Vs. The Manager, Emjay High School & Ors  INSC 465 (7 September 1998)
Ahmad, K.T. Thomas Thomas. J.
simple question in these appeals is this : Is the management of a minority
school free to choose and appoint any qualified person as Headmaster of the
school or whether such management is hedged by any legislative edict or
executive fiat in doing so? The above question arose when management of a
school sought to appoint 4th respondent (P.M. Aboobacker) as Headmaster
thereof. The school is: "Emjay Vocational Higher Secondary
Taluk Calicut District, Kerala (hereinafter referred to a 'the school').
move was stiffly resisted by the appellant who is the seniormost teacher in the
school. At his instance, the District Education Officer (DEO) interfered but of
thereupon filed a writ petition in the High Court of Kerala for a writ of
mandamus to the management of the school to appoint him as Headmaster, Learned
Single Judge of the High Court, who heard the writ petition, alllowed it and
issued a direction as prayed for by the appellant. But a Division Bench of the
High Court reversed that judgment and dismissed the write petition. Hence,
appellant has come up to this Court seeking special leave to appeal.
more facts will be advantageous to focus on the point in dispute.
was appointed as a teacher (High School Assistant - HSA - as it is called) in
the school on 3-6-1982, and in June 1991 he become the seniormost
teacher there. The post of Headmaster of the school fell vacant during that
time. None in the teaching staff of the school, including the appellant, was
qualified to be appointed as Headmaster then. One of the requisites for the
post of Headmaster, as per the relevant rules, is that he must possess a
minimum service qualification of 12 years of continuous graduate service.
Appellant would have completed the said period of 12 years only in June 1994.
Nonetheless, appellant was put in charge as Headmaster of the school with the
approval of the DEO concerned. When appellant completed the required period for
service qualification he pressed the management to appoint him as regular
Headmaster. The DEO also sent a communication to the management requesting them
"to promote and appoint a qualified seniormost HSA as Headmaster with
immediate effect". But the management, instead of acceeding to the
aforesaid request, brought 4th respondent (who was a graduate teacher having
larger period service than the appellant) from another school as per a transfer
order which was approved by the department on 5-6-1994, and appointed him as Headmaster of the school. It was then
that the appellant filed the writ petition for issuing appropriate directions
including a direction to sent 4th respondent back to the school wherefrom he
undisputed factual features are these; The school was declared by the
Government as a Muslim Minority Community School as per G.O. (RT) 2959/94/G. Edn.
It is an aided school and is governed by the provisions of the Kerala Education
Act, 1958 (for short 'the Act'). 4th respondent is qualified to be appointed as
Headmaster on the date when he was appointed as such and he has longer service
than the appellant as HSA, though he had such service in a different school. As
per the relevant rules, when a teacher is transferred from one school to
another his rank in the new school shall be fixed next below the juniormost
teacher in the school in the particular grade.
contention of the appellant is that he being the seniormost graduate teacher
should necessarily have been appointed as the Headmaster and none else. He also
contended that transfer of 4th respondent from another school was vitiated as
approval for such transfer was made on the premise that he was being
transferred to hold the post of Headmaster. The third contention is that as the
vacancy of Headmaster arose before 2-8-1994, the post should have been filled
up in accordance with Rules and the protection as minority school cannot be
used to thwart the legitimate right of the seniormost teacher.
Agency" is defined under Section 2(2) of the Act as "any person or
body of persons pemitted to estabilish and maintain any private school under
XIV of the Kerala Education Rules contains a fasciculus of Rules regarding "
Conditions of service of aided school teachers". Rule 10 which falls under
the said Chapter provides that where more than one school are under the same
Educational Agency, a teacher from one such school may be transferred to
another such school under one Educational Agency may be transferred to a schiik
under another Educational Agency with the previous approval of the DEO, and
Rule 13 stipulates that his rank in the new School "will be fixed next
below the juniormost teacher in that particular grade in that school". The
minimum service qualification for appointment as Headmaster is provided in Rule
44A. As Rule 44(1) is important it is extreacted below:
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." What happens if
the management of the school does not conform to the above rules? Section 14 of
the Act enables the Government to take over the management of schools for a period
not exceeding 5 years "whenever it appears to the Government that the
manager of any aided school has neglected to perform any of the duties imposed
by or under this Act or the rules made thereunder". But the aforesaid
action cannot be taken against a minority school because sub-section (9) of
Section 14 says that "nothing in this section shall apply to minority
schools." In the light of the scheme of the Act out above relating to
appointment of Headmaster in a minority school, we have now to consider whether
the DEO can compel the management to appoint the appellant as Headmaster of the
school. For answering the said question we have to deal with the first
contention that the school could not have claimed any protection as a minority
school before 2-8-1994, the date when Government declared
the school as a minority school. The contention, in other words, is that the
above declaration of the Government is only prospective.
