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Judgment
(Amit S Jamsandekar, J)
By this Petition, the Petitioners challenge the letter dated 07.03.2025 issued by the 2nd Respondent (Director of Education, Goa). The 2nd Respondent, by the letter dated 07.03.2025, has rejected the proposal sent by the Petitioners to approve the appointment of Sr. Parmar Manishabahen Babubhai (Sr. Parmar) as the Principal of the 2nd Petitioner school. The Petition is primarily based on rights founded on Article 30 (1) of the Constitution of India, as the 2nd Petitioner is a minority institution.
Rule. The Rule is made returnable forthwith and heard finally by consent of the parties. Mr. Shirodkar, learned Additional Government Advocate, waives notice on behalf of the Respondents.
The facts in a nutshell are as follows:
The 1st Petitioner is a Society registered under the Societies Registration Act, 1860, and its aims and objectives are as contained in the Memorandum of Articles of the Society of the Franciscan Sisters of Mary, Goa (Exhibit A of the Petition). The society was registered on 21.07.1964. The members of the 1st Petitioner are all consecrated religious nuns. The 1st Petitioner has established schools in Goa, the 2nd Petitioner being one of them. On 31.03.2007, the National Commission for Minorities conferred minority status on the 2nd Petitioner.
On 26.04.2024, the Petitioners appointed Sr. Parmar as the Principal of the 2nd Petitioner with effect from 01.07.2024. She has been transferred from Mumbai to Goa from the post of Headmistress to the post of Principal. According to the Petitioners, no suitable candidate was available as per Goa’s seniority list. Therefore, the Petitioners transferred Sr. Parmar from Mumbai to Goa and appointed her as the Principal of the 2nd Petitioner school.
On 30.06.2024, the post of the Principal of the 2nd Petitioner fell vacant on superannuation of Sr. Janet Almeida. Consequently, pursuant to the appointment letter dated 26.04.2024, Sr. Parmar was appointed as the Principal.
Accordingly, on 01.07.2024, the 2nd Petitioner requested the 2nd Respondent's approval for the selection and appointment made by the Petitioners. The 2nd Petitioner also made the same request on 06.08.2024.
Consequently, on 21.10.2024, the 2nd Respondent sought explanation from the Petitioners as to whether, they had followed all required formalities under the Goa School Education Act, 1984, and Rules, 1986 (Education Act and Rules). On 28.11.2024, the 2nd Petitioner provided a detailed explanation on the facts and the law.
On 06.02.2025, the Petitioners reminded the 2nd Respondent of their request for approval of the appointment of Sr. Parmar. Similarly, the Petitioners sent another reminder on 25.02.2025 to the 2nd Respondent.
In the meantime, there was a complaint filed by one Aurio Carvalho regarding the appointment of the Principal by the Petitioners. On 06.03.2025, the 2nd Respondent intimated the 2nd Petitioner that Aurio Carvalho had filed a complaint against the Petitioners on 11.12.2024. Therefore, the 2nd Respondent sought clarification from the Petitioners on the complaint filed by Aurio Carvalho. However, the complainant voluntarily withdrew this complaint.
Thereafter, on 07.03.2025, the 2nd Respondent refused approval for the appointment of Sr. Parmar as the Principal of the 2nd Petitioner.
The letter dated 07.03.2025 reads as follows:-
“Sir, With reference to your letter No. RHSS/5/37000 dated 28/11/2024, it is to inform you that present case cannot be considered in terms of the Goa School Education Act Rules.”
In the background of these facts, Mr. Pereira, the learned Senior Counsel on behalf of the Petitioners, submitted that:
The stand of the Respondents are contrary to the mandate of Article 30 (1) of the Constitution of India. He submitted that Article 30 (1) of the Constitution of India guarantees minorities the right to establish and administer educational institutions of their choice. Admittedly, the 2nd Petitioner is a minority institution; therefore, its right guaranteed by Article 30 (1) of the Constitution of India cannot be diluted. He submitted that the minority institution has the right to appoint a Headmistress or Principal of its choice, as the post is pivotal. He submitted that the only requirement minority institutions must follow is fulfilment of the qualification criteria and the service rules prescribed for the post.
