Issue involved in all these 3 cases relates to appointment of the Headmaster at Kadapra St.Thomas High School, Niranam, against a vacancy which arose on 1/06/2002. Certain incidental issues relating to minority status of the school and dispute pertaining to managership of the school etc. are also to be considered. Since common issues are involved in all these 3 cases they were considered together and disposed of through this common judgment.
2. WP(C) 22474/2005 and 7695/2007 are filed by Smt.K.C.Valsamma, a High School Assistant (HSA) who was promoted as Headmistress. She was appointed as Headmistress of the school by virtue of Ext.P1 order in WP (C)7695/2007 with effect from 29/08/2003. The District Educational Officer had approved the appointment as evidenced from the endorsement contained in Ext.P1. Subsequently, by virtue of Ext.P2 order of the DEO dated 15/12/2004, the appointment was cancelled stating the reason that the managership of one Sri.K.K.Iype, who had appointed the petitioner as Headmistress, was cancelled by the Government. Ext.P2 was challenged by Smt.K.C.Valsamma and another H.S.A working in the said school, in a writ petition filed as WP(C) No.688/2005. In Ext.P3 judgment this court found that the appointment of Smt.K.C.Valsamma need not be affected by the dispute relating to the managership, in view of dictum contained in the decision of this court in Manager, St.Mary's High School Vs. Biji Abraham (2002 (1)KLT 406). But this court found that, a revision with respect to appointment of the Manager as well as with respect to the question as to whether the school is a minority institution coming under Article 30(1) of the Constitution are pending adjudication before this court in a writ petition. Therefore it was observed that the relief granted will be subject to the decision in the revision petition pending before the DPI as well as subject to decision in the writ petition pending before this court as WP(C) No.22474/2005. Ext.P2 order was quashed making it clear that the judgment will not prejudice the revision petition pending before the DPI with respect to the dispute of the managership as well as it will not prejudice interest of the parties in WP(C) 22474/2005.
3. After Ext.P3 judgment, the newly approved Manager, Professor C.A.Chacko, had suspended the petitioner by virtue of Ext.P4 order with effect from 04/01/2005, in contemplation of a disciplinary action initiated alleging irregularities and mis conduct, based on the memo of charges and statement of allegations issued. The Deputy Director of Education, after conducting a preliminary enquiry, had permitted to continue the period of suspension beyond 15 days, by virtue of Ext.P5 order issued on 21/3/2005. Disciplinary action initiated against the petitioner was finalised by the said Manager in Ext.P6 proceedings by imposing punishment of reversion as H.S.A and barring her promotion for 2 years, subject to approval by the educational authority. Therefore in Ext.P6 order issued Smt.K.C.Valsamma was reinstated only as H.S.A. Meanwhile an appeal filed by the petitioner against the Ext.P5 order permitting extension of the period of suspension was disposed of by the Director of Public Instructions (DPI) in Ext.P8. The petitioner filed revision before the Government challenging Ext.P8. The said revision petition was dismissed through Ext.P10 Order. In WP(C) 7695/2007 the petitioner seeks direction to grant all consequential monetary benefits by treating the suspension as illegal, and treating that she had continued in the service as Headmistress. It is submitted by learned counsel for the petitioner that Ext.P6 order through which the petitioner was reverted to the post of H.S.A was ultimately quashed by this Court in another Writ Petition, finding that the Manager has not obtained approval of the educational authority for imposing such punishment. However, learned counsel appearing for the Management has pointed out that the said issue is now pending adjudication in a writ appeal filed before this court and the operation of the said judgment stands stayed.
4. WP(C)No.22474/2005 was filed by Smt.K.C.Valsamma challenging Ext.P7 order issued by the Government approving appointment of another H.S.A, Rev.A.T.Raju as Headmaster, with effect from 01/06/2002, on the basis that the school in question is approved as a minority institution. The said order was issued also on the basis that, managership of Sri.C.A. Chacko, who had appointed Rev.A.T.Raju, was approved by the Government in Ext.P6 proceedings. The petitioner is challenging the decision of the Government to the extent of approving minority status to the school, mainly contending that such decision was not supported by any materials or valuable reasonings.
