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Judgment
M. Ramachandran, J.—The relief prayed in this original petition principally is for a declaration that the petitioner is entitled for appointment as Primary Department Teacher under respondents 1 and 2 on the basis of her rank position in the select list prepared for conferment of such appointments. It is alleged that notwithstanding her inclusion in the list, her claims for appointment had been overlooked on extraneous grounds. Counsel also pointed out that though the select list was of 1992, by virtue of orders passed on 2/11/1995 in CMP No. 24507/1994, her prospects have been secured by the orders passed by this court, which had provided that appointments that had been made by the respondents will be subject to ultimate result of the original petition. It is pointed out that vacancies are existing even now so as to accommodate the petitioner, and appropriate directions are warranted as has been prayed for.
Facts which might be relevant are given as following:-
Petitioner had good academic standards and after passing S.S.L.C. examination, she had passed Teachers Training Course (T.T.C.) in 1988. She is a Christian, who belongs to Church of South India (C.S.I.). She had been included in a select list published for appointment as Primary School Teachers. Her rank position was 102 out of 144. Appointments were made from the list which had come to be prepared after subjecting the candidates to test and interview. In normal course, there would not have been any impediment in her securing appointment. Up to rank No. 101, appointments had been made in the year, 1991. However, after 101, the educational authority - the second respondent, appointed persons with rank Nos. 103 and 104. The petitioner had approached the concerned authority and it had been assured that she will be accommodated in the next vacancy. Even after the appointment of all the selected hand,s she is not given appointment. In fact, on enquiries, she was advised that she will be given appointment after 19/1/1994. This, according to the petitioner had significance, and she was thereby directed to wait for a period of five years, since she got married in 1989. The marriage was treated as objectionable conduct, since she chose a bridegroom though Christian, from a different diocese. According to the petitioner, she had waited for this period as well, but when she had further approached the Management no definite replies were forthcoming from them and in the meanwhile, appointment began to be made from a fresh list of candidates. She had thereafter sent notice to the respondents as also submitted representations before the educational authorities of the State and since nothing had resulted, ultimately she had filed this original petition. She submits that though the treatment was inhuman and astounding, coming from stalwarts in the community, she never wished to rub the on the wrong side. But, disregarding her subjugation, her candidature had been mercilessly struck off for all time, without notice to her. She claims that she had legitimate expectation for appointment to aided school, and by resorting to restrictive practices, the educational authority which is coming under the Board of Education and a State coming under the purview of Article 12 of the Constitution had interfered with her fundamental rights and she stood discriminated. According to the petitioner, the reason for denying her appointment is flimsy, archaic and altogether unsustainable in law and therefore she is entitled to a declaration as had been prayed for.
In the counter affidavit filed, the second respondent, Manager of the school has raised an objection that a writ petition as against the educational agency is not maintainable at all, and especially, on the facts that have been urged in this original petition. It is admitted that C.S.I. (Central Kerala Diocese) was running a number of educational institutions. As recognised under Article 30(1) of the Constitution of India it had been functioning as a minority institution. Such minority establishments, had rights and right for choice, which could not have been curbed or interfered with by the State or University. Since there was no limitation or restriction in respect of administration of educational institution of minorities, they had an absolute discretion in the matter of selection and appointment of candidates and the petitioner had no unqualified right for being appointed in the institution inspite of being included in a rank list. Further the rank list was a provisional arrangement and notwithstanding the inclusion of rank list, management had freedom to pick and choose candidates at their discretion. Referring to the judgments of the Supreme Court, it had been held that it could have been possible for the institution to function in accordance with their ideas and interest of the community in general. Therefore, deletion of the name of the petitioner from the list was neither illegal nor improper. This is for the reason that appointment of staff including that of Headmaster and Principal is a necessary criteria in the administration of the institution.
