Mohammed Basheer C. vs Suresh Kumar Kadavath & Ors.

Anil K. Narendran, J.

W.A.Nos.998 of 2024, 1026 of 2024 and 1190 of 2024 arise out of a common judgment dated 03.07.2024 of the learned Single Judge in W.P.(C)Nos.11498 of 2021 and 13309 of 2024. The appellant in W.A.No.998 of 2024 is the 6^th respondent in W.P.(C)No.11498 of 2021, and the appellants in W.A.No.1190 of 2024 are respondents 7 and 8 in that writ petition. The appellant in W.A.No.1026 of 2024 is the 5^th respondent in W.P.(C)No.13309 of 2024. W.A.No.1007 of 2024 arises out of the judgment dated 03.07.2024 of the learned Single Judge in W.P.(C)No.23634 of 2024, whereby that writ petition was dismissed as infructuous in the light of the judgment dated 03.07.2024 in W.P.(C)Nos.11498 of 2021 and 13309 of 2024. The appellant in W.A.No.1007 of 2024 is the petitioner in W.P.(C)No.23634 of 2024.

The appellant in W.A.No.998 of 2024, who is the 6^th respondent in W.P.(C)No.11498 of 2021, is the Manager of the V.V.M Higher Secondary School, Marakkara. The said writ petition was one filed by respondents 1 to 8 in that writ appeal, invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P5 order dated 11.04.2012 and Ext.P6 certificate dated 11.04.2012 issued by the 9^th respondent National Commission for Minority Educational Institutions, whereby V.V.M Higher Secondary School, Marakkara, is declared/certified as a Minority Educational Institution, within the meaning of clause (g) of Section 2 of the National Commission for Minority Educational Institutions Act, 2004; a writ of mandamus commanding respondents 1 to 5 to forthwith revoke the benefits, including monetary benefits granted to the educational institutions run by the 6^th respondent Manager; and a writ of mandamus commanding the 6^th respondent Manager to make promotions to various posts according to the approved seniority list, by not enjoying the rights vested on a minority educational institution.

The appellant in W.A.No.1026 of 2024 is the 5^th respondent in W.P.(C)No.13309 of 2024, who is the Manager of V.V.M. Higher Secondary School, Marakkara. The said writ petition was one filed by the 1^st respondent in that writ appeal, seeking a writ of certiorari to quash Ext.P12 order dated 27.03.2024 of the 4^th respondent District Educational Officer, granting approval for the appointment of the Headmaster of V.V.M. Higher Secondary School, Marakkara; a writ of mandamus commanding the 1^st respondent State to pass appropriate orders on Ext.P13 revision petition dated 27.03.2024 filed by the petitioner; and a writ of mandamus commanding respondents 1 to 4 to permit the petitioner to continue as Headmaster-in-charge of V.V.M Higher Secondary School, Marakkara, till final orders are passed on Ext.P13 revision petition.

W.A.No.1190 of 2024 is filed by respondents 7 and 8 in W.P.(C)No.11498 of 2021, namely, the Principal and a High School Teacher (Physical Science) of V.V.M. Higher Secondary School, Marakkara. The said writ petition was one filed by respondents 1 to 8 in that writ appeal, who are Teachers and non-teaching staff of V.V.M. Higher Secondary School, seeking a writ of certiorari to quash Ext.P5 order dated 11.04.2012 and Ext.P6 certificate dated 11.04.2012 issued by the 9^th respondent National Commission for Minority Educational Institutions, whereby V.V.M. Higher Secondary School, Marakkara, is declared/certified as a Minority Educational Institution within the meaning of clause (g) of Section 2 of the National Commission for Minority Educational Institutions Act; a writ of mandamus commanding respondents 1 to 5 to forthwith revoke the benefits, including monetary benefits, granted to the educational institutions run by the 6^th respondent Manager; and a writ of mandamus commanding the 6^th respondent Manager to make promotions to various posts according to the approved seniority list, by not enjoying the rights vested on a minority educational institution.

The appellant in W.A.No.1007 of 2024 is the petitioner in W.P.(C)No.23634 of 2024, who is a retired Headmaster of V.V.M. Higher Secondary School, Marakkara. The said writ petition was filed seeking a writ of mandamus or any other appropriate order or direction restraining the 1^st respondent State from taking any decision or passing any order pursuant to Ext.P9 hearing notice dated 01.06.2024, as per the directions contained in Ext.P7 interim order dated 11.04.2024 of the learned Single Judge in W.P.(C)No.13309 of 2024, which has been set aside by Ext.P8 judgment dated 10.05.2024 of the Division Bench in W.A.No.615 of 2024.

By a common judgment dated 03.07.2024, the learned Single Judge disposed of W.P.(C)Nos.11498 of 2021 and 13309 of 2024, with the findings and directions contained in the last paragraph of that judgment, which reads thus;

By another judgment dated 03.07.2024, the learned Single Judge dismissed W.P.(C)No.23634 of 2024 as infructuous, in the light of the judgment dated 03.07.2024 in W.P.(C)Nos. 11498 of 2021 and 13309 of 2024.