5. WP(C) No.16093/2006 is filed by another H.S.A. Sri.Jagi A. Jacob. In the said writ petition also, the very same Government Order which is challenged in WP(C) 22474/2005, issued on approving the minority status of the school, is under challenge.
6. Illustration of a brief history of the factual circumstances will be beneficial for adjudication of the issues involved. St.Thomas High School, Kadappra, Niranam was established long back, in the year 1093 M.E. during the year 1993, one Sri.T.K.Varghese was acting as the Manager of the school. Sri.K.K.Iype filed OS No.161/1995 before the Munsiff Court, Thiruvalla questioning validity of the election of the then Committee and the managership of Sri.T.K. Varghese. During pendency of the said suit, Sri. C.A. Chacko was elected as Manager in the place of Sri.T.K.Varghese, on 10/10/2000. While so vacancy of the Headmistress arose in the school on 01/06/2002, and the Manager Sri.C.A.Chacko had appointed Rev.A.T.Raju as Headmaster, with effect from 01/06/2002. The District Educational Officer, by virtue of an order dated 18/06/2002, had allowed Rev.A.T.Raju to act as Headmaster subject to approval of the appointment. The suit filed by Sri.K.K.Iype was dismissed on 30/10/2002. But in a proceedings issued by the District Educational Officer on 21/08/2003 Sri.K.K.Iype was permitted to act as Manager, until alternative set up is formulated by the proprietary body of the school, as per Ext.R4(m) [in WP(C) No.7695/2007]. Simultaneously, the District Educational Officer had also issued another proceedings Ext.R4(n) [in WP(C) No.7695/2007] declining approval of the appointment of Rev.A.T.Raju and directing to promote Smt.K.C.Valsamma as Headmistress. It is on the basis of the said order the appointment of Smt.K.C.Valsamma was approved by the District Educational Officer with effect from 29/08/2003 (Ext.P1 in WP(C) No.7695/2007). But it is contended by the counsel appearing for the management that the approval of appointment of Smt.K.C.Valsamma was stayed by this court in an interim order passed in WP(C) No.29201/2003. So also the order of the District Educational Officer permitting Sri.K.K.Iype to continue as Manager was also stayed in another writ petition, WP(C) No.40063/2003, through order dated 18/12/2003. Both the above writ petitions, WP(C) No.29201/2003 and 40063/2003 were disposed of through a common judgment [Ext.R4(p) in WP(C) No.7695/2007] on 16/06/2004. This court directed the Government to decide the issue with respect to the dispute relating to the managership, keeping the interim order passed in WP(C) No.29201/2003 in force till such time. It is on the basis of such direction that the Government approved Sri.C.A.Chacko as Manager by virtue of decision taken on 06/12/2004 (Ext.P6 in WP(C) No.22474/2005). So also, the Government on 28/03/2005 had accepted status of the school as a minority institution and directed to approve the appointment of Rev.A.T.Raju with effect from 01/06/2002(Ext.P7 in WP(C) No.22474/2005).
7. From the history enumerated above, it is evident that Rev.A.T.Raju was appointed as Headmaster by the Manager, Sri.C.A.Chacko on 01/06/2002. Smt.K.C.Valsamma was appointed with effect from 29/08/2003 as Headmistress while Sri.K.K.Iype was acting as Manager based on an order passed by District Educational Officer on 21/08/2003. Eventhough the appointment of Smt. K.C. Valsamma was approved by the District Educational Officer (DEO) it was stayed by this court in W.P (c) No.29201/2003. When the said writ petition was disposed of by directing the Government to take a decision, this court ordered continuance of the interim stay. On the other hand, appointment of Rev. A.T. Raju with effect from 01-06-2002 by Sri. C.A. Chacko was not approved on the basis that the DEO has permitted Sri. K.K. Iype to continue as Manager. Evidently both the dispute, one pertaining to managership and the other pertaining to eligibility for promotion as Headmistress, inter-se between Smt. K.C. Valsamma and Rev. A.T. Raju were referred for adjudication before the Government. This court had directed the Government to take an ultimate decision in both these aspects. Therefore outcome of the decision rendered by the Government, if approved by this court will govern the question regarding eligibility of those persons for promotion to the post of Headmaster.
