REV K C SETH Vs. STATE OF KERALA

JUDGEMENT

(1.) Both the Original Petitions are connected. O.P.No.7020 of 1989 was filed earlier in time. That Original Petition is by the Management of the Corporate Educational Agency, viz., North Kerala C.S.I. Educational Agency, praying to quash Ext. P3 circular of the Government and also to declare that the educational institutions mentioned in Ext. P1 are minority schools defined under S.2(5) of the Kerala Education Act. By Ext. P3 circular, the Government directed all controlling officers under the Kerala Education Rules to see that appointment of Headmasters of aided schools are made only in accordance with the provision in R.44 Chapter XIV-A of the said Rules. R.44 is extracted hereunder:

(2.) The other prayer in O.P.7020 of 1989 is for a declaration that the educational institutions mentioned in Ext. P1 are minority schools as defined under S.2 (5) of the Kerala Education Act. S.2 (5) of the Kerala Education Act defines minority school as not only established and administered, but also schools administered by the minority. S.2 (5) is as follows:

(3.) O.P. 9158 of 1989 is filed by a teacher to quash Ext. P1 order appointing the 4th respondent as Headmaster. Ext. P1 clearly states that the educational institution in question is administered by the North Kerala Educational Agency and is a minority institution. There is no whisper in the order that the institutions are established by a minority. The case of the petitioner is that he was appointed as a teacher in 1965 and that he has continuous service under the 2nd and 3rd respondents as a teacher with effect from 20-9-1967. His case is that overlooking his seniority, the 4th respondent, who was initially appointed as a teacher on 27-8-1968, has been promoted as Headmaster with effect from 1-4-1989 in the vacancy resulting from the retirement of one Mary Elizabeth on 31-3-1989. The promotion is in violation of R.44 Chapter XIV (A) of the Kerala Education Rules. The only justification claimed for the same is that the school in question is a minority institution in the sense that it is administered by a minority. If S.2(5) of the Kerala Education Act in its entirety is applicable, the contention of the management is correct. But as stated earlier, I have to read S.2(5) in conformity with Art.30(1) of the Constitution of India and in the light of the decisions of the Supreme Court as well as the Division Bench ruling of this Court. If so read, to claim the benefit of Art.30(1) of the Constitution read with S.2(5) of the Kerala Education Act, the respondents have to establish that the school is not only administered by the minority, but also was established by the minority. If R.44 Chapter XIV-A of the Rules applies without the aid of S.2(5) of the Act, there is no dispute that the petitioner being senior he is entitled to be appointed as Headmaster in preference to the 4th respondent. Petitioner states that respondents 2 and 3 are not entitled to claim the benefit of S.2(5) of the Act de hors Art.30(1) of the Constitution. The school was not established by the religious minority. In Para.5 of the Original Petition it is stated as follows: