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 SHAJI P.CHALY** **WEDNESDAY, THE 27TH DAY OF NOVEMBER 2019 / 6TH AGRAHAYANA, 1941** # **WP(C).No.39809 OF 2018(A)** ## **PETITIONER/S:** **THE MANAGER, ST. PAUL'S HIGHER SECONDARY SCHOOL, KOZHINJAMPARA-678 555, PALAKKAD DISTRICT.** **BY ADVS. SRI.ELVIN PETER P.J. SRI.K.R. GANESH** ## **RESPONDENT/S:** - **1 STATE OF KERALA - REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 THE DIRECTOR OF HIGHER SECONDARY EDUCATION, DIRECTORATE OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDINGS, SHANTHI NAGAR, THIRUVANANTHAPURAM-695 001.** - **3 THE REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION, CIVIL STATION, B-2 BLOCK, MALAPPURAM-676 505.** - **4 JESUDAS BESKY, PRINCIPAL-IN CHARGE, ST. PAUL'S HIGHER SECONDARY SCHOOL, KOZHINJAMPARA-678 555, PALAKKAD DISTRICT.** - **5 SMT. P.K. GRACY H.S.S.T (MATHS), ST. PAUL'S HIGHER SECONDARY SCHOOL, KOZHINJAMPARA-678 555, PALAKKAD DISTRICT.** - **R1-3 BY SMT. MARY BEENA JOSEPH, SENIOR GOVERNMENT PLEADER R5 - SMT.JESSY S.SALIM SMT. SINDHU SANTHALINGAM** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18-11-2019, THE COURT ON 27-11-2019 DELIVERED THE FOLLOWING:** **W.P.(C)No.39809 of 2018** **2** ## **C.R.** ## **JUDGMENT** This writ petition is filed by the Manager of a school seeking to quash Ext.P13 order passed by the Director of Higher Secondary Education, Thiruvananthapuram dated 03.11.2018, whereby the claim raised by the petitioner that St. Paul's Higher Secondary School has minority status, was declined, and the appointment of the 4[th] respondent as Principal, made by the Manager, overlooking the seniority of the 5[th] respondent was refused to be approved. Basic material facts required for the disposal of the writ petition are as follows: 2. Petitioner is the Manager of St. Paul's Higher Secondary School, Kozhinjampara, Palakkad District, which, according to the petitioner, is a minority educational institution, evident from Exts.P6 to P8 orders. It was according to the minority status, the Manager appointed the 4[th] respondent as the Principal of the school. However, the Regional Deputy Director of Higher Secondary Education, i.e., the 3[rd] respondent, approved the appointment of the 4[th] respondent only as Principal in charge, as per Ext.P10 order dated 25.05.2018. Anyhow, the appointment of the 4[th] ## **W.P.(C)No.39809 of 2018** **3** respondent as Principal of the school was challenged by the 5[th] respondent, viz., Smt. P.K. Gracy, HSST (Maths), on the ground that she was senior to the 4[th] respondent, and thereafter filed W.P.(C) No.23573 of 2018 before this Court, which was disposed of, directing the Director of Higher Secondary Education to consider and pass orders on the representation filed by the 5[th] respondent, after hearing all affected parties. On the basis of the same, hearing notice was provided to all concerned by the 2[nd] respondent on 25.09.2016 proposing to conduct a hearing on 05.10.2018, and in the meantime, the Director has issued Ext.P11 communication dated 01.10.2018, directing the petitioner to produce the order declaring the school as a minority institution. 3. Anyhow, the 2[nd] respondent, after hearing, issued an order dated 03.11.2018, placing reliance on Ext.P12 letter dated 20.07.2018, stating that the school is not a minority educational institution and the petitioner has to submit an application before the authority empowered by the Government for declaring the minority status, and in case of delay caused by such authority, petitioner will have to approach the Minority Commission and unless the petitioner produces ## **W.P.(C)No.39809 of 2018** ## **4** an order issued by an authority empowered by the Government declaring the minority status or from the National Commission, petitioner's school cannot be treated as a minority school. It was after holding so, the approval of appointment of the 4[th] respondent, i.e., Sri. Jesudas Besky was declined. 4. A detailed counter affidavit is filed by the 5[th] respondent, i.e., Smt. P.K.Gracy, justifying the stand adopted by the Government and also contending that the school has not secured the minority status from the appropriate statutory authority and, therefore, the school is not entitled to get the benefit, which dissuades the Manager from making any appointment at the choice of the Manager, overlooking the seniority of the 5[th] respondent. 5. The 2[nd] respondent, i.e., the Director of Higher Secondary Education has also filed a detailed counter affidavit, justifying the stand adopted and also contending that since there is no minority status, the school Management shall follow the prevailing seniority list while making an appointment to the post of Principal and the seniormost teacher is the legitimate claimant to that post. But the minority educational institutions having minority certificate **W.P.