8. In W.P (c) No.22474/2005 and in W.P (c) No.16093/2006 challenge is against the order passed by the Government approving appointment of Rev. A.T. Raju with effect from 01-06-2002 (Ext.P7 in W.P (c) No.22474/2005). Finding of the Government is that, Rev. A.T. Raju was appointed by Sri. C.A. Chacko, who was ultimately approved as Manager by the Government in the order dated 06-12- 2004 (Ext.P6 in W.P (c) No.22474/2005). The Government found that, at the time of promotion of Rev. A.T. Raju, Sri.
C.A. Chacko was acting as Manager on the strength of a court order. It is observed that, eventhough Rev. A.T. Raju was not the seniormost hand (H.S.A) in the school, his appointment as Headmaster is to be approved because the school was having minority status and was eligible to appoint a Headmaster of their choice from among qualified persons. In the said order the Government had approved minority status of the school. The petitioner in both the above said cases are mainly attacking the findings rendered by the Government approving the school in question as a minority institution.
9. On a perusal of the impugned Government order it is evident that the Government found that the school in question was established by virtue of an 'Udampadi' (agreement) registered as document No.115 of the year 1093ME at Mannar Sub Registry. The 'Udampadi' is executed by 15 members by contributing Rs.125/- each as their share. Categoric findings arrived by the Government is that, all the 15 persons who are signatories of the 'Udampadi' are members of St. George Orthodox Church, Kadapra. It was found that the administration of the school was vested in a committee of all the 15 members and the first among them was elected as President and the 9th among them was elected as Secretary. The Secretary was given power to act as Manager of the school. Provisions in the Udampadi is to the extent that, right of the committee members will devolve on their eldest son in the event of death of any one of the members. Accepting the materials produced before the Government, it was observed that out of 15 persons who constitute the committee, there are only 8 members surviving and that Sri. C.A. Chacko is the nominee of those persons. The management contended that the purpose for which the school was established by the members of St. George Orthodox Church was to educate their children in an institution having an atmosphere which is congenial to their religion. It was further contended that the minority status of the school was recognised earlier by the DEO in the year 2001 and the school in question was included in the list of minority institutions. The management also relied on a letter issued by the Deputy Director in the year 2000 to the above effect. The Government observed that, as held by this court in the decision in Evan's U.P. School V. State of Kerala (2001 (1) KLT 849), the competent authority to declare the institution as a minority institution is the Government. Considering the materials available, the Government found that the committee constituted by virtue of the 'Udampady' is the educational agency of the school and all members of such committee are members of the St. George Orthodox Church, Kadapra. Since it is proved from the constitution of the school that all the members of the committee belong to Christian, which is a minority community in the State, the school in question which was established and administered by the minority community is eligible for protection under Article 30 (1) of the Constitution.
10. Learned counsel appearing for the petitioner in W.P (c) Nos.22474/2005 and 7695/2007 contended that, approval granted by the Government with respect to minority status is not legally sustainable. According to him there was no proper materials available before the Government to arrive at a conclusion that the school in question was established by any minority community for the benefit of such community. He had placed reliance on the decision of the hon'ble Supreme Court in State of Kerala V. V.R.M. Provincial (1970) 2 SCC 417). While dealing with the ambit and scope of Article 30 (1) and parameters required for having benefit of the minority status, the apex court observed that Article 30 (1) contemplates two rights which are separate in point of time. One is the right to establish institutions of minority's choice. Establishment means the bringing into being of an institution and it must be by a minority community. The court observed that, it matters no difference in a single philanthropic individual with his own means found the institution or the community at large contributes the funds. The position in law is the same and the intention in either case must be to found an institution for the benefit of the minority community by a member of that community. It is held that, it is equally irrelevant that in addition to the minority community, other persons of the minority communities or even the majority community can take advantage of such institution. The next part of the right relates to administration of such an institution. Administration means management of the affairs of the institution. The management must be free of control so that founders or their nominees can mould the institution as they think fit, and in accordance with their ideas of how the interest of the community in general and the institution in particular will be best served. The hon'ble Supreme Court observed that no part of such rights can be taken away and vested in another body without encroachment upon the constitutional guarantee.
