ORDER
P.N. Ravindran, J.
1. The question referred to the Full Bench for decision is 'Whether, the Manager of a U.P. School, which is admittedly a minority educational institution, can appoint a person with TTC and SSLC as Headmaster if there is a graduate teacher in the school having five years teaching experience after acquisition of B.Ed. and also having service not less than half of the service of the senior most non-graduate teacher or, the right of the Manager is confined only to selecting another junior graduate teacher with the above qualifications.'
2. This Writ Appeal arises from the judgment of the learned Single Judge in W.P.(C) No. 946 of 2005. The appellants are respondents 3 and 4 therein, the first respondent is the writ petitioner and respondents 2 and 3 are the other respondents therein. For the sake of convenience, the parties are referred to as they are arrayed in the Writ Petition. The brief facts of the case are as follows:
3. The writ petitioner, who is a post-graduate in Economics with B.Ed. degree was appointed as Upper Primary School Assistant (UPS A for short) in the third respondent's school on 24.6.1989 in a short term leave vacancy. He was regularly appointed by Ext. PI appointment order dated 9.11.1989. The said appointment was approved with effect from 9.11.1989 by the Assistant Educational Officer, Tirur by order passed on 17.3.1990. The fourth respondent who has passed the Secondary School Leaving Certificate Examination and T.T.C. Examination entered service as UPSA in the third respondent's school on 6.6.1979. The petitioner and fourth respondent have both passed the prescribed departmental tests. A vacancy of Headmaster arose in the third respondent's school on 1.5.2004 on the retirement of the incumbent, Sri P. Mohandas. Even before the vacancy arose, the petitioner staked his claim for appointment as Head master by submitting Ext.P2 representation dated 30.12.2003 to the third respondent Manager. Ignoring that request, by Ext.P3 memo dated 30.4.2004, the third respondent Manager directed the outgoing Headmaster to handover charge to the fourth respondent. The petitioner thereupon submitted Ext.P4 representation dated 30.4.2004 to the Assistant Educational Officer, Tirur wherein he requested that necessary steps may be taken to ensure that the appointment of Headmaster is lawfully made by appointing him.
4. In the vacancy of Headmaster that arose on 1.5.2004, the third respondent Manager appointed the fourth respondent by Ext.R4(f) appointment order dated 30.4.2004 with effect from 1.5.2004 and he took charge as Headmaster from the outgoing Headmaster. The third respondent Manager also forwarded the appointment order to the Assistant Educational Officer, Tirur for approval. The petitioner thereupon filed Ext.P5 representation dated 20.5.2004 before the Assistant Educational Officer, Tirur. He thereafter filed W.P.(C) No. 15963 of 2004 in this Court By Ext.P6 judgment delivered on 28.5.2004, this Court directed the Assistant Educational Officer, Tirur to consider Ext.P5 representation (a copy of which was produced and marked as Ext.P7 in W.P.(C) No. 15963 of 2004) with notice to the petitioner, the third respondent Manager and other affected parties, within one month from the date of production of a certified copy of the judgment. As directed by this Court, the Assistant Educational Officer issued notice to the parties inviting them to appear for the hearing scheduled to be held on 25.6.2004. The fourth respondent thereafter filed W.P.(C) No. 18474 of 2004 in this Court, inter alia seeking a direction to the Assistant Educational Officer to consider the question whether the educational institution is a minority institution entitled to the protection of Article 30(1) of the Constitution of India, while considering the representation filed by the fourth respondent. By Ext.P4(h) judgment delivered on 23.6.2004 this Court disposed of the said Writ Petition with a direction to the Assistant Educational Officer, Tirur to hear him and to consider his contentions also while passing orders pursuant to Ext.P6 judgment, The Assistant Educational Officer heard the parties on 25.6.2004 and passed Rxt.P7 order dated 2.7.2004 declining to approve the fourth respondent's appointment Headmaster. The Assistant Educational Officer also directed the Manager to comply with Rule 45 of Chap; XIVA of the Kerala Education Rules (KER for short), while appointing the Headmaster. The Assistant Educational Officer had in the meanwhile rejected the request of the Manager to declare the institution as a minority institution, by order passed on 23.6.2004.