(C)No.39809 of 2018** **5** have the right to make such appointments overlooking the seniority list and St. Paul's Higher Secondary School do not possess minority status, and therefore, Ext.P13 order passed approving the appointment of the 5[th] respondent as Principal in charge is in order. 6. It is also pointed out that, petitioner has submitted an application to the State Government to get minority certificate, and while considering the application, Government as per letter dated 20.07.2018, informed that the Government has not taken a policy decision so far in considering the application for issuing minority status to educational institutions. Therefore, according to the 2[nd] respondent, it is clear that, petitioner's institution has not acquired the minority status and the application for the same is under consideration before the Government. It is further pointed out that, petitioner has failed to produce minority certificate from the National Minority Commission or the authority empowered by the State Government. Therefore, the institution managed by the petitioner cannot be considered as a minority institution and the appointment of the Principal, made by the petitioner, overlooking the seniority list is discriminatory and illegal. **W.P.(C)No.39809 of 2018** **6** 7. Reply affidavits are filed by the petitioner to the counter affidavits, reiterating the stand adopted in the writ petition. 8. I have heard Sri. Elvin Peter P.J., learned counsel for the petitioner, Smt. Mary Beena Joseph, learned Senior Government Pleader as well as the learned counsel appearing for the 5[th] respondent, Smt. Sindhu Santhalingam, and perused the pleadings and the documents on record. 9. Learned counsel for the petitioner, Sri. Elvin Peter P.J. has advanced two-fold arguments: (1) that the National Minority Commission or any authority, as pointed out by the State Government in its order are not having any power to issue any minority certificate to an aided school, as per the National Commission for Minority Educational Institutions Act, 2004 (for brevity, 'the Act, 2004'), since the provisions of the said Act take care only, the educational institutions under the control of various Universities; and secondly, Exts.P6 to P8 are orders passed by the State Government in respect of appointment of Headmaster/Principal of High School and Higher Secondary School respectively, and also declaring that **W.P.(C)No.39809 of 2018** **7** the petitioner's school is a minority educational institution, and thereupon, liberty is enjoyed by the Manager of the school to appoint a person of his choice as the Principal in charge of the school. 10. In order to understand the arguments advanced by learned counsel for the petitioner, it is better that the history of the formation of the Minority Commission and its powers in accordance with the provisions of Act, 2004 is tracked down. The Act, 2004 was introduced to constitute a National Commission for Minority Educational Institutions and to provide for matters connected therewith or incidental thereto. It was on the basis of long felt demand of the Minority Communities in a series of meetings held by the Minister of Human Resource Development with educationists, eminent citizens and community leaders associated with Minority education, led to the introduction of the Act. Among various issues raised by the representatives of the Minority communities, was the difficulty faced by them in establishing and running their own educational institutions, despite the Constitutional guarantees accorded to them in this regard. The major problem was the issue of securing affiliation to a University of their choice. The **W.P.(C)No.39809 of 2018** **8** territorial jurisdiction of the State Universities, and concentration of minority populations in some specific areas invariably meant that the institutions could not avail the opportunity of affiliation with the Universities of their choice. 11. After detailed deliberations, it was felt that these conditions affected the rights granted to them on account of their minority status, and the fact that there was no effective forum for appeal and quick redressal only aggravated the sense of deprivation of the minority communities. It was accordingly that the Act, 2004 came into force, after introducing an Ordinance, 2004, since the Parliament was not in session. The said Act has the following salient features: _“(i) it enables the creation of a National Commission for Minority Educational Institutions;_ _(ii) it creates the right of a minority educational institution to seek recognition as an affiliated college to a Scheduled University, notwithstanding anything contained in any other law for the time being in force;_ _(iii) it allows for a forum of dispute resolution in the form of a Statutory Commission, regarding matters of affiliation between a minority educational institution and a Scheduled University and its decision shall be final and binding on the parties;_ _(iv) the Commission shall have the powers of a Civil Court while trying a suit for the purpose_ **W.P.