Research › Search › Judgment

Kerala High Court · body

2019 DIGILAW 286 (KER)

Corporate Manager, St. Roch's Hs/Tti/Lps v. State of Kerala

2019-03-25

K.VINOD CHANDRAN, V.G.ARUN

body2019
JUDGMENT : Arun, J. The appellant in both the Writ Appeals is the Corporate Manager of the St. Roch's Group of Educational Institutions, Thope and the Headmistress of the St. Roch's High School, Thope, an educational institution under the Corporate Management. The question that arise for consideration in these appeals is whether, the minority status granted to one educational institution under a Corporate Management having multiple educational institutions would inure to the benefit of the other educational institutions under that Management or in other words, whether conferment of minority status to one educational institution under it would render the Corporate Management a minority educational agency. 2. The short facts leading up to the Writ Appeals are as under: - For the purpose of identification the parties are described as per their status in W.A.No.802 of 2019. The first appellant had posted the second appellant as Teacher in-charge at the St. Roch's High School, Thope from 1.4.2015, consequent upon the Headmistress of the school entering on leave. Thereafter, on 1.6.2015, the second appellant was appointed as Headmistress of the school when the incumbent vacated office by opting for voluntary retirement. Even though the 6th respondent had a superior claim for appointment as Teacher-in-charge and Headmistress under Rule 23 of Chapter XIVA KER, the first appellant had appointed the second appellant overlooking the claim of the sixth respondent, in purported exercise of the managements minority right under Article 30(1) of the Constitution of India. Though the proposal for appointment of the second appellant was forwarded, the District Educational Officer refused to approve the appointment of the second appellant citing the reason that the school did not have minority status and therefore the Rule 43 claimant, who was the senior most teacher, ought to have been appointed as Teacher-in-charge and Head Mistress. 3. Revision petition filed before the Director of Public Instruction was rejected on the ground that neither the Government of Kerala nor the Minority Commission had declared the St. Roch's High School as a minority institution. The first appellant approached the Government for a clarification that St. Roch’s High School is an educational institution having minority status, since the St. Roch's T.T.I Thope under the Management was already declared to be a minority institution, the Government rejected the request. Roch's High School as a minority institution. The first appellant approached the Government for a clarification that St. Roch’s High School is an educational institution having minority status, since the St. Roch's T.T.I Thope under the Management was already declared to be a minority institution, the Government rejected the request. It was stated that the mechanism for granting minority status certificates had not been established in the State and that the request for grant of minority status should be taken up after such mechanism was established. The Government further directed the District Educational Officer to obtain proposal from the Management for approval of appointment of the senior most teacher as Headmistress. The first appellant again moved the Government in revision requesting to approve the appointment of the second appellant as Headmistress from 1.6.2015, treating the St. Roch's High School as a minority institution. This revision also having been rejected, the appellants approached this court by filing W.P.(C) No.5705 of 2018, seeking to quash the adverse orders, to declare the St. Roch's High School as a minority educational institution, to declare the appointment of the second appellant as valid and consequently to approve the appointment of the second appellant. 4. While so, on the strength of the direction issued by the Government to appoint the senior most teacher as Headmistress, the 6th respondent filed WP(C) No.7851 of 2018 seeking a declaration that she is eligible and entitled to be appointed as Teacher-in charge and Headmistress of the St. Roch's High School and for a direction to the first appellant to appoint her as Teacher-in-charge and Headmistress with retrospective effect from 1.4.2015 and 1.6.2015 respectively. The learned Single Judge heard both Writ Petitions together and by the common judgment, which is impugned in these appeals, dismissed W.P(C) No. 5705 of 2018 filed by the appellants and allowed W.P(C) No.7851 of 2018 filed by the sixth respondent and directed the first appellant to appoint Head teacher in the school in accordance with seniority. Aggrieved, the appellants have filed W.A.No.776 of 2019 against the judgment in WP(C) No.7851 of 2018 and W.A.No.802 of 2019 against the judgment in WP(C) No.5705 of 2018. 5. The common ground of challenge in these appeals is that the Corporate Management of St. Aggrieved, the appellants have filed W.A.No.776 of 2019 against the judgment in WP(C) No.7851 of 2018 and W.A.No.802 of 2019 against the judgment in WP(C) No.5705 of 2018. 