Gujarat High Court
Adam vs Government
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
WPPIL/20/2011 76/ 76 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD WRIT PETITION (PIL) No. 20 of 2011 With WRIT PETITION (PIL) No. 191 of 2012 For Approval and Signature: HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA AND HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ?` 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= ADAM B CHAKI Versus GOVERNMENT OF INDIA THROUGH SECRETARY & ANR. ========================================================= Appearance : MR EKRAMA QURESHI with MR. HASHIM QURESHI for PETITIONER IN WP PIL No. 20 of 2011 MR YATIN OZA, SR. COUNSEL with MS. SHRUTI THULA for newly added respondents No.3 and 4 in WP PIL 20 of 2011 MR SHALIN MEHTA, SR. COUNSEL with MS. SHRUTI THULA for petitioner in WP PIL No. 191 of 2011 MR PS CHAMPANERI, ASST. SOLICITOR GENERAL OF INDIA for RESPONDENT with MR HRIDAY BUCH with MR. NISHANT LALAKIYA for RESPONDENT : 1 IN BOTH THE PETITIONS. MR KAMAL TRIVEDI, ADVOCATE GENERAL with MS. SANGITA VISHEN, ASST. GOVERNMENT PLEADER for RESPONDENT : 2, ========================================================= CORAM : HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 08/10/2012 COMMON CAV JUDGMENT
(Per : HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA)
1. These two Public Interest Litigations were heard one after the other as the points involved in these two matters are, to some extent, similar.
2. By filing Writ Petition [PIL] No. 20 of 2011, the writ-petitioner has prayed for issue of mandamus or any other appropriate writ, order or direction for implementing the Scheme for Pre-Matric Scholarship for Students Belonging to the Minority Communities ["the Scheme"] upon the State of Gujarat while in the other Public Interest Litigation, being Writ Petition [PIL] No. 191 of 2012, the writ-petitioners have prayed for a declaration that the benefit of the Scheme should be extended to other eligible students, irrespective of the community or religion to which they belong, or in the alternative, to issue a mandamus or appropriate writ quashing the Scheme itself being violative of Article 15(1) of the Constitution.
3. The Central Government has introduced the Scheme effective from 1st April 2008. It appears from the said Scheme, a copy of which is annexed to the writ-petition, that one of the objectives of the Scheme was to encourage parents from the minority communities to send their school-going children to school, lighten their financial burden on school-education and sustain their efforts to support their children to complete school-education. Another objective of the Scheme was that the Scheme will form the foundation of their educational attainment and provide a level-playing-field in the competitive employment arena. Empowerment through education was also one of the objectives of the Scheme which has the potential to lead to upliftment of the socio-economic conditions of the minority communities.
4. The scope of the scheme was to award scholarship for the studies in India in a government or private school from Class I to Class X, including such residential Government institutes and eligible private institutes selected and notified in a transparent manner by the State Government and the Union Territory Administration concerned. According to the eligibility criteria mentioned in the said Scheme, the scholarships would be awarded to the students who have secured not less than 50% marks in the previous final examination and the annual income of their parents/guardian from all sources should not exceed Rs. 1 lakh. It was further stipulated in the Scheme that the benefit would be available only to the Muslims, Sikhs, Christians, Buddhists and Zoroastrians (Parsis) who are notified as minority communities under Section 2 (c) of the National Commission for Minorities Act, 1992. The distribution of scholarship among the States/Union Territories will be made on the basis of population of minorities in the States/Union Territories indicated in the Census 2001. It was further provided that 30% of scholarships would be earmarked for girl students and in case sufficient number of eligible girl students was not available, the balance earmarked scholarships might be awarded to the eligible boy students. According to the mode of selection provided in the Scheme, as the number of scholarships for minorities available in a year is fixed and limited, inter se selection weightage is to be given to the poverty rather than the marks obtained. In case of renewal applications, such applications would be fully exhausted before the new applications are considered. The duration of the Scheme was for the entire course and the maintenance allowance would be given for 10 months only in an academic year.
5. The rate of scholarship would be Rs.500/- per annum subject to actuals for both the hostellers and the day scholars as admission fee from class VI to X. Similarly, for tuition fee from Class VI to X, the scholarship would be given at the rate of Rs.350/- a month subject to actual for both the hostellers and the day scholars. Maintenance allowance would be payable for a period not exceeding 10 months in an academic years, and for Class I to V, no maintenance allowance would be payable for the hostellers whereas the maintenance allowance at the rate of Rs.100/- a month would be payable for day scholars, while the said allowance for the students studying in Class VI to X for the hostellers would be Rs.600/- a month subject to actuals and Rs.100/- a month for day scholars.
6. The following conditions are provided in the Scheme for award of the scholarship.
"11. CONDITIONS FOR SCHOLARSHIP:
(i). Scholarship will be available to the students of minority community studying in Classes I to X. The continuance of award will be subject to securing 50% marks in the previous examination. Maintenance allowance will be provided to hostellers and day scholars.
(ii). The award will be discontinued if a student fails to secure 50% marks in the annual examination except in case of unavoidable reasons to be certified by the Principal/competent authority of the school and recommended by the State Government/Union Territory Administration.
(iii). Scholarship will not be given to more than two students from a family.
(iv). Students should be regular in attendance for which the yardstick will be decided by the competent authority of the school.
(v). Income certificate should be on self-certification basis by way of affidavit on non-judicial stamp paper of self-employed parents/guardian and from employer for employed parents/guardian.
(vi). The school/institute will certify the claim of student of being an outstation student not residing in hostel of the school/institute concerned on the basis of permanent address and parents' address.
(vii). Migration of student from one school/institute to another would not normally be during the course of academic year except under exceptional circumstances and in the interest of student's academic career.
(viii). If a student violates school discipline or any other terms and conditions of the scholarship, scholarship may be suspended or cancelled. The State Government/Union Territory Administration can also directly cancel the award if duly satisfied of the reasons of violation of these regulations governing the scheme.
(ix). If a student is found to have obtained a scholarship by false statement, his/her scholarship will be cancelled forthwith and the amount of the scholarship paid will be recovered, at the discretion of the concerned State Government/Union Territory Administration.
(x). The State Government/Union Territory Administration will lay down the detailed procedure for processing and sanctioning of scholarship to eligible students.
(xi). Course fee/Tuition fee will be credited to the school's/institute's bank account. Efforts will be made for transferring it electronically through the banks.
(xii). Maintenance allowance will be credited to the student's bank account.
Efforts will be made for transferring it electronically through the banks.
(xiii). The State Government/Union Territory Administration will maintain normal and records relating to the funds received from the Ministry and they will be subjected to inspection by the officers of the Ministry or any other agency designated by the Ministry.
(xiv). The student obtaining benefits under this scheme shall not be allowed to avail of benefits under any other scheme for this purpose.
(xv). A student shall be eligible for only one scholarship for all sources, i.e., SC/ST/OBC.
(xvi). The State Governments/Union Territory Administrations shall constitute a committee of the Departments implementing such scholarship schemes to ensure that the student from the minority community, who may also belong to children of those engaged in unclean occupation and OBC do not avail scholarship from other sources for the same purpose and avail only one source.
(xvii). The fund for distribution of scholarship in subsequent year will be released after receiving the utilization certificate for the previous year.
(xviii). The scheme will be evaluated at regular intervals by the Ministry or any other agency designated by the Ministry and the cost of the evaluation will be borne by the Ministry of Minority Affairs under the provision of the scheme.
(xix). The State/Union Territory shall place all relevant details of financial and physical achievements on their website.
(xx). The regulations can be changed at any time at the discretion of the Government of India.
7. It further appears that funding pattern between the Centre and the States would be in the ratio of 75:25. The Union Territories will be provided 100 per cent Central assistance.
8. The grievance of the writ-petitioner in WP PIL 20 of 2011 is that the State of Gujarat is ignoring the said Scheme right from its inception and for the last consecutive three years, they are not taking any steps for implementation of the Scheme although the State Government is bound to implement the scheme.
9. As indicated earlier, in the other PIL being WP PIL No. 191 of 2012, the writ-petitioners have contended that the Scheme introduced by the Central Government is violative of Article 15 (1) of the Constitution of India as only on the ground of religion, the children of all other communities, except the five communities indicated in the scheme, are deprived of the said benefit, however meritorious the children of other communities may be and however lower ebb of poverty and distress they are suffering from. Thus, according to the writ-petitioner of WP PIL No. 191 of 2012, either the benefit of the Scheme must be available to all the children in the country irrespective of their religion or the same should be struck down, if the Central Government intends to restrict its operation only to the children of five specified religious communities.
