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Henry Gomez v. Government Of Kerala And Others

Kerala High Court

Oct 6, 1993

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Factual and Procedural Background

These writ appeals (Writ Appeals Nos. 222/93 and 376/93) arise out of two original petitions (O.P. No. 6999/88 and O.P. No. 6787/88) that were heard and disposed of together by the learned single Judge. The principal factual matrix is:

Vacancy: The post of Headmaster at St. Joseph's High School, Trivandrum, became vacant on 2-5-1987.
Appointments: The school management appointed Fr. Ephrem Thomas as Headmaster on that vacancy date, although he did not have the required qualification (12 years continuous graduate service) on 2-5-1987. Sri Henry Gomez, the senior-most qualified teacher on that date, was thus the teacher entitled to be considered.
Administrative review: The District Educational Officer did not approve Fr. Ephrem's appointment. The management and Fr. Ephrem appealed to the Deputy Director, who dismissed their appeal on 2-2-1988. A second appeal before the Director of Public Instruction was allowed on 23-5-1988 on the basis that Fr. Ephrem had become qualified effective 4-6-1987, and the Director ordered approval of the appointment with effect from that date.
Government order and revision: Sri Henry Gomez filed a revision petition before the Government challenging approval of Fr. Ephrem with effect from 4-6-1987. During the pendency of the revision, Henry Gomez retired on superannuation on 14-7-1988. The Government disposed of the revision by G.O.(MS). No. 129/88.G. Edn. dated 12-8-1988, directing that Henry Gomez be deemed to have been promoted as Headmaster with effect from 2-5-1987, that he would not be entitled to Headmaster's pay but his pension would be fixed as if he had been paid as Headmaster between 2-5-1987 and 14-7-1988, and that he would not be re-instated as Headmaster for the remainder of the academic year.
Court proceedings: Henry Gomez challenged the Government order by filing O.P. 6999/88 seeking arrears of salary for the period he was found entitled to hold the post. The management and Fr. Ephrem filed O.P. 6787/88 to challenge the Government's interference. The learned single Judge, while disposing of the originals together, held that the Government was wrong to appoint Henry Gomez as Headmaster for the vacancy of 2-5-1987 because the management's right under Article 30(1) to choose a Headmaster must be respected; the Judge directed the management to appoint a Headmaster as on 2-5-1987 from among teachers then qualified, considering Henry Gomez's claim. The present appeals challenge that decision.

Legal Issues Presented

Whether the Government's order directing that Sri Henry Gomez be deemed promoted as Headmaster with effect from 2-5-1987 was an impermissible inroad on the management's right under Article 30(1) to appoint a Headmaster of its choice for a minority educational institution.
Whether the relevant date for determining eligibility and qualification for promotion to the post of Headmaster is the date of occurrence of the vacancy (2-5-1987) or the date on which the appointment is actually made (4-6-1987 in the case of Fr. Ephrem Thomas).
Whether the management was justified in keeping the Headmaster post vacant until Fr. Ephrem Thomas acquired the requisite qualification on 4-6-1987 and then appointing him retrospectively from that date.

Arguments of the Parties

Management's (and Fr. Ephrem Thomas') Arguments

Counsel for the management argued that promotion to the post of Headmaster need not necessarily be determined with reference to the qualification as on the date of occurrence of the vacancy. Instead, the management contended that qualification could be considered as on the date of appointment.
In support, management relied on an asserted difference between Rule 43 and Rule 44 of Chapter XIV(A) of the K.E.R.: Note (2) to Rule 43 expressly states promotion shall be made from persons possessing prescribed qualifications at the time of occurrence of vacancy, while Rule 44 (dealing with Headmasters) contains no similar note; hence management argued Rule 44 permits consideration of qualification at the date of appointment.
Management relied on observations of a learned single Judge in Radhakrishna Kamath v. Cochin T.D. Corporation (1976 K.L.T. S.N. No. 14 Case No. 31) to support the proposition that appointment within a reasonable period can validate an appointment even if the qualification was acquired after the date of vacancy.

