SHAJI M MATHEW v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE S.V.BHATTI** **MONDAY, THE 16TH DAY OF MARCH 2020 / 26TH PHALGUNA, 1941** ## **WP(C).No.30929 OF 2017(M)** ## **PETITIONER:** **SHAJI M.MATHEW ASSISTANT TEACHER, VEKKALAM AIDED U.P.SCHOOL,P.O. NEDUMPOIL, KANNUR-670650.** **BY ADVS. SRI.KALEESWARAM RAJ KUM.A.ARUNA KUM.THULASI K. RAJ** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM-695001.** |**2**|**DIRECTOR OF PUBLIC INSTRUCTIONS**| |---|---| ||**THIRUVANANTHAPURAM-695001.**| |**3**|**DEPUTY DIRECTOR OF EDUCATION**| ||**KANNUR-670001.**| |**4**|**DISTRICT EDUCATIONAL OFFICER**| ||**CIVIL STATION,**| ||**THALASSERRY,**| ||**KANNUR. 670101.**| |**5**|**ASSISTANT EDUCATIONAL OFFICER**| ||**IRITTY,**| ||**KANNUR, 670001.**| |**6**|**THE MANAGER**| ||**VEKKALAM AIDED U.P. SCHOOL,P.O.**| ||**NEDUMPOIL, KANNUR-670650.**| WP(C).Nos.30929 OF 2017 (M) & 933 OF 2019(N) 2 **7 K.P. RAJEEVAN L.P.S.A,VEKKALAM AIDED U.P. SCHOOL, P.O. NEDUMPOIL, KANNUR-670650.** **R6 BY ADV. SRI.ARUN BASIL R6 BY ADV. SRI.CHACKO SIMON R6 BY ADV. SRI.JOSE ABRAHAM J-1406 R6 BY ADV. SRI.MANU SRINATH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16.03.2020, ALONG WITH WP(C).933/2019(N), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).Nos.30929 OF 2017 (M) & 933 OF 2019(N) 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE S.V.BHATTI** **MONDAY, THE 16TH DAY OF MARCH 2020 / 26TH PHALGUNA, 1941** ## **WP(C).No.933 OF 2019(N)** ## **PETITIONER:** **SHAJI M MATHEW ASSISTANT TEACHER, VEKKALAM AIDED U.P.SCHOOL, P.O.NEDUMPOIL, KANNUR-670650.** **BY ADVS.** **SRI.KALEESWARAM RAJ SRI.VARUN C.VIJAY KUM.A.ARUNA KUM.THULASI K. RAJ SMT.RIYA RAYMOL IYPE** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 DIRECTOR OF PUBLIC INSTRUCTIONS THIRUVANANTHAPURAM-695001.** - **3 DEPUTY DIRECTOR OF EDUCATION, KANNUR-670001.** - **4 DISTRICT EDUCATIONAL OFFICER CIVIL STATION, THALASSERY, KANNUR-670101.** WP(C).Nos.30929 OF 2017 (M) - & 933 OF 2019(N) 4 - **5 ASSISTANT EDUCATIONAL OFFICER, IRITTY, KANNUR-670703.** - **6 THE MANAGER VEKKALAM AIDED U.P.SCHOOL, P.O.NEDUMPOIL, KANNUR-670650.** - **7 NATIONAL COMMISISON FOR MINORITY EDUCATIONAL INSTITUTIONS, REPRESENTED BY SECRETARY, NATIONAL COMMISSION FOR MINOTIRY EDUCATIONAL INSTITUTIONS, NEW DELHI-110001.** **R6 BY ADV. SRI.JOSE ABRAHAM(J-1406) R6 BY ADV. SRI.MANU SRINATH R6 BY ADV. SRI.N.RAGESH R6 BY ADV. SHRI.MANOJ GEORGE** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16.03.2020, ALONG WITH WP(C).30929/2017(M), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).Nos.30929 OF 2017 (M) & 933 OF 2019(N) 5 ## **JUDGMENT** ## **Dated this the 16th day of March 2020** Mr. Shaji M. Mathew is the petitioner in these two writ petitions. The petitioner prays for the following reliefs:- ## - W.P.(C.). No. 30929/2017: "i) To declare that the petitioner is entitled to get promotion to the post of Headmaster with effect from 01.06.2017 notionally being the senior most qualified person in terms of Rule 44, 45(A) of Chapter XIVA KER; ii) To declare that the sixth respondent Manager is liable to be proceeded against by virtue of Rule 7(4)(b) of Chapter III KER and that he is unfit to hold the office of the Manager in the School; iii) To issue a writ of mandamus directing the 6[th] respondent to promote the petitioner as Headmaster of Vekkalam Aided U.P.School, Kannur with effect from 01.06.2017 notionally; iv) To issue a writ of mandamus directing the fifth respondent to approve the appointment of the petitioner as Headmaster with effect from 01.06.2017 notionally on the sixth respondent appointing the petitioner as Headmaster with effect WP(C).Nos.30929 OF 2017 (M) & 933 OF 2019(N) 6 from 01.06.2017; v) To issue such other orders, directions or writs as may be prayed for and that this Hon'ble Court may deem fit under the facts and circumstances of the case." W.P.(C.) No. 933/2019:- "i) To issue a writ of certiorari quashing Ext.P6 as unjust, illegal and arbitrary; ii) To declare that the Vekkalam Aided U.P.School, Kannur managed by the sixth respondent is not entitled to get minority status; iii) To issue a writ of mandamus directing the respondent No. 7 to pass orders cancelling Ext.P6 Minority Status Certificate granted in favour of the sixth respondent's school; iv) To issue such other orders, directions or writs as may be prayed for and that this Hon'ble Court may deem fit under the facts and circumstances of the case." 3. The circumstances relevant for disposing of both the writ petitions are stated thus:- The petitioner on 07.01.1986 entered in service as LPSA, in Vekkalam Aided U.P. School (for short the 'school'). The petitioner claims to be the senior most qualified LPSA working in the school and thereby, the petitioner is entitled for due consideration and WP(C).Nos.30929 OF 2017 (M) & 933 OF 2019(N) 7 appointment as Headmaster of the School. The sixth respondent/Manager of the School, however with effect from 01.06.2017, contrary to the applicable Rules in Kerala Education Rules, appointed the seventh respondent, a junior to petitioner, as Headmaster of the school. The gist of the case of petitioner at the first instance i.e., in W.P.