C.V. Francis v. State of Kerala and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE MONDAY, THE 07TH DAY OF JANUARY 2019 / 17TH POUSHA, 1940 WP(C). No.32141 of 2016** **PETITIONER:** **C.V. FRANCIS AGED 54 YEARS, S/O.LATE C.T.VARKEY, CHERIYIL HOUSE, KOODOTHUMMEL, KANIYAMPATTA PO-673 122, NOW WORKING AS HSA (MATHEMATICS), SARVODAYA HIGHER SECONDARY SCHOOL, EACHOME, ANJUKUNNU P.O.-670 721, WAYANAD.** **BY ADVS. SRI.A.JAYASANKAR SMT.B.MEERA SRI.ASHWIN SETHUMADHAVAN SRI.MANU GOVIND SRI.S.SABARINADH** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO THE GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2 DIRECTOR OF PUBLIC INSTRUCTION OFFICE OF DIRECTORATE OF PUBLIC INSTRUCTION, THYCAUD, THIRUVANANTHAPURAM-695 014. 3 DIRECTOR OF HIGHER SECONDARY EDUCATION THE DIRECTORATE OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM-695 001. 4 DEPUTY DIRECTOR OF EDUCATION WAYANAD, CIVIL STATION, KALPETTA NORTH, WAYANAD-673 122.** WP(C) No.32141/2016 2 - **5 DISTRICT EDUCATIONAL OFFICER WAYANAD, CIVIL STATION, KALPETTA NORTH, WAYANAD-673 122.** **6 NATIONAL COMMISSION FOR MINORITY EDUCATIONAL INSTITUTIONS, GATE NO.4, 1ST FLOOR, JEEVAN TARA BUILDING 5, SANSAD MARG, PATEL CHOWK, NEW DELHI-110 001, REPRESENTED BY ITS SECRETARY.** - **7 JESUIT EDUCATIONAL AND CHARITABLE SOCIETY OF WAYANAD, CHRIST HALL, MALAMARAMBA P.O., KOZHIKODE-673 009, REPRESENTED BY ITS CHAIRMAN & CORPORATE MANAGER SRI.BABY CHALIL S.J.** - **8 SARVODAYA HIGHER SECONDARY SCHOOL EACHOME, ANJUKUNNU P.O.-670 721,WAYANAD, REPRESENTED BY ITS MANAGER.** **9 SRI.WILSON P.A. NOW WORKING AS HEADMASTER, SARVODAYA HIGHER SECONDARY SCHOOL, EACHOME, ANJUKUNNU P.O.-670 721, WAYANAD.** **BY ADVS. SR. GOVERNMENT PLEADER SHRI S.GOPINATHAN SRI.AMAL GEORGE SRI.KOSHY GEORGE SRI.KRISHNADAS P.NAIR, CGC SRI.GEORGE THOMAS (MEVADA)(SR.) SRI.KRISHNADAS P.NAIR CGC SRI.MANU GEORGE KURUVILLA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23.11.2018, THE COURT ON 7.1.2019 DELIVERED THE FOLLOWING:** WP(C) No.32141/2016 3 ## **“CR”** This writ petition raises a question as to the meaning of word 'establish and administer' educational institutions under Article 30(1) of the Constitution of India. 2. Sarvodaya Higher Secondary School was established in the year 1951 by late N.K. Kunjikrishnan Nair. He was a member of Kerala State Legislative Assembly. The School was purchased by the Jesuit Educational and Charitable Society of Wayanad in the year 1990. They appear to have invested money in infrastructure and development of the School. Thus, the aforesaid Society became a corporate educational agency. By an order of Government of India dated 21.07.2001, the Sarvodaya High School administered by the Society was declared as a minority educational institution within the meaning of Section 2(g) of the National Commission for Minority Educational Institutions Act, 2004. 3. The present dispute leading to filing of the writ petition has arisen in the context of appointment of a Headmaster. Petitioner, Sri.Francis C.V., joined WP(C) No.32141/2016 4 the School as HSA in the year 1987. Manager has chosen to appoint Father Wilson T.A., the 9[th] respondent as the Headmaster of the School with effect from 01.04.2015. Admittedly, Fr.Wilson is junior to the petitioner. 4. There can't be any dispute as to the right of the manager of the minority institute to choose Head of an Institution. The challenge made by the petitioner before the departmental hierarchy ended in rejection. Taking note of the rights of minority educational institution under Article 30(1) of the Constitution of India, the petitioner has now confined his attack on the decision of the Government of India declaring minority status to the School. 5. The learned counsel for the petitioner pointing out to the fact that the School was established by late N.K. Kunjikrishnan Nair, the individual belong to non-minority community, argue that minority status can be claimed only if both conditions referred under Article 30(1) are established. The argument is that the words “establish and administer” in Article 30(1) must be read conjunctively to gain protection. Since the WP(C) No.32141/2016 5 School was brought into existence by a non-minority individual, it was argued that merely based on right to administer school, the institution cannot claim protection under Article 30(1). The learned counsel has placed reliance on S. Azeez Basha v. Union of India [AIR 1968 SC 662] . 