PETITIONER: N. AMMAD Vs. RESPONDENT: THE MANAGER, EMJAY HIGH SCHOOL & ORS. DATE OF JUDGMENT: 07/09/1998 BENCH: S. SAGHIR AHMAD, K.T. THOMAS ACT: HEADNOTE: JUDGMENT:
J U D G M E N T
THOMAS. J.
Special leave granted.
The simple question in these appeals is this : Is
the management of a minority school free to choose and
appoint any qualified person as Headmaster of the school or
whether such management is hedged by any legislative edict
or executive fiat in doing so?
The above question arose when management of a school
sought to appoint 4th respondent (P.M. Aboobacker) as
Headmaster thereof. The school is: “Emjay Vocational
Higher Secondary School”. Valliapplli Taluk Calicut
District, Kerala (hereinafter referred to a ‘the school’).
This move was stiffly resisted by the appellant who is the
seniormost teacher in the school. At his instance, the
District Education Officer (DEO) interfered but of no avail.
Appellant thereupon filed a writ petition in the High Court
of Kerala for a writ of mandamus to the management of the
school to appoint him as Headmaster, Learned Single Judge of
the High Court, who heard the writ petition, alllowed it and
issued a direction as prayed for by the appellant. But a
Division Bench of the High Court reversed that judgment and
dismissed the write petition. Hence, appellant has come up
to this Court seeking special leave to appeal.
Some more facts will be advantageous to focus on the
point in dispute.
Appellant was appointed as a teacher (High School
Assistant – HSA – as it is called) in the school on
3-6-1982, and in June 1991 he become the seniormost teacher
there. The post of Headmaster of the school fell vacant
during that time. None in the teaching staff of the school,
including the appellant, was qualified to be appointed as
Headmaster then. One of the requisites for the post of
Headmaster, as per the relevant rules, is that he must
possess a minimum service qualification of 12 years of
continuous graduate service. Appellant would have completed
the said period of 12 years only in June 1994. Nonetheless,
appellant was put in charge as Headmaster of the school with
the approval of the DEO concerned. When appellant completed
the required period for service qualification he pressed the
management to appoint him as regular Headmaster. The DEO
also sent a communication to the management requesting them
“to promote and appoint a qualified seniormost HSA as
Headmaster with immediate effect”. But the management,
instead of acceeding to the aforesaid request, brought 4th
respondent (who was a graduate teacher having larger period
service than the appellant) from another school as per a
transfer order which was approved by the department on
5-6-1994, and appointed him as Headmaster of the school. It
was then that the appellant filed the writ petition for
issuing appropriate directions including a direction to sent
4th respondent back to the school wherefrom he was brought.
Some undisputed factual features are these; The
school was declared by the Government as a Muslim Minority
Community School as per G.O. (RT) 2959/94/G. Edn. It is
an aided school and is governed by the provisions of the
Kerala Education Act, 1958 (for short ‘the Act’). 4th
respondent is qualified to be appointed as Headmaster on the
date when he was appointed as such and he has longer service
than the appellant as HSA, though he had such service in a
different school. As per the relevant rules, when a teacher
is transferred from one school to another his rank in the
new school shall be fixed next below the juniormost teacher
in the school in the particular grade.
The contention of the appellant is that he being the
seniormost graduate teacher should necessarily have been
appointed as the Headmaster and none else. He also
contended that transfer of 4th respondent from another
school was vitiated as approval for such transfer was made
on the premise that he was being transferred to hold the
post of Headmaster. The third contention is that as the
vacancy of Headmaster arose before 2-8-1994, the post should
have been filled up in accordance with Rules and the
protection as minority school cannot be used to thwart the
legitimate right of the seniormost teacher.
“Educational Agency” is defined under Section 2(2)
of the Act as “any person or body of persons pemitted to
estabilish and maintain any private school under this Act”.
Chapter XIV of the Kerala Education Rules contains a
fasciculus of Rules regarding ” Conditions of service of
aided school teachers”. Rule 10 which falls under the said
Chapter provides that where more than one school are under
the same Educational Agency, a teacher from one such school
may be transferred to another such school under one
Educational Agency may be transferred to a schiik under
another Educational Agency with the previous approval of the
DEO, and Rule 13 stipulates that his rank in the new School
“will be fixed next below the juniormost teacher in that
particular grade in that school”. The minimum service
qualification for appointment as Headmaster is provided in
Rule 44A. As Rule 44(1) is important it is extreacted below:
“The appointment of Headmasters shall
ordinarily be according to seniority from
the seniority list prepared and
maintained under clauses (a) and (b), as
the case may be, of Rule 34. The Manager
will appoint the Headmaster subject to
the Rules laid down in the matter. A
teacher if he is aggrieved by such
appointment will have the right of appeal
to the “Department.”
What happens if the management of the school does
not conform to the above rules? Section 14 of the Act
enables the Government to take over the management of
schools for a period not exceeding 5 years “whenever it
appears to the Government that the manager of any aided
school has neglected to perform any of the duties imposed by
or under this Act or the rules made thereunder”. But the
aforesaid action cannot be taken against a minority school
because sub-section (9) of Section 14 says that “nothing in
this section shall apply to minority schools.”
