C.REGHUNATHAN PILLAI v. THE STATE OF KERALA

T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) Nos. 32327/2009, 14373/2010, 35761/2010& 246/2012 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of March, 2012JUDGMENTThese writ petitions concern the claim for seniority among two HighSchool Assistants for promotion as Headmaster/Headmistress and the claimraised by the Management of the school for protection under Article 30(1)of the Constitution of India, in exercising the right of promotion to the postof Headmaster.2. The two claimants for the post are the petitioner in W.P.(C)No.32327/2009, Shri C. Reghunathan Pillai and the petitioner in W.P.(C)Nos.14373/2010 and 35761/2010, Smt. K. Radhamony Amma. Thevacancy arose on 1.4.2010 when the then Headmaster, Shri R.I. Paul retiredafter attaining superannuation. Smt. Radhamony Amma claimed promotionbased on her seniority and qualification. As per the pleadings in the twowrit petitions filed by her, she has got continuous service from 2.6.1980 asH.S.A. and in the approved seniority list her place is at serial No.12,whereas the other petitioner, Shri Raghunathan Pillai is serial No.14, havingcontinuous service from 10.6.1980. Initially, she was appointed as Teacher WPC.1674/20102in- full additional charge in the vacancy. The same has been approved bythe District Educational Officer by Ext.P5 order produced in W.P.(C)No.14373/2010. Claiming promotion, she approached the Manager. Whilethe said writ petition was pending, the Manager appointed ShriRaghunathan Pillai as Headmaster by an order dated 9.10.2010 (producedas Ext.P6 in W.P.(C) No.35761/2010) in exercise of his right under Article30(1) of the Constitution of India and the said order is therefore underchallenge in W.P.(C) No.35761/2010.3. In W.P.(C) No.32327/2009, the challenge made by ShriRaghunathan Pillai is against Exts.P5 and P7 orders whereby the claim forapproval of appointment as H.S.A. from 2.6.1980 instead of 10.6.1980, hasbeen rejected.4. In W.P.(C) No.246/2012 the Manager is challenging Ext.P6 orderby which the Government rejected the claims of the Management,regarding their right under Article 30(1) of the Constitution of India anddirected the District Educational Officer to approve the appointment of Smt.Radhamony Amma as Headmistress with effect from 1.4.2010.5. First I shall deal with the dispute regarding inter-se senioritybetween Shri Raghunathan Pillai and Smt. Radhamony Amma. Accordingto Shri Raghunathan Pillai who is the petitioner in W.P.(C) No.32327/2009, WPC.1674/20103he was actually appointed in the school on 2.6.1980 and is having more than28 years of uninterrupted service. The appointment was approvedaccordingly from 10.6.1980 as per the entries in the Service Book andExt.P1 is the copy of the relevant page of the Service Book. His case isthat he has actually been appointed from 2.6.1980 and Exts.P2 and P3 arecopies of the extract of attendance register of June 1980. 6. It appears that a representation was filed by him before theDirector of Public Instruction which resulted in rejection as evident fromExt.P5 order.In Ext.P5 order, while rejecting his claim, mainly tworeasons have been pointed out. One is that his date of commencement ofservice is noted as 10.6.1980 in the Service Book and the other reason isthat his appointment has been approved with effect from 10.6.1980 by orderdated 17.3.1981 of the District Educational Officer, Kollam and he has notfiled any representation before the higher authorities to rectify thediscrepancy during the last 28 years. Accordingly, it was found that in theabsence of specific documentary evidence, his request cannot beconsidered. The said reason has been confirmed by the Government byExt.P7.7. Learned counsel for the petitioner in W.P.(C) No.32327/2009submitted that the petitioner is entitled for grant of approval from 2.6.1980 WPC.1674/20104based on his date of commencement of service and performance of duty. Itis submitted that those aspects should have been considered by theauthorities concerned.8. It can be seen that the representation referred to in Ext.P5 in W.P.(C) No.32327/2009 filed by the petitioner is dated 15.9.2008. His approvalof appointment is evident from the document produced as Ext.R6(b) by thesixth respondent which shows that the appointment itself by the Manager isfrom 10.6.1980 to 31.5.1981 and it was approved as per orderNo.B4/2910/80/K.Dis. dated 17.3.1981. The endorsement reads as follows:“Approved as probationary H.S.A. (Phy.Sc.) from 10.6.1980 tillthat vacancy exists.”9. It can be seen from the pleadings of the parties that thepetitioner's approval was as per an order passed in the year 1981. There wasno challenge against the same at any point of time. It is clear from theappointment order itself that the appointment is in a vacancy from10.6.1980 to 31.5.1981 which was granted approval by the DistrictEducational