The Corporate Manager, T.D. Schools, Thuravoor, Alappuzha v. State of Kerala and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V MONDAY, THE 16 [ TH ] DAY OF JANUARY 2023 / 26TH POUSHA, 1944 ``` ## **`WP(C) NO. 17021 OF 2022`** ## **`PETITIONERS:`** ``` 1 THE CORPORATE MANAGER T.D.SCHOOLS, THURAVOOR/ALAPPUZHA, ALAPPUZHA DISTRICT, PIN-688 540. 2 MAYA.G, PRINCIPAL, T.D. HIGHER SECONDARY SCHOOL, THURAVOOR, ALAPPUZHA DISTRICT, PIN-688 540 BY ADVS. S.P.ARAVINDAKSHAN PILLAY N.SANTHA V.VARGHESE PETER JOSE CHRISTO S.A.ANAND K.N.REMYA L.ANNAPOORNA VISHNU V.K. ABHIRAMI K. UDAY ``` ## **`RESPONDENTS:`** ``` 1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001. 2 DIRECTOR OF GENERAL EDUCATION, DIRECTORATE OF GENERAL EDUCATION, JAGATHY, THIRUVANANTHAPURAM, PIN-695 014. 3 JOINT DIRECTOR (ACADEMIC), HIGHER SECONDARY WING, DIRECTORATE OF GENERAL ``` W.P.(C) No.17021 of 2022 2 ``` EDUCATION, HOUSING BOARD BUILDINGS, SANTHI NAGAR, THIRUVANANTHAPURAM, PIN-695 001. ``` - `4 REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION, CHENGANNOOR, ALAPPUZHA DISTRICT, PIN-689 121.` - `5 L.MINI,` ``` H.S.S.T. (ENGLISH), T.D. HIGHER SECONDARY SCHOOL, THURAVOOR, ALAPPUZHA DISTRICT, PIN-688 540. ``` ``` SMT NISHA BOSE, SR GOVERNMENT PLEADER ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C) No.17021 of 2022 3 ## **JUDGMENT** The 1st petitioner is the Corporate Manager of T.D. Schools, Thuravoor, Alappuzha, an educational agency governed by the provisions of the Kerala Education Act and the Rules framed thereunder. The petitioner has approached this Court, being aggrieved by Ext.P9 order issued by the Regional Deputy Director rejecting their request for appointing the 2nd petitioner as Principal of the T.D.Higher Secondary School, Thuravoor. The specific contention of the petitioners is that the order issued by the RDD cannot be sustained as the management of a minority institution has the right to choose a qualified person as the Principal of the school, and the said right is well insulated by the protective cover of Article 30(1) of the Constitution of India, however, subject to the appointee having the qualifications and fulfilling the conditions for service to the post. Being aggrieved by the order of rejection of the approval, the petitioners are before this Court seeking the following reliefs: i. call for the records leading to Ext.P9 and quash the same by the issuance of a writ of certiorari or any other appropriate writ, W.P.(C) No.17021 of 2022 4 order or direction. ii. issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents 1 to 4 to approve the appointment of the 2nd petitioner by promotion as Principal of TD Higher Secondary School, Thuravoor w.e.f. 01.04.2020 on regular basis forthwith and grant her all consequential service and monetary benefits, including back wages. 2. Short facts for deciding the issue involved are as under: The T.D.Schools, Thuravoor, is stated to be an educational agency set up for the social and economic upliftment of the members of the Gowda Saraswatha Brahmin Community. The above community speaks the Konkani language, a distinct language for the purpose of Articles 29 and 30 of the Constitution of India. 3. The petitioners assert in the writ petition that in addition to various educational institutions, the 1st petitioner also runs two Higher Secondary Schools, viz., the T.D. Higher Secondary School, Thuravoor, T.D. Higher Secondary School, Alappuzha, and the Teachers Training Institute at Thuravoor. The 1st petitioner appointed the 2nd petitioner as the Principal of T.D. Higher Secondary School, Thuravoor, in the vacancy that arose consequent to the retirement of a certain teacher. According W.P.(C) No.17021 of 2022 5 to the petitioners, the 1st petitioner is entitled to protection under Article 30(1) of the Constitution of India, and the 2nd petitioner, being qualified and having the requisite conditions of service, was appointed without reckoning the seniority. 4. According to the petitioners, the Government had earlier issued Ext.P7 order on 20.03.1999 upholding the appointment of Smt. Vilasini Bai, recognizing the fact that the school enjoys the privilege under Article 30(1). The petitioners contend that the Government has also issued Ext.P8 order ordering that Konkani linguistic minorities have the right to select all the candidates for training in the training schools run by them in view of the fact that they are a linguistic minority community and entitled to the protection guaranteed under Article 30(1) of the Constitution of India. 5. According to the petitioners, it was by ignoring Exts. P7 and P8, the 4th respondent has issued Ext.P9 letter informing that the above Government Orders cannot be relied upon to conclude that the schools run by the 1st petitioner have acquired any minority rights. 6. The petitioners, in the above circumstances, approached the Government and have filed numerous representations to consider their W.P.