Challenging the judgment dated 03.07.2024 of the learned Single Judge in W.P.(C)Nos.11498 of 2021 and 13309 of 2024, W.A.Nos.998, 1190 and 1026 of 2024 are filed, invoking the provisions under Section 5(i) of the Kerala High Court Act, 1958. The judgment dated 03.07.2024 in W.P.(C)No.23634 of 2024 is under challenge in W.A.No.1007 of 2024.

On 24.07.2024, when W.A.Nos.998 and 1026 of 2024 came up for admission, a Division Bench of this Court issued notice before admission, and granted an interim order as prayed for, i.e., interim stay of the operation and implementation of the judgment dated 03.07.2024 of the learned Single Judge in W.P.(C)Nos. 11498 of 2021 and 13309 of 2024, till 15.10.2024. The said interim order reads thus;

On 12.09.2024, when W.A.No.1190 of 2024 came up for admission, notice before admission was ordered. The Division Bench granted an interim order and directed the Registry to list the writ appeal along with the connected matters, i.e., W.A.Nos.998 and 1026 of 2024. The interim order dated 12.09.2024 reads thus;

The interim orders granted on 24.07.2024 and 12.09.2024, which were extended from time to time, were modified by the order dated 04.12.2024 in W.A.Nos.998, 1007, 1026 and 1190 of 2024, to the effect that approval for appointment of the Headmaster of V.V.M. Higher Secondary School, Marakkara, shall be deferred till further decision is taken in the matter.

We heard arguments of the learned counsel for the appellant(s) in the respective writ appeals, the learned counsel for the party respondents, who are the petitioners in W.P.(C)No.11498 of 2021 and connected matters, and also the learned Senior Government Pleader for the State and official respondents.

The issue that requires consideration in these writ appeals is as to whether any interference is warranted in the judgment dated 03.07.2024 in W.P.(C)Nos.11498 of 2021 and 13309 of 2024 and the judgment dated 03.07.2024 in W.P.(C)No.23634 of 2024.

The argument of the learned counsel for the appellant in W.A.No.1026 of 2024 is that, when Ext.P5 order and Ext.P6 certificate dated 11.04.2012 are issued by the National Commission for Minority Educational Institutions, which is having its seat at New Delhi, a writ petition challenging the said order and certificate issued by the National Commission has to be filed before the Delhi High Court. Therefore, the learned Single Judge went wrong in entertaining the writ petitions. Another contention of the learned counsel for the appellant in W.A.No.1026 of 2024 and the learned counsel for the appellants in W.A.No.1190 of 2024 is that though SLP(C)No.27527 of 2019 filed against the judgment of a Division Bench of this Court in Raju A. v. Manager, Nalloor Narayana L.P. Basic School [2019 (5) KHC 1], which was relied on by the learned Single Judge in the impugned judgment dated 03.07.2024, ended in dismissal by the order of the Apex Court dated 29.11.2019 [Ext.P9 in W.P.(C)No.11498 of 2021], the judgment dated 18.11.2019 of the Division Bench of this Court in W.A.No.242 of 2019, arising out of judgment dated 07.01.2019 of the learned Single Judge in W.P.(C)No.32141 of 2016, which was relied on by the Division Bench in Raju A. [2019 (5) KHC 1], and the order passed by the Division Bench in R.P.No.520 of 2020 in W.A.No.242 of 2019, are under challenge in SLP(C)Nos.11603-04 of 2021, in which the Apex Court granted an order of stay, vide Annexure II order dated 26.07.2021, which was followed by Annexure III order dated 23.01.2024. In the said SLPs, the Manager of V.V.M. Higher Secondary School, Marakkara, the appellant in W.A.No.998 of 2024, has already filed an interlocutory application to get himself impleaded, a copy of which is marked as Annexure V along with I.A.No.1 of 2026 in W.A.No.1026 of 2024, and the said application is pending consideration before the Apex Court. Therefore, the submission of the learned counsel for the appellant in those writ appeals is that, when the legal issue is pending before the Apex Court in that SLP, the final disposal of these writ appeals may be deferred.

Another contention raised by the learned counsel for the appellant in W.A.No.1026 of 2024 is that, though it was held by the Larger Bench in Aligarh Muslim University v. Naresh Agarwal [(2025) 6 SCC 1] that, in order to claim the protection under Article 30(1) of the Constitution of India, the educational institution should be established and administered by a person having minority status, the issue raised in these writ appeals as to whether such protection is available on the purchase of an existing educational institution by a person who is entitled to get the benefit under Article 30(1), was not specifically considered by the Apex Court in that decision.

On the other hand, the learned counsel for the party respondents in W.A.No.998 of 2024 would contend that the V.V.M. Higher Secondary School, Marakkara, managed by the appellant in W.A.No.998 of 2024 does not satisfy the requirements of clause (g) of Section 2 of the National Commission for Minority Educational Institutions Act, which defines ‘Minority Educational Institution’ to mean a college or an educational institution established and administered by a minority or minorities. The learned counsel would also refer to clause (5) of Section 2 of the Kerala Education Act, 1958, which defines ‘minority schools’ to mean schools of their choice established and administered, or administered, by such minorities as have the right to do so under clause (1) of Article 30 of the Constitution of India.”

