Mini Idiculla vs State Of Kerala
2023 Latest Caselaw 7588 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                         PRESENT
          THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
  FRIDAY, THE 14TH DAY OF JULY 2023 / 23RD ASHADHA, 1945
                 WP(C) NO. 16822 OF 2021
PETITIONER:

         MINI IDICULLA,AGED 54 YEARS
         W/O. VARGHESE ZACARIA, U.P.S..T, A.U.P.S.
         VAZHIKKADAVU, VAZHIKKADAVU P.O. NILAMBUR,
         MALAPPURAM 679 333. REDDING AT BETHEL HOUSE,
         HOSPITAL HILL, NILAMBUR PO MALAPPURAM 679 329.

         BY ADVS.
         KALEESWARAM RAJ
         VARUN C.VIJAY
         MAITREYI SACHIDANANDA HEGDE


RESPONDENTS:

    1    STATE OF KERALA,REPRESENTED BY THE SECRETARY TO
         GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION,
         SECRETARIAT, THIRUVANANTHAPURAM 695 001.

    2    DIRECTOR OF GENERAL EDUCATION,
         DIRECTORATE OF GENERAL EDUCATION, JAGATHY,
         THIRUVANANTHAPURAM 695 004.

    3    DEPUTY DIRECTOR OF EDUCATION,
         OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION,
         MALAPPURAM 676 519.

    4    ASSISTANT EDUCATIONAL OFFICER,
         OFFICE OF THE ASSISTANT EDUCATIONAL OFFICER,
         NILAMBUR, MALAPPURAM 679 333.

    5    MANAGER,A.U.P.S. VAZHIKKADAVU, VAZHIKKADAVU P.O.
         NILAMBUR, MALAPPURAM 679 333.

    6    MOLLYKUTTY,HEADMISTRESS (NOT APPROVED) , A.U.P.S.
         VAZHIKKADAVU, VAZHIKKADAVU P.O. NILAMBUR,
         MALAPPURAM 679 333.
 WP(C) No.16822 of 2021          2

           BY ADVS.
           GOVERNMENT PLEADER
           GEORGE ABRAHAM


OTHER PRESENT:

           GP - SUNILKUMAR KURIAKOSE


      THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 14.07.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
                       VIJU ABRAHAM, J.
                    ---------------------
                  WP(C) No.16822 of 2021
                ---------------------------
           Dated this the 14th day of July, 2023

                               JUDGMENT

The above writ petition is filed seeking to

quash Exts P4 and P8 and for a declaration that

the petitioner is entitled to be promoted to the

post of headmistress with effect from 01.05.2021

in the retirement vacancy of one M.B.

Gheevarghese, with all service benefits in tune

with Rule 44 of Chapter XIV A of KER and that the

6th respondent is not entitled for promotion in the

above vacancy ahead of the petitioner.

      2.     Petitioner        was     a     UPST         at     AUPS

Vazhikkadavu,        Malappuram      have   been       appointed    to

the    said        post   on    26.06.1989        and     that     her

appointment was approved on a regular basis from

that date onwards by the 4th respondent. In Ext P1

staff statement (seniority list) as on 18.06.2019

prepared by the Headmaster, the petitioner is

included as serial No.2 and the 6th respondent is

included as serial No.3. In turn, on the basis of

the same it is the contention of the petitioner

that she is senior to the 6th respondent.

Petitioner submits that she has acquired all

educational qualifications and has also passed the

departmental test, as is revealed from Ext P2

relevant portion of the service book of the

petitioner. Ext.P3 representation was made by the

petitioner requesting the Manager to promote her

as Headmistress in the retirement vacancy of Sri.

M.B. Gheevarghese. On the retirement of M.B.

Gheevarghese, Headmaster of the school on

30.04.2021, petitioner being senior has a rightful

claim for appointment to the said post, but

overlooking her claim the 6th respondent, who is

junior to the petitioner, was appointed as the

Headmistress, as is evident from Ext P4.

3. Petitioner's case is that the Manager gave

Ext.P5 declaration before the educational

authorities at the time of appointment of the 6 th

respondent in which it is falsely stated that

there are no other senior claimants for being

appointed as Headmistress. Aggrieved by the same,

petitioner submitted Ext.P7 appeal before the 4th

respondent in which the petitioner has requested

the 4th respondent to cancel the appointment of 6th

respondent as Headmistress and for a direction to

the Manager to appoint the petitioner as

Headmistress with effect from 01.05.2021. In reply

to Ext.P7, the 4th respondent issued Ext P8 order

stating that Manager being the appointing

authority, no direction can be issued to him to

appoint the petitioner as Headmistress. Petitioner

submits that until and unless this Court direct

the Manager to appoint the petitioner as

Headmistress with effect from 01.05.2021, no

positive steps will be taken in this regard.

Petitioner relies on Ext.P1 judgment in Writ

Appeal No. 1147/2018 and the judgment in Xavier

T.J. v. State of Kerala [2023 SCC online Kerala

1706] in support of her contentions.

4. A detailed counter affidavit has been

filed by the 5th respondent, wherein it is stated

that the averment contained in the writ petitions

are not true to facts. The school was established

by the present Manager's father Sri.Kunjahammed

Mestri. The 5th respodnent being the legal heir of

the deceased Kunjahammed Mestri, has become the

Manager of the school. The school was established

in the year 1954 and was established by

Kunjahammed Mestri, who belongs to the minority

community and the school was established for the

upliftment of the minority community. According to

the 5th respondent, Ext.R5(b) application was

submitted before the competent authority for

issuance of minority status and as per Ext.R5(j)

minority status was granted to the Lower Primary

Section of the AUP School, Vazhikkadavu. 5th

respondent submits that once minority status is

granted by the competent authority, the benefit of

the declaration relates back to the date of

establishment of the school. 5th respondent relies

on Ext.R5(d) Government order wherein the said

position has been reiterated by the Government

also. 5th respondent also relies on Ext.R2(e) and

R2(f)judgments in support of his contention. 5 th

respondent also relies on the judgments of the

Apex Court in N.Ammad vs. The Manager, Emjay High

School (1998 (2) KLT 828 SC), and in The Manager,

Darul Uloom Higher Secondary School vs. Thomas

Antony and Others in Civil Appeal No.6959 of 2022

and also the judgments of this Court in Saji

Thomas v. State of Kerala and Others (2022 (6) KHC

474) and also the decision in Manager, St.Paul's

HSS., Kozhinjampara v. State of Kerala and Others

(2020 (2) KHC 145) in support of her contentions.

The 5th respondent also submits that the decision

in Xavier T.J's case supra cited by the petitioner

cannot be taken into consideration in as much as

the operation of the said judgment has been stayed

by this Court in WA No.978 of 2023.

5. The 4th respondent has also filed a counter

affidavit, wherein it is stated that going by the

provisions of Rule 44 of Chapter XIVA of KER,

Manager cannot make any appointment of Headmasters

by overlooking the seniority without obtaining a

written consent from the senior claimant

renouncing his claim permanently and in the

present case, the Manager has appointed the 6th

respondent as Headmistress who is junior to the

petitioner and the Manager has not submitted

requisite relinquishment letter of the senior most

teacher and in the said circumstances, the

appointment of the 6th respondent as primary

Headmistress was rejected by the Assistant

Educational Officer. It is also further submitted

that the school is not having minority status and

therefore the Manager cannot promote teachers

overlooking seniority.

6. The question to be considered is as to

whether the Manager is entitled to appoint the 6 th

respondent as a Headmistress overlooking the

seniority of the petitioner herein. The petitioner

relying on Rule 44 of Chapter XIVA of KER

contended that she is entitled for being appointed

as Headmistress in the place of the 6th respondent.