(C)No.39809 of 2018** **9** _of discharging its functions under it, which would provide the decisions of the Commission the legal sanction necessary for such purpose; and_ _(v) it empowers the Central Government to amend the Schedule to add in, or omit from, any University”._ 12. Thereafter, the Amendment Act 18 of 2006 was introduced based on the experience of the functioning of the Commission, and it was felt that, by limiting the scope of affiliation only to six Scheduled Universities, the applicability of the Act has been severely restricted. The Commission as well as the Government received several representations and suggestions for a more proactive role for the Commission in order to enable it to be an effective instrument in deciding on matters of deprivation or violation of the educational rights of the minorities guaranteed under Article 30 of the Constitution of India. The representation received by the Commission was pointing out the problems faced by the minority communities in obtaining no objection certificate for establishing an educational institution and, for such eligible institution from obtaining the status of being a minority institution. 13. Thereupon, it was decided to empower the Commission to make its functioning more effective and purposive in meeting the aspirations of minority **W.P.(C)No.39809 of 2018** **10** communities in regard to their educational rights under the Constitution, and it was accordingly that the Amendment Bill was introduced. The salient features of the Bill were as follows: _“(i) it provides for the right to establish a Minority Educational Institution and also provides that wherever no objection certificate for establishing a Minority Educational Institution is either not granted within a period of sixty days or where a decision in this regard is not communicated within such period, the Minority Educational Institution would proceed with the establishment of the institution as if the no objection certificate has been granted to it;_ _(ii) it provides for the right Minority Educational Institutions to seek affiliation to any University of their choice subject to the Acts, Statutes, Ordinances, Rules and Regulations of the concerned University;_ _(iii) it is also proposed to give appellate jurisdiction to the Commission in the matters of refusal to grant no objection certificate for establishing a Minority Educational Institution;_ _(iv) it enables the National Commission for Minority Educational Institutions to enquire into and investigate complaints regarding deprivation or violation of rights of minorities to establish and administer educational institutions of their choice and, also to decide on disputes relating affiliation of Minority Educational Institutions to a University;_ _(v) it also enables the Commission to decide on all questions relating to the status of any institution as a Minority Educational Institution;_ _(vi) it empowers the Commission to cancel recognition as a Minority Educational Institution, where it is found by the Commission that the purpose or character on which a Minority Educational Institution status was_ **W.P.(C)No.39809 of 2018** **11** _granted and also in admitting students belonging to the minority community as per rules and prescribed percentage, has failed;_ _(vii) it provides that every proceeding before the Commission shall be deemed to be a judicial proceeding and, the orders made by the Commission shall be executable by it as a decree of a Civil Court;_ _(viii) it empowers the Commission to utilize the services of any officer of the Central Government or any State Government, with the concurrence of such Government, for the purpose of conducting investigation pertaining to complaints received by the Commission; and_ _(ix) it bars the jurisdiction of Courts (except the Supreme Court and the High Courts) to entertain any suit, application or other proceedings in respect of orders made by the Commission”._ 14. Therefore, after the amendment brought into effect on and with effect from 23.01.2006, the word “Scheduled” was omitted. So also, as per the Amendment Act, 2010, Clause 2(b) was omitted, and prior to its omission, Clause (b) read as follows: “(b) “college” means a college or teaching institution (other than a University) established or maintained by a person or group of persons from amongst a minority community”. So also, as per the Amendment Act, 2006, Clause (ca) was introduced to Section 2, defining “Competent authority” to mean; the authority appointed by the appropriate Government to grant no objection certificate for the establishment of any educational **W.P.