However, as to the reason how the petitioner was excluded from the purview of appointment, there appears to be little controversy. It had been highlighted that the appointments could be made in its discretion. The gist of the argument was that there was nothing wrong in taking notice of the social background of a candidate, and even her private life. The eligibility could be adjudged only if the Bishop had approved of her candidature. If a girl from the Central Kerala Diocese got married to a member of another church she losses her rights immediately on marriage. According to the respondents, it was also the practice and convention that if the couple elects to join the Central Kerala Diocese, they have to wait for a minimum period of five years before they become eligible for reckoning.
As regards the case of the petitioner, the averments in paragraphs 6 and 7 in the counter affidavit would show how her claim was rejected. The said portion is extracted herein below:-
It may be stated here that the appointments in C.M.S.School of the C.S.I.Diocese of Madhya Kerala are made through provisional tests made from time to time. The rank list s are made after written tests and taking into consideration the candidates performance in the qualifying examinations, extracurricular activities, experience, involvement in church related activities and a personal interview. In preparing the rank lists, the following guidelines are adhered to. It is open only to members of the Madhya Kerala Diocese of the C.S.I. If a person belonging to any other church or religion joins the Madhya Kerala Diocese he/she is eligible to apply for selection only 5 years after the Bishop of this Diocese has approved such transfer. In the case of a woman of a different church married by a member of good standing of the Madhya Kerala Diocese there is no such restriction. She has full rights to apply for selection immediately after marriage. If a girl from the Madhya Kerala Diocese gets married into another church she loses her right immediately on marriage. If the couple elects to join the Madhya Pradesh Diocese they have to wait for a minimum period of 5 years after joining the church (and given approval by the Bishop) before they are eligible to apply. This is to dissuade people from "joining" the church just to get employment or other benefits.
It may be pointed out that all rank lists made are provisional. Appointments from the list are made only if the character and conduct is satisfactory and only if he/she remains a loyal member of the Diocese as mentioned above. In the case of the petitioner, she was a member of the Madhya Kerala Diocese and as such was selected for TTC course in the CNT TTI, Kottayam, a training school under this Management. After passing the TTC course she was considered for inclusion in the rank lit for appointment as an LPSA and in the rank list of 1988 her rank was 102 out of a total of about 130. In 1989, the petitioner got married. The bridegroom was a member of the Orthodox church at Mundiappally. To byepass the rules of the Madhya Kerala Diocese for making appointments, he became a member of the C.S.I. North Kerala Diocese and married Suja. This is a deliberate case of cheating. Wen Suja''s time came up for appointment our enquiries revealed that as per our Diocesan rules she is not eligible for appointment and as per the decision of the Board of Education which controls the educational policies of this diocese, she was disqualified. Hers is not the only case. There were other similar cases and they too were disqualified. But this is the only case of wilful misrepresentation and deliberate attempt of cheating. Her father who approached the first respondent (Secretary, Education Board and the Manager and others) was told in no unambiguous terms that she was not eligible for appointment in Diocesan Schools and that she has to put fresh application 5 years after her transfer/joining this diocese has been approved by the Bishop of this Diocese. All the candidates except those disqualified in the rank list published in 1988 were given appointment and a new provisional rank list prepared in 1992 is in use now."
Therefore, it is urged that neither the Government nor the Department could direct the respondents to appoint the petitioner and she does not have any legal right to seek such a direction. It was further highlighted that as per the provisions of the K.E.R., the manager has every right to select and appoint teachers provided they have the required qualifications prescribed by the Government. Being minority institutions, ''with specific intention and noble ideas'', such rights are conferred on them and the selection and appointment of teachers are of supreme importance and mere inclusion in the select list did not confer any right to get appointment and the petitioner was not also a claimant coming under any of the rules of the K.E.R.
The issue therefore is whether it is possible for the petitioner to raise her claims for appointment successfully, by way of this original petition. In a statement filed on behalf of the third respondent-the Director of Public Instructions, it has been stated that the application filed by her is pending with them, but because of the pendency of the original petition, it has not been looked into. No comments about the averments in the original petition has been made nor the justifiability of the stand taken by the Corporate Educational agency adverted to.
