Manager, PMD Upper Primary School, Cheppad v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **FRIDAY, THE 13TH DAY OF NOVEMBER 2020 / 22ND KARTHIKA, 1942** ## **WP(C).No.8563 OF 2020(U)** ## **PETITIONER:** ## **MANAGER,** **PMD UPPER PRIMARY SCHOOL, CHEPPAD-690 507, (FR.KOSHY MATHEW, S/O P.G.KOCHUKOSHY, PULINTHANATHU THAKIDIYIL HOUSE, THEKKEKKARA P.O.ALAPPUZHA-690 107).** ## **BY ADV. SRI.S.SUBHASH CHAND** ## **RESPONDENTS:** - **1 THE STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION (H), GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 THE DIRECTOR OF GENERAL EDUCATION (FORMERLY DIRECTOR OF PUBLIC INSTRUCTIONS), OFFICE OF THE DIRECTOR OF GENERAL EDUCATION, THIRUVANANTHAPURAM-695 001.** - **3 THE DISTRICT EDUCATIONAL OFFICER, OFFICE OF THE DISTRICT EDUCATIONAL OFFICER, ALAPPUZHA-690 001.** - **4 THE ASSISTANT EDUCATIONAL OFFICER, OFFICE OF THE ASSISTANT EDUCATIONAL OFFICER, HARIPAD-690 514.** - **5 ELSY KOSHY, W/O CHERIYAN P VARGHESE, MANGATTU HOUSE, CHEPPAD P.O., ALAPPUZHA-690 507, (HEADMISTRESS (RETD), PMD UPPER PRIMARY SCHOOL, CHEPPAD.** - **6 SOSAMMA MATHEW, MOOLACKAL SHIBI VILLA, CHEPPAD P.O. ALAPPUZHA-690 507, (UPPER PRIMARY SCHOOL ASSISTANT (RETD) PMD UPPER PRIMARY SCHOOL, CHEPPAD-690 507. R1-4 BY GOVERNMENT PLEADER R5-6 BY ADV. SRI.S.JAYAKRISHNAN R5-6 BY ADV. SRI.S.PARAMESWARA PRASAD** WP(C).No.8563 OF 2020(U) 2 ## **OTHER PRESENT:** **SR GP P.M. MANOJ** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.8563 OF 2020(U) 3 ## **JUDGMENT** ## This writ petition is filed seeking the following reliefs:- _i) To issue a writ in the nature of certiorari or any other appropriate writ or order quashing Exhibit -P11 issued by respondent No.4._ _ii) To issue a writ in the nature of certiorari or any other appropriate writ or order quashing Exhibits-P7 and P10 orders issued by respondent No.1._ _iii) To issue a writ in the nature of cetiorari or any other appropriate writ or order quashing Exhibits P2 and P6 orders issued by respondent Nos.4 and 2 respectively._ _iv) To issue a writ in the nature of mandamus or any other appropriate writ or order directing respondent No.4 to consider and pass final orders on Exhibit-P12(a) representation in the light of Ext.P12 judgment passed by this Hon'ble Court untrammelled by the directions contained in Exhibits-P6 to P10 with notice and opportunity of hearing to be petitioner and respondent Nos.5 and 6 within such time as this Hon'ble Court may deem fit and proper in the interest of justice._ 2. Heard the learned counsel for the petitioner and the learned Government Pleader as well as the learned counsel appearing for respondents 5 and 6. WP(C).No.8563 OF 2020(U) 4 3. It is submitted by the learned counsel for the petitioner that the petitioner is the Manager of an educational institution run by a religious minority. It is submitted that the minority status of the school was recognized by this Court by Ext.P4 judgment as early as on 12.03.1965. It is submitted that there has been no disputes raised with regard to the character of the institution as a institution run by a religious minority and that the petitioner had been enjoying the status right from the instructions of the school. 