2025:MHC:2178W.A. No. 3769 of 2019

IN THE HIGH COURT OF JUDICATURE AT MADRAS

RESERVED ON: 11.06.2025

PRONOUNCED ON: 02.09.2025

CORAM

THE HON'BLE DR. JUSTICE ANITA SUMANTH

AND

THE HON'BLE MR. JUSTICE C. KUMARAPPAN

W.A. No. 3769 of 2019

&C.M.P. No. 23848 of 2019

1.The State of Tamil Nadu,

rep. by its Secretary,

Department of School Education,

Fort St. George,

Chennai – 600 009.

2.The Director of School Education,

College Road, Chennai – 600 006.

3.The Chief Educational Officer,

Cuddalore – 607 101

Cuddalore District.

4.The District Educational Officer,

Cuddalore – 607 101

Cuddalore District. ..Appellants

Vs.

The Secretary,

MuthiayarHigher Secondary School,

Panruti – 607 106.

Cuddalore District. ..Respondent

Prayer:Writ Appeal filed under Clause 15 of the Letters Patent as against the

order dated 27.09.2018 made in W.P. No. 8326 of 2012 on the file of this Court.

For Appellants::Mr.P.S. Raman,

Advocate General

assisted by

1

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Mr.U.M. Ravichandran,

Special Government Pleader

For Respondent::Mr. Isaac Mohanlal,

Senior Counsel

for Mr. Godson Swaminathan for

M/s. Isaac Chambers

J U D G M E N T

(Delivered by Dr.ANITA SUMANTH,J.)

Background

The State is in appeal as against the order of the Writ Court dated

27.09.2018 made in W.P. No. 8326 of 2012 allowing the Writ Petition filed by

The Secretary, Muthiayar Higher Secondary School, (in short ‘R1’) seeking a

certiorarified mandamus challenging proceedings dated 03.10.2012 and seeking

a direction to the authorities to accord minority status to the Muthiayar High

Secondary School (in short ‘school’).

2. Muthiayar Higher Secondary School had been established as a primary

school in 1901, upgraded as a Higher Elementary School in 1950, expanding to

standards VI to VIII and upgraded further as a High School in academic year

1998-99, and as a Higher Secondary School in academic year 2003-04. The

Government extends Grant-in-Aid towards staff salary upto class 8 (standards 1

to 8) only.

3. The School was founded by one Mr.P.Muthaiyar and had come to be

known as A.V. School. After the demise of the founder in 1942, the school was

being managed by his wife till 1947, by his nephew, one Mr.V.Natesan from

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1947 to 1983 and thereafter by his son-in-law, Mr.S.R.Selvaraj from 1983 to

1997, in his name as Sri.P.Muthaiyar School.

4. The individuals managing the school functioned as recognized

Educational Agencies and Secretaries of the School after coming into force of

the Tamil Nadu Recognised Private Schools (Regulation) Act, (in short ‘Act’)

in 1973.

5. By sale deed dated 23.05.1997 the then Educational Agency

Mr.S.R.Selvaraj, transferred all school properties to Sister Edvij, Trichy. The

change in management was approved by the District Elementary Educational

Officer, Cuddalore in proceedings Pa.Mu.No.5451/A3/97 dated 17.10.1997, in

line with the provisions of the Act and the Tamil Nadu Recognised Private

Schools (Regulation) Rules 1974, (in short ‘Rules).

6. The school is thereafter being run by the Sisters of St.Anne.

Tiruchirappalli, a congregation, constituting an assemblage of Nuns of the

Roman Catholic Order (in short ‘Congregation’). The Congregation is a

recognized religious minority enjoying protection under Article 30(1) of the

Constitution of India (in short ‘Constitution’) and had been accorded such status

vide order of this Court in W.P.No.656 of 1975 etc. batch (order dated

24.09.1976).

7. According to R1, after the takeover of the school by it with effect from

01.06.1997, the Muthaiyar Higher Secondary School is functioning as a

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Christian Minority Educational Institution. Since R1 desired that the school

must be granted the benefits of minority institution as guaranteed under Article

30(1) of the Constitution, a memorandum was made to the State along with

necessary enclosures, seeking such status.

8. According to R1, the School satisfied all the requisite parameters for

grant of such recognition as adumbrated under G.O.Ms.No.375 (School

Education) dated 12.10.1998. A report was called for from the Director of

School Education who had also recommended that the school be so recognized

vide his proceedings in Na.Ka.No.117/Aa2/98 dated 05.05.1998.Despite the

same, the State issued G.O.Ms.No.125 (School Education) B2 dated 17.09.2004

rejecting the plea for minority status.

9. Reference was made to Clause (iii) of G.O.Ms.No.375 dated

12.10.1998 which stipulates that an Educational Institution which was originally

not established by a minority community, cannot acquire such status or

character subsequently under any circumstances.

10. A representation was made by the School to the State interpreting

Clause (iii) as aforesaid, by stating that the concept of ‘established’ should not

be interpreted as ‘established originally’ but that even a subsequent

purchase/acquisition of the school management by a minority body would

satisfy the term ‘established’, vesting the school with the requisite character of a

minority institution.

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11. The representation was processed and various details were sought

from R1. Since no final orders had been passed, R1 filed W.P.No.24251 of 2009

seeking a mandamus directing the grant of recognition to the school as a

Christian religious minority educational institution and the Writ Petition was

closed on 25.02.2011 directing disposal of the representation.

12. Thereafter, some more details were sought, that were supplied by R1,

who reiterated the stand that the school satisfied all requirements enumerated

under G.O.Ms.No.375 dated 12.10.1998. Since there was still no response

forthcoming, R1 was thus constrained to file W.P.No.8326 of 2012 challenging

notices dated 21.04.2011 and 21.07.2011 seeking various particulars from it and

seeking a consequential direction for grant of minority status to the school.

13. The sum and substance of the argument of R1 was that it had acquired

the management of the school in a manner know to law, satisfying the

requirement of ‘establishment’ of the school. Moreover, it has been

continuously managing the school thereafter. Hence, both requirements under

Article 30(1) of the Constitution stood satisfied and there was no impediment to

the grant of recognition as sought.

14. That apart, as far as the undertaking of R1 is concerned, such

undertaking would have no sanctity in the eyes of law as protection under

Article 30 of the Constitution is a fundamental right that cannot be denied to the

school, if it were otherwise to be entitled to the same.

