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2005 Supreme(Ker) 320
Judges : J.B.KOSHY,K.T.SANKARAN
V.B.Prasad - Appellant
Versus
The Manager, Philipose Mar Dilshus Upper Primary School - Respondent
Case No : W.A.Nos.1163, 1523 & 1524 of 2002 & WP(C) No.35254 of 2003
Decided On : 06/07/2005
Advocates Appeared :
For the Appellant : P. Sreekumar, Advocate. For the Respondents: R3 to R5, Waheeda Babu, Government Pleader, R1, Legy Abraham, R6, M.V. Thamban, Advocates.
Headnote:
Constitution of India, Article - 30(1) - Under Article - 30(1) - Writ Appeals were filed against the common judgment passed by the learned Single Judge. filed by the manager to drop the proceedings to recover the loss suffered by the Government. exhibits mentioned therein unless otherwise stated - Held We note that the second petitioner was actually doing the work of a headmaster till her retirement. Apart from the normal work of a UPSA, supervisory work is to be done by the headmaster. In view of the above, salary paid to the second petitioner as headmistress shall not be recovered. However, fifth respondent should be appointed as headmistress with effect from 1.6.1994 even though she will not be entitled to arrears of salary for the period upto the retirement of the second petitioner. She will be entitled to all service benefits (notionally) with effect from 1.6.1994 and she will be entitled to arrears of salary from the date of retirement of second petitioner. We fully agree with the learned Single Judge. We have already held that during the period second respondent was actually working, salary cannot be denied and Government is also not at loss as we have not directed to pay arrears of salary for that period to the fifth respondent. Once Educational Authority also approved the appointment of second appellant. Hence, we cannot say that action of the management is not bona fide. Therefore, Ext.P5 notice in O.P.No.39254 of 2003 ordering recovery of alleged loss from the manager is set aside. Ext.P4 passed by the Government in O.P.No.3409 of 1999 is affirmed subject to the above directions regarding equitable relief with respect to drawal of salary. Arrears and other benefits as per the observations in this judgment should be paid to the fifth respondent who is the petitioner in O.P.No.4017 of 2002 within three months from the date of receipt of a copy of this judgment and she should be posted as headmistress and appointment order with effect from 1.6.1994 shall be issued on or before 1st August, 2005 Writ Appeals and Writ Petition -disposed.
Koshy, J.
All the three writ appeals were filed against the common judgment passed by the learned single Judge. Writ Appeal No.1163 of 2002 is filed by a party with leave as he was not a party in the original petition. W.P.(C)No.32254 of 2003 is filed by the manager to drop the proceedings to recover the loss suffered by the Government. For describing the parties, we will refer to the parties mentioned in the judgment, in O.P.No.3409 of 1999 and exhibits mentioned therein unless otherwise stated.
2. Second petitioner as well as fifth respondent and appellant in W.A.No.1163 of 2002 were members of the teaching staff in the first respondent’s school. A post of headmaster arose on 1-6-1994. The management appointed the second petitioner on 12-1-1996 with effect from 1-6-19945. The Assistant Educational Officer rejected the appointment by order dated 15-5-1995. The District Educational Officer allowed the appeal filed by the management and this Court in O.P.No.13249 of 1995 directed the District Educational Officer to reconsider the matter. The District Educational Officer approved the appointment of the second petitioner. A revision petition was filed by the fifth respondent and the revision petition was allowed on 10-9-997. The management challenged the Government order by filing O.P.No.16888 of 1997. Since the Government order passed in favour of the fifth respondent was not passed by the officer who heard the revision petition, that was set aside and the matter was remanded. Government again reconsidered the matter and directed to appoint fifth respondent as headmistrees by Ext.P4 order dated 27-1-1999 and second petitioner filed O.P.No.3409 of 1999. O.P.No.4017 of 2002 was filed by the fifth respondent for implementation of the Government order. The learned single Judge by the impugned judgment dated 8-4-2002 allowed the writ petition filed by the fifth respondent and dismissed the writ petition filed by the management and second petitioner. In the light of the above decision, fifth respondent is entitled to be appointed with effect from 1-6-1994, that is, the date of occurrence of the vacancy. Secondly petitioner retired from service on 31-9-2002. Appellant in W.A.No.1163 of 2002 approached this court contending that he has relinquished his right only if favour of the second petitioner and on her retirement, he is entitled to be appointed. Now, the question is who is entitled to be appointed as headmaster with effect from 1-6-1994.
3. It is contended by the learned counsel for the appellants that the school is a minority institution and, therefore, it has got freedom to appoint any of the qualified teachers as headmaster. Article 30(1) of the Constitution of India protects the right of the management to establish and administer the schools. Headmaster is the person who is in charge of the school and immediate management and supervision of both the teaching staff as well as the students. He has to control the discipline and it is pivotal to the administration and hence under article 30(1), the management has got freedom to appoint any qualified person as headmaster. In fact, the learned single Judge accepted that position. In various Division Bench decisions of this Court as well as in the decision of the Supreme Court in N.Ammad v. Manager. Emjay High School and Others ((1998 (6) SCC 674) interpreting the position with respect to Kerala Education Rules itself it was held that the management has got a right to choose qualified persons as headmaster of the school. The Supreme Court observed in paragraph 28 as follows:
“28. Thus the management’s right to choose a qualified person as the Headmaster of the School is well insulated by the protective cover of Article 30(1) of the Constitution and it cannot be chiseled out through any legislative act or executive rule except for fixing up the qualifications and conditions of service for the post. Any such statutory or executive fiat would be violative of the fundamental righ
