IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 9662 of 2008(A)
1. O.BALAN, ASSISTANT TEACHER (RETIRED),
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. DIRECTOR OF PUBLIC INSTRUCTIONS,
3. DISTRICT EDUCATIONAL OFFICER, VADAKARA.
4. ASSISTANT EDUCATIONAL OFFICER, THODANNUR
5. K.P.RAVEENDRAN, M.C.M.U.P.SCHOOL,
6. THE MANAGER, M.C.M.U.P.SCHOOL,
For Petitioner :SRI.M.VIJAYAKUMAR
For Respondent :SRI.R.K.MURALEEDHARAN
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :28/08/2009
O R D E R
S. Siri Jagan, J.
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W. P (C) Nos. 9662 & 11407 of 2008
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Dated this, the 28th August, 2009.
J U D G M E N T
The issue that crops up for consideration in these two writ
petitions is as to whether the Mayyannur Central Mopla Upper
Primary School is a minority institution so that its manager can
appoint a Headmaster of his choice for the school, overlooking
seniority of the petitioners in the two writ petitions. The facts from
which the above issue arises may be summarised as follows:
2. Sri. O. Balan, the petitioner in W.P(C) No. 9662/2008, was
working in the school with effect from 6-8-1973. Sri. K.P.
Raveendran, the 5th respondent in that writ petition entered service
of the school on 1-6-1982. Therefore, Sri. Raveendran was junior to
Sri. Balan. The post of Headmaster of the school fell vacant on 1-6-
2004. Apprehending that overlooking his seniority, the manager is
likely to appoint the junior teacher as Headmaster, Sri. Balan
submitted Ext. P1 representation dated 7-6-2004 before the Assistant
Educational officer. By Ext. P2 communication dated 31-7-2007, Sri.
Balan was informed by the AEO that the manager had appointed Sri.
Raveendran as Headmaster from 1-6-2004 and approval for the same
was declined by order dated 11-6-2004, in which order it was also
stated that Sri. Balan is the person entitled to be appointed as the
Headmaster of the school. Challenging the order of the AEO, declining
approval for the appointment of Sri. Raveendran as Headmaster of the
school, the manager filed an appeal before the DEO claiming that the
school is a minority institution and therefore the manager is entitled
to appoint a qualified teacher of his choice as the Headmaster of the
school. By Ext. P3 order dated 6-10-2004, the DEO rejected the
appeal stating that the jurisdiction to decide whether the school is a
minority school vests with the Government and since presently the
school is under a management whose minority status has not been
W.P.C. Nos.9662 & 11407/08 -: 2 :-
recognised, the appointment of Sri. Raveendran as Headmaster
cannot be approved. Since the manager did not appoint Sri. Balan as
Headmaster, despite direction by the AEO, Sri. Balan filed W.P(C)
No. 31075/2004 for a direction to the manager to comply with the
order of the AEO. In that writ petition the manager submitted that he
has challenged the order of the DEO in a revision petition and the
Government had, by Ext. P5 order dated 10-12-2004, stayed the
orders of the AEO and the DEO. The manager also filed Ext. P4
petition before the Government seeking a declaration of the minority
status of the school. Sri. Balan again filed W.P(C) No. 36837/2004
and against the judgment in that writ petition, W.A.No. 587/2005. By
Ext. P6 judgment, this Court disposed of that writ appeal, directing
the Government to decide the status of the school. In that judgment,
it was held that if the Government decides that the school is not a
minority school, Sri. Balan would be entitled to get all service benefits
including pay and allowances from 1-6-2004 as Headmaster, which is
to be borne by the institution. Before the Government, both sides
adduced evidence and Sri. Mathew John, Under Secretary to the
Government , who heard the parties, prepared Ext. P8 hearing note in
which it was recorded that the school cannot be granted minority
status under Article 30(1) of the Constitution of India and the request
of the manager to declare the school as minority school is rejected.
But, by Ext. P9 order, Sri. P.J. Thomas, the Principal Secretary to the
Government, after observing that ‘it is true that it (the school) was
established by a non-muslim and it was purchased by the Muslim
Vidyabhyasa Sanghom, the present management of the school in
1985, from the founder manager’, held that the school was established
and administered for the benefit of a minority community and the
school is eligible for minority status. In the meanwhile, Sri. Balan
W.P.C. Nos.9662 & 11407/08 -: 3 :-
retired from service. However, in view of the observation in Ext. P6
judgment, he challenged Ext. P9 order by filing W.P(C) No.