Officer. Therefore, the contention raised by the petitioner thathe is entitled for approval from 2.6.1980 itself cannot have any acceptance.The reasons stated by the Director of Public Instruction, are supported bythe entries in the Service Book as well as the order of approval. There is no WPC.1674/20105dispute regarding the entries in the Service Book and the date of approval inthe appointment order. If that be so, it can be seen that the contention raisedby the petitioner that too, at the fag end of his career is without anysubstance. The reasons to reject his claim for approval from 2.6.1980 areclearly supported by the documents.10. Therefore, the attendance register, etc. will not help thepetitioner. As rightly held by the Director of Public Instruction, he did notchallenge the approval order for a long time, viz. 28 years. TheGovernment also reiterated the position by Ext.P7, that the relevant entriesin the Service Book alone are taken as documentary evidence as far as suchservice details are concerned and the petitioner has not raised any challengeagainst the order of approval for a long number of 28 years. Therefore,clearly the petitioner is not entitled for any relief in the said writ petition.11. The claims raised by Smt. Radhamony Amma, therefore, willhave to be considered. First I will consider the pleas raised by the Managerin W.P.(C) No.246/2012. Therein, the Government took the view in Ext.P6that Smt. K. Radhamony Amma is the seniormost claimant, which fact wasrelied upon by the District Educational Officer in rejecting the proposal forapproval of Shri Raghunathan Pillai. The added reason is that claim raisedby the rival claimant, Shri Raghunathan Pillai before the Director of Public WPC.1674/20106Instruction regarding the seniority has also been rejected.12. With regard to the claim by the Manager that the institution is aminority institution, the Government was of the view that the school is not aminority institution and is not entitled to any privileges as contemplatedunder Article 30(1) of the Constitution of India.13. Learned counsel for the Management, Shri M. Sajjad submittedthat the school was established by his father late Alikunju Labba during1933 as a Lower Primary School. He was a philanthropist in Kollam area.It is stated that the Apex Court in N. Ammad v. Manager, EMJAY HighSchool and others {(1998) 6 SCC 674} took the view that declaration bythe Government is a recognition of an existing fact. Ext.P2 is the judgmentof the Apex Court in St. Thomas U.P. School v. Commissioner andSecretary to Government (2002 (1) KLT 655 - SC). Ext.P3 is therepresentation submitted by the petitioner before the Government fordeclaring the minority status. It was forwarded by the Director of PublicInstruction to the Government by Ext.P4. Apprehending delay, thepetitioner approached this Court in W.P.(C) No.25258/2011 and thisCourt, by Ext.P5 judgment directed to pass orders on the representation. Itis therefore submitted that the order Ext.P6 cannot be supported and thepetitioner was not heard in the matter also. WPC.1674/2010714. Shri M.V.Thamban, learned counsel appearing for Smt.Radhamony Amma submitted that there is no documentary evidence insupport of the plea of the Manager that the school is having minority right.The allegation that the school was established by his father as a minorityinstitution, is also false. The previous Manager was a politician and was amember of the local grama panchayat. He was a freedom fighter. He wasnot involved in any religious activities and was purely a politician. It istherefore submitted that the plea raised is only to deny the eligible right ofSmt. Radhamony for promotion and is without any bonafides.15. I have examined the rival contentions and the principles stated inthe judgments relied upon by the learned counsel for the Management. InN. Ammad's case {(1998) 6 SCC 674}, the principle stated is mainlyregarding the legal effect of the declaration by the Government. Myattention was invited to para 13 of the judgment, wherein it was held asfollows: “When the Government declared the School as a minority school,it has recognised a factual position that the School wasestablished and is being administered by a minority community.”It is therefore submitted that the non declaration of the minority right earlierwill not be fatal. But still, there should be cogent material to show that the WPC.1674/20108school was established and is being administered as a minority institution.16. The facts of the above case show that the school therein wasdeclared by the Government as a Muslim minority community school as perG.O.