The Manager, St. Paul’s Higher Secondary School, Kozhinjampara v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941** ## **WA.No.2533 OF 2019** **AGAINST THE JUDGMENT IN WP(C) 39809/2018(A) OF HIGH COURT OF KERALA DT 27/11/2019** ## **APPELLANT/PETITIONER IN THE WRIT PETITION:** **THE MANAGER, ST.PAUL'S HIGHER SECONDARY SCHOOL, KOZHINJAMPARA -678555, PALAKKAD DISTRICT.** **BY ADVS. SRI.ELVIN PETER P.J. SRI.K.R.GANESH SMT.N.R.REESHA SMT.T.S.LIKHITHA** ## **RESPONDENTS/RESPONDENTS IN THE WRIT PETITION:** - **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 THE DIRECTOR OF GENERAL EDUCATION, JAGATHY, THIRUVANANTHAPURAM-695014.** - **3 THE REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION,CIVIL STATION, B-2 BLOCK, MALAPPURAM-676505.** WA No.2533/19 -:2:- - **4 JESUDAS BESKY, PRINCIPAL-IN-CHARGE, ST.PAUL'S HIGHER SECONDARY SCHOOL, KOZHINJAMPARA -678555, PALAKKAD DISTRICT.** - **5 SMT.P.K.GRACY, H.S.S.T. (MATHS), ST.PAUL'S HIGHER SECONDARY SCHOOL, KOZHINJAMPARA -678555, PALAKKAD DISTRICT. R4 BY ADV. SRI.R.HARIKRISHNAN R5 BY ADV. SMT.A.SINDHULAKSHMY R1-R3 SRI. VINOD.B.SR.G.P.** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 16-012020, THE COURT ON 19-02-2020 DELIVERED THE FOLLOWING:** WA No.2533/19 -:3:- **“C.R.”** ## **J U D G M E N T** Dated this the 19[th ] day of February, 2020 ## _**Shaffique, J.**_ The petitioner in WP(C) No. 39809/2018 has preferred this appeal challenging judgment dated 27/11/2019 of the learned Single Judge. Petitioner is the Manager of St.Paul's Higher Secondary School, Kozhinjampara which is an Aided School and it claims to be a minority institution. Coimbatore Diocese Society had established several Aided Schools and it was being managed by two Managers. For administrative convenience, another Diocese was established under the name Sultanpet Diocese, Palakkad on 28/12/2013. Seven of the aforesaid institutions came under the said Diocese which was approved by the Deputy Director of Education as per his order dated 15/2/2016. The byelaws of the Corporate Management was approved. It was stated that the St.Paul's Higher Secondary School, Kozhinjampara shall be treated as a separate unit under the Manager appointed by WA No.2533/19 -:4:- Bishop of Diocese of Sultanpet and the other 6 schools constitute another separate unit. All the 7 Aided Schools were brought under the administrative control of Bishop of Sultanpet Diocese. Vacancy of a Headmaster had arisen in the school on 4/5/1981. The Manager appointed one Sri.A.N.Thankappan as Headmaster. Though the District Educational Officer, Palakkad refused to approve his appointment on the ground that the school is not a minority institution, in a revision filed by the Manager, Government approved his appointment as Headmaster on the ground that the school is a minority educational institution entitled for protection under Article 30 of the Constitution of India, as per order dated 22/2/1983 (Ext.P6). Still further, a Principal was appointed in the Higher Secondary School w.e.f. 1/5/2001. Again, the same came to be rejected by the District Educational Officer, Palakkad and in an appeal filed by the Manager, the Deputy Director directed approval of appointment of Smt.Hilda Mary. Though a revision was filed by the contesting High School Assistant, the same came to be rejected as per Government Order dated 14/2/2003 (Ext.P7). In respect of the Aided Schools established by Coimbatore Diocese's Society, they WA No.2533/19 -:5:- approached the Government for declaring that the other Aided Schools are also minority institutions, which was also allowed by the Government as per its order dated 8/12/2004 (Ext.P8). Another vacancy of Headmaster had arisen in the High School Section on 1/04/2013 and the Manager appointed Smt.Maria John Bosco in the said vacancy. The District Educational officer did not approve the appointment on the ground that seniority was overlooked, which order came to be affirmed by the Deputy Director of Education and the DPI. Revision was filed by the Manager before the Government. But the Government allowed the revision petition on a finding that the school is a minority educational institution and the appointment of the Headmaster was approved. 