(C) No.17021 of 2022 6 request for being included in the category of a linguistic minority community, but their request has not been conceded to. The petitioners contend that during the previous years, when the educational authorities insisted upon the petitioners to produce the minority status certificate for generating the link on Community Quota Rank List Generator Software(CQRLS), the petitioners had to approach this Court. This Court has rendered Exts.P15, P16, and P17 judgments, adverting to the previous orders issued by the Government and ordering the issuance of the link to the CQRLS. In view of Exts.P7 and P8, Ext.P9 cannot be sustained under law, contends the petitioners. 7. A counter affidavit has been filed by the 1st respondent. Reliance is placed on Exts.R1(a) to (c) Government Orders, and it is stated that the facilities specified therein are liable to be granted only in areas where 15% or above of the total population speak a language different from the principal regional language. It is further stated that only Tamil and Kannada are enjoying the status of the minority language in the State. 8. Sri. S.P. Aravindakshan Pillay, the learned counsel appearing for the petitioners, submitted that a linguistic as well as religious minority W.P.(C) No.17021 of 2022 7 are covered by the expression ‘minority’ under Article 30 of the Constitution. Placing reliance on **T.M.A. Pai Foundation and Ors. v. State of Karnataka and Ors.** [(2002) 8 SCC 481], it is argued that the Apex Court had occasion to hold that the expression of minorities in Article 30 of the Constitution, whether linguistic or religious, has to be determined by treating the State and not the whole of India as a unit. The learned counsel would then refer to Ext.P7, and it is pointed out that the Government has accepted that the Higher Secondary School Thuravoor is one institution having minority rights contemplated under Article 30(1) of the Constitution of India, they cannot now turn around and contend otherwise. The learned counsel would also refer to the order dated 04.07.1974 issued by the 1st respondent wherein the Government, after examining the entire facts, had ordered that the Konkani religious minority will have the right to select all the candidates for training in the training schools run by them as the petitioner was entitled to the protection guaranteed under Article 30 of the Constitution. The learned counsel would also rely on the law laid down by the Division Bench of this Court in **St. Paul’s Higher Secondary School v. State of Kerala** [2020 (2) KLT 443], and it is urged that when the Government has W.P.(C) No.17021 of 2022 8 already taken a decision and approved the institution as a minority educational institution, they cannot take a different stand now. 9. The learned Government Pleader has reiterated the contentions in the counter. It is submitted that only Tamil and Kannada are enjoying the status of the minority language in the State. 10. I have considered the submissions advanced and have perused the records. 11. The question raised in this case is whether the educational institution of which the 1st petitioner is the Manager can claim linguistic minority status and seek approval for the appointment of the 2nd petitioner as the Principal of the school. Insofar as the right of a minority institution to appoint a principal of its choice, it was by now settled that the management of a minority institution is entitled to appoint a qualified teacher from among the minority group depending on their choice. The Apex Court in **Manager Corporate Educational Agency v. James Mathew and Ors.** [(2017) 15 SCC 595] has declared that the freedom to choose the person to be appointed as Principal has always been recognized as a vital facet of the right to administer the educational institution. This has not been, in any way, diluted or altered by **T.M.A.** W.P.(C) No.17021 of 2022 9 **Pai** (supra). Having regard to the key role played by the Principal in the management and administration of the educational institution, there can be no doubt that the right to choose the Principal is an important part of the right of administration, and even if the institution is aided, there can be no interference with the said right. The fact that the post of the Principal/Headmaster is also covered by State aid will make no difference. 12. In **N. Ammad v. Manager, Emjay High School** , [1998 (6) SCC 674], the question was in respect of appointment in an aided school governed by the provisions of the Kerala Education Act, 1958. It was held by the Apex Court in paragraph Nos. 15, 18 and 28 as follows: 15. "The right guaranteed under Art.30(1) is a right that is absolute and any law or executive direction which infringes the substance of that right is void to the extent of infringement. But the absolute character of the right will not preclude making of regulations in the true interests of efficiency or instruction, discipline, health, sanitation, morality, public order and the like, as such regulations are not restrictions on the substance of the right guaranteed by the Constitution." It was further held that: 18. "Selection and appointment of Headmaster in a school (or Principal of a college) are of prime importance in administration of that educational institution. The Headmaster is W.P.