(C)No.39809 of 2018 12** institution of their choice by the minorities. “Appropriate Government” is defined under Sec.2(aa) to mean; “(i) in relation to an educational institution recognised for conducting its programmes of studies under any Act of Parliament, the Central Government; and (ii) in relation to any other educational institution recognised for conducting its programmes of studies under any State Act, a State Government in whose jurisdiction such institution is established”. 15. So also, clause (g) of Sec.2 substituted as per the Amendment Act, 2010 on and with effect from 01.09.2010. Prior to its amendment, it read thus: “Minority Educational Institution” means “a college or institution (other than a University) established or maintained by a person or group of persons from amongst the minorities”. After the amendment, the “Minority Educational Institution” “means a college or an educational institution established and administered by a minority or minorities”. Therefore, consequent to the amendments made as per the Amendment Acts, 2006 and 2010, significantly, drastic changes are made, incorporating not only “college” but “any educational institution”, which is clear from the discussions made above. **W.P.(C)No.39809 of 2018** **13** 16. So also, Sec.10 is substituted by Act 18 of 2006, which deals with “Right to establish a Minority Educational Institution”, and sub-section (1) thereto stipulates that, subject to the provisions contained in any other law for the time being in force, 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. However, Sec.10-A deals with right of a Minority Educational Institution to seek affiliation. Sub-section (1) stipulates that, a Minority Educational Institution may seek affiliation to any University of its choice subject to such affiliation being permissible within the Act under which the said University is established. Other procedural formalities are prescribed. 17. Therefore, on a comparison of Sec.10 and Sec.10-A, which are substituted as per the Amendment Act, 2006, it is evident that, clear distinction is drawn by and between the no objection certificate and an affiliation sought for by Minority Educational Institutions. So also, Sec.11(b) stipulates that the Minority Commission is vested with powers to enquire, **W.P.(C)No.39809 of 2018** **14** _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. Therefore, the said stipulation also makes it clear that educational institutions and affiliation to a University are dealt with separately. 18. So also, clause (f) of Sec.11 empowers the Minority Commission to decide all questions relating to the status of “any institution” as a Minority Educational Institution and declare its status as such. Section 22 of Act, 2004 deals with overriding effect which stipulates that, the provisions of the Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in “any instrument” having effect by virtue of any law other than the Act. Therefore, on a harmonious construction of all these provisions, it is clear that the powers conferred on the Minority Commission are not limited to issuing certificate to the colleges affiliated to “any University”, but also **W.P.(C)No.39809 of 2018** **15** to “any educational institution”, intending to secure a minority certificate in accordance with Article 30 of the Constitution of India. 19. The apex court had occasion to consider the issue in ' _**Corporate Educational Agency v. James Mathew**_ ' [2017 (3) KLT 713 (SC)]. Paragraph 6 of the said judgment is relevant to the context, which read thus: _“_ _**6** . As far as the validity of the declaration of minority status is concerned, this Court in N.Ammad v. Manager, Emjay High School & Ors. (1998 (2) KLT 828(SC)=(1998) 6 SCC 674), has held that the certificate of the 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. Paras 12 and 13 of the judgment are quoted hereunder:-_ _12. Counsel for both sides conceded that there is no provision in the Act which enables the Government to declare a school as a minority school. If so, a school which is otherwise a minority school would continue to be so whether the Government declared it as such or not. Declaration by the Government is at best only a recognition of an existing fact. Article 30(1) of the Constitution reads thus:_ _“30(1). All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.”_ _13. When the Government declared the school as a minority school it has recognised a factual position that the school was established and is being administered by a minority community. The declaration is only an open acceptance of a legal character which should necessarily have existed antecedent to such declaration. Therefore, we are unable to agree with the contention that the school can claim protection only after the_ **W.P.(C)No.39809 of 2018** **16** _Government declared it as a minority school on 2.8.1994.”_ However, assimilating the legal situations arising from ' _**N.Ammad**_ ' _vis-a-vis_ the provisions of Act, 2004, it was held that, after the establishment of the National Commission, it is also within the jurisdiction and mandate of the National Commission to issue the certificate regarding the status of a minority educational institution, and once the Commission thus issues a certificate, it is a declaration of an existing status. 