IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 22ND MAY 2009 / 1ST JYAISHTA 1931 WP(C).No. 12943 of 2007(N) -------------------------------------- PETITIONER(S): ---------------------- MANAGER, KURIAKOSE ELIAS COLLEGE, MANNANAM. BY ADV. MR.BABY ISSAC ILLICKAL RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 2. MAHATMA GANDHI UNIVERSITY, REPRESENTED BY ITS REGISTRAR, PRIYADHARSHINI HILLS P.O., KOTTAYAM. R1 BY GOVERNMENT PLEADER SMT.N. SUDHA DEVI R2 BY ADV. MR. T.A. SHAJI, SC, M.G.UNIVERSITY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO. 12943/2007-N APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE NOTIFICATION DATED 18/01/2005. EXT.P2: COPY OF THE GOVERNMENT ORDER DATED 05/07/2006. EXT.P3: COPY OF THE GOVT. ORDER DATED 13/10/2006. EXT.P4: COPY OF THE GOVT. ORDER DATED 16/12/2006. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE Rs/ S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) No. 12943 of 2007 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 22nd May, 2009. J U D G M E N T The petitioner claims to be the manager of a college administered by a minority community. According to the petitioner, being run by a minority community, the college is entitled to the privileges guaranteed by Article 30(1) of the Constitution of India to minority communities. However, the Government has, by Exts.P3 and P4 orders, directed that colleges which seek to claim benefits of minority institutions shall file applications before Justice P.A. Muhammed Committee who is to consider the applications and decide whether a particular college is a minority institution or not. The petitioner is challenging Exts.P3 and P4. 2. The petitioner's contention is that for getting the benefit available to a minority institution, a declaration of minority status by any authority is not a condition precedent. As such, according to the petitioner, the Government cannot direct that colleges seeking minority status shall file applications before Justice P.A. Muhammed Committee for declaration of such status. The petitioner also relies on a Division Bench decision of this Court in W.A.No. 119/2008 and connected cases, wherein this Court is stated to have held that an educational agency, which is otherwise a minority institution, would continue to be so whether Government declared it as such or not. The petitioner therefore seeks the following reliefs: “i. Issue a writ of certiorari quash and set aside Exhibit P3 & P4 to the extent it affect the petitioner. ii. declare that Section 8 of the Act of 2006 is invalid, unconstitutional and ultra vires, in the case of the College under the petitioner; iii. declare that the educational institution under the petitioner- Kuriakose Elias College, Mannanam is a Minority Educational W.P.C. No. 12943/07 -: 2 :- institution entitled to the protection guaranteed under Article 30 (1) of the Constitution of India; iv. declare that Justice Muhammad Commission constituted under Exhibit P2 has no authority to adjudicate the Minority status of Kuriakose Elias College under the petitioner; v. grant such other relief as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case; vi. declare that Sec. 8 of Act 2006 is repugnant to the National Commission for Minority Educational Institutions Act. 2004.” 3. The learned Government Pleader opposes the same. According to the learned Government Pleader, without some competent authority verifying the minority status of a college a college cannot claim benefits available to a minority institution. Therefore, it is competent for the Government to prescribe an authority before whom application for declaration of such status has to be made and only after that authority recognises the status of the institution as a minority institution, that institution can claim the benefits available to minority institutions. 4. I have considered the rival contentions in detail. 5. In the Division Bench decision referred to by the learned counsel for the petitioner, the Division Bench has held thus: “3. The appellants are aggrieved by the observation of the learned Single Judge that, in the absence of a formal declaration of minority status, the management is bound to comply with the mandate contained in Section 59(3) of the Mahatma Gandhi University Act, (for short 'the Act'). Section 59(3) of the Act reads as follows: “S.59(3): Where the appointment of Principal is made by promotion, the educational agency shall make the appointment on the basis of seniority-cum-fitness.” W.P.C. No. 12943/07 -: 3 :- Going by the above provision, the seniormost teacher, unless he is found unfit, is liable to be appointed as Principal. It is not in dispute that in minority educational institutions, that is, institutions established and administered by minorities, appointment to the post of Principal can be made overlooking seniority, provided he is having the statutorily prescribed qualifications for the post. If the direction of the learned Single Judge is allowed to stand, the concerned educational agency should first get a declaration regarding their minority status before appointing a qualified junior teacher, it is pointed out by the appellants. 