Allowed

The Corporation Educational Agency Society Order of Sacred Transfiguration v. P.M.Marykutty

Kerala HC8 Aug 2014WA/542/2012

Case brief

AI extract

What is this about?

This writ appeal challenged the High Court judgment that quashed Government orders approving a minority institution's right to select its own Headmistress. The High Court held the Government lacked review power over the impugned order. The Division Bench reversed the impugned judgment, held that the Government order was provisional, and allowed the minority institution's appeal by dismissing the o

What did the court decide?

The writ appeal was allowed, the Single Judge's judgment was set aside, and the writ petition was dismissed.

The Corporation Educational Agency Society Order of… — Service and Employment | Kerala HC (2014)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE THE AG.CHIEF JUSTICE MR.ASHOK BHUSHAN & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

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FRIDAY, THE 8TH DAY OF AUGUST 2014/17TH SRAVANA, 1936

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WA.No. 542 of 2012

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AGAINST JUDGMENT IN W.P.(C).NO. 6029/2007 (P)

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APPELLANT / 4TH RESPONDENT IN W.P.(C) :

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THE CORPORATE EDUCATIONAL AGENCY, SOCIETY ORDER OF SACRED TRANSFIGURATION MOUNT TABOR, PATHANAPURAM, REPRESENTED BY ITS MANAGER.

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BY SRI.BABU VARGHESE (SENIOR ADVOCATE) ADVS. SMT.SADHANA KUMARI ESWARI SRI.K.JAYAKUMAR (RAVIPURAM) SRI.JOHNSON T. JOHN

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RESPONDENTS / PETITIONER & RESPONDENTS 1 TO 3 IN W.P.(C) :

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1. P.M.MARYKUTTY,

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H.S.A.(RETD), MOUNT TABOR HIGH SCHOOL, PATHANAPURAM,

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NOW RESIDING AT MINIAKAL, C-9/225(2), C STREET,

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JAWAHAR NAGAR, THIRUVANANTHAPURAM - 695 001.

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2. STATE OF KERALA,

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REPRESENTED BY ITS SECRETARY, EDUCATION DEPARTMENT,

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GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.

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3. THE DIRECTOR OF PUBLIC INSTRUCTIONS,

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DPI OFFICE, THIRUVANANTHAPURAM, PIN - 695 001.

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4. THE DISTRICT EDUCATION OFFICER, KOTTARAKKARA, PIN - 691 506.

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R1 BY ADVS. SRI.BIJU BALAKRISHNAN

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SMT.V.S.RAKHEE

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SMT.PRINCY XAVIER

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R2 TO R4 BY SR.GOVERNMENT PLEADER SRI.ROSHAN.D.ALEXANDER BY GOVERNMENT PLEADER SRI.RINNY STEPHEN CHAMAPARAMBIL

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THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 11-07-2014, THE COURT ON 08-08-2014 DELIVERED THE FOLLOWING:

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Msd.

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WA.No. 542 of 2012

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APPENDIX

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PETITIONER(S)' ANNEXURES :

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ANNEXURE A(1): TRUE COPY OF THE CERTIFICATE DATED 25.04.2012 ISSUED BY THE NATIONAL COMMISSION FOR MINORITY EDUCATIONAL INSTITUTIONS.

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RESPONDENT(S)' ANNEXURES :

NIL

//TRUE COPY//

P.A.TO JUDGE.

Msd.

**ASHOK BHUSHAN, Ag.CJ & A.M.SHAFFIQUE, J * * * * * * * * * * * * *** W.A.No.542 of 2012

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Dated this the 8^th day of August 2014

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J U D G M E N T

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Shaffique,J

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This appeal is filed by the 4^th respondent in the writ petition aggrieved by the judgment dated 24/02/2012 of the learned Single Judge in WPC No. 6029 of 2007. The 1^st respondent herein is the writ petitioner who challenged Exts.P1, P2, P5, P6, P11 and P12 and sought for a direction to the respondents to promote the petitioner to the post of Headmistress with effect from 01/06/1993 with all service benefits and backwages after making necessary reshuffling from 01/04/1993 onwards.

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The facts involved in the above case would disclose that the petitioner claimed to be a senior qualified teacher in the school managed by the 4^th respondent/appellant herein. Four vacancies to the post of Headmaster had arisen as on 01/04/1993. The petitioner is the fourth in the seniority list. When others, senior to

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her, were either appointed or they relinquished their right for promotion, the petitioner was entitled to be promoted in the next arising vacancy. But, instead of doing so, another person was appointed as per Ext.P1 dated 02/06/1993.

