Allowed

A.Raju v. the Manager

Kerala HC5 Aug 2019WA/864/2019

Case brief

AI extract

What is this about?

This judgment allows the writ appeal challenging a single judge order that declared a private school a minority institution. The Appeal Court held that 'established' and 'administered' are conjunctive conditions under Article 30(1). Since the school was originally established by a non-minority, it cannot claim minority status via later purchase by a minority member, regardless of current administr

What did the court decide?

The judgment of the Single Judge in WP(C) 30949/2018 is set aside and Exhibit P2 declaring minority status is quashed. Liberty granted to petitioners to approach statutory authorities regarding the He

A.Raju Vs the Manager — Pension and Retirement Benefits | Kerala HC (2019)

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“C.R”

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

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THE HONOURABLE MR.JUSTICE V.G.ARUN

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MONDAY, THE 05TH DAY OF AUGUST 2019 / 14TH SRAVANA, 1941

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WA.No.864 OF 2019

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AGAINST THE ORDER/JUDGMENT IN WP(C) 30949/2018(P) OF HIGH COURT OF KERALA

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APPELLANT/S:

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1 A.RAJU

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AGED 46 YEARS S/O. A. CHOYI, AVVATHOOTTIL HOUSE, KUNNAMANGALAM P.O., KOZHIKODE - 673 571

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2 PRASEETHA.P.K. AGED 35 YEARS W/O. A JYOTHISH KUMAR, VAIDIAR THODI HOUSE, RAMANATTUKARA P.O., KOZHIKODE - 673 633

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3 BEENA P AGED 52 YEARS

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W/O. M.K. ASOKAN, COLLEGE ROAD, RAMANATTUKARA P.O., KOZHIKODE - 673 633

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BY ADVS. SRI.T.G.RAJENDRAN SRI.T.R.TARIN SRI.V.A.VINOD

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RESPONDENT/S:

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1 THE MANAGER NALLOOR, NARAYANA L.P BASIC SCHOOL, FAROOK P.O., KOZHIKODE - 673 361

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2 THE ASSISTANT EDUCATIONAL OFFICER FAROOK, KOZHIKODE - 673 631

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3 GOVERNMENT OF KERALA REPRESENTED BY THE SECRETARY, DEPARTMENT OF

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GENERAL EDUCATION, THIRUVANANTHAPURAM - 1

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4 T. SUHAIL THEKKIL HOUSE, KALLIKOODAM, FEROKE.P.O., KOZHIKODE - 673 631

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5 NATIONAL COMMISSION FOR MINORITY EDUCATIONAL INSTITUTIONS GATE NO.4, 1ST FLOOR, JEVAN TARA BUILDING, PATEL CHOWK, PARLIAMENT STREET, NEW DELHI - 110 001

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R1 BY ADV. RAJASEKHARAN NAIR (BY ORDER) R2-3 BY SR.GOVERNMENT PLEADER SRI.A.J.VARGHESE(BY ORDER)

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R5 BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA

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OTHER PRESENT:

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THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 05.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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“C.R”

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K.VINOD CHANDRAN & V.G.ARUN, JJ.

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W.A.No. 864 of 2019

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Dated this the 5^th day of August, 2019

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JUDGMENT

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Arun, J.

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The appellants had filed the writ petition challenging Exhibit P2 order, declaring the Nallur Narayana L.P Basic School (for short, 'the School') as a minority educational institution within the meaning of Section 2(g) of the National Commission for Minority Educational Institutions Act, 2004 (Act 2 of 2005) (for short, 'the Act 2 of 2005'). The appellants are Lower Primary Teachers in the School and are aggrieved by the appointment of the 4^th respondent as Headmaster of the School overlooking the seniority of the appellants.