(C.) No. 30929/2017, is that the appointment of seventh respondent by overlooking the legal and legitimate claim of petitioner as Headmaster is arbitrary illegal and unconstitutional. The petitioner under those circumstances prays for all the reliefs excerpted supra. 4. The fifth respondent/Assistant Educational Officer filed counter affidavit in W.P.(C.) No. 30929/2017 and the basic details adverted to in the writ petition are not denied and it is further averred that on 23.08.2017, the office of fifth respondent rejected the proposal of the school for approval of appointment of seventh respondent as Headmaster of the school vide order No. E/3466/17/K. Dis. dated WP(C).Nos.30929 OF 2017 (M) & 933 OF 2019(N) 8 25.08.2017 and the reasons for rejection stated are that :- a) Appointment of Sri. Rajeevan K.P. was done by overlooking seniority. b) Relinquishment letter from the senior teachers was not produced. c) If the institution holds minority status, copy of the said order was not produced. At the end of the letter, it is noted, eventhough the approval for appointment was rejected, Sri. Rajeevan K.P./7[th] respondent in W.P.(C.) No. 30929/2017 continues as Headmaster. 5. From the counter affidavit filed by the fifth respondent, it can be inferred that the school by claiming the status of a Minority Educational Institution seems to have proceeded to promote the seventh respondent and appoint as Headmaster of the school. 6. On 07.01.2019, the petitioner filed W.P.(C.). No. 933/2019 challenging Ext.P6 issued by NCMEI/seventh respondent as illegal and violative of WP(C).Nos.30929 OF 2017 (M) & 933 OF 2019(N) 9 Article 30(1) of the Constitution of India. The petitioner as foundation of fact asserts that Vekkalam Aided U.P. School, cannot and could not be considered for granting status of Minority Education, for the School was not established by a Member belonging to Minority and administered by Ministry for several decades. The present Manager who belongs to Minority Religion has purchased the school in 2014. 7. The petitioner driven by the circumstances and the strength or defence the school derived through Ext.P6 is compelled to question the validity of Ext.P6 in all fours by raising the grounds available infact and law. Ext.P6 though a certificate issued by the NCMEI/seventh respondent in prescribed format, for one of the grounds raised by the petitioner namely that fraud has been played by the school in obtaining Ext.P6 certificate etc. For that limited purpose Ext.P6 is excerpted hereunder:- National Commission For Minority Educational Institutions (Ministry of Human Resource Development, Government of India) WP(C).Nos.30929 OF 2017 (M) & 933 OF 2019(N) 10 Gate No. 4, 1st Floor, Jeevan Tara Building, 5, Sansad Marg, Patel Chowk, New Delhi - 110 001 ## Dated .......... ## C E R T I F I C A T E This is to certify that by the order dated 25th day of October, 2017 passed by the National Commission for Minority Educational Institutions, New Delhi in Case No. 306 of 2017 (Vekkalam Aided UP School, Nedumpoil, Kannur District, Kerala - 670 650 v. Secretary, General Education Department, Govt. of Kerala), Vekkalam Aided UP School run by an individual Christian Mr. Shibu C.M. has been declared as a Minority Educational Institution covered under Section 2(G) of the National Commission for Minority Educational Institutions Act, 2004. Given under my hand and the seal of the Commission on this 27th day of October, 2017. sd/(Saroj Punhani) Secretary 8. The petitioner avers that Vekkalam Aided U.P. School was established by a member of Hindu Religion. Upon the school being established by late K.M. Govindhankutty Nair, it was administered by founder and later on his successors etc., belonging to Hindu Religion. It is further averred that the school WP(C).Nos.30929 OF 2017 (M) & 933 OF 2019(N) 11 established and administered was purchased by one Mr. Shibu, the present Manager through Ext.P16 Sale Deed No. 32/2014, dated 01.01.2014. The case of petitioner, by referring to the establishment of school by a member of Hindu Religion and purchase of school through a registered sale deed by present Manager, the school can't be said to be a school established and administered by a minority community, within the meaning of Article 30 of the Constitution of India. Ext. P6 is issued beyond the jurisdiction of NCMEI/seventh respondent and unconstitutional. The petitioner refers to a few decisions of the Supreme Court and places strong reliance on the Division Bench judgment of this Court in **A. Raju and Others and the Manager, Nalloor, Narayana L.P. Basic School, Kozhikode and others** , marked as Ext.P15 in W.P.