Sosamma v. Commissioner & Secretary to Government — 1997 DIGILAW 36 (KER)

Judgment :- Rajan, J. The petitioners are two seniormost teachers of the fifth respondent school. The above school was originally started by one P.J. Thomas. He sold the school to Rt. Rev. Benedict Mar Gregarious Arch Bishop of Trivandrum Corporate Manager, MSC Schools, Pattern. Sanction was accorded for the transfer of the management by the second respondent. The Manager of the school requested to treat the School as a separate unit and the Corporate Manager also agreed to the above request. Thus, the second respondent passed Ext. P1 order by which sanction was accorded to treat the teachers in the School of the fifth respondent who were in service on the date of transfer as a separate unit as per R.36A of Chapter XIVA KER from the date of transfer of management. 2. A vacancy of Headmaster arose in the school on 1.7.1988. The first petitioner was the seniormost teacher and therefore, she was entitled to be appointed as Headmaster in accordance with the seniority. But the Manager appointed the 6th respondent who was junior to the petitioners. The objection of the first petitioner against the appointment of the 6th respondent was rejected and the 4th respondent approved the appointment of the 6th respondent as Headmaster. The matter was taken up in revision before the first respondent. The 1st respondent as per Ext. P-4, rejected the revision petition and confirmed the approval of the appointment of the 6th respondent. Ext. P-4 is under challenge in this Original Petition. 3. Ext. P-4 relies on two grounds for rejecting the claim of the petitioners. The first ground is that the first petitioner is stated to be not fully qualified for promotion to the post of Headmaster as she had not passed the departmental test qualification. The second ground, or the primary ground is that the school is an institution established and administered by a minority community and therefore the ordinary rule of seniority need not be followed in the matter of appointment of a Headmaster. I will take up first the contention regarding the qualification of the first petitioner to be appointed as Head master. In ground D of the Original Petition it has been stated that the first petitioner has attained the age of 50 years on 1.7.1988 and therefore she was permanently exempted from acquiring the test qualification and therefore the finding in Ext. In ground D of the Original Petition it has been stated that the first petitioner has attained the age of 50 years on 1.7.1988 and therefore she was permanently exempted from acquiring the test qualification and therefore the finding in Ext. P-4 that the first petitioner had not passed the departmental test qualification is unsustainable. There is absolutely no denial of this statement in the counter affidavits filed by respondents 1, 5 and 6. Therefore, the only conclusion is that the averment in the Original Petition regarding the qualification of the first petitioner stands uncontroverted. 4. The crucial question to be decided in this Original Petition is whether the School is a minority institution which can claim the protection of Art.30 of the Constitution. In this connection, it is necessary to trace the origin of the establishment of this school. One P. J. Thomas purchased the property for the school as per Ext. P-5 sale deed dated 30.7.1964. The above sale deed has been produced as Ext. P5 by the petitioners along with the reply affidavit. There is no averment in Ext. P-5 that any other person either from the locality or from the community had contributed to the purchase of the above property. There is also no averment to the effect that the above School was established for the benefit of the community to which he belonged. Thereafter by Ext. P-6 sale deed dated 22.10.1980 the Manager of the MSC Corporate Management, Pattom, Thiruvananthapuram purchased the school and property from Sri. P.J. Thomas. The consideration for the sale was Rs. 50,000/-. The averment in Ext. P-6 sale deed is that the school was established by the vendor and he was conducting the school in his individual capacity. Thus, Ext. P-6 also does not disclose any fact which point to the establishment of the School for the benefit of the minority community. 