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The State of Kerala, Represented by Secretary to Government, General Education Department, Thiruvananthapuram & Others v/s The Corporate Manager, Corporate Educational Agency, Represented by Power of Attorney Holder Fr. Berchmans Kunnumpuram, Palai & Others

    WA. No. 1059 of 2021

    Decided On, 13 June 2022

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE P.B. SURESH KUMAR & THE HONOURABLE MRS. JUSTICE C.S. SUDHA

    For the Appellants: A.J.Varghese, Sr. Government Pleader. For the Respondents: K. Jaju Babu, Sr. Advocate, M.U. Vijayalakshmi, Brijesh Mohan, Advocates.



Judgment Text

P.B. Suresh Kumar, J.

1. This appeal is directed against the judgment dated 02.03.2021 in W.P.(C) No.21260 of 2020. The appellants are respondents 1 to 4 in the writ petition. Parties and documents are referred to in this judgment, as they appear in the writ petition.

2. The first petitioner is a Corporate Educational Agency, running an aided girls high school. Petitioners 2 to 8 are stated to be teachers appointed in the school after 01.06.2016 and whose appointments were not approved by the Educational Officer for want of staff strength.

3. The school being a girls school, permission of the Director of General Education is required in terms of Rule 12 of Chapter VI of the Kerala Education Rules (the KER) for admitting boys in the school. The Manager of the school, however, without obtaining permission of the Director of General Education, admitted boys in the school from the academic year 2004-05 onwards and the Educational Officer issued staff fixation orders upto 2008-09 taking into account the strength of the boys admitted in the school as well. The Government, however, regularised the said irregular actions of the Manager and the Educational Officer in terms of Ext.P8 order directing that the boys already admitted in the school will be allowed to complete their study upto standard VII but they shall not be admitted in the school from the academic year 2010-2011 onwards. It was also ordered by the Government in Ext.P8 that the number of boys admitted in the school shall not be taken into account for staff fixation.

4. Ext.P8 order was challenged by the Manager before this Court in W.P.(C) No.35116 of 2009. The Manager also sought a declaration that being a minority institution, the school is entitled to admit students of its choice including boys and that the respondents are duty bound to reckon the actual student strength including the strength of the boys for issuing staff fixation orders. The said writ petition was disposed of directing that the educational agency will be entitled to the same relief flowing from Ext.P10 judgment. Ext.P9 is the judgment in W.P.(C) No.35116 of 2009. The Manager admitted boys in the school again on the strength of Ext.P9 judgment. Though the Educational Officers did not object to the admission of boys in the school, they did not however take into account the strength of the boys while issuing staff fixation orders taking the view that Ext.P9 judgment does not enable the Manager to admit boys in the school. The Manager then preferred Ext.P14 representation before the Government seeking directions to the Educational Officer to take into account the strength of the boys as well while issuing staff fixation orders. Ext.P14 representation was forwarded by the Government to the Director of General Education for appropriate action. Thereupon, after affording the Manager an opportunity of hearing, the Director of General Education issued Ext.P17 order rejecting the request of the Manager to reckon the strength of the boys also in the matter of issuing staff fixation orders. The Government however, in terms of the said order, permitted the boys admitted in the school to complete their studies in the school. The writ petition was instituted challenging Ext.P17 order. Petitioners have also sought a direction to the Educational Officer to approve the appointment of petitioners 2 to 8.

5. The case set out by the petitioners in the writ petition is that the Manager is entitled to admit boys in the school in the light of Ext.P9 judgment and the strength of the boys are therefore, liable to be reckoned for issuing staff fixation orders. It is also the case of the petitioners that had the strength of the boys admitted in the school been taken into account while issuing staff fixation orders, there would have been sufficient vacancies to accommodate petitioners 2 to 8 and in that event, their appointments could have also been approved by the Educational Officer.

6. The learned Single Judge took the view that Ext.P9 judgment expressly approved admission of boys in the school and therefore, rejection of Ext.P14 representation in terms of Ext.P17 order is unsustainable. Consequently, the learned Single Judge set aside Ext.P17 order and directed the Director of General Education to issue orders directing the Educational Officer to revise the staff fixation orders of the school taking into account the strength of the boys admitted in the school as well and approve the appointments of petitioners 2 to 8 and disburse their eligible monetary benefits. The appellants are aggrieved by the said decision of the learned Single Judge and hence, this appeal.

7. Heard the learned Government Pleader as also the learned Senior Counsel for the petitioners.

8. The learned Government Pleader contended that Ext.P9 judgment does not authorise the Manager to admit boys in the school and that the said action on the part of the Manager is contrary to the provisions contained in Rule 12 of Chapter VI of KER. According to the learned Government Pleader, it is having regard to the said fact that the Government rejected Ext.P14 representation of the Manager. There is, therefore, no illegality in Ext.P17 order, submits the Government Pleader.

