St. Mary's Higher Secondary School, Vallakom v. State of Kerala & Ors

**WP(C) NO. 20684 OF 2021** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V THURSDAY, THE 21[ST] DAY OF OCTOBER 2021 / 29TH ASWINA, 1943 WP(C) NO. 20684 OF 2021** ## **PETITIONER/S:** ST.MARYS HIGHER SECONDARY SCHOOL, VALLAKOM PADINJAREKARA P.O.- 686 146, VAIKOM, KOTTAYAM DISTRICT, KERALA THROUGH ITS MANAGER, DEVASYKUTTY M.V. ALAIS, FR. SEBASTIAN MADASSERY. BY ADVS. JOSE ABRAHAM E.ADITHYAN PHILIP.N.JOSEPH ## **RESPONDENT/S:** 1 STATE OF KERALA REPRESENTED BY SECRETARY, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM 695 001. 2 DIRECTOR, DIRECTORATE OF MINORITY WELFARE, GOVT. OF KERALA, 4TH FLOOR, VIKAS BHAVAN, THIRUVANANTHAPURAM DISTRICT, KERALA 695 033. SMT RESMITHA R CHANDRAN, GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 20684 OF 2021** **2** ## **“CR”** ## **JUDGMENT** St.Marys HSS Vallakom, the petitioner herein, is stated to be a Christian Minority Institution established and administered by the Vallakom St.Mary’s Educational and Charitable Trust. The aforesaid school, according to the petitioner, was established in the year 1916. The application filed by the petitioner seeking for issuance of a Minority Status Certificate stands rejected by Ext.P7 order on the ground that the petitioner is required to obtain NOC from the Director, Directorate of Minority Welfare, which is the competent authority under Section 10 of the National Commission of Minority Educational Institutions, Act, 2004. The aforesaid order is under challenge in this writ petition. 2. Sri Adityan Ezhappilly, the learned counsel appearing for the petitioner contends that Article 30 of the Constitution of India grants a fundamental right to all minorities, whether based on religion or language, to establish and administer educational institutions of their choice. According to the learned counsel, by G.O.(P) No.2/2020/G.Ad dated 9.1.2020, the Government has appointed the Director, Directorate of Minority Welfare as the competent authority under Section 10 of the National Commission For Minority Educational Institutions Act, 2004 (NCMEI Act) to decide on the applications **WP(C) NO. 20684 OF 2021** **3** regarding issuance of NOC for the establishment of educational institutions by the minorities and the Secretary, General Education Department as the competent authority under Section 12(B) of NCMEI to decide on the applications regarding Minority Status of Educational Institutions. As the request was for issuance of Minority Status Certificate, post establishment of the institution, the respondents were not justified in rejecting the application on the ground that the NOC was not produced. According to the learned counsel, only in cases wherein a minority institution is sought to be established that the person is required to apply to the competent authority for grant of No Objection Certificate. 3. I have heard the learned Government Pleader and have considered the submissions advanced. 4. The NCMEI Act was enacted with the idea of providing affiliation for Minority Educational Institutions to Central Universities. The Act was amended twice in order to further broad-base and expand the functions as well as the quasi-judicial powers of the NCMEI. To appreciate the contentions advanced by the petitioner, it would be apposite to briefly refer to the statutory provisions. Section 10 of the Act speaks about the right of a person to establish a Minority Educational Institution. The said provision reads as follows: Section 10: Right to establish a Minority Educational Institution **WP(C) NO. 20684 OF 2021** **4** (1) Any person who desires to establish a Minority Educational Institution may apply to the Competent authority for the grant of no objection certificate for the said purpose. ## (2) The Competent authority shall,-- (a) on perusal of documents, affidavits or other evidence, if any; and (b) after giving an opportunity of being heard to the applicant, decide every application filed under sub-section (1) as expeditiously as possible and grant or reject the application, as the case may be: Provided that where an application is rejected, the Competent authority shall communicate the same to the applicant. (3) Where within a period of ninety days from the receipt of the application under sub-section (1) for the grant of no objection certificate,-- (a) the Competent authority does not grant such certificate; or (b) where an application has been rejected and the same has not been communicated to the person who has applied for the grant of such certificate, it shall be deemed that the Competent authority has granted a no objection certificate to the applicant. (4) The applicant shall, on the grant of a no objection certificate or where the Competent authority has deemed to have granted the no objection certificate, be entitled to commence and proceed with the establishment of a Minority Educational Institution in accordance **WP(C) NO. 20684 OF 2021** **5** with the rules and regulations, as the case may be, laid down by or under any law for the time being in force. Explanation.