Sri Henry Gomez's Arguments

Henry Gomez challenged the Government's handling by filing O.P. 6999/88 on the ground that he was entitled to be paid arrears of salary for the period for which he had been found entitled to hold the post of Headmaster.
He sought revision of the approval granted to Fr. Ephrem Thomas and the retrospective validation of appointments that bypassed his seniority and qualification as of 2-5-1987.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
RT. REV. Aldo Maria Patrani v. E.C. Kesavao, 1964 K.L.T. 791	Affirmation that the management's right to choose the Headmaster (subject only to prescribed qualifications) is protected by Article 30(1); any restriction other than prescribed qualifications and experience is an impermissible inroad.	The court relied on this Full Bench decision to hold that the management's right under Article 30(1) to appoint a Headmaster of its choice must be respected and that Government's order appointing Henry Gomez for the 2-5-87 vacancy was an inroad on that right.
Rev. Mother Provincial v. State of Kerala, 1969 K.L.T. 749 (Full Bench)	Endorsed the primacy of management's appointment rights in minority educational institutions (principle applied to colleges but recognized as analogous).	The court cited this Full Bench as endorsing the proposition that management's right to appoint key persons is essential to administration and must not be unduly interfered with.
St. Xaviers College v. State of Gujarat, (1974) 1 SCC 717; AIR 1974 SC 1389	Supreme Court observations supporting management/administration rights in minority institutions (cited as supporting authority).	Used as supporting Supreme Court authority for the proposition that management's right of appointment is of primary importance and must be protected.
Gandhi Faiz-e-am College Shahjahanpur v. University of Agra, (1975) 2 SCC 283; AIR 1975 SC 1821	Another Supreme Court decision cited to support the same general proposition regarding management rights in educational institutions.	Relied on as further Supreme Court authority reinforcing the management's right to appoint.
Manager Corporate E. Agency v. State of Kerala, 1990 (2) K.L.T. 240	Division Bench decision following the above authorities that the right to appoint Headmaster/Principal in minority institutions vests with the management.	The court treated this decision as following the established line that management's appointment right is paramount and cited it in support of invalidating the Government's order that purported to appoint Henry Gomez.
James Thomas v. Chief Justice, 1977 K.L.T. 622 (Full Bench)	Principle that claims for promotion are ordinarily to be decided with reference to the time of occurrence of vacancies (the relevant date), not the time of making appointments; avoids arbitrariness.	The court applied this Full Bench rule to conclude that eligibility should be assessed with reference to the date of occurrence of the vacancy (2-5-1987) and not retrospectively at the date of appointment.
Varghese v. State of Kerala, 1981 K.L.T. 458 (Full Bench)	Where no one was qualified on the date of vacancy, a later qualification may be considered; if vacancy arises while a person remains qualified, his claim is to be considered as and when vacancy arose.	The court relied on this Full Bench to explain how subsequent qualification interacts with vacancies and to support the conclusion that qualification and vacancy timing principles must be applied consistently.
Padmanabhan Nair v. Dy. Director, 1991 (1) K.L.T. 337 (Full Bench)	When qualifications are prescribed for a promotion post, eligibility must be reckoned with reference to the date on which the vacancy arose; title arises on date of occurrence of vacancy.	The court treated this Full Bench decision as directly instructive and binding, applying it to hold that the management should have filled the vacancy on 2-5-1987 by reference to qualifications as on that date.
Radhakrishna Kamath v. Cochin T.D. Corporation, 1976 K.L.T. S.N. No. 14 Case No. 31 (single Judge)	Observation that a Headmaster's appointment need not occur on the date of retirement and that appointment within a reasonable period could be valid; cited as authority for considering qualification at date of appointment.	The court explicitly considered and rejected the correctness of these observations for the present context, holding that they do not lay down the correct proposition in view of Rules 43/44 and the binding Full Bench decisions.

