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1983 DIGILAW 7 (KER)

UNNIMOYIN KUTTY v. ASST. EDUCATIONAL OFFICER

1983-01-06

K.BASKARAN

body1983
Judgment :- 1. The petitioner, Sri. N. P. Unnimoyin Kutty, is the Manager of P. M. S. A. P. T. M. A M. L. P. School, Chevittanikunnu. By Ext. P7 order dated 20-11-1980 the petitioner was told by the 1st respondent, the Assistant Educational Officer, Kondotty that Ext. P5 order dated 19-5-1980 whereunder it was declared that the school in question was a minority institution as defined in S.2 clause (5) of the Kerala Education Act entitled to the benefits of Art.30(1) of the Constitution of India was null and void as according to him it was not supported by any provisions in the Kerala Education Rules as stated by the District Educational Officer in her letter No. 8290/80 dated 30-10-1980. 2. Sri. P.K. Shamsuddin, the counsel for the petitioner submitted that the petitioner is a Muslim. He started the school utilising his own funds. He had sought permission for starting a Mappila School. The school is founded in memory of a spiritual leader Pookoya Thangal. The counter affidavit filed by the State shows that out of the 117 pupils in the particular year 105 were Muslims. The school was following the Muslim calendar, observing Fridays as holidays and treating Ramzan period as vacation. According to him the school was started for the benefit of the Muslim minority community. He would therefore submit that R.44 and 45 of Chapter XIV-A of the KER. would not be a bar against the said Mohammed being appointed as Headmaster or teacher-in-charge of the school though the 4th respondent bad service for a larger period in the school in question. 3. Sri. Prakasam, the counsel for the 4th respondent, submitted that on the petitioner's own showing the school was established by an individual; and except for the averments made in the writ petition and the affidavit in support thereof, there is nothing to indicate that it was established or administered by or on behalf of a minority community. 3. Sri. Prakasam, the counsel for the 4th respondent, submitted that on the petitioner's own showing the school was established by an individual; and except for the averments made in the writ petition and the affidavit in support thereof, there is nothing to indicate that it was established or administered by or on behalf of a minority community. According to him the benefit of protection under Art.30(1) of the Constitution would not be extended to cases where the individuals come forward to start institutions He also submitted that in places where the majority of the pupils available to study are persons belonging to a minority community by that fact alone the school would not become a minority school entitled to the benefits of Art.30(1) of the Constitution, unless it is also shown that the institution was started and administered by or on behalf of the community. Reliance was placed in support of this argument on the decision of this Court in Rajershi Memorial B. T, School v.. State (1972 KLT. 920) wherein Eradi J., as he then was, observed in Para.3 at page 922 as follows: "In order that the petitioner should succeed in her claim based on Art.30(1) of the Constitution she has to prove by production of satisfactory evidence that the school in question is one established and administered by a minority whether based on religion or language. The only material which she has produced before this Court is this regard consists of the averments contained in the original petition and the supporting affidavit filed by the petitioner. The mere fact that the school was founded by a person belonging to a particular religious persuasion is not at all conclusive on this matter. The institution must be shown to be one established and administered by or on behalf of the particular minority community." The observations in the passage extracted above would not be applicable to the facts of the case on hand. The institution must be shown to be one established and administered by or on behalf of the particular minority community." The observations in the passage extracted above would not be applicable to the facts of the case on hand. It was stated by Eradi J., in Para.4 of the judgment in that case that the name given to the school was of some significance as it was named after a former Maharaja of Cochin, from which, if any inference could be possible be drawn from the said circumstance it was only that the institution was one intended for the general benefit of all the citizens of the locality; there was also no evidence placed before the Court to show that the local church or the parishioners attached to the church or the Christian community were in any manner associated with the founding of the school or its day to day subsequent administration; nor was it made out that any activity was carried on in the institution which was intended to promote the object of conserving the religion or culture of the particular minority. 4. We find in this case that not only the school was started by a Muslim, namely, the petitioner who belongs to that community, but also in the application for sanction of the school it was categorically stated that it was intended to be a minority school (Mappila school). It was founded in memory of Pookoya Thangal a spiritual leader of the Muslim community. The school follows the Muslim calendar, observing Fridays as holidays and treating the Ramzan period to be the long vacation. No doubt even in the case of the institutions which are not strictly minority schools, as permitted by R.4 (3) of Chapter VII K. E. R., schools in which the majority of the staff or pupils are Muslims may have Fridays as holidays instead of Saturdays which may be working days, irrespective of the fact that it is a minority school or a school of general character; even then, the fact that most of the pupils in a school, which was sanctioned to be a Mappila school, and for that school Ramzan period is the long vacation deserves to be taken into consideration along with other circumstances in deciding the character of the institution. 5. 5. In deciding whether an institution is a minority institution or not, all the attending circumstances concerning its establishment and also of its administration have to be considered. Merely for the reason that the institution was established by an individual of the community, not by a community as a whole as a representative body, it would not necessarily mean that it is not a minority institution. The real test is whether the institution is established and administered for the benefit of the minority irrespective of the fact that it is started by an individual of the community or by an organisation representing the community or the school comes under a corporate management or individual management. The decision of the Supreme Court in State of Kerala v. Mother Provincial (1970 KLT. 630) and this Court in State of Kerala v. Manager C. M. of Schools (1970 KLT. 106) would support this view. 6. Taking the facts and circumstances of the case I have no hesitation in holding that the school in question is a minority institution and that the provisions of R.44 and 45 of Chapter XIV-A of the KER. would not be applicable to it. In that view the action taken by the 1st respondent the Assistant Educational Officer in issuing Ext. P7 order dated 20-11-1980 declaring that an earlier order, Ext. P5, dated 19-5-1980 issued by him, and holding that the school was a minority institution as defined in R.2(5) of the KER., entitled to the benefits of Art.30(1) of the Constitution of India, is null and void, cannot be sustained. 7. For the foregoing reasons I allow the writ petition quashing Ext. P7 order passed by the 1st respondent and upholding Ext. P5. There will be no order as to costs. A carbon copy of this judgment may be granted to the Government Pleader free of charge and to the counsel for the petitioner and the counsel for the 4th respondent on usual terms, if applied for in that behalf.