Kerala High Court
Minimol P.P vs State Of Kerala on 18 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE GOPINATH P.
THURSDAY, THE 18TH DAY OF MARCH 2021/27TH PHALGUNA, 1942
W.A.No.211 OF 2021
AGAINST THE JUDGMENT IN W.P(C).NO.22009/2020(A) OF HIGH COURT
OF KERALA
APPELLANT/PETITIONER:
MINIMOL P.P.
AGED 51 YEARS
W/O MATHEW P THOMAS, FORMERLY PRINCIPAL-IN-CHARGE,
NOW WORKING AS HIGHER SECONDARY SCHOOL TEACHER
(ECONOMICS), ST.PETER'S VOCATIONAL AND HIGHER
SECONDARY SCHOOL, KOLENCHARRY-682311, RESIDING AT
POOKKOLAYIL HOUSE, KOLENCHERY- 682311.
BY ADVS.SRI.S.P.ARAVINDAKSHAN PILLAY
SMT.N.SANTHA
SRI.V.VARGHESE
SRI.PETER JOSE CHRISTO
SRI.S.A.ANAND
SMT.K.N.REMYA
SMT.L.ANNAPOORNA
SHRI.VISHNU V.K.
KUM.ABHIRAMI K. UDAY
RESPONDENTS/RESPONDENTS 1 TO 6:
1 STATE OF KERALA
REPRESENTED BY ITS SECRETARY,
GENERAL EDUCATION DEPARTMENT,
SECRETARIAT, THIRUVANANTHAPURAM-695001.
2 THE DIRECTOR OF HIGHER SECONDARY EDUCATION
HOUSING BOARD BUILDINGS, SANTHI NAGAR,
THIRUVANANTHAPURAM - 695001.
3 THE REGIONAL DEPUTY DIRECTOR
HIGHER SECONDARY EDUCATION DEPARTMENT,
S.R.V.G.H.S.S. BUILDING, KASTHURI RANGAN HALL,
ERNAKULAM - 682011.
4 THE MANAGER
ST.PETER'S VOCATIONAL AND HIGHER SECONDARY SCHOOL,
KOLENCHERRY-682011.
5 SMT.HONEY JOHN THENUMGAL
H.S.S.T. (BOTANY), ST.PETER'S VOCATIONAL AND HIGHER
SECONDARY SCHOOL, KOLENCHERRY-682311.
BY SMT.RAJI T. BHASKAR, GOVT. PLEADER
R4 BY ADV. SRI.GEORGE POONTHOTTAM (SR.)
R4 BY ADV. SMT.NISHA GEORGE
BY ADV. SRI.N.ANAND
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON
18.03.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.A.No.211/2021 :: 3 ::
JUDGMENT
A.K.Jayasankaran Nambiar, J.
The petitioner in W.P.(C).No.22009/2020 is the appellant
herein, aggrieved by the judgment dated 9.11.2020 of the
learned Single Judge in the writ petition. The brief facts
necessary for a disposal of the Writ Appeal are as follows:
2. The petitioner was appointed as High School Assistant
[HSA] with effect from 7.1.1998 in the St.Peter's Vocational and
Higher Secondary School, Kolencherry, which is a minority
educational institution. Thereafter, when the Higher Secondary
Section was sanctioned to the said School, the petitioner was
appointed by transfer as a Higher Secondary School Teacher
[HSST] in Economics with effect from 7.8.2000. The 5 th
respondent too was appointed as HSST (Botany), but through
direct recruitment, with effect from 16.7.2001. It would appear
that a vacancy of Principal of the Higher Secondary School arose
W.A.No.211/2021 :: 4 ::
on 1.6.2006. Since there were no qualified teachers available in
the School for appointment as Principal, owing primarily to the
want of 12 years teaching experience at Higher Secondary Level,
the petitioner was put as Principal-in-charge of the School. As
per Rule 6 of Chapter XXXII of the Kerala Education Rules
[hereinafter referred to as the 'KER'] that prescribes the
qualifications required for appointment as Principal, the
incumbent has inter alia, to have minimum approved teaching
experience of 12 years at the Higher Secondary Level under the
same educational agency. A Note to the said Rule clarifies that
in the absence of persons having qualification as specified above,
approved teaching experience at High School/Upper
Primary/Lower Primary Schools under the same educational
agency shall be considered. The Note further clarifies that such
experience would be reckoned only for qualifying service and will
not be reckoned for the purposes of seniority, and further that,
such alternately qualified persons must possess minimum service
of six years as HSST (Senior/Junior). In the case of the
petitioner, she acquired the alternate qualification, as prescribed
under the Note referred above, on 7.1.2010. The petitioner was
not however appointed as Principal with effect from that date,
primarily because, there was a management dispute that was
W.A.No.211/2021 :: 5 ::
ongoing, and the petitioner did not deem it appropriate to
approach the management with a claim for appointment as
Principal. The arrangement, whereby the petitioner was
appointed as the Principal-in-charge, therefore continued till
2020. By Ext.P14 order, dated 12.10.2020, the petitioner was
divested of her post of Principal-in-charge, and the Manager
appointed the 5th respondent as Principal. It was aggrieved by
the said order, that the petitioner approached this Court through
the writ petition aforementioned.