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A conspectus of the essential facts are as follows: The Nallur Narayana L.P Basic School was established in the year 1936 by Sri.Nallur Narayana Menon. After the death of Nallur Narayana Menon, his son Sri.K.K.Sasidharan took over as Manager of the School. In the year 2005, Sri.K.K.Sasidharan transferred the management of the School, including its properties, to one P.K.Mohammed Hajee. The transfer was approved by the Assistant Educational Officer, Feroke as per

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order No.K.Dis.18/04/D dated 12.7.2005 and by the Director of Public Instructions vide order No.G3/82087/04/K.Dis. dated 28.3.2005. Much later, on 14.8.2013, the new Manager filed an application before the State Government for No Objection Certificate for the purpose of establishment of a Minority Educational Institution. No order was passed on the application. Therefore, in December, 2014, the Manager submitted Exhibit P1 application before the National Commission for Minority Educational Institutions ('the National Commission' for brevity). By Exhibit P2, the National Commission declared minority status of the School and issued Exhibit P3 certificate. According to the petitioners, seniority among the teachers, which otherwise should have been the relevant consideration for the purpose of promotion as Headmaster, was overlooked by the Manager on the strength of the minority status and the 4^th respondent, who is none other than the son of the Manager, was appointed as Headmaster.

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The challenge in the writ petition against the grant of minority status to the School was on the ground that, in order to be a Minority Educational Institution, the institution should have been 'established and administered' by a minority community. The Nallur Narayana L.P. Basic School having been established by Sri.Nallur Narayana Menon, who was not the member of any minority community and the School itself having not been established for the benefit and betterment of the

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students belonging to a minority community, the mere fact that, at a later point of time, the School was transferred and was thereafter being administered by the member of a minority community would not entitle the School to claim the status of a minority educational institution.

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In the counter affidavit filed on behalf of the 1^st respondent Manager it was contended that even though the School was initially established by Sri.Nallur Narayana Menon, the subsequent purchase by Sri.T.K.Mohammed Hajee, who admittedly is a member of the minority Muslim community, changed the character of the School to that of a minority educational institution, since, after the transfer, the School is being administered by the members of a minority community, for the benefit of the students of their community.

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The learned single Judge held that, though in an etymological sense, the word 'established' means founding or creation, it can have a different meaning in the constitutional context, which is not limited to bringing into existence an educational institution through its founding. That, the main object of Article 30(1) of the Constitution of India being to accord protection to minorities and to create a sense of feeling among the minorities that they have equal rights with the majority and to bring up institutions to compete with any other institution of excellence, an educational institution purchased by a minority and

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dedicated for the cause of minority would also fall within the meaning of the word 'established' under Article 30(1). It was therefore held that the word 'established' would embrace giving life and soul to any existing institution through dedication. For arriving at such conclusion, the learned single Judge relied on the decision of this Court in

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Rt.Rev.Dr.Aldo Maria Patroni S.J. and another v. The Assistant Educational Officer [AIR 1974 Kerala 197] and that of the Karnataka High Court in Dr.T.M.A. Pai Foundation v. State of Karnataka [ILR 1985 Karnataka 1056].

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The petitioners also challenged the jurisdiction of the National Commission to decide upon the status of minority educational institutions, in the light of Section 10 of the Act 2 of 2005 providing for submission of application for establishment of a minority educational institution before the competent authority, which, as far as establishment of an educational institution within the State is concerned, would be the State Government. The learned single Judge repelled the challenge by relying upon the decisions of the Honourable Supreme Court in Sisters of St.Joseph of Cluny v. The State of West Bengal [(2018)6 SCC 772] and Paramveer Albert Ekka Memorial College v. State of Jharkhand [(2018)6 SCC 788] wherein it was held that the National Commission has the power to decide all questions relating to the status of an institution as a minority

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educational institution and to declare its status as such. Based on the findings, the writ petition was dismissed.

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The challenge in this writ appeal is also on the ground that only an educational institution established and administered by a minority could claim to be a minority educational institution and the finding to the contrary in the impugned judgment is unsustainable.

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For the purpose of answering the question, we have to consider the relevant provisions in the Constitution of India, the Act 2 of 2005 and the notifications issued thereunder. Articles 29 and 30 embodied in Part III of the Constitution deals with the fundamental rights of the citizens. Article 29 deals with protection of interests of minorities and Article 30 specifically deals with the right of minorities to establish and administer educational institutions. Article 30(1), which is relevant, reads as under:

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“ All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.”