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15. The Writ Petition came to be allowed on 27.09.2018, the learned

Judge accepting the argument that though the school had originally been

established as a secular school, with the purchase and takeover of the school

administration by the Sisters of St. Anne congregation, the latter having been

recognized as an Educational Agency by the concerned State Department, the

school is entitled to minority status.

16. Thus, he held that the Congregation should be considered as having

established the school for the purpose of grant of minority status. In allowing

the writ petition, the Writ Court has on a decision of the Kerala High Court in

Rt. Rev. Aldo Maria Patroni.S.J. And Another V. The Assistant Educational

Officer and Others

1

. It is as against the aforesaid order that the State is in

appeal.

Submissions of Mr.P.S.Raman for the State

17. Mr.P.S.Raman, learned Advocate General assisted by

Mr.U.M.Ravichandran, learned Special Government Pleader assails the

impugned order of the Writ Court pointing out that the Court has incorrectly

appreciated the import of Article 30 of the Constitution. Article 30 reads as

follows:

30. Right of minorities to establish and administer educational

institutions

(1) All minorities, whether based on religion or language, shall have

the right to establish and administer educational institutions of their

1 1973 CJ (Ker) 133

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choice.

(1-A) In making any law providing for the compulsory acquisition of

any property of an educational institution established and

administered by a minority, referred to in clause (1), the State shall

ensure that the amount fixed by or determined under such law for the

acquisition of such property is such as would not restrict or abrogate

the right guaranteed under that clause.

(2) The state shall not, in granting aid to educational institutions,

discriminate against any educational institution on the ground that it

is under the management of a minority, whether based on religion or

language.

18. It is thus a pre-condition for the school to have been both

‘established’ as well as been ‘administered’ by the Congregation. In the present

case, while it is undisputed that the Congregation has been administering the

school since 01.06.1997 when the management was taken over, it has not

‘established’ the school. The establishment was by Sri.P.Muthaiyar in 1901 as a

secular school. The school would hence retain that character and it cannot be

changed merely on the subsequent acquisition of the school properties by a

Congregation holding minority status.

19. He places reliance on the judgment of seven Hon’ble Judges of the

Supreme Court in Aligarh Muslim University V. Naresh Agarwal and Ors.

2

.

According to learned Advocate General, the Supreme Court has in the aforesaid

case, unequivocally confirmed the position that mere takeover of an educational

institution by the minority community cannot vest minority character upon the

school.

20. There is thus no necessity to refer to any other judgment, as the

22024 SCC OnLine SC 3213

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position of law espoused by the State is fully supported by the above judgment.

He would also point out that the Government Order in terms of which the

Congregation had sought minority status, had itself made it very clear that under

no circumstances could the nature of the school taken over, be changed at any

later point in time.

21. The Congregation has established and manages over 200 schools in

the State and cannot, but be aware of G.O.Ms.No.375 dated 12.10.1998,

particularly clause (iii) of paragraph 4 thereof, on the basis of which the claim

of R1 had been rejected.

22. That apart, the Congregation has executed an undertaking at the time

of passing of the order relating to change of management, that the minority

status would not be pursued and that no case will be filed in the Court of law

seeking minority status. The aforesaid condition has been captured in

proceedings of the District Elementary Education Officer dated 17.10.1997 and

the Congregation cannot go back on that undertaking now.

23. Learned Advocate General would take us in detail through the

judgment in the case of Aligarh Muslim University

3

, particularly to the

conclusion therein and the decision of the Kerala High Court in A. Raju and 2

others V. The Manager Nalloor Narayana L.P. Basic School and 4 others

4

as

against which order, Special Leave Petition had been dismissed on 29.11.2019

3Foot Note Supra (2)

42019 SCC Online Ker 16483

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W.A. No. 3769 of 2019

(SLP(c) No.27527 of 2019).

24. He would thus assert that the school must be held to have been

established only by the majority community, to cater equally to all sections of

society, the founder nowhere contemplating at the time of establishment, that it

would cater to the minority community in priority. The conclusions of the Writ

Court were clearly contrary to law and the weight of precedent.

25. The State has cited the judgment of the Supreme Court in

R.Venugopala Naidu and others V. Venkatarayulu Naidu Charities and others

5

arguing that the immovable properties of the School ought not to have been sold

without obtaining proper permission to do so, and that too by private

negotiation. The Trust deed and all other relevant documents ought to have been

looked into to ascertain the intentions of the original settlor and whether the

claim of R1 would align with those intentions.

Submissions of Mr.Issac Mohanlal on behalf of R1

26. Mr.Issac Mohanlal, learned Senior Counsel appearing for Mr.Godson

Swaminathan, learned counsel on record for R1 would, urge that there was no

infirmity whatsoever in the order of the Writ Court. Undoubtedly, the school

had been originally established/founded by a member of a majority community

and was administered/managed by the founder and members of his family as a

5 AIR 1990 Supreme Court 444

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secular institution for many years, till 31.05.1997.

27. However, with the takeover on 01.06.1997 by the Congregation,

which is nothing but a re-establishment of the school by a minority institution,

the school now satisfies the requirement of having been ‘established’ by a

minority institution.

28. According to him, the term ‘established’ does not mean established

for the first time. It must take into account all subsequent changes in

management/holding of the school. Thus, while the school had been a majority

school till 31.05.1997, on and from 01.06.1997, it assumes the character of a

minority school.

29. According to him, the judgment of the three Hon’ble Judges of the

Supreme Court in A.P.Christians Medical Educational Society V. Government

of A.P. and another

6

as well as other judgments in Union Territory of Ladakh V.

Jammu and Kashmir National Conference

7

, Chanderwati Educational and

Charitable Trust V. National Commission for Minority Education Institutions

and Another,

8

Chandana Das (Malakar) V. State of West Bengal and Others

9

and order of the Karnataka High Court in T.M.A.Pai Foundation V. State of

Karnataka

10

would fully support the position that an expansive view ought to be

taken of the word ‘established’.

6(1996) 2 SCC 667

72023 SCC Online SC 1140

82019 SCC Online Delhi 10130

92019 SCC OnLine SC 1253

10ILR 1985 Karnataka 1056

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30. Further, the school had had a complete makeover after the

Congregation had taken it over. He produces photographs to show that prior to

the takeover, the school was run on a very small scale in a tiled/thatched house

with few students and practically no infrastructure or facilities. The photographs

taken of the school post takeover, show the vast scale of improvements to the

school. Several buildings have put up and the number of students admitted has

increased manifold. All modern infrastructure and resources are available to the

students, that were hitherto unavailable.