11. Learned counsel further relied on a Division Bench decision of this court in Haji Abdul Salam V. State of Kerala (2004 (3) KLT 826). While reversing a decision of a learned Judge of this court in Unaided Recognised Schools Parents Association V. State of Kerala (2000 (2) KLJ 54) it is held that, the proposition that a corporate body alone can manage a minority institution and not an individual and that the individual would not get the benefit of Article 30 (1), is not a correct enunciation of law. Referring to the decisions of the apex court in V.R.M. Provincial's case (supra) and in St. Thomas U.P. School V. Commissioner and Secretary to Govt (2002 (1) KLT 655 (SC), the Division Bench found that, even a single philanthropic individual with his own means can found institution.
12. But learned counsel for the petitioner pointed out that the materials relied on by the Government would not be sufficient to show that the school was established and maintained by a minority community. In Haji Abdul Salam's case (cited supra) the Government found that the school is having mid-day interval between 12.30 to 2.30 p.m. Second Friday of every month is declared as holiday instead of 2nd Saturday. No open meal is permitted during 'Ramzan' and the school is managed by the members of a Muslim family. The Bench observed that the document with respect to establishment of the school would not show that the school was established and maintained by a minority community. Hence it is held that the rejection of the minority status is justified. According to learned counsel for the petitioner apart from the 'Udumpadi' of the year 1093ME no other document is produced to show that the school was established by a minority community. It is also lacking in evidence that the school is administered by minority community for the benefit of the said community, is the contention.
13. In the counter affidavit filed on behalf of the management it is contended that the school is a minority institution which is established by Christians for promotion of education in the community. It is pointed that, from the very beginning of the school spiritual and moral knowledge was being imparted. Exhibit R3 (b) is the log book produced which would indicate that, various religious heads had visited the school and administered sermon and other religious functions and imparted moral knowledge. It is pointed out that St. Thomas Day was being celebrated in the school to commemorate the good Apostle who brought gospel to Kerala. Eventhough there occurred any omission in the document which was executed prior to the inception of the Kerala Education Rules, it would not deny the protection envisaged under Article 30 (1) of the Constitution of India, is the contention. Various documents are produced along with the counter affidavit of the management in W.P (c) No.7695/2007. It includes the Admission Register of the school for the period from 15-10-1092ME to 09-10-1115 ME. It is pointed out that more than 90% of the students belong to the minority religion which had established the school.
14. Contention on behalf of the management is to the effect that, approval of the minority status is only a declaration of the existing right accrued on the basis of the factual position in existence. The declaration is only having the effect of accepting of legal characteristics which existed in antecedent to such declaration. Approval of minority status will only enable the management to claim protection from relevant provisions of the Education Rules, in the matter of appointment of the Headmaster. It is pointed out that, on various previous occasions Priests from the community were appointed as Headmasters of the school. Learned counsel appearing for the management had placed reliance on the decision of this court in Unnimoyin Kutty V. Assistant Educational Officer (1983 KLT 121). It is held that, in deciding the question whether an institution is a minority institution or not, all the attending circumstances concerning its establishment and its administration have to be considered. Merely for the reason that the institution was established by an individual and not by a community as a whole, as a representative body, it would not necessarily mean that it is not a minority institution. The real test is whether the institution is established and administered for the benefit of the minority, irrespective of the fact that it is started by an individual of the community or by an organisation representing by a community. There also this court had placed reliance on the decision in V.R.M. Provincial's case (cited supra). Learned counsel also placed reliance on the decision in Ammad V. Emjay High School (1998 (2) KLT 828 (SC). Hon'ble Justice K.T. Thomas (as he was then) observed on behalf of the Bench that, when the Government declared the school as a minority school it has only recognized 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 the apex court observed that it is unable to agree with the contention that the school can claim protection only after the Government declared it as a minority school.