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According to the petitioner, she, being the senior to the person appointed in terms of Ext. P1, was discriminated and therefore she is entitled for the said appointment. Petitioner approached the District Educational Officer, who passed an order rejecting the claim of the petitioner. Petitioner preferred an appeal before the Director of Public Instruction (DPI), who, by Ext.P4, confirmed the order of the third respondent. Petitioner preferred a revision before the first respondent which was allowed as per Ext.P5 dated 20/12/1996 directing the DPI to rectify the defects in the seniority list. It was inter alia found that rights of a teacher including the right for consideration for promotion cannot be overlooked under the cover of minority rights, particularly when the teacher also belongs to the same minority

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community. Government stayed the operation of Ext.P5 by Ext.P8 order dated 28/01/1997. In the meantime, she filed Original Petition No.2082 of 1996 to consider her representation dated 01/04/1995. 1^st respondent passed an order dated 09/03/2006 as Ext.P11 upholding the minority status of the School and their entitlement to appoint a qualified teacher of their choice as Headmistress. According to the petitioner, she had come to know about an earlier order dated 18/11/1999 from Ext.P11 by which the Government had reviewed Ext.P5 order without notice to the petitioner. On these factual circumstances, petitioner contended that the fourth respondent Management is not a minority institution entitled for protection under Article 30(1) of the Constitution of India and that apart, the Government has no power to review its own order, Ext.P5 dated 20/12/1996. That apart, even assuming that it is a minority institution, petitioner also is a person of the same minority community and there was no reason for not promoting the petitioner to the post of Headmistress,

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while her juniors were given promotion.

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Counter affidavit was filed by the fourth respondent inter alia contending that it is a minority institution which has been accepted by the Government as per Government Order dated 03/05/1984 produced as Ext.R4(a). According to them, all promotions were made by the Manager since 1984 invoking minority status of the institution which was not under challenge at any point of time. It is submitted that the petitioner retired from service on 31/03/1998 and other interested parties also retired and it is thereafter that this writ petition has been filed. After the judgment of the Supreme Court in N.Ammad v. Manager, Emjay High School [(1998) 6 SCC 674], order dated 18/11/1999 was issued by the Government stating that the Corporate Manager has right to appoint a qualified person as Headmaster without observing the strict seniority. On this basis, it was contended that the petitioner having already retired from service and all persons who were promoted has ceased to be in service, there is no basis for challenging the

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impugned orders and sought for dismissal of the writ petition.

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The learned Single Judge, having considered the respective contentions urged on behalf of the parties, observed that Government has power to review an order only if it is an order passed under Rule 92 of Chapter XIV A of Kerala Education Rules (KER) and not with reference to any orders passed by the Government in exercise of appellate or revisional jurisdiction. When Ext.P5 order has been passed by exercising the power of revision, the same cannot be reviewed under Rule 93. The learned Single Judge also relied upon the judgment of this Court in Rathee Devi v. State of Kerala [2001 (2) KLJ 895]. Therefore, upholding Ext. P5, Ext.P12 and consequential orders are declared to be without jurisdiction and quashed. It is further made clear that the judgment will not stand in the way of the 4^th respondent in challenging Ext.P5 order appropriately, if they are entitled to do so.

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The learned senior counsel appearing on behalf

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of the appellant would submit that the impugned

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judgment has been passed without reference to the factual circumstances and legal issues involved in the matter. It is inter alia contended that, by judgment dated 12/07/2005 in O.P.No.2082 of 1996, this Court directed the Government to consider the representation of the petitioner which resulted in Ext.P11 order and therefore it cannot be contended that the Government has exercised power of review, whereas the Government has only complied with the directions of this Court. The learned senior counsel relied upon the judgment of the Supreme Court in N.Ammad 's case (supra) for the proposition that the rights guaranteed under Article 30(1) is a right which is absolute and any law or executive direction which infringes the substance of the said right is void to the extent of infringement. Reference is also made to paragraph 18 to 24 and 28 of the said judgment which reads as under:

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“ 18. Selection and appointment of Headmaster in a school (or Principal of a college) are of prime importance in administration of that educational institution. The Headmaster is the key post in the

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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 pristine precept remains unchanged despite many changes taking place in the structural patterns of education over the years.

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19. 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 v. E.C. Kesavan. Chief Justice M.S. Menon has, in a style which is inimitable, stated thus:

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“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

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be to make the right ‘a teasing illusion, a promise of unreality’.”

