ANNIE FRANCIS Vs. D EO ALUVA

JUDGEMENT

(1.) Whether the management of an educational institution established by a minority community has a right to appoint a qualified high school teacher (HSA) of its choice as headmaster without strictly looking into the seniority, claiming protection under Article 30(1) of the Constitution of India, is the main question to be decided in this case. A vacancy of headmaster arose in the second respondent's school with effect from 1.4.1999. At that time, petitioner/appellant was working as High School Assistant (Malayalam) in the second respondent's school owned by a Church. She is a graduate in Malayalam. She has passed B.Ed. and has got 19 years of service. Third respondent got inter-management transfer to the school as provided under the Kerala Education Rules. She is also fully qualified (graduation with B.Ed.) to become headmistress. She has seven years of teaching experience as UPSA and 15 years and ten month's experience as HSA. Management appointed third respondent as the Headmistress with effect from 1.4.1999 by Ext.P2(a) order dated 1.4.1999 and the matter was informed to the District Educational Officer. Even before the appointment of third respondent as headmaster, according to the petitioner/appellant, she filed Ext.P3 complaint dated 1.3.1999 apprehending that she may not get appointment. She also filed Ext.P1 complaint before the Manager. Since Ext.P3 was not considered, she approached this Court questioning the appointment of third respondent as headmistress with effect from 1.4.1999. Her contention is that she is entitled to be appointed as per Rule 44 Chapter XIVA of the Kerala Education Rules (for short 'KER') as she is senior. It is also submitted that she is also a member of the minority community and even though second respondent institution is a minority institution, the management cannot overlook her claim. The learned Single Judge dismissed the Writ Petition following the dictum of the Supreme Court in Board of Secondary Education and Teachers Training v. Joint Director of Public Instruction, Sagar and Ors., (1998) 8 SCC 555. The status of the second respondent as a minority institution was not questioned in the Writ Petition. Though it was raised in the Writ Appeal, it was not seriously pressed as the school is owned by the Church and since in her earlier representations and in the Writ Petition her contention was that second respondent institution is a minority institution. The contention of the appellant/petitioner is that she is also a member of the minority community and Article 30 of the Constitution of India will not enable the management to ignore the senior qualified candidates while giving appointment to the third respondent. It is also not disputed that the inter-management transfer was effected according to law. The only question to be decided is what is the extent of right under Article 30(1) of the Constitution vis-a-vis Rule 44 of Chapter XIV-A of KER.

(2.) It is the contention of the learned counsel for the appellant that even though Supreme Court decided the matter in (1988) 8 SCC 555 that the minority management is not bound to appoint the seniormost qualified teacher, but has right to appoint a candidate of its own choice provided he is qualified, a Division Bench of this Court took a different view in Varkey v. State of Kerala, 2005 (2) KLT 468, and all earlier Full Bench and Division Bench decisions of this Court should be held to be not good law in view of the observations of the Supreme Court in T.M.A. Pai Foundation and Ors. v. State of Karnataka and Ors., 2003 (3) KLT (SC) (SN) 118 : AIR 2003 SC 355. The learned counsel for the second respondent school submits that the decision of the Division Bench of this Court in Varkey's case (supra) is per incuriam. Various decisions of this Court and of the Hon'ble Supreme Court directly on the point explaining the very same provisions of the Kerala Education Rules on appointment of headmaster by a minority institution were not considered in Varkey's case. None of the observations in T.M.A. Pai's case (supra) expressly or impliedly overruled the earlier decisions of this Court. The impugned judgment of the learned Single Judge is based on an Apex Court decision. In Kausalya Devi Bogra v. Land Acquisition Officer, (1984) 2 SCC 325 at 332, the Supreme Court ruled in no unmistakable terms:

(3.) Rule 44(1) of Chapter XIVA of KER reads as follows: