IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 26TH JULY 2011 / 4TH SRAVANA 1933 WP(C).No. 29723 of 2005(L) -------------------------------------- PETITIONER(S): ----------------------- SMT. SASIKALA M., TEACHER, A.M.U.P. SCHOOL, KLARI NORTH, PALACHIRAMED, MALAPPURAM DISTRICT. BY ADV. SRI.R.K.MURALEEDHARAN, SMT.S.LAKSHMY. RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, GENERAL EDUCATION (F) DEPT., THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 3. THE DISTRICT EDUCATIONAL OFFICER, TIRUR, MALAPPURAM DISTRICT. 4. THE ASST. EDUCATIONAL OFFICER, TANUR, MALAPPURAM DISTRICT. 5. A.P. MOIDU, TEACHER, A.M.U.P. SCHOOL, KLARI NORTH, PALACHIRAMAD, MALAPPURAM. *ADDL. R6 IMPLEADED ADDL. R6: THE MANAGER, A.M.U.P. SCHOOL, KALARI NORTH, PALACHIRAMAD, EDARIKKODE, MALAPPURAM DISTRICT. * ADDL. R6 IS IMPLEADED AS PER ORDER DATED 01/12/2005 IN I.A.17531/2005. R1 TO R4 BY GOVT. PLEADER SMT.NISHA BOSE. R5 BY ADV. SRI.K.P.MUJEEB. ADDL. R6 BY SRI.KRB.KAIMAL, SENIOR ADVOCATE, ADV. SRI.P.R.VENKETESH, SRI.B.UNNIKRISHNA KAIMAL. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/07/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs WP(C).No. 29723 of 2005(L) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE CERTIFICATE ISSUED BY PSC. EXT.P2: COPY OF THE REPRESENTATION DATED 30/04/2005. EXT.P3: COPY OF THE REPRESENTATION TO 4TH RESPONDENT, AEO DATED 30/04/2005. EXT.P4: COPY OF THE ORDER OF THE 4TH RESPONDENT DATED 03/08/2005. EXT.P5: COPY OF THE REPRESENTATION DATED 19/10/2005. EXT.P6: COPY OF THE REPRESENTATION DATED NIL. EXT.P7: COPY OF THE ORDER OF THE 1ST RESPONDENT DATED 24/05/2005. EXT.P8: COPY OF THE COMMUNICATION DATED 01/06/2005 FROM THE 4TH RESPONDENT. EXT.P9: COPY OF THE ORDER OF THE 3RD RESPONDENT DATED 07/10/2005. RESPONDENT'S EXHIBITS: EXT.R5(a): COPY OF THE APPOINTMENT ORDER DATED 01/05/2005. EXT.R6(a): COPY OF THE GO(RT) NO.1853/99/G.EDN. DATED 19/04/1999 ISSUED BY THE 1ST RESPONDENT. EXT.R6(b): COPY OF THE LETTER NO.B/1859/05 DATED 23/04/2005 OF THE 4TH RESPONDENT TO THE 2ND RESPONDENT. EXT.R6(c): COPY OF THE APPEAL DATED 17/08/2005 SUBMITTED BY THE ADDL. 6TH RESPONDENT BEFORE THE 1ST RESPONDENT. EXT.R6(d): COPY OF THE LETTER NO.B.5304/05 DATED 06/09/2005 OF THE 4TH RESPONDENT TO THE 3RD RESPONDENT. EXT.R6(e): COPY OF THE ORDER NO.B4-11008/05 DATED 07/10/2005 ISSUED BY THE 3RD RESPONDENT. //TRUE COPY// P.S. TO JUDGE rs T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.29723 of 2005-L - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 26th day of July, 2011. JUDGMENT The petitioner's challenge herein is against Ext.P7 order passed by the Government holding the view that the school managed by the additional sixth respondent is entitled for conferment of minority status under Article 30(1) of the Constitution of India. The dispute herein arose under the following circumstances: 2. A vacancy in the post of Headmaster arose in the school on 1.5.2005 consequent on the retirement of Shri M.P. Kurian. The petitioner is the seniormost qualified teacher with test qualification. When the Manager tried to appoint another person, a junior teacher, the petitioner objected to the same by filing Ext.P2 representation. Thereafter, the Manager gave charge of the Headmaster to the fifth respondent who is a teacher junior to the petitioner, admittedly. Finally, the Assistant Educational Officer rejected the grant of approval as per Ext.P4 order finding that the petitioner is the seniormost qualified teacher. It appears that the Manager filed an appeal against the same and the District Educational Officer allowed the appeal as per Ext.R6(e) order. The said order, wpc 29723/2005 2 according to the petitioner, was passed without hearing her. Therein, the approval is granted on the basis of Ext.P7 Govt. Order, whereby the Government took the view that the school is entitled for minority status. It is in this context the petitioner is before this Court, aggrieved by Ext.P7 order. 3. It is contended that the school is not established by a minority community and is not entitled to the benefit of Article 30(1) of the Constitution of India. Further, it is pointed out that Ext.P7 is a non speaking order and the Government has not applied its mind to any of the circumstances. It is further pointed out that Ext.P7 was passed without hearing the petitioner who is a claimant for the post of Headmaster and as Ext.P7 order alone is relied upon by the District Educational Officer to deny the claim of the petitioner, the petitioner also should have been heard. 4. The respondents have filed detailed counter affidavits. 5. Heard learned counsel for the petitioner, learned Govt. Pleader and learned counsel for the additional 6th respondent. 6. Learned counsel for the petitioner relied upon the decision of a Division Bench of this Court in Evan's U.P. School v. State of Kerala (2001 (1) KLT 849) and Haji Abdul Salam v. State of Kerala (2004 (3) wpc 29723/2005 3 KLT 826) to contend for the position that the burden was on the Manager to prove that the school is entitled for minority status and any declaration by the Government can only be after analysing various aspects. The case of the petitioner appears to be that the school was established in 1928 as part of freedom movement and it was never treated as a minority community school. 