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20. 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.Xavier’s College Society has highlighted the importance of the role of the Principal of a college. In support of majority view in that decision K.K. Mathew, J. has observed thus: (SCC pp. 815-16, para 182)

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“182. 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.”

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21. 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: (SCC p. 789, para 103)

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“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

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infringing Article 30(1).”

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22. Krishna Iyer, J. who dissented from the majority view in Gandhi Faiz-E-Am College v. University of Agra has, nevertheless, emphasised the importance of the post of the Principal in the following words: (SCC p. 293, para 21)

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“21. An activist principal is an asset in discharging these 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 complaints which are so essential for the minority institution to achieve a happy marriage between individuality and excellence.”

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23. Whatever is said about the importance of the post of Principal of a college vis-à-vis the administration of the institution would in pari materia apply to the Headmaster of a school with equal force.

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24. 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”

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“28. Thus the management’s right to choose a qualified person as the Headmaster of the School is

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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.”

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Reference is also made to the Full Bench judgment of this Court in Kurian Lizy v. State of Kerala [2006 (4) KLT 264 (FB)] . It was held by the Full Bench that the management of a minority educational institution would have freedom to appoint Headmaster or Principal. However, the Full Bench observed that the protection under Article 30(1) cannot be used as a weapon against other members of the same minority community. The Manager may supersede the members of other communities and also members of minority community who are found unsuitable for promotion to the post of Headmaster. The management has to select the best among them and the selection procedure should be fair, reasonable and transparent. Therefore, directions were issued indicating that all minority educational institutions

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which proposed to select the best person to the post of Headmaster of a school or Principal of a College, as the case may be, ignoring seniority in the feeder category or ignoring the available teachers, should frame and publish regulations or bye laws containing a transparent procedure governing the said selection. When a senior qualified member of the minority community is superseded, the reasons should be clear from the records. 8. Another judgment relied upon is Malankara Syrian Catholic college v. Jose [2007 (1) KLT 22 (SC)] . In the said judgment, the Supreme Court, after considering the previous judgments, held that the freedom to choose the person to be appointed as Principal has always been recognized as a vital facet of the right to administer the educational institution which has not been in any way diluted or altered by TMA Pai Foundation v. State of Karnataka [(2002) 8 SCC 481] . Further in paragraph 28 the Supreme Court held as under:

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“28. We will now examine the decision in Unni Krishnan case. In this case, this Court considered the conditions and regulations, if any, which the State

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could impose in the running of private unaided/aided, recognized or affiliated educational institutions conducting professional courses such as Medicine, Engineering etc. The extent to which the fee could be charged by such an institution, and the manner in which admissions could be granted was also considered. This Court held that private unaided recognized/affiliated educational institutions running professional courses were entitled to charge a fee higher than that charged by government institutions for similar courses, but that such a fee could not exceed the maximum limit fixed by the State. It held that commercialization of education was not permissible, and “was opposed to public policy and Indian tradition and therefore charging capitation fee was illegal”. With regard to private aided recognized/affiliated educational institutions, the Court upheld the power of the Government to frame rules and regulations in matters of admission and fees, as well as in matters such as recruitment and conditions of service of teachers and staff. Though a question was raised as to whether the setting up of an educational institution could be regarded as a business, profession or vocation under Article 19(1)(g), this question was not answered. Jeevan Reddy, J., however, at p. 751, para 197, observed as follows:

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“While we do not wish to express any opinion on the question whether the right to establish an educational institution can be said to be carrying on any

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‘occupation’ within the meaning of Article 19(1)(g), — perhaps, it is — we are certainly of the opinion that such activity can neither be a trade or business nor can it be a profession within the meaning of Article 19 (1)(g). Trade or business normally connotes an activity carried on with a profit motive. Education has never been commerce in this country.”

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On this basis, it is contended by the learned senior counsel that when the right of the minority institution is approved by the Supreme Court and held so in Ammad ’s case (supra), the law became settled and therefore the Government was justified in passing Ext.P12 order dated 18/11/1999. That apart, Ext.P5 order was stayed by the Government as per Ext.P8 order dated 28/01/1997 on a petition filed by the Corporate Manager. It is also contended that the judgment in Rathee Devi’s case (supra) was not properly applied to the facts of the case.

