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Thursday, December 12, 2019

SC upholds Kerala HC order on terms for minority school tag

The bench observed during the hearing that it was clear that under Article 30(1), for an institution to claim minority status, it has to be both "established and administered" by the community.

Written by Ananthakrishnan G | New Delhi | Published: December 5, 2019 2:19:44 am
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The Supreme Court has dismissed a plea challenging a Kerala High Court order which held that an educational institution to claim minority status has be “established and administered” by the minority community, and not merely administered by it.

“In the facts and circumstances of this case, we are not inclined to entertain this Special Leave Petition…accordingly dismissed,” a bench of Justices D Y Chandrachud and Hrishikesh Roy ordered on November 29.

The bench observed during the hearing that it was clear that under Article 30(1), for an institution to claim minority status, it has to be both “established and administered” by the community.

The top court was hearing a petition against the August 5 Kerala HC division bench order quashing an order of the National Commission for Minority Educational Institutions, which had declared Nallur Narayana Lower Primary School as a minority educational institution.

The school was established in Kozhikode district in 1936 by one Nallur Narayana Menon. After his death, his son K K Sasidharan took over as manager of the school. In 2005, 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 and Director of Public Instructions in 2005.

In August 2013, Hajee filed an application before the state government for an NOC to establish it as a minority educational institution. No order was passed on the application.

In December 2014, he applied to the National Commission, which gave it minority status.

This was challenged in Kerala HC by the teachers, who argued that on the basis of minority status of the school the manager overlooked their seniority, which should otherwise have been the relevant consideration for promotion as headmaster. They said that Hajee instead appointed his son as headmaster. They also contended that only an educational institution established and administered by a person from minority community could claim to be a minority educational institution.

A single judge of HC rejected this, saying that although 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. The court said the main objective of Article 30(1) is to accord protection to minorities and create a sense of feeling among them that they have equal rights with the majority and to bring up institutions to compete with any other institution of excellence.

Thus, 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), the HC ruled.

On appeal, an HC division bench of Justices K Vinod Chandran and V G Arun reversed this decision and said analysis of Commission’s order would show that it had concluded that the school is “eligible for grant of minority status on finding that the school was being administered by an individual Muslim”.

The bench observed, “The other finding is that the evidence also proves 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.”

The bench said, “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…”

The HC relied on the 1967 judgement of a five-judge Constitution bench of the apex court in Azeez Basha vs.Union of India wherein the court held that “the words establish and administer in Article 30(1) must be read conjunctively.

The decision in Azeez Basha’s case came 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.

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