He submitted that the appointment of Sr. Parmar was made in accordance with Article 30 (1) of the Constitution of India, and the Respondents have no right to refuse approval for the appointment made by the Petitioners.
Mr. Pereira further submitted that the process of appointment of Principal of the 2nd Petitioner was fully transparent and in the best interest of the 2nd Petitioner and to achieve the goal of educational excellence in the 2nd Petitioner school. Sr. Parmar was transferred from Mumbai to Goa because no suitable candidate was available in Goa from amongst the seniority list.
He submitted that the complaint which was made by Mr. Aurio Carvalho on 11.12.2024 was voluntarily withdrawn by him. Mr. Aurio Carvalho is not a teacher or a candidate for the post of Principal. Therefore, that could not have been a consideration for the 2nd Respondent’s refusal to approve the appointment of the Principal. He has further submitted that none of the school's teachers have made complaint. Therefore, the complaint by an out-sider in respect of the appointment of the Principal of the 2nd Petitioner is totally inconsequential.
In any case, Mr. Pereira submitted that one-line refusal by the 2nd Respondent is totally arbitrary, without application of mind and without any reasons assigned.
He submitted that there is compliance of the provisions of the Education Act and Rules to the extent to which they apply to the Petitioners in view of the provisions of Article 30 (1) of the Constitution of India.
He submitted that Sr. Parmar is qualified to be appointed as the Principal of the 2nd Petitioner and she possesses all the required qualifications and she also has the required teaching experience as stipulated by Rule 78 of the Education Rules. Therefore, the Petitioners have not compromised on the qualifications of the candidate appointed by them as the Principal of the 2nd Petitioner.
He submitted that as far as minority institutions are concerned, once the required qualification is fulfilled, there is complete compliance with the Education Act and Rules. He submitted that the factual and legal position, as far as the Petitioners are concerned, was made clear to the Respondents from time to time.
It is further submitted that, admittedly, the Respondents have in the past approved the appointment of the Principal or Headmistress in an identical situation. Therefore, the refusal is only to harass the Petitioners and is, therefore, an arbitrary and colourable exercise of power by the Respondents.
Mr. Pereira has supported his submissions by citing N. Ammad v. Manager Emjay High School and others [(1998) 6 SCC 674], Shri. Manohar Naik v. Fr. Thomas Gonsalves [2004 SCC OnLine Bom 1282] set aside in Thomas Gonsalves and another v. Manohar Naik and others, [(2017) 3 SCC 633], Secy., Malankara Syrian Catholic College v. T. Jose and others, [(2007) 1 SCC 386], President, Sind Educationists’ Association v. Registrar, University of Mumbai and another [2012 (3) Mh.L.J. 929], Chandana Das (Malankar) v. State of West Bengal [(2020) 13 SCC 411].
Mr. Shirodkar, the learned Additional Government Advocate on behalf of the Respondents, opposed the Petition on the following grounds:
The right to administer is not a right to maladminister. The right under Article 30 (1) of the Constitution of India is not absolute, and the authorities can reject the proposal for ap-pointment of Principal or Headmaster if the appointment is not in accordance with the provisions of the Education Act and Rules. It is well settled that the right under Article 30 (1) of the Constitution of India does not permit the minority institution to act arbitrarily, unreasonably or unfairly in deal-ing with selection and appointment, and it must follow a cri-terion which is fair and rational. This submission is made by Mr. Shirodkar by citing the decision of the Hon’ble Supreme Court in Ivy C. Da Conceicao v. State of Goa & Ors. [(2017) 3 SCC 619], more particularly paras 9 to 16.