5. Aggrieved by Ext.P7 order, the Manager filed an appeal before the District Educational Officer, Tirur. When the Manager did not appoint the petitioner as the Headmaster even after Ext.P7 order, he again moved the Assistant Educational Officer, Tirur by submitting Ext.P8 letter dated 2.9.2004. The Assistant Educational Officer informed the petitioner that an appeal from Ext.P7 order has been preferred by the Manager to the District Educational Officer and that it is pending. The petitioner was asked to contact the Manager. He thereupon filed Ext.P9 representation dated 8.10.2004 before the District Educational Officer, Tirur requesting for a copy of the appeal filed by the Manager. Thereafter, the District Educational Officer conducted a hearing on 27.11.2004 in which the petitioner, the third respondent Manager and the fourth respondent were heard. At the time of hearing, the petitioner submitted Ext.P10 representation reiterating his contentions and staking his claim for the post of Headmaster. By Ext.P11 order passed on 14.12.2004, the District Educational Officer, Tirur reversed the decision of the Assistant Educational Officer and held that as the educational institution is a minority institution, the appointment of the fourth respondent as Headmaster is in order. Aggrieved thereby, the petitioner filed W.P.(C) No. 946 of 2005 in this Court seeking the following reliefs;
(a) Issue a writ of certiorari or other appropriate order or direction quashing Ext. PI 1 order of the 1st respondent and also the order of appointment of the 4th respondent as Headmaster in the school w.e.f. 1.5.2004 being arbitrary and illegal;
(b) Issue a writ of mandamus or other appropriate writ, order or direction, commanding, respondents 1 to 3 to see that the petitioner is appointed as Headmaster in MDPS - UPS, Ezhur, Tirur P.O., Malappuram District, forthwith w.e.f. 1.5.2004, he being the graduate teacher with all required qualifications on the staff of the school entitled to preference for appointment as HM as per Rule 45 of Chap. XIV-AK.E.R.
(c) Issue a writ of mandamus or other appropriate writ, order or direction, commanding respondents 1 and 2 not to approve the appointment of the 4th respondent as HM of MDPS -UPS, Ezhur, Tirur. P.O., Malappuram District, w.e.f. 1.5.2004;
6. In the Writ Petition, the petitioner, inter alia, contended that even if the educational institution is a minority institution entitled to the protection of Article 30(1) of the Constitution of India, the fourth respondent, a non-graduate, cannot be appointed as Headmaster overlooking his claim in view of the stipulations in Rule 45 of Chap. XIVA of the K.E.R. He raised other contentions also. Respondents 3 and 4 filed separate counter affidavits resisting the Writ Petition and justifying Ext.P11 order passed by the District Educational Officer. The third respondent also contended that the petitioner has a history of indiscipline and irresponsible attitude towards the school, that he is quite often late and that he is in the habit of absenting himself without leave and marking the attendance register on the next day after such unauthorised absence. It was also contended that the petitioner is dishonest, is in the habit of manipulating the records and that it will be unsafe to appoint him as Headmaster of the school. The third respondent also contended that as the educational institution is a minority institution and the Manager has the freedom to choose the person to be appointed as the Headmaster, the fourth respondent was appointed as the Headmaster. He also contended that the fourth respondent who has passed the SSLC Examination, the TTC Examination and all the departmental tests is fully qualified for appointment as Headmaster. In his counter affidavit, relying on the decision of this Court in Rev. Fr.I. Daniel v. Director of Public Instruction 1965 KLT 927 the fourth respondent contended that Rules 44 and 45 of Chap. XIVA of the K.E.R. are not applicable to minority institutions and therefore his appointment is in order.
7. The learned single Judge who heard the Writ Petition overruled the contentions of respondents 3 and 4 and held that even in respect of minority institutions though the Educational Agency/Manager has the absolute freedom to choose the person to be appointed as the Headmaster, the person so chosen should be one meeting the stipulations in the statute in so far as the qualifications are concerned. Relying on the decision of a learned single Judge of this Court in Manager, Philipose Mar Dinishus U.P. School v. State of Kerala 2001 (3) KLT 23 (C. No. 31), the learned single Judge held that as Rule 45 of Chap. XIVA of the K.E.R. is a provision prescribing the qualifications for the post of Headmaster, a graduate teacher is entitled to preference-over a non-graduate, teacher. The learned single Judge also held that the decision in Rev. Fr.I. Daniel v. Director of Public Instruction (supra) was rendered at a time when Rule 45 did not stipulate any qualification and was different in form and content. It was held that as Rule 45 of Chap. XIV A of the K.E.R. as amended by GO.(P) No. 147/71/S.Edn. dated 22.10.1971 is a rule prescribing the qualifications for the post of Headmaster of an Upper Primary School, the petitioner, a graduate teacher, ought to have been appointed as the Headmaster in preference to the fourth respondent, a non-graduate teacher. The order impugned in the Writ Petition was quashed and the Writ Petition was disposed of with a direction to respondents 1 to 3 to appoint the petitioner as Headmaster in the vacancy in which the fourth respondent was appointed. Respondents 3 and 4 have aggrieved thereby filed this Writ Appeal.