2. The issue in the present case had arisen when vacancy of a Principal arose in the St.Paul's Higher Secondary School, Kozhinjampara on 2/5/2018. Petitioner/appellant appointed Sri.Jesudas Besky as the Principal. The Regional Deputy Director approved the appointment of the 4[th] respondent only as Principalin-Charge as per his order dated 25/5/2018 (Ext.P10). Another teacher Smt.P.K.Gracy (5[th] respondent), challenged the WA No.2533/19 -:6:- appointment of the 4[th] respondent as Principal and she approached this Court by filing WP(C) No.23573/2018 which came to be disposed of directing the Director of Higher Secondary Education to consider the said representation. Pursuant to the said direction, the 2[nd] respondent called upon the petitioner to produce the order declaring the school as a minority institution. According to the petitioner, though the petitioner is entitled for making appointments as a minority institution, at all times, objections are being raised by the Educational Authorities to submit an application before the Government for a general order to declare its minority status. The Government had refused to issue such an order as per Ext.P12 letter dated 20/7/2018. According to the petitioner, it is a minority institution entitled to protection under Article 30(1) of the Constitution of India. After several orders, the petitioner had been given the said status by the Government, itself. However, by Ext.P13 order dated 3/11/2013, the revision filed by the 5[th] respondent was allowed and direction was issued to appoint the senior most teacher who is the eligible person for appointment to the post of Principal. In Ext.P13 order, it was _inter alia_ stated by the Government that the WA No.2533/19 ## -:7:- Manager was not in a position to produce the certificate regarding its minority status and reference is also made to Government letter dated 20/7/2018 (Ext.P12) wherein the Government had informed the Manager that the minority status cannot be considered since the Government had not taken a final decision regarding the consideration and decision on the application for grant of minority status to Self Financing/Aided School in the State. 3. There is no dispute about the fact that 5[th] respondent Smt.P.K.Gracy was senior to the 4[th] respondent Sri.Jesudas Besky. But, it is settled law that if the institution is a minority institution, the Management is entitled to appoint a qualified teacher from among the minority group depending upon their choice. The position of law has been reiterated by the Apex Court in _**Manager, Corporate Educational Agency. v. James Mathew and Others**_ [(2017) 15 SCC 595]. Paragraphs 5 and 6 are relevant, which read as under:- _**“5.** As far as the selection and appointment of the Headmaster or the Principal, as the case may be, is concerned, this Court in Malankara Syrian Catholic College v. T. Jose [Malankara Syrian Catholic College v. T. Jose, (2007) 1_ WA No.2533/19 -:8:- _SCC 386 : 5 SCEC 728] after referring to all the celebrated cases on minority rights, viz. T.M.A. Pai Foundation v. State of Karnataka [T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481 : 2 SCEC 1] , P.A. Inamdar v. State of Maharashtra [P.A. Inamdar v. State of Maharashtra, (2005) 6 SCC 537 : 2 SCEC 745] , State of Kerala v. Very Rev. Mother Provincial [State of Kerala v. Very Rev. Mother Provincial, (1970) 2 SCC 417] , Ahmedabad St. Xavier's College Society v. State of Gujarat [Ahmedabad St. Xavier's College Society v. State of Gujarat, (1974) 1 SCC 717 : 1 SCEC 125] , Frank Anthony Public School Employees' Assn. v. Union of India [Frank Anthony Public School Employees' Assn. v. Union of India, (1986) 4 SCC 707] , Sidhrajbhai Sabhai v. State of Gujarat [Sidhrajbhai Sabhai v. State of Gujarat, (1963) 3 SCR 837 : AIR 1963 SC 540] , D.A.V. College v. State of Punjab [D.A.V. College v. State of Punjab, (1971) 2 SCC 269] , All Saints High School v. State of A.P. [All Saints High School v. State of A.P., (1980) 2 SCC 478] , St. Stephen's College v. University of Delhi [St. Stephen's College v. University of Delhi, (1992) 1 SCC 558 : 1 SCEC 404] , N. Ammad v. Emjay High School [N. Ammad v. Emjay High School, (1998) 6 SCC 674 : 1 SCEC 732] , Board of Secondary Education & Teachers Training v. Director of Public Instructions [Board of Secondary Education & Teachers Training v. Director of Public Instructions, (1998) 8 SCC 555] has held in Paras 27 to 29 that the management of a minority aided educational institution is free to appoint the Headmaster or the Principal, as the case may be, of its own choice and has no obligation to appoint the available senior qualified member from the same community. Paras 27, 28 and 29 are quoted hereunder: (Malankara Syrian case [Malankara Syrian Catholic_ WA No.2533/19 -:9:- _College v. T. Jose, (2007) 1 SCC 386 : 5 SCEC 728] , SCC p. 404)_ _“27. It is thus clear that the freedom to choose the person to be appointed as Principal has always been recognised 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. Pai [T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481 : 2 SCEC 1] . 