He further submitted that, for an appointment by transfer, the transfer has to be in relation to the same post. For it to be a transfer, the person who is transferred and appointed as Principal ought to be a person who is already serving as a Principal in another school. Further, in terms of the Educa-tion Rules, and Rule 78, in particular, the post of Headmaster is a feeder post for the post of Principal. Persons who are working as Headmasters of Secondary Schools under the same management for at least seven years are eligible to be considered for promotion as Principals of Higher Secondary Schools. It is submitted that the appointment of the Principal by the Petitioners is contrary to Rule 86 (1) of the Education Rules. Mr. Shirodkar submitted that the Rules provide that every vacancy in an aided school shall be filled by promotion, failing which by direct recruitment, in accordance with the Education Rules. Rule 86 (2), inter alia, provides that the va-cancy of Principal shall be filled by promotion subject to eli-gibility conditions prescribed in Rule 78.
Mr. Shirodkar further submitted that, admittedly, since Sr. Parmar was serving as a Headmistress and not as a Principal of Villa Theresa High School, Mumbai, the request for ap-proval of her appointment to the post of Principal of the 2nd Petitioner, has been rightly rejected by the Department.
It is Mr. Shirodkar’s submission that the judgment of the Hon’ble Supreme Court in the case of Malankara Syrian Catholic College (supra), on which the Petitioners place heavy reliance, has been considered in the case of Ivy C. Da Conceicao (supra) where the Hon’ble Supreme Court has in-ter alia held thus:
“15.The above decisions clearly show that the autonomy of a minority institution does not dispense with the requirement to act fairly and in a transparent manner and the High Court in exercise of its power of judicial review is entitled to examine fairness of selection process. Grievance of a citizen that he was treated unfairly cannot be ignored on the ground that a minority institution has autonomy or right of choice. Exercise of right of choice has to be fair, non-discriminatory and rational.
16.We, thus, hold that while under the constitutional scheme, a minority institution is free to select and appoint a Principal, without being bound by the principle of seniority alone, whether the appointment has been made fairly and reasonably and whether there is violation of right of an individual eligible candidate by the minority institution by not adopting fair procedure, is liable to be tested in exercise of power of judicial review under Article 226 of the Constitution….” (emphasis supplied)
It is submitted on behalf of the Respondents that paras 15 and 19 to 21 of the judgment in Malan-kara Syrian Catholic College (supra) in fact sup-port the Respondents’ submissions, not those of the Petitioners.
Therefore, it is submitted that the decision to re-fuse approval for appointment of Sr. Parmar is in accordance with law. The Petitioners have failed to make out any case for interference by this Court and the Petition deserves to be dismissed.
In the background of the above rival submissions, we have perused the record and have considered all the judgments cited by the parties.
Admittedly, the 2nd Petitioner is a minority institution. Therefore, Article 30 (1) of the Constitution of India applies to the 2nd Petitioner. The Hon’ble Supreme Court has interpreted Article 30 (1) of the Constitution of India in various judgments, which the Petitioners and the Respondents have cited before us.