8. We heard Sri Govind K. Bharathan, the learned Senior Advocate appearing for the appellants, Sri Paul Abraham Vakkanal, the learned Counsel appearing for the first respondent/writ petitioner and Smt. Anu Sivaraman, the learned Senior Government Pleader appearing for respondents 2 and 3. The learned Senior Counsel appearing for the appellants contended that as the educational institution is a minority institution, the Educational Agency/Manager has the right to choose the Headmaster and therefore, the provisions in Rules 44 and 45 of Chap. XIV A of the K.E.R. cannot be relied on or pressed into service to interfere with the choice of the Headmaster made by them. The learned Senior Counsel contended that Rules 44 and 45 of Chap. XIVA of the K.E.R. do not apply to minority institutions and that it is open to the Educational Agency/Manager to appoint a non-graduate teacher as the Headmaster. The learned Senior Counsel relied on the decision of this Court in Rev. Fr.I. Daniel v. Director of Public Instruction 1965 KLT 927, the decision of the Apex Court in N. Ammad v. Manager, Emjay High School and Ors. : 1998 (2) KLT 828 (SC) : (1998) 6 SCC 674, of a Division Bench of this Court in Annie Francis v. D.E.O., Aluva : 2005 (3) KLT 238 and the Apex Court in Secretary, Malcmkara Syrian Catholic College v. T. Jose and Ors. : 2007 (1) KLT 22 (SC) : (2007) 1 SCC 386 in support of his contentions.
9. Per contra, the learned Counsel for the first respondent/writ petitioner contended that Rule 45 of Chap. XIV-A of the K.E.R. is a rule prescribing the qualifications for the post of Head master of an Aided Upper Primary School and that even minority institutions are bound by the stipulations therein. He contended that Rule 45 of Chap. XIVA of the K.E.R. as introduced by GO.(P) No. 147/71/S.Edn. dated 22.10.1971 is different in form and content from the rule as it originally stood and therefore, the interpretation placed by a ' learned single Judge of this Court on Rule 45, as it originally stood, in Rev. Fr. I. Daniel's case (supra) has no application to the case on hand. The learned Counsel for the first respondent also relied on the decision of the Apex Court in N. Ammad's case (supra) and the decisions of this Court in Manager, Corporate E. Agency v. State of Kerala 1990 (2) KLT 240, Sadanandan v. State of Kerala 2000 (3) KLT 516), Manager, A.M.U.P. School v. State of Kerala 2001 (1) KLT 155, Prasad v. Philipose Mar Dilshus U.P. School and Kurian Lizy v. State of Kerala : 2006 (4) KLT 264 (F.B.) in support of his contentions. The learned Senior Government Pleader appearing for respondents 2 and 3 contended relying on the said decisions that Rule 45 of Chap. XIVA of the K.E.R. which prescribes the qualifications for the post of Headmaster of an Aided Upper Primary School governs minority institutions also and that the Manager of a minority institution cannot appoint a Headmaster, ignoring Rule 45 of Chap. XIVA of the K.E.R..
10. The scope and ambit of the right of the minorities to establish and administer educational institutions of their choice was first considered by a seven member Bench of the Apex Court in In Re: the Kerala Education Bill 1957 1958 KLT 465 (SC) : AIR 1958 SC 956 wherein the Apex Court held as follows:
The right to administer cannot obviously include the right to maladminister. The minority cannot surely ask for aid or recognition for an educational institution run by them in unhealthy surroundings, without any competent teachers possessing any semblance of qualification, and which does not maintain even a fair standard of teaching or which teaches matters subversive of the welfare of the scholars. It stands to reason, then, that the constitutional right to administer an education institution of their choice does not necessarily militate against the claim of the State to insist that in order to grant aid the State may prescribe reasonable regulations to ensure the excellence of the institutions to be aided.'
(emphasis supplied)
Later, a Constitution Bench of the Apex Court in Rev. Sidhrajbhai Sabbai and Ors. v. State of Gujarat and Anr. AIR 1963 SC 540 considered the type of regulations that can be imposed by the State without offending Article 30(1) of the Constitution of India. It was held that regulations made in the true interests of efficiency of instruction, discipline, health, sanitation, morality, public order and the like may undoubtedly be imposed and that such regulations are not restrictions on the substance of the right which is guaranteed; they secure the proper functioning of the institution, in matters educational. In Rt. Rev. A.M. Patroni v. E.C. Kesavan 1964 KLT 791 (F.B.) M.S. Menon, CJ. speaking for a Full Bench of this Court held as follows:
14. The post of the headmaster is of pivotal importance in the life 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. 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 Article 306(1) of the Constitution. To hold otherwise will be to make the right 'a teasing illusion, a promise of unreality'.
