K. RAJU VARGHESE Vs. STATE OF KERALA

JUDGEMENT

(1.) Both these writ petitions are for the same relief, to quash the Government Order dated 33-1980 holding that the K. M. U. P. School, Mallassery, Pathanamthitta is not a minority school entitled to the protection of Art.30 (1) of the Constitution. O. P. No. 1981 of 1980 is by the Manager of the school and O. P. No. 788 of 1980 is by the person appointed by the Manager as Headmaster of the school. The parties are referred to in this judgment according to the array of parties in O. P. No. 1981 of 1980 and the facts are stated with reference to the documents produced therein. The petitioner, while he was a Deacon of the Orthodox Church, established the school in the year 1932. The land and the buildings belong to him and he is the Manager of the school right from its inception. The post of Headmaster in the school fell vacant in the year 1972. The Manager appointed the 4th respondent, a teacher in the school, as Headmaster superseding the 3rd respondent who is admittedly senior to the 4th respondent. Incidentally it is to be stated that the 4th respondent is the son of the Manager. But, according to him, what persuaded him to appoint the 4th respondent as Headmaster was to keep up the institution as one established an administered for the benefit of the Christian community which is a religious minority entitled to the protection of Art.30 (1) of the Constitution. The appointment of the 4th respondent as Headmaster of the school was objected to by the 3rd respondent and the matter reached the Government on an earlier occasion when it passed Ext. P1 order dated 25-5-1974 holding that the institution concerned is a minority school and the Manager was free to appoint the Headmaster of his choice irrespective of the question whether there are qualified seniors available in the school or not. The 3rd respondent challenged Ext. P1 order of Government before this Court in O. P. No. 2475 of 1974 and a learned Judge of this Court by Ext. P2 judgment dated 19-3-1975 quashed Ext. P1 order and directed the 2nd respondent the Assistant Educational Officer to consider the question afresh after affording the parties an opportunity to adduce evidence and prove their respective case. The Assistant Educational Officer after hearing the Manager and respondents 3 and 4, and after considering the evidence adduced in the case passed Ext. P3 order dated 15-3-1976 declaring that the institution is a minority institution and approving the appointment of the 4th respondent as Headmaster of the school, In revision the Government as per Ext. P6 order dated 3-3-1980, on a re-appraisal of the evidence, has held that the institution in question is not a minority institution, it is owned and possessed by the Manager, and it is not shown that the institution is established and administered for and on behalf of the minority community or for its benefit. Accordingly the Government set aside Ext. P3 order of the Assistant Educational Officer and directed the Manager to appoint a Headmaster in the school in accordance with R.44 of Chapter XIV A of the K. E. R.

(2.) Even though the 2nd respondent Assistant Educational Officer had issued notice to the Manager as well as to respondents 3 and 4, and had also afforded all of them an opportunity to adduce evidence and prove their case, no notice of the revision was issued by the Government to the 4th respondent, nor was he made a party to the revision before the Government filed by the 3rd respondent.

(3.) If the institution is proved to be a minority institution entitled to the protection of Art.30(1) of the Constitution, the right of the Manager to appoint a Headmaster of his choice cannot be questioned. The principal question, therefore, in this case before the statutory authorities was as to whether the institution is proved to be one established and administered by or on behalf of the minority community or for its benefit. If the educational institution is owned and possessed by the Manager, he is entitled to transfer not merely his right of management, but also the land and buildings where the school is established at his free will. All that the K.E.R. enjoins is that a transfer of management will be effective only after the Department approves the transfer. It is also open to the petitioner Manager to close down the school if he does not want the establishment to be continued. It cannot, however, be said that merely for the reason that the institution is established and administered by an individual it cannot be a minority institution entitled to the protection of Art.30(1) of the Constitution. If it is shown that the institution, though established and administered by an individual, is either on behalf of the minority or for its benefit, it is entitled to protection of Art.30(1). This Court in Rajershi Memorial Basic Training School v. State of Kerala ( 1972 KLT 920 at page 922) states as follows:-