whether the petitioners school which is a minority educational institution can appoint the Head Master of its own choice as per the rights conferred to it under Article 30 of the Constitution of India.= For all the reasons stated herein before, the proceedings of the first respondent dated 22.04.2003 appointing Sri A.Benhur as Head Master are declared as illegal and violative of Article 30(1) of the Constitution of India and accordingly they are set aside. The respondents are directed not to interfere with the selection of the Head Master by the management of the petitioners school. The writ petition succeeds and the same is accordingly allowed. There shall be no order as to costs.

HONBLE SRI JUSTICE R.KANTHA RAO      

W.P.No.12094 of 2003

04-03-2015

Bethal Grace Residential High School rep. by its Correspondent, Sri
D.MoodyBhobjones and three othersPetitioners

The Regional Joint Director of School Education, Kakinada and two
othersRespondents

Counsel for petitioners: Sri D.Linga Rao


Counsel for respondents: Government Pleader for School
                          Education
     
<GIST:

>HEAD NOTE:  

? Cases referred:

1. AIR 2005 SC 3226(1)
2. AIR 2002 SC 463

THE HON'BLE SRI JUSTICE R.KANTHA RAO      

WRIT PETITION No.12094 of 2003

The Court made the following:

HONBLE SRI JUSTICE R. KANTHA RAO    
WRIT PETITION NO.12094 OF 2003  
ORDER:
      This writ petition is filed by the petitioners under Article 226 of
the Constitution of India seeking to issue a writ of mandamus
declaring the order of first respondent in Rc.No.24/A2/94, dated
22.04.2003 appointing Sri A.Benhur as Head Master of School as
illegal, arbitrary and without jurisdiction violating Article 30(1) of the
Constitution of India, to set aside the same and consequently to
direct the respondents not to interfere with the selection of Head
Master made by the management.
2.      Heard the leaned counsel appearing for the petitioners and
the learned counsel appearing for the respondents.
3.      The petitioners High School is a Minority Educational Institution
and it acquired the minority status vide Certificate
No.205/6256/M&R/A2/99-C, dated 29.07.1999.  The school was also
admitted to grant-in-aid in the year 1991 and several teachers have
been were working in aided and unaided posts.  A dispute arose
between one Smt. T.Nalini Ratna Kumari and Sri A.Benhur, the 4th
respondent herein who claimed the post of Head Master in the
petitioners school.  Smt. T.Nalini Ratna Kumari filed W.P.No.2842 of
2000 against the deceased 1st petitioner and respondents 1 to 4
herein to declare her as a senior to the 4th respondent herein.
The said writ petition was dismissed through order dated 21-02-2003.
4.      According to the petitioners, the management of the
petitioners school is at liberty to select suitable persons to the posts
of Head Master for the purpose of running the administration of the
school smoothly and effectively and there shall not be any
interference by the authorities or the government in the internal
administration or management of the minority institution as it offends
the rights of the minority institution guaranteed under Article 30 (1) of
the Constitution of India.  It is submitted that the petitioners
management appointed Smt. T.Nalini Ratna Kumari as Principal in
the interest of the institution on 20.05.2003 and she took charge from
the in charge Head Master on 20.05.2003.  It is further submitted that
the management has neither appointed Sri Benhur, 4th respondent
as Head Master nor recommended to the higher authorities for
approval as Head Master of the High School.  It is said that the
Regional Joint Director of the School Education, 1st respondent
herein took a unilateral decision to appoint the 4th respondent as
Head Master of the petitioners High School on 22.04.2003.
The version of the petitioners is that the school management was
dissatisfied with the conduct and performance of the 4th respondent
as B.Ed. Assistant who committed several irregularities and also
forged the signatures of the correspondent on the letter heads
stolen by him.  On the ground that he created some false
documents and adopted unfair means for promotion as Head
Master, disciplinary action was proposed against him.
It is contended by the petitioners in the writ petition that the
management of the school is competent authority to take
a decision regarding the selection and appointment of Head Master
in the interest of the school administration and the first respondent
has no authority to appoint the 4th respondent as Head Master of
the school.  The said action is questioned in the writ petition as
without jurisdiction and violative of Article 30(1) of the Constitution of
India and the said order is sought to set aside and to direct the
respondents not to interfere with the selection of the Head Master
made by the management.
5       The first respondent filed a counter-affidavit on behalf of the
respondents.  It is contended in the counter-affidavit as follows:
        The post of the Head Master is a promotional post as per
G.O.Ms.No.167 Education (B) Department, dated 09.03.1984.
As per the terms of the said G.O., senior most B.Ed. Assistant working
in the school is entitled to be promoted as Head Master.  According
to the respondents, the correspondent of the petitioners school
issued proceedings promoting the 4th respondent as Head Master by
proceedings dated 08.01.2000.  The proposals for approval of
promotion were submitted by the District Educational Officer,
East Godavari to the first respondent.  As the writ petition filed by
Smt. T.Nalini Ratnakumari  i.e. W.P.No.2842 of 2000 claiming seniority
over the 4th respondent was dismissed, the 4th respondent being the
senior most School Assistant working in the institution was appointed
as Head Master and the same shall not be  questioned in the writ
petition.  The main contention of the respondents seems to be that
the institution is an aided institution, it is bound to follow the rules
under the Education Act and the instructions were issued by the
competent authorities regarding the appointment of regular Head
Master and therefore, the petitioners cannot question the
appointment of the 4th respondent.  The respondents asserted that
the minority institutions which are not seeking any aid from the
government can make their appointment.  But, the petitioners
institution which is getting aid from the government is governed by
Rule 12(8) of G.O.Ms.No.1 and as such approval is required with
regard to the minority institutions.  It is also contended that as the
correspondent of the institution failed to implement the orders issued
