http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7  

PETITIONER: N. AMMAD

       Vs.

RESPONDENT: THE MANAGER, EMJAY HIGH SCHOOL & ORS.

DATE OF JUDGMENT:       07/09/1998

BENCH: S. SAGHIR AHMAD, K.T. THOMAS

ACT:

HEADNOTE:

JUDGMENT: J U D G M E N T THOMAS.  J. Special leave granted. The 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  School".     Valliapplli   Taluk   Calicut District,  Kerala  (hereinafter referred to a ’the school’). This 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 no avail. Appellant 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. Some more facts will be advantageous to focus on the point in dispute. Appellant  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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7  

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 was brought. Some  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. The 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. "Educational  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 this Act". Chapter  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:         "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." 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7  

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 :         "Minority  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". Counsel 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:         "All 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. We  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. A  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. But  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. The  aforesaid  proposition  was approved by another Constitution Bench of this Court  in  Sidhrajbhai  Sabbai  &

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7  

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). Thus the legal  position  adumbrated  in  Re  Kerala Education Bill (supra) remains unchanged now. Selection  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 years. How  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 :         "The  post of the headmaster is of pivotal         importance  in  the  file  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   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. The 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:         "It 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7  

that  even  selection  of teachers is of great importance in the right to manage a school.    Learned  Judge  has  stated thus:         "The 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 :         "An 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         excellence.         (p.825) 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. If  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. Appellant  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. Rule 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 1987". If  the  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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7  

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.         (emphasis 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 school. Shri 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. According to us, it is for the management  of  the  minority educational institution to choose the modality for selecting the qualified persons for appointment. 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7  

or  executive  fiat  would  be  violative of the fundamental right enshrined in the aforesaid Article and would hence  be void. In the 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.