Kerala High Court
Krishnadas vs Manager on 19 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
TUESDAY, THE 19TH DAY OF JANUARY 2021 / 29TH POUSHA, 1942
WP(C).No.35018 OF 2019(B)
PETITIONER:
KRISHNADAS
AGED 54 YEARS
S/O KUNCHUNNI GUPTAN,SREEPADAM,PALLIKURUPU,
MANNARKKAD,PALAKKAD.
BY ADV. SRI.VINOD KUMAR.C
RESPONDENTS:
1 MANAGER
ST MARY'S U P SCHOOL,PULLISSERRY, PALAKKAD-678582.
2 ASSISTANT EDUCATION OFFICER,
AEO OFFICE,MANNARKKAD,PALAKKAD-678582.
3 STATE OF KERALA,
REP.BY SECRETARY,DEPARTMENT OF GENERAL
EDUCATION,SECRETARIAT,THIRUVANANTHAPURAM-695001.
4 SR.SHANDY FRANCIS,
ST.MARY'S CONVENT,PULLISSERY,MANNARKKAD,
PALAKKAD-678582.
5 BEENA,UPST,
ST MARY'S UP SCHOOL,PULLISERRY,
MANNARKKAD,PALAKKAD-678582.
6 NATIONAL COMMISSION FOR MINORITY EDUCATIONAL
INSTITUTIONS, GATE NO.4,1ST FLOOR,JEEVAN TARA
BUILDING, PATEL CHOWK,PARLIAMENT STREET,
NEW DELHI-110001.
R1 BY ADV. SRI.JACOB SEBASTIAN
R1 BY ADV. SRI.K.V.WINSTON
R1 BY ADV. SMT.ANU JACOB
R2-3 BY GOVERNMENT PLEADER
R4 BY ADV. SRI.SUNIL NAIR PALAKKAT
R4 BY ADV. SRI.K.N.ABHILASH
R5 BY ADV. SRI.LIJU. M.P
R6 BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
19.01.2021, ALONG WITH WP(C).10058/2020(F), THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:-
W.P.(C).Nos. 35018/19 & 10058/20
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
TUESDAY, THE 19TH DAY OF JANUARY 2021 / 29TH POUSHA, 1942
WP(C).No.10058 OF 2020(F)
PETITIONER:
BALAKRISHNAN.K
AGED 51 YEARS
S/O.KRISHNAN KUTTY GUPTAN,
KOODATHINGAL HOUSE, VAZHAMPURAM P.O.,
KARAKURUSSI, PALAKKAD-678 595.
BY ADVS.
SRI.T.G.RAJENDRAN
SRI.T.R.TARIN
SRI.V.A.VINOD
RESPONDENTS:
1 THE MANAGER, ST.DOMINICS A L P SCHOOL,
THACHAMPARA, MANNARKKAD,
PALAKKAD-678 593.
2 JESSY.K.O.,
TEACHER, ST.DOMINICS A L P SCHOOL,
THACHAMPARA,
PALAKKAD-678 593.
3 THE ASSISTANT EDUCATIONAL OFFICER,
MANNARKKAD, PALAKKAD DISTRICT-678 582.
4 GOVERNMENT OF KERALA,
REPRESENTED BY THE SECRETARY, DEPARTMENT OF
GENERAL EDUCATION, SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
W.P.(C).Nos. 35018/19 & 10058/20
3
5 NATIONAL COMMISSION FOR MINORITY EDUCATIONAL
INSTITUTIONS, GATE NO.4, 1ST FLOOR, JEEVAN TARA
BUILDING, PATEL CHOWK, PARLIAMENT STREET, NEW
DELHI-110 001.
R1 BY ADV. SRI.JACOB SEBASTIAN
R1 BY ADV. SRI.K.V.WINSTON
R1 BY ADV. SMT.ANU JACOB
R2 BY ADV. SRI.K.T.THOMAS
R2 BY ADV. SRI.NIKHIL BERNY
R5 BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
19.01.2021, ALONG WITH WP(C).35018/2019(B), THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
W.P.(C).Nos. 35018/19 & 10058/20
4
JUDGMENT
[ W.P.(C)Nos.35018/2019 & 10058/2020 ]
Dated this the 19th day of January 2021
1. The issue raised in these writ petitions is with regard to the
award of minority status to the aided schools, which are the 1 st
respondent in both these cases.