by the department, the government is entitled to initiate
appropriate action as per Rule 10(32) of the Education Rules.
Contending as above, the respondents sought to dismiss the writ
petition.
6.      The question which requires to be determined in the writ
petition is whether the petitioners school which is  a minority
educational institution can appoint the Head Master of its own
choice as per the rights conferred to it under Article 30 of the
Constitution of India.
7.      Sri D.Linga Rao, learned counsel appearing for the petitioners
submits that since the petitioners institution is a minority institution,
it has every right to appoint the Head Master of the school of its
choice and the first respondent or any educational authority can
not interfere with such right.
8.      On the other hand, the learned counsel appearing for the
respondents contends that since the petitioners institution is
receiving aid from the government, it can be subjected to certain
restrictions and such restrictions include the selection of the Head
Master by the first respondent and therefore, the order passed by
the first respondent cannot be challenged in the present writ
petition.
9.      To address the issue involved in the present case, the rights of
the minority institution under Article 30(1) of the Constitution of India
and the power of the State making regulatory legislation in the form
of certain restrictions have to be properly understood.  The issue has
been discussed in greater detail in
P.A. INAMDAR AND OTHERS v. STATE OF MAHARASHTRA AND            
OTHERS .  Reliance has been placed on the above decision by the
learned counsel appearing for the respondents wherein it is held
that merely because Article 30(1) of the Constitution of India has
been enacted, minority educational institutions do not become
immune from the operation of regulatory measure because the right
to administer does not include the right to mal-administer.  The real
purpose sought to be achieved by Article 30 of the Constitution of
India is to give minorities some additional protection.  On receiving
aid, the autonomy conferred by Article 30 of the Constitution of
India gets diluted and certain conditions in the nature of regulations
can legitimately accompany State aid or affiliation and regulation
framed in national interest would equally apply to minority institution.
It is further held that the State may prescribe reasonable regulations
to ensure the excellence of the educational institutions to be
granted aid or to be recognized.  But in the name of laying down
conditions for aid or recognition, the State cannot directly or
indirectly defeat the very protection conferred by Article 30 of the
Constitution of India.
10.     Similarly in FATHER THOMAS SHIGARE AND OTHERS v. STATE OF        
MAHARASHTRA AND OTHERS , the Apex Court took the view that the    
State cannot impose any restriction on the rights of the minorities to
administer educational institutions so long as such institutions are
unaided by the State, except to the limited extent that regulations
can be made for ensuring excellence in education.
11.     The question therefore, would be as to whether the first
respondent can exercise the authority to appoint the Head Master
of the petitioners school which is a minority aided institution.
12.     Article 30(1) of the Constitution of India reads as follows:
Article 30(1) accords protection from the executive or legislative
encroachment on their right to establish and administer educational
institution of their choice.  Under this Article, the minority educational
institution whether aided or unaided, has a right to admit the
students of its choice and also to appoint the teachers of its choice.
The right however is not absolute but it is subject to reasonable
regulations for the benefit of the institution.  The freedom of the
institution to appoint the Head Master of its choice is very crucial
and vital factor in the matter of running the educational institution.
If such right is interfered by the executive, it certainly offends the
protection afforded to the minority institutions under Article 30(1) of
the Constitution of India.  The suitability of the person to be
appointed as Head Master is to be decided by the institution itself
provided such person possesses the requisite qualifications
prescribed for the post.  Article 30(1) of the Constitution of India
does not confer right on the minority institution to obtain aid from
the State.  However, if the State grants aid to the institution on that
ground it cannot impose restrictions which would virtually deprive
the institution of its right under Article 30(1) of the Constitution of
India.  Guidelines can be prescribed indicating the eligibility and
quality of the teachers or Head Master but there cannot be
interference with the day-to-day administration of the minority
institution. Such guidelines can only relate to minimum qualifications
and experience.  But the right to appoint the Head Master of its
choice belongs to minority institution and it cannot be directly
encroached upon by the executive.
13.     In the instant case, though the writ petition filed by Smt. T.Nalini
Ratnakumari against 4th respondent claiming seniority over him was
dismissed, that cannot be a ground for the first respondent to take
up the task of appointing the Head Mater of the petitioners school
which is a minority institution.  It is not necessary that the senior most
teacher can only be appointed as Head Master. Among the eligible
teachers, the school management can appoint anybody as Head
Master for smooth and effective administration of the school.
Such a right is vested with the minority institution and any
interference with such right would be offending Article 30(1) of the
Constitution of India.  Depriving the minority educational institution
of its right to appoint the Head Master of its choice cannot be
interfered with so long as the person appointed by the institution
possesses the minimum eligibility criteria fixed by the State.
14.     For all the reasons stated herein before, the proceedings of
the first respondent dated 22.04.2003 appointing Sri A.Benhur as
Head Master are declared as illegal and violative of Article 30(1) of
the Constitution of India and accordingly they are set aside.
The respondents are directed not to interfere with the selection of
the Head Master by the management of the petitioners school.
The writ petition succeeds and the same is accordingly allowed.
There shall be no order as to costs.
15.     Miscellaneous petitions if any filed in this writ petition shall
stand closed.
_____________
R.KANTHA RAO, J  
Date:04.03.2015