The learned counsel for the party respondents in W.A.No.998 of 2024 would also point out the undisputed fact noticed by the National Commission in Ext.P5 order that the educational institution in question was not established by a minority. The learned Senior Government Pleader would also address arguments in similar lines. After referring to the pleadings and materials on record, the learned counsel for the party respondents in W.A.No.998 of 2024 and also the learned Senior Government Pleader would point out that the 1^st respondent in W.A.No.998 of 2024 was the only qualified person as on 01.06.2021 for appointment to the post of Headmaster in V.V.M. Higher Secondary School, Marakkara, who was the senior most qualified hand. He is also senior to respondents 7 and 8 in W.P.(C)No.11498 of 2021, who are arrayed as respondents 14 and 15 in W.A.No.998 of 2024. The learned counsel for the party respondents would also point out the conclusions of the Larger Bench of the Apex Court (majority view) in Aligarh Muslim University [(2025) 6 SCC 1].

From the submissions made at the Bar, we notice that, as on the date of occurrence of vacancy, i.e., as on 01.06.2021, the 1^st respondent in W.A.No.998 of 2024 was the senior most qualified hand in V.V.M. Higher Secondary School, Marakkara, for being appointed as Headmaster of the school. He is also senior to respondents 7 and 8 in W.P.(C)No.11498 of 2021, who are arrayed as respondents 14 and 15 in W.A.No.998 of 2024. It is also not in dispute that the school in question was established in the year 1968 by Ittiyathayan Vadhyan Namboothiri, who administered the school till it was devolved to Parvathi Antharjanam, who administered the school till she executed a sale deed in favour of the appellant in W.A.No.998 of 2024. Therefore, the school in question is one established and managed by Ittiyathayan Vadhyan Namboothiri, who is not a person entitled to claim the protection under Article 30(1) of the Constitution of India. He managed the school till it was devolved to Parvathi Antharjanam, who is also not a person entitled to claim the protection under Article 30(1). In Ext.P5 order dated 11.04.2012, which was under challenge in W.P.(C)No.11498 of 2021, the National Commission for Minority Educational Institutions noticed that the educational institution in question was not established by a minority.

The National Commission for Minority Educational Institutions Act, 2004, was enacted by the Parliament to constitute a National Commission for Minority Educational Institutions and to provide for matters connected therewith or incidental thereto. Clause (c) of Section 2 defines ‘Commission’ to mean the National Commission for Minority Educational Institutions constituted under Section 3. As per clause (da) of Section 2, ‘educational rights to minorities’ means the rights of minorities to establish and administer educational institutions of their choice. As per clause (f) of Section 2, ‘minority’, for the purpose of the said Act, means a community notified as such by the Central Government. As per clause (g) of Section 2, ‘Minority Educational Institution’ means a college or an educational institution established and administered by a minority or minorities.

As per sub-section (1) of Section 3 of the Act, the Central Government shall, by notification in the Official Gazette, constitute a body to be known as the National Commission for Minority Educational Institutions to exercise the powers conferred on, and to perform the functions assigned to, it under the said Act. As per sub-section (2) of Section 3, the Commission shall consist of a Chairperson and three members to be nominated by the Central Government. Section 9 of the Act deals with the procedure to be regulated by the Commission. As per sub-section (1) of Section 9, the Commission shall meet as and when necessary at such time and place as the Chairperson may think fit. As per sub-section (2) of Section 9, the Commission shall regulate its own procedure. As per sub-section (3) of Section 9, all orders and decisions of the Commission shall be authenticated by the Secretary or any other officer of the Commission duly authorised by the Secretary in this behalf.

Section 10 of the Act deals with the right to establish a Minority Educational Institution. As per sub-section (1) of Section 10, subject to the provisions contained in any other law for the time being in force, any person who desires to establish a Minority Educational Institution may apply to the competent authority for the grant of a no-objection certificate for the said purpose. Section 10 reads thus;

Section 11 of the Act deals with the functions of the Commission. As per clause (f) of Section 11, notwithstanding anything contained in any other law for the time being in force, the Commission shall decide all questions relating to the status of any institution as a Minority Educational Institution and declare its status as such. Section 11 reads thus;

Section 12 of the Act deals with the powers of the Commission. As per sub-section (1) of Section 12, if any dispute arises between a minority educational institution and a University relating to its affiliation to such University, the decision of the Commission thereon shall be final. As per sub-section (2) of Section 12, the Commission shall, for the purposes of discharging its functions under the said Act, have all the powers of a civil court trying a suit and in particular, in respect of the matters enumerated in clauses (a) to (f) thereof. As per sub-section (3) of Section 12, every proceeding before the Commission shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purposes of Section 196, of the Indian Penal Code, 1860 and the Commission shall be deemed to be a civil court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973.