A summary of the interpretation provided by the Hon’ble Supreme Court of Article 30 (1) of the Constitution of India in N. Ammad v. Emjay High School, (supra); Sidhrajbhai Sabbai v. State of Gujarat, [AIR 1963 SC 540]; St. Xavier’s College Society v. State of Gujarat, [(1974) 1 SCC 717]; Secy. Malankara Syrian Catholic College v. T. Jose & Ors, (supra); Chandana Das (Malakar) v. State of West Bengal & Ors, (supra); Ivy C. Da Conceicao v. State of Goa & Ors. (supra) is as follows:
a. The right guaranteed under Article 30 (1) of the Constitution of India cannot be infringed by any law or executive direction that infringes the substance of that right; such law or direction is void to the extent of the infringement. But the absolute character of the right will not preclude making of regulations in the true interests of efficiency or instruction, discipline, health, sanitation, morality, public order and the like, as such regulations are not restrictions on the substance of the right guaranteed by the Constitution.1 The selection and appointment of a Principal or Headmaster in a school (or Principal of a college) are of prime importance in the administration of that educational institution. The Principal or Headmaster is the key post in the running of the school. He is the hub on which all the spokes of the school are set around whom they rotate to generate result. A school is personified through its Principal or Headmaster and he is the focal point on which outsiders look at the school. He is responsible for maintaining the philosophy and objectives of the institution. A bad Headmaster can spoil the entire institution; an efficient and honest Headmaster can improve it by leaps and bounds. A school's effectiveness depends heavily on the efficiency and dedication of its Headmaster. This pristine precept remains unchanged despite many changes taking place in the structural patterns of education over the years. Therefore, the management's right to choose a qualified person as the Headmaster of the school is well insulated by the protective cover of Article 30 (1) of the Constitution of India and it cannot be chiselled out through any legislative act or executive rule except for fixing up the qualifications and conditions of service for the post. Any such statutory or executive fiat would be violative of the fundamental right enshrined in the aforesaid article and would hence be void.2 The right to choose and appoint the Principal or Headmaster is the most important facet of the right to administer an educational institution.3 Even if the institution is aided, there can be no interference with the right of the minority institution guaranteed by Article 30 (1) of the Constitution of India. The fact that the post of the Principal or Headmaster is also covered by the State aid will make no difference. Any statutory or executive fiat would be violative of the right enriched by Article 30 (1) of the Constitution of India and would therefore be void.4
b. This proposition and interpretation have not been, in any way, diluted or altered by the judgment of the Hon’ble Supreme Court in T.M.A. Pai.5 Therefore, the right guaranteed by Article 30 (1) of the Constitution of India cannot be diluted by the State or its functionaries insisting that the appointment should be made only with the approval of the Director or by following the mechanism generally prescribed for institutions that do not enjoy minority status.6
c. Though a minority institution has the right to select the Principal or Headmaster without being bound by the principle of seniority alone, the right is not absolute. The right to administer cannot be construed as a right to maladminister. Therefore, the right ought to be exercised in a fair, transparent, and reasonable manner, and its exercise can be a subject of scrutiny under Article 226 of the Constitution of India.7
We have to apply the above statement of law to the facts and circumstances of the present case. The Petitioners appointed Sr. Parmar to the post of Principal because no other candidate from the seniority list was suitable for the post. Therefore, in the best interest of the institution, Sr. Parmar was transferred from another institution in Mumbai and appointed as the Principal of the 2nd Petitioner in Goa. The candidate selected by the Petitioners is duly qualified and fulfils all the criteria as laid down in the Education Rules. The Respondents have raised no objections regarding Sr. Parmar’s qualifications. Therefore, it is apparent that the Petitioners have fully complied with the Education Act and Rules to the extent of fulfilling the required qualifications and experience of the candidate. Once this criterion, which is of prime importance, is fulfilled, the Petitioners can be said to have substantially complied with the Education Act and Rules. The other requirements contemplated by the Education Rules do not apply to the Petitioners in view of the admitted fact that the 2nd Petitioner is a minority institution. The Education Rules requiring constitution of the departmental promotion committee, fulfilment of the seniority list, etc. apply to other institutions, but not to a minority institution. The minority institutions are not bound by the seniority rule alone. When a minority institution decides to appoint a candidate to the post of Principal or Headmaster, it has complete freedom to choose a candidate of its choice, provided the candidate is qualified in accordance with the Education Rules. Therefore, we reject the submissions made by Mr. Shirodkar about the applicability of the Rules of promotion and the seniority list. We also do not find any arbitrariness or unfairness in the appointment made by the Petitioners of Sr. Parmar.
In any case, none of the institutional candidate has made any claim for the post. That is not even the case of the Respondents. Therefore, we cannot accept the submissions of Mr. Shirodkar in respect of arbitrariness, unfairness or unreasonableness in a vacuum and consequently we reject the same.
