L.M.S. SPECIAL SCHOOLS Vs. OMANA

JUDGEMENT

(1.) This Writ Appeal is filed by the Management and the Headmaster appointed by them challenging the judgment of the single Judge declaring the senior most teacher, though blind namely, the 1st respondent eligible for appointment as Headmaster in preference to second Appellant.

(2.) We have heard Adv. R.T. Pradeep appearing for the appellants and senior counsel Sri. Babu Vargheese appearing for the first respondent and Government Pleader for the remaining respondents.

(3.) The facts leading to the controversy are the following. The first appellant is a school for the blind where all the students suffer from some kind of visual disability. A vacancy of Headmaster arose as on 1.6.2002. The first appellant appointed the second appellant as Headmaster who had only 8 years of service as on the date of arising of Headmaster's vacancy. The Kerala Education Rules do not specifically provide any Special Rule for appointment of teachers or Headmaster in Special schools for the disabled students. However,Ext.P1 was issued by the Government on 22.11.1979 disentitling handicapped persons for recruitment as teachers and also for promotion as Headmasters. The post of Headmaster in first appellant's school was held by a blind person until 31.5.2002. When he retired, the first appellant decided to appoint a person without disability as Headmaster because according to them a blind person cannot function effectively as Headmaster of the school. In order to be promoted as Headmaster, a teacher should have minimum 10 years of experience as such in the school. However, it is provided in the Rule that in the absence of teachers with required period of experience any person with lesser experience above 5 years could be appointed on a working arrangement with an allowance of T 50.00 per month upto the period he acquires the required experience for regular appointment. Applying the provision contained in Ext.P1 the first appellant declined promotion to the first respondent who had 18 years of service as a teacher in the school and was eligible to be promoted, but for the disability she has that is blindness if it is a disqualification for her promotion as Headmaster. The appointment of the second appellant with less than required years of service as Headmaster under the exception clause was not approved by the D.E.O or the appellate authority, namely Director of the Public Instruction. However, on a Revision petition filed to the Government, they approved the appointment of the second appellant as Headmaster with a rider that for the first two years that is until he acquires the required experience, he will be paid only an allowance for holding charge of Headmaster and the appointment as regular Headmaster will be effective on completion of 10 years of service. The 1st respondent challenged the approval of appointment of the second appellant as Headmaster by the Government by Ext.P-11 before Single Judge who upheld the 1st respondent's claim, against which this Writ Appeal is filed. Several issues crop up for decision in this Writ Appeal and one of it is first Appellant's claim as a minority institution entitling the Manager to appoint a Headmaster of their choice. Art. 3((1) of the Constitution as rightly contended by the appellants' counsel has overriding effect over K.E.R and even Sec. 47(2) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter called the 'Persons with Disabilities Act'). However, senior counsel appearing for the first respondent submitted that Art. 30(1) has no application in this case because Minority institution in exercise of their right under the said Art. has to necessarily appoint a qualified person as Headmaster. In this case as on the date, the vacancy arose on 1.6.2002 the second appellant was not qualified to be appointed as Headmaster. The contention raised by the appellant's counsel is that when relaxation is provided in the Rules, minority institution's right to appoint Headmaster of their choice should be reckoned by combining the Rule on relaxation. We are unable to accept this contention because the position settled by various decisions of the Supreme Court is that the right to appoint a Headmaster of their choice by the minority institution does not vest in them, the right to appoint an unqualified person. The exception to the experience clause which requires 10 years service for promotion as Headmaster applies only if the school does not have any teacher qualified for promotion as Headmaster. So much so the first appellant could appoint the second appellant as Headmaster only if the first respondent or any other teacher of the school is not eligible for promotion as Headmaster.