22337/2005. Sri. K. Bhaskaran, the petitioner in W.P(C) No.
11407/2008, another teacher of the school, who was also senior to Sri.
Raveendran, aspiring for promotion as Headmaster, also challenged
the very same order, by filing W.P(C) No. 22857/2005. Both the writ
petitions were heard together and disposed of by Ext. P11 judgment,
finding that the order of the Government cannot be sustained in the
face of the finding that the school was established by a non-muslim
and yet the Government proceeded to confer minority status on the
school. Accordingly, Ext. P9 order was quashed and the Government
was directed to re-consider the matter after hearing the two
petitioners, the manager and Sri. Reaveendran. Thereafter, the
Government re-considered the matter, after hearing the parties, and
by Ext. P14 order, again decided that the school is eligible for
minority status. The very same order is produced by Sri. Bhaskaran
in W.P(C) No. 11407/2008. The petitioners are challenging that order
in these two writ petitions and seeking successive promotion as
Headmaster, one after the other, based on seniority, since Sri.
Raveendran is junior to them.
3. The manager has filed a counter affidavit in W.P(C) No.
9662/2008, seeking to refute the contentions of both petitioners.
According to him, both petitioners being not the next person entitled
for promotion as Headmaster, the impugned order does not affect
their legal right and therefore the writ petitions are not maintainable.
The contention is that there is another graduate teacher who has a
better claim for promotion as Headmistress. Regarding Sri.
Bhaskaran, the manager would contend that since he was punished
for misconduct involving misappropriation of public funds, he cannot
W.P.C. Nos.9662 & 11407/08 -: 4 :-
be promoted as Headmaster of the school, for which contention he
relies on the principle laid down in Ext. R6(c) judgment of this Court
in O.P.No. 28868/2002. He would further contend that the school is a
minority school established by muslims for the benefit of the Muslim
community. According to him, the school was established by one
Ammed on 30-8-1943 and its original name was Mayyannur Aided
Moppila School. In 1949, its name was changed to Mayyannur
Moppila School and in 1951, the name was again changed to
Mayyannur Central Moppila School. Since, it was upgraded as
U.P.School, it was known as Mayyannur Central Moppila Upper
Primary School. According to the manager, even in 1944, Sri. Ammad
was the manager, which is evident from the service book of one
Moidu, copy of which he has produced as Ext. R6(a). He would
contend that Sri. Krishnan became the teacher-cum-manager of the
school from 6-4-1949 and thereafter Mathu became the manager on
1-4-1958. He relies on Ext. R6(c) service book of the said Sri.
Krishnan in support of this averment. According to him, the school
was established for educating Muslim girls of the area and for 12
years only muslims were admitted in the school. Later also, majority
of the students of the school were muslims. He contends that during
the pre-independence period, the schools in Malabar were divided as
Muslim Range Schools and Hindu Range Schools and separate Range
inspectors supervised the schools. He points out that as per Ext.
R6(g) visit book of the school, a Muslim Range Deputy Inspector
visited the school on 3-11-1943 and expressed satisfaction that the
school is satisfactorily educating muslim girls. The school is
following Muslim calendar. Although later the school came into the
hands of one Krishnan Master and his wife Mathu, the same again
came under the management of the Villiappally Muslim Vidyabhyasa
W.P.C. Nos.9662 & 11407/08 -: 5 :-
Sangham as per sale deed no. 991/1985 of Villiappilly Sub Registrar’s
office. The manager submits that from Ext. R4(i) sale deed it is clear
that even during the period when Krishnan Master was the manager
of the school, the property in which the school is situated belonged to
Ammed and Ammed transferred the property while Mathu was the
manager. The contention is that the property of the school at the time
of establishment of the school belonged to one Java Ammed Haji, who
transferred the same to Ammad in 1123 ME (1946 AD) as is clear
from Ext. R6(j). Therefore, according to the manager, the school is a
minority school and therefore the appointment of the 5th respondent
as Headmaster of the school by the manager in exercise of the rights
of a minority institution is perfectly valid and sustainable.
