Henry Gomez v. Government of Kerala — 1993 DIGILAW 463 (KER)

Judgment :- Sreedharan, J Writ Appeals 222/93 and 376/93 arise out of O.P.No.6999/88. Petitioner in the O.P. is the appellant in Writ Appeal No.222/93. Respondents 5 and 6 therein namely the Manager of the School and the teacher who was appointed by the Manager as the Headmaster are the appellants in Writ Appeal No. 376/93. The Manager and its appointee, Headmaster, filed O.P.No.6787/88. In that O.P., the petitioner in O.P. 6999 of 1988 was the third respondent. This original petition was disposed of by the learned judge along with O.P.No.6999/88 by a common judgment. Petitioners in O.P.6787/88 have preferred Writ Appeal No.288/93 and the third respondent Writ Appeal 258/93. Since same issues arise in these appeals arising out of two original petitions disposed of jointly, we consider it advantageous to dispose of these appeals by a common judgment. 2. The short facts necessary for the disposal of these appeals are as follows:-The post of Headmaster in St. Joseph's High School, Trivandrum became vacant with effect from 2-5-87. The management appointed Fr.Ephrem Thomas as the Headmaster. He was not qualified to be appointed as Headmaster of the school on 2-5-87. Sri.Henry Gomez, a High School Assistant working in the school, was the senior-most teacher in the school qualified to be appointed as Headmaster. Appointment of Fr.Ephrem Thomas was not approved by the District Educational Officer. Against this order, the management and Fr.Ephrem Thomas went in appeal before the Deputy Director of Education. By order dated 2-2-88, that appeal was dismissed. The issue was taken up in second appeal before the Director of Public Instruction. While the appeal was pending, Fr.Ephrem became qualified with effect from 4-6-87 for being appointed as Headmaster. Taking note of this fact, the Director by order dated 23-5-88, allowed the second appeal and ordered the District Educational Officer to approve the appointment of Fr.Ephrem Thomas with effect from the date on which he became qualified for promotion to the post of Headmaster. Management thereupon issued an appointment order in favour of Fr.Ephrem Thomas posting him as Headmaster with effect from 4-6-87. Consequently the District Educational Officer approved the appointment of Fr.Ephrem Thomas as Headmaster with effect from 4-6-87. Aggrieved by the said developments, Sri.Henry Gomez preferred a revision petition before the Government questioning the appointment of Fr.Ephrem Thomas as Headmaster and the approval granted to him with effect from 4-6-87. Consequently the District Educational Officer approved the appointment of Fr.Ephrem Thomas as Headmaster with effect from 4-6-87. Aggrieved by the said developments, Sri.Henry Gomez preferred a revision petition before the Government questioning the appointment of Fr.Ephrem Thomas as Headmaster and the approval granted to him with effect from 4-6-87. During the pendency of that revision petition, Sri.Henry Gomez retired from the service on superannuation on 14-7-88. The revision petition was disposed of by Government by -G.O.(MS) No.129/88/G.Edn. dated 12-8-88 holding that Sri.Henry Gomez will be deemed to have been promoted as Headmaster with effect from 2-5-87, that he will not be entitled to Headmaster's pay and that his pension will be fixed as if he had been paid as Headmaster between 2-5-87 and 14-7-88. It was further ordered that Sri.Henry Gomez will not be eligible to claim that he should continue as Headmaster till the close of the academic year 1988-89 in order to avoid disruption in the middle of the year that may be caused because of his re induction in the middle of the academic year. Henry Gomez questioned this order of the Government by filing O.P.6999/88 on the ground that he was entitled to be paid the arrears of salary for the period for which he has been found entitled to hold the post of Headmaster. Since the appointment of Fr.Ephrem Thomas with effect from 4-6-87 was interfered with by the Government, the management and Fr.Ephrem Thomas approached this court by filing O.P.No.6787/88. 3. While disposing of the original petitions by a common judgment, the learned single judge took the view that Government was wrong in appointing Sri.Henry Gomez as Headmaster of the school with effect from 2-5-87 because it is the privilege of the management which is entitled to the protection under Art.30(1) of the Constitution of India. Management was thereupon directed to appoint Headmaster as on 2-5-87 from among the teachers who were then qualified to hold the post. While doing so, it was ordered that the management should consider the claims of Sri.Henry Gomez for the post. This decision is under challenge in these appeals. 4. Management was thereupon directed to appoint Headmaster as on 2-5-87 from among the teachers who were then qualified to hold the post. While doing so, it was ordered that the management should consider the claims of Sri.Henry Gomez for the post. This decision is under challenge in these appeals. 4. Rule 44A of Chapter XIV(A) of K.E.R. prescribes the minimum service qualification for appointment as Headmaster of a High School as 12 years of continuous graduate service with a pass in the test in Kerala Education Act and the Kerala Education Rules and in Account Test (Lower) conducted by the Public Service Commission. Fr.Ephrem Thomas did not have 12 years of continuous graduate service as on 2-5-87 when the vacancy of Headmaster arose in the school. But the management appointed him as the Headmaster. That appointment was not approved by the District Educational Officer. Nor was the request of the management in this regard accepted by the Deputy Director. In second appeal the Director found that Fr.Ephrem Thomas became qualified on 4-6-87and that his appointment as Headmaster can be approved with effect from that date. Consequently the Director ordered the District Educational Officer to approve the appointment of Fr.Ephrem Thomas with effect from 4-6-87. This was interfered with by the Government by its order dated 12-8-88 presumably on the ground that the vacancy that arose on 2-5-87 could not be filled up by a teacher who became qualified only on 4-6-87. At the same time, Government ordered the management to appoint Sri.Henry Gomez as Headmaster for the period from 2-5-87 to 14-7-88 on which dale he completed the age of superannuation. 