High Court of KeralaSingle Judge2015-09-15Writ petition allowed; orders denying approval ...

The Corporate Manager, Corporate Educational Agency, Arch Diocese of Thrissur, Thrissur v State of Kerala, rep. by Secretary, Central Education (E) Department, Government Secretariat, Trivandrum; District Educational Officer, Trichur; Deputy Director of Education, Trichur; Director of Public Instruction, Trivandrum; E.C. Jose, Headmaster, St. Sebastian's High School, Mannamangalam, Trichur

Case / Petition Number:WP(C).No. 21302 of 2009 (G)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Vinod Chandran
Judgment Date: 2015-09-15
Court Decision / Holding: Writ petition allowed. Exts.P11, P12, P13, P16 and P17 are set aside. The approval of the 5th respondent as Head Master from 02.08.2004 to 08.10.2004 is allowed, with salary disbursement in accordance with law within three months of receiving a certified copy of the judgment. Consequences of such approval would follow under the K.E.R. The petition stands allowed; no costs.
Final Disposition: Writ petition allowed; orders denying approval set aside; retrospective approval and salary implications to be resolved under K.E.R.

Parties to the Case

Appellants / Petitioners

The Corporate Manager, Corporate Educational Agency, Arch Diocese, Thrissur, Thrissur

Respondents

State of Kerala, rep. by Secretary, Central Education (E) Department, Government Secretariat, Trivandrum
District Educational Officer, Trichur
Deputy Director of Education, Trichur
Director of Public Instruction, Trivandrum
E.C. Jose, Headmaster, St. Sebastian's High School, Mannamangalam, Trichur

Legal Representation & Advocates

Counsels for Petitioners

• Sri. Kurian George Kannathanam (Sr.)
• Sri. Tony George Kannathanam

Counsels for Respondents

• Government Pleader for R1-4
• Sri. Jiji Thomas (for R5)

Case Synopsis & Summary

The Corporate Manager, Corporate Educational Agency, Arch Diocese of Thrissur, a minority institution, challenges the denial of approval for the temporary appointment of the fifth respondent as Head Master in a leave vacancy during 2004. The petition contends that under the Kerala Education Rules there is no requirement of a formal government declaration of minority status to qualify for protections under Article 30(1) of the Constitution; minority status should be shown by the institution being established and administered by a minority community. The District Educational Officer had declined approval on grounds including a period shorter than one academic year and the relevance of G.O No.169/04.G.Edn. in this context; later, a Government Circular Ext.P5 suggested exemptions for Head Master appointments. The court analyzes prior approvals, appeals, and recognition by the National Commission for Minority Educational Institutions to determine whether minority status can be acknowledged without a formal declaration. Citing Ammad v. Emjay High School (Supreme Court), the court notes there is no scheme under KER requiring a government declaration of minority status. The court ultimately allows the petition, sets aside several orders denying approval, and directs that the fifth respondent’s appointment be approved for the leave period with salary payable within three months, leaving subsequent steps to be addressed under the K.E.R.

Provisions of Law Cited

Article 30(1) of the Constitution of IndiaKerala Education Rules (K.E.R.)Kerala Education ActG.O No.169/04.G.Edn. dated 15.06.2004G.O(P) No.169/2004Rule 51A (Kerala Education Rules)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contend that there is no declaration contemplated under the Kerala Education Rules for minority status, citing Ammad v. Emjay High School (1998) and arguing that minority status is established by the institution being established and administered by a minority community. They assert that their institution is minority-instituted and thus eligible for protection under Article 30(1) without a formal declaration by the Government; past approvals and recognition (including Ext. P20, Ext. P21) support this stance, and the government’s reliance on declarations is misplaced. They further argue that prior approvals were granted on the basis of minority status and that denial based on declaration is inconsistent with the established practice and constitutional protections.