4. The petitioners would strongly dispute the claims of the
manager. They would contend that after examining the evidence
adduced by both sides, the Government had, in Ext. P9, come to the
conclusion that the school was established by a non-muslim and it was
purchased by the Muslim Vidyabhyasa Sangham, the present
management of the school in 1985 from the founder manager. It was
because of that specific finding, Ext. P9 was quashed and the matter
was remanded for fresh consideration, by this Court as per Ext. P11
judgment. According to them, in Ext. P14, there is no contrary
finding, without which the Government could not have found that the
institution is a minority institution. They submit that there is enough
evidence on record to show tat the school was started by a non-
Muslim viz. V.M. Krishnan Master, who was the founder manager and
was succeeded by his wife Mathu, who was again replaced by
Krishnan Master. They would also rely on the very same documents
produced by the manager, in support of their contention. They would
also rely on Ext. P10 chapter on the history of the school in a
W.P.C. Nos.9662 & 11407/08 -: 6 :-
publication titled “Thodannur Upa Jilla Vidyalaya Charitham”
(Educational History of the Thodannur Sub District), by a team of
authors, which, according to them, would prove that the school was
started by Krishnan Master.
5. The veracity of the facts stated in the publication relied upon
by the petitioners is disputed by the manager on the ground that the
same is prepared by Sri. Bhaskaran, one of the petitioners and they
have produced copy of the manuscript of the Chapter in the
publication relating to the school as Ext. R6(f), which is in his
handwriting.
6. I have considered the rival contentions based on the
materials produced by both sides as also those produced by the DEO
in his counter affidavit dated 25-7-2009, filed as directed by me by
order dated 13-7-2009.
7. Before going into the rival contentions, I may refer to the law
on the subject briefly. The word “minority schools” is defined in
Section 2(5) of the Kerala Education Act thus:
“2. Definitions: In this Act, unless the context otherwise
requires,-xx xx xx xx xx xx(5) “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 Article 30 of the Constitution;xx xx xx xx xx xx"A learned Single Judge of this Court had occasion to consider the
scope of this definition in Rev. K.C. Seth v. State of Kerala, 1991
W.P.C. Nos.9662 & 11407/08 -: 7 :-
(2) KLT 662. In that decision, it was held thus:
“The definition of minority school in the Act is wider than
what is contemplated in Article 30(1) of the Constitution. Article
30(1) confers on all minorities, whether based on religion or
language, the right to establish and administer educational
institutions of their choice. The words ‘established and
administered’ will have to be read conjunctively. This is made
clear in the decision of the Supreme Court reported in Azeez
Basha v. Union of India (AIR 1968 S.C. 662) in which the Supreme
Court observed:‘ . . . . . the Article in our opinion clearly shows that the
minority will have the right to administer educational
institutions of their choice provided they have established
them, but not otherwise. The Article cannot be read to mean
that even if the educational institution has been established by
somebody else, any religious minority would have the right to
administer it because, for some reason or other, it might have
been administering it before the Constitution came into force.
The words “establish and administer” in the Article must be
read conjunctively and so read it gives the right to the minority
to administer an educational institution provided it has been
established by it.”To the same effect is the decision reported in State of
Kerala v. Mother Provincial (AIR 1970 S.C 2079) and S.P. Mittal v.
Union of India (AIR 1983 S.C1). In the latter decision, the
Supreme Court held that:“In order to claim the benefit of Art. 30(1) the
community must show: (a) that it is a religious or linguistic
minority, (b) that the institution was established by it.
Without satisfying these two conditions, it cannot claim the
guaranteed rights to administer it”.But the definition in S.2(5) of the Kerala Education Act
provides that the schools administered by a minority also can claim
the benefit of Article 30(1) of the Constitution. An almost similar
clause came up for consideration before a Division Bench of the
Madras High Court in the decision reported in Association of
University Teachers v. State of Tamil Nadu, 1991 II LLJ 31, where
the definition was as under:“‘minority college’ means a private college of its
choice established and administered, or administered, by any
such minority whether based on religion or language as has
the right to do so under clause (1) of Art. 30 of theW.P.C. Nos.9662 & 11407/08 -: 8 :-
Constitution”.
Considering the validity of such definition in the background
of Article 30(1) of the Constitution, the Madras High Court
observed:xx xx xx
After referring to the Madras High Court decision and Article 30 of
the Constitution of India, the learned Judge further held thus:
“Minorities may be based on religion or language but the
rights is to establish and then to administer. The right is not
available to institution not established by the minority but
administered by the minority. Article 30(IA) also emphasis this
requirement. Hence, if Article 30 of the Constitution is the ground
norm and if that is to be given effect to the words “or
administered” in S.2(5) of the Kerala Education Act will have to be
ignored. In a writ petition filed by the management of the minority
school in which there will not be any prayer to declare S.2(5) of
the Kerala Education Act unconstitutional to the extent it declares
institutions administered by the minority also minority institution,
I would not be justified in striking down the section. Therefore, I
am of the opinion that S.2(5) of the Kerala Education Act has to be
read down in conformity with the requirements of Article 30 of the
Constitution and, so read, the words “or administered” occurring
in the sub section will have to be ignored. Hence, the 2nd prayer to
declare that the educational institutions mentioned in Ext.P1 are
minority schools cannot be granted in this writ petition. Such a
declaration can be given only if the institution is found to be
established by a religious or linguistic minority and administered
by them. With these observations, I feel, O.P.7020 of 1989 can be
closed.”The aforesaid decision was affirmed by a Division Bench of this Court
in Rev. K.C. Seth v. State of Kerala, [1992 (1) KLT 754].