20. Even though learned counsel for the petitioner has invited my attention to the judgment of the apex court in ' _**N. Ammad v. Manager, Emjay High School and Others**_ ' [(1998) 6 SCC 674], I am of the considered opinion that, the said judgment was rendered prior to the introduction of Act, 2004, and therefore, the proposition laid down thereunder may not have much bearing to the facts and circumstances of this case. Similar is the case with the judgment rendered by this Court in ' _**Younus Kunju v. State of Kerala**_ ' [2002 (1) KLT SN 91 Case No.115]. Similar is the situation evincing from yet another judgment of a Division Bench of this Court in ' _**Evan's U.P. School v. State of Kerala**_ ' [2001 (1) KLT 849]. **W.P.(C)No.39809 of 2018** **17** 21. On the other hand, learned counsel appearing for the 5[th] respondent has invited my attention to a Division Bench judgment of this Court in ' _**Manager, M.M.L.P School and Another v. Sajitha V.B. and Others**_ ' [ILR 2014 (2) Kerala 822]. Paragraph 21 of the said judgment is relevant to the context, which read thus: “ **21** . It was much after N.Ammad was decided by the _Hon'ble Supreme Court in 1998 that the NC Act came into force on 6th January, 2005. That Act was one to constitute a National Commission for Minority Educational Institutions and to provide for matters connected therewith or incidental thereto. Chapter III of that Act deals with the rights of a minority educational institution. Sub-section 1 of Section 10 provides that 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. Sub-section 2 provides the procedure for decision on application by the competent authority and subsection 3 provides a presumptive grant of certificate with efflux of time. Sub-section 4 of Section 10 provides that on the grant of a no objection certificate or where the competent authority has to be deemed to have granted the no objection certificate, the applicant shall be entitled to commence and proceed with the establishment of a Minority Educational Institution in accordance with the rules and regulations, as the case may be, laid down by or under any law for the time being in force. Clause (f) of Section 11 provides that notwithstanding anything contained in any other law for the time being in force, the Commission shall decide all questions relating to the status of any institution as a Minority Educational Institution and declare its status as such. Clause (g) of Section 2 defines “Minority Educational Institution” to mean a college or institution (other than a University) established or maintained by a person or group of persons from_ **W.P.(C)No.39809 of 2018** **18** _amongst the minorities. Adv.Sri.V.M.Kurian, learned counsel appearing for the management in W.A.Nos.568 and 580 of 2013 argued that the provisions in the NC Act regarding certification do not appear to apply to minority educational institutions which were already in existence at the commencement of that Act and no new certification is actually required. If that were so, the ratio of N.Ammad does not come to the aid of the management for two reasons. Firstly, that precedent is only to the effect that the Government having declared the school involved in that litigation as a minority school, such declaration would apply to the earlier point of time as well. There is no declaration by the Government at any point of time, in relation to the school involved in this litigation. Secondly, if the declaration given by the competent authority under the NC Act is for the purpose of the commencement and proceeding with the establishment of a new minority educational institution, as argued by the learned counsel for the management, that certificate cannot be utilised by any existing institution as a declaration of its status. Jurisprudentially, while Their Lordships of the Supreme Court in deciding N.Ammad appear to have applied, among other principles, the logic reflected in the permissive presumption at Illustration (d) in Section 114 of the Evidence Act, such reasoning cannot be applied to a situation where a certification is only for the purpose of future acts, that is to say, commencement and establishment of a new minority educational institution. Taking all these together, when a declaration is granted by the competent authority under the NC Act, such declaration would be relevant to operate only as regards acts done by the management of that institution on and from the date of grant or the date of presumptive grant of certificate in terms of sub-section 3 or sub-section 4, as the case may be, of Section 10 of that Act. In this view of the matter, what the management has produced as Ext.P1 in WP(C).No.24745 of 2010 could be relied upon by the educational authorities only for actions and matters in relation to the management of the institution on and after 15.7.2010, the date of its grant. Therefore, the production of that notification before this Court, in writ jurisdiction, could not have set at naught the_ **W.P.