When the selected candidate is qualified as required under the Education Rules, then it is immaterial whether that candidate is transferred from another institution where the candidate was serving as Headmaster. Even though the Headmaster is a feeder post for the post of the Principal, the provisions of the Rules cannot be made applicable to the minority institutions with such rigour. For appointment by transfer to the post of Principal, there is no requirement that the candidate must be serving as Principal in another institution when it comes to a minority institution. Therefore, we reject the submissions of Mr. Shirodkar. Consequently, we also reject all incidental submissions made by Mr. Shirodkar on the basis of the application of the Education Rules to the Petitioners.
In the present case, Mr. Shirodkar has submitted that the judgment of the Hon’ble Supreme Court in Ivy C. Da Conceicao (supra) be made applicable to the facts and circumstances of the present case. We are unable to accept such submissions of Mr. Shirodkar because there is nothing on record which establishes that the process followed by the Petitioners in selecting the candidate for the post of Principal is arbitrary, non transparent and not fair or is unfair and unreasonable.
In the present case, the Respondents, by a one-line rejection, have effectively rendered the right guaranteed by Article 30 (1) of the Constitution of India as redundant.
The submissions of Mr. Shirodkar are identical submissions which were made before the Division Bench of this Court in Shri. Manohar Naik v. Fr. Thomas Gonsalves (supra). Wherein, in a similar situation, the Assistant Director of Education granted approval of the Headmaster on transfer from Maharashtra to Goa. It was challenged on the ground that the selection, appointment and approval were without following the provisions of Rule 86 (Filling of vacancies) of the Education Rules. Further, the appointment and approval were challenged on the ground that the Headmaster ought to have been appointed from amongst the eligible senior-most assistant teachers. Chapter VIII of the Education Rules, containing Rules 74 to 98 dealing with “Recruitment and terms and conditions of service of the employee of private schools,” formed the subject matter of the Petitioner's submissions, and it was argued that, though the school is a minority school, the Rules shall apply and therefore the appointment and approval have to be in accordance with the Rules.
The Division Bench of this Court, after considering the submissions made by the Petitioner, and those of the State, held that:
“21.Applying the abovesaid principles enunciated by the Apex Court and upon a close reading of Rule 86(2), in our opinion, it does not indicate that it introduces any condition as would completely destroy the autonomous administration of the minority institution. Whereas, Rule 86(2) is a provision relating to the service conditions of teaching staff for whom aid is provided for by the State. It is a regulatory measure which obligates the Management when filling up the post referred to in the said Rules to first explore the possibility of selecting seniormost teacher from the feeder category. It also provides that while making selection the management shall select the best qualified and most competent person among those available for selection/appointment to the post. The Rule further requires that the seniority shall be the first criteria subject to fitness and merit and in the event the claim of senior eligible teacher is by-passed, reasons therefor in writing should be recorded in the minutes by the the Promotion Committee. This Rule in no way interferes with the right of the Management to appoint a person of its choice, duly qualified, but all that this Rule requires is that the Management should consider the claim of the seniormost teacher and in the event the seniormost Teacher is to be by-passed, the same should be done by recording reasons for its justification. This Rule does not compel the Management to appoint only the seniormost teacher. This Rule also does not take away the discretion of the Management in appointing a person other than a seniormost teacher. The rationale in this Rule is to ensure that an experienced, competent and deserving person from amongst the employees should be appointed to the post of Headmaster. In the event the Management finds that for sufficient reasons the claim of the seniormost teacher needs to be by-passed, the Management is free to appoint person of its choice provided he has the requisite qualifications. The Supreme Court in St. John Teachers Training Institute (For Women) Madurai v. State of Tamil Nadu, reported in (1993) 3 SCC 595 has held that the Regulations should be with a view to promoting excellence of educational standards and ensuring security of the service of Teachers and other employees of the institutions and in the true interest of efficiency of institutions, discipline, health, sanitation, morality, public order and the like. The present Rule under consideration, by insisting that the Management should consider the claim of the seniormost teachers is also in keeping with the purpose of ensuring that the institutions are administered efficiently as the most efficient teacher, possessing the requisite qualifications, should be considered for appointment to the post of Headmaster. This Rule cannot be read to mean that the right of the Management in appointing a Headmaster of its choice is completely taken away.”
