KURIAN LIZY Vs. STATE OF KERALA

JUDGEMENT

(1.) Whether the right of the management of a religious minority educational institution to choose a qualified person as Headmaster of the School would come within the protective cover of Article 30(1) of the Constitution of India and if so, can it be regulated through a legislative act or an executive rule is the question that requires adjudication by a Full Bench on a reference made by a learned Single Judge in W.P. (C) No. 37646 of 2003 and a Division Bench in W.A. No. 12 of 2006, noting an apparent conflict between two Division Bench decisions of this Court in Varkey v. State of Kerala and Annie Francis v. D.E.O., Aluva . Whereas, a Division Bench in Varkey's case (supra) held that unbridled power cannot be given to every minority institution in the matter of selection of Headmaster overlooking the claims of the other eligible teachers, the other Division Bench in Annie Francis's case (supra) held that management of a minority educational institution has got every right to appoint a qualified teacher of its choice to head, the institution without strictly looking into seniority and other aspects.

(2.) In the context of the question as framed above, it may not be necessary to indicate all the facts. Suffice it however, to mention that in W P (C) 37646 of 2003 Kurian Lizy and two others claim to be senior most High School Assistants in Infant Jesus High School, Vadayar, Kottayam District. It is their case that deviating from the statutory mandate contained to Rule 44(1) of Chapter XIV A of the Kerala Education Rules, 1959, hereinafter referred to as 'Rules of 1959', respondents have appointed Sri. Thomas Joseph, 5th respondent arrayed to the original lis, as Headmaster of the School. The District Educational Officer, the 3rd respondent herein, approved the appointment of the 5th respondent overruling the objections of the petitioners based on Rule 44(1) of the Rules of 1959 and also the decision of this Court in Manager, Mar Sleeba U.P.S. v. State of Kerala 1990 (1) KLT 626. The 3rd respondent thereafter granted approval to the appointment of 5th respondent by observing that 4th respondent has deviated from the Rules in exercise of the privilege enjoyed by the respondent-institution under Article 30(1) of the Constitution of India as a matter of discretion. It is the case of petitioners that at no point of time the minority status of the school was established and there was no declaration by the Government that the school is a minority institution. Petitioners also belong to the Church which owns the school and there cannot be any discrimination amongst the members of the minority community, even if the minority status is accepted. The issue to be decided is whether the school of the 4th respondent is a minority institution with privilege of Article 30(1) of the Constitution in the matter of appointment of Headmaster deviating from the statutory mandates contained in Rule 44(1) of Chapter XIV A of the Rules of 1959. Surely, as to whether the 4th respondent-school is run by a minority community and such status has been declared by the Government or not would be taken care of by the forum concerned. The Full Bench is concerned with the right of management of an educational institution run by a religious minority community to appoint a Headmaster of its choice or that such right is subject to Rule 44(1) of the Rules of 1959. Learned Single Bench when the matter came up for hearing, vide order dated 5th October, 2005 noting an apparent conflict between two Division Bench decisions of this Court as mentioned above and taking into consideration another decision of this Court in Dr. Varghese Mathunny v. State of Kerala and Ors. and two decisions of the Honourable Supreme Court in Brahma Samaj Education Society and Ors. v. State of West Bengal and Ors. 2004 (2) KLT 742 (SC) : AIR 2004 SCW 3189 and Sulochana Devi v. Sujatha 2004 (3) KLT SN 87 (C. No. 120) ordered that the matter be placed before the Chief Justice for appropriate orders. The matter has been ordered to be listed for decision before a Full Bench.

(3.) The facts culminating into reference to Full Bench by a Division Bench of this Court reveal that Raju Xavier, who was appointed as Headmaster of S.H.U.P School, Champakulam, Alappuzha vide order Exhibit P1, filed Writ Petition seeking declaration to the effect that he was qualified to be appointed as Headmaster of the School and the appointment, evidenced by Exhibit P1, is liable to be approved. He also sought a writ in the nature of certiorari to quash Exhibits P-9 passed by the District Educational Officer allowing the appeal filed by P. A. Thankachan challenging the approval of appointment granted to Raju Xavier and also Exhibit P-10 order passed by the Director of Public Instruction and Exhibit P-11 order passed by the Government confirming Exhibit P-9. According to the petitioner, the school belongs to the Corporate Educational Agency of C.M.I. Schools, Province of St. Joseph, Thiruvananthapuram. The vacancy of Headmaster occurred when the former Headmaster Mr. K.T. Mathai retired. Vide order dated 1-4-2003, Ext. P-1, the Manager of the School appointed him as Headmaster. He had 9 years, 11 months and 24 days service as Upper Primary School Assistant. He had passed Account Test (Lower) and K.E.R. Test qualification. P.A. Thankachan, the 6th respondent, was senior to him in the category of U.P.S.A. But, since in minority schools seniority need not be followed for making appointment to the post of Headmaster in view of judicial precedents, the Assistant Educational Officer approved the appointment of the petitioner invoking Article 30(1) of the Constitution of India. Ext.P-2 is the approved Constitution of the Corporate Educational Agency, which would show that the ownership of the schools vests With the Congregation by name 'Carmelites of Mary Immaculate' (C.M.I.). Whenever the Corporate Educational Agency makes appointment to the post of Headmaster of the schools belonging to the Agency, minority rights guaranteed under Article 30(1) of the Constitution have been exercised and seniority was never the criteria for making appointment to that post. It has been the case of the petitioner that K.T. Mathai was appointed as Headmaster vide order Ext.P3. He was not the seniormost teacher while he was so appointed. Mr. Mathai was appointed in exercise of minority rights under Article 30(1) of the Constitution. The Assistant Educational Officer approved the appointment of the petitioner. P.A. Thankachan, the 6th respondent, challenged the order aforesaid and the District Educational Officer vide order Ext. P-9 allowed the appeal. Aggrieved, the Corporate Manager challenged Ext. P-9 before the Director of Public Instruction, which was rejected by the said authority through order Exhibit P-10 adding yet another finding that the petitioner was not qualified to be appointed. The revision filed by the Corporate Educational Agency before Government challenging Ext. P-10 was also dismissed by the Government. These orders were challenged by the petitioner herein in W.P. (C) No. 15891 of 2005, which was allowed by the learned Single Judge vide order dated 10-8-2005. The operative part of the order passed by the learned Single Judge reads as follows: