Writ Petition is filed for issuance of Writ of Certiorarified Mandamus calling for the records relating to the impugned order dated 14.09.2017 passed by the 3rd respondent in Ref.No:PRO/2017-2018/08 and quash the same as illegal and consequently direct the 3rd respondent to give promotion to the petitioner as a Headmaster in the 4th respondent School.
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2. The case of the petitioner is as follows: 2(a) According to the petitioner, he was appointed as B.T.Assistant in 4th respondent School in the year 1993 and he was discharging his duties without any blackmark and unblemished service to the satisfaction of his superior and management. While he was working as B.T.Assistant, the then Headmaster M.Jeyasingh Cruz Angelus was suspended on 25.01.2016 and subsequently the petitioner was appointed as Headmaster in-charge on 25.01.2016, as he was the senior most graduate teacher in the 4th respondent School. The petitioner was appointed as Headmaster in-charge until further orders and he was discharging his duties as Headmaster.
2(b) While so, the petitioner went on medical leave from 16.10.2016, after applying and obtaining permission for the same. In the absence of petitioner, the 5th respondent was appointed as Headmistress in-charge. The petitioner joined duty on 15.11.2016, after completion of his medical leave. He was not posted as Headmaster in-charge and he made a request on 25.02.2017 in this regard to the respondents. In the mean time, the then Headmaster 3/29 http://www.judis.nic.in W.P.(MD).No.17636 of 2017 who was suspended on 25.01.2016, attained the age of superannuation. The petitioner, as a senior most teacher, submitted application on 02.04.2017 seeking to promote him as Headmaster in the existing vacancy. According to the petitioner, he is having all eligible qualification and required number of services and satisfies all the requirements of management. While the petitioner was bonafidely expecting to be promoted to the said post, to his shock and surprise, the 3rd respondent, by the impugned order dated 14.09.2017, promoted the 5th respondent as Headmistress of the 4th respondent School. According to the petitioner, the said order is illegal and against the provisions of Tamil Nadu Recognized Private Schools Act and Rules. Hence, the petitioner has approached this Court to quash the impugned order dated 14.09.2017 passed by the 3rd respondent and for a direction to the 3rd respondent to give promotion to the petitioner as Headmaster in the 4th respondent School.
3. The learned counsel appearing for the petitioner contended that the impugned order has been passed without giving any reason for choosing the 5th respondent as Headmistress in the 4th respondent School. The impugned order is illegal, non-speaking order and the same is liable to be set aside. The respondents herein ought to have followed the procedures contemplated under Rule 15(4) of Tamil Nadu 4/29 http://www.judis.nic.in W.P.(MD).No.17636 of 2017 Recognized Private Schools Act and Rules. The impugned order does not satisfy the said requirements contained in Rule 15(4) of Tamil Nadu Recognized Private Schools Act and Rules. The promotion shall be made only based on merits and ability among qualified teachers. The 5th respondent is facing criminal case in Crime No.41 of 2016 on the file of Thattarmadam Police Station, Tuticorin District on a complaint given by one of the student of the said School with regard to behavior of the 5th respondent. The complaint highlights the ability of the 5th respondent in dealing with students and their problems and the 5 th respondent does not satisfy the criteria of ability. In the absence of merits and ability, the appointment of 5th respondent is illegal and unsustainable. As per Rule 15(4) of Tamil Nadu Recognized Private Schools Act and Rules, the management ought to have considered the merits of both the candidates and prepared a chart. In the present case, without giving the merits and demerits of both the candidates, the 3rd respondent passed the impugned order. The 3rd respondent did not obtain any prior permission from the respondents 1 & 2 before passing the impugned order.
4. The petitioner filed additional affidavit. 4(a). The learned counsel appearing for the petitioner contended 5/29 http://www.judis.nic.in W.P.(MD).No.17636 of 2017 that the 4th respondent School is a non-minority School and the respondents 3 and 4 have not produced any material to show that the 4th respondent School is a minority School. The 3rd respondent has described him as a Corporate Manager only to promote the 5 th respondent as Headmistress, while the 4th respondent School is a single unit. The 4th respondent changed his designation without any order from the Court or department as Corporate Manager. The 3rd respondent, only to promote the 5th respondent as Headmistress of the 4th respondent School, changed his designation as Corporate Manager. The order appointing the petitioner as Headmaster in-charge was issued by the Manager of R.C.Schools, Tuticorin Diocese. While the promotion order issued to the 5th respondent was in the name of Educational Agency, an NGO, namely “The Tuticorin Diocesan Association” (Reg.No.S1/37-38 dated 14.04.1937). Using different designation and agency is controversial and against law.
4(b). The learned counsel for the petitioner referred to judgments passed by a Full Bench of Principal Bench of this Court in W.A.Nos.275 and 1037 of 1989 and contended that the 4th respondent School and 3rd respondent is not minority Corporate Management recognized by the Authorities. It is the further contention of the learned counsel for the petitioner that the judgment passed by the Principal Bench of this Court 6/29 http://www.judis.nic.in W.P.(MD).No.17636 of 2017 in W.A.No.606 of 2009 dated 03.09.2010 confirmed that minority institutions also should follow and consider the seniority in the matter of promotion. It was further held that right given to the minority institution is to administer the institution and administration does not mean mal-administration. The respondents 1 and 2 do not have any document to show that 4th respondent is a minority institution. The respondents 1 and 2 are treating the 4th respondent School as minority institution on the basis of self-made declaration dated 13.07.2004 made by one Fr.M.Irudhaya Raja, alleged to be Superintendent of R.C.Schools, South Zone, Vallioor. The statement given by Fr.M.Irudhaya Raja is false and fabricated one. The 2nd respondent by his letter dated 13.08.2016 bearing Na.Ka.No.3930/B4/16, instructed all 15 Schools under his jurisdiction including the 4th respondent School to submit the minority certificate on or before 17.08.2016. No School including the 4th respondent has submitted the said certificate. The 5th respondent is the sister-in-law of one Augustine Geetha Raj, who is the legal advisor of 4th respondent School Management and also legal advisor of Interview Committee. Only under his influence, the 5th respondent was promoted as Headmistress of the 4th respondent School.
4(c). The learned counsel for the petitioner relying on Para 14 of the judgment of the Hon'ble Apex Court in Civil Appeal No.1257 of 2017 7/29 http://www.judis.nic.in W.P.(MD).No.17636 of 2017 dated 31.01.2017, which reads as follows -
“... Grievance of a citizen that he was treated unfairly cannot be ignored on the ground that a minority institution has autonomy or right of choice. Exercise of right of choice has to be fair, non-discriminatory and rational.” contended that exercise of right of choice by minority institution has to be fair, non-discriminatory and rational. Based on the above pleadings, the petitioner has raised additional grounds and prayed for allowing the Writ Petition.
4(d). The learned counsel for the petitioner in support of his contention, relied on the following judgments of the Hon'ble Apex Court. Reported in (2017) 3 SCC 619, [Ivy C.da.Conceicao Vs. State of Goa and others], wherein at paragraph Nos.11 and 12, it has been held as follows:
“...11.In Full Bench judgment of the Kerala High Court in Belsi M. v. Corporate Management of Latin Catholic Schools, Diocese of Neyyattinkara[2] the question considered was: whether the judgment delivered by this Court in T. Jose (supra) dispensed with the requirement of fair procedure in selecting headmaster of a school. The Full Bench held that the autonomy under
Article 30 was not in conflict with the requirement of fair procedure, in the matter of selection of a headmaster/principal. It was held :
http://www.judis.nic.in W.P.(MD).No.17636 of 2017 “....So, We find it difficult to accept the view canvassed by the learned counsel for the management that the direction to follow a fair procedure in the matter of selection of teachers for appointment to the post of Headmaster, will have the effect of diluting the right of the minorities to administer their institutions, guaranteed by
Article 30(1) of the Constitution of India. The Manager is a statutory authority under the Kerala Education Act. He is conferred with certain powers, rights and duties. Every power conferred on a statutory authority has to be exercised fairly and reasonably. It is an implied limitation on the power of every statutory functionary. The Manager has the power to take disciplinary action against an erring teacher, but he cannot take action against a teacher for being red-haired.
Likewise the Manager of a minority educational institution cannot say that he will select the Headmaster by holding a test of 100 metres race and person who comes out first in the said race will be appointed as Headmaster. If such a procedure is followed, the same will be condemned as ultra vires, being arbitrary and irrational. The power to administer does not include the power to maladminster. The power to make selection does not take in its fold the power to follow an unfair procedure in making the selection. In this context, we refer to the decision of the House of Lords in Roberts v. Hopwood – 1925 AC 578. It was a case where the Poplar Borough Council substantially increased the wages of its employees, on the ground that the Council was authorised to grant wages it thought fit. The auditors objected. The matter finally reached the House of Lords, The House held that the power to grant such wages the Borough Council thinks fit, is subject to the implied limitation that it can pay only reasonable wages, even though the word “reasonable” is not present in the enabling statute. What is stated by the House of Lords is a well-settled principle of Administrative Law. This decision has been referred to with approval by the Hon'ble Supreme Court in Delhi Science Forum v. Union of India 1996 (2) SCC 405. So, the Full Court in Kurian Lizy (supra) only reminded the duty of a statutory functionary that while he overlooks the rights of seniors, 9/29 http://www.judis.nic.in W.P.(MD).No.17636 of 2017 he may follow a fair procedure. We have no doubt in our mind that the said direction can definitely stand with the decision in Malankara Syrian Catholic College (supra). The said decision does not impliedly overrule the decision in Kurian Lizy (supra). So, the observation of the Division Bench in Lijin (supra) that Kurian Lizy (supra) cannot stand with Malankara Syrian Catholic College (supra) is not tenable.”
12. It can hardly be disputed that power of judicial review under
Article 226 is available to go into the question whether action of an aided educational institutional (even a minority institution) is transparent and fair. Despite the autonomy under
Article 30, exercise of power by a minority institution discharging public functions is open to judicial review.[3] In T.M.A. Pai Foundation & Ors. v. State of Karnataka & Ors. [4] this Court held:
“135. We agree with the contention of the learned Solicitor-General that the Constitution in Part III does not contain or give any absolute right. All rights conferred in Part III of the Constitution are subject to at least other provisions of the said Part. It is difficult to comprehend that the framers of the Constitution would have given such an absolute right to the religious or linguistic minorities, which would enable them to establish and administer educational institutions in a manner so as to be in conflict with the other Parts of the Constitution. We find it difficult to accept that in the establishment and administration of educational institutions by the religious and linguistic minorities, no law of the land, even the Constitution, is to apply to them.
136. Decisions of this Court have held that the right to administer does not include the right to maladminister. It has also been held that the right to administer is not absolute, but must be subject to reasonable regulations for the benefit of 10/29 http://www.judis.nic.in W.P.(MD).No.17636 of 2017 the institutions as the vehicle of education, consistent with national interest. General laws of the land applicable to all persons have been held to be applicable to the minority institutions also — for example, laws relating to taxation, sanitation, social welfare, economic regulation, public order and morality.
137. It follows from the aforesaid decisions that even though the words of Article 30(1) are unqualified, this Court has held that at least certain other laws of the land pertaining to health, morality and standards of education apply. The right under Article 30(1) has, therefore, not been held to be absolute or above other provisions of the law, and we reiterate the same. By the same analogy, there is no reason why regulations or conditions concerning, generally, the welfare of students and teachers should not be made applicable in order to provide a proper academic atmosphere, as such provisions do not in any way interfere with the right of administration or management under Article 30(1).
5. The respondents 1 and 2 filed counter affidavit and also filed petition to vacate the stay. The learned Government Advocate contended that the 4th respondent School is a minority institution and as per the judgment of the Hon'ble Apex Court reported in 1998 6 SCC 674, [N.Ammad Vs. Manager, Emjay High School and others], a minority institution can appoint Headmaster/Headmistress of their choice.
11/29 http://www.judis.nic.in W.P.(MD).No.17636 of 2017 5(a). In view of the fact that the 4th respondent is a minority institution, Rule 15(4) of Tamil Nadu Recognized Private Schools Act and Rules are not applicable. The learned Government Advocate further contended that reason for promoting the 5th respondent as Headmistress has to be explained by respondents 3 and 4 only. The learned Government Advocate contended that there is no necessity to obtain prior permission or approval for promotion to the post of Headmaster/Headmistress. In view of the interim order passed by this Court dated 19.09.2017 in W.M.P.No.14193 of 2017 in the present Writ Petition, the respondents are not proceeding with the approval of promotion of 5th respondent as Headmistress. The post of Headmaster/Headmistress is necessary for proper academic administration, maintenance of peace, discipline and supervision of work of the teachers and prayed for appropriate orders by this Court.
6. The respondents 3 and 4 filed counter affidavit and two additional counter affidavits. The learned counsel appearing for the respondents 3 and 4 contended that the 4th respondent is a minority School established and administered by “The R.C. Diocese of Tuticorin” and the said Diocese is a registered society as “Tuticorin Diocesan Association”. As a minority institution, respondents 3 and 4 have right to 12/29 http://www.judis.nic.in W.P.(MD).No.17636 of 2017 administer the School under
Article 30(1) of the Constitution of India. The respondents 3 and 4 in the counter affidavit has given details of 233 institutions managed by the 3rd respondent. The 4th respondent School being a minority institution, Rule 15(4) of Tamil Nadu Recognized Private Schools Act and Rules are not applicable. In any event, the 3rd respondent has conducted an interview on 14.09.2017. The petitioner and 5th respondent attended the interview. The Selection Committee selected the 5th respondent and the 3rd respondent, by the impugned order dated 14.09.2017 promoted the 5th respondent as Headmistress with effect from 15.09.2017. The management has followed a fair procedure in selection and appointment of 5th respondent as Headmistress, who will be interested in the welfare of the School and co-operate with the Management. The respondents 3 and 4 denied the claim of the petitioner that he discharged his duties without any blackmark and unblemished service. On the other hand, number of memos were issued as he was not discharging his duties to the satisfaction of the Management. The allegation that all of a sudden, the 5th respondent was promoted as Headmistress is not correct. Interview was conducted to ascertain the merits and ability of the candidates and also taking into account the candidate's interest in promoting the interest of the institution and co-operation with the Management, the 5th respondent was promoted as Headmistress. 13/29 http://www.judis.nic.in W.P.(MD).No.17636 of 2017 6(a). In the 2nd additional counter affidavit, the respondents 3 and 4 have stated that the judgments mentioned in the additional affidavit filed by the petitioner do not relate to the issue involved in the present Writ Petition. The petitioner was appointed as B.T.Assistant and also as Headmaster in-charge by the “Manager of R.C.Schools, Tuticorin Diocese” and Schools are established and administered by “Tuticorin Diocesan Association”. The petitioner who worked for 26 years, knew fully well that 4th respondent is a minority institution. Only now the petitioner is challenging the status of the 4th respondent School. Even though the respondents 3 and 4 need not follow the procedure contemplated under Rule 15(4) of Tamil Nadu Recognized Private Schools Act and Rules, they have conducted the interview in a fair and proper manner by constituting a Selection Committee. The petitioner as well as the 5th respondent attended the interview. The Selection Committee considered the merits and demerits of both the petitioner and 5th respondent and found that 5th respondent is the suitable person to be promoted as Headmistress of 4th respondent School. Based on the Selection Committee report, the 5th respondent was promoted as Headmistress of 4th respondent School. The respondents 3 and 4 stated that Mr.Augustine Geetharaj is not a legal advisor and he has nothing to 14/29 http://www.judis.nic.in W.P.(MD).No.17636 of 2017 do with the interview. The learned counsel for the respondents 3 and 4 further contended that criminal case registered against the 5th respondent in Crime No.41 of 2016 was closed as mistake of fact on 30.04.2016. The Crl.O.P.(MD).No.13625 of 2016 filed against the final report was disposed of by this Court on 12.09.2018.
6(b) The learned counsel for the respondents 3 and 4, in support of his contention relied on the following judgments:
(i) (2007) 1 SCC 386, [The Secretary, Malankara Syrian Catholic College Vs. T.Jose & Ors.] “...27. It is thus clear that the freedom to choose the person to be appointed as Principal has always been recognized as a vital facet of the right to administer the educational institution. This has not been, in any way, diluted or altered by TMA Pai. Having regard to the key role played by the Principal in the management and administration of the educational institution, there can be no doubt that the right to choose the Principal is an important part of the right of administration and even if the institution is aided, there can be no interference with the said right. The fact that the post of the Principal/Headmaster is also covered by State aid, will make no difference.
28. The appellant contends that the protection extended by
Article 30(1) cannot be used against a member of the teaching staff who belongs to the same minority community. It is contended that a minority institution cannot ignore the rights of eligible lecturers belonging to the same community, senior to the person proposed to be selected, merely because the institution has the right to select a Principal of its choice. But this contention ignores the 15/29 http://www.judis.nic.in W.P.(MD).No.17636 of 2017 position that the right of the minority to select a Principal of its choice is with reference to the assessment of the person's outlook and philosophy and ability to implement its objects. The management is entitled to appoint the person, who according to them is most suited, to head the institution, provided he possesses the qualifications prescribed for the posts. The career advancement prospects of the teaching staff, even those belonging to the same community, should have to yield to the right of the management under
Article 30(1) to establish and administer educational institutions.”
(ii) 2007-4-L.W.617, [Eka Ratchagar Sabai Higher Secondary School and another Vs. K.Sumathi and another], “...14. As observed in TMA Pai Foundation's case, essential ingredients of the management including admission of students and recruitment of staff, cannot be regulated. It is of course true that the earlier decision of the single Judge in M. Chelladorai's case, which we have already noticed, also purported to rely upon the observations made in TMA Pai Foundation's case. However, now that the matter has been decided by the Supreme Court in (2007) 1 SCC 386 after referring to other earlier decisions, we do not think that the interpretation given earlier by different learned single Judges of this Court can hold good. The necessary conclusion, therefore, is that the discretion of the Management to appoint teacher of its own choice (of course a teacher who is otherwise qualified and eligible as per the prescribed regulations) cannot be curtailed through the process of rules, regulations or other executive instructions as such rules, regulations or executive instructions would violate the right of the minority institution under
Article 30(1) of the Constitution.
15. Judged in light of the observations made by the Supreme Court in (2007) 1 SCC 386 (supra), the provisions which lay down qualification for appointment of teachers are obviously required to be followed; whereas the procedure contemplated in Rule 15(4) of the Rules severely constricting the scope of the discretion of the Management in appointment of teachers and confining the same to a 16/29 http://www.judis.nic.in W.P.(MD).No.17636 of 2017 particular source would be violative of
Article 30(1). Therefore, such provisions are not required to be followed by the minority institutions. In view of the above, we cannot agree with the view expressed by the learned single Judge under the impugned judgment and such decision is liable to be over- turned.”
(iii) (2017) 15 SCC 595, [Manager, Corporate Educational Agency Vs. James Mathew and others]
5. ..............................As far as the selection and appointment of the Headmaster or the Principal, as the case may be, is concerned, this Court in Secy. Malankara Syrian Catholic College Vs. T. Jose and Other s, reported in (2007) 1 SCC 386, after referring to all the celebrated cases on minority rights, viz. T M A Pai Foundation v. State of Karnataka [(2002) 8 SCC 481], P.A. Inamdar vs. State of Maharashtra [(2005) 6 SCC 537], State of Kerala v. Very Rev. Mother Provincial [(1970) 2 SCC 417], The Ahmedabad St. Xavier's College Society v. State of Gujarat [(1974) 1 SCC 717], Frank Anthony Public School Employees' Association v Union of India [(1986) 4 SCC 707], Rev.Sidhajbhai v. State of Bombay [(1963) 3 SCR 837], D.A.V. College v. State of Punjab [(1971) 2 SCC 269], All Saints High School v. Government of A.P. [(1980) 2 SCC 478], St. Stephen's College v. University of Delhi [(1992) 1 SCC 558], N. Ammad v. Manager, Emjay High School [(1998) 6 SCC 674], Board of Secondary Education & Teachers Training v. Joint Director of Public Instructions [(1998) 8 SCC 555], has held in Paras 27 to 29 that the Management of a minority aided educational institution is free to appoint the Headmaster or the Principal, as the case may be, of its own choice and has no obligation to appoint the available senior qualified member from the same community.
6.The emerging position is that, once the Management of a minority educational institution makes a conscious choice of a qualified person from the minority community to lead the institution, either as the Headmaster or Principal, the court cannot go into the merits of the choice or the rationality or propriety of the process of choice. In that regard, the right under
Article 30(1) is absolute.” 17/29 http://www.judis.nic.in W.P.(MD).No.17636 of 2017
(iv) 1998 6 SCC 674, [N.Ammad Vs. Manager, Emjay High School and others], “...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 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 void.”
(v) Order of this Court dated 12.09.2018 made in Crl.O.P.(MD).No.13625 of 2016 “...This petition has been filed for a direction for further investigation in Crime No.41 of 2016.
2.The learned Additional Public Prosecutor, on instructions, would submit that a closure report has been filed before the learned Judicial Magistrate, Satthankulam, on 30.04.2016.
3.In view of the subsequent development, the petitioner is at liberty to move the protest petition before the Court below and proceed further in accordance with law.
4.This Criminal Original Petition is disposed of accordingly.” and prayed for dismissal of the Writ Petition.
7. The 5th respondent filed counter affidavit and vacate stay 18/29 http://www.judis.nic.in W.P.(MD).No.17636 of 2017 petition.
7(a). The learned counsel for the 5th respondent contended that the then Headmaster M.Jeyasingh Cruz Angelus was suspended on 25.01.2016 for sexual harassment against the girl students studying in the 4th respondent School. In the mean time, the Headmaster post fell permanently vacant in 4th respondent School on 03.06.2017 on superannuation of the erstwhile Headmaster M.Jeyasingh Cruz Angelus on 02.06.2017. The Management called the 5th respondent for interview on 14.09.2017 and the interview was conducted by 6 persons of Selection Committee. The petitioner also participated in the interview. After careful examination, the Selection Committee submitted the report to the Management and based on the said report, the 5th respondent was promoted as Headmistress in the 4th respondent School with effect from 15.09.2017 by the impugned order dated 14.09.2017 and from that date onwards, the 5th respondent is discharging her duty as Headmistress. The criminal case in Crime No.41 of 2016 registered against the 5th respondent on the file of the Thattarmadam Police Station, Tuticorin District was closed as mistake of fact on 30.04.2016 itself. The petitioner suppressed this fact and filed the present Writ Petition and failed to give correct information to this Court. The 19/29 http://www.judis.nic.in W.P.(MD).No.17636 of 2017 petitioner and erstwhile Headmaster M.Jeyasingh Cruz Angelus are brothers. Both of them continuously disturbed the 5th respondent in performing her duty, unnecessarily by illegal activity and tried to create bad image against the 5th respondent among the public. The complaint given by one of the student, registered in Crime No.41 of 2016 was given at the instigation of erstwhile Headmaster. The petitioner and his brother were involved in several illegal activities and tendered apology to the Management and therefore, the petitioner's service cannot be considered as satisfactory service.
7(b). The petitioner after his medical leave joined duty on 15.11.2016 but gave a request for appointing him as Headmaster in- charge only on 25.02.2017, at the end of the academic year. The petitioner sent the said representation directly to the 3rd respondent instead of sending the application through the 4th respondent correspondent. The 4th respondent is a minority institution and Section 15(4) of Tamil Nadu Recognized Private Schools Act and Rules are not applicable. Mere acquisition of academic qualification or seniority will not confer any automatic right for promotion as Headmaster in minority educational institution. The promotion will depend upon various factors like candidate's ability, merit, out-look, philosophy and over all suitability of the candidate for the post as per the choice of the Management. In 20/29 http://www.judis.nic.in W.P.(MD).No.17636 of 2017 view of the fundamental rights guaranteed to minority institution under
Article 30(1) of the Constitution of India, the right to appoint teachers of their choice has been recognized as an essential part of the right of the administration. Even assuming Rule 15(4) of Tamil Nadu Recognized Private Schools Act and Rules are applicable, no automatic promotion is contemplated. The Management gave opportunity to the petitioner in the interview for the purpose of assessment of his merit and ability. The petitioner, having participated in the selection process, cannot file the present Writ petition challenging the appointment of the 5th respondent by raising untenable and frivolous grounds. The petitioner has no automatic right or any enforceable entitlement seeking promotion in minority educational institution. The Writ Petition filed by the petitioner is devoid of merits. The proposal for approval of the promotion of 5th respondent as Headmistress has already been sent to the Educational Authority. In view of the pendency of the Writ Petition, there is delay in disbursement of salary to the 5th respondent which puts the respondents 4 and 5 into irreparable loss and hardship. The Writ Petition is filed only to delay the approval of promotion of the 5th respondent and prayed for dismissal of the Writ Petition.
8. Heard the learned counsel for the petitioner as well as learned Government Advocate appearing for the respondents 1 and 2 and 21/29 http://www.judis.nic.in W.P.(MD).No.17636 of 2017 learned counsel appearing for the respondents 3 and 4 as well as 5th respondent and perused the entire materials on record.
9. The learned counsel for the petitioner referred to averments in the affidavit, additional affidavit and contended that the 4th respondent School is not a minority School and respondents 3 and 4 failed to follow the procedure contemplated in Rule 15(4) of Tamil Nadu Recognized Private Schools Act and Rules. The learned counsel for the petitioner referred to the affidavit and submitted that the respondents 1 and 2 did not have any background to accord minority status to 4th respondent and in fact the 2nd respondent has called upon the 4th respondent and other Schools to produce documents to substantiate their claim that their Schools are minority institutions and none of the Schools have complied with the said direction of the 2nd respondent. On the other hand, it is the contention of the respondents that 4th respondent School is a minority institution. The respondents 3 and 4, in addition to the above contention, also contended that the petitioner was appointed as B.T.Assistant in the year 1993 by the Manager of R.C.Schools, Tuticorin Diocese and the petitioner who is working for the past 26 years did not dispute the minority status of the 4th respondent School.
10. From the above contention, it is clear that there is a dispute 22/29 http://www.judis.nic.in W.P.(MD).No.17636 of 2017 as to whether the 4th respondent School is a minority institution or not. The said disputed question of fact cannot be decided in this Writ Proceedings. The same can be decided only by the Civil Court or by the department by appreciating the materials produced before them. In view of the same, this Court, in the present Writ Petition is not deciding the issue whether the 4th respondent School is a minority institution or not.
11. At the same time, it is pertinent to take note that it is the contention of the respondents 3 to 5 that respondents 3 and 4 have constituted a Selection Committee and decided merits and documents of both the petitioner as well as 5th respondent, as contemplated under Rule 15(4) of Tamil Nadu Recognized Private Schools Act and Rules. In view of such a stand taken by the respondents 3 to 5, the question whether the 3rd respondent has constituted a proper Selection Committee and whether the claim of the petitioner was considered in a fair and proper manner has to be decided by this Court.
12. In all the judgments relied on by both the petitioner as well as respondents 3 and 4, it has been held that minority institution is entitled to administer the institution as per the fundamental right guaranteed under
Article 30(1) of the Constitution of India. It is also held that 23/29 http://www.judis.nic.in W.P.(MD).No.17636 of 2017 minority institutions can appoint a person of their choice belonging to the minority community as Headmaster or Principal who has necessary qualification and merit. At the same time it is also held that right is guaranteed to administer the institution and not for mal-administration. When a selection is made, it must be transparent and a person who possess necessary educational qualification and experience can be selected. The institution must consider the merit, out-look, philosophy and ability of the person to run the institution in the best interest. In the present case, the 3rd respondent has constituted a Committee consisting of 6 persons. The said Committee did not contain a teacher, but contained only a retired teacher, who is a member of Education Board of Educational Agency.