3. The primary contention of the petitioner in the writ
petition was regarding the status of the School as a minority
educational institution. It was her contention that the School in
question could not be seen as a minority educational institution
for the purposes of conferring a discretion on the management to
choose a candidate of its choice for appointment as Principal. An
alternate contention was also raised that, even if the
management was to be conceded a choice in the appointment of
a Principal, that choice had necessarily to be made between
qualified candidates, and in the instant case, the 5 th respondent
was not qualified as on the date of occurrence of the vacancy in
the post of Principal. The learned Single Judge, who considered
W.A.No.211/2021 :: 6 ::
the matter, rejected the contentions of the petitioner, and held
that the School in question was indeed a minority educational
institution, and hence, the choice of the management to appoint
the 5th respondent could not be faulted. Reliance was placed in
this regard on the decision of this Court in Corporate Manager,
St.Roch's HS/TTI/LPS and another v. State of Kerala and
Others - [ILR 2019 (2) Kerala 333] as also the decision of the
Supreme Court in N.Ammad v. Manager, Emjay High School
and Others - [(1998) 6 SCC 674] to find that the management
of a minority aided school obtains unrestricted freedom to
appoint any person as its Head and that the statutory provisions
to the contrary would not apply to them.
4. Before us, it is the contention of Sri.S.P.Aravindakshan
Pillay, the learned counsel for the appellant that the learned
Single Judge did not consider the issue in its true legal
perspective. It is argued that although the management of a
minority educational institution has a choice to appoint a
principal of its choice ignoring the inter-se seniority between the
teachers, such choice has nevertheless to be between two or
more teachers who are qualified to hold the post of principal. In
the instant case, it is pointed out that, as on 1.6.2006, when the
W.A.No.211/2021 :: 7 ::
vacancy to the post of Principal arose in the School, there was
admittedly no qualified teacher available for appointment to the
said post. However, it was the petitioner who qualified first
thereafter by obtaining the necessary experience as
contemplated in the Note to Rule 6(1) of Chapter XXXII of the
KER for, on 7.1.2010. The 5th respondent obtained the necessary
experience as per the Rules only in 2013. It is therefore
contended that the Management ought to have taken note of the
above facts and chosen the petitioner in preference to the 5 th
respondent for appointment as Principal. In support of his
contention, the learned counsel also relies on the oft-quoted
judgment of the Full Bench of this Court in Varghese and
Others v. State of Kerala and Others - [1981 KHC 148],
which holds that it is the time of occurrence of vacancy that
should be relevant for determining the question of promotion and
not the time the order of promotion is passed. The rationale that
informed the said decision appears to be that the relevant date
must be definite and not depending upon the volition of the
authorities as otherwise the determination would be arbitrary. If
it were to be the date of promotion that is to be relevant for
determining the title to such promotion, the Rule is capable of
arbitrary exercise. Even if it is an honest exercise, that would be
W.A.No.211/2021 :: 8 ::
arbitrary because the fate of the service career would depend in
each instance upon the time taken by the authority concerned in
passing the order of promotion. On the other hand, there is
definiteness in treating the date of occurrence of the vacancy as
that which would determine the title of the person to be
considered for promotion.
5. Persuasive though the submissions of the learned
counsel for the appellant may appear at first blush, we are
afraid, we cannot accept the said contention on the facts of the
instant case. It is, no doubt, true that the appellant obtained the
necessary service experience for being considered for
appointment to the post of Principal, on 7.1.2010. She was not,
however, appointed to the post of Principal on that date or
immediately thereafter. On her part, she continued to function as
the Principal-in-charge based on the said charge arrangement
that was conferred on her in the immediate aftermath of the
arising of vacancy to the post of Principal with effect from
1.6.2006. Thereafter, for a period of almost 10 years, she did not
pursue the matter with the management, save for making
representations before the educational authorities in 2014,
seeking higher grade of pay as applicable to Principal. Perhaps,
W.A.No.211/2021 :: 9 ::
she refrained from staking a claim for appointment as Principal
taking note of the dispute that was subsisting with regard to the
management of the educational institution. That, however, does
not insulate her from the legal consequences of her inaction. As
a result, when the management decided to choose a principal on
12.10.2020 (Ext.P14), the choice was in fact between two
qualified teachers viz. the petitioner and the 5 th respondent. That
the management in the instant case had a right to choose
between qualified candidates is well settled through decision in
N.Ammad (supra) as also the decision of a Full Bench of this
court in Aldo Maria Patroni v E.C.Kesavan - AIR 1965
Kerala 75, where Chief Justice M.S. Menon in his imitable style
observed:
"The post of the headmaster is of pivotal importance in the
life 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'."
W.A.No.211/2021 :: 10 ::
Taking cue from the above settled position, we are of the
view that when it comes to minority educational institutions, the
choice of the management becomes an integral aspect of the
qualification of a claimant to the post of principal. Between two
candidates who possess the qualifications prescribed by the
statutory rules for appointment to the post of principal, it is the
choice exercised by the management in his/her favour that
clothes the candidate with the right to appointment as principal.
It follows, therefore, that when the manager eventually made the
choice in favour of the 5th respondent, it was the 5th respondent
who became qualified in all respects to hold the post of Principal,
notwithstanding that the petitioner had attained educational
qualifications and the necessary experience as mandated in the
Rules prior to the 5th respondent. The legal position with regard
to the promotion of a candidate as Principal taking effect from
the date on which the vacancy arose, or alternatively from the
date on which the person became qualified to hold the promotion
post, would have enured to the benefit of the petitioner only in
the event the choice of the manager had to be in his favour when
there was no other qualified candidate available, or was in his
favour despite the availability of other qualified candidates. In
the instant case, the inaction of the petitioner in pursuing her
W.A.No.211/2021 :: 11 ::
claim when she was the only qualified candidate available,
prevented an effective consideration of her candidature during
the period upto 12.10.2020. Thus, in any view of the matter, we
see no merit in the Writ Appeal, and for the reasons stated in the
impugned judgment, as supplemented by the reasons in this
judgment, we dismiss the same.
Sd/-
A.K.JAYASANKARAN NAMBIAR
JUDGE
Sd/-
GOPINATH P.
JUDGE
prp/19/3/21