31. The reliance placed by the Writ Court on the decision of the Kerala

High Court in Rt. Rev. Aldo Maria Patroni.S.J.

11

is perfectly in order, since it

has taken into account the factual and legal position in proper perspective. The

case of Aligarh Muslim University

12

has no bearing to the facts on hand.

32. In that case, the question that arose was whether AMU should be held

to have been constituted by the Muslim community to cater to the interests of

the Muslim community, or whether the Act of Parliament that regulated its

functioning, would change the nature of its ‘establishment’. That question does

not arise in the present case. In all, the decision of the Writ Court must be

affirmed.

33. We have heard the rival contentions and perused the material papers

and cases cited by learned counsel.

11Foot Note Supra (1)

12Foot Note Supra (2)

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Discussion and settling of the facts

34. We recapitulate the facts, to the extent relevant and necessary. The

school was set up in 1901 by Mr.P.Muthaiyar and continued to be administered

by the members of his family till 1997, as a secular institution. No documents

such as the Trust Deed or any other documents relating to the establishment of

the school by P.Muthaiyar have been produced though we are given to

understand that the same were sought from the parties.

35. R1 had entered into a Sale Agreement dated 22.05.1997 with

Mr.S.R.Selvaraj and Mrs.S.Bhuvaneshwari for purchase of the School, that

reads as follows:

Sale Agreement

The sale agreement entered into between both of us together

viz., 1.S.R.Selvaraj, 2.S.Bhuvaneshwari, wife of the aforesaid 1st

party, residing in Kasthuribai street, Panruti Taluk, Panruti and

Edwij, the Chief Sisterhood, represented by the Congregation of

the Sisters of Saint Anne of Tiruchirapalli Association registration

No. 6/1956, registration office at Kirapatti, Trichy – 12, Trichy

District, is as follows :

(1) We having agreed to sell the school in the name of “Muthaiyar

Middle School”, belonging to the 1st party among us and the two

plots in S.No.61-A at Panruti, belonging to the 2nd party among

us, to you, had executed this agreement on this day, i.e., 22 nd day

of May 1997.

(2) This agreement comprises of the buildings related to

“Muthaiyar Middle School”, vacant land, school playground,

logistics and the aforesaid two vacant plots.

(3) We having agreed to receive the sale consideration of

Rs.25,00,000/- (Rupees Twenty Five Lakhs only) in respect of all

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the above, had received Rs.18,00,000/- (Rupees Eighteen Lakhs

only) as cash from you, in respect of the above sale amount, on

this day. You have to settle the remaining amount of Rs.7,00,000/-

(Rupees Seven Lakhs only) on 23.05.1997.

(4) We give our consent to subscribe signature in all the necessary

documents for the change of school administration. We give our

consent to execute the appropriate documents requested by you.

We covenant that there is no encumbrance regarding this

property.

This sale agreement has been signed with our full consent in the

presence of the witnesses on this day, the 22nd day of May 1997.

Sd/-.................

36. The Agreement has been executed by two vendors, Mr.S.R.Selvaraj

and his wife Mrs.Bhuvaneswari. The former has sold the Sri.P.Muthaiyar

School with its immovable properties and the latter, two plots of land, to the

Congregation, for a total consideration of Rs.25.00 lakhs. The ‘school’ is not

saleable perse, and hence what has really been sold under that Agreement are

the assets, being the buildings and land, and two other vacant plots. The

Agreement also refers to ‘logistics’ but we are unaware as to what that means.

This Agreement has not been produced before the Writ Court but was part of

the records that had been sought for by us, and produced for our perusal.

37. R1 sought and was granted transfer of Management vide proceedings

dated 17.10.1997, effective 01.10.1997, pursuant to which the management of

the Sri.P.Muthaiyer Middle School was transferred from the then Correspondent

S.R.Selvaraj to Sister Edvij, Trichy.

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38. Prior to effecting transfer, an affidavit has been taken from Sister

Edvij stating that (i) The school shall be maintained under the prevailing non-

minority status (ii) No case will be filed claiming the grant of minority status

before any court and (iii) A sworn affidavit be submitted with regard to

acceptance of financial management with effect from 01.10.97.

39. Proceedings dated 17.10.1997 is extracted below:

PROCEEDINGS OF DISTRICT ELEMENTARY

EDUCATIONALOFFICER: CUDDALORE DISTRICT

Pa .Mu.No.5451/A3/97, Date 17.10.97

Sub: Elementary Education - Panruti Range, Sri. P.Muthaiyer

Middle School. - granting approval to effect transfer of

administration from 1.6.97 -reg.

Ref: Letter by the Assistant Educational Officer, Panruti, in Na.

Ka. No.887/Aa2/97, dated 10.6.97 and 6.8.97.

-----

As per the recommendation of Assistant Elementary Educational

Officer, Panruti, Sri.P.Muthaiyer Middle School, approval is

granted to effect transfer of the Management from the

Correspondent Tr. S.R.Selvaraj to Sister Edvij, Trichy. With effect

from 1.6.97 under the Tamilnadu Educational Rules of 1973, 1974

and within the ambit of Educational Rules, the approval is

granted.

Sister Edvij, Trichy taking up the administration from 1.6.97 shall

swear the following terms and submit it to the District Elementary

Educational officer and the finance management is granted to the

new Manager from 1.10.97 onwards.

1. The school shall be maintained under the prevailing non-

minority status.

2. No case is to be filed claiming to grant minority status before

any court.

3. A sworn affidavit to be submitted with regard to the acceptance

of the finance management with effect from 1.10.97.

Sd / -

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District Elementary Educational Officer

Cuddalore 17/ 10/97

To

Correspondent, P. Muthaiyer Middle School, Panruti.

Tr. S.R.Selvaraj, B.A., M.Ed., Management

of P. Muthaiyer Middle School, Panruti.

Copy to : Asst Elementary Educational officer, Panruti.

40. It was on the heels of the above proceedings, that R1 sought the grant

of minority status for the School. The Director of School Education/R2 sought

the recommendations of the District Elementary Educational Officer, who by

proceedings dated 05.05.1998 gave a positive recommendation. In 1998, the

School was upgraded as a High School and from 2003 as a Higher Secondary

School.

41. A communication from the Chief Educational Officer/R3 to R2 dated

02.07.2006 reveals that R1 has, pursuant to the takeover been running the

School along the lines of a Minority Institution, even prior to the grant of such

status. R2 states that as on that date, 41% of the students belonged to the

minority community and that R1 had made additions and renovations to the

infrastructure.