Contentions of Respondents

Respondents maintain that declaration of minority status is required under KER, and that government declarations or recognitions are essential for minority status to be used as a basis for appointment approvals. They rely on G.O 169/04.G.Edn. and Circular Ext.P5 to argue that the rules restrict or modify appointments and that lack of a formal declaration should bar approval. They contend procedural prerequisites and record-keeping issues (e.g., service book, seniority lists) justify the denial of approval to the 5th respondent’s temporary appointment.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Ammad v. Emjay High School	1998 (2) KLT 828	Positive	The Supreme Court held there is no provision in the Kerala Education Act or the Kerala Education Rules requiring a government declaration to recognize a minority school; minority status is established by the institution being established and administered by a minority community, which the Kerala High Court relies upon to support recognizing minority status without a formal declaration.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **TUESDAY, THE 15TH DAY OF SEPTEMBER 2015/24TH BHADRA, 1937** ## **WP(C).No. 21302 of 2009 (G)** **----------------------------** ## **PETITIONER(S):** **--------------------------** **THE CORPORATE MANAGER, CORPORATE EDUCATIONAL AGENCY, ARCH DIOCESE OF TRICHUR, TRICHUR.** **BY ADVS.SRI.KURIAN GEORGE KANNANTHANAM (SR.) SRI.TONY GEORGE KANNANTHANAM** ## **RESPONDENT(S):** **----------------------------** **1. STATE OF KERALA, REP. BY SECRETARY, CENTRAL EDUCATION (E) DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM.** **2. THE DISTRICT EDUCATIONAL OFFICER, TRICHUR.** **3. THE DEPUTY DIRECTOR OF EDUCATION, TRICHUR.** **4. THE DIRECTOR OF PUBLIC INSTRUCTION, TRIVANDRUM.** **5. E.C.JOSE, HEADMASTER, ST.SEBASTIANS HIGH SCHOOL, MANNAMANGALAM, TRICHUR.** **R,R1-4 BY ADV. GOVERNMENT PLEADER R,R5 BY ADV. SRI.JIJI THOMAS** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15-09-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 21302 of 2009 (G)** ## **APPENDIX** ## **PETITIONERS' EXHIBITS :** **EXT. P1: TRUE COPY OF THE ORDER DATED 6.8.1985 APPOINTING THE 5TH RESPONDENT AS H.S.A. EXT. P2: TRUE COPY OF THE APPOINTMENT ORDER DAATED 2.8.2004 APPOINTING THE 5TH RESPONDENT AS H.M. EXT. P3: TRUE COPY OF THE ORDER DATED 16.10.2004 ISSUED BY THE D.E.O. EXT. P4: TRUE COPY OF THE ORDER DATED 15.4.2005 OF THE DEPUTY DIRECTOR OF EDUCATION. EXT. P5: TRUE COPY OF THE CIRCULAR DATED 3.4.2006 ISSUED BY THE D.P.I. EXT. P6; TRUE COPY OF THE LETTER DATED 26.4.2006 SENT BY THE CORPORATE MANAGER TO THE D.E.O. EXT. P7: TRUE COPY OF THE LETTER DATED 18.8.2006 SENT BY THE D.E.O. TO THE PETITIONER. EXT. P8: TRUE COPY OF THE REPLY DATED 26.10.2006 SENT BY THE CORPORATE MANAGER TO THE D.E.O. EXT. P9: TRUE COPY OF THE ORDER DATED 20.10.2006 PASSED BY THE D.E.O. EXT. P10: TRUE COPY OF THE APPEAL DATED 20.11.2006 FILED BY THE PETITIONER BEFORE THE DY. DIRECTOR OF EDUCATION. EXT.P11 COPY OF THE ORDER DATED 22.2.07 OF THE DY.DIRECTOR OF EDUCATION. EXT.P12 COPY OF THE APPEAL DATED 16.4.07 FILED BY THE PETITIONER BEFORE THE D.P.I EXT. P13: TRUE COPY OF THE ORDER DATED 11.9.2007 PASSED BY THE D.P.I. EXT. P14: TRUE COPY OF THE APPEAL DATED 8.10.2007 FILED BY THE PETITIONER AGAINST EXT. P13 ORDER BEFORE THE SECRETARY TO GOVT. GEN. EDN. DEPT.** **EXT. P15: TRUE COPY OF THE GOVERNMENT LETTER DATED 16.2.2009 SENT TO THE PETITIONER.** **CONTD ..2..** **.. 2..** ## **WP(C).No. 21302 of 2009 (G)** **EXT. P16: TRUE COPY OF THE REPLY DATED 15.4.2009 SENT BY THE PET ITIONER TO EXT. P15 LETTER.** - **EXT. P17: TRUE COPY OF THE ORDER DATED 10.6.2009 ISSUED BY THE SECRETARY TO GOVT. REJECTING EXT. P14 APPEAL.** - **EXT. P18: TRUE COPY OF THE APPOINTMENT ORDER DATED 23.7.2005 APPOINTING 5TH RESPONDENT AS H.M. IN A PERMANENT VACANCY.** **EXT. P19: TRUE COPY OF THE ORDER DATED 1.6.2009 APPROVING THE APPOINTMENT OF REENA ANTO P AS H.M. BY THE D.E.O.** - **EXT. P20: TRUE COPY OF THE ORDER DATED 9.6.2009 OF THE NATIONAL COMMISSION FOR MINORITY EDUCATIONAL INSTITUTIONS DECLARING THE PETITIONER'S CORPORATE EDUCATIONAL AGENCY AS MINORITY EDUCATIONAL INSTITUTION.** - **EXT.P21 COPY OF THE APPROVAL OF APPOINTMENT OF KUTTIKKAT ANTONY BABU AS H.M** ## **RESPONDENTS' EXHIBITIONS: NIL** ## **/TRUE COPY/** ## **P.A. TO JUDGE** ## **SB** ## **K. VINOD CHANDRAN, J.** ## **===================== W.P.