In the light of the scheme of the Act out above
relating to appointment of Headmaster in a minority school,
we have now to consider whether the DEO can compel the
management to appoint the appellant as Headmaster of the
school. For answering the said question we have to deal
with the first contention that the school could not have
claimed any protection as a minority school before 2-8-1994,
the date when Government declared the school as a minority
school. The contention, in other words, is that the above
declaration of the Government is only prospective.
“Minority School” is defined in Section 2(5) of the
Act as under :
“Minority school means school of their
choice established and administered, or
administered, by such minorities as have
the right to do so under clause (1) of
Article 30 of the Constitution”.
Counsel for both sides conceded that is no provision
in the Act which enables the Government to declare a school
as minority school. If so, a school which is otherwise a
minority school would continue to be so whether Government
declared it as such or not. Declaration by the Government
is at best only a recognition of an existing fact. Article
30(1) of the Constitution reads thus:
“All minorities, whether based on religion
or language, shall have the right to
establish and administer educational
institutions of their choice.”
When the Government declared the school as a
minority school it has recognised a factual position that
the school was established and is being administered by a
minority community. The declaration is only an open
acceptance of a legal character which should necessarily
have existed antecedent to such declaration. Therefore, we
are unable to agree with the contention that the school can
claim protection only after the Government declared it as a
minority school on 2-8-1994.
We will now consider the next contention that the
management of a minority school is also bound by Rule 44(1)
of the Kerala Education Rules and hence the seniormost HSA
of the school should have been appointed as Headmaster.
A Constitution Bench of seven judges of this Court
in Re Kerala Education Bill, 1957 (AIR 1958 SC 956) has
examined the constitutional validity of the Bill which was
the precursor to the Act when President of India had sought
the advice of the Supreme Court under Article 143 of the
constitution. One of the propositions laid down by the said
Constitution Bench in the said decision is this: The right
guaranteed under Article 30(1) is a right that is absolute
and any law or executive direction which infringes the
substance of the right is void to be extent of infringement.
But the absolute character of the right will not preclude
making of regulations in the true interests of efficiency or
instruction, discipline, health, sanitation, morality,
public order and the like as such regulations are not
restrictions on the substance of the right guaranteed by the
Constitution.
The aforesaid proposition was approved by another
Constitution Bench of this Court in Sidhrajbhai Sabbai &
ors. vs. State of Gujarat & anr. (AIR 1963 SC 540) and
also by a 9 Judge Bench of this Court in The Ahmedabad st.
Xaviers College Society & anr. etc. vs. State of Gujarat
& anr. (1975 1 SCR 173).
Thus the legal position adumbrated in Re Kerala
Education Bill (supra) remains unchanged now.
Selection and appointment of Headmaster in a school
(or Principal of a college) are of prime importance in
administration of that educational institution. Headmaster
is the key post in the running of the school. He is the hub
on which all the spokes of the school are set around whom
they rotate to generate result. A school is personified
through its Headmaster and he is the focal point on which
outsiders look at the school. A bad Headmaster can spoil
the entire institution, an efficient and honest Headmaster
can improve it by leaps and bounds. The functional efficacy
of a school very much depends upon the efficiency and
dedication of its Headmaster. This prestine precept remains
unchanged despite many changes taking place in the
structural patterns of education over the years.
How important is the post of Headmaster of a school
has been pithily stated by a Full Bench of the Kerala High
Court in Aldo Maria Patroni vs. E.C. Kesavan & ors. (1964
Kerala law Times 791). Chief Justice M.S. Menon has, in a
style which is inimitable, stated thus :
“The post of the headmaster is of pivotal
importance in the file of a school.
Around him wheels the tone and temper of
the institution; on him depends the
continuity of its traditions, the
maintenance of discipline and the
efficiency of its teaching. the right to
choose the headmaster is perhaps the most
important facet of the right to administer
a school, and we must hold that the
imposition of any trammel thereon – except
to the extent of prescribing the requisite
qualifications and experience – cannot but
be considered as a violation of the right
guaranteed by Article 30(1) of the
Constitution. To hold otherwise will be
to make the right ‘a teasing illusion, a
promise of unreality’.”
(p.794)
The importance of the key role which a Headmaster
plays in the school cannot be better delineated than that.
The Nine Judge Bench in the Ahmedabad St. Xaviers Society
College (supra) has highlighted the importance of the role
of Principal of a college. In support of the majority view
in that decision K.K. Mathew, J. has observed thus:
“It is upon the principal and teachers of
a college that the tone and temper of an
educational institution depend. On them
would depend its reputation, the
maintenance of discipline and its
efficiency in teaching. The right to
choose the principal and to have the
teaching conducted by teachers appointed
by the management after an overall
assessment of their outlook and
philosophy is perhaps the most important
facet of the right to administer an
educational institution.”
(p.270)
H.R. Khanna, J has adopted a still broader view
that even selection of teachers is of great importance in
the right to manage a school. Learned Judge has stated
thus:
“The selection and appointment of teachers
for an educational institution is one of
the essential ingredients of the right to
manage an educational institution and the
minorities can plainly be not denied such
right of selection and appointment without
infringing Article 30(1).”
