MARY MARGARET.R Vs. STATE OF KERALA

JUDGEMENT

(1.) The case of the writ petitioner that she is now working as High School Assistant (H.S.A) in the high school section of the 4th respondent aided higher secondary school and that she fulfills all the qualifications and eligibility conditions as prescribed in Chapter XIVA of the Kerala Education Rules, to be promoted to the next higher category post of headmaster/headmistress. That out of the 9 teachers, who are seniors to her (from the combined/integrated seniority list of two schools coming under the corporate management of R -4 school), who are eligible to be promoted to the post of headmaster of the high school section of the 4th respondent school, only one incumbent, viz.,Sri.Girichandran, is test qualified and eligible for promotion, but that he has already relinquished his claim for appointment as headmaster of the said school as he is already holding the post of headmaster in the other school concerned viz., St.Mary's Lower Primary Girls School. That 4 senior incumbents, who had crossed the age of 50 years and eligible for exemption from the test qualification have also given their no objection, vide Exts.P -2 to P -5 in considering the petitioner for promotion to the above said post of headmaster in the high school section concerned. That 2 other seniors have already retired from service on 31.5.2016 and hence they do not have any claim and the remaining 2 are not test qualified and hence not eligible, etc. But that overlooking the better and senior claim of the petitioner, the corporate management of the 4th respondent higher secondary school had appointed contesting respondent No.5 as the headmaster of the high school section of the 4th respondent, in the vacancy caused due to the retirement of one Smt.Usha Louis. It is pointed out that the said vacancy in the post of headmaster in the high school section had occurred due to the retirement of the earlier incumbent in the post of headmaster, one Smt.Usha Louis on 30.4.2016. Aggrieved by the said appointment/promotion of contesting respondent No.5 as headmaster of the high school section concerned, the petitioner had submitted Ext.P -9 representation dated 2.5.2016 before the 2nd respondent Deputy Director of Education, Thiruvananthapuram, and had also submitted Ext.P -12 representation dated 2.5.2016 before the 3rd respondent District Educational Officer, Thiruvananthapuram, requesting that necessary directives may be issued to ensure that the manager of the school appoints the petitioner herein as the headmistress of the school and that approval is not granted to the impugned appointment of contesting respondent No.5 as the headmaster of the school and that the said representations are still pending consideration before the statutory educational authorities concerned. The sheet anchor of the petitioner's case is that the impugned appointment has been given by the 4th respondent management in favour of contesting respondent No.5 overlooking the senior claim of the petitioner and that such appointment made in deviance from the seniority requirement as laid down in the provisions of Kerala Education Act, more particularly Chapter XIVA of the said Rules, is illegal and ultra vires and requires intervention.

(2.) Contesting respondent No.4 corporate management of the school has entered appearance through their learned counsel Sri.PJ.Elvin Peter and contesting respondent No.5 (who is the appointee whose promotion is impugned) has entered appearance through Sri.T.B.Hood, learned Advocate.

(3.) The 4th respondent corporate management has sworn to a counter affidavit dated 2.6.2016 in this case for resiting the pleas in the Writ Petition. The sheet anchor of the defence of the 4th respondent management is that the 4th respondent school has been established and administered by a religious minority institution within the meaning of Art.30(1) of the Constitution of India and that therefore the said management has the fundamental right under Art.30(1) of the Constitution of India to appoint any qualified incumbent of their choice as the head of their school (headmaster), in view of catena of rulings in that regard by the Apex Court and various High Courts. More particularly, Sri.P.J.Elvin Peter, learned counsel for the 4th respondent would point out the ruling of the Apex Court in the celebrated case in Malankara Syrian Catholic College v. Jose, reported in 2007 (1) KLT 22 (SC) as also a Division Bench ruling of this Court in the case Manager, S.S.H.S., v. Lijin, reported in 2007 (3) KLT 663 and also the ruling of the Apex Court in Ammad v. Emjay High School, reported in 1998 (2) KLT 828 (SC).