10. The aforesaid writ-application being WP PIL No. 20 of 2011 has been opposed by the State Government by filing an affidavit, and their defence may be summed up thus:
10.1 In the first year, the Central Government, at the initial stage, allowed 10,460 scholarships for the year 2008-2009 and thereafter, the same came to be revised, vide communication dated 29th March 2008, whereby the scholarship came to be increased from 10,460 to 15,690 as against 6,00,000 eligible students belonging to the minority communities and the same created a 'heart-burning' in the remaining minority students who were otherwise fully eligible and entitled for the benefit of the scheme in view of the income criteria of Rs.1 lakh and securing marks above 50%.
10.2 In the next year, the number of scholarships was increased from 15,690 to 20,920 for the year 2009-2010, which was also much on the lower side as compared to the actual eligible students in the State of Gujarat belonging to the minority communities.
10.3 In the year 2010-2011, the number of scholarships was further enhanced from 20,920 to 52,260 and yet, the same is still on the lower side as compared to the actual number of students who are eligible for the benefit of the scheme.
10.4 The Central Government has announced a grant of Rs.9.82 Crore per annum for 52,260 minority students and thereby inviting the State of Gujarat to bear the burden of about Rs.2.5 Crore per annum for the said students under the scheme in question.
10.5 The State Government is not desirous of implementing the scheme inasmuch as the figures of the eligible students which are available with the State Government are on a much higher side and owing to restriction of the scheme only to 52,260 students, the remaining students will be deprived of the benefit of the Scheme and ultimately, the same will cause 'heart-burning' amongst the students of various minority communities.
10.6 The following scheme pertaining to Pre-Matriculation Scholarships, which are funded by the State of Gujarat and the following five scholarships are covering 62,97,000 students all over the State of Gujarat with disbursement of total scholarship amount to the tune of 69.94 crore per annum in the year 2011.
SrNo.
Nature of Scheme Year of introduction Income criterion Scholarship amount Rural Area Urban Area
1. Pre-matric Scholarship for minority students 1979 Rs.20,000/-
per annum Rs.25,000/-
per annum Std.5 to 7 Rs.150/-
per annum Std.
8 to 10 Rs.
300/- per annum
2. Pre-matric Scholarship for economically backward class 1979 Rs.20,000/-
per annum Rs.25,000/-
per annum Std.5 to 7 Rs.150/-
per annum Std.
8 to 10 Rs.300/-
per annum
3. Pre-matric Scholarship for Socially, Educationally Backward Class 1979 Rs.20,000/-
per annum Rs.25,000/-
per annum Std.
1 to 7 Rs.150/-
per annum Std.8 to 10 Rs.300/-
per annum
4. Pre-matric Scholarship for Scheduled Caste 1976 No income limit No income limit Std.
1 to 7 Rs.150/-
per annum Std.8 to 10 Rs.300/-
per annum
5. Pre-matric Scholarship for Scheduled Tribe 1977 No income limit No income limit Std.
1 to 7 Rs.150/-
per annum Std.
8 to 10 Rs.
300/- per annum 10.7 If the State Government adopts the criteria laid down in the scheme in question, in that case, the same will incur a further additional burden on the State exchequer to the tune of Rs.2091.38 crore per annum. The State Government also has the aforesaid schemes pertaining to Pre-Matric Scholarships which are funded by the State of Gujarat and for becoming eligible to avail the benefit of the State's schemes, the income limit is Rs.20,000/- per annum in rural areas and Rs.25,000/- per annum in urban areas and if one is required to follow the income criteria envisaged in the Scheme in question, the income criteria in the State's schemes will have to be raised from Rs.20,000/- per annum or Rs.25,000/-
per annum to Rs.1 lakh per annum and consequently, the number of students will increase from 62,97,000 to 77,19,000.
10.8 In view of the aforesaid difficulties, the State Government would not like to discriminate the students belonging to the minority communities since the scheme in question floated by the Ministry of Minority Affairs can be extended only to an extent of 52,260 students in the State as against 6 lakhs eligible students falling within the income criteria of Rs.1 lakh per annum.
11. The respondent No.1, the Union of India, by filing its affidavit, has, on the other hand, supported the writ-petitioner and has also justified the validity of the Scheme in the light of the Constitution of India. According to the Union of India, there is no discretion vested with the State or Union Territories in the matter of implementation of the scheme and it is the duty of the State and the Union Territories to implement the scheme introduced by the Union of India.
12. Mr. Ekrama Qureshi, the learned advocate appearing on behalf of the petitioner in WP PIL No. 20 of 2011, has strenuously contended before us that the Scheme introduced by the Central Government being a part of the 15-point programme introduced by the Prime Minister based on the report of a committee chaired by Justice Rajender Sachar (Retd.) constituted by the Government of India and the said report submitted by the Committee having been placed before both the Houses of Parliament, it has attained the status of law, and such law has created a right in favour of the children of the five specified minority communities for scholarship if they comply with the eligibility criteria; but for the inaction on the part of the State Government in refusing to implement the said Scheme, the right conferred upon those children have been infringed. Mr. Qureshi, therefore, prays for a direction upon the State Government for implementation of the Scheme.
13. Mr. Trivedi, the learned Advocate General appearing on behalf of the State of Gujarat has opposed the aforesaid contentions of Mr. Qureshi and his submissions may be summarized thus:
13.1 This Court should not issue directions upon the State Government to take policy decision for the implementation of the scheme in question. At the same time, this Court should not express any opinion as to whether at a particular point of time or in a particular situation, any such policy should have been adopted or not. Such aspects being within the domain of the policy matters of any State Government, same may be best left to the discretion of the State as provided in the following decisions:
UGAR SUGAR WORKS LTD. vs. DELHI ADMINISTRATION reported in (2001) 3 SCC 635 - ( paragraphs - 18 to 22) DHAMPUR SUGAR [KASHIPUR] LTD.
vs. STATE OF UTTRANCHAL & ORS. reported in (2007) 8 SCC 418 - (paragraphs - 82 & 84)
(iii) STATE OF U.P. vs. CHAUDHARI RAN BEER SINGH reported in (2008) 5 SCC 550 - ( paragraph - 13) BAJAJ HINDUSTAN LTD. v. SIR SHADI LAL ENTERPRISES LTD. reported in (2011) 1 SCC 640 -
(paragraphs - 21, 22 & 41 to 45) T.P. GEORGE v. STATE OF KERALA reported in 1992 Supp. (3) SCC 191 13.2 The scheme in question relating to Pre-Matric Scholarship is neither a statutory scheme nor is the same backed by any law, giving rise to a legal right to seek a writ of mandamus for enforcement of such a right and hence, the subject public interest litigation for this purpose is not maintainable as held in the following decisions:
(i). DIRECTOR OF SETTLEMENT, A.P. v. M.R. APPARAO reported in (2002) 4 SCC 638
- ( paragraph - 17)
(ii). GURUVAYOOR DEVASWOM MANAGING COMMITTEE v.
C.K. RAJAN reported in (2003) 7 SCC 546 -
(paragraph 50) 13.3 Articles 256, 257 and 73 of the Constitution, which empower the Central Government to exercise its executive power, can have any application only when any law has been made by the Parliament, whereby, the executive power of the State is made subservient to it by requiring it to ensure compliance with such laws. In the present case, there is no law enacted by the Centre in the matter of grant of Pre-Matric Scholarship Scheme. Reference may be made to :-
(i). Debate of Constitutional Assembly with reference to draft Article-63 [present Article 73] relevant page 1138.
(ii). M/S. SHARMA TRANSPORT v.
GOVERNMENT OF A.P. reported in AIR 2002 SC 322 - ( paragraphs - 8 & 9) 13.4 The minority communities in State of Gujarat are more developed and educationally more advanced as compared to many of the other States in the country as well as compared to the people belonging to SC, ST, SEBC and EBC categories and hence, the implementation of the scheme in question, targeting only a limited number of communities with reference to the limited number of people belonging thereto as described in the affidavits of the State, will create heart-burning and discriminatory feelings amongst them, apart from being in violation of Article 15 of the Constitution. Thus, there will be a creation of class within class and therefore, no direction may be issued as prayed by the petitioner. This would be more so, when the State has been implementing its various such similar schemes, covering all the eligible persons without limiting the numbers, of all the specified minority communities. The following decisions support the above view of the State Government:
(i). STATE OF RAJASTHAN vs. THAKUR PRATAP SINGH reported in AIR 1960 SC 1208
(ii). SRIMATI CHAMPAKAM DORAIRAJAN & ANR. vs. STATE OF MADRAS reported in AIR 1951 MAD.120 [FB] (paragraphs 12, 15, & 23)
(iii). Unreported judgment dated May 28, 2012 of A.P. High Court in PIL Nos. 1, 22 and 56 of 2012.