4. It is submitted that the 5[th] respondent was appointed as Headmistress of the School in a retirement vacancy w.e.f 01.06.2013. The 4[th] respondent rejected the appointment by Ext.P2 order on the ground that the petitioner did not produce the certificate issued by the National Commission for Minority Educational Institutions (hereinafter referred to as “NCMEI”) certifying that the school is a minority educational institution. The 3[rd] respondent and the 2[nd] respondent passed Ext.P3 and P6 orders respectively upholding Ext.P2. By Ext.P7 order, the Government remitted the matter back to the 4[th] respondent to WP(C).No.8563 OF 2020(U) 5 consider the issue on merits. It is submitted that, by Ext.P11 communication, the petitioner has again been directed by the AEO to produce a certificate of the NCMEI within 15 days. 5. It is submitted by the learned counsel for the petitioner that the petitioner's institution being a recognized minority institution, there is no requirement whatsoever for the petitioner to again produce the certificate from NCMEI. It is stated that since the status of the institution as a minority institution stands concluded, there is no requirement either in terms of the National Commission for Minority Educational Institutions Act, 2004 (hereinafter referred to as '2004 Act') or in terms of the Educational Act or Rules that a further certificate is to be obtained from the NCMEI. The learned counsel relied on a decision of a Division Bench of this Court in _**Manager, St. Paul's HSS, Kozhinjampara vs. State of Kerala and others**_ (2020 (2) KHC 145) (Ext.P12 judgment) wherein it has been held that it is only for the establishment of Minority Educational Institution or for the conferment of the status of the institution, which has not already been recognized WP(C).No.8563 OF 2020(U) 6 as a minority institution that a certificate could be necessary. It is, therefore, contended that, in view of Ext.P4 judgment and the settled status of the petitioner as a Minority Educational Institution, the notice issued by the AEO directing the production of a certificate from the NCMEI is completely untenable and unsustainable. 6. A counter affidavit has been filed by the 4[th] respondent. It is contended, therein, that the petitioner is an aided school administrated by the Educational Agency consisting of the Vicar of St.George Orthodox Syrian Church, Cheppad and a 5 member committee elected from the Parish. It is contended that even though the school is being run and administrated by a religious minority section, the school management has failed to produce Minority Status Certificate in connection with the appointment of the H.M. It is submitted that in terms of 2004 Act, the status of a Minority Educational Institution is to be certified by the NCMEI and that in the absence of such certification, the petitioner would not be entitled to claim such status. WP(C).No.8563 OF 2020(U) 7 7. The learned counsel appearing for respondents 5 and 6 submits that it is not in dispute that the petitioner's institution is a Minority Educational Institution and that as such the directions in Ext.P11 to produce a certification from the NCMEI is erroneous. 8. I have considered the contentions advanced, Ext.P4 judgment, which is rendered as early as on 12.03.1965 in respect of the very same school specifically refers to the status of the institution and records a finding that it is a Minority Educational Institution. In Ext.P12 judgment, the provision of the 2004 Act as well as the decisions on the point of conferment of minority status have been specifically considered. It was found that it was for establishment of a Minority Educational Institution and for conferment of status to an educational institution which has not been so conferred that a certificate from the NCMEI is necessary. It was held that the finding of the Government that in the absence of the certification from the NCMEI, the institution cannot be recognized as a minority institution is unsustainable. It was held WP(C).No.8563 OF 2020(U) 8 that in the case of minority institutions, which had already been recognized as such, no certification is required. 