L. Thakachan v. Corporate Manager, Corporate Management of Catholic Schools, and Others (WA Nos. 1885 & 1899 of 2018)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** ## **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **THURSDAY, THE 24TH DAY OF OCTOBER 2019 / 2ND KARTHIKA, 1941** ## **WA.No.1885 OF 2018** **AGAINST THE JUDGMENT DATED 6.7.2018 IN WP(C) 10833/2016(D) OF HIGH COURT OF KERALA** ## **APPELLANT/4TH RESPONDENT:** **L.THAKACHAN** **HIGHER SECONDARY SCHOOL TEACHER(ENGLISH), ST. ANTONS HIGHER SECONDARY SCHOOL, KANJIRACODE, P.O KUNDARA, KOLLAM DISTRICT 691501** **BY ADV. SRI.V.A.MUHAMMED** ## **RESPONDENTS/PETITIONER & RESPONDENTS 1 TO 3 & 5:** - **1 THE CORPORATE MANAGER CORPORATE MANAGEMENT OF CATHOLIC SCHOOLS, BISHOPS HOUSE, TANGASSERRY, KOLLAM 691007** - **2 THE STATE OF KERALA REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO GOVERNEMENT, GENERAL EDUCATION (T) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001.** - **3 THE DIRECTOR OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDINGS, SANTHI NAGAR, THIRUVANANTHAPURAM 695 001.** - **4 THE REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION CORPORATION BUILDINGS, PALAYAM, THIRUVANANTHAPURAM 695 011** 2 W.A.Nos.1885 & 1899 of 2018 **5 SRI. ROY SEBASTIAN, PRINCIPAL, KRIST RAJ HIGHER SECONDARY SCHOOL, KOLLAM 691 001.** **SR. G.P.- SRI. T.R. RAJASEKHARAN NAIR. FOR R2 TO 4 ADV.JOHN JOSEPH VETTICAD FOR R1 K.S.BHARATHAN FOR R5** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 24.10.2019, ALONG WITH WA.1899/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 W.A.Nos.1885 & 1899 of 2018 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **THURSDAY, THE 24TH DAY OF OCTOBER 2019 / 2ND KARTHIKA, 1941** ## **WA.No.1899 OF 2018** **AGAINST THE JUDGMENT DATED 6.7.2018 IN WP(C) 9731/2018(N) OF HIGH COURT OF KERALA** ## **APPELLANT/4TH RESPONDENT:** **L. THANKACHAN** **HIGHER SECONDARY SCHOOL TEACHER (ENGLISH), ST.ANTONYS HIGHER SECONDARY SCHOOL , KANJIRACODE, P.O KUNDARA, KOLLAM DISTRICT 691501** **BY ADV. SRI.V.A.MUHAMMED** ## **RESPONDENTS/PETITIONER & RESPONDENTS 1 TO 3 & 5:** - **1 ROY SEBASTIAN PRINCIPAL ,KRIST RAJ HIGHER SECONARY SCHOOL, KOLLAM 691001** - **2 THE STATE OF KERALA REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, GENERAL EDUCATION (T) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **3 THE DIRECTOR OF HIGHER SECONDARY EDUCATION HOUSING BOARD BUILDINGS, SANTHI NAGAR, THIRUVANANTHAPURAM-695001.** - **4 THE REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION CORPORATION BUILDINGS, PALAYAM, THIRUVANANTHAPURAM-695011.** 4 W.A.Nos.1885 & 1899 of 2018 **5 THE CORPORATE MANAGER CORPORATE MANAGEMENT OF CATHOLIC SCHOOLS, BISHOPS HOUSE, TANGASSERRY, KOLLAM-691007.** **SR. GPSRI. T.R. RAJASEKARAN NAIR FOR R2 TO 4 ADV. K.S. BHARATHAN FOR R1 ADV.JOHN JOSEPH VETTIKKAD FOR R5** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 24.10.2019, ALONG WITH WA.1885/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 5 W.A.Nos.1885 & 1899 of 2018 ## **JUDGMENT** ## **Dated this the 24th day of October 2019** ## **SHAFFIQUE, J** These appeals relates to a challenge made by the 4[th] respondent in the writ petitions, challenging the appointment of the 5[th] respondent as Head Master of a Corporate Management. His main contention is that the minority status was obtained by the Corporate Management only subsequent to the appointment. Therefore, according to the appellant, they did not have the right to appoint the 5[th] respondent who is the member of the minority community. 2. This fact has already been settled by a series of decisions of this Court as well as Apex Court. Even the minority status was actually granted with retrospective effect. Paragraphs 24 and 25 of the judgment in Civil Appeal No.2858/2007 **Chandana Das (Malakar) v. State of West Bengal** reads as under: “24. We now go to the question as to whether it is necessary that there be declaration as to status of the minority institutions by the competent authority under the West Bengal Board of Secondary Education Act, 1963 before it can claim the status of being a minority institution. We have already noticed that the competent authorities set up by the aforesaid Act do not give any power to recognise a minority institution. For this reason, it is difficult to agree with the conclusion stated in paragraph 40 of judgment of Banumathi, J. Further, the letter dated 19[th] April, 1976 would show 6 ## W.A.Nos.1885 & 1899 of 2018 that Respondent No.4 was started as a primary school by the Sikh community living in Kolkata to impart education to their children who came from Punjab, so that they may learn their mother tongue and religion, ethics etc. As a matter of fact, this aspect of the matter is no longer res _integra._ ## 25. In **N.Ammad v. Emjay High School** (1998) 6 SCC 674, this Court held: “ _12_ . Counsel for both sides conceded that there is no provision in the Act which enables the Government to declare a school as a minority school. If so, a school which is otherwise a minority school would continue to be so whether the Government declared it as such or not. Declaration by the Government is at best only a recognition of an existing fact. Article 30(1) of the Constitution reads thus: ## **“30.