(C) No.17021 of 2022 10 the key post in the running of the school. He is the hub on which all the spokes of the school are set around whom they rotate to generate result. A school is personified through its Headmaster and he is the focal point on which outsiders look at the school. A bad Headmaster can spoil the entire institution, an efficient and honest Headmaster can improve it by leaps and bounds. The functional efficacy of a school very much depends upon the efficiency and dedication of its Headmaster. This pristine precept remains unchanged despite many changes taking place in the structural patterns of education over the years." It was further held that: 28. "The management's right to choose a qualified person as the Headmaster of the School is well insulated by the protective cover of Art.30(1) of the Constitution and it cannot be chiselled out through any legislative act or executive rule except for fixing up the qualifications and conditions of service for the post. Any such statutory or executive fiat would be violative of the fundamental right enshrined in the aforesaid Article and would hence be void. The management of a minority school is free to find out a qualified person either from the staff of the same school or from outside to fill up the vacancy. If management of the school is not given very wide freedom to choose the personnel for holding such a key post, subject of course to the restrictions regarding qualifications to be prescribed by the State, the right to administer the school would get much diminished. Hence it is for the management of the minority educational institution to choose the modality for selecting the qualified persons for appointment." W.P.(C) No.17021 of 2022 11 13. The Apex Court has held that the right of the management to choose a qualified person as Headmaster of the school is well insulated by the protective cover of Article 30(1) of the Constitution, and the same cannot be chiseled out through any legislative act or executive rule. 14. The next question is whether the petitioner is required to obtain a declaration from an authority that the school is an educational institution established by a linguistic minority. The Konkani language is one of the languages included in the Eighth Schedule of the Constitution, and the people speaking the Konkani language are very few in the State of Kerala. This fact is not disputed. The Hon’ble Supreme Court in **DAV College v. State of Punjab** [(1971) 2 SCC 261], has held that in order to claim the benefit of Article 30(1), the community must show that it is a religious or linguistic minority and the educational institution was established by the said institution. In **Azeez Basha S. v. Union of India** [AIR 1968 SC 662], the Apex Court held that the protection under Article 30(1) will follow as soon as it is shown that the institution was established by a minority community. In **Bal Patil v. Union of India** [2005 (6) SCC 690], the Apex Court held at paragraph 25 as under: W.P.(C) No.17021 of 2022 12 "25. It is with the above aim in view that the framers of the Constitution engrafted group of Art.25 to 30 in the Constitution of India. The minorities initially recognised were based on religion and on a national level e.g. Muslims, Christians, Anglo - Indians and ++-*/Parsis. Muslims constituted the largest religious minority because the Mughal period of rule in India was the longest followed by the British Rule during which many Indians had adopted Muslim and Christian religions." 15. When the school has been established and managed by a linguistic minority community, it cannot be disputed that the institution would come within the ambit of a minority institution. In **P.A. Inamdar and Ors. v. State of Maharashtra and Ors.** [(2005) 6 SCC 537], relying on **T.M.A. Pai** (supra), both religious and linguistic minorities are to be determined, taking the State as the unit. There is no case for the respondents that the people speaking Konkani language in the State are not a minority. 16. Now, the question is whether, on promulgation of the National Commission for Minority Educational Institutions Act, 2004 (‘2004 Act’ for the sake of brevity), the petitioner is required to obtain a certification from the competent authority for obtaining the status. In **Manager Corporate Educational Agency v. James Mathew and** W.P.(C) No.17021 of 2022 13 **Ors.