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The purpose behind Articles 29 and 30 is to provide the minorities with a sense of security and belonging, feeling of confidence and consciousness of equality and to extend to the minorities an equal platform for providing education to the members of their community and thereby equip them to be at par with the others.

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The question that looms large is as to whether, for the

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purpose of claiming minority status, the educational institutions are to be established and administered by the minority, or whether either establishment or administration, by itself, would satisfy the requirement. A plain reading of Article 30(1) would indicate that only an institution which is established and administered by a minority could claim the status of a minority educational institution. The question as to whether the term 'establish and administer' is conjunctive or whether it can be understood to be disjunctive was considered by the Honourable Supreme Court in Azeez Basha v. Union of India [AIR 1968 SC 662]. The decision in Azeez Basha's case was rendered on a challenge raised against the constitutionality of the Aligarh Muslim University (Amendment) Act LXII of 1951 and the Aligarh Muslim University (Amendment) Act XIX of 1965. The challenge was based on the claim that Aligarh Muslim University having been established by the minority Muslim community, the Muslims had the right to administer the University and that the amendments brought about through the Acts of 1951 and 1965, in so far as they take away or abridge any part of that right are ultra vires Article 30(1) of the Constitution of India. In Azeez Basha's case (supra) an argument was raised to the effect that even though the religious minority may not have established the educational institution, it will have the right to administer it, if by some process, it had been administering the

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same before the Constitution came into force. This argument was stoutly repelled by the Apex Court in the following words:

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“19.Under Article 30 (l), "all minorities whether based on religion or language shall have the right to establish and administer educational institutions of their choice." We shall proceed on the assumption in the present petitions that Muslims are a minority based on religion. What then is the scope of Article 30 (1) and what exactly is the right conferred therein on the religious minorities? It is to our mind quite clear that Article 30 (1) postulates that the religious community will have the right to establish and administer educational institutions of their choice meaning thereby that where a religious minority establishes an educational institution, it will have the right to administer that. An argument has been raised to the effect that even though the religious minority may not have established the educational institution, it will have the right to administer it, if by some process it had been administering the same before the Constitution came into force. We are not prepared to accept this argument. The Article in our opinion clearly shows that the minority will have the right to administer educational institutions of their choice provided they have established them, but not otherwise. The Article cannot be read to mean that even if the educational institution has been established by somebody else, any religious minority would have the right to administer it because, for some reason or other, it might have been administering it before the Constitution came into force. The words "establish and administer" in the Article must be read conjunctively and so read it gives the right to the minority to administer an educational institution provided it has been established by it. In this connection our attention was drawn to In re; The Kerala Education Bill, 1957, 1959 SCR 995: (AIR 1958

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SC 956) where, it is argued, this Court had held that the minority can administer an educational institution even though it might not have established it. In that case an argument was raised that under Article 30 (1) protection was given only to educational institutions established after the Constitution came into force. That argument was turned down by this Court for the obvious reason that if that interpretation was given to Article 30 (1) it would be robbed of much of is content. But that case in our opinion did not lay down that the words "establish and administer" in Article 30 (l) should be read disjunctively so that though a minority might not have established an educational institution it had the right to administer it. It is true that at p. 1062 (of SCR): at p. 982 of AIR) the Court spoke of Article 30 (l) giving two rights to a minority i. e. (i) to establish and (ii) to administer. But that was said only in the context of meeting the argument that educational institutions established by minorities before the Constitution came into force did not have the protection of Article 30 (1). We are of opinion that nothing in that case justifies the contention raised on behalf of the petitioners that the minorities would have the right to administer an educational institution even though the institution may not have been established by them. The two words in Article 30 (1) must be read together and so read the Article gives the right to the minority to administer institutions established by it. If the educational institution has not been established by a minority it cannot cliam the right to administer it under Article 30 (1). We have therefore to consider whether the Aligarh University was established by the Muslim minority; and if it was so established, the minority would certainly have the right to administer it.”