The Division Bench of this Court held that the law laid down in N. Ammad (supra) is not of any assistance to the Petitioner in that case. It further held that Rule 86A applies to institutions located in the State of Goa, to which the Education Act and Rules apply. Therefore, it was held that the Assistant Director of Education could not have approved the transfer from the school in Maharashtra to the institution in Goa. Consequently, the Division Bench held that the selection and appointment by the minority institution breached Rule 86 and was therefore illegal.
The minority institution challenged the Division Bench's judgment; the Supreme Court set it aside in Thomas Gonsalves and another v. Manohar Naik and others, (2017) 3 SCC 633, following the decision in Malankara Syrian Catholic College (supra). Therefore, we cannot accept the identical submissions of Mr. Shirodkar, which have been set aside by the Hon’ble Supreme Court in Thomas Gonsalves (supra).
Further, admittedly, in a similar situation, the Respondents granted approvals for the appointment of Sr. Sybil Cordeiro and Sr. Janet Almeida, who were transferred from Mumbai to Goa. Therefore, when the Respondents granted such approvals to the Petitioners in the past without applying the Education Rules, there is no justification to apply the same Rules in the present case.
In view thereof, we find that the rejection by the Respondents of the proposal sent by the Petitioners for the approval of selection and appointment of Sr. Parmar to the post of Principal of the 2nd Petitioner is an arbitrary and colourable exercise of powers and is grossly contrary to the law laid down by the Hon’ble Supreme Court, especially when the factual and legal position was repeatedly made clear to the Respondents. Such exercise of power, by applying the Education Rules 86 and 86A, which apply only to institutions other than minority institutions, infringes the right guaranteed by Article 30 (1) of the Constitution of India to minority institutions. We make it clear that, in view of Article 30 (1) of the Constitution of India, the provisions of the Education Act and Rules apply to minority institutions only to the extent of fixing the qualifications and conditions for service of the posts. Applying the Education Rules in their entirety would certainly infringe upon the right of minority institutions guaranteed by Article 30 (1) of the Constitution of India.
Therefore, we set aside the rejection and/or projected refusal of the Dy. Director of Education dated 07.03.2025 and direct the Respondents to consider the proposal of approval sent by the Petitioners for selection and appointment of Sr. Parmar Manishabahen Babubhai to the post of Principal of the 2nd Petitioner afresh in the light of the observations made hereinabove. Such process shall be completed by the Respondents within four weeks from the date of uploading this judgment on the official website of the High court.
The Petition is allowed in the above terms, and the Rule is made absolute accordingly.
Footnotes
- 1.The origin of this proposition is the judgment of the Constitution Bench of the Kerala High Court in Kerala Education Bill, 1957, AIR 1958 SC 956. The Constitution Bench of the Supreme Court has approved the proposition in Sidhrajbhai Sabbai v. State of Gujarat, AIR 1963 SC 540, and a nine-judge Bench of the Supreme Court in St. Xavier’s College Society v. State of Gujarat, (1974) 1 SCC 717. The Supreme Court further relied upon this proposition in N. Ammad v. Emjay High School, (1998) 6 SCC 674
- 2.Secy. Malankara Syrian Catholic College (supra) (para 25)
- 3.St. Xavier’s College Society v. State of Gujarat, (supra)
- 4.Secy. Malankara Syrian Catholic College (supra) (para 25 & 27)
- 5.Secy. Malankara Syrian Catholic College (supra) (para 27)
- 6.Chandana Das (Malakar) (supra) (paras 2, 20 & 27)
- 7.Ivy C. Da Conceicao (supra)