** _**Right of 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.” 13. When the Government declared the school as a minority school it has recognised a factual position that the School was established and is being administered by a minority community. The declaration is only an open acceptance of a legal character which should necessarily have existed antecedent to such declaration. Therefore, we are unable to agree with the contention that the school can claim protection only after the Government declared it as a minority school on 2-8-1994.” This statement of law was then followed by **Corporate Educational Agency v. James Mathew** [(2017) 15 SCC 595] as follows: **7.** As far as the validity of the declaration of minority status is concerned, this Court in [ _N. Ammad_ v. _Emjay High School, (1998) 6 SCC 674:1 SCEC 732]_ has held that the certificate of the declaration of minority status is only a declaration of an existing status. Therefore, there is no question of availability of the status only from the date of declaration. What is declared is a status which was already in existence. xxxxxx 7 W.A.Nos.1885 & 1899 of 2018 **10.** Chapter IV deals with functions and powers of the Commission. Under Section 11( _f_ ), the Commission has been vested with the power rather the mandate to decide all questions relating to the status of any institution as a minority educational institution and declare its status as such. Section 11 of the Act is quoted hereunder: “ **11.** _**Functions of Commission**_ .— Notwithstanding anything contained in any other law for the time being in force, the Commission shall— ( _a_ ) advise the Central Government or any State Government on any question relating to the education of minorities that may be referred to it; ( _b_ ) enquire, suo motu, or on a petition presented to it by any minority educational institution, or any person on its behalf into complaints regarding deprivation or violation of rights of minorities to establish and administer educational institutions of their choice and any dispute relating to affiliation to a University and report its finding to the appropriate Government for its implementation; ( _c_ ) intervene in any proceeding involving any deprivation or violation of the educational rights of the minorities before a court with the leave of such court; ( _d_ ) review the safeguards provided by or under the Constitution, or any law for the time being in force, for the protection of educational rights of the minorities and recommend measures for their effective implementation; ( _e_ ) specify measures to promote and preserve the minority status and character of institutions of their choice established by minorities; ( _f_ ) _decide all questions relating to the status of any institution as a minority educational institution and declare its status as such;_ ( _g_ ) make recommendations to the appropriate Government for the effective implementation of programmes and schemes relating to the minority educational institutions; and ( _h_ ) do such other acts and things as may be necessary, incidental or conducive to the attainment of all or any of the objects of the Commission.” (emphasis supplied) 8 W.A.Nos.1885 & 1899 of 2018 11. Therefore, after the introduction of the National Commission for Minority Educational Institutions Act, 2004, it is also within the jurisdiction and mandate of the National Commission to issue the certificate regarding the status of a minority educational institution. Once the Commission thus issues a certificate, it is a declaration of an existing status. That apart it is pointed out that the challenge has been made 7 years after the appointment was made. It is argued on behalf of the appellant that Repeated representations were given before the statutory authorities. Be that as it may, in so far as the law is settled, there is no reason why we should interfere with the judgment of the learned Single Judge. The writ appeals are therefore dismissed. ## **Sd/-** **A.M.SHAFFIQUE JUDGE** **Sd/-** **T.V.ANILKUMAR** kp True copy P.A. To Judge. **JUDGE**