Minority Status cannot be conferred on educational institutions established by non–minority: Supreme Court upholds Kerala High Court's decision

04-Dec-2019

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Adv K V Sreemithun

The Supreme Court of India dismissed the Special Leave Petition filed by the Manager of Nalloor Narayana L.P.Basic School on Friday, thereby upholding the judgement of the Division Bench of the Kerala High Court which set aside the judgement of the Ld. Single Judge thereby affirming the minority status of Nalloor Narayana L.P. Basic School. The decision of the Supreme Court has wide, far-reaching ramifications as thousands of schools were purchased by the minority communities from the majority community and the consequent grant of minority status to such educational Institutions, changed the very structure of these institutions. The close relatives the new owners were appointed as Head Masters of these schools, thereby overlooking the seniority and hampering the service rights of thousands of lower primary teachers. The rampant purchase of the educational institutions and consequent grant of Constitutional recognition had resulted in a chaotic situation, thereby creating serious ripples in the Society. A bench consisting of Hon’ble Justice D.Y.Chandrachud and Hon’ble Justice Hrishikesh Roy while dismissing the Petition, observed that the Kerala High Court Division Bench Judgement warrants no intervention of the Apex Court as minority rights cannot be granted to educational institutions established by persons belonging to non - minority.

Let us explore the facts leading to the path-breaking decision, the Nalloor Narayana L.P Basic School, was established in the year1936, by Shri. Nalloor 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.Sasidharantransferred the management of the School, including its properties, to one P.K.Mohammed Hajee. 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 Managersubmitted 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 fourth respondent, who is none other than the son of the Manager, was appointed as Headmaster.

The appellants in the writ appeal are all Primary Teachers of the Nalloor Narayana Basic School, they had filed the writ petition before the Hon’ble Kerala High Court, thereby challenging the Exhibit P2 order of the National Commission for Minority Educational Institutions, declaring the Nalloor Narayana L.P Basic 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) ( 'the Act 2 of 2005'). The Lower Primary Teachers were aggrieved by the appointment of the T.Suhail, as the Headmaster of the School, overlooking the seniority of the appellants, T.Suhail is the son of the T.K. Muhammed Haji, who purchased the school in 2005 from K.K.Sasidharan.

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 MinorityEducational 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 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 institutions.

On behalf of the 1st Respondent, i.e. the Manager of the School, it was contended that even though the School was initially established by Sri.Nalloor Narayana Menon, the subsequent purchase by Sri.T.K.MohammedHajee, 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.

The Ld. 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 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 Rt.Rev.Dr.Aldo Maria Patroni S.J. and another v. The AssistantEducational Officer [AIR 1974 Kerala 197] and that of the KarnatakaHigh Court in Dr.T.M.A. Pai Foundation v. State of Karnataka [ILR1985 Karnataka 1056].

The Primary Teachers of Nalloor Narayana LP Basic School, preferred a challenge to the Single Bench decision of Hon’ble Kerala High Court vide a writ appeal 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.

The Hon’ble Division Bench of Kerala High Court made the following interesting observations we have to consider the relevant provisions in the Constitution of India, the Act 2of 2005 and the notifications issued thereunder. Articles 29 and 30embodied 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:

“All minorities, whether based on religion or language,

shall have the right to establish and administer educational

institutions of their choice.”

The purpose behind Articles 29 and 30 is to provide theminorities with a sense of security and belonging, feeling of confidenceand 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.

10. The question that looms large is as to whether, for the purpose of claiming minority status, the educational institutions are tobe established and administered by the minority, or whether either establishment or administration, by itself, would satisfy there quirement. 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 Hon’ble Division Bench of Kerala High Court relied upon AzeezBasha case decided by the Hon’ble Supreme Court to answer the aforementioned queries. 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 Hon’ble Supreme Court in AzeezBasha v.Union of India [AIR 1968 SC 662]. The decision in AzeezBasha'scase 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 theConstitution of India.

In AzeezBasha's case an interesting argument was put forth 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. This argument was stoutly repelled by the Apex Court in the following words:

“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 toIn re; The Kerala Education Bill, 1957, 1959 SCR 995: (AIR 1958SC 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)

The Division Bench further found that the issue had been dealt up in the matter titled 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 beultra 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:

“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 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.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.”

The Hon’ble Division Bench of Kerala High Court thereafter discussed in detail the intricacies of the National Commission for Minorities Act and the Act 2 of 2005 which guides the Educational Institutions. The Court observed as follows: Government enacted the National Commission for Minorities Act, 1992 for the purpose of constituting a NationalCommission 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 23.10.1993notified the minority communities for the purposes of the Act, namely,

(i) Muslims

(ii) Christians

(iii) Sikhs

(iv) Buddhists

(v) Zorastrians (Parsis)

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. Section2(g) of the Act defines Minority Educational Institutions as, a college or 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 Section12(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 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.

The Hon’ble division Bench after a meticulous analysis of the judicial precedents and the law applicable in this regard came to the following conclusion :

“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.”

The Hon’ble Division Bench agreed with the finding rendered by the learned Single Judge, based on the decisions in Sisters of St.Joseph of Cluny and Paramveer AlbertEkka Memorial College's case that the National Commission has the power to decide all questions relating to the minority status of an educational institution and while observing so the writ appeal by the Lower Primary teachers was allowed thereby setting aside the judgement of the Ld. Single Judge of Kerala High Court in W.P (C) No. 30949 of 2018 and also quashed the Exhibit P2order of National Commission for Minority Educational Institution by which the Nallur Narayana L.P School was declared to be a Minority Educational Institution. The grievance regarding the appointment of the son of the Manager, T.K. Muhammed Haji as Headmaster of the School has to be agitated before the statutory authorities. The Apex Court decision of dismissing the Special Leave preferred by the School Management and the observations that the conferment of minority status on educational institutions established by the non-minorities would result in serious structural changes and consequently it would adversely affect thousands of teachers and their rights assumes much significance. The decision of the Apex Court would stop the rampant purchase and conversion of the many educational institutions which would help to protect the social atmosphere.

(The writer is advocate, Supreme Court)