(C.) No. 933/2019. The petitioner prays for setting aside Ext.P6 certificate granted by NCMEI/seventh respondent and for consequential reliefs referred in the preceding paragraphs. WP(C).Nos.30929 OF 2017 (M) & 933 OF 2019(N) 12 8.1 Mr. Shibu/present Manager has not filed counter affidavit and therefore this Court can conveniently presume that there is no issue on fact viz on the establishment and administration of school by a member of Hindu Religion etc. 9. Adv. Kaleeswaram Raj arguing for the petitioner referring to sale deed dated 01.01.2014 emphasis that Vekkalam Aided U.P. School was established several decades before. The founder or the individual who established the subject school purchased the subject land on which the school is established from a person belonging to minority community. The founder of the school was treated as the Manager as per the understanding or arrangement made by his successors, one of his children named Seema was given the authority to apply for manager-ship and approval was granted by the Department. Through the sale deed dated 01.01.2014 among other items morefully described in Ext.P16, the present Manager Mr. Shibu purchased the school as well. He makes no bones in his WP(C).Nos.30929 OF 2017 (M) & 933 OF 2019(N) 13 submission to argue that with the purchase of school/school building etc., is not an element resulting in conversion of the school into that of a Minority Educational Institution as established and continued to be administered under a minority management. He further argues that Ext.P6 is result of a concerted effort made by the present Manager only to defeat the legitimate claim of petitioner for being appointed as Headmaster of the school. Fraud is required to be pleaded with full details and established in accordance with law, for the purpose of establishing Fraud as vitiating the issue of Ext.P6, my attention is drawn to a few exhibits; that the proceeding before NCMIE/seventh respondent is beyond the jurisdiction of NCMIE. I am not proposing to examine this aspect viz, whether fraud has been played etc., by the Manager, of the matter. The reasons for not examining this ground of fraud are discernible from the further consideration of the principal legal ground raised by petitioner. It is further argued that the NCMEI/seventh respondent WP(C).Nos.30929 OF 2017 (M) & 933 OF 2019(N) 14 ought to have appreciated that even though an application under Section 11(f) of the National Commission for Minority Educational Institutions Act, 2004 (for short 'the Act') is maintainable before the seventh respondent, the jurisdiction conferred on the NCMEI/seventh respondent by Act is not matter of course to keep granting the status certificate without actually considering and deciding applicable requirements in this behalf. It is upon establishing the totality of facts and circumstances, the status warranted on the application given by an applicant is conferred by the Commission. In the case of hand the details that are made available before the NCMEI/seventh respondent, if are produced for further inspection, the truth could be appreciated by this Court. He draws an adverse inference by saying that the Manager did not place the copy of the application filed before the NCMEI/seventh respondent for claiming the status of Minority Educational Institutions. He invites the attention of Court to a few paragraphs in Ext.P15 WP(C).Nos.30929 OF 2017 (M) & 933 OF 2019(N) 15 Division Bench judgment and states that the facts in Ext.P15 are by and large similar to circumstances canvassed in these writ petitions. He prays for setting aside Ext.P6 certificate issued in favour of the school and taking note of the stand taken in the counter affidavit filed by the fifth respondent in W.P.(C.). No. 30929/2017, he prays for issuing appropriate directions, including a direction that the petitioner is notionally entitled for appointment as Headmaster of subject school with effect from 01.06.2017, for the petitioner retires from service on 31.03.2020. The due and legitimate claim of petitioner for promotion and appointment has been by the Manager by utilising the remedy under Section 11(f) of the Act. But for such efforts by the Manager, the petitioner should have worked and retired as Headmaster. Therefore, the reliefs may be moulded appropriately to meet the ends of justice. 