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