Krishnadas v. Manager, St Mary's U P School, Pullisssery, Palakkad; Balakrishnan K v. St Dominics A L P School (Thachampara)

## **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 19[th] 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 6[th] 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 2[nd] respondent as Headmaster. The petitioners in these writ petitions are teachers working in the respective schools. W.P.(C).Nos. 35018/19 & 10058/20 5 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 1[st] 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 6 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 7 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 1[st] 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 8 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 9 **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 1[st] 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 10 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 11 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 12 ## **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 13 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 14 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 15 ## **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 16 ## **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