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._ _28. The appellant contends that the protection extended by Article 30(1) cannot be used against a member of the teaching staff who belongs to the same minority community. It is contended that a minority institution cannot ignore the rights of eligible lecturers belonging to the same community, senior to the person proposed to be selected, merely because the institution has the right to select a Principal of its choice. But this contention ignores the position that the right of the minority to select a Principal of its choice is with reference to the assessment of the person's outlook and philosophy and ability to implement its objects. The management is entitled to appoint the person, who according to them is most suited to head the institution, provided he possesses the qualifications prescribed for_ WA No.2533/19 ## -:10:- _the posts. The career advancement prospects of the teaching staff, even those belonging to the same community, should have to yield to the right of the management under Article 30(1) to establish and administer educational institutions._ _29. Section 57(3) of the Act provides that the post of Principal when filled by promotion is to be made on the basis of seniority-cum-fitness. Section 57(3) trammels the right of the management to take note of merit of the candidate or the outlook and philosophy of the candidate which will determine whether he is supportive of the objects of the institution. Such a provision clearly interferes with the right of the minority management to have a person of their choice as head of the institution and thus violates Article 30(1). Section 57(3) of the Act cannot therefore apply to minority-run educational institutions even if they are aided.”_ _(emphasis supplied)_ _**6.** The emerging position is that, once the management of a minority educational institution makes a conscious choice of a qualified person from the minority community to lead the institution, either as the Headmaster or Principal, the court cannot go into the merits of the choice or the rationality or propriety of the process of choice. In that regard, the right under Article 30(1) is absolute.”_ 4. The learned Single Judge while evaluating the respective contentions of the parties held that after the promulgation of the National Commission for Minority Educational Institutions Act, 2004 (hereinafter referred to as the '2004 Act') WA No.2533/19 ## -:11:- and the subsequent amendments, the word 'educational institutions' takes in schools as well, and in the absence of a certificate being issued by the competent authority under the provisions of the 2004 Act, it cannot claim minority status entitled for protection under Article 30 of the Constitution of India. It is further held hat Exts.P6 to P8 orders issued by the Government is not a mandate declaring the institution as a minority institution, it being revisional orders passed inter parties, the contesting respondent cannot be bound by such a decision of the Government. 5. While impugning the aforesaid judgment, learned counsel for the appellant argued that there cannot be any dispute on the fact that the institution is a minority institution and that the institution is established and managed by a minority community. Section 10 of the 2004 Act can have application only when a minority community intends to establish an educational institution, in which event, a 'No Objection Certificate' is required. There is no mandate under the 2004 Act calling upon a minority community to seek a declaration that the institution managed by it is a minority educational institution. Further, it is contended WA No.2533/19 -:12:- that the whole purpose of the 2004 Act is not to give minority status to Aided Schools. It only applies to Higher Education as the entire scheme of the Act is intended for the said purpose alone. 6. The word “minority” is defined under Sec.2(f) of the 2004 Act as under:- _“2(f) “minority”, for the purpose of this Act, means a community notified as such by the Central Government;”_ 7. Article 30(1) of the Constitution of India reads as under:- _“Art.30.(1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.”