5. The minority communities in Kerala fought many battles against the encroachment by the Government by which many of their rights were sought to be restricted. The earliest case before the Supreme Court was the one challenging the constitutional validity of the Kerala Education Bill (1959 SCR 995). Much later when the Kerala University Act, 1969 was enacted the same was again under challenge on the ground that the provisions contained in the University Act is violative of Art.30 of the Constitution of India. The earliest case before the Supreme Court was the one challenging the constitutional validity of the Kerala Education Bill (1959 SCR 995). Much later when the Kerala University Act, 1969 was enacted the same was again under challenge on the ground that the provisions contained in the University Act is violative of Art.30 of the Constitution of India. The Supreme Court while considering the above aspect in State of Kerala v. V.R.M. Provincial (1970 (2) SCC 417) 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 right 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 to 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". This Court had occasion to consider the case of a transferee management with regard to the right under Art.30 of the Constitution. In a very well considered judgment Justice K.A. Nair in Rev. No part of this management can be taken away and vested in another body without an encroachment upon the guaranteed right". This Court had occasion to consider the case of a transferee management with regard to the right under Art.30 of the Constitution. In a very well considered judgment Justice K.A. Nair in Rev. K.C. Seth v. State of Kerala (1991(2) KLT 662) held as follows: "S.2(5) of the Kerala Education Act defines 'minority schools' as not only established and administered but also schools administered by the minority. The definition of minority school in the Act is wider than what is contemplated in Art.30(1) of the Constitution. Art.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. The words "or administered" in S.2(5) of the Kerala Education Act will have to be held as ultra vires Art.30(1) of the Constitution of India. 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. Art.30(1A) also emphasises this requirement. Hence, if Art.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. S.2(5) of the Kerala Education Act has to be read down hi conformity with the requirement of Art.30 of the Constitution and, so read, the words "or administered" occurring in the sub-section will have to be ignored". The above decision was affirmed by a Division Bench of this Court in the ruling reported in Rev. K.C. Seth v. State of Kerala (1992 (1) KLT 754). 6. Thus, now it is a settled position that the words "established and administered" in Art.30 must be read conjunctively. The mere fact that the educational institutions are now being administered by minority community is not sufficient to claim protection under Art.30. They must also prove 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. Established in this context means the bringing into being of an institution. They must also prove 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. Established 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. If the minority institution is nowhere in the picture in the process of founding the institution, a subsequent entry by the minority community into the area will not help them to claim of protection by Art.30 of the Constitution. 7. In view of the above legal position emerging from the above decisions let us examine the facts of this case. Admittedly, one Sri. PJ. Thomas started the School as an individual management. It was established by purchasing the property with his own money. No philanthropic person or any other members of the minority community of the locality contributed their mite in the establishment of the school. It was only an individual adventure and not a co-operative enterprise. The Corporate Management purchased the property and the school by four sale deeds by paying consideration. In any of the sale deeds there is mention of the fact that the school was established as a minority institution or with the help of any person belonging to the minority community. 8. In the additional counter affidavit of the 6th respondent the following fact have been pleaded: "3. In the first place, the name itself shows that it was found to provide education in accordance with the spirit of the Christian religion. As St. Thomas acknowledgly the apostle of Christ who founded the church in India. Further, from the records maintained in the school, it is clear that right from the beginning, religious instruction was being imparted in the school. A true copy of the relevant extract of the attendance register showing the fact that religious instruction was imparted is produced and marked as Ext. R5(a). Further the school was inaugurated by one Rev. Fr. George Kurian, Vicar of Orthodox Syrian Church, Vakayar. Holidays were being declared on days which were considered to be of significance in terms of the X'an religion. An Example would be 29.6.1964 which was declared as a holiday being St. Peter'sday. R5(a). Further the school was inaugurated by one Rev. Fr. George Kurian, Vicar of Orthodox Syrian Church, Vakayar. Holidays were being declared on days which were considered to be of significance in terms of the X'an religion. An Example would be 29.6.1964 which was declared as a holiday being St. Peter'sday. Likewise, 3.7.1964 was declared as holiday being St. Thomas day. The school was visited on 22.7.1965 by Bishop Dr. Mathews Mar Athenasius at 9.30 am and he addressed in the morning assembly. It was also visited on 22.7.65 by the Bishop of Marmon. A true copy