(emphasis supplied)
The Full Bench held that the imposition of any trammel on the right of the Educational Agency/Manager of a minority institution to choose the Headmaster, except to the extent of prescribing the qualifications and experience, cannot but be considered as a violation of the right guaranteed by Article 30(1) of the Constitution of India.
11. In The Ahmedabad St. Xavier's College Society v. State of Gujarat : (1974) 1 SCC 717 a nine member Bench of the Apex Court held that prescription of conditions of service would attract better and competent teachers and would not jeopardise the right of the management of minority institutions to appoint teachers of their choice. In Frank Anthony Public School Employees' Association v. Union of India : (1986) 4 SCC 707 the Apex Court held that prescription of conditions of service and minimum qualifications of teachers cannot be said to be violative of the fundamental right guaranteed by Article 30(1) of the Constitution of India. A Division Bench of this Court in Manager Corporate E. Agency v. State of Kerala 1990 (2) KLT 240 after a detailed analysis of the case law on the point held as follows:
36. All the same time, any choice of Headmaster, even by the minority, has to satisfy the requirements of qualifications and experience as also the essential qualities necessary for making a good Headmaster. It will always be open to the educational authorities to consider whether the appointee of the minority educational agency is one qualified, competent or experienced to be a Headmaster. Power is vested in the educational authorities, on these limited grounds, to refuse approval to any appointment of Headmaster made by the minority educational agency. All that we hold is that Rule 44 does not operate in full force against a minority educational agency, to insist that in the absence of extra-ordinary circumstances, the senior most teacher should be appointed as the Headmaster.
In N. Ammad's case (supra) the Apex Court held that the right of the management of a minority institution 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 of India and that right cannot be chiselled out through any legislative act or executive rule except for fixing up the qualifications and conditions of service for the post. The Apex Court in N. Ammad's case held as follows:
27. 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 chiselled out through any legislative act or executive rule except for fixing up the qualifications and conditions of service for the post. Any such statutory executive fiat would be violative of the fundamental right enshrined in the aforesaid Article and would hence be void.
(emphasis supplied)
12. An eleven member Bench of the Apex Court in T.M.A. Pai Foundation v. State of Karnataka : (2002) 8 SCC 481 after a detailed analysis of the case law on the point held that the State or any controlling authority can always prescribe the minimum qualifications, experience and other conditions bearing on the merit of an individual for being appointed as a Teacher or a Principal of any educational institution. The Apex Court in paragraph 161 of T.M.A. Pai Foundation (supra) held as follows:
For redressing the grievances of employees of aided and unaided institutions who are subjected to punishment or termination from service, a mechanism will have to be evolved, and in our opinion, appropriate tribunals could be constituted, and till then, such tribunals could be presided over by a judicial officer of the rank of District Judge.
The State or other controlling authorities, can always prescribe the minimum qualification, experience and other conditions bearing on the merit of an individual for being appointed as a teacher or a Principal of any educational institution.
(emphasis supplied)
13. Later, in Secretary, Malankara Syrian Catholic College v. T. Jose and Ors. (supra) a two member Bench of the Apex Court, after a survey of the case law on the point, including the decision of the eleven member Bench of the Apex Court in T.MA. Pai Foundation (supra) held as follows:
19. The general principles relating to establishment and administration of educational institution by minorities may be summarised thus:
(i) The right of minorities to establish and administer educational institutions of their choice comprise the following rights:
(a) to choose its governing body in whom the founders of the institution have faith and confidence to conduct and manage the affairs of the institution;
(b) to appoint teaching staff (teachers/lecturers and Headmasters/Principals) as also non-teaching staff, and to take action if there is dereliction of duty on the part of any of its employees;
(c) to admit eligible students of their choice and to set up a reasonable fee structure;
(d) to use its properties and assets for the benefit of the institution.
(ii) The right conferred on minorities under Article 30 is only to ensure equality with the majority and not intended to place the minorities in a more advantageous position vis-a-vis the majority. There is no reverse discrimination in favour of minorities. The general laws of the land relating to national interest, national security, social welfare, public order, morality, health, sanitation, taxation, etc. applicable to all, will equally apply to minority institutions also.