"Minority School" is defined in Section 2(5) of the Act as under :
school means school of their choice established and administered, or
administered, by such minorities as have the right to do so under clause (1) of
Article 30 of the Constitution".
for both sides conceded that is no provision in the Act which enables the
Government to declare a school as minority school. If so, a school which is
otherwise a minority school would continue to be so whether Government declared
it as such or not. Declaration by the Government is at best only a recognition
of an existing fact. Article 30(1) of the Constitution reads thus:
minorities, whether based on religion or language, shall have the right to
establish and administer educational institutions of their choice." When
the Government declared the school as a minority school it has recognised a
factual position that the school was established and is being administered by a
minority community. The declaration is only an open acceptance of a legal
character which should necessarily have existed antecedent to such declaration.
Therefore, we are unable to agree with the contention that the school can claim
protection only after the Government declared it as a minority school on 2-8-1994.
will now consider the next contention that the management of a minority school
is also bound by Rule 44(1) of the Kerala Education Rules and hence the seniormost
HSA of the school should have been appointed as Headmaster.
Constitution Bench of seven judges of this Court in Re Kerala Education Bill,
1957 (AIR 1958 SC 956) has examined the constitutional validity of the Bill
which was the precursor to the Act when President of India had sought the
advice of the Supreme Court under Article 143 of the constitution. One of the
propositions laid down by the said Constitution Bench in the said decision is
this: The right guaranteed under Article 30(1) is a right that is absolute and
any law or executive direction which infringes the substance of the right is
void to be extent of infringement.
the absolute character of the right will not preclude making of regulations in
the true interests of efficiency or instruction, discipline, health,
sanitation, morality, public order and the like as such regulations are not
restrictions on the substance of the right guaranteed by the Constitution.
aforesaid proposition was approved by another Constitution Bench of this Court
in Sidhrajbhai Sabbai & ors. vs. State of Gujarat & anr. (AIR 1963 SC 540) and also by a 9 Judge Bench of
this Court in The Ahmedabad st. Xaviers College Society & anr. etc. vs.
State of Gujarat & anr. (1975 1 SCR 173).
the legal position adumbrated in Re Kerala Education Bill (supra) remains
and appointment of Headmaster in a school (or Principal of a college) are of
prime importance in administration of that educational institution. Headmaster
is the key post in the running of the school. He is the hub on which all the
spokes of the school are set around whom they rotate to generate result. A
school is personified through its Headmaster and he is the focal point on which
outsiders look at the school. A bad Headmaster can spoil the entire institution,
an efficient and honest Headmaster can improve it by leaps and bounds. The
functional efficacy of a school very much depends upon the efficiency and
dedication of its Headmaster. This prestine precept remains unchanged despite
many changes taking place in the structural patterns of education over the
important is the post of Headmaster of a school has been pithily stated by a
Full Bench of the Kerala High Court in Aldo Maria Patroni vs. E.C. Kesavan
& ors. (1964 Kerala law Times 791). Chief Justice M.S. Menon has, in a
style which is inimitable, stated thus :
post of the headmaster is of pivotal importance in the file of a school.
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 30(1) of the Constitution. To hold
otherwise will be to make the right 'a teasing illusion, a promise of
unreality'." (p.794) The importance of the key role which a Headmaster
plays in the school cannot be better delineated than that.