_ 8. As held by the Apex Court in _**D.A.V. College v. State of Punjab**_ (AIR 1971 SC 1731), in order to claim the benefit of Art.30(1), the community must show that it is a religious or linguistic minority and that the institution was established by it. In _**Azeez Basha S. v. Union of India**_ (AIR 1968 SC 662), Apex Court held that the protection under Art.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:- WA No.2533/19 ## -:13:- _**“25.** It is with the above aim in view that the framers of the Constitution engrafted group of Articles 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”._ 9. Therefore, it cannot be doubted that when a school has been established and managed by a Christian community, it definitely comes within the ambit of a minority institution. The question would be, whether on promulgation of the 2004 Act and the amendments made therein, whether a minority institution require a certification from the competent authority for continuing an institution, which had already been established by a minority. Though a Division Bench of this Court in _**Manager, M.M.L.P. School and another v. Sajitha V.B. & Others**_ {ILR 2014 (2) Ker.822}, had while evaluating the scope of S.11(f) of the 2004 Act held that a declaration granted by the competent authority under the 2004 Act, will operate only from the date of the grant or the date of presumptive grant of certificate in terms of sub-section (3) or sub-section (4) of S.10 of the Act, the WA No.2533/19 -:14:- judgment had been overruled by the Apex Court in _**James Mathew's case**_ (supra). The Apex Court held that the certificate of declaration of minority status is only a declaration of an existing status. Therefore, there is no question of availability of the status only from the date of declaration. What is declared is a status, which was already in existence. Paragraph 11 is relevant, which reads as under:- _“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”._ 10. Another Division Bench of this Court in _**Corporate**_ _**Manager, St.Roch's HS/TTI/LPS and another v. State of Kerala and Others**_ {ILR 2019 (2) Ker.333} had also placed reliance on the judgment in _**Manager, M.M.L.P School's case**_ (supra) and had observed that until the school is declared as a minority institution by the National Commission for Minority Educational Institutions, the school cannot get the benefit of Art.30(1) of the Constitution. As already stated, the basis of the WA No.2533/19 -:15:- judgment in _**Corporate Manager, St. Roch's case**_ (supra) had already been set aside by the Apex Court in _**James Mathew's case**_ (supra) and therefore the said judgment cannot be relied for any proposition. 11. According to us, the only question to be considered is whether the school had been established by a minority community or not. According to the petitioners, the school was initially established by Coimbatore Diocese headed by the Bishop of Diocese who was the religious head of Tamil Catholic Christians in Kerala. They established 7 Aided Schools to cater to the educational needs of Tamil Christians residing at Palakkad District and St.Paul's Higher Secondary school is one among them. These 7 schools were later brought under the administrative control of Bishop of Sultanpet Diocese and the Congregation of Franciscan sister of Mary continued to be the Corporate Manager of the 6 schools and Vicar of St. Sebastian's Cathedral Church Sultanpet was appointed as Manager of St.Paul's Higher Secondary School. 12. The first question to be answered is whether without a certification from the National Commission for Minority Educational Institutions (NCMEI), the institution can claim WA No.2533/19 -:16:- minority status. As already stated, 'minority' means a minority group in the country and Christians are also considered to be a minority group. When members of Christian community establish an educational institution, it becomes a minority educational institution. S.10 of the 2004 Act apparently insists for grant of 'no-objection certificate' to enable any person who desires to establish a minority educational institution, in which event the competent authority shall consider the same and pass appropriate orders. If the competent authority does not grant such a certificate within ninety days from the receipt of the application, it shall be deemed that the competent authority has granted a no objection certificate to the applicant. Sub section (4) of S.10 states that if the no objection certificate is granted or it is deemed to have been granted, the person shall be entitled to commence and proceed with the establishment of a Minority Educational Institution in accordance with the rules and regulations. 