(Emphasis Supplied)

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The question again came up for consideration in State of Kerala v. Very Rev.Mother Provincial [AIR 1970 SC 2079]. The appeal therein arose out of a judgment of this Court which had declared certain provisions of the Kerala University Act, 1969 to be ultra vires the Constitution of India. The petitioners, who mounted the challenge, belonged mainly to different denominations of the Christian community. The challenge was on the ground that certain provisions of the Kerala University Act militated against the fundamental rights of the minority communities to establish and administer their educational institutions. The five judge bench of the Apex Court held 'establishment' and 'administration' as two rights which are separated in point of time. The discussion in Paragraphs 8 and 9 of the judgment reads as under:

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“8.Article 30 (1) has been construed before by this Court. Without referring to those cases it is sufficient to say that the clause contemplates two rights which are separated in point of time. The first right is the initial right to establish institutions of the minority's choice. Establishment here means the bringing into being of an institution and it must be by a minority community. It matters not if a single philanthropic individual with his own means, founds 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 a minority community by a member of that community. It is equally irrelevant that in addition to the minority community others from other minority communities or

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even from the majority community can take advantage of these institutions. Such other communities bring in income and they do not have to be turned away to enjoy the protection.

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9.The next part of the right relates to the administration of such institutions. Administration means 'management of the affair's of the institution. This management must be free of control so that the founders or their nominees can mould the institution as they think fit, and in accordance with their ideas of how the interests of the community in general and the institution in particular will be best served. No part of this management can be taken away and vested in another body without an encroachment upon the guaranteed right.”

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In DAV College, Bhatinda v. State of Punjab and Others [AIR 1971 SC 1737], the Apex Court considered the inter play between Articles 29 and 30 and held as follows:

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“6....It will be observed that Article 29 (1) is wider than Article 30 (1), in that, while any Section of the citizens including the minorities, can invoke the rights guaranteed under Article 29 (1); the rights guaranteed under Article 30 (1) are only available to the minorities based on religion or language. It is not necessary for Article 30 (1) that the minority should be both a religious minority as well as a linguistic minority. It is sufficient if it is one or the other or both. A reading of these two Articles together would lead us to conclude that a religious or linguistic minority has a right to establish and administer educational institutions of its choice for effectively conserving its distinctive language, script or culture, which right however is subject to the regulatory power of the State for maintaining and facilitating the excellence of its standards. This right is further subject to Clause (2) of Article 29 which provides that no citizen shall be denied admission into any educational institution which is maintained by the State or receives aid out of State funds, on grounds only

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of religion, race, caste, language or any of them. While this is so these two articles are not inter-linked nor does it permit of their being always read together.”

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The scope and ambit of Article 30(1) was considered

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threadbare by an eleven member Bench of the Supreme Court in

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T.M.A.Pai Foundation and Others v. State of Karnataka and

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Others [(2002) 8 SCC 481], which, to this day, is the most authoritative pronouncement on the fundamental right under Article 30 to establish and administer minority educational institutions. The Honourable Supreme Court held the fundamental right of the minorities to establish and administer educational institutions to be inviolable. It was also held that the right to administer does not mean the right to maladminister. The right of the Government to bring in reasonable regulations with regard to education was also recognised. According to the Apex Court, when the Government frames Rules and Regulations or lays down norms, especially with regard to education, one must assume that unless shown otherwise, the action taken is in accordance with law.

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The learned Single Judge relied on the decision rendered by this Court in Rt.Rev.Dr.Aldo Maria Patroni's case (supra) to hold

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that even an institution which is not established by a minority but subsequently taken over and administered by a minority would satisfy the requirement under Article 30(1). The facts in Rt.Rev.Dr.Aldo

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Maria Patroni shows that, though a contention was raised that the School therein was originally established by the Basel German Mission and not by the minority Roman Catholic community, that contention was repelled in the absence of evidence to support such contention. It was in that context the Court proceeded to hold that for establishment of a School it is not necessary that the School must have been constructed by the community and that even if a school previously run by some other organisation is taken over or transferred to the Church and the Church reorganises and manages the School to cater to and in conformity with the ideals of the Roman Catholics it can be safely concluded that the School has been established by the Roman Catholics. It was also held that the various exhibits produced in that case clearly justified the conclusion that the School was established and administered by the Roman Catholic community represented by the Bishop of Calicut. The Court went on to hold that the petitioners on whom the burden of proving that the School is established and administered by the minority community was fastened, had satisfactorily proved that fact. Understood in the factual background in which the observations in Rt.Rev.Dr.Aldo Maria Patroni's case (supra) were made, there is no difficulty to hold that the decision does not lay down a legal proposition that either 'establishment' or 'administration' of an educational institution by a minority would

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suffice for the purpose of declaring that institution to be a Minority Educational Institution. A conspectus of the decisions aforementioned and the provisions of the Act 2 of 2005 would lead to the irresistible conclusion that the declaration of an educational institution as a minority educational institution would depend upon on the satisfaction of the twin conditions of establishment and administration of such educational institution by a minority or minorities.

