IMPORTANT POINT
Management of minority educational institutions has the absolute right to appoint qualified individuals without being bound by seniority, as upheld by the court.

JUDGMENT :

(VIJU ABRAHAM, J.)

Above writ petition is filed challenging Exts.P5 and P5(a) and also Ext.P13 order.

2. The brief facts necessary for the disposal of the writ petition is as follows:-

Petitioner was appointed as Upper Primary School Teacher in the 1^st respondent school on 19.12.1990. As per Ext.P1 seniority list she is ranked No.2, whereas the 2^nd respondent is ranked No.3. As the Headmaster was due to retire on 31.05.2021 petitioner made Exts.P2 and P3 representation requesting to appoint her as Headmistress based on Rule 44 of Chapter XIV of Kerala Education Rules , 1959 (hereinafter referred to as ‘Rules, 1959’). While so, by Ext.P4 proceedings the 1^st respondent Manager individually took a decision to appoint the 2^nd respondent as Headmistress who is admittedly junior to the petitioner. Later the 1^st respondent issued Exts.P5 and P5(a) proceedings appointing the 2^nd respondent as Headmistress. In order to overlook the superior claim of the petitioner for appointment as Headmistress the 2^nd respondent relied in Ext.P5(a) that the institution is a minority institution and therefore they could make appointments ignoring the seniority of the petitioner.

3. Ext.P6 appeal was preferred by the petitioner. While so, the manager by a subsequent proceedings issued as Ext.P7, promoted the 2^nd respondent to the post of Headmistress. The Assistant Education Officer declined to approve the appointment as per Ext.P9 order in view of the delay in submitting the same for approval. Against which appeal was preferred before the Deputy Director of Education who as per Ext.P10 order condoned the delay in submitting the proposal for approval, and by Ext.P11 order the District Education Officer issued orders directing the 3rd respondent AEO to approve the appointment of the 2^nd respondent. Petitioner preferred Ext.P12 appeal before the 5^th respondent. Without considering any of the contentions in Ext.P12 appeal the 3^rd respondent AEO issued Ext.P13 order approving the appointment of the 2^nd respondent. Petitioner would contend that going by the amendment to Rule 18 of the Right of Children to Free and Compulsory Education Rules , 2011, the teachers who are otherwise eligible for being promoted as head teachers shall be exempted from passing such departmental tests, and based on the said amendment to the Rules which is produced as Ext.P14, it is contended that petitioner is exempted from passing the test qualification as per the provisions of the above said Rule.

4. One of the main contention raised by the petitioner is that the 1^st respondent Manager has personally made a choice to appoint the 2^nd respondent without relying upon any of the decision of the management, and it is contended that it is for the management committee to take a decision for appointment of the Headmaster/Principal of minority institution which is admittedly not done in the present case. Petitioner relies on Ext.P18 bye law especially clause 8 which mandates that in all the matters connected with the running of the school including appointments it is the majority decision of the management committee that is to be implemented by the Manager as per Rules. Therefore, on the basis of the same, it is contended that the decision to appoint the 2^nd respondent as Headmistress was a unilateral decision of the 1^st respondent Manager, and therefore the said appointment is bad. Going by the averment in the writ petition the essential contention raised by the petitioner is that she is the senior most teacher and therefore she is entitled for appointment to the post of Headmistress, and further that going by Ext.P14 amendment to the Rule 18 of the Right of Children to Free and Compulsory Education Rules , 2011, she is exempted from test qualification. Yet another contention raised by the petitioner is that even though the school could claim minority status the appointment of the 2^nd respondent is the sole decision of the 1^st respondent Manager and not by the management committee,