13. Functions of the Commission is specified u/s 11. S.11(f) of 2004 Act reads as under:- WA No.2533/19 ## -:17:- _“11. xxxx_ _(f) decide all questions relating to the status of any institution as a Minority Educational Institution and declare its status as such.”_ 14. When the statute enables the competent authority to decide on all questions relating to the status of any institution as a minority institution and to declare its status, the Apex Court has held that the declaration of status emanates from the date when it was established. There is no mandate that all the minority institutions should approach the competent authority and should get its status declared. Only when a question arises as to whether the institution is a minority institution or not, the Management is required to approach the competent authority for a declaration of status. It is stated that the appellant has filed an application before NCMEI and it is pending consideration. When a declaration is granted in terms of S.11(f), it will relate back to the date of establishment of the institution. 15. Such being the position, when the Government by Exts.P6, P7 and P8 orders had already found in the said proceedings that the educational institution is a minority institution entitled for protection of Art.30(1), it cannot take a different stand after the coming into force of the Act. Section 10 WA No.2533/19 -:18:- apparently is with reference to grant of no objection certificate for establishing a minority educational institution and Section 11(f) is to declare the status in the event of any dispute. ## 16. In the present case, in Ext.P8 order dated 8/12/2004, it ## is observed as under:- _“On verifying the documents viz. Memorandum of Association and Rules and Regulations of the Coimbatore Diocese Society and the Byelaws of the management of schools under the Coimbatore Diocese Society, it has been found that the above institutions are established and managed by the Roman Catholic Tamil Christians minority community to fulfill the educational needs of and for the uplift of that community. It is also seen that Government had accepted minority status in respect of St.Paul's High School, Kozhijampara under the same corporate management as early in 1983 as per G.O.(Rt) No.539/83/Gl.Edn dated 22.02.1983.”_ ## 17. In Ext.P9 it is held as under:- _”6. Government have examined the case in detail. It is evident from the bye-laws of the Corporate management that St.Paul's HS Kozhinjampara is one of seven schools under the management of the Diocese Society of Coimbatore administered by the Coimbatore Diocese Society. The Bishop of Coimbatore is the President of the society. The Bye-laws are seen approved by the DEO, Palakkad on 14.8.2012. The minority status of St.Paul's H.S. Kozhinjampara has been recognized by Government as per G.O.(Rt) No.593/83/G.Edn dated 22.2.83, G.O(Rt) No.623/2003/GEdn dated 12.2.2003_ WA No.2533/19 ## -:19:- _and G.O.(Rt) No.5244/04/GEdn dated 8.12.2004 and the appointments made claiming the privilege for minorities under Article 30(1) of the Constitution was approved by Government.”_ 18. When the Government had already considered and approved that the petitioner is a minority educational institution, even after the promulgation of 2004 Act, it is not open for the Government to take a different stand. Of course, as far as private parties are concerned, they could as well contend that it is not a minority institution. But the finding of the Government that in the absence of a certification from the NCMEI, the institution cannot be recognized as a minority institution is devoid of any merit. It is also brought to our notice that the institution had already submitted an application to the NCMEI for declaring its status. Once the status is declared, necessarily it relates back to the date of establishment of the institution. In the said circumstances, when the Government had already given the benefit of Art.30(1) to the aforesaid institution on earlier occasions, it is not proper to deny the said status until a different situation arises in the matter. In the said circumstances, we are of the view that the judgment of the learned Single Judge requires WA No.2533/19 ## -:20:- to be set aside. Writ appeal is allowed setting aside the judgment of the learned Single Judge. Consequently, writ petition stands allowed and Ext.P13 is set aside. **Sd/-** **A.M.SHAFFIQUE JUDGE Sd/MARY JOSEPH** Rp True Copy **JUDGE** PS to Judge