IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 28TH AUGUST 2009 / 6TH BHADRA 1931 WP(C).No. 9662 of 2008(A) ------------------------------------- PETITIONER: ------------------- O.BALAN, ASSISTANT TEACHER (RETIRED), M.C.M.U.P.SCHOOL, MAYYANNUR. BY ADV. MR.M.VIJAYAKUMAR. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM. 2. DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 3. DISTRICT EDUCATIONAL OFFICER, VADAKARA. 4. ASSISTANT EDUCATIONAL OFFICER, THODANNUR 5. K.P.RAVEENDRAN, M.C.M.U.P.SCHOOL, MAYYANNUR. 6. THE MANAGER, M.C.M.U.P.SCHOOL, MAYYANNUR. R1 TO R4 BY GOVERNMENT PLEADER MR. DILEEP MOHAN, R5 BY ADV. MR.R.K.MURALEEDHARAN, R6 BY ADVS. MR.V.A.MUHAMMED, MR.M.SAJJAD. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/08/2009,ALONG WITH W.P.(C). NO. 11407 OF 2008, THE COURT ON 28/08/2009 DELIVERED THE FOLLOWING: W.P.(C). NO.9662/2008-A: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE REPRESENTATION DTD. 07/06/2004. EXT.P.2: COPY OF THE COMMUNICATION DTD. 31/07/2004. EXT.P.3: COPY OF THE ORDER DTD. 06/10/2004. EXT.P.4: COPY OF THE PETITION DT. 16/10/04. EXT.P.5: COPY OF THE ORDER DT. 10/12/2004. EXT.P.6: COPY OF THE JUDGMENT IN W.A. 587/05 DTD. 17/03/2005. EXT.P.7: COPY OF THE ARGUMENT NOTE DTD. 25/05/2005. EXT.P.8: COPY OF THE ARGUMENT NOTE. EXT.P.9: COPY OF THE ORDER OF R.1. DTD. 30/06/2005. EXT.P.10: COPY OF THE RELEVANT PAGE OF THE VISIT BOOK. EXT.P.11: COPY OF THE JUDGMENT IN W.P.(C).22337/05 DTD. 13/03/2007. EXT.P.12: COPY OF THE STATEMENT SUBMITTED BY THE PETITIONER. EXT.P.13: COPY OF THE REPRESENTATION TO THE R.1. DTD. 07/10/2007. EXT.P.14: COPY OF THE ORDER G.O.(RT).NO.5939/07/G. EDN. DTD. 31/12/2007. EXT.P.15: COPY OF THE COUNTER AFFIDAVIT FILED BY R.5. RESPONDENTS' EXHIBITS: EXT.R3.A: COPY OF THE PAGE 3 TO 13 A VISIT BOOK PERTAINING TO MAYYANNUR CENTRAL MOPPILA GIRLS. EXT.R3.B: COPY OF THE TEACHERS SERVICE REGISTER PERTAINING TO ONE POKKAN. EXT.R3.C: COPY OF THE SERVICE REGISTER PERTAINING TO KRISHNAN. EXT.R3.D: COPY OF THE SERVICE BOOK OF ONE SANKARAN WHO WAS APPOINTED BY P. AMMED WHO WAS THE MANAGER. EXT.R5.A: COPY OF THE APPROVED SENIORITY LIST OF MAYYANNUR CENTRAL MOPILA UP SCHOOL AS ON 01/01/2003. EXT.R5.B: COPY OF THE PROCEEDINGS OF THE R.4. DTD. 29/11/2003. EXT.R5.C: COPY OF THE ARGUMENT NOTES SUBMITTED BY THE MANAGER. W.P.(C). NO.9662/2008-H: EXT.R6.A: COPY OF THE ORDER NO. B.6052/03 OF THE ASST. EDUCATIONAL OFFICER ALONG WITH SENIORITY LIST DTD.08/03/2004. EXT.R6.B: COPY OF THE MEMO OF CHARGES NO. B/7494/90 OF THE ASST. EDUCATIONAL OFFICER DTD. 25/07/1992. EXT.R6.(B) (I): COPY OF THE STATEMENT OF ALLEGATIONS DTD. NIL. EXT.R6.(B) (II): COPY OF THE PROCEEDINGS ORDER NO. B-7494/90 OF THE ASST. EDUCATIONAL OFFICER DTD. 10/11/1992. EXT.R6.(C): COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN O.P. 28868/2002-J DTD. 17/06/2005. EXT.R6.(D): COPY OF THE SERVICE BOOK OF T. MOIDU DTD. 06/06/1944. EXT.R6.(E): COPY OF THE SERVICE BOOK OF KRISHNAN DTD. 21/08/1940. EXT.R6.(F): COPY OF THE MANUSCRIPT OF THE HISTORY DTD. NIL. EXT.R6.(G): COPY OF THE RELEVANT PAGE OF THE VISIT BOOK DTD. NIL. EXT.R6.(H): COPY OF THE BYE-LAW OF THE SANGHAM DTD. NIL. EXT.R6.(I): COPY OF THE DOCUMENT NO. 991/1985 DTD. 03/08/1985. EXT.R6.(J): COPY OF THE DOCUMENT NO. 56/1961 DTD. 19/01/1961. //TRUE COPY// P.S. TO JUDGE. Prv. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) Nos. 9662 & 11407 of 2008 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 28th August, 2009. J U D G M E N T The issue that crops up for consideration in these two writ petitions is as to whether the Mayyannur Central Mopla Upper Primary School is a minority institution so that its manager can appoint a Headmaster of his choice for the school, overlooking seniority of the petitioners in the two writ petitions. The facts from which the above issue arises may be summarised as follows: 2. Sri. O. Balan, the petitioner in W.P(C) No. 9662/2008, was working in the school with effect from 6-8-1973. Sri. K.P. Raveendran, the 5th respondent in that writ petition entered service of the school on 1-6-1982. Therefore, Sri. Raveendran was junior to Sri. Balan. The post of Headmaster of the school fell vacant on 1-6- 2004. Apprehending that overlooking his seniority, the manager is likely to appoint the junior teacher as Headmaster, Sri. Balan submitted Ext. P1 representation dated 7-6-2004 before the Assistant Educational officer. By Ext. P2 communication dated 31-7-2007, Sri. Balan was informed by the AEO that the manager had appointed Sri. Raveendran as Headmaster from 1-6-2004 and approval for the same was declined by order dated 11-6-2004, in which order it was also stated that Sri. Balan is the person entitled to be appointed as the Headmaster of the school. Challenging the order of the AEO, declining approval for the appointment of Sri. Raveendran as Headmaster of the school, the manager filed an appeal before the DEO claiming that the school is a minority institution and therefore the manager is entitled to appoint a qualified teacher of his choice as the Headmaster of the school. By Ext. P3 order dated 6-10-2004, the DEO rejected the appeal stating that the jurisdiction to decide whether the school is a minority school vests with the Government and since presently the school is under a management whose minority status has not been W.P.C. Nos.9662 & 11407/08 -: 2 :- recognised, the appointment of Sri. Raveendran as Headmaster cannot be approved. Since the manager did not appoint Sri. Balan as Headmaster, despite direction by the AEO, Sri. Balan filed W.P(C) No. 31075/2004 for a direction to the manager to comply with the order of the AEO. In that writ petition the manager submitted that he has challenged the order of the DEO in a revision petition and the Government had, by Ext. P5 order dated 10-12-2004, stayed the orders of the AEO and the DEO. The manager also filed Ext. P4 petition before the Government seeking a declaration of the minority status of the school. Sri. Balan again filed W.P(C) No. 36837/2004 and against the judgment in that writ petition, W.A.No. 587/2005. By Ext. P6 judgment, this Court disposed of that writ appeal, directing the Government to decide the status of the school. In that judgment, it was held that if the Government decides that the school is not a minority school, Sri. Balan would be entitled to get all service benefits including pay and allowances from 1-6-2004 as Headmaster, which is to be borne by the institution. Before the Government, both sides adduced evidence and Sri. Mathew John, Under Secretary to the Government , who heard the parties, prepared Ext. P8 hearing note in which it was recorded that the school cannot be granted minority status under Article 30(1) of the Constitution of India and the request of the manager to declare the school as minority school is rejected. But, by Ext. P9 order, Sri. P.J. Thomas, the Principal Secretary to the Government, after observing that 'it is true that it (the school) was established by a non-muslim and it was purchased by the Muslim Vidyabhyasa Sanghom, the present management of the school in 1985, from the founder manager', held that the school was established and administered for the benefit of a minority community and the school is eligible for minority status. In the meanwhile, Sri. Balan W.P.C. Nos.9662 & 11407/08 -: 3 :- retired from service. However, in view of the observation in Ext. P6 judgment, he challenged Ext. P9 order by filing W.P(C) No. 22337/2005. Sri. K. Bhaskaran, the petitioner in W.P(C) No. 11407/2008, another teacher of the school, who was also senior to Sri. Raveendran, aspiring for promotion as Headmaster, also challenged the very same order, by filing W.P(C) No. 22857/2005. Both the writ petitions were heard together and disposed of by Ext. P11 judgment, finding that the order of the Government cannot be sustained in the face of the finding that the school was established by a non-muslim and yet the Government proceeded to confer minority status on the school. Accordingly, Ext. P9 order was quashed and the Government was directed to re-consider the matter after hearing the two petitioners, the manager and Sri. Reaveendran. Thereafter, the Government re-considered the matter, after hearing the parties, and by Ext. P14 order, again decided that the school is eligible for minority status. The very same order is produced by Sri. Bhaskaran in W.P(C) No. 11407/2008. The petitioners are challenging that order in these two writ petitions and seeking successive promotion as Headmaster, one after the other, based on seniority, since Sri. Raveendran is junior to them. 3. The manager has filed a counter affidavit in W.P(C) No. 9662/2008, seeking to refute the contentions of both petitioners. According to him, both petitioners being not the next person entitled for promotion as Headmaster, the impugned order does not affect their legal right and therefore the writ petitions are not maintainable. The contention is that there is another graduate teacher who has a better claim for promotion as Headmistress. Regarding Sri. Bhaskaran, the manager would contend that since he was punished for misconduct involving misappropriation of public funds, he cannot W.P.C. Nos.9662 & 11407/08 -: 4 :- be promoted as Headmaster of the school, for which contention he relies on the principle laid down in Ext. R6(c) judgment of this Court in O.P.No. 28868/2002. He would further contend that the school is a minority school established by muslims for the benefit of the Muslim community. According to him, the school was established by one Ammed on 30-8-1943 and its original name was Mayyannur Aided Moppila School. In 1949, its name was changed to Mayyannur Moppila School and in 1951, the name was again changed to Mayyannur Central Moppila School. Since, it was upgraded as U.P.School, it was known as Mayyannur Central Moppila Upper Primary School. According to the manager, even in 1944, Sri. Ammad was the manager, which is evident from the service book of one Moidu, copy of which he has produced as Ext. R6(a). He would contend that Sri. Krishnan became the teacher-cum-manager of the school from 6-4-1949 and thereafter Mathu became the manager on 1-4-1958. He relies on Ext. R6(c) service book of the said Sri. Krishnan in support of this averment. According to him, the school was established for educating Muslim girls of the area and for 12 years only muslims were admitted in the school. Later also, majority of the students of the school were muslims. He contends that during the pre-independence period, the schools in Malabar were divided as Muslim Range Schools and Hindu Range Schools and separate Range inspectors supervised the schools. He points out that as per Ext. R6(g) visit book of the school, a Muslim Range Deputy Inspector visited the school on 3-11-1943 and expressed satisfaction that the school is satisfactorily educating muslim girls. The school is following Muslim calendar. Although later the school came into the hands of one Krishnan Master and his wife Mathu, the same again came under the management of the Villiappally Muslim Vidyabhyasa W.P.C. Nos.9662 & 11407/08 -: 5 :- Sangham as per sale deed no. 991/1985 of Villiappilly Sub Registrar's office. The manager submits that from Ext. R4(i) sale deed it is clear that even during the period when Krishnan Master was the manager of the school, the property in which the school is situated belonged to Ammed and Ammed transferred the property while Mathu was the manager. The contention is that the property of the school at the time of establishment of the school belonged to one Java Ammed Haji, who transferred the same to Ammad in 1123 ME (1946 AD) as is clear from Ext. R6(j). Therefore, according to the manager, the school is a minority school and therefore the appointment of the 5th respondent as Headmaster of the school by the manager in exercise of the rights of a minority institution is perfectly valid and sustainable. 4. The petitioners would strongly dispute the claims of the manager. They would contend that after examining the evidence adduced by both sides, the Government had, in Ext. P9, come to the conclusion that the school was established by a non-muslim and it was purchased by the Muslim Vidyabhyasa Sangham, the present management of the school in 1985 from the founder manager. It was because of that specific finding, Ext. P9 was quashed and the matter was remanded for fresh consideration, by this Court as per Ext. P11 judgment. According to them, in Ext. P14, there is no contrary finding, without which the Government could not have found that the institution is a minority institution. They submit that there is enough evidence on record to show tat the school was started by a non- Muslim viz. V.M. Krishnan Master, who was the founder manager and was succeeded by his wife Mathu, who was again replaced by Krishnan Master. They would also rely on the very same documents produced by the manager, in support of their contention. They would also rely on Ext. P10 chapter on the history of the school in a W.P.C. Nos.9662 & 11407/08 -: 6 :- publication titled “Thodannur Upa Jilla Vidyalaya Charitham” (Educational History of the Thodannur Sub District), by a team of authors, which, according to them, would prove that the school was started by Krishnan Master. 5. The veracity of the facts stated in the publication relied upon by the petitioners is disputed by the manager on the ground that the same is prepared by Sri. Bhaskaran, one of the petitioners and they have produced copy of the manuscript of the Chapter in the publication relating to the school as Ext. R6(f), which is in his handwriting. 6. I have considered the rival contentions based on the materials produced by both sides as also those produced by the DEO in his counter affidavit dated 25-7-2009, filed as directed by me by order dated 13-7-2009. 