(C) No.21302 of 2009 - G** ## **====================== Dated this the 15[th] day of September, 2015** ## **J U D G M E N T** The petitioner is aggrieved with the fact that the appointment of the 5[th] respondent as a Head Master in a leave vacancy between 02.08.2004 and 08.10.2004 has not been approved for the reason that the petitioner's institution is not a minority institution and there is no declaration to that end. The petitioner however contends that there is no declaration contemplated under the K.E.R as has been held by the Hon'ble Supreme Court in **Ammad** v. **Emjay High School [1998 (2) KLT 828]** and the only requirement is that the institution should be one established and administered by a minority community. 2. The petitioner is a Corporate Educational Agency; Arch Diocese, Thrissur, admittedly, a minority institution **2** W.P.(C) No.21302 of 2009 - G established and administrated by the minority community. The 5[th] respondent was appointed as an H.S.A on 06.08.1985, in one of the schools under the Corporate Educational Agency and had been continued till the date of his temporary appointment as an H.S.A, in a leave vacancy. The request for approval was declined by the D.E.O by Ext.P3 on the ground that the appointment is for a period of less than one academic year. Reliance was placed on G.O No.169/04.G.Edn. dated 15.06.2004. 3. The same stood approved by Ext.P4 order in appeal by the Deputy Director. However, the Government brought out Ext.P5 Circular dated 03.04.06 which specifically noticed that the G.O(P) No.169/2004 shall not apply to the appointment and promotion to the post of Head Master . A reading of G.O(P) No. 169 of 2004 also indicates that the daily wage appointment contemplated in the said G.O was only to ensure that no multiple claims under Rule 51A are occasioned. In the circumstance of Ext.P5 Circular, the petitioner again moved a .proposal for **3** W.P.(C) No.21302 of 2009 - G reconsidering the temporary appointment of the 5[th] respondent as a Head Master. However at that point, the same was declined for reason of the service book of the incumbent and the seniority list, among other documents, having not been submitted. 4. The petitioner moved an appeal specifically contending that the seniority list would not be a relevant consideration, especially since the petitioner is covered under Article 30(1) of the Constitution of India. The said contention was rejected by Ext.P11 on the ground that there is no declaration produced that the institution is a minority institution. The findings at Ext.P11 regarding the absence of the declaration was upheld in Ext.P13 and Ext.P17. 5. The issue is squarely covered by the decision of the Hon'ble Supreme Court above referred, which declared that there is no provision in the Kerala Education Act or the K.E.R, which enables the Government to declare the school as a minority school. A minority school would continue to be so **4** W.P.(C) No.21302 of 2009 - G whether Government declared if as such or not, was the specific finding. The declaration made by the Government, in that case, was found to be a mere recognition of the fact and was held to be not the foundation on which the minority status could be claimed. 6. In the present case, the other appointments in the petitioner's educational institution, is seen to have been approved on the basis of the petitioner being a minority institution. That alone would be required to find that the petitioner is a minority institution, accepted as such by the authorities under the K.E.R and no separate declaration would be required to that end. On such approval is produced at Ext.P21. The learned Counsel also relies on Ext.P20, though a subsequent document, to the orders passed herein, by which the National Commission for the minority institutions declared the petitioner to be a minority institution. 7. Taking all the circumstances into consideration, it is **5** W.P.(C) No.21302 of 2009 - G only proper that Exts.P11, P12, P13, P16 and P17 orders are set aside. I do so. The approval of the 5[th] respondent as a Head Master between 02.08.2004 to 08.10.2004 shall be allowed and the salary disbursement in accordance with law, shall be made within a period of three months from the date of receipt of a certified copy of this judgment. The consequences of such approval would necessarily follow as and when taken up by the Management or Teacher before the authority under the K.E.R. The writ petition would stand allowed. No costs. **Sd/-** **K. VINOD CHANDRAN, JUDGE** SB // true copy // P.A to Judge.