D.R. Adison vs D. Rajeswari John and others

Plaintiff is the appellant in both the appeals. He filed the suit for (a) declaration that the promotion of D8 as Head Master of D4 School vide orders dated 28-4-1978, is illegal; and (b) mandatory injunction against the 10th defendant to appoint the plaintiff as Head Master of the School with effect from 13-4-1976 with all consequential benefits and perquisites and also for payment to Rs.3,138-91 ps., to the plaintiff. The school is a minority educational institution. The plaintiff joined the said school as B.Ed. Assistant on 10-7-1956 and he worked in the school continuously since then, he was the senior most person among the staff members of the school and so he became eligible for promotion to the post of Head Master of the School, which fell vacant on 9-4-1976. Insofar as the eligibility criterion for promotion to the post of Head Master is concerned, one must be working as B.Ed. Assistant with seven years experience as such and one must also pass the Accounts Test for Head Masters. The case of the plaintiff is that having possessed all the requisite qualifications for promotion to the post of Head Master, he filed a representation to the management of the school seeking his promotion to the post of Head Master of the School. But, the management completely overlooking his qualifications and seniority in the school, appointed the 8th defendant, who was working in another school by that time. The contention of the plaintiff is that 8th defendant having not passed the Accounts Test for Head Masters, which is one of the requisite qualifications for the said post, is not at all qualified to hold the post of Head Master of the School. It is, therefore, contended that since the very promotion of D8, who is an unqualified person, is illegal and the same is liable to be set aside and consequently since he (plaintiff) is fully qualified to hold the post of Head Master, the plaintiff sought mandatory injunction against the Defendant No. 10 to appoint him as Head Master of the School.

Defendants 1 to 3 contended that the promotion to the post of Head Master is the internal administration of the School and the plaintiff is not entitled to question the order of promotion of the 8th defendant.

The 4th defendant-School contended that plaintiff is not the senior most person, but the 6th defendant is the senior most person in the school and, therefore, the plaintiff is not at all entitled for the promotion.

5th Defendant joined the service of the 4th defendant-School on 20-10-1983 enjoying Grade-II B.Ed, scale of pay. He contends that he is the senior most person among the B.Ed. Assistants in the 4th defendant-school. He further contended that the plaintiff, who joined service on 10-7-1956 as B.Ed. Assistant, comes second in the order of seniority and that D6, D7 and D8 occupy 3rd, 4th and 5th places respectively. Hence, it is contended that the plaintiff cannot claim seniority in the school.

D6 contended that she was declared as senior to the plaintiff.

D7 was set ex parte.

D8 contended that the School management is entitled to select any candidate of their choice for the post of Head Master and the plaintiff has no legal right to claim promotion to the said post. It is also contended that the plaintiff is not the senior most of the B.Ed. Assistants.

D9 and D10 contended that the post of Head Master is a selection post and that this Court in Writ Petition No.721 of 1971 held that it is open to the management of the private school to select any candidate of their choice as Head Master and Correspondent and so the school is entitled to appoint D8 as Head Master. It is further contended that the said appointment is not in violation of any of the Rules framed under the Education Act.

Basing on the above pleadings, two issues were framed in the trial Court and after trial of the suit, the learned District Munsif decreed the suit as prayed for. Aggrieved by the said judgment and decree, D9 filed AS No.40 of 1985 and D6 filed AS No.77 of 1985. The lower appellate Court allowed both the appeals and consequently dismissed the suit. Hence, these two appeals by the plaintiff.

Heard the learned Counsel appearing on either side.

Admittedly, the 4th defendant-School is a minority educational institution. Article 30(1) of the Constitution of India not only conferred a right upon the minorities to establish educational institutions of their choice but also administer them in the manner they wish. This right of amdinistering the management of the minority educational institution includes the right to choose the persons of their choice as Teachers and Head Masters. This right to choose a person as the staff member of the school cannot be chiselled out through any Legislative act or executive rule, except for fixing up qualifications and conditions of service for the post. Thus, the management of a minority educational institution is free from all interferences in administering the management of the school and in doing so, it can choose and appoint the person of its choice for any post, provided he is a qualified person and he fulfills the qualifications and conditions of service laid down by statute; (see N. Ammad Vs. The Manager, Emjay High School and Others, . In view of the law laid down by the Supreme Court, the 4th defendant-School, which is a minority educational institution, is, no doubt, entitled to select and appoint a person as Head Master of School and as held by the Supreme Court in the aforementioned judgment, it is irrelevant to see whether the management is bringing such person from another school or even from outside the State. But, the only formality which the school is bound to observe before appointing such a person is to see that he is a fully qualified person. If he is not qualified, then the management is not entitled to appoint such an unqualified person. In the instant case, it is on record that the 8th defendant, whose promotion is in dispute, is a B.Ed. Assistant with seven years experience, but he has not passed the Special Accounts Test for Head Masters, which is one of the requisite qualifications under the Rules for promotion to the post of Head Master. Therefore, he is not a qualified person under the Rules and the management of the 4th defendant-School is not entitled to appoint such unqualified person as Head Master of the School. The Court is entitled to set aside such an order of promotion even though it is issued by a minority educational institution. Therefore, the decree of the trial Court in respect of the relief of declaration that D8 is not entitled to promotion as Head Master of the 4th defendant-School is liable to be confirmed.

When coming to the second relief of mandatory injunction, I am of the view that the plaintiff is not at all entitled to seek this relief. Under the general law, an employer is free to select and appoint any candidate of his choice from among the available candidates, if he feels that such a candidate is suitable to hold the post and this right of the employer cannot be taken away by law Courts by giving any direction to appoint any particular person, even though he is also suitable to hold such post. Therefore, the Courts are not at all entitled to take away this fundamental right of the employer. When coming to the question of promotion to the post of Head Master in the 4th defendant-School is concerned, the said post of Head Master is a selection post and as already seen, the minority educational institution is free to select a person of its choice, provided such a person is qualified to hold that post, irrespective of the service rendered by such person or irrespective of the seniority. The Court is not at all entitled to thrust any person upon the minority educational institution. The decree of the trial Court in respect of the 2nd relief is, therefore, liable to be set aside.

In the result, the appeals are allowed in part and the judgment of the lower appellate Court shall stand modified accordingly. No costs.