IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 10TH MARCH 2008 / 20TH PHALGUNA 1929 OP.No. 5999 of 2002(L) ---------------------- PETITIONER: ------------ THE MANAGER, EVANS UPPER PRIMARY SCHOOL, HIGH SCHOOL/TTI, PARASALA, THIRUVANANTHAPURAM. BY ADV. SRI.T.P.KELU NAMBIAR (SR.) SRI.BABU VARGHESE SRI.M.R.GOPALAKRISHNAN NAIR RESPONDENTS: ------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT GENERAL EDUCATION (H) DEPARTMENT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF INSTRUCTION, THIRUVANANTHAPURAM. 4. THE ASSISTANT EDUCATIONAL OFFICER, PARASSALA, THIRUVANANTHAPURAM. 5. KANAKA BAI, HEADMISTRESS, EVANS UPPER PRIMARY SCHOOL, PARASSALA, THIRUVANANTHAPURAM. BY ADV. SRI.PIRAPPANCODE V.SREEDHARAN NAIR SRI.S.P.ARAVINDAKSHAN PILLAY SRI.PIRAPPANCODE V.S.SUDHIR GOVERNMENT PLEADER SRI.B.RAGUNATHAN SRI.V.V.MATHEW SMT.ANITHA M.N. (EKM) GOVT. PLEADER SHRI.T.B.HOOD. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 10/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: H/N. ALONG WITH judgment. S.SIRI JAGAN, J. ================== O.P.No.5999 of 2002 ================== Dated this the 10th day of March, 2008 J U D G M E N T The petitioner in this original petition is the manager of a U.P.School. The educational agency owns the schools, owns a high school and a Teachers' Training Institute (TTI) also. The TTI is stated to have been declared as a minority school. In respect of the appointment of the headmaster in the UP school, a dispute arose as to whether the UP school is also a minority institution so as to enable the petitioner to appoint a headmaster of his choice. That issue came up before this court in a writ petition and in the writ appeal against the judgment in the writ petition. That writ appeal was considered along with a host of other writ petitions, which ended in the decision in Evan's U.P. School v. State of Kerala [2001 (1) KLT 849], whereby a Division Bench of this court directed the Government to consider all aspects of the matter, without expressing any opinion on the rival contentions of the parties. Pursuant to Ext.P1 judgment, Ext.P6 order has been passed whereby the Government ordered that minority 2 status under Article 30 of the Constitution of India cannot be conferred on the educational institutions established by late Sri.Sam Evans and hence, the benefit being enjoyed by the Evans TTI, Parassala, since 11.5.1970 is cancelled. The petitioner challenges Ext.P6 on several grounds. He would, on the basis of a number of documents produced in this writ petition, canvass for the proposition that all the three schools are run by a minority community and, therefore, all the three schools are entitled to minority status. But he would also challenge Ext.P6 on two other grounds. One is that Ext.P6 order was not passed by the same person who heard the matter. The second is that the question of cancellation of the minority status granted to the Evans TTI, Parassala, was never a matter in issue in Ext.P1 judgment and, therefore, the Government could not have decided that question while passing orders pursuant to Ext.P1 judgment that too without putting the petitioner on notice regarding the proposal to cancel the benefit being enjoyed by the school for more than 35 years. He would also take the contention that the finding in Ext.P6 is to the effect that the schools are not managed by any community, but only by an individual, which is contradictory to 3 the judgment of this court on the same subject and, therefore, not sustainable in the light of the decision in Manager, St.Thomas U.P.School Kerala v. Commissioner & Secretary to General Education Department & Ors. [J.T. 2002 (1) SC 439]. 2. In answer to the said contention, the learned Government Pleader would contend that none of the grounds mentioned in the original petition is maintainable. According to him, the three institutions are managed by individuals and were not established by a minority community at all and, therefore, none of the three institutions is entitled to minority status. On the objection as to the passing of Ext.P6 by a person other than the one who heard the matter, the learned Government Pleader would contend that it is settled law in the matter of institutional hearing, it is not always necessary that the person who heard the matter himself should decide. According to him, the person who heard the matter had recorded the notes of the hearing in the file and, based on that only, the impugned order has been passed by the Principal Secretary concerned. 3. Regarding the question as to whether the Government 4 was competent to cancel the minority status given to the TTI, the learned Government Pleader would submit that the DPI, who passed the order dated 11.5.1970 had no jurisdiction to pass that order, in so far as only the Government alone could have decided the question of eligibility of an educational institution for minority status. 4. In view of the order I propose to pass in this case, I do not think it necessary to go into the merits of the case as to whether the petitioner's U.P. school or TTI is a minority institution in this original petition. Admittedly Ext.P6 order has been passed pursuant to Ext.P1 judgment. There is no case for the Government that in the original petition which ended in Ext.P1 judgment, the question of validity of the minority status granted to the TTI was an issue. From Ext.P1 judgment also it does not appear that that question was specifically raised by the Government. That being so, pursuant to Ext.P1 judgment the Government could have decided only what the Division Bench has directed them to do in Ext.P1 judgment. From a reading of Ext.P1 judgment it is clear that what has been directed to be considered is as to whether the Evans U.P. School is entitled to 5 minority status. That being so, Ext.P6 order, in so for as it cancels the benefit enjoyed by the Evans TTI, Parassala, since 11.5.1970 is clearly against the direction in Ext.P1 judgment. Hence, I am of opinion that Ext.P6 is unsustainable for that reason. Therefore, the Government is bound to reconsider the matter in accordance with law. Accordingly, I quash Ext.P6 order and direct the 1st respondent Government to reconsider the matter strictly in accordance with the directions in Ext.P1 judgment. 5. The learned Government Pleader would contend that the right of the Government to take up the question of cancellation of the benefit already enjoyed by the Evans TTI as a minority institution may be left open. The learned counsel for the petitioner would oppose it. He would submit that that was never an issue anywhere at any time since 11.5.1970 and, that being so, this court shall not give power to the Government to consider that question at this point of time. Either way, I am not expressing any opinion on the matter. The only issue I am considering in this original petition is as to whether Ext.P6 order has been passed in accordance with Ext.P1 judgment. 6 6. For all the above reasons, I am satisfied that Ext.P6 order has not been passed in accordance with Ext.P1 judgment. Accordingly, the 1st respondent is directed to reconsider the matter in accordance with Ext.P1 judgment as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment. While doing so, the Government should take care to see that the same person who hears the case decides the matter. All parties who were heard earlier shall also be heard before passing fresh orders. The writ petition is disposed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge 7 S.SIRI JAGAN, J. =============== O.P.No.5999 of 2002-L =============== J U D G M E N T 10th March, 2008 8