42. R1 pursued the application for Minority status and received an

adverse order on 03.10.2012 that was challenged in writ petition, and order

dated 27.09.2018 was obtained in its favour.

43. Straightaway we would state that condition (ii) of order dated

17.10.1997 preventing the congregation from seeking minority status and

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further preventing them from challenging a negative order passed in that regard,

are contrary to law. The establishment of a school with minority status is a

Fundamental Right guaranteed by Article 30(1) of the Constitution of India and

there could be no stipulation preventing them from pursuing this benefit, should

they otherwise be entitled to the same.

44. Likewise, reliance of the State on G.O.Ms.No.375 of 1988 would also

not advance its case, or, for that matter, tip the balance one way or the other.

Clause 4(iii) of the Government Order states that the Educational institution

that has not been established/constituted by the minority community will not

obtain minority status at any point of time under any circumstances. The issue

to be decided is as to whether takeover/acquisition of a school would satisfy the

requirement of ‘establishment’, and the aforesaid Government Order does not

answer, or throw any light on that specific question.

Discussion and ratio of the Judgment of the Supreme Court in Aligarh

Muslim University’s case

45. Both learned senior counsel have referred to the judgment in Aligarh

Muslim University in extenso. The genesis of that judgment lies in the judgment

of the Constitution Bench in S. Azeez Basha and Another V. Union of India

13

wherein the vires of the Aligarh Muslim University (Amendment) Act, 1951 (in

short ‘1951 AMU Act’) and the Aligarh Muslim (Amendment) Act, 1965 (in

short ‘1965 Act’) were challenged.

13(1968) 1 SCR 833 : AIR 1968 SC 662

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46. The challenge was on the basis of Article 30(1) and the petitioners

contended that AMU had been established by the Muslim minority whose rights

had been abrogated under the 1951 and 1965 Acts. The defence by the Union

of India was that AMU had been established by the Aligarh Muslim University

Act, 1920 (in short ‘1920 Act’) and hence the establishment cannot be said to be

by the Muslim minority but only by the Government of India, by legislative fiat.

47. The Bench considered the provisions of the 1920 Act noting that all

properties endowed for the purpose of the Mohammedan Anglo Oriental

Aligarh which was the original name of the College when it was started, had

vested in the Aligarh University after it came into existence under the 1920 Act.

With such vesting, the Mohammedan Anglo Oriental College, Aligarh came to

an end and it was the AMU that was thereafter administered in terms of the

provisions of the Act, which provides for all manner of administration including

the power to hold examinations, to grant and confer degrees and academic

distinctions.

48. On the question of ‘administration’ of the college, the Court went into

the manner by which the college had been administered over the years,

concluding that the establishment of AMU was by Act of Parliament only and

hence it was not entitled to minority status. The challenge to the 1951 and 1965

Act was repelled.

49. This judgment is of the year 1968 and was referred to a Larger Bench.

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The reference ultimately came to disposed by seven Hon’ble Judges of the

Supreme Court. There are four opinions in the case of Aligarh Muslim

University

14

that would touch on the interpretation of the term ‘established’, all

opinions however converging on the position that the twin conditions in Article

30 relating to ‘established’ and ‘managed’ must be read conjunctively and must

be satisfied concurrently. The majority opinion is by the Hon’ble the Chief

Justice of India and three Hon’ble Judges and paragraph 110 reads as follows:

. . . .

110. In Azeez Basha (supra), this Court observed that the term

‘establish’ means ‘to bring into existence’ and not any of the

other dictionary meanings that is, to ratify, confirm, settle, found,

or create. Adopting a formalistic interpretation, the Bench held

that AMU was not established by the Muslim minority since it was

brought ‘into existence’ by the Central Legislature. In Mother

Provincial (supra), another Constitution Bench which was

decided before Azeez Basha (supra) interpreted the word

‘establish’ to mean to found an institution, which offers a broader

interpretation. In our view, it is inconsequential whether the word

means ‘to bring into existence’ or ‘to found’. We have held above

that the enactment of a legislation to incorporate a university

would not repudiate the minority character. The Court must

pierce the veil of the statute to identify if the institution intended to

retain its minority character even upon incorporation.

50. The Bench made a distinction between the ‘establishment’ of the

University and ‘incorporation’ of the University. They say a formal approach

must not be taken to state that a University was ‘established’ by Parliament

merely because the long title and preamble of the Statute incorporating the

14Foot Note Supra (2)

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University states that it is an Act to ‘establish’ and ‘incorporate’ the University.

51. The Courts must, they say, identify the circumstances surrounding the

incorporation of the University such as, who it was that actually established the

University. In this respect, ‘formalism must give way to actuality and to what is

real’. The Bench laid down the indicia to determine ‘establishment’ of a

minority educational institution and the burden and degree of proof required to

prove that it was the minority that had established the institution.

52. Referring to the case of Rev.Bishop SK Patro V. State of Bihar

15

, the

following evidence was relied upon:

a. The correspondence and resolutions indicated that a permanent

home for the Boys School was set up on property acquired by local

Christians and in buildings erected from funds collected by them;

b. The institution and the land on which it was built and the

balance in the local fund were handed over to the Church

Missionary Society; and

c. Though substantial assistance was obtained from the Church

Missionary Society London, it could not be said that the school

was not established by local residents only because of that.

53. The Bench, in State of Kerala V. Very Rev.Mother Provincial

16

, was

quoted where the following material had been relied upon to decide the question

of ‘establishment’:

a.The purpose of establishing the educational institution emerged

from the Report of 1878 to the Cambridge Brotherhood. The

purpose of founding the college was to ensure that graduates from

St. Stephen’s Mission School could be given the benefit of

Christian teachings in college;

b.The buildings depicted the Christian orientation of the college

15(1969) 1 SCC 863

16(1970) 2 SCC 417

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c.The motto of the college is “Ad Dei Gloriam”, that is the glory of

god;

d.There is a chapel in the college campus, where religious

instruction is imparted;

e.The Constitution of the college reflects its Christian character. It

states that the object of the college is, inter alia, to offer

instruction on doctrines of Christianity, the original members of

the society were mostly Christians, and the composition of the

society reflects its Christian character where a large number of

Christian members of the Church of North India are a part of it;

and

f.The Governing Body has a distinct christian character. The

Supreme Council comprises of members of the Church of North

India. Their role is to look after the religious and moral instruction

to students. The administration vests with the Governing Body

which predominantly consists of Christians. Though three of the

thirteen members of the Governing Body may be non-Christians,

that does not dilute the Christian character of the institution.