2. In W.P.(C).No.35018/2019, the challenge is against Ext.P2 order
dated 27.07.2009 of the 6th respondent National Commission for
Minority Educational Institutions. Further reliefs are sought for
to direct respondents 1 and 2 to appoint the petitioner as
Headmaster in the School in a vacancy which arose on
01.06.2019. In W.P.(C).No.10058/2020, the challenge is against
Ext.P1 order dated 05.12.2007 passed by the Commission. A
further prayer is sought for to direct the Assistant Educational
Officer not to approve the appointment of the 2nd respondent as
Headmaster. The petitioners in these writ petitions are teachers
working in the respective schools.
W.P.(C).Nos. 35018/19 & 10058/20
3. Heard the learned counsel for the petitioners in both these cases,
the learned Government Pleader and the learned counsel
appearing for the contesting respondents.
4. It is submitted by the learned counsel for the petitioner in W.P.(C)
No.35018/2019 that the petitioner had been working as a teacher
in the 1st respondent school from 01.06.1992 and is entitled and
eligible for appointment to the post of Headmaster. It is stated
that the school was established in the year 1953 by Late
Kavungal Madhavan Nair as an LP School. It was upgraded as a
UP School in 1960. After the death of Sri.Kottiyode Balakrishna
Panicker, who was the Manager, Dr.Radhakrishnan was appointed
as the Manager of the school. It is stated that since the school is
not established by a minority, the action of the respondents in
having conferred a minority status on the school by Ext.P2 was
completely untenable. It is submitted that the petitioner came to
know of the minority status granted to the school only when his
claim for appointment as HM was rejected by the Manager.
Relying on a decision of this Court in Raju A & others vs. The
Manager, Nalloor Narayana L.P Basic School, Kozhikode
and others (2019 (5) KHC 1) it is contended that the minority
W.P.(C).Nos. 35018/19 & 10058/20
status is liable to be granted to a school only if this school is
established and administered by a minority or minorities. It is,
therefore, contended that the conferment of minority status on
the school, which was not established by any minority community
was per se illegal and untenable.
5. Likewise, the petitioner in W.P.(C) No.10058/2020 challenges
Ext.P1 order dated 05.12.2007. It is submitted that the school
was established in the year 1931 by Late Govindanunni Panicker
as the Desabandhu Lower Primary School. After the death of the
founder, the school was managed by his children till 1985. In that
year, the school was transferred to one Immanuel Jacob, who
managed the school for 7 years. In the year 1992, Immanuel
Jacob transferred the management of the school along with its
property to the Society of Dominican Sisters, Perimpadari,
Mannarcad. It is stated that the name of the school was changed
in the year 1993 to St. Dominics Aided Lower Primary School. It
is stated that a vacancy of Headmaster has arisen in the school
on 01.04.2020 and the petitioner, who was eligible and qualified,
had sought appointment which was not considered by the
respondents on the ground that the school had minority status. It
W.P.(C).Nos. 35018/19 & 10058/20
is contended that it is only a school, which is established and
administered by a minority that can claim for minority status
under Article 31 of the Constitution of India and that the finding
to the contrary in the order of the Commission is bad in law.
6. Detailed counter affidavits have been placed on record by the
respective respondents. It is contended by the learned counsel
appearing for the 1st respondent in W.P.(C) No.35018/2019 that
the petitioner is not the senior most teacher in the school and he
has no claim for appointment as HM on the basis of seniority or
qualification. It is submitted that the petitioner was teaching in
the school from 1992 onwards and was fully aware of the
minority status awarded to the school as early as in 2009. It is
stated that after enactment of the National Commission for
Minority Educational Institutions Act, 2004 (hereinafter referred
to as 'the 2004 Act), the Apex Court in the decision reported in
Sisters of St. Joseph of Cluny & another vs. State of West
Bengal and others (2018 (6) SCC 772) held that the power
under Section 11(f) of the 2004 Act would clothe the Commission
with the power to decide any question with regard to the right to
establish or administer educational institutions by a minority. It is
W.P.(C).Nos. 35018/19 & 10058/20
submitted that though the school was initially started and run by
a non minority educational agency, the purchase of the school
and the change effected in its name amounted to the
establishment of a minority educational institution. It is
submitted that all the factual aspects of the matter were brought
before the Commission, which is empowered to consider the
entire factual aspects. Thereafter, it was found that the institution
answers the requirements of a minority educational institution
and it was, thereafter, that the order has been rendered.