(Rt) 2959/94/G.Edn. The contention by the appellant was that hebeing the seniormost graduate teacher, should necessarily have beenappointed as Headmaster. It is in that context the question was examined.The right of the minority to appoint a person of their choice, was upheld bythe said judgment. But in this case there is no such declaration by theGovernment.17. The next decision relied upon is St. Thomas U.P. School's case2002 (1) KLT 655- SC). Therein, it was held, by relying upon the judgmentof the Apex Court in State of Kerala v. V.R.M. Provincial {(1970) 2 SCC417} that “the right to establish an institution would include a case where asingle philanthropic individual with his own means, found the institution.”18. It is thus argued by the learned counsel for Smt. RadhamonyAmma, Shri M.V. Thamban that merely because the present Manager'sfather established the school, that will not confer a minority right on thepresent Manager/petitioner in W.P.(C) No.246/2012 unless the necessaryaspects are proved to the hilt. Of course, the said observation would havehelped the petitioner, if the petitioner was able to establish before the WPC.1674/20109Government that the school is one established as a minority institution.19. Even with regard to the pleadings in the case, it can be seen thatthe only and the main plea is that his father was a philanthropist in Kollamarea. There is nothing to show that at any point of time an attempt wasmade by late Shri Alikunju Labba to claim minority right. He was theManager till 14.8.1984. Even thereafter also, the Management neverclaimed any minority right. It is only much after the present vacancy aroseand Smt. Radhamony Amnm claimed right for promotion, the Manager hassought to raise it. According to Shri Thamban, learned counsel appearingfor Smt. Radhamony, the attempt is only to deny the rights of Smt.Radhamony Amma.20. The pleadings in the writ petition are so deficient with regard tothe minority status claimed by the petitioner. In ground 'e' it is stated that“petitioner's school was established by the late Al-Haj M. Alikunju Labbaduring 1933. He was a philanthropist in Kollam area. He was an activemember of the independent movement. He declined Government job inorder to join independence movement. He was a member ofThrikkovilvattom Panchayat for a pretty long period. He was scholar inreligious teachings.” In spite of the fact that the Government rejected theclaim, the petitioner has not substantiated his claim by any reliable WPC.1674/201010documents to show that the school was established and administered inexercise of minority right. Evidently, it was established in 1933, before thecoming into force of the Constitution of India itself. He was a freedomfighter on his own right and there is nothing to show that the school wasestablished mainly for the purpose of minorities. None of the details withregard to the service, if any, rendered by the school to the minoritycommunity in the area, especially students, have been stated in the writpetition.21. The Apex Court in A.P. Christian Medical Educational Societyv. Government of Andhra Pradesh and another (AIR 1986 SC 1490), inpara 8, had occasion to observe, while interpreting Article 30(1) of theConstitution of India, as follows:“What is important and what is imperative is that there must existsome real positive index to enable the institution to be identified asan educational institution of the minorities. In the instant caseapart from the half of dozen words 'as a Christian minoritiesinstitution' occurring in one of the objects recited in thememorandum of association, there is nothing whatever, in thememorandum or the articles of association or in the actions of thesociety to indicate that the institution was intended to be a minorityeducational institution. These half a dozen words were introducedmerely to found a claim on Art. 30(1). They were a smoke screen.” WPC.1674/201011The Apex Court did not agree that such a description in the Memorandumof Association will be of assistance, evidently on the facts of the said case.What is important to notice that there should be some worthwhile actionstaken by the institution to indicate that it was intended to be a minorityinstitution and is being administered as such, which alone will provide theprivilege under Article 30(1) of the Constitution of India. This is totallyabsent in this case.22. The Apex Court in St. Thomass U.P. School's case (2002 (1)KLT 655- SC), laid down the principle, after examining the facts of thecase, as follows:“7. Assuming that the school was established for the purpose ofArt. 30(1) when P.J. Thomas started it, the reasoning is erroneousand contrary to the ratio of the decision of this Court in State ofKerala v. V.R.M. Provincial (1970 (2) SCC 417) where construingArt. 