54. After discussing the march of the law on this aspect, the Bench states

that the establishment or formation of an institution could be at any point in

time and the enquiry in relation to the question of ‘establishment’ must relate

back to the date when the institution was established or formed. Paragraph 135

is relevant and reads thus:

135. To determine who established the institution, the Courts

must consider the genesis of the educational institution. For this

analysis, the Courts must trace the origin of the idea for the

establishment of the institution. The Court must identify who was

the brain behind the establishment of the educational institution.

Letters, correspondence with other members of the community

or with government/State officials and resolutions issued could

be valid proof for establishing ideation or the impetus to found

and establish. The proof of ideation must point towards one

member of the minority or a group from the community

55. The second indicia was the purpose for which the educational

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institution had been established ‘though it is not necessary that the educational

institution must have been established only for the benefit of religious or

linguistic minority community, it must predominantly be for its benefit’.

56. The third test is to trace the steps taken towards the implementation of

the idea of setting up an educational institution, as follows:

137. The third test is tracing the steps taken towards the

implementation of the idea. Information on who contributed the

funds for its creation, who was responsible for obtaining the land,

and whether the land was donated by a member of the minority

community or purchased from funds raised by the minority

community for this purpose or donated by a person from some

other community specifically for the establishment of a minority

educational institution are elements that must be considered.

Similar questions must be asked of its other assets. Other

important questions are: who took the steps necessary for

establishing the institution (such as obtaining the relevant

permissions, constructing the buildings, and arranging other

infrastructure)? It is also important to note that the state may

grant some land or other monetary aid during or after the

establishment of the educational institution. If the land or monies

were granted after the establishment, the grant would not have the

effect of changing the minority character of the institution.

Minority institutions are not barred from receiving aid save at the

cost of their minority status. If the land or monies are granted at

the time of establishment, the circumstances surrounding the

establishment must be considered as a whole to determine who

established the institution. The presence of a grant must not be

automatically interpreted as leading to the erasure of a claim to

minority status.

57. The conclusion is that there is no straight jacket formula and the

above indicia must be considered along with other relevant parameters which

may commend themselves to the Court. While answering the question as to

whether Article 30(1) envisages an institution which is established by minorities

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alone, without participation from any other community, they state that while

participation and involvement of persons from other communities are not

precluded by Article 30, it is necessary that the minority community should

have shouldered the initial and core responsibility for setting a school and must

continue to shoulder the responsibility of managing the same. Other questions

were also answered that do not have a bearing on this appeal.

58. In conclusion,the Bench holds as follows:

266. In light of the above, the following conclusions can be

recorded:

. . . . .

ii. The "establishment" of an institution by the minority is necessary

for the said minority to claim right of administration under Article

30. The words "establish" and "administer" are used conjunctively

in Article 30 of the Constitution.

iii. 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".

iv. 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 following broad parameters in mind:

i. Firstly, to claim "establishment", the minority community must

actually and tangibly bring the entirety of the institution into

existence. The role played by the minority community must be

predominant, in fact almost complete to the point of exclusion of all

other forces. The indicia which may be illustrative and exhaustive

in this regard may be the nature of the institution, the

legal/statutory basis required for establishing the institution,

whether the establishment required any "negotiation" with outside

forces, the role in acquiring lands, obtaining funds, constructing

buildings, and other related matters must have been held

completely by the minority community. Similarly, while teachers,

curriculum, medium of instruction, etc. can be on secular lines,

however, the decision-making authority regarding hiring teachers,

curriculum decisions, medium of instruction, admission criteria,

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and similar matters must be the minority community. The choice of

having secular education in the institution must be made expressly

by the minority community, demonstrating the link between

institution and the persons claiming to establish it.

ii. Secondly, the purpose of the institution must have been to the

sole betterment of the minority community, irrespective of

predominantly serve the interests of the minority community or the

form of education provided and the mode of admission adopted.

Therefore, as per the choice of the minority community, an

institution may have secular education, but such secular education

and the resultant institution, must be predominantly meant for the

overall betterment of the minority community.

iii. Thirdly, the institution must be predominantly administered as a

minority institution with the actual functional, executive and policy

administration vested with the minority. The minority community

should determine the selection, removal criteria, and procedures

for hiring teaching, administrative staff, and other personnel. The

authority to hire and fire staff must be from the minority

community. Further, even if teaching or administrative staff may

include non-minority persons, the final authority exercising

functional, directional, and policy control over these authorities

must be from the minority community. This ensures that the

thoughts, beliefs, and ideas of the minority community regarding

administration are implemented in reality. This represents the real

decision-making authority of the institution being of the minority

community.

In ascertaining the above, it would be open for the Court to

look at the true purpose behind each of the above factors and to

pierce the veil.

Discussion and ratio of other cases, and applicability to the present

case

59. A Full Bench of the Kerala High Court in Rt.Rev.Dr.Aldo Maria

Patroni V. Kesavan and Others

17

considered a challenge posed by the Bishop of

Calicut and the Provincial of the Jesuit Province of Kerala, to an Order passed

by the Director of Public Instruction on the question of rival claim of seniority to

17AIR 1965 Ker 75

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the post of headmaster in St.Joseph’s Boys’ High School Calicut. The claims

were by two teachers in the aforesaid school and the Director had preferred one

over the other and had given some justification for the same. We are not, in this

matter concerned with that justification.

60. The appeal filed by the petitioners was that they had an exclusive right

to administer the school under Article 30(1) of the Constitution and that the

order of the Director of Public Instruction violated that right. In deciding that

question, the Full Bench traces the history of establishment of the St.Josephs

Boys’ High School Calicut. They commence by stating that the Christians

amounted to 21.22% in the 1961 census and the Roman Catholics constituted a

section of that community.

61. The St. Joseph’s Boys’ High School had been established as a Parish

School around 1796, and was superceded in 1861 by a school run by the

Christian Brothers. In 1883, the management passed into the hands of the Jesuit

Fathers of the Calicut Mission who ran it on traditional lines with the Ordinary

of the Diocese as its Official Manager.

62. In 1908, it was upgraded as a High School and recognised as an

Institution under the Code of Regulations for European Schools. In June 1948,

the new scheme of education in Indian Schools was introduced, and the school

continued catering to both catholic and non-catholic boys, under the Roman

Catholic Diocese of Calicut. The chief aim was to provide education to catholic

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students though secular education was also provided.