5. The right of the management, which is entitled to the protection of Art.30(1) of the Constitution to appoint Headmasters of its choice irrespective of seniority in educational institution established and administered by it, has been recognised by this court and the Supreme Court. A Full Bench of this court in Rt.Rev.Aldo Maria Patron v. E. C. Kesavan & Others, 1964 KLT 791 observed: "The post of the headmaster is of pivotal importance in the file of a school. Around him wheels the tone and temper of the institution; on him depends the continuity of its traditions, the maintenance of discipline and the efficiency of its teaching. Around him wheels the tone and temper of the institution; on him depends the continuity of its traditions, the maintenance of discipline and the efficiency of its teaching. The right to choose the headmaster is perhaps the most important facet of the right to administer a school; and we must hold that the imposition of any trammel thereon-except to the extent of prescribing the requisite qualifications and experience-cannot but be considered as a violation of the right guaranteed by Art.30(1) of the Constitution. To hold otherwise will be to make the right "a teasing illusion, a promise of unreality.' This view has been endorsed by another Full Bench I Rev. Mother Provincial & Others v. State of Kerala & Others, 1969 KLT 749 while dealing with the colleges of minority institutions. Observations made by the Supreme Court in ST. Xaviers College v. State of Gujarat; AIR 1974 SC 1389 and in Gandhi Faiz-e-am College, Shahjahanpur v. University of Agra & others, AIR 1975 SC 1821 also supports the above conclusion. A Division Bench of this Court in Manager Corporate E. Agency v. State of Kerala, 1990 (2) KLT 240, following the above decisions also took the view that the right to appoint the Headmaster of a school or the Principal of a College run by a minority institution vests with the management. The Bench observed: "The right to appoint the Headmaster of a school or the Principal of a College, is one of prime importance in the administration of the institution. The right of the minority to administer an educational institution of its choice requires the presence of a person in whom they can repose confidence, who will carry out their directions, and to whom they can look forward to maintain the traditions, discipline and the efficiency of the teaching. When once the pivotal position of the Headmaster is recognised, it has to be held that the right to appoint a person of its choice as Headmaster is of paramount importance to the minority, any interference with which (otherwise than by prescribing qualifications and experience) will denude the right of administration of its content, reducing it to mere husk, without the grain. Such an inroad cannot be saved as a regulation which the State might impose for furthering the standards of education." In the light of this legal position, we have no hesitation in holding that Government made an inroad into the right of management when it ordered Sri.Henry Gomez to be appointed as Headmaster in the vacancy that arose on 2-5-87. This view taken by the learned single judge is perfectly legal and it calls for no interference. 6. It is the common case of parties that vacancy of Headmaster arose on 2-5-87. On that date Fr.Ephrem Thomas was not having the requisite qualification in the sense that he had not completed 12 years of continuous graduate service. He acquired that qualification on 4-6-87. Now the question that arises for consideration is whether the management was justified in keeping the post of Headmaster vacant till 4-6-87 to enable Fr.Ephrem Thomas to acquire qualification and then to appoint him with effect from 4-6-87. 7. A Full Bench of this Court in the decision in James Thomas v. Chief Justice, 1977 KLT 622, expressed the view that the general rule is that claims for promotions I are to be decided upon with reference to the time of occurrence of vacancies and not the time of making the appointments. The relevant date must be definite and not depend upon the volition of the authorities. Otherwise the determination on the claim for promotion would be arbitrary. If the qualification is to be decided with reference to the date of promotion, it will certainly lead to arbitrary exercise of power. Another Full Bench of v this Court in Varghese & others v. State of Kerala & Ors. 1981 KLT 458 went into the question as to what should happen in a situation where there was none qualified on the date of occurrence of the vacancy and a junior becomes qualified subsequently. It took the view that there will be no difference whether the vacancy existed already or the vacancy occurred after the junior became qualified. If there was a vacancy as and when a person becomes qualified for being promoted to such vacancy, he would be entitled to be considered for promotion to that vacancy. It took the view that there will be no difference whether the vacancy existed already or the vacancy occurred after the junior became qualified. If there was a vacancy as and when a person becomes qualified for being promoted to such vacancy, he would be entitled to be considered for promotion to that vacancy. If there was no vacancy when a person becomes qualified for promotion and vacancy arose while he would remain qualified, his case for promotion is to be considered as and when vacancy arose. The Bench observed: "The relevant date must be definite and not depending upon the volition of the authorities as otherwise the determination would be arbitrary. If it were to be the date of promotion that is to be relevant for determining the title to such promotion the rule is capable