8. After referring to those decisions, another Division Bench of
this Court has in Manager, St. Thomas U.P. School v.
Commissioner and Secretary to Government, 1999 (3) KLT 281,
held thus:
W.P.C. Nos.9662 & 11407/08 -: 9 :-
“5. In the light of the aforesaid decisions, there is no room
for any controversy that the words “established and administered”
in Art. 30 of the Constitution of India must be read conjunctively.
As observed by the learned Single Judge, the mere fact that the
educational institution is now being administered by a minority
community is not sufficient to claim protection under Art. 30(1) of
the Constitution of India. It must also be proved that the
institution was established by a minority community. The basic
fact to be proved is that initially the institution was established by
a minority community. Establishment in this context means the
bringing into being of an institution. Therefore, it is quite clear
that the minority community must have some role to play not only
in the subsequent administration of an institution, but also in the
initial establishment of the institution. Here the minority
institution is nowhere in the picture in the process of establishing
the institution. A subsequent entry by the minority community into
the area will not help them to claim protection under Art. 30(1) of
the Constitution of India. In the aforesaid view, we are of the
opinion that the learned Single judge was right in allowing the
original petition, quashing Ext. P4 and declaring that the
educational institution managed by the first appellant is not a
minority institution entitled to protection under Art. 30(1) of the
Constitution of India. This appeal accordingly fails and we dismiss
the same.”(underlining supplied)
But, this decision was reversed by the Supreme Court on the question
as to whether simply because the institution was started by an
individual belonging to the minority community, it can be denied
minority status, in St. Thomas U.P.S v. Commissioner &
Secretary to Government, 2002 (1) KLT 655 (SC). But, in that
decision, the Supreme Court also affirmed the legal position that for
claiming minority status, the institution should have been one
established by a minority. The Supreme Court held thus in paragraph
5 thereof:
“5. The question before us is whether the High Court was
correct in taking the decision it did. Under Art. 30(1), all
minorities whether based on religion or language, have beenW.P.C. Nos.9662 & 11407/08 -: 10 :-
guaranteed the right to establish and administer educational
institutions of their choice. It is not in dispute that Christians form
a minority in this country. The right of minorities under Art. 30(1)
to establish and administer educational institutions has been
judicially construed as defining minority institutions. What is
expressed in terms of a right under Art. 30(1) in fact describes the
institution in respect of which the protection of Art. 30(1) can be
claimed. It has, therefore, been held that unless the educational
institution has been established by a minority, it cannot claim the
right to administer it under Art. 30(1) Azeer Basha v. Union [1968
(1) SCR 833]. . . . . .”(underlining supplied)
9. Therefore, the law on the point is well settled to the effect
that for claiming minority status, an educational institution must
satisfy the twin tests of whether the same is (1) one established by a
minority community and (2) one administered by it. I shall now
examine whether the Mayyannur Central Mappila U.P. School
satisfies those twin tests.