63. After so tracing the history of that School, the Full Bench traces the

history of the Society of Jesus from the time of its founding by St.Ignatius

Loyola in 1540 and its growth thereafter. It is in that context that they state, in

the context of ‘establishment’ of the St.Joseph’s High School, the following:

36. . . . . . . . . . . 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.

64. Referring then to the Opinion of the Supreme Court In Re. Kerala

Education Bill and Sidhrajbhai V. State of Gujarat

18

, and based on the

unassailable position that the institution was a minority institution, the

Petitioners’ claim under Article 30 was upheld. This is only to say that transfers

of schools from one minority community to another, or by one sect of a minority

community to another sect, would not be affected adversely by the transferee’s

having to prove that they had ‘established’ the educational institution.

65. The above Judgment has been followed by the learned Single Judge in

18 AIR 1963 SC 540

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the judgment in Rt. Rev. Aldo Maria Patroni.S.J.

19

In this matter too, the first

Petitioner was the Bishop of Catholic Diocese, Calicut. The School in this case

was the St.Peter’s U.P. School Chalil, Tellicherry, and the question was whether

the St. Peters Upper Primary School could have said to have been established

and administered by the Roman Catholic Diocese of Calicut which claimed

minority status for that school.

66. That petitioner had argued that the St. Peters Upper Primary School

had been established in 1891 and was being administered by the Catholic

Diocese of Calicut for giving catholic education to catholic students primarily,

although other students were also admitted to the school. The Court noted that

the Catholic Diocese of Calicut had taken over the management only in 1923

and hence between 1891 and 1923, the school could only had been established

as part of the Catholic Diocese of Mangalore.

67. At paragraph 5, the Court states thus:

In order that the petitioners may claim protection under Article

30(1) of the Constitution they will have to show that the school is

established and administered by a religious minority. It is not disputed

that Roman Catholics of Kerala form a religious minority community. But

that is not enough. It has to be shown that the school is established and

administered bv this religious minority. St. Peter's Church. Chalil,

Tellicherry, is a Roman Catholic Church. The school is situated within the

church compound and bears the name of the patron of the church. It is

admitted that the school was established in 1891. In the original petition

the petitioners stated that the school was established and is administered

by the Catholic Diocese of Calicut of which the 1st petitioner is the

Bishop. It is further stated that the school was established by the Bishop of

Calicut for the purpose of giving Catholic education to Catholic students

although students of other communities are also admitted to the school.

19Foot Note Supra (1)

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The Catholic Diocese of Calicut was formed in 1923 only. This is also not

in dispute. From this the respondents took up the stand in their counter-

affidavits that the claim of the petitioners that the school was established

by the Catholic. Diocese of Calicut is unsustainable. Until 1923 this area

where the school is situate was part of the Catholic Diocese of

Mangalore. The petitioners' answer in the reply affidavit is that the

church and the school established by the Catholic Diocese of Mangalore

were passed on to the Catholic Diocese of Calicut when the Mangalore

Diocese was bifurcated in 1923 into the Catholic Diocese of Mangalore

and Catholic Diocese of Calicut, and that their statements in the original

affidavit that the school was established and is administered by the

Catholic Diocese of Calicut was intended only to mean that the school

belongs to the Roman Catholics now forming the Catholic Diocese of

Calicut. In the reply affidavit full particulars of the original Catholic

Diocese of Mangalore, its bifurcation in 1923 and the functioning of the

Catholic Diocese of Calicut separately from that of Mangalore are all

stated clearly. Though the respondents have filed supplementary counter-

affidavits after this reply affidavit was filed, this fact is not disputed. So

the petitioners' explanation in this regard can be accepted.

68. At paragraph 6, the Court states that in any event it remains to be seen

as to whether that school had been established by the Roman Catholic Diocese

or by any other organization or individual. The Education Department had

argued that that school had been established by the Basel German Mission under

the name of B.G Fisher Village School and recognition had also been given to it

under the Madras Educational Rules after examining the documents produced.

Evidently this was to discredit the stand of that School that it claimed a lineage

from the Catholic Diocese that would support its claim for minority status.

69. The Court examined the documents, finding that the Upper Primary

schools that had been established under the Malabar Gazette were different from

St.Peter’s U P School in Tellicherry. The Court thus found on facts and on the

bases of documentation that the St.Peter’s U P School had been established by

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W.A. No. 3769 of 2019

the Christians only.

70. The Court held that there was no evidence in support of the argument

that the school had originally been established by the Basel German Mission

and that the takeover of the management by the Catholic church would suffice

to satisfy the condition that the School has been ‘established’ by them.

71. In the cases discussed supra, the original establishment of the schools

has been by the Christian minority community only. The management of the

schools had been transferred inter se the Roman Catholics and the Jesuit

Fathers, both being sects of the minority Christian community. The subsequent

takeover is also by a section of the same minority community and hence the

minority nature of that school remains as a constant from the time of its original

establishment to the takeover by another minority establishment and thereafter.

72. The indicia set out by the Supreme Court in the AMU case would

stand fully satisfied in those cases, as the purport and object of the schools to

cater to the minority community has been settled even from day one of its

existence. It matters little if there is a takeover of the school by another section

of the minority community as the primary purpose of Article 30(1) stood sub-

served, and seamlessly, without a break. It was hence that the condition

regarding ‘establishment’ by a minority, stood satisfied in those cases.

73. There is, in our view, a difference in the present case where the

original establishment is not by a person from the minority community, and the

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school was set up as a secular institution. This very question was considered in

the case of A. Raju

20

, where the challenge was to an order declaring the Nalloor

Narayana L.P Basic School as a minority educational education.

74. The aforesaid school had been established in 1936 by Nalloor

Narayana Menon. After his demise, his son took over the school and in 2005

transferred the school properties to P.K.Mohammed Hajee who after several

years claimed minority status for that school. The question that it was being

administered by the minority community after the takeover was not in dispute.

The claim was however rejected on the ground that it had not been established

by a member of the minority community.

75. The learned single judge had held that the term ‘established’ meant

infusing life and soul to an existing institution through dedication, relying on

the decision of the learned single judges in Rt. Rev. Dr. Aldo Patroni’s

21

case as

well as T.M.A.Pai’s

22

case.

76. However, the judgment in the case of Rt. Rev. Aldo Maria

Patroni.S.J.

23

was distinguished and the Court arrived at the conclusion based

on the judgments of the Supreme Court in Sisters of St. Joseph of Cluny V. State

of West Bengal and Others

24

, Paramveer Albert Ekka Memorial College V.