(p.242)
Krishna Iyer, J. who dissented from the majority
view in Gandhi Faizeam College, Shahappur vs. University of
Agra & ant. (1975 3 SCR 810), has, nevertheless, emphasised
the importance of the post of the Principal in the following
words :
“An activist principal is an asset in
discharging hrese duties which are
inextricably interlaced with academic
functions. The principal is an invaluable
insider – the Management’s own choice –
not an outsider answerable to the
Vice-Chancellor. He brings into the work
of the Managing Committee that intimate
acquaintance with educational operations
and that necessary expression of
student-teacher aspirations and
complatints which are so essential for the
minority institution to achieve a happy
marriage between individuality and
excellence.
(p.825)
Whatever is said about the importance of the post of
Principal of a college vis-a-vis the administration of the
institution would in pari materia apply to the Headmaster of
a school with equal force.
If management of the school is not given very wide
freedom to choose the personnel for holding such a key post,
subject of course to the restrictions regarding
qualifications to be prescribed by the State, the right to
administer the school would get much diminished.
Appellant in this case adopted an alternative
contention that the vacancy of Headmaster should have been
filled up on 1-6-1991 the date on which the vacancy arose.
Rule 45C (Chapter XIV)of the Kerala Education Rules provides
for temporary promotion as Headmaster in the contingency
when a qualified teacher is not available to be promoted in
accordance with the Rules. In such contingency the Rule
says that the appointing authority “shall promote the
seniormost teacher on the staff of the school or the schools
under the Educational Agency, as Headmaster, temporarily,” A
Division Bench of the Kerala High Court has taken the view
that even in a minority school appointment of Headmaster
shall be with reference to the date of vacancy arose on
2-5-1987 and none in that school was qualified and so the
management of that school brought one teacher from outside
and appointed him as Headmaster. The Division Bench
thereupon held that “the management is bound to find out a
qualified teacher from among the members of its staff to be
posted as Headmaster of the school in the vacancy that arose
on 2nd May 1987”.
If the said observations were meant for a
non-minority school, we would not have considered its
implications here. But as the observations are meant for a
minority school in that case we may state at once that we
are unable to concur with it. The management of a minority
school is free to find out a qualified person either from
the staff of the same school or from outside to fill up the
vacancy. We may point out, in this context, that the
Division Bench in Henry Gomes’s case (supra) has quoted with
approval the following observation of another earlier
Division Bench decision of the same High Court in Manager
Corporate E. Agency vs. State of Kerala (1990 2 Kerala Law
Times 240) ”
“The right to appoint the Headmaster of a
school or the Principal of a college, is
one of prime importance in the
administration of the institution. The
right of the minority to administer an
educational institution of its choice
requires the presence of a person in whom
they can repose confidence. Who will
carry out their directions, and to whom
they can look forward to maintain the
traditions, discipline and the efficiency
of the teaching. When once the pivotal
position of the Headmaster is recognised,
it has to be held that the right to
appoint a person of its choice as
Headmaster is of paramount importance to
the minority, any interference with which
(otherwise than by prescribing
qualifications and experience) will
denude the right of administration of is
content, reducing it to mere husk,
without the grain. Such an inroad cannot
be saved as regulation which the State
might impose for furthering the standards
of education.
(emphasis supplied)
Approval of the above observations of the earlier Division
Bench decision of the same court does not go in consonance
with the direction issued in Henry Gomez case that the
management is bound to find out a qualified teacher from
among the members of its staff to be posted as headmaster of
the school.
Shri R.F. Nariman, learned senior counsel
contended, alternatively, that if the management is anxious
to find out the most qualified person to fill up the post of
Headmaster the management should have advertised for the
post inviting applications from qualified persons. To
butteress up the said argument learned counsel cited a two
Judge Bench decision of this Court in Shainda Hasan vs.
State of Uttar Pradesh & ors. (1990 2 SCR 699). In that
case the management of a college was selected by relaxing
the qualifications the University declined to accord
approval thereto. When appellant approached this court
learned judges suggested that the University might not
interfere with the selection and appointment under the facts
of that case. But no legal proposition has been laid down
that selection process must be through advertisement.
According to us, it is for the management of the minority
educational institution to choose the modality for selecting
the qualified persons for appointment.
Thus the management’s right to choose a qualified
person as the Headmaster of the school is well insulated by
the protective cover of Article 30(1) of the Constitution
and it cannot be chiselled out through any legislative act
or executive rule except for fixing up the qualifications
and conditions of service for the post. Any such statutory
or executive fiat would be violative of the fundamental
right enshrined in the aforesaid Article and would hence be
void.
In the present case, nobody has alleged that 4th
respondent does not possess the qualifications prescribed
for the post of Headmaster. If that is the position,
management has the right and freedom to appoint him as the
Headmaster of the school whether it is by brining him down
from another school or even from outside the State. We
therefore concur with the conclusion of the Division Bench
of the High Court in the impugned Judgment and dismiss these
appeals.