30(1), Hidayatullah, C.J. said that the right to establish aninstitution would include a case where "a single philanthropicindividual with his own means, founds the institution."Therein, the facts of the case show that the Government recognised theschool as a minority institution and allowed to enjoy the said benefit.Initially it was established by one Shri P.I. Thomas as a Christian, in 1964.It was bought by the then Archbishop of Thiruvananthapuram of theMalankara Syrian Christians in 1980. From paragraphs 2 and 3 of the WPC.1674/201012judgment, it can be seen that the Government has acknowledged the rightunder Article 30(1) of the Constitution of India. The claim for promotion asHeadmaster was raised by respondents 5 and 6 by challenging the ordergranting approval of appointment of the person of choice by the Manager.This Court interfered with the same, by saying that the school was notestablished by a minority community, but by an individual and therefore, itcould not rely upon Article 30(1) of the Constitution of India. The DivisionBench also agreed with the said view. The Apex Court interfered with thesame saying that “the right to establish an institution would include a casewhere a single philanthropic individual with his own means, founds theinstitution”. In fact, therein the Government had already recognised theschool as a minority institution and therefore the facts are totally different.Article 30(1) of the Constitution was explained by the Apex Court bypointing out that even a single individual can found an institution.Therefore, that was a case wherein already there was a declaration by theGovernment. Hence, the fact that a single philanthropic person canestablish an institution alone will not help the petitioner unless otheraspects are proved to hilt.23. A Division Bench had occasion to consider a similar case inHaji Abdul Salam v. State of Kerala (2004 (3) KLT 826). It was held, WPC.1674/201013following the decision of the Apex Court in St. Thomas U.P. School'scase (2002 (1) KLT 655- SC) that “the benefit of Article 30(1) is availableto a single philanthropic individual if he being a member of the minoritycommunity has established and maintained an institution.” Therein, theGovernment rejected the claim raised by the Manager under Article 30(1) ofthe Constitution, to promote their own person as Headmaster. Para 6 ofthe judgment is extracted below:“6. We have already held that the burden is entirely on the Managerto establish that the School is a minority institution. For claimingthe minority status to the school, the following points were urgedbefore the Government.1.On Friday mid-day interval is between 12.30 to 2.30 p.m.2.Second Friday of every month declared as holiday instead of2nd Saturday.3. No open meal during Ramzan.4.Managed by members of a Muslim family.Government took the view that the above mentioned facts wouldshow that the school is established and run by the minoritycommunity but by an individual. Copy of the Will dated 21.2.1983executed by the father of the writ petitioner, bye-laws and otherrelevant documents were produced. We are of the view thosedocuments, first of all, would not show that the school wasestablished and maintained by a minority community. In the facts WPC.1674/201014and circumstances of the case, we are of the view, Government isjustified in rejecting the claim that the school is not entitled to thebenefit of Art.30(1) of the Constitution. Consequently we rejectthe claim of Arifa for the post of headmistress for the period from6.1.1998 to 30.4.1998 and on subsequent periods. It is pointed outthat Abraham's appointment was also not approved and the salarywas not given to him. If that be the case, we are of the view,Sudharma is also entitled to be appointed as headmistress and sheis entitled to get salary for the period from 6.1.1998 onwards if ithad not been paid to any other person. We, therefore, upholdExt.P10 order passed by the Government. We are of the view thepetitioner's school is not entitled to protection under Art.30(1) ofthe Constitution of India on the basis of the materials already onrecord. However, this will not prevent the petitioner to move theGovernment if they got sufficient materials to establish the claimwith which we express no opinion. The Writ Appeal is disposed ofas above.”In fact, four aspects were pointed out to establish the minority right whichwere not accepted by the Government. This Court considered thedocuments produced by the petitioner including the bye-laws and was of theview that that would not show that the school was established andmaintained by a minority community and accordingly it was found that theGovernment is justified in rejecting the claim that the school is entitled tothe benefit of Article 30(1) of the Constitution. WPC.1674/20101524. In the light of the above judgment, it can be seen that hereinthere is no positive material to support the plea of the petitioner. Nodocumentary evidence is available and the details of activities are also notat all explained. Support is not drawn from any material worth the same.25. Ext.P5 judgment relied upon by the learned counsel for theManager, is a case wherein this Court directed to consider therepresentation. In fact, Ext.P3 representation herein, only