State of Jharkhand

25

, S. Azeez Basha

26

, DAV College, Bhatinda V. State of

20Foot Note Supra (4)

21Foot Note Supra (1)

22Foot Note Supra (10)

23Foot Note Supra (1)

24(2018) 6 SCC 772

252018 6 SCC 788

26Foot Note Supra (13)

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W.A. No. 3769 of 2019

Punjab

27

, and Dr.T.M.A.Pai Foundation

28

, that a minority educational

institution should be one established only by members of the minority

community and in the interests of that community. The declaration that the

Nalloor Narayana L.P.Basic School was a minority Educational Institution was

thus quashed. The SLP filed as against this decision has been dismissed.

77. According to Mr.Mohanlal, this decision had not taken note of the

earlier decision in Rt. Rev. Aldo Maria Patroni.S.J.

29

in proper perspective. Our

attention is drawn to the findings at paragraph 14, reading thus:

14. The learned Single Judge relied on the decision rendered by

this Court in Rt.Rev.Dr.Aldo Maria Patroni's case (supra) to hold

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 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

organization 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

27AIR 1971 SC 1737

28Foot Note Supra (10)

29Foot Note Supra (1)

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fastened, had satisfactorily proved that fact. Understood in the

factual background in which the observations in Rt.Rev.Dr.Aldo

Maria Patronis 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 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.

78. Mr.Mohanlal would compare the observations in paragraph 14 of the

decision A.Raju’s case

30

with the findings in Rt. Rev. Aldo Maria Patroni.S.J.

31

to show that in Rt. Rev. Aldo Maria Patroni.S.J’s case

32

the Bench had stated

that, ‘Even assuming that to be correct, what we have to see is whether the

school is established by the Roman Catholics minority. For establishment, it is

not necessary that the school must be constructed by the community. Even if a

school previously run by some other organization is taken over or transferred

to’ . According to him, the above observation supports his stan d.

79. We cannot however agree. We have, in the paragraphs supra

considered the factual matrices in the cases of Rt. Rev. Dr.Aldo Patroni

33

(Full

Bench of Kerala High Court) and Rt. Rev. Dr.Aldo Patroni SJ

34

(Single Judge

Kerala High Court) and noted that the takeover or transfer in those cases had

30Foot Note Supra (4)

31Foot Note Supra (1)

32Foot Note Supra (1)

33Foot Note Supra (17)

34Foot Note Supra (1)

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been from a minority institution. To put it differently, the conception of the

school originally, the infusion of funds, the object, motive and constitution of

the school even originally had been by, and for the minority community. The

observation of the learned Single Judge in Rt. Rev. Dr.Aldo Patroni SJ

35

had

been made in that context only.

80. In Dr.T.M.A.Pai Foundation

36

, the constitutional validity of the

Karnataka Educational Institution (Prohibition of Capitation Fee) Act, 1984 was

challenged on the ground that it was violative of Article 30 of the Constitution.

The facts were that the Academy of General Education was founded in 1942,

registered as a Society under the Societies Registration Act. The Academy

established a large number of Institutions including the Manipal Institute of

Technology (in short ‘MIT’) on 30.05.1957.

81. The Manipal Engineering College Trust, Manipal, had thereafter been

formed with the object of establishing an Engineering College, and had taken

over the management of MIT. The Trust Deed stated that the object was to

promote and develop the Konkani language and culture of Konkani speaking

people and for educational advancement of students speaking Konkani in

addition to other castes and communities. By way of a declaration, all assets

were transferred to the Trust which owned and administered the MIT.

35Foot Note Supra (1)

36Foot Note Supra (10)

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82. The question that came up was whether the Trust could be said to

have established the MIT. The learned Judge, after examining the objects of the

Trust Deed and interpreting Article 30 of the Constitution discussed the case of

S.Azeez Basha

37

stating that the expression ‘established’ in Article 30 included

not only the foundation of an Institution but also securing of ownership of a

party that had founded the Institution. Thus, re-establishment of the same

Institution under a different management would also amount to ‘establishment’

for the purposes of Article 30 of the Constitution.

83. The relevant paragraph, being paragraph 11, reads as follows:

11.On a careful consideration of the rival submissions, 1

am unable to agree that the judgment of the Supreme Court in

the case of Azeez Bhasha is an authority for the proposition, that

even if a linguistic or religious minority takes over the ownership

and right of administration of an institution already established

by some-one else, it would not be entitled to the right guaranteed

under Article 30(1) of the Constitution. I am of the opinion that

the expression 'established' in Article 30 includes not only the

founding of an institution, but also securing the ownership of an

already founded institution, which means re-establishment of the

institution under the new management and owner.

. . . .

The interpretation of Article 30(1) by the Supreme Court to

the effect that the expression 'establish' and administer should be

read conjunctively means that both the ownership and right of

administration must be in the hands of the minority, and that if

one of them is absent, the right guaranteed under Article 30(1)

cannot be invoked. In other words, a minority having only

ownership or only right of administration without ownership,

would not be entitled to the protection of Article 30. The Kerala

High Court, after considering the relevant paragraph of the

judgment ofthe Supreme Court in Azeez Basha's case held that the

expression 'establishment' includes the taking over of ownership

37Foot Note Supra (13)

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and control of an institution already existing. I am in respectful

agreement with the view taken by the Kerala High Court.

Therefore, if a linguistic or religious minority. desirous of

establishing an educational institution, instead of starting a new

educational institution, if it were to secure both absolute

ownership and management of an already existing institution,

either by purchase or gift or by declaration of the property as a

Trust for the benefit of the minority, it is entitled to the right

guaranteed under Article 30 in respect of such institution. In all

such cases, the test to be applied is, whether both the ownership

and the right of administration of the institution concerned is

really with the minority concerned? If the answer is yes, the right

guaranteed under Article 30 extends.

84. The Bench goes on to say that the Petitioner in that case, that is,

Dr.T.M.A.Pai Foundation was (i) Konkani in character, a linguistic minority (ii)

the institution, the Manipal Institute of Technology, had been taken over by the

T.M.A.Pai Foundation that was also administering it and most importantly, (iii)

the institution had also been founded by Dr.T.M.A.Pai, a Konkani. The identity

of the Institution and its character thus remained the same through the

acquisition. This decision thus is of no assistance to R1 as both the original and

subsequent entities, the transferor and transferee sub-served the interests of the

linguistic Konkani minority community.