Section 12B of the Act deals with the power of the Commission to decide on the minority status of an educational institution. As per sub-section (1) of Section 12B, without prejudice to the provisions contained in the National Commission for Minorities Act, 1992, where an authority established by the Central Government or any State Government, as the case may be, for grant of minority status to any educational institution rejects the application for the grant of such status, the aggrieved person may appeal against such order of the authority to the Commission. Section 12B reads thus;

Section 12C of the Act deals with the power of the Commission to cancel minority status granted to an educational institution in the circumstances enumerated in clauses (a) and (b) thereof. As per Section 12C, the Commission may, after giving a reasonable opportunity of being heard to a Minority Educational Institution to which minority status has been granted by an authority or Commission, as the case may be, cancel such status (a) if the constitution, aims and objects of the educational institution, which have enabled it to obtain minority status has subsequently been amended in such a way that it no longer reflects the purpose or character of a Minority Educational Institution; (b) if, on verification of the records during the inspection or investigation, it is found that the Minority Educational Institution has failed to admit students belonging to the minority community in the institution as per rules and prescribed percentage governing admissions during any academic year.

Section 12F of the Act deals with bar of jurisdiction. As per Section 12F, no court (except the Supreme Court and a High Court exercising jurisdiction under Articles 226 and 227 of the Constitution) shall entertain any suit, application or other proceedings in respect of any order made under this Chapter.

In the instant case, the appellant in W.A.No.998 of 2024 filed a petition dated 22.12.2011 [Ext.P4 in W.P.(C)No.11498 of 2021], invoking the provisions under the National Commission for Minority Educational Institutions Act, for issuance of minority status certificate in respect of V.V.M. Higher Secondary School, Marakkara. In the said petition it was stated that, an application dated 18.03.2011 made before the General Education Department, Government of Kerala, claiming minority status, was pending consideration. In the petition, in column No.8, the applicant has to furnish the details pertaining to the society/school. Such details furnished in column No.8 of Ext.P4 petition read thus;

In column No.8(d) of Ext.P4 petition, i.e., the name and address of the founding members of the school and their religion, the applicant has stated that the founding member of the school is Parvathi Antharjanam, Vadhyan Mana, Marakkara, Kadampuzha. In column No.9 of Ext.P4 petition, the details pertaining to the institution are furnished.

In column No.9(a) of Ext.P4 petition, the year in which the institution has been established is shown as 1968 and in column 9(b), i.e., the details of the person who established the institution, is stated as Parvathi Antharjanam, Vadhyan Mana, Marakkara, Kadampuzha. The name of the appellant in W.A.No.998 of 2024, who is the 6^th respondent in W.P.(C)No.11498 of 2021, is shown in column 9(d), as the present Manager of V.V.M. Higher Secondary School, Marakkara and his religion is shown as Muslim.

A reading of the order dated 11.04.2012 issued by the National Commission for Minority Educational Institutions [Ext.P5 in W.P.(C)No.11498 of 2021] would show that in Ext.P4 petition no reply has been filed on behalf of the State Government. The Manager of the school, which is an aided school, filed an affidavit in support of the averments in the petition and also to prove that the beneficiaries of the school are members of Muslim community. He has produced the original of the proceedings dated 07.03.2010 of the Additional Director of Public Instructions [Ext.P2 in W.P.(C)No.11498 of 2021], whereby post facto sanction has been accorded for the transfer of management involving change of ownership of V.V.M. High School, Marakkara, in favour of the appellant in W.A.No.998 of 2024. He has also produced the proceedings dated 13.05.2010 of the District Educational Officer, Tirur [Ext.P3 in W.P.(C)No.11498 of 2021], whereby approval has been granted for the transfer of management involving change of ownership of V.V.M. High School, Marakkara, in favour of the appellant in W.A.No.998 of 2024.

A reading of Ext.P2 and Ext.P3 proceedings would show that an application for transfer of management of V.V.M. High School, Marakkara, involving change of ownership was made before the educational authorities on 28.01.2009. At that time, the school was owned and managed by Parvathi Antharjanam, Vadhyan Mana, Marakkara, Kadampuzha, who has transferred the ownership of the school to the appellant in W.A.No.998 of 2024 and submitted a proposal for transfer of management involving change of ownership to the office of the Additional Director of Public Instructions, through the District Educational Officer, Tirur. In Ext.P2 proceedings, it is stated that Parvathi Antharjanam transferred the school and the properties to the appellant in W.A.No.998 of 2024 without permission of the Department. In the hearing conducted in the office of the Director of Public Instructions on 17.02.2010, which was attended by the representative of Parvathi Antharjanam, it was pointed out that, due to old age and non-availability of other members within the State, she was forced to transfer the management of the school, without prior permission of the Department.

