Rt. Rev. K. C. Seth v. State of Kerala — 1992 DIGILAW 118 (KER)

JUDGMENT : P. Krishnamoorthy, J. Writ Appeal Nos. 932 of 1991 and 270 of 1992 are appeals against the judgment in O.P.No. 9158 of 1989, the former by respondents 2, 3 and 4 in the O.P. who represent a Corporate Management and the latter by the State. W.A.No.923of 1991 is against the judgment in O.P.No. 7020 of 1989 by the petitioners therein. These two Original Petitions were disposed of together by the learned Single Judge, the question involved being the same. O.P.No. 7020 of 1989 was filed by the Educational Agency known as the North Kerala C.S.I. Educational Agency. The relief sought for in that O.P. was to quash a circular Ext.P3 dated 17-4-1989 issued by the Government to the effect that all educational institutions must follow Rule 44 of Chapter XIV-A of the Kerala Educational Rules in the appointment of Headmasters and also for a declaration that the educational institutions run by the petitioners are ‘minority schools’ as defined in S.2(5) of the Kerala Education Act. Petitioner in O.P.No.9158 of 1989 is a teacher in one of the institutions under the petitioners in O.P.No.7020 of 1989. He got himself impleaded as the 4th respondent in that O.P. as well. O.P.No.9158of 1989 was to quash Ext. Pl order by which the 4th respondent therein was appointed as Headmaster. The further relief claimed in that O.P. was to appoint the petitioner as Headmaster of the school at Calicut and not to approve the appointment of the 4th respondent as Headmaster.The fate of both the Original Petitions will depend upon the question as to whether the Educational Agency in the case is a minority institution entitled to protection under Art.30 of the Constitution of India. 2. In both the cases relevant pleadings were filed and after hearing them together, in O.P.No.7020 of 1989 the learned Single Judge held that it is not necessary to quash Ext.P3, in view of the fact that it was already quashed by a Division Bench of this Court, as per the decision reported in Manager, Corporate E. Agency v. State of Kerala ( 1990 (2) KLT 240 ), in so far as it related to minority institutions entitled to protection under Art.30. It was also declared by the learned Judge that the school in question is not a minority school entitled to protection under Art. 30(l) of the Constitution of India. It was also declared by the learned Judge that the school in question is not a minority school entitled to protection under Art. 30(l) of the Constitution of India. It was further held that the definition of ‘minority schools’ contained in S.2(5) of the Kerala Education Act is wider than what is intended under Art.30 and accordingly the words “or administered” in S.2(5) have to be read down. 3. In O.P.No.9158 of 1989, on the finding that the school in question is not a minority institution, the learned Judge held that R.44 of Chapter XIV-A of K.E.R, has to be strictly applied in the matter of appointment of Headmaster and that the petitioner being senior to the 4th respondent therein is entitled to be promoted to the post of Headmaster which fell vacant on 31-3-1989 in preference to the 4th respondent. In that view of the matter, Ext.Pl order was quashed and respondents 2 and 3 were directed to make appointment to the post of Headmaster in accordance with R.44 of Chapter XIV-A of the Kerala Education Rules, taking into account the claim of the petitioner. 4. The Educational Agency has filed these two appeals against the common judgment, challenging the finding of the learned Single Judge that the school in question is not a minority institution. 5. The State has filed W.ANo.270 of 1992 against the finding of the learned Single Judge that S.2(5) of the Act has to be read down in accordance with the protection granted to minority schools under Art.30. 6. At the outset it has to be stated that the question as to the interpretation of the definition of ‘minority schools’ in S.2(5) of the Kerala Education Act does not arise at all in these two eases. It is no doubt true that there is a prayer in O.P.No.7020 of 1989 for declaring the school as a minority school as defined in S.2(5) of the Act. The only question that is to be considered in these cases is as to whether the management is bound to follow the provisions contained in R.44 of Chapter XIV-A in the matter of appointment of Headmaster. The only question that is to be considered in these cases is as to whether the management is bound to follow the provisions contained in R.44 of Chapter XIV-A in the matter of appointment of Headmaster. It was not disputed by counsel for the management that unless and until they are able to establish that the educational institution in question is a minority school coming within the purview of Art.30 of the Constitution, they are also bound by the provisions contained in R.44 of Chapter XIV-A The Education Act as such does not give any special protection to minority schools from the rigour of R.44 and the educational institution in question will have to strictly follow the rule laid down therein unless and until it is established that it is a minority institution entitled to protection under Art.30 of the Constitution, In that view of the matter, it is not necessary to consider as to whether the school in question is a minority school as mentioned in S.2(5) of the Kerala Education Act and that question is left open. 7. The learned single Judge, in an analysis of the evidence available in the case, came to the conclusion that the school in question is not a minority institution coming within the purview of Art.30of the Constitution of India, and the appointment of Headmaster made in violation of R.44 of Chapter XIV-A was quashed. It is that finding that is mainly challenged in the two appeals filed by the management. It is.well established by a series of decisions of the Supreme Court that in order to claim protection under Art.30(l) of the Constitution, it is necessary that the institution claiming the benefit must affirmatively plead and prove that it is established and administered by minorities, whether based on religion or language. The words “established and administered” occurring in Art.30 must be read conjunctively. See Azeez Basha v. Union of India ( AIR 1968 SC 