7. Before going into the rival contentions, I may refer to the law on the subject briefly. The word “minority schools” is defined in Section 2(5) of the Kerala Education Act thus: “2. Definitions: In this Act, unless the context otherwise requires,- xx xx xx xx xx xx (5) “minority schools” means schools of their choice established and administered, or administered, by such minorities as have the right to do so under clause (1) of Article 30 of the Constitution; xx xx xx xx xx xx” A learned Single Judge of this Court had occasion to consider the scope of this definition in Rev. K.C. Seth v. State of Kerala, 1991 W.P.C. Nos.9662 & 11407/08 -: 7 :- (2) KLT 662. In that decision, it was held thus: “The definition of minority school in the Act is wider than what is contemplated in Article 30(1) of the Constitution. Article 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. This is made clear in the decision of the Supreme Court reported in Azeez Basha v. Union of India (AIR 1968 S.C. 662) in which the Supreme Court observed: ' . . . . . the Article in our opinion clearly shows that the minority will have the right to administer educational institutions of their choice provided they have established them, but not otherwise. The Article cannot be read to mean that even if the educational institution has been established by somebody else, any religious minority would have the right to administer it because, for some reason or other, it might have been administering it before the Constitution came into force. The words “establish and administer” in the Article must be read conjunctively and so read it gives the right to the minority to administer an educational institution provided it has been established by it.” To the same effect is the decision reported in State of Kerala v. Mother Provincial (AIR 1970 S.C 2079) and S.P. Mittal v. Union of India (AIR 1983 S.C1). In the latter decision, the Supreme Court held that: “In order to claim the benefit of Art. 30(1) the community must show: (a) that it is a religious or linguistic minority, (b) that the institution was established by it. Without satisfying these two conditions, it cannot claim the guaranteed rights to administer it”. But the definition in S.2(5) of the Kerala Education Act provides that the schools administered by a minority also can claim the benefit of Article 30(1) of the Constitution. An almost similar clause came up for consideration before a Division Bench of the Madras High Court in the decision reported in Association of University Teachers v. State of Tamil Nadu, 1991 II LLJ 31, where the definition was as under: “'minority college' means a private college of its choice established and administered, or administered, by any such minority whether based on religion or language as has the right to do so under clause (1) of Art. 30 of the W.P.C. Nos.9662 & 11407/08 -: 8 :- Constitution”. Considering the validity of such definition in the background of Article 30(1) of the Constitution, the Madras High Court observed: xx xx xx After referring to the Madras High Court decision and Article 30 of the Constitution of India, the learned Judge further held thus: “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. Article 30(IA) also emphasis this requirement. Hence, if Article 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. In a writ petition filed by the management of the minority school in which there will not be any prayer to declare S.2(5) of the Kerala Education Act unconstitutional to the extent it declares institutions administered by the minority also minority institution, I would not be justified in striking down the section. Therefore, I am of the opinion that S.2(5) of the Kerala Education Act has to be read down in conformity with the requirements of Article 30 of the Constitution and, so read, the words “or administered” occurring in the sub section will have to be ignored. Hence, the 2nd prayer to declare that the educational institutions mentioned in Ext.P1 are minority schools cannot be granted in this writ petition. Such a declaration can be given only if the institution is found to be established by a religious or linguistic minority and administered by them. With these observations, I feel, O.P.7020 of 1989 can be closed.” The aforesaid decision was affirmed by a Division Bench of this Court in Rev. K.C. Seth v. State of Kerala, [1992 (1) KLT 754]. 