** [(2017) 15 SCC 595], the Apex Court had held that the certificate of declaration of minority status is only a declaration of existing status. A Division Bench of this Court in **St. Paul’s** (supra) has held that there is no mandate that all the minority institutions who are running institutions have to approach the competent authority for declaration of status. When a declaration is granted in terms of Section 11(f), it will relate back to the date of establishment of the institution. 17. The next question is whether the status of the petitioner as a linguistic minority institution has been accepted by the Government, and if that be the case, the petitioners are entitled to the benefits of the declaration of the law made by this Court in **St. Paul’s** (supra). I find that the RDD has informed the petitioners that Ext.P7 and P8 orders issued by the Government are not sufficient to grant them minority status. In the said circumstances, they approached the office of the Commissioner for Linguistic Minorities, Government of India, for grant of Minority status. The Deputy Commissioner directed the petitioner to approach the competent authority under the Kerala Education Rules for recognition of schools in Kerala. The petitioner, in the said circumstances, approached the authorities in Kerala and submitted a request under the W.P.(C) No.17021 of 2022 14 ## Right to Information Act 2005 seeking to divulge the following ## information. 1. Information as to whether or not there is a Commission for Linguistic Minorities in Kerala. If there is such a Commission, the address of the said Commission. 2. The designation and address of the authority competent to issue Linguistic Minority Certificates to Educational Institutions belonging to Linguistic Minorities. 3. Form of the application to be submitted for Linguistic Minority Certificate to Educational Institutions belonging to Linguistic Minorities. ## 18. In response, Ext.P12 has been issued by the Information Officer wherein the following information is furnished. 1. There is no Commission for Linguistic Minorities in Kerala. 2. Information is not available. 3. Information is not available, 19. In other words, the concerned officer has responded that there is no Commission for linguistic minorities in Kerala. 20. I find that on an earlier occasion, the management of the school had appointed Smt. M. Vilasini Bai as Headmistress at the T.D.High School, Thuravoor, by exercising the privilege enjoyed by the W.P.(C) No.17021 of 2022 15 educational institution as one managed by a linguistic majority. The management contended that they had the absolute right to administer the educational institutions guaranteed under Article 30(1). Challenging the appointment, a certain Smt. Saradhamma preferred an appeal before the Government, contending that she was qualified and, being the senior, she was entitled to an appointment. She also asserted that the management was not a minority institution and was not entitled to any privilege under Article 30(1). The appeal was considered by the Government, and by Ext.P7 order, the appeal was rejected. While rejecting the appeal, it was noted as follows in paragraph Nos .11 and 12. 11. As regards the question of minority right of the institution it is seen that the school was established by an individual and later transferred to the Gowda Saraswatha community. The Honourable High Court in A.M.Patroni v. E.C. Kesavan [1964 KLT 791] in which it was held that if the school constructed by some other community is taken over or transferred to a and manage in confirmity with the ideals of Roman Catholic, it can be safely concluded that the school has been established by the Roman Catholics. Based on the above decision the schools cannot be denied protection no minority school solely on the ground that the school is established by an individual and let transferred to the Community. In a latest W.P.(C) No.17021 of 2022 16 decision of the a Supreme Court in 1995 (arising out of SLP (P) 12721 - 12722 of 1980) it was held that the declaration of minority status by Government is not necessary. If Government declared school as minority school it has recognised a factual position that the school was established and is being administered by minority community. A declaration is only an open acceptance of a legal character which should necessarily have existed antecedents to such declaration. The Honorable Supreme Court also have concluded that the management has the right and freedom to appoint a teacher as Headmaster of the school whether it is by bringing him down from another school or even from outside the State. 12. Considering the above aspects, Government accept that the Higher Secondary School, Thuravoor is one institution having minority rights contemplated under Article 30(1) of the Constitution of India. 