Court's Reasoning and Analysis

The court proceeded in a structured manner, applying constitutional principles, statutory/regulatory provisions and binding precedents:

Management's Article 30(1) right: The court began by reaffirming a line of Full Bench and Supreme Court authorities that the right of a minority management to appoint a Headmaster of its choice is a central facet of its right to administer an educational institution under Article 30(1). The court treated the Government's attempt to direct appointment of Sri Henry Gomez for the 2-5-1987 vacancy as an unlawful inroad upon that right, and agreed with the learned single Judge that the Government was wrong to so interfere.
Relevant date for qualification: The court then addressed whether the management could keep the post vacant until a junior teacher (Fr. Ephrem) subsequently became qualified and then appoint him with retrospective effect. The court analysed three binding Full Bench decisions (James Thomas; Varghese; Padmanabhan Nair) that establish the general rule: eligibility and title to promotion are to be determined with reference to the date of occurrence of the vacancy (a definite, objective date), not the date of making the appointment, because using the appointment date would permit arbitrary exercise of authority.
Application to facts and Rules 43/44 K.E.R.: The court considered the management's submission that Rule 44 (dealing with Headmasters) lacks Note (2) present in Rule 43 and therefore permits assessing qualification at date of appointment. The court rejected this reasoning, reading Rules 43 and 44 together: Rule 43 requires promotion of qualified hands in the lower grade according to seniority (subject to Rules 44 and 45) and Note (2) to Rule 43 makes clear that promotion is to be with reference to qualification at the time of occurrence of vacancy. Rule 44 complements Rule 43 by prescribing seniority procedures. A combined reading, reinforced by the Full Bench authorities, leads to the conclusion that promotion/appointment to Headmaster must be based on qualification and seniority as of the date the vacancy arose.
Rejection of contrary single-Judge view: The court specifically considered the single Judge observation in Radhakrishna Kamath and held that those observations do not lay down the correct proposition in the face of the controlling Full Bench jurisprudence and the combined reading of Rules 43 and 44.
Conclusion on the appointment: Applying these principles to the facts, the court found it established that Fr. Ephrem Thomas was not qualified on 2-5-1987 (the date of vacancy) and therefore the management could not lawfully delay filling the post until 4-6-1987 so as to favor Fr. Ephrem. Fr. Ephrem could only be considered for vacancies arising after 4-6-1987 when he became qualified.

Holding and Implications

APPEALS DISMISSED

Holding (direct effect on parties):

The court upheld the learned single Judge's view that the Government was wrong to direct the appointment of Sri Henry Gomez as Headmaster for the vacancy of 2-5-1987 because that order unlawfully interfered with the management's protected right under Article 30(1) to choose the Headmaster of its institution.
The court held that the relevant date for determining eligibility to be appointed Headmaster for the vacancy which arose on 2-5-1987 was the date of occurrence of the vacancy. Because Fr. Ephrem Thomas was not qualified on that date, the management could not lawfully delay appointment until 4-6-1987 to validate his appointment; Fr. Ephrem could only be considered against vacancies arising after he became qualified (4-6-1987).
Accordingly, the appeals challenging the single Judge's decision were found to be without merit and dismissed.

Broader implications:

The decision reaffirms and applies existing Full Bench and Supreme Court authorities recognizing the primacy of the management's appointment rights in minority educational institutions under Article 30(1), and endorses the established rule that qualification for promotion is to be assessed with reference to the date of occurrence of the vacancy. The judgment applies these established principles to the facts before the court; it does not purport to announce a novel legal principle beyond that application.

Show all summary ...

The Judgment of the Court was delivered by

Sreedharan, J.:— Writ Appeals 222/93 and 376/93, arise out of O.P No. 6999/88. Petitioner in the O.P is the appellant in Writ Appeal No. 222/93. Respondents 5 sod 6 therein namely the Manager of the school and the teacher who was appointed by the Manager as the Headmaster are the appellants in Writ Appeal No. 376/93. The Manager and its appointee, Headmaster, filed O.P No. 6787/88. In that O.P, the petitioner in O.P 6999/88 was the third respondent. This original petition was disposed of by the learned Judge along with O.P No. 6999/88 by a common judgment. Petitioners in O.P 6787/88 have preferred writ Appeal No. 288/93 and the third respondent Writ Appeal 258/93. Since same issues arise in these appeals arising out of two original petitions disposed of jointly, we consider it advantageous to dispose of these appeals by a common judgment.

