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Evan’S U.P. School vs State Of Kerala on 8 January, 2001

Kerala High Court
Evan’S U.P. School vs State Of Kerala on 8 January, 2001
Author: K Radhakrishnan
Bench: K Radhakrishnan, G Sasidharan


JUDGMENT

K.S. Radhakrishnan, J.

1. Common questions arise for consideration in all these cases. Short facts which are necessary for disposal of the cases are as follows: Appellant herein claims to be Manager of three Institutions by name, Evan’s Upper Primary School, Parassala, Evan’s High School, Parassala, and Evan’s Teachers Training Institute, Parassala. According to the Manager, all these Institutions belong to Nadar Christian community and are established for rendering educational facilities to members of Nadar Christian community. Nadar Christian community, according to the manager, is a minority community and consequently entitled to get the benefit of protection guaranteed under Art. 30(1) of the Constitution of India. Among the three institutions, according to the petitioner, Evan’s Basic Training has already been declared as a minority institution by the Director of Public Institution by his order dated 11.5.1970. According to him, even if there is no declaration to that effect the institution has got the status of minority institution entitled to protection under Art. 30(1) of the Constitution of India. De hors a declaration to that effect the case of the Manager is that a minority institution can claim minority status and consequently entitled to get constitutional protection.

2. Dispute mainly centres round the question of appointment of a Headmaster in the Evan’s U.P. School Parassala in a retirement vacancy which arose on 31.3.1999. Instead of appointing one Kanaka Bai, seniormost U.P.S.A. in the Evan’s U.P. School, Smt. Joylet was transferred from Evan’s H.S. Parassala and posted as Headmistress. That appointment was not approved by the Asst. Educational Officer since it was against the conditions laid down in R. 44(1) of Chapter XIVA of the K.E.R. Manager later appointed one P.J. Ushakumari as Headmistress and sought for approval. Assistant Educational Officer rejected the request and directed the Manager to appoint kanaka Bai, seniormost U.P.S.A. in the Evan’s U.P. School. Since no steps were taken by the Manager to appoint kanaka Bai as the headmistress of the school the matter was taken up before the Government and the Government by order dated 20.3.2000 directed the Manager to appoint Kanaka Bai as Headmistress in the Evan’s U.P. School.

3. Manager challenged the order of the Government by filing O.P. No. 14896 of 2000. Kanaka Bai also filed O.P. No. 8017 of 1999 to implement the Government order. Learned Single Judge dismissed O.P. No. 14896 of 2000 holding that the Government was perfectly justified in directing the Manager to appoint Kanaka Bai as Headmistress of the School. Government order dated 20.3.2000 was upheld by the learned Single Judge. On the question of minority status the judgment states as follows:

“In view of the disputed status of the petitioner’s school as a minority institution and insufficiency of data before this Court to decide the same, it may not be possible for this Court to hold that the petitioner’s institution is a minority institution. It is for the petitioner to establish the same before the appropriate authority which is to decide the above question.”

In view of the dismissal of O.P. No. 14896 of 2000, learned Judge disposed of O.P. No. 8017 of 1999 directing Kanaka Bai to approach the educational authority for appointment as Headmistress of the school. Aggrieved by the above judgments, the Manager has filed Writ Appeal Nos. 2032 and 2033 of 2000 respectively. Due to the non-implementation of the Government Order as directed by the learned Judge, kanaka Bai took up the matter before the higher authorities. The Deputy Director of Education subsequently passed an order on 30.12.2000 stating as follows:

“Hence it is conclusively proved that the Manager at feud with the seniormost U.P.S.A. deliberately violated and disparaged R. 9(1) of Chapter III KER, by continuously neglecting and disobeying the orders issued from time to time by the Government and the Department in conformity with the provisions of the Act and Rules in force. He has wilfully denied promotion to the seniormost rightful claimant Smt. Kanaka Bai to the post of Headmistress under R. 44, Chapter XIV A KER, when the post became vacant, dishonouring the directions from the department and the Government, causing mental agony and denial of all monetary benefits which she would have received, had the promotion been effected in time as per the rules. In light of the above circumstances, in exercise of powers conferred to the undersigned vide sub-r. 4(b) of R. 7, Chapter III KER Sri. Evans Nallathampi, Manager, Evan’s U.P.S., Parassala is hereby declared unfit to hold the office of the Manager in Evan’s U.P.S. Parassala or any other aided school in the State of Kerala. The Assistant Educational Officer, Parassala will discharge the routine functions of the Manager of Evan’s U.P.S. Parassala and the District Educational Officer, Neyyattinkara will discharge the same of Evan’s H.S. and T.T.I., Parassala, till the Educational Agency appoints another suitable person as manager.”

Manager aggrieved by the above order filed O.P. No. 977 of 2001. Learned Single Judge referred the matter to Division Bench to be heard along with the writ appeals. Accordingly that Writ Petition has also come up before us. We heard that matter also.

4. When the matter came up for hearing Senior Counsel appearing for the Manager Sri. T.P. Kelu Nambiar submitted that Manager is willing to give effect to various orders passed by the educational authorities and the Government to appoint Kanaka Bai as headmistress of the school. With regard to the minority status of the institution, Senior Counsel submitted, the matter will have to be decided by the Government.