13.5 Grant of any such direction to the State will be in violation of the Doctrine of Separation of Powers between the Centre and the States as provided under the Constitution as would appear from the following decisions:
(i). MOHD.
SALAMATULLAH vs. GOVT. OF A.P. reported in (1977) 3 SCC 590 - (paragraph - 40)
(ii). S.R. BOMMAI vs. UNION OF INDIA reported in (1994) 3 SCC 1 (paragraph -
276) 13.6 [a] The Central Government cannot, in its executive power, direct the State Government to contribute to its scheme in view of the provisions contained in Articles 256 and 202 to 204 of the Constitution, which provide as to how the monies should be spent, from 'the Consolidated Fund of the State'. Any direction to the State Government to implement the Scheme in question will transgress the aforesaid Constitutional Provisions.
[b]. It will also be not in the right earnest to direct the State Government to allow the Central Government to have the scheme in question implemented in the State even to the extent of the Central assistance of 75% with a further direction to State, to implement and monitor the financial and physical performance of the scheme in question in the State, more particularly in absence of any valid law in that behalf, like 'the Right of Children to Free and Compulsory Education Act, 2009.
14. Mr. Champaneri, the learned Assistant Solicitor General of India and Mr. Hriday Buch, the learned counsel appearing for the Union of India in these two matters, have opposed the aforesaid contentions of Mr. Trivedi and their submissions may be summed up thus:
14.1 The Pre-Matric Scholarship Scheme is announced for meritorious students from the minority communities pursuant to the Hon'ble Prime Minister's New 15 Point Programme for the Welfare of Minorities.
14.2 His Excellency the President of India, in His address to the joint session of the Parliament on 25th February, 2005, had announced that the Government would plan, formulate and implement certain policies and programme for the welfare of minorities.
14.3 Before announcing the implementation of the said 15 Point Programme, the Prime Minister of India had appointed a High Level Committee, headed by Justice Rajender Sachar, Chief Justice (Retired), Delhi High Court, as Chair Person along with six other members to prepare a report on the social, economic and educational status of the Muslim community of India, by Notification dated 9th March, 2005.
14.4 Accordingly, the said Committee while assessing the data provided by number of institutions and after discussing verbally the issues relating to the Muslim community, also sought valuable data from the National Sample Survey Organization, the Registrar General, Indian Census, the Reserve Bank of India, NCAER, NCRT, etc. That apart, the Committee visited different States. The large number of multilateral organizations and NGOs shared their experiences. Help was also taken from DFID, World Bank, CAPART, Aga khan Foundation, OXFAM, Care India, Ford Foundation, CSDS, CRY, Indian Social Institute, Action Aid, Pratham, SEWA, UNDP, etc. There is a detailed report, running into 403 pages which has been submitted by the said Committee to the Hon'ble Prime Minister on 17th November, 2006.
14.5 The said report of the Committee was placed before both the Houses of Parliament on and about 30th November, 2006 and the said report was accepted.
14.6 Thereupon, the decision has been taken to give benefits under various sectors to the eligible sections of the minority communities. Resources are allocated in the Eleventh Five Year Plan and approval has also been accorded by the Expenditure Finance Committee and by the Cabinet Committee on Economic Affairs.
14.7 Accordingly, the present Scheme is implemented w.e.f. 1st April, 2008. The Scheme provides for award of scholarships for the meritorious students from the minority communities. This scholarship at pre-matric level will encourage the parents from the minority communities to send their school-going-children to school, lighten their financial burden on school education and sustain their efforts to support their children to complete school education. The Scheme will form the foundation for their educational attainment and provide a level-playing-field in the competitive employment arena.
Empowerment through education, which is one of the objectives of the scheme has potential to lead to upliftment of socio-economic conditions of the minority communities.
14.8 Apart from the scope and eligibility, the scheme is available to the minority communities as notified under Section 2(c) of the National Commission for Minorities Act, 1992. Further, 30% of scholarships are ear-marked for girl students. Apart from other conditions, it also provides that the scholarship will not be given to more than two students from a family and the students shall be eligible only for one scholarship for all sources i.e. SC/ST/OBC and the students shall not be allowed to avail benefits under any other scheme for this purpose.
14.9 This clearly revealed that the Scheme is implemented not only on the ground of religion but on several other considerations which have weighed in the policy making and approved by both the Houses of Parliament.
14.10 The Scheme is the affirmative action to uplift the socio-economic conditions of the minorities and to eliminate the existing inequalities amongst the minority and majority communities. Further, the Scheme is meant for children with a view to bring them into the mainstream. The policy has been designed on the anvil of reasonableness and ultimate public good.
14.11 A public interest litigation came to be filed before this Hon'ble Court, being Special Civil Application No.2245 of 2008, challenging the implementation of the parameters of 15 Point Programme on the ground that it violates Articles 15 and 16 of the Constitution and it is discriminatory and violative of Article 15 of the Constitution. This Court vide its judgment dated 20th March, 2009 dismissed the said petition holding as under:
"Funds utilized by the States for improving the basic amenities, providing infrastructure facilities to minority concentrated areas, improvement of their health, family welfare, safety, general well-being, spreading literacy, providing education, etc would not violate Article 27 of the Constitution. Funds are not utilized for inculcating any religion or advancement of any particular religion affecting the constitutional requirement of neutrality."
(Emphasis supplied) This Court also held :-
".................no way violate the constitutional principles of equality or affect any of the fundamental rights guaranteed to the members of the other communities."
14.12 Further, identical challenge was made to the scheme before the Bombay High Court vide Writ Petition No. 84 of 2008 and Public Interest Litigation No.254 of 2009. Both the said petitions came to be decided by the Bombay High Court on 6th June, 2011 and both the said petitions are dismissed. The Bombay High Court has specifically held that the scheme is constitutionally valid and does not suffer from any infirmity under Articles 14, 15(1), 15(4) and 27 of the Constitution. The Bombay High Court has not only taken into consideration the report of Justice Sachar Committee but also considered the facts and figures placed on behalf of the Union of India and has held that "..........in 2010-11 alone the Government of India spent Rs.48,671 crores on education of all communities including the majority community with 82% population and the benefits of this outlays have not trickled down to a substantial number of minority community like Muslims with 13.40% population in the country. The petitioners are obviously not in a position to assert that expenditure of Rs.675 crores on the impugned scholarship scheme (1.4 % of the total outlays) on education of all minority communities in the entire country with 18% of the total population has made any adverse impact on majority community students."
14.13 Further, the Supreme Court of India in the case of Praful Goralia vs. Union of India, as reported in (2011) 2 SCC 568 has rejected the challenge of the petitioner against the provision made by the Indian Government to grant subsidy in air-fare to the pilgrims of Haj. The challenge on the basis of Articles 14, 15 and 27 of the Constitution has been rejected and it is held in paragraph-12 as under:
"In our opinion, we must not be too rigid in these matters and must give some free play to the state machineries. A balanced view has to be taken here and we cannot say that even if 1 paisa of the government money is spent for a particular religion, there will be violation of Article 27."
Further in para-14 it is held that :-
"there is no violation of Articles 14 and 15 because the facilities are also given and expenditure incurred by the Central and State Governments in India to other religions. Thus, there is discrimination."
14.13.1 The ratio of the above decision clearly applies to the facts of the present case and the challenge to the Scheme should be rejected.
14.14 The Supreme Court of India in the case of Krishnakumar vs. Union of India, as reported at (1990) 4 SCC 207, in paragraph 33 expressed its view of adhering to the precedent and not to unsettle things which are settled which is the principle underlying Article 141 of the Constitution. According to the said decision, the policy of the courts is to stand by precedent and not to disturb the settled point. When Court has once laid down the principle of law as applicable to certain set of facts, it will adhere to that principle and apply it to all future cases where facts are substantially the same. A deliberate and solemn decision of the court made after argument of question of law fairly arising in the case and necessary to its determination is a valid or binding precedent in the same court or any other courts of equal or lower rank in subsequent cases where the very point is again in controversy. Thus, the aforesaid decision is binding to this Court and this Court may not upset the findings especially when no contrary decisions from the Apex Court.
14.15 The reliance placed by the applicants of the Civil Application on the judgment of the Andhra Pradesh High Court would be inapplicable to the facts of the present case. The said decision relates to the reservation of seats in the educational institutions. The present case relates to awarding scholarships to children who are studying below the Matriculation. The benefit of reservation is quite contrary to the benefit of mere incentives like awarding scholarships. Thus, the said decision would be inapplicable.
14.16 Apart from the aforesaid decisions in support of the foregoing contentions of the Union of India, the reliance was placed on the following decisions:
[i]. Smt. Anjali Roy v. State of West Bengal & Ors., reported in AIR 1952 CAL 825 [ii]. In re M. Thomas reported in AIR 1953 MADRAS 21 [iii]. Dattatraya Motiram More v. State of Bombay reported in AIR 1953 BOM 311 [v]. St. Stephen's College v.
