Appointment Of Headmaster Invoking Minority Status Of Institute Can Only Be Accepted If Specified Through Form 27 Of Kerala Education Rules: High Court

The Kerala High Court recently held that the when a Headmaster is appointed bypassing seniority, such appointment can only be accepted if it is indicated in the appointment order that the appointment is being made by invoking the minority status of the institute.

A single bench of Justice P V Kunhikrishnan observed that when a Manager of an educational institute appoints a headmaster by overlooking seniority in exercise of its minority rights, this should be made clear in the appointment order under Form 27 of KER (Kerala Education Rules) by striking out paragraph 3 of the form that states there is no other candidate qualified and eligible for promotion to the said post.

The petitioner in this case retired as High School Assistant (Physical Science) of St. Sebastian’s High School, Punnakkara, Kozhikode. The claim of the petitioner was that the 7th Respondent in the petition, who was junior to him was promoted as Headmaster violating his seniority.

The court observed that the school was a minority institution and had the fundamental right to establish and administer institutions of its choice. It was contended by the Respondents that the 7th Respondent was appointed as headmaster by exercising the minority rights vested with the Manager, which allows the manager to bypass seniority and appoint a person of his choice. The 7th Respondent was appointed with an appointment order issued under Form 27 of KER as per Rule 7 of Chapter XIV(A) of KER.

However, the court observed that since there is no distinct ‘Form’ for the appointing a Headmaster in a school by a Manager invoking its minority status, the prescribed 'Form 27' under the KER is used for appointments made based on seniority or appointments made in exercise of its minority status. Hence, the court was of the view that the 3rd paragraph in Form 27 must be struck out when the appointment is made invoking minority status of the institution. Paragraph 3 states, "Certified that there is no qualified teacher existing in service under this Educational Agency who is eligible for promotion to the vacancy for which the above appointment is made,"

“As long as the above portion is there in the appointment order, it can only be treated as an appointment based on seniority. Otherwise, the Manager has to score off the above portion from Form 27. Therefore, as long as the above portion is there in the appointment order, it has to be presumed that the Manager has not appointed the Headmaster or teacher by exercising the rights of the minority-status institution. Unless such a stipulation is there, I am of the considered opinion that the appointment orders issued by the Managers invoking the Minority status will be a false declaration to the Department. Therefore, as long as the 3rd paragraph of Form 27 of KER is not scored off, it should be presumed that the appointment is based on seniority”

As paragraph 3 in Form 27 was not struck out, the court did not accept that the appointment of the 7th respondent was made invoking its minority status.

The respondent also raised the contention that the petitioner could not dispute the appointment of the headmaster at such a late stage. At the time of appointment, no such claim was raised by the petitioner, it was argued. However, the court did not accept this contention, pointing out that the written consent of the petitioner who was the senior claimant was required at the time of appointment as per the Note to Rule 44 (1) of Chapter XIV(A) of KER. In this case, such written consent was not obtained by the Manager, the court noted.

“Rule 44 (1) of Chapter XIV(A) of KER clearly states that whenever the Manager intends to appoint a person as Headmaster other than the senior claimant, the Manager shall obtain a written consent from such senior claimant renouncing his claim permanently. In this case, admittedly, there is no such written consent obtained from the petitioner. Therefore, simply because a senior teacher kept mum when the Manager appointed his junior as Headmaster, that appointment cannot be approved unless a written consent is obtained from the senior claimant renouncing his claim permanently in the light of the Note to Rule 44(1) of KER.”

In light of the above contention, the court rejected the argument that since the petitioner remained silent for 25 months and he cannot claim promotion now. This is because the petitioner did not provide written consent, as per the Note to Rule 44(1) of Chapter XIV(A) of KER, despite being senior to the 7th respondent, the court observed.

The court held that the petitioner was entitled for promotion with retrospective effect. However, since the petitioner had already retired from service the court directed his pensionary benefits to be refixed accordingly.

Case Title: Xavier T.J v State Of Kerala

Citation: 2023 LiveLaw (Ker) 199

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