7. It is submitted that the very fact that the petitioner who was a
teacher in the school never challenged the order of the
Commission for 10 long years would show that there are no
bonafidies in the challenges and that it is only made on an
experimental basis. The decision of the Apex Court in S. Azeez
Basha and another vs. Union of India (AIR 1968 SC 662) is
relied on to contend that the purchase of the school by an
admitted minority denomination and the renaming carried out by
the said denomination would amount to an establishment of a
minority educational institution. The judgment of the Apex Court
in Rt.Rev. Dr. Aldo Maria Patroni and another vs. The
W.P.(C).Nos. 35018/19 & 10058/20
Assistant Educational Officer (AIR 1974 Ker 197) is also relied
on. It is stated that it was held therein that even if an institution
previously run by some other organization is subsequently taken
over by a minority community and run by it, it must be held to be
established by that minority community. The decision in State of
Kerala, Etc vs Very Rev. Mother Provincial, Etc (AIR 1970 SC
2079) is also relied on.
8. The respondents in W.P.(C) No.10058/2020 has also placed a
detailed counter affidavit on record. It is contended that the
petitioner is not the senior most qualified hand eligible for
appointment as HM and that the petitioner has locus standi to
challenge the decision of the minority commission.
9. Counter affidavits have been placed on record by the Government
as well. The learned counsel for the 2 nd respondent in W.P.(C)
No.10058/2020 has also placed a counter affidavit on record.
Apart from the factual aspects of the matter as are pleaded in the
1st respondent's counter affidavit, the learned counsel would
contend that the order of the National Commission, which is
vested with the power under the 2004 Act to decide all questions
W.P.(C).Nos. 35018/19 & 10058/20
relating to minority status, are issued after considering the
factual aspects of the matter and that no grounds of challenge
have been raised against the orders which are liable to be
considered in exercise of judicial review. It is further contended
that a Bench Decision of this Court has also specifically entered a
finding that the declaration of an educational institution as a
minority educational institution would depend upon the
satisfaction of the twin conditions of establishment and
administration of such educational institution by a minority or
minorities. It is contended that in the instant case, such
satisfaction having been entered by the Commission on the basis
of specific material placed before it, this court would not be
justified in interfering on facts. It is submitted that in the
judgment relied on by the petitioners it was only on a finding that
the National Commission had entered findings with regard to
minority status without any basis that the order of the
Commission had been set aside. It is contended that since in the
instant case no challenge had been raised within any reasonable
period of time and since no grounds sufficient to unsettle the
order of the Commission in judicial review have been made out in
these writ petitions, the writ petitions are liable to be dismissed.
W.P.(C).Nos. 35018/19 & 10058/20
10.I have considered the contentions advanced on either side.
Article 30(1) of the Constitution of India reads as follows:-
"30.Right to minorities to establish and administer educational
institutions
(1) All minorities , whether based on religion or language, shall have the
right to establish and administer educational institutions of their choice."
The Apex Court in S. Azeez Basha and another vs. Union of
India (supra) held that an educational institution which was
established by an act of Parliament could not claim minority
status under Article 31 even if it was administered by a minority
community. In State of Kerala, Etc vs Very Rev. Mother
Provincial (supra), the Apex Court held that the twin
requirements of establishment and administration have to be met
for an institution to claim minority status. This Court in Rt. Rev.
Dr. Aldo Maria Patroni and another vs. The Assistant
Educational Officer (supra) held that a school established by
the Basel German mission which was taken over by the Roman
Catholic community could not be denied minority status only on
the ground that it was not initially started by the said community.
A Division Bench of this Court in Raju A & others vs. The
W.P.(C).Nos. 35018/19 & 10058/20
Manager, Nalloor Narayana L.P Basic School, Kozhikode
and others (supra) held that the decision in Rt. Rev. Dr. Aldo
Maria Patroni does not lay down a legal proposition that either
establishment or administration of an educational institution by a
minority would suffice for the purpose of declaring the institution
to be a minority educational institution. It was further held that a
conspectus of the decisions and the provisions of the Act 2 of
2005 would lead to the irresistible conclusion that the declaration
of an educational institution as a minority educational institution
would depend upon the satisfaction of the twin conditions of
establishment and administration of such educational institution
by a minority or minorities. Thereafter, on facts, it was found that
the order of the National Commission in that case showed that
the Commission had come to the conclusion that the school is
eligible for grant of minority status on a finding that the school
was being administered by an individual Muslim. It was held that
there was no material to show that the school was established
with the main objective of subserving the interest of the Muslim
community. It was in the above factual situation that the order of
the Commission was set aside by the Division Bench of this Court.