University of Delhi reported in (1992) 1 SCC 558, (paragraphs 92, 96, 97, 98, 100 & 101).
14.17 The High level Committee submitted its report in November 2006, which was threadbare discussed not only in the Parliament, but was also widely discussed in media and several other social and intellectual forums. The present Scheme of Scholarship is being implemented since 2008 across the Country barring few States and Union Territories and it caters the need to approximately more than 17 Lakhs students. The findings and the conclusions of Justice Sachar Committee Report have never been challenged for six years and the Scheme is also successfully implemented for past 4 years. Thus, the same may not be disturbed at this stage.
14.18 The Central Government has evolved several schemes of scholarships and other concessions even for Scheduled Castes, Scheduled Tribes, Other Backward Classes and Socially and Economically Backward Classes students. Even Pre-Matric Scholarship Scheme is implemented by the Central Government for the Scheduled Tribe. Such scholarship schemes are implemented through various Ministries, like, Ministry of Social Justice and Empowerment, Ministry of Tribal Welfare, Ministry of Human Resources and Development, etc. 14.18.1 Thus, the present Scheme would not be violative of Articles 14, 15 and/or 27 of the Constitution of India as the Supreme Court in the judgment of Praful Goralia (supra) has held that when such facilities are given and expenditure is incurred by the Central and State Governments to other religions, there would not be discrimination.
14.19 The present Scheme is an affirmative action of the Government to an inequality between the majority and the minority community and attempt is made to contend that the present Scheme is discriminating against other persons/religions. However, treating the unequals equally would not amount to discrimination. The existing inequalities have to be considered and accordingly an affirmative action has been taken in a manner conducive and ultimately to build up of an egalitarian non-discriminating society. The Constitution itself recognizes "minority". The provisions of National Commission for Minorities Act, 1992 are incorporated in the Scheme. If the Union of India can frame an Act for the benefit of minorities, it is incorrect to say that, the Union of India cannot frame a policy to confer scholarships to the students of minority community. That apart, when other similarly situated persons/students are also given similar benefits, there is no question of discrimination.
14.20 This Policy, especially for education, is not only in consonance with Article 46 of the Constitution of India but also in furtherance to the Declaration on the rights of persons belonging to National or Ethnic, Religious or Linguistic minorities promulgated by the United Nations way back in the year 1992.
15. Mr. Yatin N. Oza, the learned Senior Advocate, appearing on behalf of the intervening party has opposed the contentions of Mr. Qureshi and has supported the submissions advanced by the learned Advocate General. According to Mr. Oza, the Scheme introduced by the Central Government is clearly in violation of Article 15[1] of the Constitution of India and thus, cannot be enforced. Mr. Oza contended that if the Scheme is made applicable to all the students of the country irrespective of their religion, his client has no objection in implementation of the Scheme. Mr. Oza virtually adopted the arguments advanced by Mr. Trivedi.
16. Mr. Shalin Mehta, the learned Senior Advocate, appearing on behalf of the petitioner of W.P. [PIL] No. 191 of 2012 has reiterated the submissions made by Mr. Trivedi and Mr. Oza. According to him, any direction contained in the Scheme or in a law which is violative of Article 15[1] of the Constitution of India should be declared ultra vires unless the Scheme comes within the purview of the other sub-article of Article 15, Article 16 or other provisions of the Constitution of India which approve the scheme. Mr. Mehta contends that the proposed Scheme is not for all the children of the country, but only limited to the children of five different religions and at the same time, does not come within the purview of the other sub-articles of Article 15 or 16 of the Constitution of India. According to Mr. Mehta, the Division Bench decision of this High Court in the case of Vijay H. Patel v. Union of India and Another, in Special Civil Application No. 2245 of 2008, although referred to Article 15 of the Constitution of India in the first part of the judgment, yet, the effect of Article 15[3] of the Constitution of India was not at all considered in the body of the judgment. Mr. Mehta further submitted that although the said Division Bench referred to the Constitutional Bench decision in the case of State of Rajasthan v. Thakur Pratap Singh, reported in AIR 1960 SC 1208 at para-12 of the judgment, nevertheless there is no discussion of the said judgment in the entire body of the judgment. According to Mr. Mehta, the ultimate conclusion arrived at by the said Division Bench of this Court was, in fact, contrary to the decision of the Supreme Court in the case of State of Rajasthan [supra].
17. Similarly, by referring to the decision of the Supreme Court in the case of Praful Goradia v. Union of India, reported in [2011] 2 SCC 568, Mr. Mehta points out that the said two-judge Bench did not at all take note of the earlier five-judge-bench decision in the case of State of Rajasthan (supra).
Moreover, according to Mr. Mehta, the Supreme Court, in the case of Praful Goradia [supra] took into consideration the fact that the Entry 20 in the First List of the 7th Schedule, gives power to the Parliament to enact a law relating to the pilgrimages to the place outside India and thus, the facts of that case being different from the ones before us, the principles laid down in that case have no application to the present ones. Lastly, as regards the decision of the Bombay High Court in the case of Sanjeev Gajanand Punalekar v. Union of India, in Writ Petition No. 84 of 2008, Mr. Mehta contended that the view adopted by the said Division Bench of the Bombay High Court, cannot be supported as in the said case also, the Division Bench did not take into consideration the five-judge-bench decision of the Supreme Court in the abovementioned case of State of Rajasthan. Over and above, according to Mr. Mehta, the Bombay High Court upheld the validity of the Scheme in question, simply by placing reliance upon the report given by the Committee headed by Justice Sachar which dealt with the social status of only one of the religions involved, namely, Muslim religion, and thus, on the basis of such report, the benefits given to the students of the four other religions cannot be supported. Mr. Mehta further contended that even if a report is given by such Committee constituted by the Central Government, and report made by such committee is submitted highlighting the poor socio-economic condition of a particular religion, on that basis, no Scheme can be framed or no law can be enacted which is in violation of Article 15 of the Constitution of India. Mr. Mehta, therefore, prays for either quashing of the Scheme being violative of Article 15 [1] of the Constitution of India or for giving direction upon the Central Government to implement the Scheme by making the benefit of the Scheme available to all the children in the country irrespective of their religion.
18. Mr. Qureshi, the learned advocate appearing on behalf of the petitioner in WP [PIL] No. 20 of 2011, has in reply opposed the contentions of Mr. Trivedi, Mr. Oza and Mr. Mehta and has relied upon the following decisions in support of his contention for refuting the submissions made by Mr. Trivedi, Mr. Oza and Mr. Mehta:-
[1] Ms. Aruna Roy & others, v. Union of India & Ors. Reported in AIR 2002 3176, Paras 14, 16, 39 and 41 [2] Nand Kishore Gupta and Ors. V. State of U.P. and Ors., reported in AIR 2010 SC 3654, para-28 [3] In re The Kerala Education Bill, 1957, reported in AIR 1958 SC 956[1], para-21 [4] M.R. Balaji and others, v.
The State of Mysore and others, reported in AIR 1963 SC 649[1], paras 22 and 23 [5] [1974] 1 SCC 717, paras-131, 132 and 133 [6] State of Uttar Pradesh and others, v. Pradip Tandon and others, reported in [1975] 1 SCC 267, paras 13, 14 and 15 [7] Indra Sawhney etc. etc. v.
Union of India, reported in AIR 1993 477 page 552 para - 81C, page 610 para-237, page 561 para-88A [8] Smt. Mohini v. Virender Kumar, reported in AIR 1977 SC 1359, paras 51, 52, 54 and 58 [9] Union of India and others v. Rafique Shaikh Bhikan and others, reported in [2012] 6 SCC 265, para-41
19. Mr. Qureshi, thus, prays for passing a direction for implementation of the Scheme in question.
20. After hearing the learned counsel appearing for the parties and after going through the materials on record, we find that the only question that arises for determination in these Public Interest Litigations is whether we should pass direction upon the State of Gujarat to implement the Scheme in question or should quash the Scheme or modify the Scheme by directing its application to all the citizens irrespective of their religions.
21. At the very outset, we take note of the fact that this very Scheme was the subject-matter of an earlier litigation, being Special Civil Application No. 2245 of 2008 before a Division Bench of this Court in the case of Vijay Harishchandra Patel v. Union of India, which was disposed of on 20th March, 2009 and in the said decision, the Division Bench was of the view that the Scheme in question is not violative of any of the provisions of the Constitution. The said decision of the Division Bench, it is needless to mention, is binding upon this Bench unless it is established that in arriving at such conclusion, the Division Bench did not take note of any binding precedent of a superior court or any vital question of law, necessary for arriving at the final conclusion, was not raised before such Court and in such a situation, we can ignore the said decision as per incurium. Otherwise, if we propose to disagree with the view taken by the said Division Bench, we have to refer the matter to a Larger Bench.
22. Similarly, in the recent decision of the Bombay High Court in the case of Sanjay Gajanand Punalekar v. Union of India (supra), a Division Bench of the Bombay High Court has held that the said Scheme is in conformity with the provisions of the Constitution of India.
23. In order to appreciate the question involved in these applications, it will be profitable to refer to Articles 14, 15 and 16 of the Constitution of India, which are quoted below:
"14. Equality before law:
The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India."
"15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth: [1] The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
[2] No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to--
[a] access to shops, public restaurants, hotels and places of public entertainment; or [b] the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.
[3] Nothing in this article shall prevent the State from making any special provision for women and children.
[4] Nothing in this article or in clause [2] of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
[5] Nothing in this article or in sub-clause [g] of clause [1] of Article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes insofar as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause [1] of Article 30."
"16. Equality of opportunity in matters of public employment:
[1] There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
[2] No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.
[3] Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment.
[4] Nothing in this article shall prevent the State from making any provision for the reservation of appointments of posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.
[4-A] Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.
[4-B] Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause [4] or clause [4-A] as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty percent reservation on total number of vacancies of that year.
[5] Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination."
(Emphasis supplied by us).
24. It will also be profitable to refer to the provisions contained in Articles 29, 30 and 340 of the Constitution of India, relied upon by Mr. Qureshi and those are also quoted below:
"29. Protection of interests of minorities.-
(1). Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.
(2). No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.
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 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."
xxx xxx xxx 340. Appointment
of a Commission to investigate the conditions of backward classes:
[1]. The President may by order appoint a Commission consisting of such persons as he thinks fit to investigate the conditions of socially and educationally backward classes within the territory of India and the difficulties under which they labour and to make recommendations as to the steps that should be taken by the Union or any State to remove such difficulties and to improve their condition and as to the grants that should be made for the purpose by the Union or any State and the conditions subject to which such grants should be made, and the order appointing such Commission shall define the procedure to be followed by the Commission.
[2]. A commission so appointed shall investigate the matters referred to them and present to the President a report setting out the facts as found by them and making such recommendations as they think proper.
[3]. The President shall cause a copy of the report so presented together with a memorandum explaining the action taken thereon to be laid before each House of Parliament."
(Emphasis supplied by us).
25. A conjoint reading of the above provision of the Constitution makes it clear that Article 14 speaks of equality before law followed by Article 15 which prohibits discrimination at the instance of the State against any citizen based on religion. Exception to the above provision is made in sub-article 4 of Article 15 by which people belonging to Scheduled Caste and Scheduled Tribe and any socially and educationally backward classes of citizens are given some special privileges.
Article 16 also prohibits public employment based on religion subject to similar exception as provided in various sub-articles of the said Articles. As pointed out by a Constitutional Bench of the Supreme Court in the case of E.V. Chinnaiah v. State of Andhra Pradesh and others reported in (2005) 1 SCC 394, while interpreting Articles 15(4) and 16(4) of the Constitution, a further classification by way of micro-classification is not permissible. In the cases before us, the Central Government wants to make such micro-classification among the weaker sections of citizens and that too, on the basis of religion alone. Article 29 permits protection of minorities having a distinct language, script or culture of its own and at the same time, prohibits denial of admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion. Article 30 gives to all minorities, whether based on religion or language, to have the right to establish and administer educational institutions of their choice but at the same time prohibits the State from granting aid to educational institutions or discriminating against any educational institution on the ground that it is under the management of a minority, whether based on religion or language. Lastly, Article 340 authorizes the President of India to appoint a Commission consisting of such persons as he thinks fit to investigate the conditions of socially and educationally backward classes within the territory of India and the difficulties under which they labour and to make recommendations as to the steps that should be taken by the Union or any State to remove such difficulties and to improve their condition and as to the grants that should be made for the purpose by the Union or any State and the conditions subject to which such grants should be made, but such grant must not violate Article 15 of the Constitution. In other words, such grant cannot be based on religion alone.
26. At this stage, we propose to rely upon the observations of the Constitutional Bench of the Supreme Court in the case of State of Rajasthan (supra) where the Apex Court in clear terms interpreted the provisions contained in Article 15(1) of the Constitution.
26.1 The facts of the said case may be epitomized thus:
26.2 The said appeal raised for consideration the constitutional validity of one paragraph of a notification issued by the State of Rajasthan under Section 15 of the Police Act (Central Act V of 1861) under which "the Harijan"
and "Muslim" inhabitants of the villages, in which an additional police force was stationed, were exempted from the obligation to bear any portion of the cost of that force.
26.3 It was stated that the inhabitants of certain villages in the district of Jhunjhunu in the State of Rajasthan, harboured dacoits and receivers of stolen property, and were besides creating trouble between landlords and tenants, as a result of which, there were serious riots in the locality in the course of which some persons lost their lives. The State Government, therefore, took action under Section 15 of the Police Act. The relevant portion of the said Section is quoted below:
"Quartering of additional police in disturbed or dangerous districts-
(1). It shall be lawful for the State Government, by proclamation to be notified in the official Gazettee, and in such other manner as the State Government shall direct, to declare that any area subject to its authority has been found to be in a disturbed or dangerous state, or that from the conduct of the inhabitants of such area, or of any class or section of them, it is expedient to increase the number of police.
(2). It shall thereupon be lawful for the Inspector-General of Police, or other officer authorised by the State Government in this behalf, with the sanction of the State Government, to employ any police-force in addition to the ordinary fixed complement to be quartered in the areas specified in such proclamation as aforesaid.
(3). Subject to the provisions of subsection (5) of this section, the cost of such additional police force shall be borne by the inhabitants of such area described in the proclamation.
(4). The Magistrate of the district, after such enquiry as he may deem necessary, shall apportion such cost among the inhabitants who are, as aforesaid, liable to bear the same and who shall not have been exempted under the next succeeding sub-section. Such apportionment shall be made according to the Magistrate's judgment of the respective means within such area of such inhabitants.
(5). It shall be lawful for the State Government by order to exempt any persons or class or section of such inhabitants from liability to bear any portion of such cost."
26.4 The notification by which these provisions were invoked and which was impugned in those proceedings was in these terms:-
"Whereas the Rajpramukh is satisfied that the area shown in the schedule annexed hereto has been found to be in a disturbed and dangerous state;
Now, therefore, in the exercise of the authority vested in him under Section 15(1) of the Police Act (V of 1861), the Rajpramukh is pleased to declare that the 24 villages included in the said schedule shall be deemed to be disturbed area for a period of six months from the date of this notification.
Under sub-section (2) of the said section 15 of the Police Act (V of 1861), the Rajpramukh is pleased to authorise the Inspector-General of Police to employ, at the cost of the inhabitants of the said area any Police force in addition to the ordinary fixed complement quartered therein.
Under sub-section (5) of section 15 of the said Act the Rajpramukh is further pleased to exempt the Harijan and Muslim inhabitants of these villages from liability to bear any portion of the cost on account of the posting of the additional Police force."
26.5 Then followed the names of the 24 villages mentioned in the notification.
26.6 The respondent, one Thakur Pratap Singh being an inhabitant of Baragaon, one of these 24 villages, moved the High Court of Rajasthan for the issue of a writ or direction under Article 226 of the Constitution, impugning the validity of Section 15 of the Police Act and in particular, of sub-section (5) thereof, and of the notification and praying for appropriate reliefs.
26.7 The High Court repelled the wider contentions urged regarding the invalidity of Section 15 of the Police Act in general as also of the powers conferred on the State Government to order the exemption of "any person or classes or sections of such inhabitants" from liability to bear the cost of the additional police force. But the learned Judges held that paragraph 4 of the notification, which exempted "Harijan and Muslim inhabitants of the villages" from the levy, was violative of the guarantee in Article 15(1) of the Constitution against discrimination on the ground of caste or religion etc., which reads:
"The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them"
and struck it down as unconstitutional.
26.8 The State of Rajasthan which felt aggrieved by this order applied to the High Court for a certificate under Art. 132(1) to enable it to file an appeal to the Supreme Court and such certificate having been granted, the appeal came up before the Apex Court.
26.9 The learned counsel for the State made a strenuous effort before the Supreme Court to show that the exemption of the Harijan and Muslim inhabitants of the villages, was, in the impugned notification, not based "only" on the ground of 'caste' or 'religion' or the other criteria set out in Article 15(1), but on the ground that persons belonging to these two communities were found by the State not to have been guilty of the conduct which necessitated the stationing of the additional police force. It was the same argument as was addressed to the High Court and was rejected by the learned Judges who observed:
"Now this is a very strange argument that only persons of a certain community or caste were law-abiding citizens, while the members of other communities were not. Disturbing elements may be found among members of any community or religion just as much as there may be saner elements among members of that community or religion."
26.10 In such a case, the Supreme Court while dismissing the appeal made the following observations:
"The view here expressed by the learned Judges is, in our opinion, correct. Even if it be that the bulk of the members of the communities exempted or even all of them were law-abiding, it was not contended on behalf of the State that there were no peaceful and law-abiding persons in these 24 villages belonging to the other communities on whom the punitive levy had been directed to be made. In paragraph 5(f) of the petition filed before the High Court the respondent had averred:
"That the aforesaid Notification is ultra vires of the Constitution of India as it discriminates amongst the Citizens of a village on the basis of religion, race or caste, inasmuch as it makes a distinction between persons professing the Mohammadan religion and others and also between persons who are Muslims and Harijans by caste and the rest. It, therefore, contravenes the provisions of Art. 15 of the Constitution of India". The answer to this by the State was in these terms.
"The Harijan and Muslim inhabitants to these villages have been exempted from liability to bear any portion of the cost of the additional force not because of their religion race or caste but because they were found to be peace-loving and law-abiding citizens, in the 24 villages additional force has been posted."
It would be seen that it is not the case of the State even at the stage of the petition before the High Court that there were no persons belonging to the other communities who were peace-loving and law-abiding, though it might very well be, that according to the State, a great majority of these other communities were inclined the other way. If so, it follows that the notification has discriminated against the law-abiding members of the other communities and in favour of the Muslim and Harijan communities, - (assuming that every one of them was "peace loving and law-abiding") on the basis only of "caste" or "religion".
If there were other grounds they ought to have been stated in the notification. It is plain that the notification is directly contrary to the terms of Article 15(1) and that paragraph 4 of the notification has incurred condemnation as violating a specific constitutional prohibition. In our opinion, the learned Judges of the High Court were clearly right in striking down this paragraph of the notification.
(Emphasis supplied).
27. In the cases before us, according to the Central Government, the Scheme in question "will encourage parents from minority communities to send their school-going-children to school, lighten their financial burden on school education and sustain their efforts to support their children to complete school education. The Scheme will form the foundation for their educational attainment and provide a level playing field in the competitive employment arena.
Empowerment through education, which is one of the objectives of the scheme has potential to lead to upliftment of socio-economic conditions of the minority communities."
28. If we apply the tests laid down by the Supreme Court in the case of State of Rajasthan (supra), to the aforesaid object of introducing the Scheme in question for the purpose of considering the same in the light of Article 15 of the Constitution, we are required to put the following three questions to the Central Government for answer:
Will the Scheme, if made available to all the Children in the country irrespective of their religion, not lighten the financial burden of some similarly or more precariously placed persons belonging to the other communities or of persons having even annual income of less than Rs. 1 lakh on school education of their children and sustain their effort to support their children to complete school education and provide a level playing field in the competitive employment arena?
Will those persons of other communities whose annual income is less than Rs. 1 lakh and whose children are equally or more meritorious, not be deprived of the Government patronage only because they belong to different religions than those five religions?
By the Scheme in question, has the Central Government not exposed its idea that there is no necessity of Socio Economic upliftment of the persons of even the poorer and socially backward citizen by Government sponsorship unless they belong to those five religions?
29. We cannot conceive of the answers to the above questions otherwise than in the affirmative. In our opinion, the answer to the above three questions being in the affirmative, the scheme in question, in the language of the above Constitutional Bench, has incurred condemnation as violating a specific constitutional prohibition.
30. The phrase any person appearing in Article 14 or the expression any citizen appearing in Article 15 having been interpreted by the Constitutional Bench in the case of State of Rajasthan (supra), as even a single person or citizen respectively, any interpretation taking the view that word any means "substantial number of persons or citizens" must be rejected so long as the said decision is not varied or upset by any Larger Bench decision of the Apex Court.
31. It is now a settled law, that a writ-court in exercise of power conferred under Article 226 of the Constitution of India should not issue any writ or pass direction upon the State which violates the Constitutional provision. In our opinion, to pass a direction upon the State to implement the scheme as suggested by Mr. Qureshi will amount to passing direction upon the State Government to violate Article 15(1) of the Constitution. Similarly, a writ-court cannot pass a direction upon the Union of India to implement the scheme to all children as it is within its province to take such a decision. But this much this court can hold that the scheme in question can be upheld only if it is made applicable to all the citizen of this country irrespective of the religion they belong.
32. We now propose to deal with the decisions cited by Mr. Champaneri and Mr. Buch appearing on behalf of the Central Government.
32.1 In the case of Praful Goralia [supra], a two-judge-bench of the Supreme Court was considering a challenge made against the provisions made by the Indian Government regarding grant of subsidy in air-fare to the pilgrims of Haj. The challenge was made on the basis of Articles 14, 15 and 27 of the Constitution of India. In paragraph 12 of the said judgment, it was observed as follows:
"12. In our opinion, we must not be too rigid in these matters, and must give some free play to the joints of the State machinery. A balanced view has to be taken here, and we cannot say that even if one paisa of government money is spent for a particular religion there will be violation of Article 27."
In paragraph 14, it was observed by the said Bench thus:
"14. Hence, in our opinion, there is no violation of Article 27 of the Constitution. There is also no violation of Articles 14 and 15 because facilities are also given, and expenditures incurred, by the Central and State Governments in India for other religions. Thus, there is no discrimination."
32.1.1 After going through the said judgment, it appears that the said two-judge-bench in the case of Praful Goralia [supra] did not take notice of the earlier five-judge-bench of the Supreme Court in the case of State of Rajasthan & Ors.
[supra].
In our opinion, the view taken by the two-judge-bench of the Supreme Court in the case of Praful Goralia [supra] that "a balanced view has to be taken" and that even if a small amount is spent for a community based on religion that would not be violative of Article 14 or 15 of the Constitution of India are in conflict with the one taken in the case of State of Rajasthan [supra] and hence, cannot be said to be a binding precedent. It is now well-settled law that if a Bench consisting of smaller number of Judges, in ignorance of the law laid down by a Bench of higher number of Judges takes a different view, the law laid down by the Bench of lesser quorum cannot be said to be a binding precedent.
32.1.2 In this connection, it will be profitable to refer to the following observations of the Supreme Court in a recent case of Safia Bee vs. Md. Vajahath Hussain reported in AIR 2011 SC 421 where the Supreme Court dealt with the law on the above question in detail by making the following observations:
"The learned Judges were not right in overruling the statement of the law by a Co-ordinate Bench of equal strength. It is an accepted rule or principle that the statement of the law by a Bench is considered binding on a Bench of the same or lesser number of Judges. In case of doubt or disagreement about the decision of the earlier Bench, the well accepted and desirable practice is that the later Bench would refer the case to a larger Bench.
17. In Union of India and Anr. v. Raghubir Singh (Dead) by LRs. Etc. [(1989) 2 SCC 754] : (AIR 1989 SC 1933), (paras 27 and 28), a Constitution Bench of this Court held :
"27. What then should be the position in regard to the effect of the law pronounced by a Division Bench in relation to a case realising the same point subsequently before a Division Bench of a smaller number of Judges? There is no constitutional or statutory prescription in the matter, and the point is governed entirely by the practice in India of the courts sanctified by repeated affirmation over a century of time. It cannot be doubted that in order to promote consistency and certainty in the law laid down by a superior Court, the ideal condition would be that the entire Court should sit in all cases to decide questions of law, and for that reason the Supreme Court of the United States does so. But having regard to the volume of work demanding the attention of the Court, it has been found necessary in India as a general rule of practice and convenience that the Court should sit in Divisions, each Division being constituted of Judges whose number may be determined by the exigencies of judicial need, by the nature of the case including any statutory mandate relative thereto, and by such other considerations which the Chief Justice, in whom such authority devolves by convention, may find most appropriate. It is in order to guard against the possibility of inconsistent decisions on points of law by different Division Benches that the rule has been evolved, in order to promote consistency and certainty in the development of the law and its contemporary status, that the statement of the law by a Division Bench is considered binding on a Division Bench of the same or lesser number of Judges. This principle has been followed in India by several generations of Judges. We may refer to a few of the recent cases on the point. In John Martin v. State of West Bengal, (1975) 3 SCC 836 : (AIR 1975 SC 775), a Division Bench of three Judges found it right to follow the law declared in Haradhan Saha v.
State of West Bengal, (1975) 3 SCC 198, decided by a Division Bench of five Judges, in preference to Bhut Nath Mate v. State of West Bengal, (1974) 1 SCC 645 : (AIR 1974 SC 886) decided by a Division Bench of two Judges. Again in Indira Nehru Gandhi v. Raj Narain, 1975 Supp. SCC 1, Beg J. held that the Constitution Bench of five Judges was bound by the Constitution Bench of thirteen Judges in Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 : (AIR 1973 SC 1461). In Ganapati Sitaram Balvalkar v. Waman Shripad Mage, (1981) 4 SCC 143 :
(AIR 1981 SC 1956), this Court expressly stated that the view taken on a point of law by a Division Bench of four Judges of this Court was binding on a Division Bench of three Judges of the Court. And in Mattulal v. Radhe Lal, (1974) 2 SCC 365: (AIR 1974 SC 1596), this Court specifically observed that where the view expressed by two different Division Benches of this Court could not be reconciled, the pronouncement of a Division Bench of a larger number of Judges had to be preferred over the decision of a Division Bench of a smaller number of Judges.
This Court also laid down in Acharya Maharajshri Narandraprasadji Anandprasadji Maharaj v. State of Gujarat, (1975) 1 SCC 11 : (AIR 1974 SC 2098) that even where the strength of two differing Division Benches consisted of the same number of Judges, it was not open to one Division Bench to decide the correctness or otherwise of the views of the other The principle was reaffirmed in Union of India v. Godfrey Philips India Ltd., (1985) 4 SCC 369 : (AIR 1986 SC 806) which noted that a Division Bench of two Judges of this Court in Jit Ram Shiv Kumar v. State of Haryana, (1981) 1 SCC 11 :
(AIR 1980 SC 1285) had differed from the view taken by an earlier Division Bench of two Judges in Motilal Padampat Sugar Mills v. State of U.P., (1979) 2 SCC 409 : (AIR 1979 SC 621) on the point whether the doctrine of promissory estoppel could be defeated by invoking the defence of executive necessity, and holding that to do so was wholly unacceptable reference was made to the well accepted and desirable practice of the later bench referring the case to a larger Bench when the learned Judges found that the situation called for such reference.
28. We are of opinion that a pronouncement of law by a Division Bench of this Court is binding on a Division Bench of the same or a smaller number of Judges, and in order that such decision be binding, it is not necessary that it should be a decision rendered by the Full Court or a Constitution Bench of the Court......"
In Central Board of Dawoodi Bohra Community and Anr. v. State of Maharashtra and Anr. [(2005) 2 SCC 673] (para 12) : (AIR 2005 SC 752), a Constitution Bench of this Court summed up the legal position in the following terms :
"(1). The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-equal strength.
(2). A Bench of lesser quorum cannot disagree or dissent from the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of co-equal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of co-equal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted.
(3). The above rules are subject to two exceptions :
(i). The abovesaid rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and
(ii). In spite of the rules laid down hereinabove, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons given by it, it may proceed to hear the case and examine the correctness of the previous decision in question dispensing with the need of a specific reference or the order of Chief Justice constituting the Bench and such listing."
The above principles and norms stated with reference to the Supreme Court are equally relevant and applicable to the High Court also."
32.1.3 As pointed out earlier, in the case of State of Rajasthan & Ors.
[supra], a Constitutional Bench interpreted Article 15(1) of the Constitution by holding that the phrase "any citizen" means even "a single citizen" and thus, the question of 'balanced view' enunciated by the two-judge-bench in the case of Praful Goralia [supra] is not in conformity with the earlier view of the five-judge-bench. Similarly, it is settled law that the fact that the State also has violated in favour of another religion is no ground for upholding a view that it can also discriminate in favour of a particular different religion when Article 15 is a clear bar to discriminate against any person.
32.1.4 In this connection, we may appropriately, refer to the following observations of the Supreme Court in case of Union of India vs. International Trading Company reported in AIR 2003 SC 3983 where the Apex Court made the following observations:
"14.
What remains now to be considered, is the effect of permission granted to the 32 vessels. As highlighted by learned counsel for the appellants, even if it is accepted that there was any improper permission, that may render such permissions vulnerable so far as 32 vessels are concerned. But it cannot come to the aid of respondents.
It is not necessary to deal with that aspect because two wrongs do not make one right. A party cannot claim that since something wrong has been done in another case; direction should be given for doing another wrong. It would not be setting a wrong right, but would be perpetuating another wrong. In such matters there is no discrimination involved. The concept of equal treatment on the logic of Art. 14 of the Constitution of India, 1950 (in short 'the Constitution') cannot be presented into service in such cases. What the concept of equal treatment presupposes is existence of similar legal foothold. It does not countenance repetition of a wrong action to bring both wrongs on par. Even if hypothetically it is accepted that wrong has been committed on some other cases by introducing a concept of negative equality respondents cannot strengthen their case. They have to establish strength of their case on some other basis and not by claiming negative equality."
(Emphasis supplied by us).
32.1.5 We are, therefore, unable to accept the decision of the Supreme Court in the case of Praful Goralia [supra] as a binding precedent on the question of interpretation of Article 15 of the Constitution of India and we propose to follow the earlier decision of the Constitutional Bench decision in the case of State of Rajasthan & Ors.
[supra].
32.2 By referring to the decision of the Supreme Court in the case of Krishnakiumar vs. Union of India reported in (1990)4 SCC 207 at paragraph 33, Mr. Buch tried to impress upon us that the object of precedent is not to unsettle things which are settled and that is the principle underlying in Article 141 of the Constitution of India. We fully agree with the said view, and in our opinion, in the case of Praful Goralia [supra], the two-judge-bench of the Supreme Court, by ignoring the earlier decision of the constitution bench and the above decision of a co-ordinate bench, had unsettled the earlier settled principle. We, thus, find that the reliance on the case of Krishnakiumar vs. Union of India [supra] is not of any avail to the Central Government and the same rather goes against the Central Government.
32.3 In the case of Smt. Anjali Roy v. State of West Bengal & Ors., reported in AIR 1952 CAL 825, the appellant was a girl-student who applied to the Hooghly Mohsin College for admission in the 3rd year class with Honours in Economics and her application was finally refused. She moved the High Court at Calcutta for issue of certain writs for the enforcement of what she claimed to be her fundamental right of being considered for admission to the College. According to her, the refusal of her application based solely on the ground of her sex was a contravention of Article 15(1) of the Constitution. The Education Department dealt with her grievance by holding that she, like other eligible girl students, had been offered facilities for attending the Honours classes in that Institution provided she got herself admitted in the Women's College which was recently established in that locality and which, at that time, gave instructions only in the Pass course. A learned Single Judge who heard the appellant's application held that the alternative arrangements made at Hooghly for the collegiate education of women students constituted a special provision for the benefit of women within the meaning of Article 15(1) of the Constitution and since such provision made substantially equal, though not wholly identical, facilities available to women students, Article 15(1) had not been violated. While dealing with the appeal preferred by the writ-petitioner, a Division Bench of the Calcutta High Court held that Article 15(3) of the Constitution really contemplated provision in favour of women, although grammatically and etymologically 'for' may mean 'concerning' and although theoretically, it is possible to think of reasonable discrimination against women and children, such as, that they should not be admitted to certain sections of a public museum or an art gallery where exhibits of a certain kind are to be seen but the ordinary meaning of 'provision for' is certainly 'provision in favour of''. According to the said Division Bench, clause (3) is obviously an exception to clauses (1) and (2) of Article 15 of the Constitution and since its effect is to authorise what the Article otherwise forbids, its meaning seems to be that notwithstanding that clauses (1) and (2) forbid discrimination against any citizen on the ground of sex, the State may discriminate against males by making a special provision in favour of females.
32.3.1 In the case before us, if the Government made a provision for all the females or children of the country, it would have been saved by Article 15 (3), but having given the benefit only to the students of five specific religious communities excluding the others, Article 15(1) has been clearly violated. We, thus, find that the said decision of the Division Bench of Calcutta High Court rather supports the contention of Mr. Mehta appearing for the writ-petitioners in Writ Petition [WP] No. 191 of 2012.
32.4 In the case of M. Thomas reported in AIR 1953 MADRAS 21, a Division bench of Madras High Court was considering the case of a petitioner, an Indian Christian, who claimed to be a Harijan, and was studying in Form I of a school aided by the State. His father applied on his behalf to the Manager of the School for a full school-fee concession but his request was not complied with and the manger of the school drew the attention of the petitioner's father to a note under appendix 17(A) of rule 92 of the Madras Educational Rules. The effect of the note can be understood only by a reference to the substantive provision in the Madras Educational Rules, in particular Rule 73 and Rule 92. Under Rule 73 of these Rules, it was inter alia provided that the boys belonging to the classes and castes specified in Appendix 17(A) might be admitted without the payment of fees. Rule 92 also made a similar provision. Appendix 17 gave a list of backward classes under two categories, (1). Harijans, and, (2). Castes, other than Harijans.