10. In support of their contentions, the petitioners would rely
on a publication by team of authors by name “Thodannur Upajilla
Vidyalaya Charitham” (Educational History of Thodannur Sub
District), which contains a chapter on the history of the Mayyannur
Central Mappila U.P. School, photocopies of the relevant pages of
which are produced as Ext. P10 in W.P(C) No. 9662/2008. The
introductory chapter of the book details the mode of preparation of
the history as complied from various sources such as references,
interviews, collecting documents/official documents/school
documents/Panchayat Development document, visit books of
Educational Officers, statistics, minutes of P.T.As and other
associations, old photographs and correspondence, old
pictures/publications/intimations etc., unofficial discussions and
debates. As per this publication, in 1940, the independence
W.P.C. Nos.9662 & 11407/08 -: 11 :-
movement had its waves in Mayyannur also. Some socialist minded
youths joined together and discussed about starting a school. One
Mr. Krishnan Master gave leadership for the same. Varayalil Ammed,
Anchanvida Kelappan, Java Ammad Haji, Ottapurakkal Pookkan,
Kolakkandi Kannan and Chamakkandi Unniya Dayyinar supported
him. The school was started on 30th August, 1943. The school was
named Mayyannur Girls Elementary School. The first manager was
V.M. Krishnan Master. When, in 1946, the Muslim Range inspector
inspected the school, in the visit book of the school, it was written
thus: “This school should be so conducted as to make the muslim girls
of the village able to read and write.” For the first thirteen years only
muslim girls were admitted. The first Hindu girl was V. M. Sobhana
(daughter of the manager). When V.M. Krishnan Master became
Headmaster in 1953, management was transferred to his wife Mathu
teacher. From the beginning of the school, at the same place
Madrassa teaching was also conducted, for which a Madrassa
teacher was given salary by the teachers of the school, which
continued till 1973. On 31-12-1963, classes 6 and 7 were also started.
From then onwards, the name of the school was changed to
Mayyannur Central Mappila U.P. School. From 1977 onwards, the
children of Thanvirul Muslim Orphanage used to be admitted to class
five in the school. In 1978, the Villiappilly Muslim Vidyabhyasa
Sanghom purchased the school from Mathu and then onwards the
school is under the management of the Sanghom.
11. The veracity of this history is strongly disputed by the
manager. According to him, the particular chapter in the publication
containing the history of the school was prepared by Sri. Bhaskaran,
one of the petitioners in these writ petitions and therefore much
credence cannot be given to the same. In support of this contention,
W.P.C. Nos.9662 & 11407/08 -: 12 :-
the manager has produced a copy of a manuscript allegedly in the
handwriting of Sri. Bhaskaran. Although in the original of the
publication (a copy of which was made available to the court by the
petitioners), Sri. Bhaskaran’s name is not mentioned anywhere, the
counsel for Sri. Bhaskaran does not dispute that Ext. R6(f) is in the
handwriting of Sri. Bhaskaran.
12. In view of this dispute, I issued the following direction to
the DEO, on 13-7-3009:
“The office of the District Educational Officer shall trace out
the old records of the 6th respondent school and file a counter
affidavit giving the history of the school such as its initial name,
initial manager etc. which are relevant for the purpose of
deciding the issue involved in this writ petition. The District
Educational officer shall also ascertain the correctness of Ext.
P10 history of the school prepared by a team of authors. It shall
be done within two weeks.”Pursuant to that order, the DEO has filed a counter affidavit dated 25-
7-2007 stating thus:
“7. It is submitted that the above W.P. came up for hearing
on 13.07.2009, this Hon’ble Court directed me to file an affidavit
sating the history of the school such as initial name, initial
manager etc. after producing the old records of the 6th
respondent of the school.8. It is submitted that the initial name of the school is
Mayyannur Moppila Girls School. It was established in the year
1943 ie. on 30.08.1943. During that period the school is under
the control of Divisional Inspector, Kurumbaranad Girls range
under the District Educational Officer, North Malabar who is
under the Government of Madras. An inspection was conducted
on 3.11.1943 by Senior Inspector. A visit book is being kept in the
school during those days. From the visit book it may be seen that
Senior Inspector had inspected the school and issued necessary
directions in the improvements of the school. But on going during
the visit book it cannot be seen that who is the Manager. A true
copy of he Page 3 to 13 visit book pertaining to Mayyannur
Central Moppila Girls High School is produced herewith andW.P.C. Nos.9662 & 11407/08 -: 13 :-
marked as Exhibi R3(a).
9. It is submitted that on going through the Teachers
Service Register available in the office of the Assistant
Educational Officer, Thodannur, it can be seen that one
T.H.Poikam has been appointed on 1.07.1944 to 31.03.1945 as
temporary Teacher. This appointment has been made by one V.M.
Krishnan the Manager of Mayyannur Moppila Girls U.P. School.