7. The plea raised by the Manager, going by the counter affidavit, is that the school was established in the year by the social reformer Shri T. Mammali and approved by the Malabar District Education Council under Malabar District Board in Malabar State. The school was set up with the avowed objective of upliftment of the Muslim students living in the locality. In 1962 the school was upgraded as U.P. School. The founder Manager as well as the subsequent managers Shri T. Pocker and the additional 6th respondent belong to the minority community. The school was established and administered by the minority community and 90% of the students who had undergone studies are belonging to the Muslim community itself. 8. The counter affidavit filed on behalf of the first respondent shows that the Manager submitted an application before the Government on which, a report was called for from the Director of Public Instruction. A report was finally submitted by the Assistant Educational Officer which was wpc 29723/2005 4 forwarded to the Government. 9. What is pointed out in the counter affidavit filed by the second respondent is that the school was established by a member of a minority community, but the further details are not evident from the said counter affidavit also. 10. In the counter affidavit filed on behalf of the first respondent, it is averred in para 3 that the Assistant Educational Officer visited the school on 11.4.2005 and a report was forwarded to the Director of Public Instruction. On the basis of the report, the Government examined the matter and orders were issued. The averment in para 7 is that the school started functioning under the order from Madras District Education Board in the year 1928 and upgraded as U.P. School with effect from 1962. The school is owned by a person belonging to Muslim Community and more than 90% of the students belonged to Muslim community. Further, 30 out of 45 staff also belong to Muslim community. 11. Evidently, the materials on which satisfaction was arrived at, are not evident from the said counter affidavit also. The vacancy arose when Shri M.P. Kurian retired from service. It appears that prior to the retirement of Shri M.P. Kurian, the appointments were being made to the post of Headmaster on the basis of seniority. The dispute arose when the wpc 29723/2005 5 petitioner staked her claim for appointment. It is in that context the Manager filed an application on 11.2.2005. Therefore, prior to the present proceedings, none of the authorities had applied their mind with regard to the minority status of the school. In that view of the matter, as the decision taken now affects the petitioner, normally the petitioner ought to have been heard in the matter and the objections ought to have been considered. The Assistant Educational Officer had actually recognised the right of the petitioner for promotion initially by passing Ext.P4 order. 12. The second aspect is the manner in which a declaration could be granted and the aspects which could be considered by the Government. Learned counsel for the petitioner relied upon the decision of a Division Bench of this Court in Haji Abdul Salam's case (2004 (3) KLT 826) in this regard. Therein, in para 6 it was held as follows: “We have already held that the burden is entirely on the Manager to establish that the school is a minority institution. For claiming the minority status to the school, the following points were urged before the Government. 1. On Friday mid-day interval is between 12.30 to 2.30 p.m. 2. Second Friday of every month declared as holiday instead of 2nd Saturday. 3. No open meal during Ramzan, 4. Managed by members of a Muslim family. wpc 29723/2005 6 Government took the view that the above mentioned facts would show that the school is established and run by the minority community but by an individual. Copy of the Will dated 21.2.1983 executed by the father of the writ petitioner, bye-laws and other relevant documents were produced. We are of the view those documents, first of all, would not show that the school was established and maintained by a minority community. In the facts and circumstances of the case, we are of the view, Government is justified in rejecting the claim that the school is not entitled to the benefit of Art.30(1) of the Constitution.” Therefore, it is evident that necessary documents should be considered by the Government before declaring the minority status. Going by the pleadings of additional 6th respondent, the managership was being claimed based on successorship. How the educational agency was formed and what was the part played by the minority community, etc. are matters of evidence. Therefore, all these aspects ought to have been considered by the Government in a proper manner, since the petitioner is disputing the same in this writ petition also. 13. In that view of the matter, Ext.P7 will be treated as a provisional decision only and the parties will be heard by the Government for taking a final decision in the matter. The petitioner will file necessary objections before the Government. Going by the pleadings of the parties, even as on wpc 29723/2005 7 today the appointment of Headmaster has not been approved finally, since the interim order passed by this Court is in force. Learned counsel for the additional 6th respondent also pointed out that the approval of appointment of the other teachers for the remaining years has also not been granted because of the dispute between the petitioner and the Manager. Therefore, it is only proper that the Government takes a decision within a time frame. An appropriate decision will be taken after hearing the parties and after assessing various materials, within a period of four months from the date of receipt of a copy of this judgment. The writ petition is allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/