(iii) The right to establish and, administer educational instituions is not absolute. Nor does it include the right to maladminister. There can be regulatory measures for ensuring educational character and standards and maintaining academic excellence. There can be checks on administration as are necessary to ensure that the administration is efficient and sound, so as to serve the academic needs of the institution. Regulations made by the State concerning generally the welfare of students and teachers, regulations laving down eligibility criteria and, qualifications for appointment, as also, conditions of service of employees (both teaching and non-teaching), regulations to prevent exploitation or. oppression of employee, and regulations prescribing syllabus and curriculum of study fall under this category, Such regulations do not in any manner interfere with the right under Article 30(1).
(iv) Subject to the eligibility conditions/qualifications prescribed by the State being met the unaided minority educational institutions will have the freedom, to, appoint teachers/lecturers by adopting any rational procedure of selection.
(v) Extension of aid by the State does not alter the nature and character of the minority educational institution. Conditions can be imposed by the State to ensure proper utilisation of the aid, without however diluting or abridging the right under Article 30(1).
20. Aided institutions give instruction either in secular education or professional education. Religious education is barred in educational institutions maintained out of the State funds. These aided educational minority institutions providing secular education or professional education should necessarily have standards comparable with non-minority educational institutions. Such standards can be attained and maintained only by having well-qualified professional teachers. An institution can have the services of good qualified professional teachers only if the conditions, of service ensure security, contentment and decent living standards. That is, why the State, can regulate the service conditions of the employees of the minority educational institutions to ensure, quality of education, Consequently, any law intended to regulate the service conditions of employees of educational institutions will apply to minority institutions, also provided that, such, law does not interfere, with the overall administrative control of the management over the staff.
21. We may also recapitulate the extent of regulation by the State, permissible in respect of employees of minority educational institutions receiving aid from the State, as clarified and crystalised in T.M.A.Pai. The State can prescribe:
(i) the minimum qualifications, experience and other criteria bearing on merit, far making appointments.
(ii) the service conditions of employees without interfering with the overall administrative control by the management over the staff,
(iii) a mechanism for redressal of the grievances of the employees,
(iv) the conditions for the proper utilisation of the aid by the educational institutions, without abridging or diluting the right to establish and administer educational institutions. In other words, all laws made by the State to regulate the administration of educational institutions and grant of aid will apply to minority educational institutions also. But if any such regulations interfere with the overall administrative control by the management over the staff, or abridges/dilutes, in any other manner, the right to establish and administer educational institutions, such regulations, to that extent, will be inapplicable to minority institutions.
(emphasis supplied)
14. In the light of the authoritative pronouncements of the Apex Court and of this Court referred to above, minority institutions cannot be heard to contend that the rules or regulations issued by the State, prescribing the qualifications for appointment of Headmaster are inapplicable to them or that the prescription of qualifications for the post of Headmaster of an aided school, is an inroad into the right conferred on the minorities under Article 30(1) of the Constitution of India. We accordingly hold that the State is entitled to prescribe the qualifications for the post of Headmaster of aided schools established and administered by the minorities entitled to the protection of Article 30(1) of the Constitution of India and that such rules prescribing the qualifications cannot be assailed or ignored on the ground that the educational institution is a minority institution entitled to the protection of Article 30(1) of the Constitution of India.
15. We shall now consider the question whether Rule 45 of Chap. XIVA of the K.E.R. is a rule prescribing the qualifications for the post of Headmaster of an Aided Upper Primary School. Rules 44, 45 and 45B of Chap.XIVA of the K.E.R. govern the appointment of Headmaster of an Aided Upper Primary School. Rule 44 of Chap.XIV A of the K.E.R. is extracted below:
44. (1) The appointment of Headmasters shall ordinarily be according to seniority from the seniority list prepared and maintained under Clauses (a) and (b) as the case may be of Rule 34. The manager will appoint the Headmaster subject to the Rules laid down in the matter. A teacher if he is aggrieved by such appointment will have the right of appeal to the Department.
Note:- Whenever the Manager intends to appoint a person as Headmaster other than the senior claimant, the Manager shall obtain a written consent from such senior claimant renouncing his claim permanently. Such consent shall have the approval of the Educational Officer concerned.
(2) An appeal under Sub-rule (1) shall lie to the Educational Officer.
(3) A second appeal shall lie to the District Educational Officer against the order of the Assistant Educational Officer passed on an appeal preferred under Sub-rule (2). In the case of an order passed by the District Educational Officer under Sub-rule (2), the second appeal shall lie to the Deputy Director (Education).
(4) No appeal or second appeal preferred under these rules shall be entertained unless it is preferred within one month of the date of receipt of the order appealed against.