10. Adv. Sri. Jose Abraham for the sixth respondent objects to the prayers as made by the WP(C).Nos.30929 OF 2017 (M) & 933 OF 2019(N) 16 petitioner in both the writ petitions. To begin with the first and foremost objection argued by Adv. Sri. Jose Abraham is that Mr. Shibu is the owner of the subject school in terms of Ext.P16 sale deed. The purchaser under Ext.P16 has been approved as the Manager of the School. The present Manager is a Christian and a member of minority religion. The Manager, keeping in view the ratio laid down by the Apex Court in **Sisters of St. Joseph of Cluny v. The State of West Bengal and others** reported in **[(2018) 6 SCC 772]** is entitled to file an application under Section 11(f) of Chapter IV of the Act before NCMEI/seventh respondent. For immediate reference, Section 11(f) is excerpted hereunder:- " **11. Functions of Commission.** - Notwithstanding anything contained in any other law for the time being in force, the Commission shall- xxx - (f) decide all questions relating to the status of any institution as a Minority Educational Institution and declare its status as such;" ## 10.1.The application for grant of Minority WP(C).Nos.30929 OF 2017 (M) & 933 OF 2019(N) 17 Education Institution once made by the present Manager resulting in an order made under the Act evidenced by Ext.P6 certificate. The status granted to the school is inter-twained with the circumstances stated by the Manager resulting in acceptance of status by the Commission. Therefore, this Court ought not to re-open like a Court of appeal, go into a roving enquiry and record its own findings on Ext.P6. Ancillary to above contention Adv. Jose Abraham refers to Section 12C of the Act which reads thus:- " **12C. Power to cancel** .- The Commission may, after giving a reasonable opportunity of being heard to a Minority Educational Institution to which minority status has been granted by an authority or Commission, as the case may be, cancel such status under the following circumstances, namely:- a) if the constitution, aims and objects of the educational institution, which has enabled it to obtain minority status has subsequently been amended in such a way that it no longer reflects the purpose or character of a Minority Educational Institution; b) if, on verification of the records during the inspection or investigation, it is found that the Minority Educational Institution has failed to admit students belonging to the minority community in the institution WP(C).Nos.30929 OF 2017 (M) & 933 OF 2019(N) 18 as per rules and prescribed percentage governing admissions during any academic year. " 11. Therefore the argument proceeds that if a case warranting cancellation of Ext.P6, the petitioner ought to move the Commission, which is vested with power and jurisdiction to cancel a certificate already issued in this behalf. He further argues that as long as Ext. P6 is in force, the action taken by the Manager conforms to one of the rights accepted and conferred on a Minority Educational Institution by the Constitution of India. He relies on the judgment referred to above and places specific reference on the following paragraphs in **Sisters of St. Joseph of Cluny's** case (supra):- _"19. This Court has touched upon the subject without directly answering the question posed before us. Thus, in Governing Body of P.A.E.M. College v. State of Jharkhand, decided on 06.12.2012, this Court, after referring to S.11(f) and S.12B of the 2004 Act, held:_ - _"From the above provisions, it is clear that the Commission has the power to decide all questions relating to the status of any institution as minority educational institution_ WP(C).Nos.30929 OF 2017 (M) & 933 OF 2019(N) 19 _and declare its status as such. More over under S. 12B, where an authority established by the Central Government or any State Government has rejected the application for grant of minority status to any educational institution, the aggrieved person may appeal against such order of the authority to the Commission. The provisions contained in S. 11(f) of 2004 Act and S. 12B of the Amendment Act are, thus, wholesome provisions for deciding all questions relating to the status of any institution as minority educational institution and for declaration of such status"_ _20. In Corporate Educational Agency v. James Mathew, 2017(15) SCC 595 (at 600-601), a Division Bench of this Court dealt with a judgment of the High Court, which in turn dealt with the appointment of teachers in minority educational institutions. This Court, after noticing that the appellant was already an existing minority educational institution, went on to hold:_ _"9. Chapter III deals with rights of minority educational institutions. Under S. 10, whosoever desires to establish a minority educational institution, has to apply to the competent authority for a "no-objection certificate". The "competent authority" is defined under S.2(ca) of the Act to mean, the authority appointed by the appropriate Government to grant "no-objection certificate"_ WP(C).Nos.30929 OF 2017 (M) & 933 OF 2019(N) 20 _for the establishment of any educational institution of their choice by the minorities. xxx xxx xxx_ _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."