The undisputed facts which would be gatherable are as following:-
Petitioner''s name had been included in a select list of 1988 and perhaps apart from the petitioner, everybody else had been conferred with appointment.
There was no time limit about the select list.
Petitioner has been denied appointment in view of the conduct of marrying a person outside the diocese.
Per se these might sound arbitrary. But, the question nevertheless, is, will it be possible for this Court to grant reliefs?
I may refer to one more aspect raised by the management as a preliminary issue. It is stated that petitioner claims appointment because of inclusion in a list. It is a provisional list and inclusion in the list does not ensure automatic appointment and there is no right vested in the candidate for enforcement of such rights. Apparently, sustenance is drawn from judicial pronouncements which have laid down a general principle that inclusion in the rank list, does not entitle the candidate to enforce a claim for appointment. But, in this case, it is in evidence that it was a select list, which was in operation and the petitioner could have aspired for appointment, but for certain intervening circumstances. Her claims had crystallized, and it would not have been normally permissible for the respondent to avoid or ignore her. I am also convinced that the reason for denying appointment to the petitioner is absolutely unsustainable, and could hardly be expected from a body, engaged in the noble work of imparting education to the community.
But, the substantial submission is that a writ of mandamus as prayed for may not lie against the corporate educational agency so as to compel them to appoint a person, inspite of inclusion in a select list. Sri. Rajendran Nayar referred to a number of decisions which indicate that the Manager as a corporate educational agency is indeed amenable to writ jurisdiction. The duties and functions expected of him are of public nature and normally, for enforcement of rights, a writ of mandamus may lie. But, will it be a general rule, and to what extent the duty to appoint a person from a select list could be enforced? Thus, the basic question is whether there is a legal duty on the part of the management to appoint the petitioner as a teacher.
Discharge of a public duty may arise because of the presence of constitutional mandates, obligation created by a statute or rules, or as a result of lawful orders passed by competent authorities or may even arise from and out of common law mandate. However, even after scanning through the statutes, it is not possible for me to find a position which commands the manager to appoint a particular individual, as a teacher of the Institution run by it. The natural conclusion therefore is that as far as the prayer of the petitioner is concerned, it may not be possible for this Court to issue a direction to the manager to act in a particular manner. In this view, it may not be necessary for me to go to the other objection, that being one recognised as a minority institution, it may not be possible for the authorities to compel that the petitioner should be absorbed as a teacher for the reason that her name is in the select list.
Counsel for the petitioner points out that it was a case of a public employment and the freedom of choice projected by the management automatically has to give way. It is true that the entire expenses for meeting the teachers'' salary and sustenance is borne by the Government. Therefore, fixing and choosing of hands at the whims of the Manager could not have been encouraged. He also submits that only for the reason that it is a minority institution, the allergy expressed as against a person who had married against the alleged conventions and norms is illegal and arbitrary. The question was as to what might have been the position of a person who was included in the rank list, but did not belong to the community at all. This Court had of course occasion to notice that abuse of power in the matter of appointments is rampant in aided schools. Counsel had invited may attention of the Bench decision of this Court in W.A.No. 278 of 1995 and connected cases. The Division Bench held that there were sufficient reasons for the Court to strike down Section 11 of the Act, which conferred power of appointment to the manager, but had refrained from it, for the time being. It was observed as following:-
But we do not think that we need straight away strike down Section 11 of the Act as it now stands as arbitrary and as violative of Articles 14, 19 or 21 of the Constitution. We think, especially in the absence of a proper counter affidavit which meets the very serious allegations regarding the irregularities made in these original petitions, that the State should be given an opportunity to consider this serious aspect in the interest of ensuring quality education and to prevent charges of corruption to consider the question for itself and to take a decision thereon leaving it to the petitioners to approach this court if they feel aggrieved by the inaction of the State to take any remedial measure or by any decision that may be taken by the State in that regard. Of course, it is not normally the part of the duty of this Court to direct what Legislation must be brought forward by the State. That is a matter for the Legislature. When serious constitutional aspects are highlighted and the pernicious practices are alleged, it is necessary for the State to consider whether a tightening up of the process is called for in the circumstances. But this Court cannot obviously direct the State to restore the original Section 11 of the Kerala Educational At to the statute book. But, in the light of the facts disclosed it appears to us that it is the plain duty of this court to draw the attention of the Government to the evil projected by the petitioners and to consider whether remedial measures are not warranted in such circumstances. Of course, whether the old Section 11 of the Act should be reenacted replacing the present Section 11 of the Act is a matter for the Legislature or Government to consider. But, we think that in exercise of our jurisdiction under Article 226 of the Constitution of India, it is permissible, even necessary to direct the State to bestow its attention, to the misuse or abuse of the power conferred by Section 11 of the Act on Managers of aided schools and also to consider whether steps should not be taken to avert the evil or to ensure that quality is not sacrificed at the altar of avarice and self interest. At last, it is necessary for the Government to look into this aspect in detail in the interest of education and maintaining the proper standards in education."