(C)No.39809 of 2018** **19** _decisions of the statutory authorities under the Kerala Education Act and the Rules thereunder, unlike in statutory appeals or revisions, subject of course to the restrictions, if any, to take note of subsequent events and admit further pleadings and evidence”._ 22. So also, in yet another Division Bench judgment of this Court in ' _**Corporate Manager, St.**_ _**Roch's HS/TTI/LPS and Another v. State of Kerala and**_ _**Others**_ ' [I.L.R 2019 (2) Kerala 333] pressed into service by learned counsel for the petitioner as well as the learned counsel for the 5[th] respondent, which considered the question whether minority status granted to one educational institution under a Corporate Management having multiple educational institutions would inure to the benefit of the other educational institutions under that Management, or in other words, whether conferment of minority status to one educational institution under it would render the Corporate Management a minority educational institution status. Paragraph 10 is relevant to the context, which read thus: _“_ _**10** . The St.Roch's H.S was established long back and has been functioning for the past many years. Therefore, only the NCMEI in exercise of power under Section 11(f) of the Act, can declare its status as a Minority Educational Institution. In that view of the matter, even the appeals filed by the school under Section 12A (1) and 12B(1) against Ext P15, treating Ext. P15 to be an order issued under Section 10(1) of the Act_ **W.P.(C)No.39809 of 2018** **20** _may not be of benefit, since only the NCMEI is conferred with the power to declare the minority status of an institution, post establishment. Going by the decision of the Division Bench in Manager, MM LP School's case (ILR 2014 (2) Ker.822), the first appellant can effect appointment to the post of Headmaster de hors the requirement of effecting appointment according to seniority, as stipulated under Rule 44 of Chapter XIV A of the KER, only after the St.Roch's H.S, Thope is declared to be a Minority Educational Institution by the NCMEI. The fact that the previous Head masters were appointed considering seniority and that such appointments, though not proper, was approved does not confer the first appellant any right to perpetuate the impropriety and to clamour for negative equity”._ 23. On a compendious appreciation of the law in accordance with the provisions of Act, 2004 and the expositions emerging from the judgments of the apex court as well as this Court, it is clear that, an Aided educational institution which is already established has to secure necessary certificate from the National Minority Commission in order to enable such institutions to claim the status of a minority educational institution in accordance with the fundamental right protected under Article 30 of the Constitution of India. Petitioner has no case that any such certificate is secured by the petitioner. 24. So far as the second contention is concerned, it is submitted by learned counsel for the petitioner that, Exts.P6 and P7 orders were issued by the **W.P.(C)No.39809 of 2018** **21** Government invoking the powers conferred under Rule 92 of Chapter XIV-A of the Kerala Education Rules, and therefore, the Government have recognised the St. Paul's Higher Secondary School, Kozhinjampara as a minority institution and the orders passed by the Government is binding on the educational authorities, and therefore, Ext.P13 order passed by the Director of Higher Secondary Education cannot be sustained under law. Learned counsel has also submitted that the said Government Orders will have to be treated akin to the orders passed by the Government under Article 162 of the Constitution of India. 25. So much so, Ext.P8 order passed by the Government on the basis of a representation submitted by the Corporate Educational Agency under which the school in question is also functioning, on 08.12.2004, whereas Act, 2004 was deemed to have come into force on 11.11.2004, even though it was published in the Gazette only on 06.01.2005. Be that as it may, fact remains, on and with effect from the introduction of Act, 2004, an existing educational institution shall secure a certificate going by the peremptory mandate contained under Sec.11(f) of Act, 2004, in order to enjoy the benefit of minority status. This is the question **22** ## **W.P.(C)No.39809 of 2018** exactly answered by the Division Bench in ' _**St. Roch's School'**_ ( _supra_ ). That apart, by virtue of Section 22 of the Act, 2004, even assuming that Ext.P8 has the characteristics of any binding nature, the provisions of the Act have overriding effect, thus nullifying Ext.P8 Government Order, so far as it is interfering with the provisions of Act, 2004. 26. So also, in my considered opinion, Exts.P6 and P7 orders are passed by the Government in revision petitions filed either by the Management or by the affected persons, and that will have only a binding effect by and between the parties involved in the revision petitions filed under Rule 92 of Chapter XIV-A K.E.R. It can never be treated as an order passed by the Government invoking the powers conferred under Article 162 of the Constitution of India. When an order is passed by the Government under Article 162 of the Constitution of India, it binds all the persons interested in accordance with the orders passed by the Government, but it is extended only to the matters with respect to which the Legislature of the State has power to make laws. Therefore, the said contention advanced by learned counsel for the petitioner founded on Exts.P6 to P8 also cannot be sustained under law. **W.P.(C)No.39809 of 2018** **23** 27. Thus, bearing in mind the legal situations deduced, I am of the considered opinion that, the educational authority has considered the entire contentions put forth by the petitioner in Ext.P13 impugned order and has come to clear and definite finding that since the Manager has not produced any certificate from the Minority Commission, in order to secure the status of a minority educational institution, the Manager was bound to make the appointment in accordance with the seniority list, and having not done so, the action of the Manager cannot be sustained under law. Such a decision was taken by the educational authority considering all the inputs provided by the petitioner and all other affected persons and also after providing an opportunity of hearing to the parties. Thus a fine residue emerging out of the discussion is that, petitioner has not made out any case for interference of this Court under Article 226 of the Constitution of India, there being no arbitrariness, illegality or any other legal infirmities. Accordingly, the writ petition is dismissed. 28. Needless to say, necessary steps shall be **W.P.(C)No.39809 of 2018 24** taken by the respondents to approve the appointment of Smt. P.K.Gracy, the 5[th] respondent, at the earliest and at any rate, within a month from the date of receipt of a copy of this judgment. **Sd/-** ## **SHAJI P.CHALY** **JUDGE** **W.P.(C)No.39809 of 2018** **25** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF ORDER NO.B5-5775/2015 (2) /K.DIS DATED 19.4.2016 OF THE DEO, PALAKKAD, APPROVING THE PETITIONER AS MANAGER OF ST. PAUL'S HIGHER SECONDARY SCHOOL, KOZHINJAMPARA.** - **EXHIBIT P2 TRUE COPY OF THE ORDER NO. B4/23734/14/ K.DIS DATED 15.2.2016 OF THE DEPUTY DIRECTOR OF EDUCATION, PALAKKAD.** - **EXHIBIT P3 TRUE COPY OF THE APPROVED CONSTITUTION OF THE EDUCATIONAL AGENCY.** - **EXHIBIT P4 TRUE COPY OF ORDER NO. B5-5775/2015/K.DIS DATED 19.4.2016 OF THE DEO, PALAKKAD.** - **EXHIBIT P5 TRUE COPY OF THE APPROVED BYE-LAWS FOR THE MANAGEMENT OF THE 7 AIDED SCHOOLS INCLUDING THE ST. PAUL'S HIGHER SECONDARY SCHOOL, KOZHINJAMPARA.** - **EXHIBIT P6 TRUE COPY OF G.O(RT) NO.539/83/G.EDN. DATED 22.2.1983.** - **EXHIBIT P7 TRUE COPY OF G.O(RT) NO.623/2003/GL. EDN. DATED 14.2.2003.** - **EXHIBIT P8 TRUE COPY OF G.O(RT) NO. 5244/04/G.EDN. DATED 8.12.2004.** - **EXHIBIT P9 TRUE COPY OF G.O(RT) NO.570/2015/G.EDN. DATED 9.2.2015.** - **EXHIBIT P10 TRUE COPY OF THE ORDER NO. J/6157/18/RDD DATED 25.5.2018 ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P11 TRUE COPY OF THE ORDER NO. J/6157/18/RDD/HSE DATED 1/10/2018 ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P12 TRUE COPY OF THE ORDER NO. GEDNF2/249/2018-G. EDN. DATED 20/7/2018 ISSUED BY THE 1ST RESPONDENT.** - **EXHIBIT P13 TRUE COPY OF THE ORDER NO. ACDA2/113511/2018/HSE DATED 3/11/2018 ISSUED BY THE 2ND RESPONDENT.** |**W.P.(C)No.39809 of 2018**|**26**| |---|---| |**EXHIBIT P14**|**TRUE COPY OF THE LETTER DATED 27.12.2018**| ||**ISSUED BY THE PETITIONER TO THE 1ST**| ||**RESPONDENT GOVERNMENT.**| |**EXHIBIT P15**|**TRUE COPY OF THE ORDER DATED 19.2.2019**| ||**ISSUED BY THE GOVERNMENT.**| |**EXHIBIT P16**|**TRUE COPY OF THE NATIONAL COMMISSION FOR**| ||**MINORITY EDUCATIONAL INSTITUTIONS CAUSE**| ||**LIST FOR 16.5.2019.**| |**EXHIBIT P17**|**TRUE COPY OF THE ORDER DATED 4.7.2019**| ||**ISSUED BY THE NATIONAL COMMISSION FOR**| ||**MINORITY EDUCATIONAL INSTITUTIONS.**| |**EXHIBIT P18**|**TRUE COPY OF THE ORDER DATED 4.2.2014**| ||**ISSUED BY THE NATIONAL COMMISSION FOR**| ||**MINORITY EDUCATIONAL INSTITUTIONS.**| |**RESPONDENTS'**|| |**EXHIBITS:**|| |**EXHIBIT R5(A)**|**A TRUE COPY OF THE LIST OF SCHOOLS HAVING**| ||**MINORITY STATUS 2017-18 PALAKKAD DISTRICT**| ||**PUBLISHED BY THE 1ST RESPONDENT.**| |**EXHIBIT R5(B)**|**A TRUE COPY OF THE EXTRACT OF DETAILS OF**| ||**THE PROCUREMENT WAS PUBLISHED IN THE SCHOOL**| ||**MAGAZINE 'SYMPHONY 2017'.**|