_ _21. This judgment unequivocally holds that, insofar as existing minority institutions are concerned, S. 11(f) clearly confers jurisdiction on the NCMEI to issue a certificate regarding the status of the minority educational institution. We respectfully concur with the aforesaid view._ _22. Shri Dhavan, however, exhorted us to send back the matter to the NCMEI for a hearing de novo on merits. We may mention that the fact that the college was begun as a secular institution and wished to change into a minority educational institution midstream, which was not permissible according to Shri Dhavan, is not a plea taken up before the learned single Judge. This plea, however, was raised before the Division Bench and answered by both Judges stating that the fundamental right under Art. 30 cannot be waived. While agreeing with this view, it is necessary to point out, on the facts of the case, that the University of North Bengal has_ WP(C).Nos.30929 OF 2017 (M) & 933 OF 2019(N) 21 _accepted the NCMEI's order dated 05.11.2009, in which the NCMEI went into the aforesaid question. It would not, therefore, be in the fitness of things to send back this matter to be decided afresh at the behest of a governing body which can no longer claim to govern the college set up by the society. It needs only be pointed out that, by a letter dated 04.05.2009, the Principal of Cluny Women's College requested the Vice-Chancellor of the University to extend the term of the governing body set up under the statutes of the University only until the constitution of a new governing body. As the new governing body has been constituted on the footing that Cluny Women's College is a minority educational institution, we are of the view that the parallel governing body, which claims to continue as such, has no legs to stand after the formation of a new governing body. This being the cases, we are not inclined to send the matter back to the NCMEI for a de novo hearing on merits at the behest of Shri. Dhavan's client."_ 12. He finally submits that the issue either be moved before the National Commission under Sec. 12C of the Act or this Court can relegate the matter to the NCMEI/seventh respondent for consideration and disposal. He prays for dismissing both the writ petitions. WP(C).Nos.30929 OF 2017 (M) & 933 OF 2019(N) 22 13. Adv. Kaleeswaram Raj, by way of reply argues that the decision of the Apex Court firstly is not an authority for the proposition on a fact situation. In as much as in **Sisters of St. Joseph of Cluny's** case (supra) the society was established by members belonging to minority religion and at the first instance desired to work as a secular institution, but later on the society changed the heart, desired to avail the society of Minority Educational Society/Institution. The request was considered under Section 11(f) of the Act and certificate as Minority Institution was granted. Therefore the Institution considered by the Supreme Court was established and administered by members of Minority Religion. The case on hand, the establishment by minority members is absent. considered by this Court in the present writ petition. At the cost of repetition but for laying emphasis, he further argues that in Ext.P15, the Division Bench of this Court in para No. 17 has adverted to the judgment of the Apex Court in **Sisters of St. Joseph of Cluny's** case (supra) and WP(C).Nos.30929 OF 2017 (M) & 933 OF 2019(N) 23 the Division Bench explained the scope and ambit of consideration by the Apex Court in **Sisters of St. Joseph of Cluny's** case (supra). Therefore, Ext.P15 aptly fits into the circumstances of this case and Ext.P6 cannot strand to judicial scrutiny. 14. As a few serious objections are stated by the petitioner against Ext.P6, the Court desired that the copy of application filed before the NCMEI/seventh respondent is placed for perusal by the sixth respondent/Manager. The matter was adjourned to enable Adv. Sri. Jose Abraham to get instructions file the copy of application made under Sec. 11(f) of the Act and he expressed his inability to produce the copy filed by the sixth respondent before the NCMEI/seventh respondent. He further suggested that the matter may be heard and disposed of from the material on record. 15. I have heard the learned counsel and perused the record. The following points arise for consideration:- (a) Whether the petitioner being the senior most WP(C).Nos.30929 OF 2017 (M) & 933 OF 2019(N) 24 LPSA is entitled for consideration and appointment as Headmaster in Vekkalam Aided U.P.School. (b) Whether the denial of appointment of petitioner as Headmaster by the sixth respondent Manager is legal and valid. (c) Whether the certificate in Ext.P6 is legal, valid and clothes Vekkalam School with the status of Minority Educational Institution, thereby the school management enjoys right and primacy to appoint a teacher with qualifications but not the senior most person. For convenience, the Court prefers to take up for deliberation point (c). 