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N.P. UnnimoyIn Kutty Vs. the Asstt. Educational Officer, Kondotty and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKerala High Court
Decided On
Case NumberO.P. No. 4507 of 1980-E
Judge
Reported inAIR1984Ker124
ActsConstitution of India - Article 30(1); Kerala Education Act, 1959 - Sections 2(5); Kerala Education Rules, 1959 - Rules 44 and 45
AppellantN.P. UnnimoyIn Kutty
RespondentThe Asstt. Educational Officer, Kondotty and ors.
Appellant Advocate P.K. Shamsuddin and; A.A. Abdul Hassan, Advs.
Respondent AdvocateGovt. Pleader
DispositionPetition allowed
Cases ReferredState of Kerala v. Manager
Excerpt:
- .....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-in-charge 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.....
Judgment:

K. Bhaskaran, J.

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, Kon-dotty, 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 30(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 schoolwas 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-in-charge 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 thefacts 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.

4. We find in this case that not only the school was started by a Muslim, namely, the petitioner who belongs to that community, but also in the applica-tion for sanction of the school it was categorically stated that it was intended to be a minority school (Mappila school). It was founded in memory of Pookoya Thangal a spiritual leader of the Muslim community. The school follows the Muslim calendar, observing Fridays as holidays and treating the Ramzan period to be the long vacation. No doubt even in the case of the institutions which are not strictly minority schools, as permitted by Rule 4 (3) of Chap. VII K.M.R., schools in which the majority of the staff or pupils are Muslims may have Fridays as holidays instead of Saturdays which may be working days, irrespective of the fact that it is a minority school or a school of general character; even then, the fact that most of the pupils in a school, which was sanctioned to be a Mappila school, and for that school Ramzan period is the long vacation deserves to be taken into consideration along with other circumstances in deciding the character of the institution.

5. In deciding whether an institution is a minority institution or not, all the attending circumstances concerning its establishment and also of its administration have to be considered. Merely for the reason that the institution was established by an individual of the community, not by a community as a whole as a representative body, it would not neces-sarily 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 the community or the school comes under a corporate management or individual management. The decision of the Supreme Court in State of Kerala v. Mother Provincial, (1970 Ker LT 630) : (AIR 1970 SC 2079) and this Court in State of Kerala v. Manager, C. M. of Schools, (1970 Ker LT 106) would support this view.

6. Taking the facts and circumstances of the case I have no hesitation in holding that the school in question is a minority institution and that the provisions of Rules 44 and 45 of Chap. XIV-A of the K.E.R, would not be applicable to it. In that view the action taken by the 1st respondent, the Assistant Educational Officer, in issuing Ext. P-7 order dt. 20-11-1989 declaring that an earlier order. Ext. P-5, dt. 19-5-1980 issued by him, and holding that the school was a minority institution as defined in Section 2 (5) of the K. E. A. entitled to the benefits of Article 30(1) of the Constitution, is null and void, cannot be sustained.

7. For the foregoing reasons I allow the writ petition clashing Ext. P-7 order passed by respondent 1 and upholding Ext. P-5. There will be no order as to costs.


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