K. Raju Varghese v. State of Kerala — 1984 DIGILAW 321 (KER)

JUDGMENT P.C. Balakrishna Menon, J. 1. Both these writ petitions are for the same relief, to quash the Government Order dated 33-1980 holding that the K. M. U. P. School, Mallassery, Pathanamthitta is not a minority school entitled to the protection of Art.30 (1) of the Constitution. O. P. No. 1981 of 1980 is by the Manager of the school and O. P. No. 788 of 1980 is by the person appointed by the Manager as Headmaster of the school. The parties are referred to in this judgment according to the array of parties in O. P. No. 1981 of 1980 and the facts are stated with reference to the documents produced therein. The petitioner, while he was a Deacon of the Orthodox Church, established the school in the year 1932. The land and the buildings belong to him and he is the Manager of the school right from its inception. The post of Headmaster in the school fell vacant in the year 1972. The Manager appointed the 4th respondent, a teacher in the school, as Headmaster superseding the 3rd respondent who is admittedly senior to the 4th respondent. Incidentally it is to be stated that the 4th respondent is the son of the Manager. But, according to him, what persuaded him to appoint the 4th respondent as Headmaster was to keep up the institution as one established an administered for the benefit of the Christian community which is a religious minority entitled to the protection of Art.30 (1) of the Constitution. The appointment of the 4th respondent as Headmaster of the school was objected to by the 3rd respondent and the matter reached the Government on an earlier occasion when it passed Ext. P1 order dated 25-5-1974 holding that the institution concerned is a minority school and the Manager was free to appoint the Headmaster of his choice irrespective of the question whether there are qualified seniors available in the school or not. The 3rd respondent challenged Ext. P1 order of Government before this Court in O. P. No. 2475 of 1974 and a learned Judge of this Court by Ext. P2 judgment dated 19-3-1975 quashed Ext. P1 order and directed the 2nd respondent the Assistant Educational Officer to consider the question afresh after affording the parties an opportunity to adduce evidence and prove their respective case. P1 order of Government before this Court in O. P. No. 2475 of 1974 and a learned Judge of this Court by Ext. P2 judgment dated 19-3-1975 quashed Ext. P1 order and directed the 2nd respondent the Assistant Educational Officer to consider the question afresh after affording the parties an opportunity to adduce evidence and prove their respective case. The Assistant Educational Officer after hearing the Manager and respondents 3 and 4, and after considering the evidence adduced in the case passed Ext. P3 order dated 15-3-1976 declaring that the institution is a minority institution and approving the appointment of the 4th respondent as Headmaster of the school, In revision the Government as per Ext. P6 order dated 3-3-1980, on a re-appraisal of the evidence, has held that the institution in question is not a minority institution, it is owned and possessed by the Manager, and it is not shown that the institution is established and administered for and on behalf of the minority community or for its benefit. Accordingly the Government set aside Ext. P3 order of the Assistant Educational Officer and directed the Manager to appoint a Headmaster in the school in accordance with R.44 of Chapter XIV A of the K. E. R. 2. Even though the 2nd respondent Assistant Educational Officer had issued notice to the Manager as well as to respondents 3 and 4, and had also afforded all of them an opportunity to adduce evidence and prove their case, no notice of the revision was issued by the Government to the 4th respondent, nor was he made a party to the revision before the Government filed by the 3rd respondent. 3. If the institution is proved to be a minority institution entitled to the protection of Art.30(1) of the Constitution, the right of the Manager to appoint a Headmaster of his choice cannot be questioned. The principal question, therefore, in this case before the statutory authorities was as to whether the institution is proved to be one established and administered by or on behalf of the minority community or for its benefit. If the educational institution is owned and possessed by the Manager, he is entitled to transfer not merely his right of management, but also the land and buildings where the school is established at his free will. If the educational institution is owned and possessed by the Manager, he is entitled to transfer not merely his right of management, but also the land and buildings where the school is established at his free will. All that the K.E.R. enjoins is that a transfer of management will be effective only after the Department approves the transfer. It is also open to the petitioner Manager to close down the school if he does not want the establishment to be continued. It cannot, however, be said that merely for the reason that the institution is established and administered by an individual, it cannot be a minority institution entitled to the protection of Art.30(1) of the Constitution. If it is shown that the institution, though established and administered by an individual, is either on behalf of the minority or for its benefit, it is entitled to protection of Art.30(1). This Court in Rajershi Memorial Basic Training School v. State of Kerala ( 1972 KLT 920 at page 922) states as follows:- "3. 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 in 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." In the decision in Haneefa v. Manager, M. A. S. M. High School, Venmanad (ILR 1976 (2) Ker. 532) it is stated at P.539 as follows:- ".........The school is managed by an individual and in that management the community has no control. This Court had occasion to consider the factors which have to be established to make out that an institution is established and administered by a minority community. 532) it is stated at P.539 as follows:- ".........The school is managed by an individual and in that management the community has no control. This Court had occasion to consider the factors which have to be established to make out that an institution is established and administered by a minority community. In Rajershi Memorial Basic Training School V. State of Kerala and another it has been laid down, following the decisions of the Supreme Court, that the mere fact that the school was founded by a person belonging to a particular religious persuasion is not at all conclusive of the question whether the institution is really one entitled to the protection guaranteed under Art.30(1) of the Constitution. It was stated that it must be shown that the institution is established and administered by or on behalf of the particular community. In Rt. Rev. Dr. Aldo Maria Patroni v. Assistant Educational Officer, Tellicherry one of us had occasion to consider the factors which would go to make out that an institution is established and administered by a minority community There was absolutely no material for the Government to conclude that the institution managed by the 1st respondent is an institution established and administered by the minority community. Therefore, the conclusion of the Government regarding the character of the institution cannot be supported." In State of Kerala v. Mother Provincial ( AIR 1970 SC 2079 ) the 'Supreme Court held as follows:- "8. Art.30(1) has been construed before by this Court. Without referring to those cases it is sufficient to say that the clause contemplates