In Ext.P5 order in W.P.(C)No.11498 of 2021, the National Commission for Minority Educational Institutions noticed that the pendency of the application made by the appellant in W.A.No.998 of 2024 on 18.03.2011 before the State Government for grant of minority status certificate for a disproportionately long period clearly indicates the disinclination of the Government to grant minority status certificate to the petitioner before the Commission. In that view of the matter, the Commission found it just and expedient in the interest of justice to intervene in the matter. In the 4^th paragraph of Ext.P5 order the Commission noticed that the petitioner has applied for grant of minority status certificate on the ground that the school has been established by Parvathi Antharjanam in 1968. Thereafter, she had transferred the ownership of the school to the present Manager. At present, the school is being managed by him for the benefit of Muslim community. After referring to Ext.P2 proceedings dated 07.03.2010 of the Additional Director of Public Instructions and Ext.P3 proceedings dated 13.05.2010 of the District Educational Officer, Tirur, the Commission noticed that the transfer of management involving change of ownership of the school in favour of the present Manager has been approved with effect from 07.03.2010 and that, in the affidavit filed by the present Manager it is stated that the beneficiaries of the school are members of Muslim community, which was not disputed by the learned counsel who appeared for the State, and there is no document on record to rebut the evidence produced by the petitioner. Relying on the evidence produced by the present Manager, which stands unrebutted, the Commission in Ext.P5 order dated 11.04.2012 held that V.V.M. Higher Secondary School, Marakkara run by the petitioner before the Commission is eligible for grant of minority status on religious basis. Consequently, the said school is declared as a minority educational institution within the meaning of Section 2(g) of the National Commission for Minority Educational Institutions Act and Ext.P6 certificate dated 11.04.2012 was issued accordingly. The 5^th paragraph and also the last paragraph of Ext.P5 order dated 11.04.2012 of the Commission read thus;

As already noticed hereinbefore at paragraph 18, the school in question was established in the year 1968 by Ittiyathayan Vadhyan Namboothiri, who administered the school till it was devolved to Parvathi Antharjanam, who administered the school till she executed a sale deed in favour of the appellant in W.A.No.998 of 2024. Therefore, the school in question is one established and managed by Ittiyathayan Vadhyan Namboothiri, who is not a person entitled to claim the protection under Article 30(1) of the Constitution of India. He managed the school till it was devolved to Parvathi Antharjanam, who is also not a person entitled to claim the protection under Article 30(1). In Ext.P5 order dated 11.04.2012 of the National Commission it was noticed that the educational institution in question was not established by a minority.

In Raju A. [2019 (5) KHC 1], the challenge before a Division Bench of this Court was against the order dated 01.07.2015 of the National Commission for Minority Educational Institutions [Ext.P2 in W.P.(C)No.30949 of 2018], wherein the Commission had come to the conclusion that the school in question, i.e., Nallur Narayana L.P. Basic School, is eligible for grant of minority status on a finding that the school was being administered by an individual Muslim. In the said case, the school was established in the year 1936 by Nallur Narayana Menon, and after his death by his son K.K. Sasidharan, who transferred the management of the school, including its properties, to P.K. Mohammed Haji, in the year 2005. The transfer of management was approved by the Director of Public Instructions vide order dated 28.03.2005, and thereafter the Assistant Educational Officer, Feroke, passed consequential order dated 12.07.2005. Much later, on 14.08.2013, the new Manager filed application before the State Government for no objection certificate for establishment of a Muslim Educational Institution. Since no order was passed on that application, in December 2014 he moved the National Commission for Minority Educational Institutions. In that application, the Commission issued an order dated 01.07.2015 [Ext.P2 in W.P.(C)No.30949 of 2018] declaring minority status of the said school and issued a certificate dated 03.11.2015 (Ext.P3). The challenge made in the said writ petition against Ext.P2 order of the Commission 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. Nallur Narayana L.P. Basic School having been established by Nallur Narayana Menon, who was not a 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 Institution.

In Raju A. [2019 (5) KHC 1], the Division Bench noticed that in the impugned judgment 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 dedicated for the cause of minority would also fall within the meaning of the word 'established' under Article 30(1). It was therefore, in the impugned judgment, the learned Single Judge held that the word 'established' under Article 30(1) 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. v. The Assistant Educational Officer [1974 KLT 78] and the decision of the Karnataka High Court in T.M.A. Pai Foundation v. State of Karnataka [ILR 1985 Kar. 1056].

In Raju A. [2019 (5) KHC 1], the Division Bench noticed that the petitioners have 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 National Commission for Minority Educational Institutions Act, 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 against the jurisdiction of the National Commission by relying upon the decisions of the Apex Court in Sisters of St. Joseph of Cluny v. 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 educational institution and to declare its status as such. Based on the said finding, the learned Single Judge dismissed the writ petition.

In Raju A. [2019 (5) KHC 1], the challenge in W.A.No.864 of 2019 was also on the ground that only an educational institution established and administered by a minority could claim the status of a Minority Educational Institution and the finding to the contra in the impugned judgment of the learned Single Judge is unsustainable. For the purpose of answering the challenge made against the impugned judgment on the abovesaid ground, the Division Bench considered the provisions of Articles 29 and 30(1) of the Constitution of India and also that contained in the National Commission for Minority Educational Institutions Act. The Division Bench noticed that Articles 29 and 30 embodied in Part III of the Constitution of India deal 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. As per Article 30(1), all minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice. The Division Bench noticed that 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.

In Raju A. [2019 (5) KHC 1] the Division Bench noticed that the question that looms large was as to whether, for the 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. The Division Bench found that a plain reading of Article 30(1) of the Constitution of India 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 Apex Court in S. Azeez Basha v. Union of India [AIR 1968 SC 662].

In S. Azeez Basha [AIR 1968 SC 662] the challenge raised before a Five-Judge Constitution Bench of the Apex Court was against the constitutionality of the Aligarh Muslim University (Amendment) Act, 1951 and the Aligarh Muslim University (Amendment) Act, 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 Amendment Acts of 1951 and 1965, insofar as they take away or abridge any part of that right, are ultra vires Article 30(1) of the Constitution of India. Before the Constitution Bench, 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 same before the Constitution came into force. Repelling the said contention, the Constitution Bench held that the two words in Article 30(1) of the Constitution of India 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 claim the right to administer it under Article 30(1). Paragraph 19 of the said decision reads thus;

In Raju A. [2019 (5) KHC 1], the Division Bench has also referred to the decisions of the Apex Court in State of Kerala v. Very Rev. Mother Provincial [(1970) 2 SCC 417], DAV College, Bhatinda v. State of Punjab [(1971) 2 SCC 269] and T.M.A. Pai Foundation v. State of Karnataka [(2002) 8 SCC 481]. The Division Bench noticed that in the impugned judgment the learned Single Judge relied on the decision rendered in Rt. Rev. Dr. Aldo Maria Patroni S.J. [1974 KLT 78] to hold that even an educational 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 Rev. Dr. Aldo Maria Patroni S.J. [1974 KLT 78] 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. In the said decision, it was also found 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 then 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. The Division Bench found that, understood in the factual background in which the observations in Rev. Dr. Aldo Maria Patroni S.J. [1974 KLT 78] 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 suffice for the purpose of declaring that institution to be a Minority Educational Institution. The Division Bench held that a conspectus of the aforesaid decisions and the provisions of the National Commission for Minority Educational Institutions Act would lead to an irresistible conclusion that the declaration of an educational institution as a Minority Educational Institution would depend upon the satisfaction of the twin conditions of establishment and administration of such educational institution by a minority or minorities.

In Raju A. [2019 (5) KHC 1], on the facts of the case at hand, the Division Bench noticed that a perusal of the order dated 01.07.2015 [Ext.P2 in W.P.(C)No.30949 of 2018] of the National Commission would show that the Commission had come to the conclusion that the school in question 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 proved that the school was established with the main objective of sub-serving the interest of the Muslim community. The Division Bench found that the latter finding seems to have been rendered without any basis. Moreover, Article 30(1) of the Constitution of India and Section 2(g) of the National Commission for Minority Educational Institutions Act mandate that a minority educational institution should be one established by a minority and not an educational institution established, with the objective of sub-serving the interest of the minority, by a person who does not belong to the minority community. For the abovesaid reasons, the Division Bench was unable to ascribe to the reasoning of the National Commission in Ext.P2 order and the consequential decision granting minority status to the school. In the result, the writ appeal was allowed by setting aside the impugned judgment of the learned Single Judge and quashing Ext.P2 order of the National Commission by which Nallur Narayana L.P. School was declared to be a Minority Educational Institution.

The decision of the Division Bench in Raju A. [2019 (5) KHC 1] was challenged before the Apex Court in S.L.P.(C)No.27527 of 2019, which ended in dismissal by the order dated 29.11.2019 [Ext.P9 in W.P.(C)No.11498 of 2021]. The said order reads thus;

The learned counsel for the appellant in W.A.No.1026 of 2024 and the learned counsel for the appellants in W.A.No.1190 of 2024 would contend that though SLP(C)No.27527 of 2019 filed against the judgment of a Division Bench of this Court in Raju A. [2019 (5) KHC 1], which was relied on by the learned Single Judge in the impugned judgment dated 03.07.2024, ended in dismissal by the order of the Apex Court dated 29.11.2019 [Ext.P9 in W.P.(C)No.11498 of 2021], the judgment dated 18.11.2019 of the Division Bench of this Court in W.A.No.242 of 2019, arising out of judgment dated 07.01.2019 of the learned Single Judge in W.P.(C)No.32141 of 2016, which was relied on by the Division Bench in Raju A. [2019 (5) KHC 1], and the order passed by the Division Bench in R.P.No.520 of 2020 in W.A.No.242 of 2019, are under challenge in SLP(C)Nos.11603-04 of 2021, in which the Apex Court granted an order of stay, vide Annexure II order dated 26.07.2021, which was followed by Annexure III order dated 23.01.2024. In the said SLPs, the Manager of V.V.M. Higher Secondary School, Marakkara, the appellant in W.A.No.998 of 2024, has already filed an interlocutory application to get himself impleaded, a copy of which is marked as Annexure V along with I.A.No.1 of 2026 in W.A.No.1026 of 2024, and the said application is pending consideration before the Apex Court.

In Abdu Rahiman v. District Collector, Malappuram [2009 (4) KHC 283], a Division Bench of this Court held that even when a decision of the Division Bench is stayed by the Apex Court, the learned Single Judges are bound to follow the decision of the Division Bench, as it continues to be a binding precedent for them. The interim order of stay by the Apex Court only relieves the concerned parties from obeying the judgment under appeal. In the said decision, the Division Bench has relied on the decision of another Division Bench in Kannappan v. Regional Transport Officer [1988 (1) KLT 902] and the judgment of the Apex Court in Official Liquidator v. Dayanand [(2008) 10 SCC 1].