W.P.(C).Nos. 35018/19 & 10058/20
11.In the instant case, there is no dispute that the schools in
question are being presently run by minorities. No such ground
is raised in the writ petition. Further, it is contended by the
learned counsel appearing for the respondents that all materials
to show that the establishment and administration of the schools
by the minorities had been produced and examined by the
Commission. No grounds are raised with regard to the decision
making process of the Commission or even as to the want of
material before the Commission to reach its finding by it.
Moreover, no reason whatsoever is stated by the petitioners, who
are admittedly senior teachers in the schools, as to why no
challenge was raised till now to the orders which are issued in
the years 2007 and 2009 respectively. In the above factual
situation, it is to be assumed that the decision of the Commission
had been taken on the basis of facts available before it which
were uncontroverted.
12.In the above view of the matter, I am of the opinion that no
grounds have been made out by the petitioners herein to upset
the orders issued by the Commission on the basis of applications
made before it and the facts which were pleaded and proved
W.P.(C).Nos. 35018/19 & 10058/20
before it. The challenge, therefore, fails and the writ petitions are
accordingly dismissed.
Sd/-
Anu Sivaraman, Judge
sj
W.P.(C).Nos. 35018/19 & 10058/20
APPENDIX OF WP(C) 35018/2019
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF SENIORITY LIST DT 26.09.2019
EXHIBIT P2 TRUE COPY OF THE INTIMATION AWARDING
MINORITY STATUS TO ST MARY'S SCHOOL BY R6
DT NIL.
RESPONDENTS EXHIBITS:
EXHIBIT R1(A) A TRUE COPY OF THE APPLICATION DATED JULY
30, 2008 SUBMITTED BY THE FIRST
RESPONDENT BEFORE THE SIXTH RESPONDENT.
EXHIBIT R1(B) A TRUE COPY OF THE MEMORANDUM OF
ASSOCIATION RELATING TO THE CONGREGATION.
EXHIBIT R1(C) A TRUE COPY OF THE NOTICE DATED MARCH 22,
2019 ISSUED BY THE FIRST RESPONDENT AND
DISPLAYED IN THE NOTICE BOARD OF THE
SCHOOL.
EXHIBIT R1(D) A TRUE COPY OF THE ORDER DATED OCTOBER
29, 2019.
EXHIBIT R4(a) A TRUE COPY OF THE ORDER DATED OCTOBER
29,2019.
W.P.(C).Nos. 35018/19 & 10058/20
APPENDIX OF WP(C) 10058/2020
PETITIONER'S EXHIBITS:
EXHIBIT P1 COPY OF THE ORDER OF THE COMMISSION DATED
05.12.2007,.
EXHIBIT P2 TRUE COPY OF THE REPRESENTATION SUBMITTED
BY THE PETITIONER BEFORE THE 1ST
RESPONDENT DATED 25.02.2020.
EXHIBIT P3 TRUE COPY OF THE ENGLISH TRANSLATION OF
EXT.P2.
EXHIBIT P4 TRUE COPY OF THE COMBINED SENIORITY LIST
OF STAFF (TEACHING AND NON- TEACHNG)
BELONGING TO PRIMARY/UPPER PRIMARY SCHOOL
AS ON 01.01.2018.
EXHIBIT P5 TRUE COPY OF THE JUDGMENT IN WA
NO.864/2019 OF THIS HON'BLE COURT.
RESPONDENTS EXHIBITS:
EXHIBIT R1(A) A TRUE COPY OF THE APPLICATION DATED MAY
30, 2007 SUBMITTED BY THE FIRST
RESPONDENT BEFORE THE FIFTH RESPONDENT.
EXHIBIT R1(B) A TRUE COPY OF THE MEMORANDUM OF
ASSOCIATION RELATING TO THE CONGREGATION.
EXHIBIT R1(C) A TRUE COPY OF THE APPROVED COMBINED THE
SENIORITY LIST OF STAFF OF THE
EDUCATIONAL AGENCY AS ON 1 JANUARY 2020.
True copy
PS to Judge