Such observations were made in the context that even though the Supreme Court had upheld Section 11 which was originally worded as below:-
"11. Appointment of teachers in Govt. and aided schools:- The Public Service Commission shall, as empowered by this Act, select candidates for appointment as teachers in Government and aided schools. Before the 31st May of each year, the Public Service Commission shall select candidates with due regard to the probable number of vacancies of teachers that may arise in the course of the year. The candidates shall be selected for each district separately and the list of candidates so selected shall be published in the Gazette. Teachers of aided schools shall be appointed by the manager only from the candidates so selected for the district in which the school is located. Provided that the manager may, for sufficient reason, with the permission of the Public Service Commission, appoint teachers selected for any other district. Appointment of teachers in Government schools shall also be made from the list of candidates so published."
the Government had thereafter surrendered the rights by giving away the power of appointment exclusively to the managers, and such power was being misused. One is reminded of the words of Bismark that ''one would sleep better, if he does not know how the law and sausages are made''. The Court had required the Government to re-examine the issue afresh, and with expedition. In this context, it could also be observed that the right of the minorities envisaged under Article 30 is for establishment and administration of educational institutions of their choice. But, as the counsel rightly asserts, once they receive aid from the Government, that has necessarily to be circumscribed by reasonable restrictions subject to Article 30(2). However, as this issue may not be strictly relevant, I leave it at that.
Counsel also referred to Section 12 and showed that the conditions of aided school teachers were subject to supervision by the Government and there was no absolute power as had been projected. But, these observations do not help to resolve the issue in favour of the petitioner as the basic difficulty of the petitioner remains still. Under Rule 7 Chapter III of the K.E.R., if there is denial of appointment to a qualified thrown out teacher or there is denial of promotion to a teacher, the Manager could be proceeded against. But, similar powers are not there in the circumstances available as a present in this case.
There is no case that the Manager has violated any of the rules or provisions of K.E.R. It is for the Manager under Rule 9(3) of Chapter III to provided site, building, staff, equipment, furniture etc. as per the rules in conformity with the provisions of the Act. There is no violation pointed out on any of these score. As I find it, even though in certain circumstances, it might be possible for issue of a writ of mandamus to the aided school manager, on the facts of this case, I find it not possible to grant the reliefs prayed for.
The facts of the case appear to be very harsh and the grievance immeasurable. Even though, the petitioner belongs to the C.S.I. community, the respondents have taken a stand that by her marriage, to a member of the same community, but who belongs to a different diocese, she has forfeited her claims for appointment and a career. I am disturbed that the corporate educational agency has delayed deep into the personal life of the petitioner and mixed her marriage with her career. But, I have to stop by making such an observation. As the Court has power to interpret the law, and is not expected to make law, it may not be possible to extend any help to the petitioner.
The Original Petition will stand dismissed.