16. The sixth respondent refers to and relies on Ext.P6 for claiming the status of Minority Educational Institution issued under Sec.11(f) of the Act by the seventh respondent. The case of present Manager of school is that the school is administered and managed by a person belonging to the minority community. Therefore, the school is entitled to the status under WP(C).Nos.30929 OF 2017 (M) & 933 OF 2019(N) 25 Article 30(1) of the Constitution of India read with the Act. The judgment of the Supreme Court in **Sisters of St. Joseph of Cluny's** case (supra) has clarified the position that an application under Section 11(f) of the Act, is maintainable before NCMEI and the application is filed for claiming status as such. Therefore unless and until the certificate is recalled in the manner provided for under Section 12C of the Act, denying the right enjoyed by a Minority Educational Institution, would be again unconstitutional. 17. Adv. Sri. Kaleeswaram Raj argues that the expressions employed in Article 30(1) of the Constitution of India make all the difference for claiming the status of Minority Educational Institution. Article 30 (1) of the Constitution of India reads as follows:- "All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice." The right conferred on Minorities Educational Institutions under Article 30(1) of the Constitution of WP(C).Nos.30929 OF 2017 (M) & 933 OF 2019(N) 26 India is to establish and administer Educational Institutions. The words establish and administer are inseparable, in other words the right is expressed by two sides of same coin. Unless the condition of “establish” is satisfied, the administration of educational institution by a member of minority religion does not confer right under the Constitution or the Act. 18. He further distinguishes **Sisters of St. Joseph of Cluny's** case (supra), on fact, by arguing that in that case, the society was established by members of Minority Community, but at the inception wanted to establish educational institutions on secular lines and continue to administer as such. In the reported case, there is change of heart and thereafter, applied for status of Minority Educational Institutions under Section 11(f) of the Act. The NCMEI/seventh respondent accepted, the case of **Sisters of St. Joseph of Cluny's** case (supra) and granted the status to the society as a Minority Educational Institution. In the case on hand, the subject school was not WP(C).Nos.30929 OF 2017 (M) & 933 OF 2019(N) 27 established by minorities and to claim the status, the sixth respondent must demonstrate both the requirements, i.e, establish and administer. In the case on hand, it is not shown for the present that these details were informed to NCMEI/seventh respondent and upon consideration of relevant circumstances, Ext.P6 is issued. Therefore, the presumption available to Ext.P6 ought not to be extended by this Court but must be left open for consideration by the NCMEI/seventh respondent afresh and in the interregnum the right to which the petitioner is entitled to shall not be denied or deprived. 19. Adv. Jose Abraham submits that even if Ext.P6, in due course of time, in exercise of powers under Section 12C, is cancelled, the petitioner is not subjected to prejudice and prays for relegating the matter to NCMEI/seventh respondent for consideration afresh. 20. In the background of these contentions canvassed by the counsel, this Court is required now to WP(C).Nos.30929 OF 2017 (M) & 933 OF 2019(N) 28 see the basic facts available in this behalf before applying **Sisters of St. Joseph of Cluny's** case (supra) or Ext.P15. Ext.P16 refers to the origin of subject school, the gist from sale deed is re-produced for immediate reference:- _"The property belonging to the parties No. 1 and 6 in the partition deed who are parties No. 1 and 2 herein which was set apart to the share of No. 1 and 2 among us as per partition deed No. 168 of 1999 bearing No. 1.559. 