The law laid down by the Division Bench in Abdu Rahiman [2009 (4) KHC 283] was followed by a Division Bench of this Court in M/s.M.D. Esthappan v. Reserve Bank of India [2025 (4) KHC SN 28]. Paragraphs 23 and 24 of the said decision read thus;

In view of the law laid down in Abdu Rahiman [2009 (4) KHC 283], which was followed in M/s.M.D. Esthappan [2025 (4) KHC SN 28], we find absolutely no merits in the contention of the learned counsel for the appellant in W.A.No.1026 of 2024 and the learned counsel for the appellants in W.A.No.1190 of 2024, pointing out the pendency of SLP(C)Nos.11603-04 of 2021 before the Apex Court and the interim order of stay granted by the Apex Court vide Annexure II order dated 26.07.2021, which was followed by Annexure III order dated 23.01.2024, and the pendency of Annexure V interlocutory application filed by the Manager of V.V.M. Higher Secondary School, Marakkara, the appellant in W.A.No.998 of 2024 to get himself impleaded as an additional respondent in those SLPs.

In Aligarh Muslim University v. Naresh Agarwal [(2025) 6 SCC 1], a Seven-Judge Constitution Bench of the Apex Court noticed that after the coming into effect of the Constitution of India, the right to establish and administer educational institutions of their choice was guaranteed to religious and linguistic minorities under Article 30. The core issue before the Constitution Bench pertained to the criteria to be fulfilled to qualify as a Minority Educational Institution for the purpose of Article 30(1). The Constitution Bench noticed that the said core issue first arose in S. Azeez Basha [AIR 1968 SC 662], wherein a Five-Judge Bench held that the phrase ‘establish and administer’ in Article 30(1) must be read conjunctively and doing so the Court found that Aligarh Muslim University was not a minority institution. The said core issue arose for the second time in 1981, not with regard to Aligarh Muslim University but another institution which was registered under the Societies Registration Act, 1860. A Two-Judge Bench in Anjuman-e-Rahmaniya v. District Inspector of Schools [order dated 26.11.1981 in W.P.(C)Nos.54-57 of 1981] questioned the correctness of S. Azeez Basha [AIR 1968 SC 662] and referred the matter to a Bench of Seven-Judge. In 2002, a Seven-Judge Bench of the Apex Court in T.M.A. Pai Foundation [(2002) 8 SCC 481] had a batch of tagged matters, which included Anjuman-e-Rahmaniya. Answering the reference, the Seven-Judge Bench (per majority) concluded that ‘establishment’ of an institution by the minority is necessary for the said minority to claim right of administration under Article 30 of the Constitution of India. The term ‘establish’ in Article 30 means ‘to bring into existence or to create’ and cannot be conflated with generic phrases such as ‘genesis of the institution’ or the ‘founding moment of the institution’. The real positive indicia for determining the question of establishment of an institution would have to be developed on a case-to-case basis with the broad parameters enumerated in clauses (i) to (iii) of para 266(iv) [SCC @ page 289] in mind. Para 266(iv) of the said decision reads thus;

In Aligarh Muslim University v. Naresh Agarwal [(2025) 6 SCC 1] the Seven-Judge Bench overruled the view taken in S. Azeez Basha [AIR 1968 SC 662] that an educational institution is not established by a minority if it derives its legal character through a statute, and it was ordered that the question as to whether Aligarh Muslim University is a minority education institution must be decided based on the principles laid down by the Seven-Judge Bench and the batch of cases were directed to be placed before the regular Bench for deciding that question. Therefore, the Seven-Judge Bench partly overruled the S. Azeez Basha [AIR 1968 SC 662] only to the above extent.

In the instant case, as already noticed hereinbefore, in the 4^th paragraph of Ext.P5 order the Commission noticed that the petitioner has applied for grant of minority status certificate for V.V.M. Higher Secondary School, Marakkara, on the ground that the school has been established by Parvathi Antharjanam in 1968. Thereafter, she had transferred the ownership of the school to the present Manager. At present, the school is being managed by him for the benefit of Muslim community. As held by the Three-Judge Bench in S. Azeez Basha [AIR 1968 SC 662] the two words ‘establish’ and ‘administer’ in Article 30(1) of the Constitution of India 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 claim the right to administer it under Article 30(1). In the above circumstances, the appellant in W.A.No.998 of 2024 is not legally entitled to claim minority status for V.V.M. Higher Secondary School, Marakkara, and therefore, the learned Single Judge cannot be found fault with in setting aside the order and certificate dated 11.04.2012 issued by the National Commission for Minority Educational Institutions [Exts.P5 and P6 in W.P.(C)No.11498 of 2021] and declaring that the said school is not a Minority Educational Institution as the same was not established by a minority, and as such the Manager of the school is bound to make appointment of the head of the institution strictly following the stipulation contained in the Kerala Education Rules (KER). The consequential orders/directions issued by the learned Single Judge are also perfectly legal, which warrants no interference in these writ appeals.

Another contention raised by the appellant in W.A.No.1026 of 2024 is that when Ext.P5 order and Ext.P6 certificate dated 11.04.2012 are issued by the National Commission for Minority Educational Institutions, which is having its seat at New Delhi, a writ petition challenging the said order and certificate issued by the National Commission has to be filed before the Delhi High Court. Therefore, the learned Single Judge went wrong in entertaining the writ petitions.

