N P UNNIMOYIN KUTTY Vs. ASSTT EDUCATIONAL OFFICERKONDOTTY

JUDGEMENT

(1.) The petitioner. Sri N. P. Unnimoyin Kutty, is the Manager of P.M.S.A.P.T.M.A.M.L.P. School, Chevit-tanikunnu. Ext. P-7 order dt. 20-11-1980 the petitioner was told by respondent 1, the Assistant Educational Officer, Kondotty, that Ext. P-5 order dt. 19-5-1980 whereunder it was declared that the school in question was a minority institution as defined in Section 2, Clause (5), Kerala Education Act, entitled to the benefits of Article 3o (1) of the Constitution was null and void as according to him it was not supported by any provisions in the Kerala Education Rules as stated by the District Educational Officer in her letter No. 8290/80 dt. 30-10-1980.

(2.) Sri P. K. Shamsuddin, the counsel for the petitioner, submitted that the petitioner is a Muslim. He started the school utilising his own funds. He had sought permission for starting a Mappila School. The school is founded in memory of a spiritual leader Pookoya Thangel. The counter affidavit filed by the State shows that out of the 117 pupils in the particular year 105 were Muslims. The school was following the Muslim calendar, observing Fridays as holidays and treating Ramzan period as vacation According to him the school was started for the benefit of the Muslim minority community. He would therefore submit that Rules 44 and 45, Chap. XIV-A, of the K. M. R. would not be a bar against the said Mohammed being appointed as Headmaster or teacher-incharge of the school though respondent 4 had service for a larger period in the school in question.

(3.) Sri prakasam, the counsel for respondent 4, submitted that on the petitioner's on showing the school was established by an individual; and except for the averments made in the writ petition and the affidavit in support thereof, there is nothing to indicate that it was established or administered by or on behalf of a minority community. According to him the benefit of protection under Article 30 (1) of the Constitution would not be extended to cases where the individuals come forward to start institutions. He also submitted that in places where the majority of the pupils available to study are persons belonging to a minority community by that fact alone the school would not become a minority school entitled to the benefits of Article 30 (1) of the Constitution, unless it is also shown that the institution was started and administered by or on behalf of the community. Reliance was placed in support of this argument on the decision of this Court in Rajershi Memorial B. T. School v. State, (1972 Ker LT 920) : (AIR 1973 Ker 87) wherein Eradi J., as he then was, observed in para 3 at page 922 as follows : "In order that the petitioner should succeed in her claim based on Article 30 (1) of the Constitution she has to prove by production of satisfactory evidence that the school in question is one established and administered by a minority whether based on religion or language. The only material which she has produced before this Court in this regard consists of the averments contained in the original petition and the supporting affidavit filed by the petitioner. The mere fact that the school was founded by a person belonging to a particular religious persuasion is not at all conclusive on this matter. The institution must be shown to be one established and administered by or on behalf of the particular minority community." The observations in the passage extracted above would not be applicable to the facts of the case on hand. It was stated by Eradi J. in para 4 of the judgment in that case that the name given to the school was of some significance as it was named after a former Maharaja of Cochin, from which, if any inference could possibly be drawn from the said circumstance it was only that the institution was one intended for the general benefit of all the citizens of the locality; there was also no evidence placed before the Court to show that the local church or the parishioners attached to the church or the Christian community were in any manner associated with the founding of the school or its day to day subsequent administration; nor was it made out that any activity was carried on in the institution which was intended to promote the object of conserving the religion or culture of the particular minority.