Petitioner submits that as per the said Rule

appointment of Headmaster/Headmistress shall

ordinarily be according to the seniority. Note to

Rule 44 of Chapter XIVA of KER makes it clear that

whenever the Manager intends to appoint a person

as Headmaster other than the senior claimant, the

Manager shall obtain a written consent from such

senior claimant renouncing his/her claim

permanently. Such consent shall have the approval

of the Educational Office concerned. In the

instant case, the petitioner has not given any

written consent renouncing her claim for promotion

as HM and therefore, being senior she ought to

have been appointed as Headmistress. It is the

contention of the petitioner based on Ext.P9

judgment in WA No.1447 of 2018 that this Court has

considered the impact of Rule 44 of Chapter XIVA

of KER and the rights of the Management granting

under Article 30(1) of the Constitution and

relying on note to Rule 1 of Chapter XIVA KER,

this Court entered a finding that a claim of the

senior most teacher shall be overlooked only after

obtaining a written consent from him renouncing

his claim permanently and that the conduct of the

Manager in appointing another person overlooking

the claim of the claimant therein cannot be

justified though the same was in exercise of the

rights under Article 30(1) of the Constitution.

Similar view was taken by this Court in Xavier's

case supra.

7. Learned counsel appearing for the 5 th

respondent Manager submitted that the school under

the managership of the 5th respondent is a minority

institution and the status of the minority

institution has been declared by the Government by

issuing Ext.R2(j) order. The 5th respondent

relying on the judgment in N.Ammad's case supra,

contended that the Apex Court relying on the

definition of the minority school in Section 2(5)

of the Kerala Educational Act, held that a school

which is otherwise a minority school would

continue to be so whether Government declared it

as such or not and the declaration by the

Government is at best only a recognition of an

existing fact and that 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. It is further held in the said

judgment that the declaration is only an open

acceptance of the legal character which should

necessarily have existed antecedent to such

declaration and the Apex Court rejected the

contention that the school can claim protection

only after the Government declared it as a

minority school. The Apex Court then proceeded to

consider the impact of Rule 44(1) of Chapter XIVA

of KER and as to whether a minority school is also

bound by the said Rule and therefore, the senior

most HSA of the school should have been appointed

as Headmaster. The Apex Court relying on the

Constitutional Bench Judgment in Re-Kerala

Educational Bill 1957 [AIR 1958 SC 956) which held

that the right guaranteed under Article 30(1) is

the right which is absolute and any law or

executive direction which infringes the substance

of the right is void to the extent of infringement

and ultimately held that the management's right

to chose a qualified person as the Headmaster of

the school is well insulated by the protective

cover of Article 30(1) of the Constitution of

India 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 and any such statutory or

executive fiat would be violative of the

fundamental right enshrined in the aforesaid

Article and and would hence be void. Recently the

Apex Court in the case The Manger, Darul Uloom

Higher Secondary School (Supra) has also

considered a similar situation wherein the

applicability of Rule 44 of Chapter XIV A KER was

considered in the light of the Constitutional

protection guaranteed to a minority institution

under Article 30(1) of the Constitution of India.

