
available in school/college library for reference. When
superseding a senior qualified member of the minority community
the reasons thereof should be clear from the record. The question
as framed in the beginning of this order is thus answered
accordingly.”
9. We are bound by the decision in Kurian Lizy (supra). It is a
Full Bench decision. So, we cannot go into the contentions raised by
the learned counsel for the management against the correctness of
the decision in Kurian Lizy (supra). In view of the finding of the Full
Bench that Kurian Lizy (supra) is not impliedly overruled by
Malankara Syrian Catholic College (supra), all minority institutions
are bound to follow the directions issued in Kurian Lizy (supra),
concerning selection of Headmaster/Principal in minority educational
institutions, especially when, they propose to deviate from the
seniority rule. In this case, we notice that the Government interfered
with the selection of Smt. N.Y.Ammini only for the reason that the
management did not follow the procedure as directed by this Court in
Kurian Lizy (supra). But, as rightly pointed out by the learned
counsel for the first respondent, the decision to supersede the
appellant was taken on 1.4.2004. While taking that decision, the
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management cannot follow the decision of the Full Bench of this
Court, which was rendered in August 2006. So, the interference
made by the Government with the decision of the management on
that ground is unsustainable in law.
10. The next point to be considered is whether the decision of
the Government could be sustained on other grounds. According to
the management, the appellant is an unsuitable hand. According to
the learned counsel for the appellant, the management did not have
such a case, except before this Court. But for Kurian Lizy (supra),
the right of the management to appoint any teacher of their choice,
who is having the prescribed qualifications, as Headmaster is
unfettered. Relying on this well-settled legal position, the
management defended the case before the statutory authorities and
the Government. But, ultimately when they were defeated before the
Government, the Writ Petition was filed. They were, therefore,
constrained to give the reasons for superseding the appellant. The
appellant seriously disputes the reasons given by the management.
But, we cannot under Article 226 of the Constitution of India sit in
appeal over that dispute. The same being a disputed question, the
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same will go against the appellant. In other words, based on the
dispute raised by the appellant, we cannot interfere with the decision
of the management on the choice of Headmaster, when they say that
the person superseded is unsuitable.
In the result, we sustain the decision of the learned Single
Judge though on a different ground. We hold that the directions in
Kurian Lizy (supra) have no application to the present case and no
valid grounds are available for interfering with the choice of the
management of Smt. N.Y.Ammini, as Headmistress of St.George
L.P.School, Palode. Accordingly, the Writ Appeal fails and it is
dismissed.
K.BALAKRISHNAN NAIR,
(JUDGE )
P.N.RAVINDRAN,
(JUDGE)
vps
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