5. The common ground of challenge in these appeals is that the Corporate Management of St. Roch's H.S/TTI/LPS has got minority right as per Exts P1 and P2 orders read with Ext P3 certificate and hence the Management is entitled to appoint any duly qualified teacher as Headmaster untrammeled by the rule of seniority enjoined in Rule 44 of Chapter XIV-A of K.E.R. It is submitted that the appointment of the previous seven Headmasters from 1.4.1982 onwards was made by the Management according to their choice, invoking its minority right under Article 30(1) of the Constitution of India and all those appointments were approved by the Department. The learned counsel for the appellants pointed out that as against Ext P15 letter of the Government rejecting the request for grant of minority status for the St. Roch's H.S, the school had already filed an appeal under Section 12A (1) and 12B(1) of the National Commission for Minority Educational Institutions Act, 2004. It is hence submitted that pending appeal, the Educational Authorities may be directed to approve the appointment of the second appellant. 6. After careful perusal of Exts P1 to P3, we fail to understand as to how those exhibits would advance the case of the appellants that the Management had acquired minority status. Ext P1 makes no specific mention regarding the Management or the congregation. In Ext P2, though there is an observation regarding the submission made in the representation filed by the Manager, St. Roch's TTI, Thope that the Director of Education, Madras had recognized the congregation as a minority one, based on the judgment of the Hon'ble High Court of Madras, as revealed from Ext.P2 itself, in the representation submitted by the Manager St. Roch's TTI, Thope, the request was only to recognize that institution as a minority institution. Accordingly the Government had vide Ext P2, recognized only the St. Roch's TTI, Thope as a minority institution. In Ext P3 there is no mention regarding the minority status of any of the institutions under the Corporate Management and Ext.P3 only certifies that St. Roch's TTI/Primary and St. Roch's High School are aided institutions running under Corporate Management. Accordingly the Government had vide Ext P2, recognized only the St. Roch's TTI, Thope as a minority institution. In Ext P3 there is no mention regarding the minority status of any of the institutions under the Corporate Management and Ext.P3 only certifies that St. Roch's TTI/Primary and St. Roch's High School are aided institutions running under Corporate Management. Moreover, Ext P3 is only a certificate issued for submission before the Manager, Railways, Thiruvananthapuram. Therefore, contrary to the averments in the Writ Petition and appeal and the assertions of the learned Counsel for the appellants, Exts P1 to P3 does not indicate that St. Roch's H.S, Thope was granted minority status by the Government. 7. The National Commission for Minority Educational Institutions Act, 2004 (herein after called 'the Act') was introduced with the objective of constituting a National Commission for Minority Educational Institutions and to provide for matters connected therewith or incidental thereto. Section 2(f) of the Act defines a Minority Educational Institution as a college or an educational institution established and administered by a minority or minorities. Section 10 of the Act dealing with the Right to establish a Minority Educational Institution reads as under: - Right to establish a minority educational institution.-(1) Subject to the provisions contained in any other law for the time being in force, any person, who desires to establish a Minority Educational Institution may apply to the competent authority for the grant of no objection certificate for the said purpose. (2) The Competent authority shall,- (a) on perusal of documents, affidavits or other evidence, if any; and (b) after giving an opportunity of being heard to the applicant, decide every application filed under sub-section (1) as expeditiously as possible and to grant or reject the application, as the case may be: Provided that where an application is rejected, the Competent authority shall communicate the same to the applicant. (3) Where within a period of ninety days from the receipt of the application under sub-section (1) for the grant of no objection Certificate,- (a) the Competent authority does not grant such certificate; or (b) where an application has been rejected and the same has not been communicated to the person who has applied for the grant of such Certificate, it shall be deemed that the Competent authority has granted a no objection certificate to the applicant. (4) The applicant shall, on the grant of a no objection certificate or where the Competent authority has deemed to have granted the no objection certificate, be entitled to commence and proceed with the establishment of a Minority Educational Institution in accordance with the rules and regulations, as the case may be, laid down by or under any law for the time being in force. Explanation-For the purpose of this Section,- (a) “applicant” means any person who makes an application under sub-section (1) for establishment of a Minority Educational Institution; (b) “no objection certificate” means a certificate stating therein, that the Competent authority has no objection for the establishment of a Minority Educational Institution. 