13. Further, the petitioner has contended that one Augustine Geetharaj, who is the legal advisor of 4th respondent School influenced the Selection of the 5th respondent. According to the petitioner, the 5th respondent is the sister-in-law of the said Augustine Geetharaj. The respondents 3 and 4 denied the said contention that Augustine Geetharaj is the legal advisor of 4th respondent School but did not deny that 5th respondent is the sister-in-law of the said Augustine Geetharaj. The petitioner has produced material evidence to show that the said Augustine Geetharaj is the legal advisor of Educational Board of “The 24/29 http://www.judis.nic.in W.P.(MD).No.17636 of 2017 R.C.Diocese of Tuticorin”. Considering the said material evidence produced by the petitioner, the averments made in the additional counter affidavit by respondents 3 & 4 that said Augustine Geetharaj is not a legal advisor is not correct. The petitioner has educational qualification of B.Sc., M.A., M.Ed., and M.Phil., and he is working as B.T.Assistant from the year 1993 whereas, the 5th respondent is working as B.T.Assistant only from the year 2001 and her educational qualification is M.A.,B.Ed. In addition to that, the petitioner was posted as Headmaster in-charge from 25.01.2016 and was continuously working as Headmaster in-charge till he went to medical leave on 16.10.2016.
14. The contention of respondents 3 to 5 that petitioner's service is not unblemished and memos were issued to the petitioner and he tendered apology, cannot be accepted for the simple reason that when the erstwhile Headmaster was suspended on 25.01.2016, the petitioner was posted as Headmaster in-charge on 25.01.2016. If really the services of the petitioner is not unblemished, he would not have been posted as Headmaster in-charge.
15. As far as complaint registered against the 5th respondent in Crime No.41 of 2016 on the file of Thattarmadam Police Station, 25/29 http://www.judis.nic.in W.P.(MD).No.17636 of 2017 Tuticorin District is concerned, the respondents 3 to 5 contended that the said complaint was closed on 30.04.2016 as mistake of fact and closure report was filed. On the other hand, according to the petitioner, in Crl.O.P.(MD).No.13625 of 2016 filed by one minor girl Reshma, this court ordered further investigation. The respondents 3 & 4 produced copy of the said order dated 12.09.2018 in Crl.O.P.MD).No.13625 of 2016, wherein this Court granted liberty to the complainant minor Reshma to move protest petition before the Court below and proceed further in accordance with law. There is nothing on record to show that the 3rd respondent Selection Committee considered this aspect, which is against the 5th respondent while selecting the 5th respondent for promotion to the post of Headmistress in the 4th respondent School.
16. For the above reason, the impugned order of the 3rd respondent dated 14.09.2017 in Ref.No:PRO/2017-2018/08, promoting the 5th respondent as Headmistress is liable to be set aside and it is hereby set aside.
17. Generally, this Court will not issue positive direction to the management. But at the same time, this Court has power to issue positive direction in the facts and circumstances of the case, if so required. Considering the facts and circumstances of the present case 26/29 http://www.judis.nic.in W.P.(MD).No.17636 of 2017 that petitioner was appointed as Headmaster in-charge from 25.01.2016 to 15.10.2016, it will be in the interest of justice, a positive direction has to be issued directing the 3rd respondent to promote the petitioner as Headmaster in-charge of the 4th respondent School. Accordingly, the 3rd respondent is directed to promote the petitioner as Headmaster of 4th respondent School and complete the above said exercise within a period of four (4) weeks from the date of receipt of a copy of this order.
18. With the above direction, this Writ petition is allowed. No costs. Consequently, connected Miscellaneous Petitions are closed.
09.01.2020 Index : Yes krk/rgr To
1.The Chief Educational Officer, Tuticorin.
2.The District Educational Officer, Tuticorin.
3.The Corporate manager, R.C. Schools, Tuticorin Diocesan Association, Tuticorin – 628 001.
4.The Correspondent, Manal Matha Higher Secondary School, Sokkenkudiyieruppu, 27/29 http://www.judis.nic.in W.P.(MD).No.17636 of 2017 Tuticorin District – 628 653.
28/29 http://www.judis.nic.in W.P.(MD).No.17636 of 2017 V.M.VELUMANI, J.
krk/rgr Pre-delivery Order in W.P.(MD).No.17636 of 2017 09.01.2020 29/29 http://www.judis.nic.in