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2019 Supreme(Online)(KER) 60482
HIGH COURT OF KERALA
A. Muhamed Mustaque, J
C V FRANCIS – Appellant
Versus
DEPUTY DIRECTOR OF EDUCATION – Respondent
WRIT PETITION (CIVIL) 32141/2016
The court established that the minority status of an educational institution under Article 30(1) can extend to establishments previously founded by non-minorities if later acquired and administered by a minority.
Headnote:
Education - Minority Institutions - Article 30(1) - The court interpreted 'establish and administer' under Article 30(1) to extend protections to institutions purchased by minorities, emphasizing the need for a broader understanding of 'establish' in a constitutional context.
Fact of the Case:
The petitioner challenged the minority status of a school established by a non-minority individual, arguing that only minority establishments can claim protection under Article 30(1) of the Constitution.
Finding of the Court:
The court upheld the minority status of the school, concluding that the term 'establish' includes both founding and dedication of existing institutions to a minority cause, thus protecting the school's rights under Article 30(1).
Issues: Whether the minority status conferred under Article 30(1) applies to a school initially established by a non-minority individual but later purchased and administered by a minority institution.
Ratio Decidendi: The court concluded that the interpretation of 'establish and administer' in Article 30(1) encompasses institutions acquired and dedicated to the interests of a minority community, irrespective of the original founder's status.
Final Decision: The writ petition was dismissed, affirming the school's minority status.
JUDGMENT “CR”
This writ petition raises a question as to the meaning of word 'establish and administer' educational institutions under Article 30(1) of the Constitution of India.
2. Sarvodaya Higher Secondary School was established in the year 1951 by late N.K. Kunjikrishnan Nair. He was a member of Kerala State Legislative Assembly. The School was purchased by the Jesuit Educational and Charitable Society of Wayanad in the year 1990. They appear to have invested money in infrastructure and development of the School. Thus, the aforesaid Society became a corporate educational agency. By an order of Government of India dated 21.07.2001, the Sarvodaya High School administered by the Society was declared as a minority educational institution within the meaning of Section 2(g) of the National Commission for Minority Educational Institutions Act, 2004.
3. The present dispute leading to filing of the writ petition has arisen in the context of appointment of a Headmaster. Petitioner, Sri.Francis C.V., joined the School as HSA in the year 1987. Manager has chosen to appoint Father Wilson T.A., the 9th respondent as the Headmaster of the School with effect from 01.04.2015. Admittedly, Fr.Wilson is junior to the petitioner.
4. There can't be any dispute as to the right of the manager of the minority institute to choose Head of an Institution. The challenge made by the petitioner before the departmental hierarchy ended in rejection. Taking note of the rights of minority educational institution under Article 30(1) of the Constitution of India, the petitioner has now confined his attack on the decision of the Government of India declaring minority status to the School.
5. The learned counsel for the petitioner pointing out to the fact that the School was established by late N.K. Kunjikrishnan Nair, the individual belong to non-minority community, argue that minority status can be claimed only if both conditions referred under Article 30(1) are established. The argument is that the words “establish and administer” in Article 30(1) must be read conjunctively to gain protection. Since the School was brought into existence by a non-minority individual, it was argued that merely based on right to administer school, the institution cannot claim protection under Article 30(1). The learned counsel has placed reliance on S. Azeez Basha v. Union of India [AIR 1968 SC 662].
6. Apex Court in Azeez Basha's case had occasioned to consider amplitude of Article 30(1). It was held that words “establish and administer” in Article 30(1) must be read conjunctively. It was a case challenging an enactment relating to Aligarh Muslim University. Facts would go on to show that Muslim minority had established M.A.O. College and voluntarily surrendered the property, including the college building to the corporate body created under Aligarh Muslim University Act, 1920. It is in that context the Apex Court referred to the meaning of establish and administer under Article 30(1). After referring to Azeez Basha's case, in similar fact situation to this case, a Single Judge of this Court in Rt.Rev.Dr.Aldo Maria Patroni S.J. and another v. the Assistant Educational Officer (AIR 1974 Kerala 197) held as follows:
“even if an institution previously run by some other organisation is subsequently taken over by a minority community and run by it, it must be held that it was established by that minority community.”
7. The above judgment was also followed by Karnataka High Court in Dr.T.M.A. Pai Foundation v. State of Karnataka [ILR 1985 Karnataka 1056] and further elaborated opining that expression established in Article 30 includes not only the founding of institution, but also securing the ownership of an already founded institution, which means re-establishment of the institution under the new management and owner.
8. In etymological sense, the word “establish”
means founding or creation. However, it can have a different meaning in constitutional context, which is not just limited to b