1.15.1999 of Peravoor Sub Registry Office and described as item No. 1 to 3 therein, and which are described as item No. 1 to 3 hereunder belonged to us together as joint property and we were in joint possession and ownership thereof and were paying tax in our names jointly and the land tax was accordingly paid at last on 30.12.2013 in Bekalam Village Office as per receipt No. 63074 in book No. 63075 and the property is described more specifically hereunder._ _The property No. 4 hereunder was purchased by No. 1 among us as per document bearing No. 1.164.28289 and No. 753 of 1076 of Bekalam Sub Registry Office from Vettikuzha Abraham and others as per assignment deed and accordingly the property was in possession of No. 1 among us who was having tenancy right over the same as well, and No. 1 among us have been paying land tax for the said property and the tax was atleast paid on 31.12.2013_ WP(C).Nos.30929 OF 2017 (M) & 933 OF 2019(N) 29 _to Bekalam Village Office as per receipt No. 6307430. The Bekalam Aided U.P. School situated in the said property, of which the management was vested with No. 2 among us as per the order No. - 10377 2000/DPI/Dis dated 22.03.2000 issued by the Director of Public Instructions, Thiruvananthapuram and order bearing No. K. Dis. 8469/99 dated 13.04.2000 issued by the Assistant Educational Officer. With an intention to run the said school properly and neatly, without any encumbrance thereto and without the dispute regarding rights, free of complaint, the property has been enjoyed by us. By way of this deed, the entire rights which No. 1 and 2 among us are having in items 1, 2 and 3 of the properties thereunder and the school building therein and the jenm right, title and possession and all other rights and also item No. 4 and the school building herein along with the leasehold rights and all other rights and the school, management, correspondence etc, are all assigned to you today for the mutually agreed consideration of Rs. 14 Lakhs." (emphasis supplied)_ 21. From the above, it is clear that the subject school was established by a member of Hindu Religion and till Ext.P16 sale deed was administered by the founder family. The sixth respondent acquired rights in the immovable property of the school, thereafter staked claim for approval as Manager of the school. These WP(C).Nos.30929 OF 2017 (M) & 933 OF 2019(N) 30 circumstances go a long way in considering whether the sixth respondent, inspite of not being a person who established the school, can claim the status of minority or not. The judgment of the Supreme Court deals with the situation even on fact that the society was established and continued to be administered by the member of minority religion. The core issue for decision of the Apex Court is on the maintainability of an application under Section 11(f) of the Act. In the case on hand the maintainability of application is not the ground of challenge but grant of certificate to school which was not established by minority member. Therefore, the judgment of the Apex Court is understood as laying down a proposition to grant benefit to a person, who purchases a school established by a non-minority member. Ext.P16 being a sale deed inter parties conveys right, possession etc, of immovable property to sixth respondent. The right under Article 30(1) of the Constitution of India or the Act is independent and vendors under Ext.P16 could not WP(C).Nos.30929 OF 2017 (M) & 933 OF 2019(N) 31 transfer what the vendors do not possess. The sixth respondent since could not produce the very application filed before the seventh respondent, the presumption cannot be allowed by sixth respondent till the seventh respondent decides afresh. The judgment in Ext.P15 is applicable with all fours to the circumstances of the case. In the absence of other material to appreciate the totality of circumstances resulting in issuance of Ext.P6, this Court has difficulty in continuing to extend the benefit of minority status to sixth respondent because claiming minority status is a constitutional right and right is claimed and granted in accordance with law. For the above reasons, I deem it appropriate to set aside Ext.P6 and relegate the matter to the NCMEI/seventh respondent for consideration and disposal, whether the Manager who has purchased the school can be considered and granted the status of Minority Educational Institution. The point is answered in favour of the petitioner and against the respondents. 22. The case of petitioner is not opposed on any WP(C).Nos.30929 OF 2017 (M) & 933 OF 2019(N) 32 of the details namely date of entry into service, approval, continuation and that the petitioner is the senior most LPSA in the subject school. The rule position applicable in the background of admitted circumstances also not disputed. The communication dated 23.08.2017 of the fifth respondent has negatived the proposal forwarded by the sixth respondent for approval of Headmaster. The reasons given in letter dated 23.08.2017 are self explanatory. Upon short deliberation, I am of the view that the case of the petitioner was overlooked on the assumed status of subject school as Minority Educational Institution, and such assumption by school and denial of consideration of petitioner are illegal arbitrary and unconstitutional. The petitioner is due to retire on 31.03.2020. The petitioner has been litigating for his right for the past three years. 