This is the first document which is available in the A.E.O. Office,
Thodannur showing the name of the Manager. A true copy of the
Teachers Service Register pertaining to one Pokkan is produced
herewith and marked as Ext.R3(b).10. On going through the Service Book of the Manager
stated to be in Exhibit R2(b), it can be seen that he was working
as Teacher in the School from 6.04.1947. A true copy of the
Service Register of Krishnan is produced herewith and marked as
Exhibit R3(c). There are no records available in the office of the
A.E.O. Thodannur or D.E.O. Vadakara, when the name of the
school has been changed from Mayyannur Moppila Girls School to
Mayyannur Central Moppila U.P. School. It is also submitted that
Ext.P10 is a history purporting to be of Mayyannur Central
Moppila U.P. School. This respondent is not in position of state in
the genuinity of Ext.P10 for the reason that the petitioner himself
was the Editor.11. It is further submitted that under the Assistant
Educational Officer, Thodannur, there was school by name
Mayyanur Moppila L.P.School one Sri. P.A. Ammed was the
Manager of that school. That school was closed as per G.O.484/65
dated 1.09.65, due to the reason that it is in loss. A true copy of
the service book of one Sankaran who was appointed by P.Ammed
who was the Manager is produced and marked as Exhibit R3(d).12. It is pertinent to note that Ammed was not the Manager
of Mayyannu Central Moppila U.P.School, but he was the Manager
of Mayyannur Mopila L.P. School. Hence it is humbly prayed that
this Hon’ble Court may be pleased to accept this affidavit and
dismiss the above Writ Petition since it is devoid of any merit.”(underlining supplied)
13. This is in tune with the findings of the Under Secretary,
who prepared Ext. P8 hearing note, during the first hearing on 25-5-
2005, in which it is stated thus:
W.P.C. Nos.9662 & 11407/08 -: 14 :-
“33. The history of the school reveals that the school was
not established by a minority community. The school was
established by one Sri. Krish Master and later in the year 1985,
the school was purchased by Muslim Vidhyabhasa Sangham. The
aim of the school was not the development of the education of the
Muslims alone in the locality. The interest was to benefit the
public at large. The fact that the educational institution is one
being administered by minority community is not sufficient to
claim protection under Art. 30(1) of the Constitution of India.34. Under these circumstances, Mayyanur Central Mopla
Upper Primary School, Mayyanur cannot be granted minority
status under Art. 30(1) of the Constitution of India and the
request of the manager to declare the school as minority school is
rejected. The direction contained in the judgment dated. 17/3/05
in W.A.No. 587/05 may be complied with accordingly.”(underlining supplied)
In fact, Ext. P9 order of the Government, pursuant to the same,
reflects the same in the following sentences:
“5. The relevant records and argument notes were
examined. The dispute in the instant case is whether the school
was established and administered for the benefit of a minority
community. It is seen that the school was established in 1943 and
the area is predominantly of Muslim people. It is true that it was
established by a non-Muslim and it was purchased by Muslim
Vidyabhasa Sangham, the present management of the school, in
1985 from the founder manager. . . . . .”(underlining supplied)
But, after finding that the school was established by a non-muslim, the
Government chose to hold that the school is a minority institution. It
is exactly for that reason, this Court has set aside Ext. P9 by Ext. P11
judgment in W.P(C) Nos. 22337/2005 and 22857/2005. In para 3
onwards of that judgment it was held thus:
” 3. In the impugned order it is inter-alia stated as follows:
“The dispute in the instant case is whether the
W.P.C. Nos.9662 & 11407/08 -: 15 :-
school was established and administered for the benefit of a
minority community. It is seen that the school was established in
1943 and the area is predominantly of Muslim people. (It is true
that it is established by a non-Muslim and it was purchased by
Muslim Vidyabyasa Sangham, the present management of the
school, in 1985 from the founder Manager)”4. No doubt, in para 6 it is stated that the school was
established at the beginning itself for the benefits of the minority
and now it is run by a minority community for the same purpose.
Various other facts are mentioned. As per Article 30, all
minorities whether based on religion or language shall have the
right to establish and administer educational institution of their
choice. It is open even to a single individual to found a minority
institution for the benefit of the minority. But here, the finding is
that it is established by a non-muslim and it is purchased by
Muslim Vidyabyasa Sangam.5. Learned counsel appearing for the manager Sri. K.R.B.
Kaimal would contend that there is ample materials produced to
show that the school was in fact established by the muslims.In such circumstances, I feel that the matter will have to be
re-considered. No doubt, learned counsel for the petitioners Sri.