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On the other hand, learned counsel for the first respondent contends that as long as the Government has no power of review, Ext.P5 has become final and in the absence of any challenge to Ext.P5, the Government was

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under obligation to enforce Ext.P5. But no orders were passed pursuant to Ext P5 in the light of Exts.P8 and P12. When it is an admitted fact that the Government has no power of review, the exercise of such power is bad in law and therefore appropriate directions are to be issued in the light of the right conferred on the petitioner by way of Ext.P5. Though the petitioner retired on 31/03/1998, she is entitled for notional promotion and all consequential benefits in the post of Headmistress. The learned counsel also placed reliance on the Division Bench judgment of this court in The Manager, MMLP School v. Sajitha [2014 (2) KLT 367] . It was held that the judgment in Kurian Lizy 's case (supra) was not diluted and the management of a minority educational institution has to follow the procedure prescribed therein while making the appointment regarding posts to which that precedent applies. It is therefore contended that when no such selection procedure has been made by the management while appointing Headmasters of the Corporate Management Schools, the senior most among the

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teachers is entitled to be appointed to the said post. For that reason itself, the entire appointments made by the management with effect from 01/04/1993 has to be reshuffled and appropriate persons are to be appointed.

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The first question to be considered is whether the appellant institution is entitled for the protection of Article 30(1) of the Constitution. This fact is evident from Ext.R4(a), Government order dated 03/05/1984 wherein the Government had, after examining the claim of the appellant, ordered that the Schools under the Corporate Management of the appellant Society will be entitled to the privileges envisaged in Article 30(1) of the Constitution of India.

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Under such circumstances, it cannot be disputed that in regard to appointment of Headmaster, the appellant institution has a right to choose one of the qualified teachers as the Headmaster of any School under their Corporate Management. However, it is argued on behalf of the petitioner that the Management did not follow the judgment of the Full Bench in Kurian Lizy 's

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case (supra). Kurian Lizy 's case (supra) was decided only in the year 2006 and by the time the entire selection process has been completed and the petitioner as well as other persons, who were appointed as Headmaster/Headmistress, had retired from service. Hence, it is apparent that the Management was unable to conduct a selection process as held in Kurian Lizy 's case (supra). Therefore, having regard to the law laid down by the Supreme Court and this Court, the right of the Management in appointing a person of their choice as Headmaster/Headmistress is well settled.

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The next question is whether the Government was justified in exercising power of review once they have formed an opinion in a revision filed by the petitioner that the petitioner cannot be sidelined under the cover of minority rights and especially when she belongs to the minority community. In Ext.P5, the Government formed an opinion that though the Division Bench of the Kerala High Court has upheld right of minority institutions in appointing Headmasters of their choice, Special Leave

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Petition has been filed against the said judgment before the Supreme Court and interim stay has been granted in the matter. Since the case was not disposed of, it was not proper on the part of the Management to have superseded the petitioner invoking minority rights of the institution. Perusal of Ext.P12 order dated 18/11/1999 would indicate that a review petition dated 10/01/1997 was filed by the Corporate Manager. In fact, Ext. P5 order was stayed by the Government as per Ext.P8 order dated 28/01/1997 and thereafter, on the basis of the Supreme Court decision relied upon by the appellant, Ext.P12 order was passed. The learned Single Judge, relied upon the judgment in Rathee Devi's case (supra) and had formed an opinion that the power of review is possible only if the order sought to be reviewed is an original order. In regard to the jurisdiction of the Government to entertain a review petition under Rule 93 of Chapter XIV A of KER against an order passed in revision under Rule 92, the position is well settled in Anil Kumar v. State of Kerala [2009 (3) KLT 650 (FB)] . It is held that the Government has no such

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power. Therefore, we uphold the said view expressed by the learned Single Judge.

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However, the situation in this case is slightly different. When Ext.P5 order dated 20/12/1996 was passed, the disposal was based on the stay order granted by the Supreme Court. It is specifically mentioned that the promotion to the post of Headmistress will be provisional. When the order directing promotion to be given was made provisional, the same was apparently subject to further orders to be passed after the judgment of the Supreme Court. No orders were passed pursuant to Ext.P5 by the DPI, probably on account of the stay in terms of Ext.P8. In effect, Ext.P5 order was not implemented and after the disposal of the case pending before the Supreme Court, as

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per judgment dated 07/09/1998 in Ammad’s case (supra), the Government cancelled Ext.P5 order. It is therefore not an instance where the Government exercised power of review in terms of Rule 93, whereas Ext.P5 was only a provisional order which was withdrawn by virtue of Ext.P12. That apart, the petitioner had filed

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O.P.No.2082 of 1996, which came to be disposed of on 12/07/2005. The said writ petition was filed claiming seniority in preference to certain others. During the pendency of the said Original Petition, DPI had passed order dated 06/03/1996 which is Ext.P4 in the present case. It was submitted that the petitioner had filed a representation before the Government on 01/01/1995 which is Ext.P7 in the present writ petition. This Court, while deciding O.P.No.2082/1996, directed the Government to consider the said representation with notice to the petitioner, the Management and the affected parties. The original petition was disposed of after several years from the date on which the petitioner retired from service. Ext.P11 order was passed pursuant to the said direction, wherein reference was made to Ext.P12 order as well.

