THOMAS ANTONY H S A (PHYSICAL SCIENCE) DARUL ULOOM Vs. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVER

JUDGEMENT

(1.) The petitioner is mainly aggrieved by the impugned action of respondents 1 to 3 in not considering him for appointment by way of promotion to the post of Headmaster in the third respondent aided school in terms of the provisions contained in Rule 44B of Chapter XIVA of the Kerala Education Rules (KER) . The facts leading to this petition are as follows :

(2.) The second respondent DEO has filed counter affidavit dated 30.11.2014, wherein it is stated that the petitioner is not a seniormost qualified High School Assistant in the third respondent school. Further it is stated that one Sri.Roy Zachariah, the aforementioned Serial No.2 of Exhibit-P1 seniority list, is the seniormost High School Assistant in the school as on the date of occurrence of the vacancy and that though he did not possess the prescribed test qualification to hold the post of Headmaster, he was earlier granted exemption from acquiring the said test qualification inasmuch as he had completed 50 years of age by taking recourse to the provisions contained in Rule 44B(2) of Chapter-XIVA KER, etc. It is thus contended in the counter affidavit of the second respondent DEO that Serial No.2 of Exhibit-P1, Sri.Roy Zachariah is also qualified for being appointed as Headmaster. The sheet anchor of the defence projected in the counter affidavit of the second respondent DEO is that the third respondent school is a minority educational institution as contemplated in Article 30(1) of the Constitution of India and that the said school has been duly recognised by the authorities concerned as the school which is entitled for the protection of Article 30(1) of the Constitution and that the third respondent management of the said school had a fundamental right under Article 30(1) to appoint any qualified High School Assistant of their choice for being promoted to the post of Headmaster of the school. Yet another contention taken in the counter affidavit of the second respondent DEO is that the third respondent Manager had approached in advance the first respondent State Government for ensuring appointment to the post of Headmaster of the school by way of deputation of a Government hand and that the Government had issued G.O.(Rt) No.2723/2014/G.Edn. dated 9.7.2014 permitting deputation of one Sri.Mohamed Iqbal Karuvally, Headmaster of Government Higher Secondary School, Pookkottur, for being appointed on deputation basis to the post of Headmaster of the third respondent school. Further it is stated that since the third respondent school has the protection of Minority Management under Article 30(1) of the Constitution of India, appointment of the third respondent as teacher-in-charge of the school pending regular appointment to the post of Headmaster is in order. It is also stated that the third respondent Manager is not obliged to fill up the post of Headmaster by merely following seniority alone and that the constitutional right has to be effectuated by permitting them to appoint any person who has qualified to be appointed as Headmaster of the school, for filling up the post of Headmaster, so long as the said incumbent is having the qualifications to hold the post of Headmaster in the school. Further that the proposed deputation of Sri.Mohamed Iqbal Karuvally, Headmaster of the abovesaid Government school as permitted in G.O.(Rt) No.2723/2014/G.Edn. dated 9.7.2014, is only a stopgap arrangement and not a permanent arrangement. It is also stated that the National Minority Education Commission constituted under the provisions of the National Minority Education Commission Act (framed by the Parliament) has also recognised minority status to the third respondent school for entitling it to the protection under Article 30(1) of the Constitution of India.

(3.) The third respondent Manager has filed counter affidavit dated 27.7.2015 wherein it is contended that the third respondent aided High School has secured recognition as a Minority Educational Institution, as per Exhibit-R3(a) proceedings dated 17.9.2012 issued by the National Commission for Minority Educational Institutions constituted as per the abovesaid Central Act. After the occurrence of vacancy in the post of Headmaster in the school on 31.2014, the third respondent Manager had submitted proposal dated 10.4.2014 before the second respondent DEO requesting for permission to post the fourth respondent herein as a teacher-in-charge of the school as per Rule 45(C) (6) of Chapter-XIVA KER and that the second respondent DEO as per ExhibitR3(b) order dated 28.4.2014 had accorded permission for the functioning of the fourth respondent to carry out the day to day duties of the school and for making treasury transactions, etc., and to carry out the day to day duties as Headmaster till the new Headmaster joins duty on deputation basis. Further it is stated that there were many complaints against the functioning of the petitioner, as referred to in Exhibits-R3(c) , R3(d) , R3(d) (a) and R3(d) (b) . Exhibit-R3(c) petition dated 29.1.2014 is the one submitted by the parent of a girl student of Standard X of the school, etc. Pursuant to Exhibit-R3(d) meeting of the school staff, a decision was taken as per Exhibit-R3(d) (a) dated 2.2014 merits of the meeting, it was recorded therein that the petitioner has apologised for the said incident, etc. However, it is relevant to note that no contentions are raised by the third respondent in his counter affidavit that Serial No.2 of Exhibit-P1 Sri.Roy Zachariah has made any claim for appointment by way of promotion to the post of Headmaster in the school in respect of the vacancy which arose on 31.2014 or that the third respondent Manager had requested the first respondent Government to effect deputation, so as to post a Government School Teacher as Headmaster in the abovesaid vacancy. However, there is an averment in paragraph</i>-5 of the said counter affidavit of the third respondent Manager that the said respondent had requested the second respondent DEO to grant permission for treasury transactions to the fourth respondent and to conduct the day to day duties of the Headmaster till the new Headmaster joins duty on deputation. But no specific averments are made in the said counter affidavit that the Manager had taken a conscious decision that the suitable and qualified feeder category hands are not available in the school for filling up the post of Headmaster and that an appointment by way of deputation of a Government School Teacher is required and necessary for filling up the said post and that request in that regard was duly taken and conveyed by the third respondent Manager to the first respondent Government much before the date of occurrence of the vacancy, etc.