9. In the instant case, it is not in dispute before me that the institution is run by a religious minority. The counter affidavit of the 4[th] respondent also admits this matter. The only contention is that the petitioner's institution has not produce a certification from the NCMEI in terms of the 2004 Act. In the light of the judgment of a Division Bench of this Court referred to above, I am of the opinion that the production of a certificate from the NCMEI would not be necessary in all circumstances. In the case of the petitioner's institution, in view of the fact that there is no dispute raised that it is a Minority Educational Institution and in view of the finding in Ext.P4 judgment, which has become final, I am of the opinion that the contention that a certificate from the NCMEI is necessary for the petitioner to claim the minority status is completely misconceived. The petitioner's institution is a recognized Minority Educational Institution, which is apparent from Ext.P4 judgment itself. Even in the order of the respondents, which are produced in the writ WP(C).No.8563 OF 2020(U) **==> picture [8 x 9] intentionally omitted <==** petition, it does not appear that there is any factual dispute on the point. 10. In the above view of the matter, I am of the opinion that Ext.P11, to the extent directs the production of the certificate is unsustainable. Ext.P11 is set aside. There will be a direction to the AEO to consider the request for approval of appointment recognizing the petitioner's institution as a Minority Educational Institution. Orders shall be passed within a period of one month from the date of receipt of a copy of this judgment. This writ petition is ordered accordingly. Sd/- **ANU SIVARAMAN JUDGE** Bng/16.11.2020 WP(C).No.8563 OF 2020(U) 10 ## **APPENDIX** ||**APPENDIX**| |---|---| |**PETITIONER'S **|**EXHIBITS:**| |**EXHIBIT P1**|**TRUE COPY OF THE APPOINTMENT ORDER DATED**| ||**1.6.2013 THUS ISSUED BY THE PETITIONER**| |**EXHIBIT P2**|**TRUE COPY OF THE ORDER DATED 31.7.2013**| ||**ISSUED BY RESPONDENT NO 4**| |**EXHIBIT P3**|**TRUE COPY OF THE ORDER BEARING NO**| ||**B5/6126/2013 DATED 15.6.2015 ISSUED BY**| ||**RESPONDENT NO 3**| |**EXHIBIT P4**|**TRUE COPY OF THE JUDGMENT DATED 12.3.1965**| ||**IN OP NO 418/1964 PASSED BY THIS HON'BLE**| ||**COURT**| |**EXHIBIT P5**|**TRUE COPY OF THE JUDGMENT DATED 24.2.2016**| ||**IN WP(C) NO 33114/2015 PASSED BY THIS**| ||**HON'BLE COURT**| |**EXHIBIT P6**|**TRUE COPY OF THE ORDER BEARING NO**| ||**F3/66073/2015/DPI DATED 15.4.2016 ISSUED**| ||**BY RESPONDENT NO 2**| |**EXHIBIT P7**|**TRUE COPY OF THE GOVERNMENT ORDER BEARING**| ||**NO 275/2019/G.EDN DATED 23.1.2019 ISSUED**| ||**BY RESPONDENT NO.1.**| |**EXHIBIT P8**|**TRUE COPY OF THE REPORT BEARING NO**| ||**C/262/19 DATED 30.4.2019 OF RESPONDENT NO**| ||**4.**| |**EXHIBIT P9**|**TRUE COPY OF THE REPORT DATED 27.12.2019**| ||**SUBMITTED BY RESPONDENT NO 2 BEFORE**| ||**RESPONDENT NO.1.**| |**EXHIBIT P10**|**TRUE COPY OF THE ORDER DATED 17.1.2020**| ||**THUS ISSUED BY RESPONDENT NO.1.**| |**EXHIBIT P11**|**TRUE COPY OF THE COMMUNICATION BEARING NO**| ||**C/262/19 DATED 24.2.2020 ISSUED BY**| ||**RESPONDENT NO 4 TO THE PETITIONER**| |**EXHIBIT P12**|**TRUE COPY OF THE JUDGMENT DATED 19.2.2020**| ||**PASSED BY THIS HON'BLE COURT IN WRIT**| ||**APPEAL NO.2533/2019**| WP(C).No.8563 OF 2020(U) 11 **EXHIBIT P12 (A) TRUE COPY OF THE REPRESENTATION DATED 10.3.2020 THUS SUBMITTED BY THE PETITIONER BEFORE RESPONDENT NO.4.**