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Apparently, the facts involved in the case would only disclose that the Government, by issuing Ext.P12, was only giving finality to the provisional direction issued by it on account of stay order of the Supreme Court

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against the judgment of the Division Bench of this Court approving the rights of minority educational institutions to appoint Headmaster of their choice. By issuing Ext.P12, they had only relied upon the Supreme Court judgment which gives finality to the issue involved in the matter. Therefore, it could not have been said that Ext.P5 and the benefits given to the petitioner pursuant to the same was the final order. Ext. P5 order was provisional, necessarily meaning thereby that it was subject to the judgment of the Supreme Court. When the Supreme Court upheld the Division Bench judgment of this Court, the Government has necessarily to pass final orders which resulted in Ext.P12.

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That apart, upholding Ext.P5 is apparently against the well settled rights of minority institutions to appoint a Headmaster of their choice. In Rameshan v. Jayavally [2007 (2) KLT 325], a Division Bench of this Court, while holding that the Government has no power of review against an order passed in terms of Rule 92 of Chapter XIVA of KER, did not interfere with the impugned

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order on the ground that quashing the impugned order would result in survival of an illegal order. It is held as under:

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“As we have already noted, according to us the quashing of Ext.P5 and Ext.P7 would result in restoration of the orders of the Educational Authorities declining approval to his appointment which is per se illegal for other reasons and therefore we should restrain ourselves from exercising power under Art.226 of the Constitution of India.”

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The Division Bench, while arriving at the said conclusion, has derived support from the various judgments, a few of which are quoted hereunder:

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(i) Venkateswara Rao v. Government of

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Andhra Pradesh (AIR 1966 SC 828) , wherein the Supreme Court held as under:

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“If the High Court had quashed the said order, it would have restored an illegal order - it would have given the Health Centre to a village contrary to the valid resolutions passed by the Panchayat Samithi. The High Court, therefore, in our view, rightly refused to exercise its extraordinary discretionary power in the circumstances”,

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(ii) Mohammad Swalleh and Ors. v. Third Addl. District Judge, Meerut & Anr. [(1988) 1 SCC 40], wherein it is held as under:

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“It was contended before the High Court that no appeal lay from the decision of the Prescribed Authority to the District Judge. The High Court accepted this contention. The High Court finally held that though the appeal laid (sic no appeal lay) before the District Judge, the order of the Prescribed Authority was invalid and was rightly set aside by the District Judge. On that ground the High Court declined to interfere with the order of the learned District Judge. It is true that there has been some technical breach because if there is no appeal maintainable before the learned District Judge. in the appeal before the learned District Judge, the same could not be set aside. But the High Court was exercising its jurisdiction under Article 226 of the Constitution. The High Court had come to the conclusion that the order of the Prescribed Authority was invalid and improper. The High Court itself could have set it aside. Therefore in the facts and circumstances of the case justice has been done though, as mentioned hereinbefore, technically the appellant had a point that the order of the District Judge was illegal and improper. If we reiterate the order of the High Court as it is setting aside the order of the Prescribed Authority in exercise of the jurisdiction under Art.226 of the Constitution then no

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exception can be taken. As mentioned hereinbefore, justice has been done and as the improper order of the Prescribed Authority has been set aside, no objection can be taken.”

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(iii) Roshan Deen v. Preeti Lal (2002 (1) KLT SN

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37 (C.No.43)SC = AIR 2002 SC 33) , where it has been held as follows:

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“ Time and again this Court has reminded that the power conferred on the High Court under Arts.226 and 227 of the Constitution is to advance justice and not to thwart it, (vide State of Uttar Pradesh v. District Judge, Unnao & Ors., (AIR 1984 SC 1401). The very purpose of such constitutional powers being conferred on the High Courts is that no man should be subjected to injustice by violating the law. The look out of the High Court is, therefore, not merely to pick out any error of law through an academic angle but to see whether injustice has resulted on account of any erroneous interpretation of law. If justice became the byproduct of an erroneous view of law the High Court is not expected to erase such justice in the name of correcting the error of law.”

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