4. The question of declaration arises if only somebody disputes the status of an educational agency. The appellants point out that they are all Dioceses, Congregations or individual Churches and, therefore, the educational institutions established by them can be administered by them, without being fettered by the provisions of Section 59(3) of the Mahatma Gandhi Univerity Act or Section 57(3) of the Kerala University Act. They say, it is manifest that the educational agencies concerned belong to minority community and therefore, the institutions established by them can be administered with the protection of Article 30(1) of the Constitution of India. So, the direction of the learned Single Judge that only if armed with a declaration that they have minority status, they can deviate from the seniority rule, is unsustainable. They pray that the above direction may be vacated. 5. The Government fully supports the view taken by the learned Single Judge. The learned counsel for the Mahatma Gandhi University and Kerala University submitted that so far, the Universities have not decided whether the appellants can claim minority status and therefore, can appoint any qualified teacher as Principal, overlooking the seniority of the teachers of the Colleges concerned. If the University concerned disputes, then of course, a declaration may be necessary by the competent authority. 6. What is the legal effect of a declaration of minority status has been the subject-matter of the decision of the Apex Court in Ammad v. Emjay High School (1998 (2) KLT 828). The Apex Court in the said decision observed as follows: “11. Counsel for both sides conceded that there is no provision in the Act which enables the Government to declare a school as minority school. If so, a school which is otherwise a minority school would continue to be so whether Government declared it as such or not. Declaration by the Government is at best only a recognition of an existing fact. Art. 30(1) of the Constitution reads thus: W.P.C. No. 12943/07 -: 4 :- 'All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.' 12. When the Government declared the school as a minority school it has recognised a factual position that the school was established and is being administered by a minority community. The declaration is only an open acceptance of a legal character which should necessarily have existed antecedent to such declaration. Therefore, we are unable to agree with the contention that the school can claim protection only after the Government declared it as a minority school on 2.8.1994.” 7. Going by the Educational Agencies and the Colleges mentioned above, we are, prima facie, satisfied that they are minority educational institutions entitled to get protection under Article 30(1) of the Constitution of India. It is not necessary for us to finally pronounce on that controversy, as the Universities have not taken any final decision on that aspect. If they appoint Principals of their choice, the Universities are bound to consider approval of their appointments. It is submitted that the appointments made by the appellants to the post of Principal are pending consideration before the Universities. The direction of the learned Single Judge that they should get a declaration first to deviate from the seniority rule, is unsustainable and is vacated. 8. The Writ Appeals are allowed as above. The Universities are directed to pass final orders on the motions pending before them from the appellants, for approval of appointments to the post of Principal, within four months from the date of production of a copy of this judgment.” From the same, it is clear that for claiming benefits as a minority institution, a formal recognition of minority status by anybody is not necessary . The proper procedure to be adopted is for the educational institutions to appoint principals of their choice and seek approval of such appointments. On such applications, the University has to take a decision taking into consideration the claim for protection under Article 30(1) of the Constitution of India. That being so, the course available to the petitioner also is the same. If the petitioner wants to W.P.C. No. 12943/07 -: 5 :- appoint persons of their choice as Principal, it is for the petitioner to forward appointment orders to the University and the University has to consider the question of approval of such appointments taking into consideration the claim of the petitioner for minority status. Needless to say in such cases the University shall pass orders on such requests for approval promptly in accordance with the abovesaid Division Bench decision. 6. As far as Exts.P3 and P4 are concerned, since the relevant provisions of the Kerala Professional Colleges or Institutions (Prohibition of Capitation Fee, Regulation of Admission, Fixation of Non-Exploitative Fee and other Measures to Ensure Equity and Excellence in Professional Education) Act, 2006 has been declared as unconstitutional by a Division Bench of this Court, no action under such provisions can be taken by the Government or the justice P.A. Muhammed Committee. With the above observation, the writ petition is disposed of. Sd/- S. Siri Jagan, Judge. Tds/