of the Log book for the year 1964-65 and the inspection Diary are produced herewith and marked as Exts. R5(b) and R5(c). Subsequently, also, the practice of declaring holidays on days of religious significance was being observed. Religion instruction was religiously imparted sight through as it is done today". I do not think that the name of the institution in any way establishes that it is a minority institution. The declaration of holidays and the visit of Bishop also will not improve the case of the Management. The learned counsel for respondents 5 and 6 placed much reliance on Ext. R5(a) register of attendance. Ext. R5(a) contain the names of the pupils who were studying scripture. It never mentioned in the study of Bible or any other scripture of the Christians. Moreover, a glance in the names of the students' attendance will go to show that there were students belonging to other religion or community also. Therefore, Ext. R5(a) alone cannot be the basis for coming to the conclusion that the institution is a minority institution. 9. Learned counsel for the petitioner Sri. T.S. John argued that the rulings reported in 1991 (2) KLT 662 and 1992 (1) KLT 754 squarely apply to the facts of this case. In those cases also, the institution was not established by the transferee management. It was established before coming into force of the Constitution by persons who are not Indian citizens. 10. On the other hand, learned counsel for respondents 5 and 6 Sri. K.M. Joseph relied on a decision of Justice G. Viswanatha Iyer reported in Rt. Rev. Dr. Aldo Maria Patron v. Asst. Educational Officer, Tellicherry & Ors. (1974 KLT 78). It was established before coming into force of the Constitution by persons who are not Indian citizens. 10. On the other hand, learned counsel for respondents 5 and 6 Sri. K.M. Joseph relied on a decision of Justice G. Viswanatha Iyer reported in Rt. Rev. Dr. Aldo Maria Patron v. Asst. Educational Officer, Tellicherry & Ors. (1974 KLT 78). According to me learned counsel, this Court held in the above case that even if a school previously run by some other organisation was taken over or transferred to the Church and the Church reorganizes and manages the school to cater to and in conformity with the ideals of the Roman Catholics it can be safely concluded that the school had been established by the Roman Catholics. In order to understand the above conclusion it is advantageous to refer the background of the above transfer of school as detailed in Paragraph 4 of the above judgment, which reads as follows: "4. In order that the petitioners may claim protection under Art.30(1) of the Constitution they will have to show that the school is established and administered by a religious minority. It is not disputed that Roman Catholics of Kerala form a religious minority community. But that is not enough. It has to be shown that the school is established and administered by this religious minority. St. Peter's Church, Chalil, Tellicherry, is a Roman Catholic Church. The school is situated within the church compound and bears the name of the patron of the church. It is admitted that the school was established in 1891. In the original petition, the petitioners stated that the school was established and is administered by the Catholic Diocese of Calicut of which the 1st petitioner is the Bishop. It is further stated that the school was established by the Bishop of Calicut for the purpose of giving Catholic education to Catholic students although students of other communities are also admitted to the school. The Catholic Diocese of Calicut was formed in 1923 only. This is also not in dispute. From this the respondents took up the stand in their counter-affidavits that the claim of the petitioners that the school was established by the Catholic Diocese of Calicut is unsustainable. Until 1923, this area where the school is situate was part of the Catholic Diocese of Mangalore. This is also not in dispute. From this the respondents took up the stand in their counter-affidavits that the claim of the petitioners that the school was established by the Catholic Diocese of Calicut is unsustainable. Until 1923, this area where the school is situate was part of the Catholic Diocese of Mangalore. The petitioners' answer in the reply affidavit is that the church and the school established by the Catholic Diocese of Mangalore were passed on to the Catholic Diocese of Calicut when the Mangalore Diocese was bifurcated in 1923 into the catholic Diocese of Mangalore and Catholic Diocese of Calicut, and that their statements in the original affidavit that the school was established and is administered by the Catholic Diocese of Calicut was intended only to mean that the School belongs to the Roman Catholics now forming the Catholic Diocese of Calicut. In the reply affidavit full particulars of the original Catholic Diocese of Mangalore, its bifurcation in 1923 and the functioning of the Catholic Diocese of Calicut separately from that of Mangalore are all stated clearly. Though the respondents have filed supplementary counter -affidavits after this reply affidavit was filed, this fact is not disputed. So, the petitioners' explanation in this regard can be accepted". Thereafter the learned judge held that the petitioners on whom the burden of proving that the school is established and administered by the minority community has satisfactorily proved that fact. Therefore, the above conclusion was really based on the factual finding entered into earlier. 