8. Section 11 of the Act deals with the functions of the National Commission for Minority Educational Institutions (NCMEI). Under Section 11(f), the NCMEI is empowered to decide all questions relating to the status of any institution as a Minority Educational Institution and declare its status as such. Section 12A of the Act provides for filing of appeal against the orders of the Competent authority and Section 12B deals with the power of the Commission to decide on the minority status of an educational institution. On a reading of the aforementioned provisions of the Act it is clear that an educational institution can start functioning as a Minority Educational Institution only after a No Objection Certificate as provided under Section 10 is granted to that institution by the Competent Authority. In the instant case, no such certificate has been issued and therefore, the appellants cannot claim that the St.Roch's H.S was established and is functioning as a Minority Educational Institution. 9. A Division Bench of this Court in Manager, MM LP School, Panayappilly and others v V.B. Sajitha and others (ILR 2014 (2) Ker.822) had considered the question as to when an educational institution could be held to have obtained minority status. The Division Bench categorically held that when a declaration is granted by the Competent authority under the Act, such declaration would operate only as regards acts done by the Management of that institution on and from the date of grant or the date of presumptive grant of certificate in terms of Sub sections 3 or 4, as the case may be, of Section 10 of the Act. In Sisters of St. In Sisters of St. Joseph of Cluny and another v State of West Bengal and others (2018)6 SCC 772 ) the Hon'ble Supreme Court had occasion to consider the power of the Commission under Section 11 (f), as against the power of the Competent authority to issue No Objection Certificate to a minority institution under Section 10 of the Act. It was held by the Apex Court that Section 11(f) is a very wide provision which empowers the NCMEI to decide all questions relating to the status of an institution as a Minority Educational Institution and to declare its status as such. The expression “all questions” as well as the expression “relating to” which are words of wide import cloth the NCMEI with the power to decide any question that may arise, which may relate directly or indirectly, with respect to the status of an institution as a Minority Educational Institution. The Apex Court held that the power of the NCMEI includes the power to declare such institution as a Minority Educational Institution, which is established and administered as such, so that it can avail of the fundamental right guaranteed under Article 30 of the Constitution. The Apex Court found that Section 10(1), carves out one facet of the aforesaid power contained in Section 11(f), namely, the grant of No Objection Certificate to a Minority Educational Institution at its inception. After reading Section 10(1) and 11(f) harmoniously, the court went on to hold that after the Amendment brought about to the Act in 2006, all applications for the establishment of a Minority Educational Institution must go only to the Competent authority set up under the statute and on the other hand, for the declaration of the status of a functioning educational institution as a Minority Educational Institution post its establishment, the NCMEI would have the power to decide the question and declare such institution’s minority status. 10. The St. Roch's H.S was established long back and has been functioning for the past many years. Therefore, only the NCMEI in exercise of power under Section 11(f) of the Act, can declare its status as a Minority Educational Institution. In that view of the matter, even the appeals filed by the school under Section 12A (1) and 12B(1) against Ext P15, treating Ext. Therefore, only the NCMEI in exercise of power under Section 11(f) of the Act, can declare its status as a Minority Educational Institution. In that view of the matter, even the appeals filed by the school under Section 12A (1) and 12B(1) against Ext P15, treating Ext. P15 to be an order issued under Section 10(1) of the Act may not be of benefit, since only the NCMEI is conferred with the power to declare the minority status of an institution, post establishment. Going by the decision of the Division Bench in Manager, MM LP School's case (ILR 2014 (2) Ker.822), the first appellant can effect appointment to the post of Headmaster de hors the requirement of effecting appointment according to seniority, as stipulated under Rule 44 of Chapter XIV A of the KER, only after the St. Roch's H.S, Thope is declared to be a Minority Educational Institution by the NCMEI. The fact that the previous Head masters were appointed considering seniority and that such appointments, though not proper, was approved does not confer the first appellant any right to perpetuate the impropriety and to clamour for negative equity. For the aforementioned reasons, we decline to interfere with the the impugned judgment and consequently the Writ Appeals are dismissed.