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2001 DIGILAW 749 (KER)

A. Younus Kunju v. State of Kerala

2001-12-19

K.BALAKRISHNAN NAIR, K.S.RADHAKRISHNAN

body2001
Judgment :- Radhakrishnan , J. These appeals are preferred by the Manager of AKMHS, Mylapur and another aggrieved by the direction of Educational Authorities as well as the Government to appoint 5th respondent herein as teacher in charge. 2.Short facts which are necessary for disposal of these cases are as follows: The post of Headmaster fell vacant in the AKMHS on 31-3-97. Manager appointed 6th respondent Sasindra Babu as teacher in charge with effect from 1-4-97. District Educational Officer as per order dated 15-4-97 approved the said appointment. Aggrieved by the said order 5th respondent Ushakumari claiming to be the seniormost H.S.A. in the school filed petition before the Director of Public Instruction who is second respondent. Second respondent then passed order dated 25-7-97 stating that the action of the District Educational Officer was illegal and the same was set aside and 4th respondent was directed to appoint the seniormost qualified teacher as the teacher in charge in the post of Headmaster. 3. Manager then filed revision petition dated 19-8-97 before the Director of Public Instruction which was rejected holding that the manger is bound to follow the provisions of Rule 44 (1) of Chapter XIV-A of Kerala Education Rules. It was held that Ushakumari was the seniormost teacher and the rightful claimant for the post. Aggrieved by the said order managed filed revision petition dated 31.10.97 before the Government. Revision was dismisssed by the Government by order dated 11.6.1998. Aggrieved by the same manager has approached this court. 4. Learned single Judge found no infirmity in the orders passed by the Educational Authorities as well as the Government and dismissed the writ petition against which these appeals have been preferred. When the matter came up for hearing counsel appearing for the counsel appearing for the appellant submitted that she does not dispute the eligibility of Ushakumari for being appointed to the post of teacher in charge or as Headmistress under Rule 44 of Chapter XIV-A of K.E.R. since she being the senior most teacher in the school. Main point urged by the counsel for the appellant was that since the school is a minority institution they are entitled to get the benefit of Article 30 (1) of the Constitution of India. Main point urged by the counsel for the appellant was that since the school is a minority institution they are entitled to get the benefit of Article 30 (1) of the Constitution of India. Counsel placed reliance on the decision of the Apex Court in St.Stephen's College v. University of Delhi, AIR 1992 SC 1630, N. Ammad v. Manager, Emjay High School and others (1998) 6 SCC 674 and contended that being a minority institution Educational Authorities have no legal right to interfere with the freedom to appoint 6th respondent as the teacher in charge of the school. Counsel also assailed the finding of the Government that such a claim was not raised before the Government that such a claim was not raised before the Governement. Counsel submitted being a minority institution no declaration of the Government of its minority status is necessary for claiming the right guaranteed under the Constitution of India. Counsel also made reference to the decision of this Court in Evan's U.P. School v. State of Kerala, 2001 (1) K.L.T. 849. 5. Counsel appearing for the respondent on the other hand contended that there was no case for the Manager that it was a minority institution before any of the Educational Authorities and if such a point was raised the respondent could have raised the contention that institution was not established and is not being administered by a minority institution or individual as the case may be. The Apex Court in (1998) 6 SCC 674 (supra) has held in order to get minority status as well as benefit of Article 30 (1) of the Constitution of India no declaration is necessary. In order to get minority status under Article 30 (1) of the Constitution of India no declaration is necessary. In order to get minority status under Article 30 (1) of the Constitution of India the claimant has to establish that it is administered by minority community or individual as the case may be. A Division Bench of this Court in 2001 (1) K.L.T. 849 (supra) held in a case where dispute has been raised as to the status of the institution it is imperative that the said dispute has to be resolved by the Government. By resolving the said dispute it only recognizes the factual situation. In the instant case such a right has never been claimed by the manager before any of the authorities. By resolving the said dispute it only recognizes the factual situation. In the instant case such a right has never been claimed by the manager before any of the authorities. Under such circumstance we are of the view that educational authorities as well as the Government are justified in holding the view that Ushakumari is the rightful person to be appointed as teacher in charge of Headmaster. Under such circumstance appeal lacks merits and the same is accordingly dismissed.