85. In Manager, St. Thomas U.P. School, Kerala and Another V.

Commissioner & Secretary to General Educational Department and Others

38

,

the Supreme Court considered whether the establishment test has been satisfied

in the case of transfer of an institution funded by one P.J.Thomas, a Christian

who had set up a school in 1964 which was taken over in 1980 by the

38(2002) 2 SCC 497

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Archbishop of Thiruvananthapuram of the Malankara Syrian community.

86. The Court accepted that such a school would be entitled to minority

status, on the basis that even the original commencement of the school had been

by P.J.Thomas, who was a Christian and from the same Malankara Syrian

community. Further, right from 1964 when it had been set up by the founder,

the school had been administered for the benefit of the Christian community.

87. A Division Bench of this Court in The Church of South India,

Kanyakumari District, Nagercoil, represented by its Bishop Rt.Rev.G.

Christudas V. The Director of School Education, Madras 6 and Others

39

considered the question of whether the transfer of management of the V.V.High

School for Girls and V.V.Higher Secondary School for Boys at Irenipuram

Village that had been started by the landlords for the welfare of their tenants’

children, to the Church of South India would satisfy the test of Article 30.

88. In understanding the term ‘established’, the Court, relied on the

decision in Rt. Rev. Aldo Maria Patroni.S.J

40

, and accepted the claim for

minority status. The operative portion of the decision is at paragraph 6 reading

thus:

6. As for the next reason that these two schools have not been

established and administered by a minority Educational Agency, it

has nowhere been held that unless buildings are put up by a

minority Educational Agency, and a School is started by them; they

cannot establish and administer a school by acquiring an existing

school. There is no provision in the Act that a school could be run

39Writ Appeal NO. 1813 of 1987 Judgment dated 30.08.1989

40Foot Note Supra (1)

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by an Educational Agency only in a building owned by it. It could

take a building on lease or it could be licenced to run a school. As

to what meaning could be given to the words "established and

administered" as rightly pointed out in A.M. Patroni v. Asst.

Educational Officer, even an existing institution could be taken

over by a minority community and that would in law mean that it

had been "established and administered by it”.

89. The Supreme Court, in the case of AMU has set out categoric indicia

to test when an institution can be said to have been ‘established’ for the

purposes of Article 30 of the Constitution. To sum up, the indicia are (i) what

the character and nature of the institution was at the time of its genesis (ii)

whether it had, predominantly, been set up for the benefit of the religious or

linguistic minority community and (iii) tracing the steps for the setting up of

the institution and efforts taken for such constitution.

90. While both the P.Muthaiyar school and the CSI Kanyakumari school

might satisfy the second parameter in that, the schools, after transfer were

being administered mainly for the benefit of the minority community, the first

and third tests remain uncompiled. The first test relates to the nature of the

schools at the time of their original setting up, which is secular.

91. The third test relates to the efforts taken for setting up the institution.

In the case of the P.Muthaiyar school, the idea behind the setting up of that

school was P.Muthaiyar’s and he had set it up as a secular school. The manner

in which the school was created has not been gone into in detail, and the

instrument of such creation is not available. The State has relied upon the

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judgement in the case of P.Venugopala Naidu

41

to say that the properties of a

Public Trust should be zealously guarded, and transfer of such properties by

private negotiation should be monitored carefully by the Court, including on

the aspect of the valuation of the properties.

92. This aspect of the matter has been raised only at the stage of the writ

appeal before us, and has not been contemplated by the authorities at the initial

stages. We are hence unaware as to the nature of holding of the school by

Sri.P.Muthaiyar and whether at all there had been a Trust at the first instance.

As a matter of practice, it is imperative that the State and the authorities

concerned should look into this aspect, whether the transfer of the school

properties was above board, for proper valuation, and in line with the objects of

the Founder of the school concerned. This is as far as the transfer of the school

properties are concerned.

93. As far as the school is itself, concerned, there is a procedure

contemplated under the Act and Rules for setting up of a school. The

entity/person would have to apply to the competent authority with an

application under section 6 of the Act, and follow the procedure stipulated

therein. Section 9 exempts any minority, based on either religion or language,

from seeking permission under Section 6 of the Act, but requires, under Section

10 that every minority school should file a Statement with the requisite

particulars within the prescribed time.

41 Foot Note Supra (5)

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94. Once a school is established, an educational agency is to be set up.

Section 2(3)(a) of the Act, in the context of a minority school, means any person

who, or body of persons which, has established and is administering or proposes

to establish and administer such minority school. In this case, the educational

agency has been named to be one Sister Edvij.

95. An application has been made for change of management from

S.R.Selvaraj to R1, and that has been approved by the competent authority on

17.10.1997. In those proceedings, there is a specific stipulation that the school

shall be ‘maintained under the prevailing non-minority status.’ R1 had, at the

time of grant of approval for change in management, acceded to maintaining

and administering the school as a secular school, reversing that stand within

days and seeking the grant of minority status. The communication of the

CEO/R3 in 2003 states that the school was being administered with all trappings

of a minority school at the time of the inspection even when it had not obtained

such approval.

96. R1 has thus stepped into the picture only by purchase of the school

assets, the land and building, and transfer of management to itself, the

Congregation of the Sisters of St.Anne, Tiruchirappalli belonging to the Roman

Catholic sect. Article 30 of the Constitution requires concurrent satisfaction of

both ‘establishment’ and ‘management’ of the school by an entity. While the

management of the school after the acquisition is admittedly by R1, we are of

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W.A. No. 3769 of 2019

the view that the school does not satisfy the tests for 'establishment' laid down

by the Supreme Court in AMU’s case and Kerala High Court in A.V.Raju’s

case.

97. In light of the discussion as above, this Writ Appeal is allowed.

Connected Miscellaneous Petitions are closed with no order as to costs.

[A.S.M., J] [C.K., J]

sl 02.09.2025

Index: Yes/No

Speaking Order / Non-Speaking Order

Neutral Citation: Yes/No

To

1.The Secretary,

Department of School Education,

Fort St. George,

Chennai – 600 009.

2.The Director of School Education,

College Road, Chennai – 600 006.

3.The Chief Educational Officer,

Cuddalore – 607 101

Cuddalore District.

4.The District Educational Officer,

Cuddalore – 607 101.

Cuddalore District.

DR. ANITA SUMANTH,J.

and

C. KUMARAPPAN,J.

sl

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W.A. No. 3769 of 2019

W.A. No. 3769 of 2019

&C.M.P. No. 23848 of 2019

Dated: 02.09.2025

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