16. Rule 44 of Chap.XIV A of the K.E.R. stipulates that the appointment of Headmasters shall ordinarily be according to seniority from the seniority list prepared and maintained under Clauses (a) and (b) as the case may be of Rule 34. It is also stipulated that the Manager will appoint the Headmaster subject to the rules laid down in the matter. Rules 45 and 45B of Chap. XIVA of the K.E.R. govern the appointment of Headmaster of an Aided Upper Primary School. Rule 45 of Chap. XIV A of the K.E.R. as it originally stood is extracted below:
When the post of Headmaster of a complete Upper Primary School is vacant or when an incomplete Upper Primary School is raised to a complete Upper Primary School, those who are qualified to be. graduate teachers, if any, shall have preference over under graduate teachers for appointment as Headmaster, notwithstanding their relative seniority provided that the Graduate Teacher has put in service equal to three fourths of the period of the service of the senior most teacher.
(emphasis supplied)
Rule 45 of Chap. XIVA of the K.E.R., as substituted by G.O.(P) No. 147/71/S.Edn. dated 22.10.1971 reads as follows:
45. Subject to Rule 44, when the post of Headmaster of complete U.P. School is vacant or when an incomplete U.P. School becomes a complete U.P. School, the post shall be filled up from among the qualified teachers on the staff of the School or Schools under the Educational Agency. If there is a Graduate teacher with B Ed. or other equivalent qualification and who has got at least five years experience in teaching (after acquisition of B.Ed. Degree) he may be appointed as Headmaster provided he has got a service equal to half of the period of service of the senior most under graduate teacher. If graduate teachers with the aforesaid qualification and service are not available in the School or, Schools under, the same, Educational Agency, the senior most primary School Teacher with S.S.L.C. or equivalent and T.T.C. issued by the Board of Public Examination Kerala or T.C.H. issued by the Karnataka Secondary Education Examination Board, Bangalore or a pass in Pre-degree Examination with pedagogy as an elective subject conducted by the University of Kerala or any other equivalent training qualification prescribed for appointment as primary School Assistant may be appointed.
(emphasis supplied)
Note:- The language/specialist teachers, according to their seniority in the combined seniority list of teachers shall also be appointed as Headmaster of U. P. School or Schools under an Educational Agency provided the teacher possesses the prescribed qualifications for promotion as Headmaster of U.P. School on the date of occurrence of vacancy.
Sub-rules (1) and (4) of Rule 45B of Chap. XIVA of the K.E.R. which are relevant for the purpose of this case read as follows:
45B. (1) Notwithstanding anything contained in Rules 45 and 45A, Account Test (Lower) conducted by the Kerala Public Service Commission shall be an obligatory qualification to the teachers for promotion as Headmasters of Lower Primary and Upper Primary Schools.
(2)xxxxxx
(3)xxxxxx
(4) Teachers who have attained the age of 50 years shall stand exempted permanently from acquiring the qualification specified in Sub-rule (1).
It is common ground that both the rival claimants are qualified in terms of Rule 45B.
17. In the instant case, as the vacancy of Headmaster arose on 1.5.2004, it is the above extracted Rule 45 that governed the field. Rule 45 of Chap. XIVA of the K.E.R. quoted above stipulates that subject to the provisions of Rule 44, when the post of Headmaster of a complete Upper Primary School is vacant or when an incomplete Upper Primary School becomes a complete Upper Primary School, the post shall be filled up from among the qualified teachers on the staff of the School or Schools under the Educational Agency. The rule also stipulates that if there is a graduate teacher with B.Ed. or other equivalent qualification, who has got at least five years experience in teaching, after acquisition of the B.Ed. degree, he may be appointed as Headmaster provided he has got a service equal to half the length of service of the senior most under-graduate teacher. It is also stipulated that if graduate teachers with the aforesaid qualifications and length of service are not available in the School or Schools under the same Educational Agency, the senior most Primary School Teacher who possesses the qualifications mentioned in Rule 45 can be appointed as Headmaster. Rule 45 of Chap.XIVA of the K.E.R. has since been amended by G.O. (P) No. 22/2008/GEdn. dated 25.1.2008. Rule 45 as amended and presently inforce reads as follows:
45. Subject to Rule 44, when the post of Headmaster of a complete Upper Primary School is vacant or when an incomplete Upper Primary School becomes a complete Upper Primary School, the post shall be filled up from among the qualified teachers on the staff of the School or Schools under the Educational Agency, The person appointed as Headmaster shall have passed the SSLC or equivalent Examination with TTC issued by the Board of Public Examination, Kerala or TCH issued by the Karnataka Secondary Education Examination Board, Bangalore or a pass in Pre-degree Examination with pedagogy as an elective subject conducted by the University of Kerala or a degree in any subject and B.Ed./B.T./LT. conferred by or recognished by the Universities in Kerala or any other equivalent training qualification prescribed for appointment as Lower Primary School Assistant or Upper Primary School Assistant.