The Apex Court was considering a case where the

Division Bench of this Court has held that since

the procedures contemplated under Rule 44 of

Chapter XIVA of KER was not followed while

overlooking the senior, and interfered with the

appointment of the Headmaster by the Manager,

invoking Rule 30(1). In the said case, though the

Apex Court did not interfere in the matter of

payment of salary etc., to the teacher concerned,

corrected the position of law in terms of the

judgment of the Apex Court in N. Ammad's case

cited (Supra). This Court in Manager, St.Paul's

Higher Secondary School, Kozhinjampara cited

(Supra) has held that the declaration of minority

status of an institution by a certification from

the National Commission for Minority Educational

Institution is not a requirement to treat an

institution as a minority institution and when a

person belonging to the minority community

establishes an educational institution, it become

a minority institution even without any

declaration of minority status by the competent

authority. The said legal position has been

reiterated by this Court in Saji Thomas's case

(Supra) also. Admittedly this is a school

established by a person belonging to the minority

community. Later on the minority status of the

institution has also been declared as per

Ext.R5(j) Government Order. In N. Ammad' case

(Supra), the Apex Court has held that the

declaration by the Government that the school is a

minority school is only a recognition of the

factual position and acceptance of a legal

character which existed antecedent to such

declaration and held that Rule 44(1) of Chapter

XIV A of KER will not apply in case of a minority

institution, which is constitutionally protected

under Article 30(1) of the Constitution of India

and the said protective cover of Section 30(1)

cannot be chiselled out through any legislative

act or executive rule.

In view of the categoric declaration by the Apex

Court in N.Ammad's case as well as the Manager,

Darul Uloom Higher Secondary School cited (Supra),

I am of the opinion that it is well within the

powers of the 5th respondent to appoint a

Headmaster of his choice. Therefore, the

contentions of the petitioner to the contrary

cannot be accepted. In view of the same, the above

writ petition is accordingly dismissed.

sd/-

VIJU ABRAHAM, JUDGE

pm

APPENDIX OF WP(C) 16822/2021

PETITIONER'S EXHIBITS

Exhibit P1 TRUE COPY OF THE STATE STATEMENT AS ON 18.06.2019 PREPARED BY THE THEN HEADMASTER OF AUPS, VAZHIKKADAVU, MALAPPURAM.

Exhibit P2 TRUE COPY OF THE RELEVANT PART OF THE SERVICE BOOK OF THE PETITIONER.

Exhibit P3 TRUE COPY OF THE REPRESENTATION DATED 19.04.2021 SUBMITTED BY THE PETITIONER BEFORE THE MANAGER.,

Exhibit P4 TRUE COPY OF THE APPOINTMENT ORDER DATED 0.05.2021 ISSUED BY THE 5TH RESPONDENT, APPOINTING THE 6TH RESPONDENT AS H.M. OF THE SCHOOL.

Exhibit P5 TRUE COPY OF THE RELEVANT PART OF THE STATEMENT OF CHANGE OF STAFF ALONG WITH THE DECLARATION SUBMITTED BY THE 5TH RESPONDENT.

Exhibit P6 TRUE COPY OF THE LETTER NO.

EI/1772/2021 DATED 01.07.2021.

Exhibit P7 TRUE COPY OF THE APPEAL DATED 03.05.2021 SUBMITTED BY THE PETITIONER BEFORE TH 4TH RESPONDENT.

Exhibit P8 TRUE COPY OF THE LETTER NO. F/1618.2021 DATED 15.07.2021.

Exhibit P9 TRUE COPY OF THE JUDGMENT DATED 10.12.2018 IN W.A. NO. 1447/2018.

RESPONDENT'S EXHIBITS

Exhibit R-5(g) Copy of the revision filed by the Manager dated 29-09-2022

Exhibit R-5(h) True copy of the NOC issued by the Director of Minority Welfare Department, Thiruvananthapuram dated 24-9-2022

Exhibit R-5(i) True copy of the application submitted by the manager dated 29-09-2022

Exhibit R5(J) TRUE COPY OF THE G.O(RT) 6032/2022/GEDN. DATED 20/10/2022

Exhibit R5(K) TRUE COPY OF THE APPLICATION SUBMITTED BY THE 5TH RESPONDENT DATED 28/09/2022

Exhibit R5(L) TRUE COPY OF THE APPLICATION SUBMITTED BY THE 5TH RESPONDENT DATED 29/09/2022

PETITIONER EXHIBITS

Exhibit P10 TRUE COPY OF THE G.O(RT)NO.6032/2022/GEDN DATED 20.10.2022 ISSUED BY THE GOVERNMENT.

RESPONDENT'S EXHIBITS

Exhibit R5(m) A COPY OF THE GO(RT) NO.205/2023/G.EDN. DATED 9/1/2023