-- For the purpose of this section,-- (a) "applicant" means any person who makes an application under sub-section (1) for establishment of a Minority Educational Institution; (b) "no objection certificate" means a certificate stating therein, that the Competent authority has no objection for the establishment of a Minority Educational Institution. A reading of Section 10 would reveal that a person who is desirous of establishing a Minority Educational Institution after the Amendment Act of 2006 had come into force is required to apply before the competent authority for grant of No Objection Certificate and the said authority has to consider the application and pass orders as detailed therein. 5. Section 12B deals with the power of the Commission to decide on the minority status of an educational institution. The said provision reads thus: Section 12B: Power of the Commission to decide on the minority status of an educational institution (1) Without prejudice to the provisions contained in the National Minority Commission Act, 1992 (19 of 1992), where an authority established by the Central Government or any State Government, as the case may be, for grant of minority status to any educational institution rejects the application for the grant of such status, the aggrieved person **WP(C) NO. 20684 OF 2021** **6** may appeal against such order of the authority to the Commission. (2) An appeal under sub-section (1) shall be preferred within thirty days from the date of the order communicated to the applicant: Provided that the Commission may entertain an appeal after expiry of the said period of thirty days, if it is satisfied that there was sufficient cause for not filing it within that period. (3) An appeal to the Commission shall be made in such form as may be prescribed and shall be accompanied by a copy of the order against which the appeal has been filed. (4) On receipt of the appeal under sub-section (3), the Commission may, after giving the parties to the appeal, an opportunity of being heard, decide on the minority status of the educational institution and shall proceed to give such directions as it may deem fit and, all such directions shall be binding on the parties. Explanation.-- For the purposes of this section and section 12C, "authority" means any authority or officer or commission which is established under any law for the time being in force or under any order of the appropriate Government, for the purpose of granting a certificate of minority status to an educational institution. Section 12B says that where an authority established by the Central Government or any State Government for grant of Minority Status to any Educational Institution rejects the application for grant of such status, the said person may appeal against such order of the authority to the Commission. 6. It was by G.O.(P) No.2/2020/GAD dated 09.1.2020 that the **WP(C) NO. 20684 OF 2021** **7** ## Government had appointed the competent authority under Section 10 and 12B of the NCMEI Act. The relevant portion of the order reads thus: The State Government is mandated to appoint Competent Authority under Section 10 of National Commission for Minority Education Institutions Act, 2004 and as per provision contained in the National Commission for Minorities Act, 1992 (19 of 1992) to decide on the issues regarding No Objection Certificate for the Establishment of Educational Institutions by the Minorities and the Minority status of Educational Institutions respectively. In the circumstances, Government are pleased to appoint the Director, Directorate of Minority Welfare as the Competent Authority under Section 10 of National Commission for Minority Educational Institutions Act, 2004 to decide on the applications regarding No Objection Certificate for the establishment of Educational Institutions by the Minorities and the Secretary, General Education Department as the Competent Authority under section 12B of the National Commission for Minority Educational Institutions Act, 2004 to decide on the applications regarding Minority Status of Educational Institution. ( emphasis supplied ) 7. A reading of Section 10 as well as Section 12B read with the Government Order dated 9.1.2020, reveals that two situations are contemplated. A person who desires to establish a Minority Educational Institution is required to apply before the Director, Directorate of Minority