Thus, with effect from 25.1.2008, the prescription of the mandatory preference given to graduate teachers has been withdrawn. But in view of Rule 43 of Chap.XIV A of the K.E.R. we have to go by the law in force on the date of occurrence of vacancy, that is, 1.5.2004. The relevant portions of the said rule read as follows:
43. Subject to Rules 44, 45 and 51A 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 up by promotion of qualified hands in the lower grade according to seniority, if such hands are available:
xxx xxx xxx
Note - (2) Promotion under this rule shall be made from persons possessing the prescribed qualifications at the time of occurrence of vacancy.
Note 2 to the above rule codifies the well settled principle of service jurisprudence that the claim of an incumbent for promotion has to be considered with reference to the conditions that obtained on the date of occurrence of the vacancy.
18. The validity of Rule 45 of Chap. XIVA of the K.E.R. was upheld by a learned single Judge of this Court in Hameed v. State of Kerala 1992 (1) KIT 565. It was held that as the purpose sought to be achieved is educational excellence, giving preference to graduate teachers to head the institution cannot be considered discriminatory or violative of Article 14 of the Constitution of India. The very same issue was again considered by this Court in Kunjappa v. State of Kerala 1992 (2) KLT 87. It was held that if the rule making authority thought it fit that in order to discharge the duties of Headmaster of an Upper Primary School, the higher qualification of graduation with B.Ed. would be better suitable, it cannot be held that such a view is arbitrary. The learned Judge held that the higher qualification is not a criteria which has no relevance in the object sought to be achieved, namely, the better administration of a Upper Primary School. The challenge to the validity of Rule 45 was again repelled by a learned single Judge of this Court in Unnikrishnan Nambiar v. Government of Kerala 1996 (2) KLT 1010. In Sadatiandan v. State of Kerala 2000 (3) KLT 516 a Division Bench of this Court after a detailed discussion held that Rule 45 of Chap.XIV A of the K.E.R. is a valid rule prescribing the qualifications for the post of Headmaster. The Division Bench in Sadanandan's case (supra) referred to andrelied on the decisions of the Apex Court in T.R. Kothandaraman v. Tamil Nadu Water Supply & Drainage BD and Ors. : JT 1994 (6) SC 157 and State of Jammu & Kashmir v. Shiv Ram Sharma and Ors. : (1999) 3 SCC 653 to hold that higher educational qualifications can be validly prescribed for the purpose of promotion. The Division Bench in Sadanandan 's case (supra) also held that as the post of Upper Primary School Assistant and the post of Headmaster of an Upper Primary School are different and distinct and the Headmaster has administrative control, the prescription of a higher qualification for promotion to the post of Headmaster cannot be held to be invalid.
19. In Manager, Philipose Mar Dinishus U.P. School v. State of Kerala 2001 (3) KLT 23 (C.No. 31), a learned single Judge of this Court held that Rule 45 of Chap. XIVA of the K.E.R. is a provision prescribing the qualifications for the post of Headmaster. The learned single Judge held that the Manager can appoint an undergraduate teacher only if graduate teachers are not available and that a non-graduate becomes qualified for the post of Headmaster only in the absence of graduate teachers who possess, the other qualifications prescribed in the rule. On appeal, the Division Bench of this Court in Prasad v. Philipose Mar Dinishus U.P. School : 2005 (3) KLT 487 upheld the said decision. It was held that institutions run by the minorities are also bound by the regulations prescribing qualifications of teachers and Principals and that the prescription of a higher qualification for Headmaster does not make any inroad into the right conferred on the minorities under Article 30(1) of the Constitution of India. The Division Bench also held that earlier, Rule 45 only stipulated a preference to graduate teachers, but later, graduation was made the qualification. A similar view has been taken by another Division Bench of this Court in W.A. No. 1891 of 2005 wherein it was held that when a graduate teacher is available, the minority institution is not entitled to prefer an undergraduate teacher.