23. This Court by exercising its jurisdiction and discretion moulds the reliefs in the following manner:a) Ext. P6 is set aside, matter remitted to the WP(C).Nos.30929 OF 2017 (M) & 933 OF 2019(N) 33 NCMEI/seventh respondent for consideration and disposal afresh in accordance with law. b) The petitioner accompanied by a copy of this judgment is given liberty to submit necessary details and objections on the status claimed on the subject school as Minority Educational Institution. c) The petitioner by virtue of the seniority and applicable Rule position, is entitled to be considered and appointed as Headmaster with effect from 01.06.2017. The denial thereof by sixth respondent is unsustainable, illegal, arbitrary and unconstitutional. d) The petitioner since is retiring on 31.03.2020, this Court declares that the petitioner is deemed to have been notionally appointed as Headmaster with effect from 01.06.2017 and the petitioner is not entitled to monetary benefit for this period. e) The sixth respondent Manager is directed to send proposals accordingly to the fifth respondent for approval in this behalf. f) The fifth respondent, by referring to the WP(C).Nos.30929 OF 2017 (M) & 933 OF 2019(N) 34 declaration granted by this Court in the instant common judgment accords necessary approval to the appointment of the petitioner as Headmaster. g) The sixth respondent, if fails to forward the proposals within three weeks from the date of receipt of a copy of this judgment, this Court issues a mandamus to fifth respondent to set right the injustice done to petitioner and issues approval orders forthwith. The writ petitions are allowed as indicated above. **sd/-** **S.V.BHATTI** **JUDGE** ## **DCS** WP(C).Nos.30929 OF 2017 (M) & 933 OF 2019(N) 35 ## **APPENDIX OF WP(C) 30929/2017** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE RELEVANT PART OF THE SERVICE BOOK OF THE PETITIONER.** - **EXHIBIT P2 TRUE COPY OF THE RELEVANT PART OF THE SENIORITY LIST FOR THE ACADEMIC YEAR 20162017.** **EXHIBIT P3 TRUE COPY OF THE RELEVANT PART OF THE SENIORITY LIST FOR THE ACADEMIC YEAR 20172018.** **EXHIBIT P4 TRUE COPY OF THE REPRESENTATION DATED 30.5.2017. EXHIBIT P5 TRUE COPY OF THE REPRESENTATION DATED 31.5.2017. EXHIBIT P6 TRUE COPY OF THE REPRESENTATION DATED 16.6.2017. EXHIBIT P7 TRUE COPY OF THE REPRESENTATION DATED 16.6.2017 SUBMITTED BEFORE THE 5TH RESPONDENT. EXHIBIT P8 TRUE COPY OF THE REPRESENTATION DATED 12.7.2017. EXHIBIT P9 TRUE COPY OF THE REPRESENTATION DATED 24.7.2017. EXHIBIT P10 TRUE COPY OF THE REPRESENTATION DATED 4.8.2017. EXHIBIT P11 TRUE COPY OF THE REPRESENTATION DATED 9.8.2017. EXHIBIT P12 TRUE COPY OF THE LETTER DATED 23.8.2017. EXHIBIT P13 TRUE COPY OF THE ORDER NO.K.DIS.E/3466/17 DATED 23.8.2017. EXHIBIT P14 TRUE COPY OF THE REPRESENTATION DATED 7.9.2017. EXHIBIT P15 TRUE COPY OF THE APPOINTMENT ORDER DATED 01.06.2017 PERTAINING TO THE RESPONDENT NO. 7** WP(C).Nos.30929 OF 2017 (M) & 933 OF 2019(N) 36 ## **APPENDIX OF WP(C) 933/2019** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE RELEVANT PART OF THE SERVICE BOOK OF THE PETITIONER. EXHIBIT P2 TRUE COPY OF THE RELEVANT PART OF THE SENIORITY LIST FOR THE ACADEMIC YEAR 20162017** **EXHIBIT P3 TRUE COPY OF THE RELEVANT PART OF THE SENIORITY LIST FOR THE ACADEMIC YEAR 20172018 EXHIBIT P4 TRUE COPY OF THE REPRESENTATION DATED 30.05.2017 EXHIBIT P5 TRUE COPY OF THE REPRESENTATION DATED 31.5.2017 EXHIBIT P6 TRUE COPY OF THE MINORITY CERTIFICATE DATED 27.10.2017 ISSUED BY THE NATIONAL COMMISSION FOR MINORITY EDUCATIONAL INSTITUTIONS IN FAVOUR OF THE 6TH RESPONDENT. EXHIBIT P7 TRUE COPY OF THE PROCEDURE FOR OBTAINING MINORITY STATUS CERTIFICATE FROM NCMEI DOWNLOADED FROM THE OFFICIAL WEBSITE WWW.ncmei.gov.in. EXHIBIT P8 TRUE COPY OF THE APPLICATION DATED 26.4.2016 SUBMITTED BY THE 5TH RESPONDENT BEFORE THE 1ST RESPONDENT. EXHIBIT P9 TRUE COPY OF THE ORDER NO.G(4)/32547/2016/K.DIS/DPI DATED 30.6.2016 EXHIBIT P10 TRUE COPY OF THE ORDER NO.E/6329/15 DATED 09.9.2016 ISSUED BY THE 5TH RESPONDENT. EXHIBIT P11 TRUE COPY OF THE LETTER DATED 24.9.2018 ISSUED BY THE UNDER SECRETARY & PIO,NCMEI(GOVERNMENT OF INDIA)** WP(C).Nos.30929 OF 2017 (M) & 933 OF 2019(N) 37 **EXHIBIT P12 TRUE COPY OF THE SALE DED NO.32/14 DATED 1.1.2014. EXHIBIT P13 TRUE COPY OF THE GOVERNMENT OF INDIA,NATIONAL COMMISSION FOR MINORITY EDUCATIONAL INSTITUTIIONS,GUIDELINES.** **EXHIBIT P14 A COPY OF THE LETTER DATED 04.01.2019 ISSUED BY THE UNDER SECRETARY AND PIO, GOVERNMENT OF INDIA NATIONAL COMMISSION FOR MINORITY EDUCATIONAL INSTITUTION ALONG WITH THE DOCUMENTS ENCLOSED THEREIN** **EXHIBIT P15 TRUE COPY OF THE JUDGMENT DATED 05.08.2019 IN W.A. NO. 864/2019** **EXHIBIT P16 TRUE COPY OF THE ENGLISH TRANSLATION OF THE RELEVANT PORTION OF SALE DEED DATED 01.01.2014 IN FAVOUR OF THE RESPONDENT NO. 6 EXHIBIT P17 TRUE COPY OF THE RELEVANT PAGES OF THE GOLDEN JUBILEE SOUVENIR OF THE VEKKALAM U.P. SCHOOL EXHIBIT P18 TRUE COPY OF THE ORDER DATED 13.04.2000 ISSUED BY THE ASSITANT EDUCATION OFFICER**