Nine Judge Bench in the Ahmedabad St. Xaviers Society College (supra) has
highlighted the importance of the role of Principal of a college. In support of
the majority view in that decision K.K. Mathew, J. has observed thus:
is upon the principal and teachers of a college that the tone and temper of an
educational institution depend. On them would depend its reputation, the
maintenance of discipline and its efficiency in teaching. The right to choose
the principal and to have the teaching conducted by teachers appointed by the
management after an overall assessment of their outlook and philosophy is
perhaps the most important facet of the right to administer an educational
institution." (p.270) H.R. Khanna, J has adopted a still broader view that
even selection of teachers is of great importance in the right to manage a
school. Learned Judge has stated thus:
selection and appointment of teachers for an educational institution is one of
the essential ingredients of the right to manage an educational institution and
the minorities can plainly be not denied such right of selection and
appointment without infringing Article 30(1)." (p.242) Krishna Iyer, J.
who dissented from the majority view in Gandhi Faizeam College, Shahappur vs. University of Agra & ant. (1975 3 SCR 810), has,
nevertheless, emphasised the importance of the post of the Principal in the
following words :
activist principal is an asset in discharging hrese duties which are
inextricably interlaced with academic functions. The principal is an invaluable
insider - the Management's own choice - not an outsider answerable to the
Vice-Chancellor. He brings into the work of the Managing Committee that
intimate acquaintance with educational operations and that necessary expression
of student-teacher aspirations and complatints which are so essential for the
minority institution to achieve a happy marriage between individuality and
Whatever is said about the importance of the post of Principal of a college vis-a-vis
the administration of the institution would in pari materia apply to the
Headmaster of a school with equal force.
management of the school is not given very wide freedom to choose the personnel
for holding such a key post, subject of course to the restrictions regarding
qualifications to be prescribed by the State, the right to administer the
school would get much diminished.
in this case adopted an alternative contention that the vacancy of Headmaster
should have been filled up on 1-6-1991 the
date on which the vacancy arose.
45C (Chapter XIV)of the Kerala Education Rules provides for temporary promotion
as Headmaster in the contingency when a qualified teacher is not available to
be promoted in accordance with the Rules. In such contingency the Rule says
that the appointing authority "shall promote the seniormost teacher on the
staff of the school or the schools under the Educational Agency, as Headmaster,
temporarily," A Division Bench of the Kerala High Court has taken the view
that even in a minority school appointment of Headmaster shall be with
reference to the date of vacancy arose on 2-5-1987 and none in that school was
qualified and so the management of that school brought one teacher from outside
and appointed him as Headmaster. The Division Bench thereupon held 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 2nd May
said observations were meant for a non-minority school, we would not have
considered its implications here. But as the observations are meant for a
minority school in that case we may state at once that we are unable to concur
with it. The management of a minority school is free to find out a qualified
person either from the staff of the same school or from outside to fill up the
vacancy. We may point out, in this context, that the Division Bench in Henry
Gomes's case (supra) has quoted with approval the following observation of
another earlier Division Bench decision of the same High Court in Manager
Corporate E. Agency vs. State of Kerala (1990 2 Kerala Law Times 240) "
"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 is content, reducing it to mere husk, without the grain. Such
an inroad cannot be saved as regulation which the State might impose for
furthering the standards of education.
supplied) Approval of the above observations of the earlier Division Bench
decision of the same court does not go in consonance with the direction issued
in Henry Gomez case 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
R.F. Nariman, learned senior counsel contended, alternatively, that if the
management is anxious to find out the most qualified person to fill up the post
of Headmaster the management should have advertised for the post inviting
applications from qualified persons. To butteress up the said argument learned
counsel cited a two Judge Bench decision of this Court in Shainda Hasan vs. State
of Uttar Pradesh & ors. (1990 2 SCR 699). In that case the management of a
college was selected by relaxing the qualifications the University declined to
accord approval thereto. When appellant approached this court learned judges
suggested that the University might not interfere with the selection and appointment
under the facts of that case. But no legal proposition has been laid down that
selection process must be through advertisement.
to us, it is for the management of the minority educational institution to
choose the modality for selecting the qualified persons for appointment.
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 or executive fiat would be violative
of the fundamental right enshrined in the aforesaid Article and would hence be
present case, nobody has alleged that 4th respondent does not possess the
qualifications prescribed for the post of Headmaster. If that is the position,
management has the right and freedom to appoint him as the Headmaster of the
school whether it is by brining him down from another school or even from
outside the State. We therefore concur with the conclusion of the Division
Bench of the High Court in the impugned Judgment and dismiss these appeals.