21. Even prior to that, I find that the Konkani Bhasha Prachar Sabha had approached the Government and had represented that the Konkani Linguistic Minority should get the right for the selection of all candidates in the training schools run by them, as they form a linguistic minority. The Commissioner for Linguistic Minorities had recommended considering the request of the Sabha in the light of the fundamental rights guaranteed under the Constitution and also the decisions rendered W.P.(C) No.17021 of 2022 17 by various courts. The Government considered the representation and, by Ext.P8 order dated 04.07.1974, had ordered that the linguistic minority will have the right to select all the candidates for training in the Training Schools run by them as they are entitled to the protection guaranteed under Article 30 of the Constitution of India. 22. The above being the position, the Government has already found that the educational institution is established and run by a linguistic minority and entitled to protection under Article 30(1), it cannot take a different stand after coming into force of the 2004 Act. It would be yet another matter if the Government sets up an authority to confer linguistic minority status and the said authority, after having considered the matter, takes a different stand. On the other hand, if the said authority declares the status, necessarily, it would relate back to the date of establishment of the institution. In the case of the petitioners, they have moved to heaven and earth for the declaration of their status. This Court, on repeated occasions, permitted the petitioners to secure the benefits to which they are entitled as a minority educational institution. In the facts and circumstances, I am of the view that as the Government has already given the benefit of Article 30(1) to the W.P.(C) No.17021 of 2022 18 institutions run by the 1st petitioner, it would not be proper to alter the said status unless declared otherwise in appropriate proceedings. In view of the discussion above, this writ petition is ordered by issuing the following directions. a) Ext.P9 will stand quashed. b) There will be a direction to respondents 1 to 4 to approve the appointment of the 2nd petitioner by promotion as principal of T.D. Higher Secondary School, Thuravoor, with effect from 01.04.2020 on a regular basis by treating the T.D. Higher Secondary School, Thuravoor, as an institution having minority status as contemplated under Article 30(1) of the Constitution of India. c) The 2nd petitioner shall be entitled to all consequential benefits, which shall be disbursed by the concerned respondents within three months from the date of receipt of a copy of this judgment. Sd/- NS **RAJA VIJAYARAGHAVAN V, JUDGE** W.P.(C) No.17021 of 2022 19 ## **`APPENDIX OF WP(C) 17021/2022`** ``` PETITIONERS’ EXHIBITS: ``` ``` Exhibit P1 TRUE COPY OF THE APPOINTMENT ORDER NO.TDM/HSE-1/2020 DATED 31.03.2020 OF THE 1ST PETITIONER. Exhibit P2 TRUE COPY OF THE ORDER NO.1423/C1/2020/RDD/CNGR_DATED 04.05.2020 OF THE 4TH RESPONDENT. Exhibit P3 TRUE COPY OF THE LETTER NO.TD-01/2021/APPT(HSST-1) DATED 01.04.2020. Exhibit P4 TRUE COPY OF THE LETTER NO.2751/C7/2020/RDD/CNGR DATED 28.07.2020. Exhibit P5 TRUE COPY OF THE LETTER DATED 23.09.2020 SENT BY THE 1ST PETITIONER WITHOUT ITS ENCLOSURES. Exhibit P6 TRUE COPY OF THE LETTER NO.TDM-01/2020/APPT(HSST-1) DATED 16.10.2020. Exhibit P7 TRUE COPY OF THE G.O.(RT)NO.1387/99/G.EDN DATED 20.03.1999. Exhibit P8 TRUE COPY OF THE G.O. (MS)NO.130/74/ GL.EDN DATED 4.7.1974. Exhibit P9 TRUE COPY OF THE LETTER NO.2615/C7/2020/RDD/CNGR DATED 05.11.2020. Exhibit P10 TRUE COPY OF THE LETTER NO.INVESTIGATION/KERALA/2020-189 DATED 13.08.2020 OF THE DEPUTY COMMISSIONER, HEADQUARTERS, OFFICE OF THE COMMISSIONER FOR ``` W.P.(C) No.17021 of 2022 20 ``` LINGUISTIC MINORITIES, MINISTRY OF MINORITY AFFAIRS, GOVERNMENT OF INDIA. ``` ``` Exhibit P11 TRUE COPY OF THE GOVERNMENT LETTER NO.M2/107/2021/GEDN DATED 17.03.2021. ``` - `Exhibit P12 TRUE COPY OF THE GOVERNMENT LETTER NO.SD2/38/2021-GAD DATED 03.04.2021.` - `Exhibit P13 TRUE COPY OF LETTER NO.N(2)/9632/2020/DGE DATED 03.04.2021 OF THE 2ND RESPONDENT.` - `Exhibit P14 TRUE COPY OF THE RTI APPLICATION SUBMITTED BY THE 1ST PETITIONER BEFORE THE STATE PUBLIC INFORMATION OFFICER IN THE OFFICE OF THE 1ST RESPONDENT.` - `Exhibit P15 TRUE COPY OF JUDGMENT DATED 10.06.2019 IN W.P.(C)NO.15258 OF 2019 OF THIS HON'BLE COURT.` - `Exhibit P16 TRUE COPY OF JUDGMENT DATED 26.08.2020 IN W.P. (C)NO. 17958/2020 OF THIS HON'BLE COURT.` ``` Exhibit P17 TRUE COPY OF JUDGMENT DATED 15.09.2021 IN W.P. (C)NO.17882 OF 2021 OF THIS HON'BLE COURT. ``` ``` RESPONDENTS’ EXHIBITS: ``` ``` EXHIBIT R1(a) True Copy of G.O (MS) No.758/Edn dated 26/12/1961 ``` ``` EXHIBIT R1(b) True Copy of G.O (MS) No.701. dated 22/12/1962 ``` ``` EXHIBIT R1(c) True Copy of G.O (MS) No.110. dated 21/03/1966 ``` ``` EXHIBIT R1(d) True Copy of relevant pages of safeguards for Linguistic Minorities in Kerala 2002 published by Government. ```