Welfare, who is the Competent Authority under Section 10 of National Commission for Minority Educational Institutions Act, 2004 for obtaining NOC. **WP(C) NO. 20684 OF 2021** **8** On the other hand, if it is for a declaration of its status as a Minority Educational Institution at any stage post establishment, the applicant has to approach the competent authority, who is the Secretary, General Education Department and a request has to be placed before the said authority under Section 12B. If the competent authority rejects the application filed under Section 10 or Section 12B of the Act, the aggrieved person may appeal against such order to the Commission as provided under Section 12A and 12B respectively. 8. Section 11 of the NCMEI Act provides for the functions of the Commission. The said provision reads thus: Section 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; **WP(C) NO. 20684 OF 2021** **9** (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. 9. Among other functions, the Commission under Section 11(f) of the Act is entitled to decide all questions relating to the status of any institution as a Minority Educational Institution and declare its status as such. 10. The specific case of the petitioner is that the school was established in the year 1916 and that the same was upgraded as a Higher Secondary School in the year 2014. The application for issuance of Minority **WP(C) NO. 20684 OF 2021** **10** Status Certificate has been rejected by the 1st respondent on the ground that the petitioner is required to obtain a NOC from the competent authority under Section 10 of the Act. The respondent failed to take note that the request made by the petitioner was for securing a Minority Status Certificate and the same was not for establishing a minority institution. 11. In **Sisters of St. Joseph of Cluny v. State of West Bengal and Ors** [(2018) 6 SCC 772], it was observed by the Hon’ble Apex Court that “Harmoniously read, all applications for the establishment of a minority educational institution after the Amendment Act of 2006 must go only to the competent authority set up under the statute. On the other hand, for the declaration of its status as a minority educational institution at any stage post establishment, NCMEI would have the power to decide the question and declare such institution’s minority status.” As held by the Apex Court, since the request was for Minority Status Certificate post establishment of the institution, the petitioner could not have been called upon to produce a NOC which is only for establishing a new minority institution. 12. Having considered all the relevant aspects, I am of the considered opinion that Ext.P7 order passed by the 1st respondent, directing the petitioner to obtain NOC from the competent authority under Section 10 cannot be sustained. As the requirement of the petitioner is to obtain a Minority Status Certificate under Section 12B of the Act, it is for the petitioner to file an **WP(C) NO. 20684 OF 2021** **11** appropriate application before the competent authority, who is the Secretary, General Education Department as per exhibit P2 Government Order. If such an application is filed, the 1st respondent shall consider the same and take a decision within a period of one month. The petitioner shall produce all documents in their possession to establish the fact that the school was established in the year 1916. Before passing orders, the petitioner shall be afforded an opportunity of being heard. Sd/- **RAJA VIJAYARAGHAVAN V JUDGE** sru **WP(C) NO. 20684 OF 2021** **12** ## **APPENDIX OF WP(C) 20684/2021** PETITIONER (S) EXHIBITS : - Exhibit P1 TRUE COPY OF THE ORDER ISSUED BY THE FIRST RESPONDENT DATED 13.03.2019 ADDRESSING TO THE PETITIONER. - Exhibit P2 TRUE COPY OF THE ORDER DATED 09/01/2020 ISSUED BY THE GENERAL ADMINISTRATION DEPARTMENT GOVT. OF KERALA. - Exhibit P2 (A) TRUE COPY OF THE TYPED VERSION OF THE SAME. - Exhibit P3 TRUE COPY OF THE JUDGMENT IN WP 16430 OF 2020 DATED 11TH DAY OF AUGUST 2020. - Exhibit P4 TRUE COPY OF THE ORDER ISSUED BY THE SECOND RESPONDENT DATED 8.9.2020. - Exhibit P5 TRUE COPY OF THE ORDER DATED 16TH FEBRUARY 2021 ISSUED BY THE NATIONAL COMMISSION FOR MINORITY INSTITUTION. Exhibit P6 TRUE COPY OF THE INTERIM ORDER IN WP 15602 OF 2021 DATED 10.08.2021. - Exhibit P7 TRUE COPY OF THE ORDER DATED 7.09.2021 ISSUED BY THE SECRETARY, GENERAL EDUCATION DEPARTMENT. - Exhibit P8 TRUE COPY OF THE JUDGMENT PASSED BY THE HONBLE SUPREME COURT IN THE MATTER TITLED AS SISTERS OF ST. JOSEPH OF CLUNY V. THE STATE OF WEST BENGAL AND ORS. (CIVIL APPEAL NO. 3945 OF 2018). - Exhibit P9 TRUE COPY OF THE ORDER ISSUED BY THE HONORABLE HIGH COURT DATED 6TH AUGUST 2021 IN WP 8805 OF 2021. RESPONDENT (S) EXHIBITS : NIL