662 ), State of Kerala v. Mother Provincial AIR 1970 SC 2079 and S.P. Mittal v. Union of India ( AIR 1983 SC 1 ). The question as to whether the educational institution run by the Educational Agency in question is a minority institution coming within the purview of Art.30(l) of the Constitution of India has come up for consideration before this Court on a previous occasion. One of such judgments is Ext. The question as to whether the educational institution run by the Educational Agency in question is a minority institution coming within the purview of Art.30(l) of the Constitution of India has come up for consideration before this Court on a previous occasion. One of such judgments is Ext. R3(a)-judgment in O.P.No.5938 of 1983, dated 3-12-1986, by a learned Single Judge. Therein, the learned Judge held that since the educational institution is not shown to have been established and administered by a minority community, it is not entitled to any exemption from the provisions contained in S.60(7) of the Calicut University Act. In Writ Appeal No. 194 of 1987, a Division Bench of this Court confirmed the above judgment - Ext.P3 dated 2-7-1987 in O.P.No.9158of 1989. So also, in O.P.No.3626of 1987 (Ext.P4 dated 30-9-1987), following the aforesaid judgment it was held that the management in question is not entitled to protection of Art.30(l) of the Constitution of India. The judgment was also confirmed by a Division Bench in W.A.No.986 of 1987 (Ext.P5). Against the judgment in W.A.No.986 of 1987, the management filed Special Leave Petition before the Supreme Court in which the Supreme Court observed as follows:- “In view of the fact that the concerned employee has been reinstated by the institution, it is not necessary to interfere in this matter at this stage except to say that I express no opinion regarding the view taken by the Single Bench and the Appellate Bench of Kerala High Court that Malabar Christian College is not a minority institution. That question is left open. With these observations, the Special Leave Petition is dismissed.” 8. Though that question was left open by the Supreme Court and this case arose before this Court after the order of the Supreme Court, the pleadings are silent regarding the origin of the educational institutions in Kerala. Counsel for the teacher has taken the definite stand that though the institutions are now being administered by a minority community, they were not established by a minority community so that they are not entitled to claim protection under Art.30(l) of the Constitution. No details are given either in O.P.No.7020 of 1989 or in the counter-affidavit filed by the management in O.P.No.9158ofl989. No details are given either in O.P.No.7020 of 1989 or in the counter-affidavit filed by the management in O.P.No.9158ofl989. In the Original petition filed by the teacher and also in thecounter-affidavit filed in the connected O.P., they have clearly alleged as to how these institutions were established in Kerala which the learned Judge has quoted in extenso and it is not necessary to reproduce the same in this judgment. It is evident from the allegations in the counter-affidavits that the institutions were established by the Basel Evangelical Mission Society in Basel in Germany, which is a Christian mission. It is also seen that they carried on Mission activities in Malabar and South Kanara and other places. In the course of time, they came to own properties which were classified as Mission properties and church properties and they also established several educational institutions in Malabar and South Kanara. The subsequent devolution of ownership as also management is also stated in the counter-affidavit, from which it is clear that it was originally established by the Basel Evangelical Mission Society in Basel in Germany, though no doubt the present management is by a section of the minority community. As stated earlier, the mere fact that the educational institutions are now being administered by a minority community is not sufficient to claim protection under Art.30, but they must also prove that they were established by a minority community. 9. From the evidence it has come out that these institutions were established by the Basel Evangelical Mission Society in Basel in Germany, a Christian Mission. Counsel for the management contended that the educational institutions being established by the Christian Mission which is admittedly a minority community, it has to be taken that they are established by a minority community. But, on the other hand, counsel for the petitioner in O.P.No.9158 of 1989 contended that they were established by foreigners, namely, Germans, who became even aliens firing the first and second World Wars. The question to be considered is as to whether the establishment by foreign residents is sufficient to claim protection under Art. 30(1) of the Constitution of India. 10. In S.K. Patra v. State of Bihar ( AIR 1970 SC 259 ), considering the identical question, the Supreme Court observed as follows:- “19. The question to be considered is as to whether the establishment by foreign residents is sufficient to claim protection under Art. 30(1) of the Constitution of India. 10. In S.K. Patra v. State of Bihar ( AIR 1970 SC 259 ), considering the identical question, the Supreme Court observed as follows:- “19. It is unnecessary to enter upon an enquiry whether all the persons who took part in establishing the school in 1854 were “Indian Citizens”. Prior to the enactment of the Constitution there was no settled concept of Indian citizenship, and it cannot be said that Christian Missionaries who had settled in India and the local Christian residents of Bhagalpur did not form a minority community. It is true that the minority competent to caim the protection of Art.30(l)and on that account the privilege of establishing and maintaining educational institutions of its choice must be a minority of persons residing in India. It does not confer upon, foreigners not resident in India the right to set up educational institutions of their choice.Persons setting up educational institutions must be resident in India and they must form a well-defined religious or linguistic minority. It is not however predicated that protection of the right guaranteed under Art.30 may be availed of only in respect of an institution established before the Constitution by persons born and resident in British India.” But on the facts of the case their Lordships came to the conclusion that the extract from the Record Book clearly showed that the local residents of Bhagalpur had taken a leading role in establishing and maintaining the school. In that context it was held by their Lordships that though assistance was undoubtedly obtained from other bodies including the Church Missionary Society, London, the school was set up by the Christian Missionaries and the local Christian residents of Bhagalpur -with the aid of funds part of which was contributed by them. In that view of the matter, it was held that the particular institution will come within the purview of Art.30. 11. An identical question was considered by their Lordships of the Supreme Court in a recent case- St. Stephen’s College v. The University of Delhi (JT 1991 (4) SC 548). In that view of the matter, it was held that the particular institution will come within the purview of Art.30. 11. An identical question was considered by their Lordships of the Supreme Court in a recent case- St. Stephen’s College v. The University of Delhi (JT 1991 (4) SC 548). After considering all the earlier decisions on the question, the following observations were made at page 565:- “It should be borne in mind that the words “establish” and “administer” used in Art.30( 1) are to be read conjunctively. The right claimed by a minority community to administer the educational institution depends upon the proof of establishment of the institution. The proof of establishment of the institution, is thus a condition precedent for claiming the right to administer the institution. Prior to the commencement of the Constitution of India, there was no settled concept of Indian citizenship. This Court, however, did reiterate that the minority competent to claim the protection of Art.30(l) of the Constitution, and on that account the privilege of establishing and maintaining educational institutions of its choice, must be a minority of persons residing in India. They must have formed a well-defined religious or linguistic minority. It does not envisage the rights of the foreign missionary or institution, however, laudable their objects might be. After the Constitution, the minority under Art.30 must necessarily mean those who form a distinct and identifiable group of citizens of India. Whether it is “old stuff’ or “new product”, the object of the institute should be genuine, and not devices or dubious.” (emphasis supplied) On the facts of the case the Supreme Court found that the St. Stephen’s College was established by the Cambridge mission with the assistance of the members of the SPG who were residents in India. 12. From the aforesaid decision of the Supreme Court it is clear that in order to claim protection under Art.30(1l) of the Constitution, if the institutions were established before the coming into force of the constitution, they should have been established by persons residing in India, if they are established after the coming into force of the Constitution, they should be by Indian citizens. As stated earlier, though this Court on two earlier occasions held against the management on the question of protection under Art.30(l) of the Constitution, the Supreme Court left open that question; in spite of that therei are no materials placed before Court to come to the conclusion that the educational institutions were established by persons who were residing in India. From the available material, the only inference possible is that the institutions were established by the Basel Evangelical Mission Society in Basel in Germany. No other details are available. As in the reported case before the Supreme Court there is absolutely no evidence or material to show that any person residing in India contributed any money for the establishment of the institutions. On the other hand, the fact that the mission properties were taken over by the Custodian of Enemy property during World War No.l would clearly indicate that the institutions were established by foreigners. On evaluating the entire materials available in the case, the learned Judge was perfectly right in coming to the conclusion that the appellants have not established that the educational institutions were established by a minority community and as such they are not entitled to the protection under Art.30(l) of the Constitution of India. If that be so, the view taken by the learned Single Judge has only to be confirmed. 13. Before parting with the case it has to be observed that in the counter-affidavit filed in O.P.No.7020 of 1989 the respondents had clearly stated as to how the educational institutions were established and also regarding the devolution of ownership and management in respect thereof. Admittedly, the documents must be in the possession of the management. In spite of obtaining an order from the Supreme Court leaving open the question as to whether the institutions are minority institutions, they have not produced any of those documents which may throw a light on the establishment of the institutions. In such circumstances, an adverse inference can be taken against them to the effect that if the documents were produced they will be against the case set up by them. There are no materials before us to come to the conclusion that these institutions were established by a minority community who were residents of India at that time. 14. In view of what is stated above, Writ Appeal Nos. 923 and 932 of 1991 are dismissed. There are no materials before us to come to the conclusion that these institutions were established by a minority community who were residents of India at that time. 14. In view of what is stated above, Writ Appeal Nos. 923 and 932 of 1991 are dismissed. In Writ Appeal No.270 of 1992, the only question is the interpretation of S.2(5) of the Kerala Education Act. We have already held that it is not necessary to decide that question on the facts of this case. Accordingly, Writ Appeal No.270 of 1992 is disposed of with the observation that the aforesaid question is left open. The parties will bear their costs. Dismissed.