9. The learned Senior Counsel for the writ petitioners, however, supported the impugned judgment, placing reliance on the decision of the Apex Court in Rt. Rev. Msgr. Mark Netto v. State of Kerala and Others, (1979) 1 SCC 23, wherein the Apex Court has held that an order refusing permission to admit girls in a boys school on the ground that the said permission would adversely affect the interests of another school is violative of the protection given to minority educational institutions under Article 30 of the Constitution. According to the learned Senior Counsel, in the light of the said judgment, the Director of General Education ought to have allowed Ext.P14 request made by the Manager of the school.

10. We have considered the arguments advanced by the learned counsel for the parties on either side.

11. As noted, the Manager has earlier admitted boys in the school without obtaining permission of the competent authority in terms of the provisions contained in the KER and the said irregular action was regularised by the Government in terms of Ext.P8 order on condition that boys shall not be admitted in the school from the academic year 2010-2011. In terms of Ext.P8 order, the Government also directed disciplinary action to be taken against the Educational Officers concerned who have issued staff fixation orders reckoning the strength of the boys admitted irregularly in the school. A reading of Ext.P8 order would indicate that the same was issued by the Government with a view to protect the interests of the boys admitted in the school. As indicated, though Ext.P8 order was challenged by the Manager in W.P.(C) No.35116 of 2009, the said writ petition was disposed of in terms of Ext.P9 judgment directing that the Manager will be entitled to the relief flowing from Ext.P10 judgment. A perusal of Ext.P9 judgment would indicate that this Court has not adjudicated any issues in the said judgment. Instead, it is seen that when the matter was taken up, the learned counsel for the Manager submitted that the issue raised in the writ petition is covered in favour of the Manager in terms of Ext.P10 judgment and that Ext.P10 judgment has become final, and it is based on the said submission, the writ petition was disposed of with the aforesaid direction. In other words, in terms of Ext.P9 judgment, the Manager can claim only the rights, if any, granted to the party by virtue of Ext.P10 judgment. Ext.P10 is a judgment rendered by this Court in an appeal challenging the decision of the learned Single Judge in upholding the claim of the Manager of a school run by a minority community. The school which was a girls school was granted permission to admit boys subject to the condition that the strength of the boys will not be taken into account for the purpose of staff fixation. The claim of the Manager was that in so far as permission has been granted to admit boys in the school, their strength shall also be reckoned for the purpose of staff fixation and it is the said claim that was upheld by the learned Single Judge. A perusal of Ext.P10 judgment would indicate that it is having regard to the fact that the condition in the order granting permission to the school to admit boys, that the strength of the boys will not be taken into account for the purpose of staff fixation, is unworkable, this Court dismissed the appeal affirming the decision of the learned Single Judge. The said judgment has no application to the facts of the present case where the Government has specifically interdicted the Manager from admitting boys in the school from the academic year 2010-2011 onwards and the said order has become final inasmuch as it is not interfered with by this court in Ext.P9 judgment in the writ petition challenging the said order. In other words, in the absence of any adjudication in Ext.P9 judgment as to the right of the Manager to admit boys in the girls school, the Manager cannot claim any benefit in terms of Ext.P10 judgment. The view taken by the learned Single Judge that Ext.P9 judgment expressly approved the admission of boys in the school, in the circumstances, is incorrect and unsustainable. Needless to say, Ext.P17 decision taken by the Director of General Education on Ext.P14 representation preferred by the Manager cannot be said to be illegal on any ground whatsoever.

12. The argument advanced by the learned Senior Counsel for the appellants based on the decision of the Apex Court in Rt. Rev. Msgr. Mark Netto, does not also merit consideration since Ext.P8 order issued by the Government declining permission to the Manager to admit boys in the school from the year 2010-11 onwards has not been interfered with by this Court in Ext.P9 judgment and the said judgment has become final and binding on the Manager. If the argument aforesaid is accepted, the same will have the effect of reviewing Ext.P9 judgment. Even otherwise, in the said decision, the question considered by the Apex Court was as to whether the reason, on the basis of which permission was declined to a corporate educational agency running a boys school to admit girls under Rule 12 of Chapter VI of the KER would infringe the rights guaranteed to the minorities under Article 30 of the Constitution. It was clarified by the Apex Court in the said case that it is not necessary or advisable to strike down Rule 12 an

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d what is done in terms of the judgment is to make it inapplicable to a minority educational institution in a situation like the one which arose in that case. The said judgment cannot, therefore, be understood to have laid down the proposition that minority educational institutions are entitled to admit students contrary to the provisions contained in Rule 12 of Chapter VI of the KER, for it is settled that the right of the minorities to administer schools of their choice is not an absolute right, but one that could be regulated. In the instant case, the Manager does not have a case that the reason, on the basis of which permission was declined to admit boys in the school, is violative of Article 30 of the Constitution. As a matter of fact, there is no pleading even in the writ petition as to the reason, on the basis of which permission to admit boys in the school was declined by the Government in terms of Ext.P8 order. The decision aforesaid, in the circumstances, has no application to the facts on that score too. In the light of the aforesaid discussion, writ appeal is allowed, the impugned judgment is set aside and the writ petition is dismissed.
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