M.Vijayakumar has raised various contentions. However, I find
that the order cannot be sustained in the face of the finding that
the school was established by a non-muslim and yet Government
proceeds to confer minority status. Therefore, Ext.P2 in W.P(C)
No. 22857/05 and Ext.P10 in W.P(C) No. 22337/05 shall stand
quashed. First respondent will re-consider the matter with
opportunity of hearing o the petitioner in both the cases, the
manager and the 5th respondent. Fresh decision in accordance
with law will be taken by the first respondent within a period of
two months from the date of receipt of a copy of this judgment. It
is open to the petitioners to raise all contentions available to them
under law. The position as on today will continue till a decision is
taken.”(underlining supplied)
It is pursuant to Ext. P11 judgment, Ext. P14 order was passed by
the Government. Strangely, Ext. P14 does not give any reasoning as
to how the Government came to the conclusion that the school is a
minority institution. In that order, after stating the rival contentions,
the Government without discussing the contentions or the evidence,
W.P.C. Nos.9662 & 11407/08 -: 16 :-
merely stated thus:
“6. The undersigned examined the issue in detail and
arrived at the following conclusion.7. Based on the argument posed and the documents
produced by the rival parties, the contentions of the 6th respondent
(ie Manager, Mayannour Central Mopila UP School) which is
supported by solid evidences to prove that the institution is a
minority one has to be agreed to.8. In the above circumstances, Government are of the view
that the school is eligible for minority status and are pleased to
accord minority status to Mayyannur Central Mopila UP School.
The direction of the Hon’ble High Court in the combined judgment
is thus complied with.”
14. I find that the findings of the DEO in his counter affidavit is
supported by the documents produced by him as also those filed by
the manager himself. In fact, the same also supports the history of
the school as per the publication produced by Sri. O. Balan in his writ
petition as Ext. P10, the original of which was produced before the
Court for perusal by the counsel for the petitioner. The manager
claimed that one P. Ammad was the initial manager of the school.
But, from Ext. R6(d), I find that Sri. P. Ammad was the manager of
Mayyannur Aided Mapila School, in 1944 and 1947. On the other
hand, the same document shows that from 1949 to 1957, V.M.
Krishnan was the manager of the Mayyannur Mopla Girls School and
in 1958, Mathu was the manager. Again Ext. R6(c) shows that from
1947 to 1953, V.M. Krishnan was the manager. From Ext. R3(b) ,
which is also a teacher’s service register as in the case of Exts. R3(d)
and R6(e), would go to show that in 1944 also V.M. Krishnan Master
was the manager of the school.
15. Ext. R6(i) is the sale deed executed by Mathu in favour of
Villiappully Muslim Vidyabhyasa Sangham, by which the property
W.P.C. Nos.9662 & 11407/08 -: 17 :-
comprised of the school was transferred in 1985. That document
recites that Mathu was running the Mayyannur Central Mappila
School as its manager and correspondent, which was sold to the
Sangham. It again states that one Ammad sold his rights over the
property in favour of Mathu by sale deed no. 18 of 1962. That Ammad
got rights over the property by Ext. R6(j) document no. 56 of 1961
from Madathil Ammad Haji. Although Exts.R6(i) and R6(j) documents
have been produced by the manager to prove that Ammad was the
owner of the property, those documents actually go to show that till
1985 Mathu was the manager of the school. Although an attempt was
made by the manager to show that Ammad was the manager of the
school, in view of the counter affidavit of the DEO, it is clear that he
was the manager of the Mayyannur Mopila L.P. School which was
closed as per G.O.484/65 dated 1-9-1965. From Ext. R6(d) Teacher’s
Service Register of one Moidu also, it is seen that Ammad was the
manager of Mayyannur Aided Mapila School. As such, the manager
could not succeed in his attempt to show that Ammad was the
founder manager of the school and not V.M. Krishnan Master.
Although there is no clinching evidence to show that V.M. Krishnan
Master was the founder manager, from the evidence available, it is
the most probable conclusion, in so far as there is evidence to show
that at least in 1944 he was the manager and he, later his wife
Mathu and again he were the managers of the school, successively. It
is all the more so, since the manager could not produce any evidence
to show that anybody else was the manager of the school in 1943.
Further, the case set up by the manager that Ammad was the founder
manager is clearly disproved by the counter affidavit of the DEO and
the documents available. In fact, the findings of the Government in
Ext. P9 was also that the school was established by a non-muslim, and
W.P.C. Nos.9662 & 11407/08 -: 18 :-
the Muslim Vidyabhyasa Sangham purchased the school from the
founder manager in the year 1985. As such, it can be safely
concluded that the school was established by a Hindu and not by a
minority community or any individual of a minority community.
