K K LALITHA W/O M M HARI Vs. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT GENERAL EDUCATION DEPARTMENT

JUDGEMENT

(1.) THE appellant in the above writ appeals was the petitioner in WP(C) No.11114 of 2004 and the 3rd respondent in WPC No.26374 of 2004. THE appellant filed writ petition seeking implementation of the orders issued by the statutory authorities to appoint her as Headmistress of St. Mary's UP School, Njarakkal. THE school represented by its Manager filed other writ petition challenging the orders of the statutory authorities. THE bone of contention is the appointment to the post of Headmistress in St. Mary's UP School, Njarakkal which vacancy arose on 1.6.2001. Suffice it to say that there had been litigations with respect to the subject matter of the appointment earlier, none of which resulted in any finding on merits. In compliance of the various orders directing consideration of the conflicting claims, the Assistant Educational Officer, Vypin passed order dated 22.11.2001 rejecting the approval to the appointment of Smt. K.A Mary, Upper Primary School Assistant as Headmistress of the school with effect from 1.6.2001. THE said order is produced as Ext.P1 in the writ petition filed by the appellant herein; wherein Smt.K.A Mary, whose approval was rejected, was impleaded as the 6th respondent. Ext.P1 order was challenged unsuccessfully by the management in appeal before the District Educational Officer, Ernakulam and Additional Director of Public Instructions (Academic, Thiruvananthapuram), and the respective orders are produced as Exts.P2 and P3 by the appellant in the writ appeal. THE writ petition was filed by the appellant after issuance of Ext.P3 order seeking implementation of Ext.P3. Subsequently, the revision filed by the management before the Government was also dismissed by Ext.P4 dated 2.8.2004, which was produced subsequently in the writ petition. THE order in revision passed by the Government was challenged by the School by a separate writ petition in which the orders in the above mentioned proceedings were produced respectively as Exts.P3, P5, P7 and P9. This Court had also granted a stay in the writ petition filed by the management.

(2.) BEFORE the learned Single Judge, the appellant urged that she was appointed as a part time Sanskrit (L.G) Teacher on 21.7.1975 and was later made full time on 15.7.1979. The appellant having obtained her graduate qualification in 1981, post graduate qualification in 1984 and B.Ed in 1987 staked her claim to the post of Headmistress in the school when a vacancy arose on 1.6.2001. The claim was made on the strength of Rule 45 of Chapter XIV A of the Kerala Education Rules( for short 'KER'). The appellant's claim was that she having five years teaching experience after acquisition of B.Ed Degree and being a graduate teacher; having service equal to half of the period of the services of the senior most under graduate teacher was to be appointed as Headmistress. The management, however, contended that the 6th respondent was appointed as the Headmistress by a valid exercise of the right of the management under Article 30(1) of the Constitution of India, since the school was recognized as a minority institution. It was also contended that the appellant being a protected hand in the school from 1998-99, she could not claim appointment as Headmistress. The latter contention of the management was sought to be repelled by the appellant on the ground that by virtue of G.O(MS) No.62/73/G.Edn. Dated 2.5.1973 she was entitled to be treated as a full time teacher for consideration of appointment as Headmistress.

(3.) BE that as it may we proceed to first consider the claim of the appellant. The proposition that the minority status does not depend upon any declaration and the effect of any such declaration made only recognizes the existing fact; which found favour with the learned Single Judge is unassailable The right to appoint a Headmaster exercising minority rights flowing from Article 30(1) has already been exercised by the management school by Ext.P2 produced in their writ petition. There being no dispute to the said fact, the next question to be addressed is as to the preferential claim made under Rule 45. BEfore addressing the effect of G.O(MS) 62/73/G.Edn. dated 2.5.1973 we will first address the question of whether the right to appoint a Headmaster/Headmistress granted to a minority institution would override the preferential claim, if any, of the appellant. The appellant would urge before us that the Division BEnch of this Court in Prasad v. Philipose Mar Dilshus U.P School(2005(3)KLT 487) has held the word "may" used in Rule 45 to mean "shall" and if there is a graduate teacher with 5 years experience and more than 50% service of the senior most non graduate teacher, then the said teacher alone should be appointed as Headmistress in preference of any teacher with SSLC/TTC.