20. In Rev. Fr.I. Daniel v. Director of Public Instruction 1965 KLT 927, interpreting Rule 45 as it originally stood, a learned single Judge of this Court held that Rule 45 only lays down the circumstances under which a graduate teacher will be entitled to preference for appointment to the post of Headmaster in a school where there are non-graduate teachers senior to him. The learned Judge held that Rule 45 (as it then stood) has nothing to do with the qualifications necessary for appointment as Headmaster, as envisaged by the Full Bench A.M. Patroni's case (supra). It was held that as the Manager has got the fundamental right to appoint any person as the Headmaster, Rule 45 will not stand in the way of the Manager from appointing a non-graduate as the Headmaster. The same view was taken by another learned single Judge of this Court in Rt. Rev. Dr. Aldo Maria Patroni v. Assistant Educational Officer, Tellicherry and Ors. 1974 KLT 78. In our opinion, Rule 45 of Chap. XTVA of the KE.R. as substituted by GO.(P) No. 147/71/S.Edn. dated 22.10.1971 is not a rule laying down the circumstances under which a graduate teacher is entitled to preference over a non-graduate teacher for appointment to the post of Headmaster. Rule 45 can be split up into three parts. The first part provides for the manner in which the post of Headmaster has to be filled up. The second part deals with the qualifications which the appointee should possess, namely, graduation with B.Ed. degree or other equivalent qualification with at least five years teaching experience after acquiring the B.Ed. degree and a service equal to half the length of service of the senior most under-graduate teacher. The third part provides that if such a graduate teacher is not available, then the senior most Primary School Teacher possessing the qualifications prescribed therein can be appointed. Rule 45 of Chap. XIVA of the K.E.R. which was in force during the period from 22.10.1971 to 25.1.2008 is thus in our opinion, a rule which prescribes the qualifications for the post of Headmaster of an Upper Primary School and not merely a rule giving preference to a graduate teacher. As per the said rule, only a graduate teacher with B Ed. or other equivalent qualification, who has got at least five years' teaching experience after acquisition of the B.Ed. degree alone can be appointed as the Headmaster if he has a service equal to half the length of service of the senior most under-graduate teacher. If such a graduate teacher is available, an under-graduate teacher cannot be appointed as Headmaster. If such a graduate teacher is not available, then, under-graduate teachers are eligible to be appointed. On the terms of Rule 45 as substituted by the Government order dated 22.10.1971 it cannot therefore be said that Rule 45 has nothing to do with the qualifications for appointment as Headmaster of an Upper Primary School. However, on and with effect from 25.1.2008 the prescription of graduation as a mandatory preferential qualification has been deleted. Thereafter, the Manager can appoint an under-graduate teacher as the Headmaster.
21. As noticed earlier, it is now settled law that the State can prescribe the qualifications, experience and other conditions bearing on the merit of an individual for being appointed as Teacher or Principal of aminority educational institution. The validity of Rule 45 of Chap. XIVA of the K.E.R. has been upheld by this Court in a series of decisions including the decision of the Division Bench of this Court in Sadanandan v. State of Kerala 2000 (3) KLT 516. Therefore, even in regard to its applicability to minority institutions, Rule 45 is valid and operates with full force. Then the only question is whether the right of the minority institution to appoint a Headmaster of its choice is in any way curtailed or defeated by Rule 45. It is now well settled by a series of decisions of this Court and of the Apex Court that Educational Agency/Manager of a minority institution is entitled to appoint a teacher of their choice who possesses the requisite qualifications as the Headmaster. It has also been held that Rule 44 of Chap. XIVA of the K.E.R. which stipulates that the appointment of Headmasters shall ordinarily be according to seniority does not operate with full force in respect of minority institutions. The right of the Educational Agency/Manager of a minority educational institution to choose the junior or even to bring in an outsider as the Headmaster is also now well settled. The only trammel on that right of the minorities is that exercising that right they cannot appoint an unqualified person as the Headmaster. Necessarily therefore, if graduate teachers who possess the qualifications prescribed in Rule 45 are available in the school, the Educational Agency/Manager of a minority educational institution will have the right to appoint only one among them ignoring the rule of seniority as the Headmaster. It is only if graduate teachers are not available, that the management of a minority educational institution can appoint anyone among the under-graduate teachers who possesses the prescribed qualifications as the Headmaster.
We accordingly hold that the Educational Agency/Manager of a minority Upper Primary School cannot appoint an under-graduate teacher as the Headmaster if there is a graduate teacher in the school possessing the qualifications prescribed in Rule 45 of Chap. XIVA of the K.E.R. and that the Educational Agency/Manager is bound to appoint a graduate teacher as the Headmaster. We however clarify that with effect from 25.1.2008, the Educational Agency/Manager has the right to appoint an undergraduate teacher as the Headmaster of an Aided Upper Primary School, even if there is a senior graduate teacher.
Registry is directed to post the Writ Appeal for hearing before the Division Bench as per the roster.