11. The learned counsel also relied on another decision of this Court by Justice Bhaskaran (as he then was) reported in Unnimoyin Kutty v. Asst. Educational Officer (1983 KLT 121). The learned judge referred to paragraph 5 of the judgment which reads as follows: "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. 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 conies 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 CM. of Schools (1970 KLT 106 would support this view". Thus it is very clear that there must be evidence to prove that the institution was established and administered for the benefit of the minority irrespective of the fact that it was started by an individual of the community. 12. In this connection, it is very much advantageous to refer to yet another decision of this Court by Justice Eradi (as he then was) reported in Manager, Rajershi Memorial Basic Training School v. State of Kerala & Ann (1972 KLT 920). Paragraphs 3 and 4 of the above judgment are reproduced below : "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. 4. In this case, the name given to the school is of some significance because the school has been named after a former Maharaja of Cochin if at all any inference can possibly be drawn from the said circumstance it is only that the institution was one intended for the general benefit of all the citizens of the locality. 4. In this case, the name given to the school is of some significance because the school has been named after a former Maharaja of Cochin if at all any inference can possibly be drawn from the said circumstance it is only that the institution was one intended for the general benefit of all the citizens of the locality. There is no evidence placed before this Court to show that the local church or the parishioners attached to church or the Christian community were in any manner associated with the founding of the school or its day to day subsequent administration; nor is it made out that any activity is carried on in the institution which is intended to promote the object of conserving the religion or culture of the particular minority. On the materials now available before this Court I do not find it possible to conclude that the petitioner's institution is a minority institution entitled to protection under Art.30 ) of the Constitution. The original petition is dismissed on this limited grounds." applying the principles enunciated in the above rulings respondents 5 and 6 are not entitled to any protection under Art.30 of the Constitution of India. The pleadings and the proof in this case do not show that the Christian community in the locality was in any way associated with the establishment of the School or its administration. There is also no averment much less evidence to prove that the establishment of the school was for the purpose of conserving religion, or culture of the minority community. 13. Yet another factor which is also material to consider whether the institution is a minority institution is that this school was treated as separate unit and did not form part of the Corporate Management of the MSC Schools, Pattom, Thiruvananthapuram. That will also go to show that the fifth respondent school was allowed to maintain its individual status without merging into the Corporate Management. 14. Under these circumstances, I quash Ext. P-4 order and declare that the first petitioner is entitled to be considered for appointment as the headmaster in accordance with her seniority and qualification in the vacancy which arose on 1.7.1988. The first petitioner had now retired. 14. Under these circumstances, I quash Ext. P-4 order and declare that the first petitioner is entitled to be considered for appointment as the headmaster in accordance with her seniority and qualification in the vacancy which arose on 1.7.1988. The first petitioner had now retired. Therefore, her retirement benefits and other emoluments must be worked out and paid as if she is entitled to be appointed as Headmistress on 1.7.1988 in the School of the 5th respondent. On the retirement of the first petitioner, the second petitioner claims that he is the next seniormost teacher to be considered for appointment to the above post. The second petitioner is due to retire on 31.3.1997. Therefore, consequential orders must be passed by the fourth respondent in compliance with the observations and directions in this judgment within one month from the date of receipt of a copy of this judgment. Original petition is allowed as indicated above.