Therefore, the first of the twin requirements for conferring minority
status on this particular school is clearly absent in this case, without
which the Government could not have validly held that the institution
is a minority institution as done in Ext. P14. Since for being eligible
for minority status an educational institution should satisfy both tests,
even if the 2nd test is satisfied, the school cannot be conferred with the
status of a minority educational institution. Therefore, it is not
necessary to examine whether the 2nd test is satisfied. Accordingly,
Ext. P14 order of the Government is quashed and it is declared that
the Mayyannur Central Mappila U.P. School, of which the 6th
respondent is the manager is not a minority institution. Consequently,
the 6th respondent is not entitled to appoint a teacher of his choice as
Headmaster of the school overlooking seniority among the eligible
teachers.
16. The next question is as to the reliefs to which the
petitioners are entitled. As far as Sri. O. Balan (the petitioner in W.P
(C) No. 9662/2008) is concerned, there is no difficulty. Admittedly,
when the vacancy of Headmaster arose in the school on 1-6-2004, he
was the senior-most teacher in the school. Although the manager
would contend that Smt. Vilasini, a graduate teacher with more than 5
years’ service and half of the service of Sri. Balan was available, who
is entitled to be promoted in preference to Sri. Balan, as per Rule 45
of Chapter XIVA of the Kerala Education Rules, the manager has not
chosen to produce any material in support of the said contention.
There is no evidence to show that Amt. Vilasini has raised such a
W.P.C. Nos.9662 & 11407/08 -: 19 :-
claim also. A Division Bench of this Court had in Ext. P6 judgment
held that if the Government find that the school is not a minority
institution, Sri. O. Balan would be entitled to get all service benefits
including pay and allowances from 1-6-2004 onwards, which is to be
borne by the institution. That judgment has become final and
therefore Sri. Balan is entitled to the fruits of that judgment, in view
of my finding that the school is not a minority institution.
17. In respect of Sri. Bhaskaran, the manager takes a
contention that since, as evidenced by Exts.R6(b) series of documents,
he was imposed with the punishment of barring of two increments for
misconducts involving financial irregularity of a very serious nature,
he is not fit for being promoted as Headmaster. He relies on Ext. R6
(c) judgment for the proposition that although promotion as
Headmaster is by seniority, the manager can take into account the
punishment to decide whether Sri. Bhaskaran is suitable for
promotion. But, it is admitted that Ext. R6(c) judgment is pending in
appeal before a Division Bench of this Court . I do not propose to
enter a finding regarding the same, since it is for the manager to
take a decision in that regard in the first instance.
18. In view of my above findings, the writ petitions are disposed
of on the following terms:
(a) Ext. P14 order in W.P(C) No. 9662/2008, which is the
same as Ext. P5 in W.P(C) No. 11407/2008 is hereby quashed.
(b) It is declared that the Mayyannur Central Mappila
U.P. School is not a minority institution, that therefore
appointment of Headmaster of the school shall only be by
promotion in accordance with Rules 43 and 45 of Chapter XIVA
W.P.C. Nos.9662 & 11407/08 -: 20 :-
of the Kerala Education Rules and that the manager cannot
appoint a teacher of his choice as Headmaster of the school in
exercise of minority rights overlooking seniority of eligible
teachers.
(c) The 6th respondent manager in W.P(C) No. 9662/2008
shall, within two weeks from the date of receipt of a copy of this
judgment, forward an appointing order promoting Sri.
O. Balan, the petitioner in that writ petition, as Headmaster of
the school, with effect from 1-6-2004, to the 4th respondent
Assistant Educational Officer. The AEO shall approve such
appointment , if the same is otherwise in order and take steps to
disburse the arrears of monetary benefits arising therefrom to
Sri. O. Balan, within one month from the date of receipt of the
appointment order. The monetary benefits so paid to Sri. O.
Balan shall be recovered from the 6th respondent-manager of the
school as directed in Ext. P6 judgment of the Division Bench.
The retirement benefits of Sri. O. Balan shall also be revised
consequentially and arrears disbursed to him within another
month therefrom.
(d) The manager shall pass orders regarding appointment
of Headmaster of the school for the period after the date of
retirement of Sri. O. Balan, in accordance with law considering
the claim of Sri. Bhaskaran also and forward the same to the
AEO for approval as expeditiously as possible, at any rate,
within one month from the date of receipt of a copy of this
judgment. The AEO shall pass orders regarding approval of such
appointment within one month from the date of receipt of the
W.P.C. Nos.9662 & 11407/08 -: 21 :-
same. If Sri. Bhaskaran is found entitled for promotion, the fact
that he has also retired from service shall not stand in the way
of his retrospective promotion for the purpose of salary and
other service benefits including pension on the basis of the
salary as applicable to Headmaster.
S. Siri Jagan, Judge.
Tds/