2. The short facts necessary for the disposal of these appeals are as follows:— The post of Headmaster in St. Joseph's High School, Trivandrum became vacant with effect from 2-5-87. The management appointed Fr. Ephrem Thomas as the Headmaster. He was not qualified to be appointed as Headmaster of the school on 2-5-87. Sri Henry Gomez, a High School Assistant working in the school, was the senior-most teacher in the school qualified to be appointed as Headmaster. Appointment of Fr. Ephrem Thomas was not approved by the District Educational Officer. Against this order, the management and Fr. Ephrom Thomas went in appeal before the Deputy Director of Education. By order dated 2-2-88, that appeal was dismissed. The issue was taken up in second appeal before the Director of Public instruction. While the appeal was pending, Fr. Ephrem became qualified with effect from 4-6-87 for being appointed as Headmaster. Taking note of this fact, the Director by order dated 23-5-88, allowed the second appeal and ordered the District Educational Officer to approve the appointment of Fr. Ephrem Thomas with effect from the date on which he became qualified for promotion to the post of Headmaster. Management thereupon issued an appointment order in favour of Fr. Ephrem Thomas posting him as Headmaster with effect from 4-6-87 Consequently the District Educational Officer approved the appointment of Fr. Ephrem Thomas as Headmaster with effect from 4-6-87. Aggrieved by the said developments, Sri Henry Gomez preferred a revision petition before the Government questioning the appointment of Fr. Ephrem Thomas as Headmaster and the approval granted to him with effect from 4-6-87. During the pendency of that revision petition, Sri Henry Gomez retired from the service on superannuation on 14-7-88. The revision petition was disposed of by Government by G.O(MS). No. 129/88.G. Edn. dated 12-8-88 holding that Sri Henry Gomez will be deemed to have been promoted as Headmaster with effect from 2-5-87, that he will not be entitled to Headmaster's pay and that his pension will be fixed as if he had been paid as Headmaster between 2-5-87 and 14-7-88. It was further ordered that Sri Henry Gomez will not be eligible to claim that he should continue as Headmaster till the close of the academic year 1988–1989 in order to avoid disruption in the middle of the year that may be caused because of his re-induction in the middle of the academic year. Henry Gomez questioned this order of the Government by filing O.P 6999/88 on the ground that he was entitled to be paid the arrears of salary for the period for which he has been found entitled to held the post of Headmaster. Since the appointment of Fr. Ephrem Thomas with effect from 4-6-87 was interfered with by the Government, the management and Fr. Ephrem Thomas approached this court by filing O.P No. 6787/88. While disposing of the original petitions by a common judgment, the learned single Judge took the view that Government was wrong in appointing Sil. Henry Gomez as Headmaster of the school with effect from 2-5-87 because it is the privilege of the management which is entitled to the protection under Article 30(1) of the Constitution of India. Management was thereupon directed to appoint Headmaster as on 2-5-87 from among the teachers who were then qualified to hold the post. While doing so it was ordered that the management should consider the claims of Sri Henry Gomez for the post. This decision is under challenge in these appeals.

3. Rule 44A of Chapter XIV(A) of K.E.R prescribes the minimum service qualification for appointment as Headmaster of a High School as 12 years of continuous graduate service with a pass in the test in Kerala Education Act and the Kerala Education Rates and in Account Test (Lower) conducted by the Public Service Commission. Fr. Ephrem Thomas did not have 12 years of continuous graduate service as an 2-5-87 when the vacancy of Headmaster arose in the school. But the management appointed him as the Headmaster. That appointment was not approved by the District Educational Officer. Nor was the request of the management in this regard accepted by the Deputy Director. In second appeal the Director found that Fr. Ephrem Thomas became qualified on 4-6-87 and that his appointment as Headmaster can be approved with effect from that date. Consequently the Director ordered the District Educational Officer to approve the appointment of Fr. Ephrem Thomas with effect from 4-6-87. This was interfered with by the Government by its order dated 12-8-88 presumably on the ground that the vacancy that arose on 2-5-87 could not be filled up by a teacher who became qualified only on 4-6-87. At the same time, Government ordered the management to appoint Sri Henry Gomez as Headmaster for the period from 2-5-87 to 14-7-88 on which date he completed the age of superannuation.