15. Question mooted for decision is as to whether the acceptance made by the Government with respect to the minority status of the school suffers from any illegality or unsustainability. Learned counsel for the petitioners contended that there was no ample materials available before the Government to arrive at a conclusion that the school was established and administered by a minority community for the benefit of such community. It is pointed out that the 'Udampadi' of the year 1093ME will not indicate anything to the effect that the school was established and administered by a minority community for the benefit of the said community. Of course, the 'Udampadi' does not indicate anything that the establishment was for the benefit of the community. But the recital is to the effect that all the 15 persons, who were the executants of the 'Udampadi' and who had contributed for establishment of the school belongs to the Christian community under the same congregation. It is contended that the primary authority being the covenent, no other attendant circumstances should be proved or considered in arriving at an appropriate conclusion with respect to the minority status. But while accepting the settled legal position that it is only a declaration of an existing right, this court is of the considered opinion that all attendant circumstances can also be evaluated in the process of judicial review. Materials produced before this court as well as the uncontroverted pleadings on behalf of the management would indicate that exercise of minority rights from the side of the management on earlier occasions were accepted by the educational authorities and the Government. On several occasions the management had appointed Headmasters of their own choice by overlooking seniority, exercising the right of minority institutions. Materials are produced to show that the school is following procedure and practice which are more congenial to the faith, belief and rites of Christian community, which is admittedly a minority community. Evidently, majority of the students of the school are beneficiaries belonging to the minority community. Events and functions being conducted in the school all along would reveal that prominence was given to religious sermons and other aspects of the community. All these attendant circumstances coupled with nature of the 'Udampadi' and its recitals would persuade this court to approve the decision taken by the Government with respect to declaration of the minority status. Hence challenges raised in W.P (c) Nos.22474/2005 and 16093/2006 against the findings rendered by the Government on the question of minority status fails. Therefore this court is inclined to uphold the Government order, which is impugned in the above said two writ petitions.
16. Issue mainly agitated in W.P (c) No.7695/2007 pertains to suspension and disciplinary action taken against Smt. K.C. Valsamma. It is admitted that the punishment imposed by the Manager was already quashed by this court in a writ petition. The said decision is now pending challenge in a Writ Appeal filed by the Manager. Smt. K.C. Valsamma had challenged the proceedings issued by the Deputy Director permitting continuance of the period of suspension beyond 15 days, before the Government in a revision petition. It is mainly contended that, the approval for continuance of the suspension from the educational authority should be obtained within a period of 15 days, from the date of suspension. If the educational authority has not permitted continuance of the suspension within a period of 15 days itself, the order of suspension will become invalid and the teacher in question will be deemed to be reinstated. In support of the above contention the petitioner had relied on a Division Bench decision of this court in Manager, S.N.V. High School V. State of Kerala (1982 KLT 229). Referring to provisions contained in Rule 67 (8) of Chapter XIVA K.E.R this court held that if the educational authority finds initially there were valid grounds for suspension, a discretion is given to him to permit the Manager to keep the teacher in suspension beyond 15 days. The educational authority exercising such power has to decide, in a given case, having regard to the circumstances and facts brought to its notice, either to allow extension beyond 15 days or not. It is significant to note that, an order under Rule 67 (8) has to be passed within the original 15 days, the period during which the Manager has power to suspend without permission. It is held that, any order passed beyond 15 days, therefore will not be an order under Rule 67 (8). It is evident from Ext.P10 order passed by the Government that the petitioner had raised a specific contention that the Deputy Director of Education had issued the order permitting suspension beyond 15 days, only after lapse of period of 15 days. The Government found that the suspension had taken effect on a subsequent date because the petitioner was continuing in the post of Headmistress. Observation is to the effect that, if computed from the date on which the suspension order had taken effect, there is no delay. However the Government have not arrived at any specific conclusion with respect to the claim of the petitioner that she was deemed to be continuing in service on the expiry of 15 days from the date of the order of suspension. But the specific finding arrived to the effect that Smt. K.C. Valsamma was never duly appointed as Headmistress of the school. The findings in Ext.P10 order is that, she was appointed only by an illegal manager whose claim for managership was dismissed by the Munsiff's Court. Therefore the relief sought for in W.P (c) No.7695/2007 to direct the respondent to treat the petitioner as H.M cannot be granted in view of acceptance and confirmation of the findings contained in Ext.P10. Regularisation of the period of suspension in the post of H.S.A would depend upon the final decision and outcome of the disciplinary proceedings initiated against Smt. K.C. Valsamma.
17. Under the above mentioned circumstances all these writ petitions are liable to be dismissed, and this court orders so.
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C.K. ABDUL REHIM JUDGE MJL/AMG True copy P.A. to Judge