The aforesaid contention raised by the appellant in W.A.No.1026 of 2024, who is the 5^th respondent in W.P.(C)No.13309 of 2024-the Manager of V.V.M. Higher Secondary School, Marakkara, was turned down by the learned Single Judge in the impugned judgment dated 03.07.2024, placing reliance mainly on the decision of the Apex Court in Oil and Natural Gas Commission v. Utpal Kumar Basu [(1994) 4 SCC 711].

In Utpal Kumar Basu [(1994) 4 SCC 711], a Three-Judge Bench of the Apex Court noticed that clause (1) of Article 226 of the Constitution of India begins with a non-obstante clause – notwithstanding anything in Article 32 – and provides that every High Court shall have power throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs for the enforcement of any of the rights conferred by Part III of the Constitution or for any other purpose. Under clause (2) of Article 226 the High Court may exercise its powers conferred by clause (1) if the cause of action, wholly or in part, had arisen within the territory over which it exercises jurisdiction, notwithstanding that the seat of the Government or authority or the residence of such person is not within those territories.

In the case at hand, the petition dated 22.12.2011 [Ext.P4 in W.P.(C)No.11498 of 2021] made by the appellant in W.A.No.998 of 2024 before the National Commission for Minority Educational Institutions was for issuance of minority status certificate in respect of V.V.M. Higher Secondary School, which is situated at Marakkara in Malappuram District, an institution situated within the territorial jurisdiction of this Court. Such a petition has been made by the appellant in W.A.No.998 of 2024, who is the Manager of that school, who is residing within the territorial jurisdiction of this Court, to establish his claim for protection under Article 30(1) of the Constitution of India, a fundamental right embodied in Part III of the Constitution, in respect of the said school situated within the territorial jurisdiction of this Court. In such circumstances, the finding of the learned Single Judge that, merely because the seat of the National Commission for Minority Educational Institutions is beyond the territorial jurisdiction of this Court, this Court is not precluded from exercising its jurisdiction under Article 226 of the Constitution of India, in a writ petition in which an order or certificate issued by the National Commission is under challenge, warrants no interference.

In such circumstances, we find absolutely no grounds to interfere with the judgment dated 03.07.2024 of the learned Single Judge in W.P.(C)No.11498 of 2021 and 13309 of 2024 and also the judgment dated 03.07.2024 in W.P.(C)No.23634 of 2024, which was one rendered following the common judgment in W.P.(C)No.11498 of 2021 and 13309 of 2024.

In the result, these writ appeals fail and they are accordingly dismissed.

Annexure A1 COPY OF THE COMMON JUDGEMENT DATED 03-07-2024 PASSED IN W.P. (C) NO.11498 OF 2021 AND W.P. (C) NO.13309 OF 2024.

Annexure I TRUE COPY OF THE APPOINTMENT ORDER DATED 10-09-2021 ISSUED BY THE APPELLANT

Annexure II TRUE COPY OF THE ORDER DATED 26-07-2021 IN SLP© NO. 15076/2021

Annexure III TRUE COPY OF THE ORDER DATED 23-01-2024 IN SPECIAL LEAVE TO APPEAL © NO. 11603-11604/21

Annexure IV TRUE COPY OF GO (MS) NO. 128/10/G.EDN DATED 20-07-2010 (ALONG WITH ENGLISH TRANSLATION)

English

TRUE COPY OF ORDER DATED 04-08-2021

Translation of

ISSUED BY THE 4TH RESPONDENT

Exhibit P3

English

TRUE COPY OF ORDER DATED 06-08-2021

Translation of

ISSUED BY THE 4TH RESPONDENT

Exhibit P4

English

TRUE COPY OF ORDER DATED 12-08-2021

Translation of

ISSUED BY THE 4TH RESPONDENT

Exhibit P5

English

TRUE COPY OF ORDER DATED 19-10-2022

Translation of

ISSUED BY THE 4TH RESPONDENT

Exhibit P7

English

TRUE COPY OF THE ORDER DATED 05-05-2023

Translation of

ISSUED BY THE 2ND RESPONDENT

Exhibit P9

English

TRUE COPY OF THE ORDER DATED 11-05-2023

Translation of

ISSUED BY THE 2ND RESPONDENT

Exhibit P10

English

TRUE COPY OF ORDER DATED 27-03-2024

Translation of

ISSUED BY THE 4TH RESPONDENT

Exhibit P12

English TRUE COPY OF REVISION PETITION DATED 27-

Translation of 03-2024 SUBMITTED BY THE PETITIONER

Exhibit P13 BEFORE THE 1ST RESPONDENT

English

TRUE COPY OF THE COMMUNICATION DATED 30-

Translation of

03-2024

Exhibit R6(a)

English TRUE COPY OF THE LETTER DATED 30-03-2024

Translation of

Exhibit R6(b)

Annexure V TRUE COPY OF THE RELEVANT PAGES OF IA NO: 276880/2024 SUBMITTED BY THE APPELLANT ON 29/11/2024

Annexure 1 TRUE COPY OF THE INTERIM ORDER IN SLP NO.15076/2021 DATED 26.07.2021