4. The right of the management, which is entitled to the protection Article 30(1) of the Constitution to appoint Headmasters of its choice irrespective of seniority in educational institution established and administered by it, has been recognised by this court end the Supreme Court. A Full Bench of this court in RT. REV. Aldo Maria Patrani v. E.C Kesavao, 1964 K.L.T 791 observed:—

The post of the headmaster is of pivotal importance in the file of a school. Around him wheels the tune and temper of the institution; on him depends the continuity of its traditions, the maintenance of discipline and the efficiency of its teaching. The light to choose the headmaster is perhaps the most important facet of the flight 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.”

5. This view has been endorsed by another Full Bench in Rev. Mother Provincial v. State of Kerala, 1969 K.L.T 749 while dealing with the colleges of minority institution. Observations made by the Supreme Court in St. Xaviers College v. State of Gujarat, (1974) 1 SCC 717 : AIR. 1974 S.C 1389 and in Gandhi Faiz-e-am Collage Shahjabanpur v. University of Agra, (1975) 2 SCC 283 : A.I.R 1975 S.C 1821 also supports the above conclusion. A Division Bench of this Court in Manager Corporate E. Agency v. State of Kerala, 1990 (2) K.L.T 240, following the above decisions also took the view that the right to appoint the Headmaster of a school or the Principal of a College run by a minority institution vests with the management. The Bench observed:—

“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 psi son 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 a regulation which the state might impose for furthering the standards of education.

6. In the light of this legal position, we have no hesitation in holding that Government made an inroad into the right of management when it ordered Sri Henry Gomez to be appointed as Headmaster in the vacancy that arose on 2-5-87. This view taken by the learned single Judge is perfectly legal and it calls for no interference.

7. It is the common case of parties that vacancy of Headmaster arose on 2.5.87 On that date Fr. Ephrem Thomas was not having the requisite qualification in the sense that he had not completed 12 years of continuous graduate service. He acquired that qualification on 4.6.87 Now the question that arises for consideration is whether the management was justified in keeping the post of Headmaster vacant till 4.6.87 to enable Fr. Ephrem Thomas to acquire qualification and then to appoint him with effect from 4.6.87

8. A Full Bench of this Court in the decision in James Thomas v. Chief Justice, 1977 K.L.T 622, expressed the view that the general rule is that claim for promotions are to be decided upon the reference to the time of occurrence of vacancies and not the time of making the appointments. The relevant date must be definite and not to depend upon the volition of the authorities. Otherwise the determination on the claim for promotion would be arbitrary. If the qualification is to be decided with reference to the date of promotion, it will certainly lead to arbitrary, exercise of power. Another Full Bench of this Court in Varghese v. State of Kerala, 1981 K.L.T 458 went into the question as to what should happen in a situation where there was none qualified on the date of occurrence of the vacancy and a junior becomes qualified subsequently. It took the view that there will be no difference whether the vacancy existed already or the vacancy occurred after the junior-became qualified. If there was a vacancy as and when a person becomes qualified for being promoted to such vacancy, he would be entitled to be considered for promotion to that vacancy. If there was no vacancy when a person becomes qualified for promotion and vacancy arose while his would remain qualified, his case for promotion is to be considered as and when vacancy arose. The Bench observed:—

“The relevant date must be definite and not depending upon the volition of the authorities as otherwise the determination would be arbitrary. If it were to be the date of promotion that is to be relevant for determining the title to such promotion the rule is capable of arbitrary exercise. Even if it is honest exercise that would be arbitrary because the fate of the service career will depend in each instance upon the time taken by the concerned authority in passing the order of promotion. On the other hand, there is definiteness in treating the date of occurrence of the vacancy as that which would determine the title of the person to be considered for promotion.”