of-arbitrary exercise. Even if it is honest exercise that would be arbitrary because the fate of the service career will depend in each instance upon the time taken by the concerned authority, in passing the order of promotion. On the other hand, there is definiteness in treating the dale of occurrence of the vacancy as that which would determine the title of the person to be considered for promotion." A still later Full Bench of this court in Padmanabhan Nair v. Dy.Director, 1991 (1) KLT 337 went into the question as to how the vacancy of Headmaster is to be filled up. Regard being had to the provisions contained in R.44A of Chapter XIV(A) of K.E.R. The Full Bench look the view that when qualifications are prescribed for a promotion post, eligibility for appointment to that post has to be reckoned with reference to the date on which the vacancy arose. If there was a qualified hand, on that date, he is entitled to"' be considered for appointment to the post in preference to his unqualified colleagues. The Bench also took the view that the date on which promotion is actually made is immaterial as the title to the appointment arises on the date of occurrence of the vacancy. In the light of the above mentioned three Full Bench decisions which are binding on us, we have no hesitation in holding that the management should have filled up the vacancy of Headmaster which arose on 2-5-87 on the basis of the qualification of claimants as on that dale. In the light of the above mentioned three Full Bench decisions which are binding on us, we have no hesitation in holding that the management should have filled up the vacancy of Headmaster which arose on 2-5-87 on the basis of the qualification of claimants as on that dale. It is established beyond any doubt that Fr.Ephrem Thomas was not qualified to be considered for the post of Headmaster on the date of occurrence of the vacancy namely, 2-5-87. By delaying the appointment to 4-6-87, the management cannot favour Fr.Ephrem Thomas by giving him the post of Headmaster. 8. Learned counsel representing the management tried to bring out a case that promotion to the post of Headmaster need not be with reference to the qualification as on the date of the occurrence of the vacancy. In support of this contention, he sought to rely on the so-called difference between R.44 and 44 of Chapt.XIV(A) of K.E.R. According to counsel, while Note (2) of R.43 states that promotion under that rule shall be made from persons possessing the prescribed qualifications at the time of occurrence of vacancy, R.44 dealing with the appointment of Headmasters does not contain any such Note or provision. On this basis, it was contended that the management need consider the qualification of the teacher as on the date of appointment and not with reference to the date of occurrence of vacancy. Learned counsel in support of this argument placed before us the following observations made by a learned single judge in Radhakrishna Kamath v. Cochin T.D. Corporation, 1976 KLT SN.14 Case No.31. "The Headmaster's retirement could take effect as per the rules only from the closing of the school for the academic year. There is no statutory rules or orders which prescribe that on the date of retirement itself the new Headmaster should be appointed. The third respondent was appointed within a reasonable period as Headmaster. There is no rule like R.28(bb) of the Kerala State and Subordinate Service Rules in this connection which states that the qualifications should be as on the date of occurrence of the vacancy and not on the date of the appointment." According to learned counsel, in the instant case, eventhough vacancy arose on 2-5-87, Fr.Ephrem Thomas became qualified within a reasonable time i.e. on 4-6-87 and his appointment is not to be faulted. We find no legal basis for this argument. We find no legal basis for this argument. Rule 43 of Chapter XIV(A) of K.E.R. states that subject to Rr.44 and 45 and considerations of efficiency and any general order that may be issued by the Government, vacancies in any higher grade of pay shall be filled upby promotion of qualified hands in the lower grade, according to seniority, if such hands are available. When this provision itself says that it is subject to Rr.44 and 45, according to us, Rr.44 and 45 must also be understood in the light of the provisions contained in R.43. As per R.44, the appointment of Headmasters shall ordinarily be according to seniority from the seniority list of teachers. R.43 says that promotion must be by qualified hands in the lower grade according to seniority. R.44 gives emphasis only to seniority and as to how the seniority is to be decided. The Note (2) to R.43 makes it abundantly clear that the promotion shall be with reference to the qualification at the time of the occurrence of the vacancy. A combined reading of Rr.43 and 44 can only have the effect of stating that promotion to the higher cadre should be based on the qualification and seniority at the time of occurrence of vacancy. This can only be the interpretation in view of the three Full Bench decisions referred to earlier. Consequently we are of the view that the observations made by the learned Single Judge In Radhakrishna Kamath v. Cochin T.D. Corporation, 1976 KLT SN 14, Case No.31, cannot be considered as laying down the correct proposition. 9. The result of the above discussion is that the management is bound to find out a qualified teacher from among the members of its staff to be posted as Headmaster of the school in the vacancy that arose on 2-5-87. Fr.Ephrem Thomas cannot be considered for that vacancy as he was not having the requisite qualifications. Fr.Ephrem Thomas can be considered for the post of Headmaster only against any vacancy that arises subsequent to the date of his acquisition of the qualification. The view that is taken in this regard by the learned single judge is perfectly legal and we endorse the same. In view of what has been stated above, we find no merit in these appeals. They are accordingly dismissed.