two rights which are separated in point of time. The first right is the initial tight to establish institutions of the minority's choice. Establishment here means the bringing into being of an institution and it must be by a minority community. It matters not if a single philanthropic individual with his own means, founds the institution or the community at large contributes the funds. The position in law is the same and the intention in either case must be found an institution for the benefit of a minority community by a member of that community. It is equally irrelevant that in addition to the minority community others from other minority communities or even from the majority community can take advantage of these institutions. The position in law is the same and the intention in either case must be found an institution for the benefit of a minority community by a member of that community. It is equally irrelevant that in addition to the minority community others from other minority communities or even from the majority community can take advantage of these institutions. Such other communities bring in income and they do not have to be turned away to enjoy the protection. 9. The next part of the right relates to the administration of such institutions. Administration means 'management of the affairs of the institution, This management must be free of control so that the founders or their nominees can mould the institution as they think fit, and in accordance with their ideas of how the interests of the community in general and the institution in particular will be best served. No part of this management can be taken away and vested in another body without an encroachment upon the guaranteed right." A Learned Judge of this Court in Unnimoyin Kutty V. Asst. Educational Officer ( 1983 KLT 121 ) stated at page 122:- "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." 4. It would thus appear that an institution to come under the protection of Art.30(1) of the Constitution need not necessarily be one established and administered by a minority community. It may well be one established and administered by an individual on behalf of the minority. It would thus appear that an institution to come under the protection of Art.30(1) of the Constitution need not necessarily be one established and administered by a minority community. It may well be one established and administered by an individual on behalf of the minority. The protection under Art.30(1) will also be available to an institution established and administered for the benefit of a minority community in which case it would be necessary to show a dedication of the institution for the benefit of the community. There will be no difficulty in deciding the question of protection under Art.30(1) of the Constitution in a case where an institution is established and administered by a minority or by someone on its behalf. If, on the other hand, the case put forward is only that it is established and administered for the benefit of the minority community; the element of dedication for the benefit of the community should also be made out. If the minority has a right to demand the benefits, it will be a case where it can be easily held that the institution is established for the benefit of the minority. 5. I would not have normally interfered with the finding of the Government in revision that the institution is not proved to be one established and administered by the minority, but for the fact that the 4th respondent who is vitally affected by the decision of the Government had no notice of the proceedings and had also no opportunity to put forward his case before the revisional authority. He was a party to the proceedings before the Assistant Educational Officer who passed Ext. P3 order, the effect of which is to approve his appointment as Headmaster of the school. That order is set aside by the revisional order Ext. P6 without notice to him upsetting his appointment and directing a fresh appointment by the Manager in accordance with R.44 of Chap.14A of the K E. R. 6. It is submitted by learned counsel for the 3rd respondent that there is no prejudice caused to the 4th respondent for want of notice of the revision to him, the only question before the Government was as to whether the institution is a minority school failing under Art.30(1) of the Constitution and that question was decided after hearing the Manager as well as the contesting 3rd respondent. The 4th respondent can have no better case to plead than what was urged by the Manager before the Government. It is for this reason that counsel submits that there is no prejudice to the 4th respondent for want of notice of the revision to him. I find it difficult to accept this argument. The 4th respondent obtained the benefit of Ext. P3 order which had the effect of confirming his appointment as Headmaster of the school and that order in his favour is set aside without notice to him and without giving him an opportunity for sustaining the order. In the decision of the Supreme Court in C. A. T. A. Sales Coop. Socy. V. A. P. Govt. ( AIR 1977 SC 2313 ) it is stated thus at page 2318:- "21. As mentioned earlier in the judgment the Government did not give any notice communicating to the appellant about entertainment of the application in revision preferred by the respondents Even though the appellant had filed some representations in respect of the matter, it would not, absolve the Government from giving notice to the appellant to make the representation against the claim of the respondents. The minimal requirement under S.77(2) is a notice informing the opponent about the application and affording him an opportunity to make his representation against whatever has been alleged in his petition. It is true that a personal hearing is not obligatory but the minimal requirement of the principles of natural justice which are ingrained in S.77(2) is that the party whose rights are going to be affected and against whom some allegations are made and some prejudicial orders are claimed should have a written notice of the proceedings from the authority disclosing the grounds of complaint of other objection preferably by A furnishing a copy of the petition on which action is contemplated in order that a proper and effective representation may be made. This minimal requirement can on no account be dispensed with by relying upon the principle of absence of prejudice or imputation of certain knowledge to the party against whom action is sought for." In the decision of the Supreme Court in S. L. Kapoor v. Jagmohan ( AIR 1981 SC 136 ) it is held that the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non observance of natural justice is itself held to be sufficient prejudice and proof of prejudice independently of denial of natural justice is unnecessary. 7. For the aforesaid reasons I am clearly of the view that Ext. P6 order is vitiated for violation of the principles of natural justice in not having afforded the 4th respondent an opportunity to put forward his case. I therefore, quash Ext. P6 and direct the Government to consider and pass appropriate orders afresh after issuing notice to the petitioner and respondents 3 and 4 and after affording them an opportunity to present their case before, it. Since the principal question in this case relates to the right to the post of Headmaster in the school which fell vacant as early as in 1972, the Government is directed to dispose of the matter within three months from the date of receipt of a copy of this judgment by it. Both the Original Petitions are allowed to the extent indicated above. There will be no order as to costs.