6. Apex Court in Azeez Basha 's case had occasioned to consider amplitude of Article 30(1). It was held that words “establish and administer” in Article 30(1) must be read conjunctively. It was a case challenging an enactment relating to Aligarh Muslim University. Facts would go on to show that Muslim minority had established M.A.O. College and voluntarily surrendered the property, including the college building to the corporate body created under Aligarh Muslim University Act, 1920. It is in that context the Apex Court referred to the meaning of establish and administer under Article 30(1). After referring to Azeez Basha's case, in similar fact situation to this case, a Single Judge of this Court in Rt.Rev.Dr.Aldo Maria Patroni S.J. and another v. the Assistant Educational Officer (AIR 1974 Kerala 197) held as follows: “even if an institution previously run WP(C) No.32141/2016 6 by some other organisation is subsequently taken over by a minority community and run by it, it must be held that it was established by that minority community.” 7. The above judgment was also followed by Karnataka High Court in Dr.T.M.A. Pai Foundation v. State of Karnataka [ILR 1985 Karnataka 1056] and further elaborated opining that expression established in Article 30 includes not only the founding of institution, but also securing the ownership of an already founded institution, which means re-establishment of the institution under the new management and owner. 8. In etymological sense, the word “establish” means founding or creation. However, it can have a different meaning in constitutional context, which is not just limited to bringing into existence through founding. The Constitution is a living document. It must be capable to encompass all situation in which rights are intend to be protected. The word establish cannot be understood in isolation of the object and purpose of Article 30(1) of the Constitution of India. The main object of the Article is to accord protection to minority and to create the sense of WP(C) No.32141/2016 7 feeling that they have equal rights with the majority and to bring up institutions to compete with any other institution of excellence. Thus an educational institution purchased by minority and dedicated for the cause of minority would also fall within the meaning of establish. Thus establish would embrace giving life and soul to any existing institution through dedication. Merely because an institution was originally brought into existence or founded by a non-minority individual itself will not take the institution out of the ambit of Article 30(1) of the Constitution. Purchase of an institution by a minority or dedicating an institution to minority would amount to bringing such institution within the folds of “establish” as referred under Article 30(1) of the Constitution of India. Thus challenge to the minority status must fail. Accordingly, the writ petition is dismissed. No costs. Sd/- ## **A. MUHAMED MUSTAQUE, JUDGE.** sp WP(C) No.32141/2016 8 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1 : A TRUE PHOTOCOPY OF THE GO NO.B4/2425/08/AT ISSUED BY THE 5TH RESPONDENT REJECTING THE CLAIM OF 'MINORITY STATUS' RAISED BY THE 7TH & 8TH RESPONDENT & REFUSING TO APPROVE THE ILLEGAL APPOINTMENT DATED 27-09-2008.** - **EXHIBIT P2 : A TRUE PHOTOCOPY OF THE APPLICATION PREFERRED BY THE 7TH RESPONDENT SOCIETY BEFORE THE 1ST RESPONDENT GOVERNMENT, SEEKING MINORITY STATUS DATED 26-9-2009.** - **EXHIBIT P3 : A TRUE PHOTOCOPY OF THE DECLARATION F.NO.1660 OF 2009/44429 ISSUED BY THE 6TH RESPONDENT CONFERRING MINORITY INSTITUTION STATUS TO THE 8TH RESPONDENT SCHOOL DATED 21-07-2010.** - **EXHIBIT P4 : A TRUE PHOTOCOPY OF THE APPLICATION FOR THE POST OF HEADMASTER SUBMITTED BY THE PETITIONER WITH THE 7TH RESPONDENT DATED 24-02-2015.** - **EXHIBIT P5 : A TRUE PHOTOCOPY OF THE ORDER NO.1/2015 ISSUED BY THE 7TH RESPONDENT APPOINTING THE 9TH RESPONDENT AS THE HEADMASTER OF THE 8TH RESPONDENT SCHOOL DATED 30-03-2015.** - **EXHIBIT P6 : A TRUE PHOTOCOPY OF THE ORDER NO.B.6/1500/2015/TA.TI ISSUED BY THE 5TH RESPONDENT REJECTING EXHIBIT P5 ORDER OF APPOINTMENT DATED 11-02-2016.** ## **EXHIBIT P7** - **TRUE PHOTOCOPY OF THE ORDER NO.B1/3627/16 K.DIS ISSUED BY THE 4TH RESPONDENT TO THE 5TH RESPONDENT ON 18.10.2016 DIRECTING TO GRANT RATIFICATION FOR EXHIBIT P5 ORDER ALONG WITH RETYPED COPY.** - **EXHIBIT P8 A COPY OF THE APPOINTMENT ORDER OF THE 9TH RESPONDENT AS APPROVED BY THE 5TH RESPONDENT.** WP(C) No.32141/2016 9 ## **' RESPONDENTS EXHIBITS:-** **==> picture [435 x 402] intentionally omitted <==** **//TRUE COPY//** **P.A. TO JUDGE** **sp**