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The Government enacted the National Commission for Minorities Act, 1992 for the purpose of constituting a National Commission for Minorities and to provide for matters connected therewith and incidental thereto. As per Section 2(c) of the Act, 'minority', for the purposes of the Act, means a community notified as such by the Central Government. Accordingly, the Central Government, vide SO.No.816(E),F.No.1/11/93-MC(D) dated 23.10.1993 notified the minority communities for the purposes of the Act, namely,

(i) Muslims

(ii) Christians

(iii) Sikhs

(iv) Buddhists

(v) Zorastrians (Parsis)

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Later, Act 2 of 2005 was enacted with the purpose of constituting a National Commission for Minority Educational Institutions and to provide for matters connected therewith or incidental thereto. Section 2(g) of the Act defines Minority Educational Institutions as, a college or

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an educational institution established and administered by a minority or minorities. Section 10 of the Act requires any person, who desires to establish a Minority Educational Institution to apply to the competent authority for the grant of No Objection Certificate for the said purpose. As per Section 2(ca) 'competent authority' means, the authority appointed by the appropriate Government to grant no objection certificate for the establishment of any educational institution of their choice by the minorities. Appropriate Government has been defined under Section 2(aa) to be the Central Government, in relation to an educational institution recognised for conducting its programmes of studies under any Act of Parliament, and the State Government in relation to any other educational institution recognised for conducting its programmes of studies under any State Act, within the jurisdiction of which the educational institution is established. As per Section 11(f), the functions of the National Commission include the power to decide all questions relating to the status of the institution as a minority educational institution and to declare its status as such. Under Section 12(b), the National Commission is conferred with the power to consider appeals filed against rejection of application for grant of minority status to any educational institutions by an authority established by the Central Government or State Government, as the case may be. Hence, the competent authority is empowered to issue no objection

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certificate for the purpose of establishing a minority educational institution and the National Commission is conferred with the authority to decide all questions relating to the status of any institution as a minority educational institution and declare its status as such.

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A perusal of Exhibit P2 order of the National Commission would show that the Commission had come to the conclusion that the School is eligible for grant of minority status on finding that the School was being administered by an individual Muslim. The other finding is that the evidence also prove that the School was established with the main objective of sub-serving the interest of the Muslim community. According to us, the latter finding seems to have been rendered without any basis. Moreover, Article 30(1) and Section 2(g) mandate that a minority educational institution should be one established by a minority and not an educational institution established, with objective of sub-serving the interest the minority, by a person who does not belong to the minority community. For the aforementioned reasons, we are unable to ascribe to the reasoning in Exhibit P2 and the consequent decision granting minority status to the School.

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As far as the challenge against the authority of the National Commission to issue Exhibit P2 is concerned, we are in agreement with the finding rendered by the learned Single Judge, based on the decisions in Sisters of St.Joseph of Cluny and Paramveer Albert

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Ekka Memorial College's case (supra) that the National Commission has the power to decide all questions relating to the minority status of an educational institution.

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In the result, the writ appeal is allowed by setting aside the judgment and in W.P(C) No. 30949 of 2018 and quashing Exhibit P2 order by which the Nallur Narayana L.P School was declared to be a Minority Educational Institution. The challenge against the appointment of the 4^th respondent as Headmaster of the School has to be agitated before the statutory authorities, for which the petitioners are granted liberty.

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Sd/- K.VINOD CHANDRAN JUDGE

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Sd/- V.G.ARUN JUDGE

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vgsx

A.Raju v. the Manager

Case brief

What is this about?

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A.Raju v. the Manager

Case brief

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