5. Counsel appearing for Kanaka Bai, Sri. V.S. Sudheer submitted that his client is legally entitled to get appointment to the post of Headmistress from 1.4.1999 onwards. Counsel submitted that the Manager has deliberately delayed the legitimate claim of Kanaka Bai to be appointed as headmistress of the school. Consequently she is entitled to all service benefits from the said date onwards. We are of the view that since the Manager has conceded the claim of kanaka Bai for being appointed to the post of Headmistress and offered to issue the appointment order forth with, we need not decide the claim of Kanaka Bai for appointment from 1.4.1990 onwards. We leave that question open for Kanaka Bai to be raised before appropriate authority. However, we are inclined to give a direction to the Manager to appoint Kanaka Bai as Headmistress of Evan’s U.P. School, Parassala within a period of one week from today.

6. We notice that learned Single Judge has not decided the question of minority status claimed by the Manager. Learned Single Judge, as we have already indicated, left the matter to be decided by the appropriate authority. But who is the appropriate authority is always a vexed question. Learned Senior Counsel submitted that the claim of the Manager for minority status be decided by the Government, the highest executive authority. We have already indicated that in the order passed by the Director of Public Instruction dated 11.5.1970 it was declared that Evan’s Basic Training School is a minority institution entitled to protection under Art. 30(1) of the Constitution of India. We notice that there is a lot of controversy as to which authority should decide the dispute or claim with regard to the minority status of the institution. There is no rule or regulation conferring such power on any notified authority under the Kerala Education Act or Rules or any other legislation. We have come across several orders passed by the Assistant Educational Officers and higher authorities upto the Government either determining or refusing the claim for minority status under Art. 30(1) of the Constitution of India. We are of the view that when a claim s raised under Art. 30(1) of the Constitution of India or dispute is raised regarding the status of an institution, a declaration to that effect is inevitable so as to resolve the dispute between the parties or to claim protection under Art. 30(1) of the Constitution of India.

7. 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 of India 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. The Apex Court as well as this Court in several decisions has taken the view that the Management of a minority school is free to find out a qualified person either from the staff of the school or from outside to fill up the vacancy. The term ‘minority school’ has been defined in S. 2(5) of the Kerala Education Act as follows:

“Minority schools means schools of their choice established and administered, or administered, by such minorities as have the right to do so under clause (1) of Art. 30 of the Constitution”.

The Apex Court in various decisions such as St. John’s Teachers Training Institute (For Women), Madurai v. State of Tamil Nadu (1993 (3) SCC 595), State of Tamil Nadu v. St. Joseph’s Teachers Training Institute (1991 (3) SCC 87) and St. Stephen’s College v. University of Delhi (1992 (1) SCC 558) has discussed the scope of Art. 30(1) of the Constitution and the factors to be established for claiming protection under the said Article. But when a claim or dispute is raised, as we have already indicated, the claim or the dispute has to be examined or resolved by a competent authority. But who is the authority competent to decide such an issue in the absence of any rules or regulation, is the question that has come up for consideration in this case.

8. The Apex Court in N. Ammad v. Manager, Emjay High School & Ors. ((1998) 6 SCC 674) dealt with the scope of Rr. 44 and 440A and Ss. 11 and 13 of the Kerala Education Act, 1958. The Apex Court noted that there is no provision in the Kerala Education Act which enables any authority or even the Government to declare the school as a minority school and held that the school which is otherwise a minority school would continue to be the same status. Art. 30(1) of the Constitution reads as follows:

“30. Right of minorities to establish and administer educational institutions.

(1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.”

When the Government declares the school as a minority school it recognises a factual position that the school was established and is being administered by a minority institution which would necessarily have existed precedent to such declaration. We notice that the Apex Court has not in so many words held that Government is the competent authority to declare an institution as a minority institution. But we are of the view when a dispute or claim is raised a declaration to that effect is inevitable so as to adjudicate the right of the parties. In the absence of any provision in the Kerala Education Act, Rules or Regulation or any of the statutes we are of the view that Government being the highest executive authority would be the most appropriate authority to determine the claim or resolve the dispute relating to minority rights guaranteed under Art. 30(1) of the Constitution of India.

9. Our Constitution delineates the powers of the executive legislature and judiciary. Although it may not be possible to postulate exhaustive definition of what executive function means and implies, it connots the residue of governmental functions that remains after legislative and judicial functions are taken away. As normally understood executive functions comprised of administrative action as well as carrying it into execution. We may notice that it is the executive to initiate legislation, maintain law and order, protect social and economic welfare, carrying on and supervising of general administration in the State. We are of the view as indicated earlier that Government would be the more competent authority to determine a claim or dispute raised with regard to the minority status of an institution. Such a dispute has to be resolved by the highest executive authority in the State and not by any subordinate officers or inferior authority.

10. We therefore dispose of all these cases with direction to the State Government to consider the claim raised by the Manager with regard to the minority status of the institution with notice to all the parties including parties to the litigation within three months from the date of receipt of a copy of this judgment. Reliance was also placed on Annexures I and II letters issued by the Director of Public Instruction that once status is conferred to one of the institutions owned by the Management there is no justification in denying minority status to other schools of the same management. We express no opinion with regard to the applicability or otherwise of those circulars. We are of the view that all these aspects have to be considered by the Government in accordance with Rules with which we express no opinion. We make a further direction to the Manager to appoint Kanaka Bai as Headmistress of the school within one week in the event of which no further proceedings shall be initiated against the Manager and all disciplinary proceedings initiated against the Manager would be dropped. The appeals and the Original Petition are disposed of as above.

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