refers to the twojudgments of the Apex Court, viz. N. Ammad's case {(1998) 6 SCC 674}and the later judgment in St. Thomas U.P. School's case (2002 (1) KLT655 - SC). A reading of Ext.P5 judgment will show that this Court onlyacceded to the prayer of the petitioner to consider the representation withoutentering into any finding on the merits of the matter. It is well settled thatwhen, in exercise of judicial review this Court, after finding in favour of aperson on the issues raised directs the competent authority to pass an order,the effect of the judgment will be different. But as far as Ext.P5 judgmentis concerned, the direction is only to consider the representation withoutentering any finding into the merits of the matter. Thus, it will not renderany help to the petitioner. Directions of this nature without adjudicatinganything on the rights of the parties, is simply to alert the authority to passan order within a specified time. The authority itself will have to consider WPC.1674/201016the matter on the basis of the facts, if any, pleaded. In fact, the Governmentafter considering various aspects, has already decided in Ext.P6 that theschool is not a minority institution. Evidently, the petitioner has no otherstrong proof to claim minority status. 26. Therefore, even going by the pleadings of the petitioner whichare lacking on the activities done by the school to get privilege underArticle 30(1) of the Constitution, this Court cannot direct the Government toreconsider the matter. In fact, going by the decision of the Apex Court inS.L. Kapoor v. Jagmohan (AIR 1981 SC 136), this Court need not issue afutile writ simply to observe natural justice in cases where the observance ofnatural justice would have made no difference on the admitted or indisputedfacts. Herein, it can be seen that there is no factual foundation which israised by the petitioner to claim the minority rights.27. It can be seen that the Manager was trying to support ShriRaghunathan Pillai whose claim for seniority was found against by theauthority concerned. Evidently, Smt. Radhamony Amma has been found assenior in the seniority list as she was appointed on 2.6.1980 whereas ShriRaghuanathan Pillai was appointed on 10.6.1980. The vacancy arose on1.4.2010. She was initially appointed as Teacher in full charge which wasapproved by the District Educational Officer. The said order is produced as WPC.1674/201017Ext.P5 in W.P.(C) No.14373/2010 which is dated 12.4.2010. It is muchafter that the Manager tried to appoint Shri Raghuathan Pillai asHeadmaster in exercise of his right under Article 30(1) of the Constitutionof India. Even at that point of time he had not sought a declaration fromthe Government. The representation itself is filed as evident from Ext.P3produced in W.P.(C) No.246/2012, is 4.7.2011. The District EducationalOfficer rejected the claim for approval of Shri Raghunathan Pillai asHeadmaster which is evident from Ext.P6 order produced in W.P.(C)No.246/2012. Therefore, clearly this is a case where the petitionerManager was trying to deny the rightful claim for promotion of Smt.Radhamony Amma. These aspects are also important while trying toanalyse the plea raised by the Manager, now for establishing the minoritystatus. The District Educational Officer denied the approval of ShriRaghunathan Pillai as per Ext.P9 produced in W.P.(C) No.35761/2010which is dated 20.12.2010. Thus, the context in which the claim forminority right is rejected, is important as it is long after the rejection ofapproval of Shri Raghunathan Pillai also. Therefore, the Manager is notright in denying the promotion to the senior claimant. He was bound topromote the seniormost person.28. In the light of the above, W.P.(C) Nos.32327/2009 and 246/2012 WPC.1674/201018are dismissed. W.P.(C) Nos.14373/2010 & 35761/2010 are allowed.Ext.P6 in W.P.(C) No.35761/2010 is quashed. The petitioner's claimhaving been accepted by the Government, she will be approved asHeadmistress of the school from 1.4.2010 and an appropriate order will bepassed by the District Educational Officer within one month from the dateof receipt of a copy of this judgment and she will be sanctioned allconsequential benefits including monetary benefits. In fact, learned counselfor the Manager had submitted that Shri Raghunathan Pillai is retiring on31.3.2012 and Smt. Radhamony Amma can be appointed from 1.4.2012.Shri M.V. Thamban, learned counsel for Smt. Radhamony Amma submittedthat that will clearly defeat the rights of Smt. Radhamony to claim thebenefits from 1.4.2010 and therefore the same is not agreeable.29. It is made clear that the judgment as above will be withoutprejudice to the right of the Manager to produce sufficient materials beforethe Government, if he proposes to pursue the benefit claimed under Article30(1) of the Constitution of India, in future. No costs. (T.R. Ramachandran Nair, Judge.)kav/