9. A still later Full Bench of this court in Padmanabhan Nair v. Dy. Director, 1991 (1) K.L.T 337 went into the question as to how the vacancy of Headmaster is to be filled up. Regard being had to the provisions contained in Rule 44 A of Chapter XIV(A) of K.E.R The Full Bench took the view that when qualifications are prescribed for a promotion post, eligibility for appointment to that post has to be reckoned with reference to the date on which the vacancy arose. If there was a qualified band, on that date, he is entitled to be considered for appointment fo the post in preference to his unqualified colleagues. The Bench also took the view that the date on which promotion is actually made is immaterial as the title to the appointment arises on the date of occurrence of the vacancy. In the light of the above mentioned three Full Bench decisions which are binding on us, we have no hesitation in holding that the management should have filled up the vacancy of Headmaster which arose on 2-5-87 on the basis of the qualification of claimants as on that date. It is established beyond any doubt that Fr. Ephrem Thomas was not qualified to be considered for the post of Headmaster on he date of occurrence of the vacancy namely, 2-5-87. By delaying the appointment to 4-6-87, the management cannot favour Fr. Ephrem Thomas by giving him the post of Headmaster.

10. Learned counsel representing the management tried to bring out a case that promotion to the post of Headmaster need not be with reference to the qualification as on the date of the occurrence of the vacancy. In support of this contention, he sought to rely on the so-called difference between Rule 43 and 44 of Chapter XIV(A) of K.E.R According to counsel, while Note (2) of Rule 43 states that promotion under that rule shall be made from persons possessing the prescribed qualifications at the time of occurrence of vacancy, Rule 44 dealing with the appointment of Headmasters does not contain any such Note or provision. On this basis, it was contended that the management need consider tbs qualification of the teacher as on the date of appointment and not with reference to the date of occurrence of vacancy. Learned counsel in support of this argument placed before us the following observations made by a learned single Judge in Radhaksishna Kamath v. Cochin T.D Corporation, 1976 K.L.T S.N No. 14 Case No. 31.

“The Headmaster's retirement could take effect as per the rules only from the closing of the school for the academic year. There is no statutory rules or orders which prescribe that on the date of retirement itself the new Headmaster should be appointed. The third respondent was appointed within a reasonable period as Headmaster. There is no rule like Rule 28(bb) of the Kerala State and Subordinate Service Rules in this connection which states that the qualification should be as on the date of occurrence of the vacancy and not on the date of the appointment.”

11. According to learned counsel, in the instant case, even though vacancy arose on 2.5.87, Fr. Ephrem Thomas became qualified within a reasonable time i.e on 4-6-87 and his appointment is not to be faulted. We find no legal basis for this argument. Rule 43 of Chapter XIV(A) of K.E.R states that subject to Rules 44 and 45 and considerations of efficiency and any general order that may be issued by the Government, vacancies in any higher grade of pay shall be filled up by promotion of qualified hands in the lower grade, according to seniority, if such hands are available. When this provision itself says that it is subject to Rules 44 and 45, according to us, Rules 44 and 45 must also be understood in the light of the provisions contained in Rule 43. As per Rule 44, the appointment of Headmasters shall ordinarily be according to seniority from the seniority list of teachers. Rule 43 says that promotion must be by qualified hands in the lower grade according to seniority. Rule 44 gives emphasis only to seniority and as to how the seniority is to be decided. The Note (2) to Rule 43 makes it abundantly clear that the promotion shall be with reference to the qualification at the time of the occurrence of the vacancy. A combined reading of Rules 43 and 44 can only have the effect of seating that promotion to the higher cadre should be based on the qualification and seniority at the time of occurrence of vacancy. This can oily be the interpretation in view of the three Full Bench decisions referred to earlier. Consequently we and of the view that the observations made by the learned single Judge in Radhakrishna Kamath v. Cochin T.D Corporation, 1976 K.L.T.S Nos. 14, Case No. 31 cannot be considered as laying down the correct proposition. The result of the above discussion is that the management is bound to find out a qualified teacher from among the members of its staff fo be posted as Headmaster of the school in the vacancy that arose on 2-5-87. Fr. Ephrem Thomas cannot be considered for Chat vacancy as he was not having the requisite qualification. Fr. Ephrem Thomas can be considered for the post of Headmaster only against any vacancy that arises subsequent to the date of his acquisition of the qualification. The view that is taken in this regard by the learned single Judge is perfectly legal and we endorse the same.

12. In view of what has been stated above, we find no merit in these appeals. They are accordingly dismissed.