8. After referring to those decisions, another Division Bench of this Court has in Manager, St. Thomas U.P. School v. Commissioner and Secretary to Government, 1999 (3) KLT 281, held thus: W.P.C. Nos.9662 & 11407/08 -: 9 :- “5. In the light of the aforesaid decisions, there is no room for any controversy that the words “established and administered” in Art. 30 of the Constitution of India must be read conjunctively. As observed by the learned Single Judge, the mere fact that the educational institution is now being administered by a minority community is not sufficient to claim protection under Art. 30(1) of the Constitution of India. It must also be proved 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. Establishment 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. Here the minority institution is nowhere in the picture in the process of establishing the institution. A subsequent entry by the minority community into the area will not help them to claim protection under Art. 30(1) of the Constitution of India. In the aforesaid view, we are of the opinion that the learned Single judge was right in allowing the original petition, quashing Ext. P4 and declaring that the educational institution managed by the first appellant is not a minority institution entitled to protection under Art. 30(1) of the Constitution of India. This appeal accordingly fails and we dismiss the same.” (underlining supplied) But, this decision was reversed by the Supreme Court on the question as to whether simply because the institution was started by an individual belonging to the minority community, it can be denied minority status, in St. Thomas U.P.S v. Commissioner & Secretary to Government, 2002 (1) KLT 655 (SC). But, in that decision, the Supreme Court also affirmed the legal position that for claiming minority status, the institution should have been one established by a minority. The Supreme Court held thus in paragraph 5 thereof: “5. The question before us is whether the High Court was correct in taking the decision it did. Under Art. 30(1), all minorities whether based on religion or language, have been W.P.C. Nos.9662 & 11407/08 -: 10 :- guaranteed the right to establish and administer educational institutions of their choice. It is not in dispute that Christians form a minority in this country. The right of minorities under Art. 30(1) to establish and administer educational institutions has been judicially construed as defining minority institutions. What is expressed in terms of a right under Art. 30(1) in fact describes the institution in respect of which the protection of Art. 30(1) can be claimed. It has, therefore, been held that unless the educational institution has been established by a minority, it cannot claim the right to administer it under Art. 30(1) Azeer Basha v. Union [1968 (1) SCR 833]. . . . . .” (underlining supplied) 9. Therefore, the law on the point is well settled to the effect that for claiming minority status, an educational institution must satisfy the twin tests of whether the same is (1) one established by a minority community and (2) one administered by it. I shall now examine whether the Mayyannur Central Mappila U.P. School satisfies those twin tests. 10. In support of their contentions, the petitioners would rely on a publication by team of authors by name “Thodannur Upajilla Vidyalaya Charitham” (Educational History of Thodannur Sub District), which contains a chapter on the history of the Mayyannur Central Mappila U.P. School, photocopies of the relevant pages of which are produced as Ext. P10 in W.P(C) No. 9662/2008. The introductory chapter of the book details the mode of preparation of the history as complied from various sources such as references, interviews, collecting documents/official documents/school documents/Panchayat Development document, visit books of Educational Officers, statistics, minutes of P.T.As and other associations, old photographs and correspondence, old pictures/publications/intimations etc., unofficial discussions and debates. As per this publication, in 1940, the independence W.P.C. Nos.9662 & 11407/08 -: 11 :- movement had its waves in Mayyannur also. Some socialist minded youths joined together and discussed about starting a school. One Mr. Krishnan Master gave leadership for the same. Varayalil Ammed, Anchanvida Kelappan, Java Ammad Haji, Ottapurakkal Pookkan, Kolakkandi Kannan and Chamakkandi Unniya Dayyinar supported him. The school was started on 30th August, 1943. The school was named Mayyannur Girls Elementary School. The first manager was V.M. Krishnan Master. When, in 1946, the Muslim Range inspector inspected the school, in the visit book of the school, it was written thus: “This school should be so conducted as to make the muslim girls of the village able to read and write.” For the first thirteen years only muslim girls were admitted. The first Hindu girl was V. M. Sobhana (daughter of the manager). When V.M. Krishnan Master became Headmaster in 1953, management was transferred to his wife Mathu teacher. From the beginning of the school, at the same place Madrassa teaching was also conducted, for which a Madrassa teacher was given salary by the teachers of the school, which continued till 1973. On 31-12-1963, classes 6 and 7 were also started. From then onwards, the name of the school was