Note (1) to the appendix provided that:-
"converts to Christianity or to any other religion from the castes included in Group I above shall be eligible for all fee concessions including fee concessions in colleges, for which the scheduled castes are eligible under the Madras Educational Rules provided however, that the conversion was of either the pupil or the student or of his parent or guardian."
32.4.1 In that case, the petitioner was not falling under this Rule because it was his grandfather who had converted to Christianity.
32.4.2 The ground on which interference of the Madras High Court was sought under Article 226 of the Constitution was that the above said note was repugnant to Articles 14, 15(1), 16 and 46 of the Constitution because it made discrimination between persons on the ground of their religion.
32.4.3 In deciding such a case, the Division Bench held that in making the exception, the State was certainly entitled to fix limits to its operation. According to the said Division Bench, after all, the State was granting an indulgence and it was for the State entirely to decide how far the indulgence would go. The Division Bench further held that policy of the State evidently was to allow the concession to pupils or students who themselves had been converted or whose parent or guardian had been converted and the State apparently was not willing to extend the concession where the conversion was more than one generation old. According to the Division Bench, there was no discrimination in making the provision.
32.4.4 In our opinion, the Division Bench really pointed out that it was not the petitioner's religion that was the reason for not coming within the scope of the note. But for the note, the petitioner would not have had any right at all and would not have any reason to complain and thus, the case deserved no interference. We fail to appreciate how the principle laid down in that decision can have any application to the present case where simply on the ground of religion, a monetary grant has been given in favour of a section of the students depriving others who may be more meritorious or even poorer simply because they do not belong to those five specified religions. We, thus, find that the said decision is of no avail to the Union of India.
32.5 In the case of Dattatraya Motiram More v. State of Bombay reported in AIR 1953 BOM 311, the writ-petitioner was a tax-payer of Jalgaon Municipality and a voter in one of the wards and he challenged certain provisions of the Bombay Municipal Boroughs Act, 1925, which reserved seats for women in the election to the Jalgaon Municipality. The relevant provision of the Act was Section 10(1)
(c) which provided that the State Government should, from time to time, generally or specially for each Municipality, make rules consistent with the said Act prescribing the number and extent of the wards to be constituted in each municipal borough, the number of councillors to be elected by each ward and the number of seats, if any, to be reserved for the representation of women. While dealing with such a case, the Division Bench of the Bombay High Court held that the discrimination which was not permissible under Article 15(1) was a discrimination which was only on one of the grounds mentioned in Article 15(1). If there was a discrimination in favour of a particular sex, according to the said decision, that discrimination would not be permissible provided it was only on the ground of sex, or in other words, the classification on the ground of sex was permissible provided that classification was the result of other considerations besides the fact that the persons belonging to that class were of a particular sex. The Division Bench further held that Article 15(3) is obviously a proviso to Article 15(1) of the Constitution and proper effect must be given to the proviso. According to the Division Bench, the proper way to construe Article 15(3) was that whereas under
Article 15(1), discrimination in favour of men only on the ground of sex was not permissible, by reason of Article 15(3), discrimination in favour of women was permissible, and when the State did not discriminate in favour of women, it did not offend against Article 15(1). Therefore, according to the said Division Bench, as a result of the joint operation of Article 15(1) and Article 15(3), the State might discriminate in favour of women against men, but it might not discriminate in favour of men against women.
32.5.1 We have already pointed out that if the Central Government floated a scheme in favour of the students irrespective of religion, the same could be saved but having restricted its benefit only in favour of students of five specific religions, it cannot escape the rigour of Article 15(1) of the Constitution. In these cases, those poorer and meritorious students of a religion not belonging to those five religions, who are now deprived of the benefit, would be entitled such benefit only if they would have belonged to those five religions. Thus, religion is the only reason for which those students are deprived and deprivation of even only one citizen is sufficient to brand the scheme as ultra vires the Constitution. We, thus, find that the above decision of the Bombay High Court rather is against the contention of the Central Government.
32.6 In the case of St. Stephen's College v. University of Delhi [supra], the Supreme Court was considering the effect of Article 30(1) which gives right to the minorities to administer educational institutions.
In the said decision, in the light of Article 30 of the Constitution, the Constitutional Bench held that minority aided educational institutions are entitled to prefer their community candidates to maintain the minority character of the institutes subject of course to conformity with the University standard. The State may, the Supreme Court continued, regulate the intake in this category with due regard to the need of the community in the area which the institution is intended to serve, but in no case such intake shall exceed 50 per cent of the annual admission. According to the Supreme Court, the minority institutions shall make available at least 50 per cent of the annual admission to members of the communities other than the minority community and the admission to other community candidates shall be done purely on the basis of merit.
32.6.1 We fail to appreciate how the principles of Article 30 could be applicable to a question where the State intends to deprive monetary benefit to some students who are otherwise eligible, simply on the ground of the religion. It appears, in the Constitution of India, even after incorporating Article 15 prohibiting State from discriminating against ' any' person on the ground of religion etc, itself has recognized protection of minorities under Article 29, but that is for those minorities having distinct language, script or culture of its own and protection has been given to right to conserve the same. Similarly, in Article 30, all minorities, whether based on religion or language, have been given right to establish and administer educational institutions of their choice but those Articles do not confer power upon the State to give financial grant to some of the citizens based on religion. As it appears from Article 30 (2) of the Constitution of India, 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. Similarly, under Article 340 of the Constitution, upon which Mr. Qureshi strongly relied upon, the President of India has been given power to appoint a Commission consisting of such persons as he thinks fit to investigate the conditions of "socially and educationally backward class"
within the territory of India and the difficulties under which they labour and to make recommendations as to the steps that should be taken by the Union or State to remove such difficulties and to improve their condition as to the grants that should be made for the purpose by the Union or State and the conditions subject to which such grants should be made but the said provision does not authorize the President to issue grant only on the ground of "religion" or to deprive an otherwise qualified person to such grant simply because he does not belong to a particular "religion" or "religions".
Therefore, by taking aid of Article 340 of the Constitution, the Union of India cannot support a scheme based on religion.
32.7 In Special Civil Application No. 2245 of 2008 ( Vijay Harishchandra Patel vs. the Union of India), the legality of this very scheme was the subject-matter of challenge before a Division Bench presided over by the then Chief Justice of this Court, and by order dated 20th March 2009, the said Division Bench held that the funds used to minimize inequalities among minority communities by adopting various social and welfare activities like public safety, health, slum development, improving the deficiencies in civic amenities, economic opportunities, improving standard of education, skill and entrepreneurship development, employment opportunities, eradication of poverty etc., would in no way violate the constitutional principles of equality or affect any of the fundamental rights guaranteed to the members of the other communities.
32.7.1 By relying upon the said decision, Mr. Buch and Mr. Champaneri tried to convince us that the question involved in this matter is no longer in dispute so far this court is concerned and we should follow the decision as a binding precedent. Our attention has also been drawn to the fact that the decision of the Supreme Court in the case of State of Rajasthan [supra] was very much placed before the said Division Bench but in spite of that, the said Division Bench took the above view.
32.7.2 After going through the entire judgment, we find that although at page 12 of the judgment the Division referred to various decisions cited by the learned counsel for the petitioner in support of his contention including the case of State of Rajasthan [supra], in the reasoning portion of the entire judgment, there is no discussion or even a reference to the said judgment of the Supreme Court. We have already pointed out that in the case of State of Rajasthan [supra], the Supreme Court, in clear language has said that there cannot be discrimination based on religion against a single individual. Thus, the ultimate conclusion arrived at by the said Division Bench, in our opinion, is in conflict with the decision of the Supreme Court in the case of State of Rajasthan [supra].
It appears that their lordships relied upon the observations of the Committee headed by Justice Rajinder Sachar which dealt with economic and social status of only Muslim community but not the other four communities to whom the benefit has also been given. Moreover, in our opinion, even if a Committee constituted by Central Government finds that the socio-economic condition of a particular religious community is not at par with the others, there is no scope of conferring monetary benefits based on religion only to that community as prohibited in Article 15 of the Constitution as it is never the contention of the Central Government or claim in the report that there is not a single citizen belonging to other communities who are not poorer or more backward than the people of the Muslim community.
32.7.3 Thus, with great respect to the said Division Bench, we are unable to concur with the stance adopted by the said Division Bench in view of the specific observations of the Supreme Court on the point as indicated above.
32.8 Similarly, in the case of Sanjiv Gajanan Punalekar v. Union of India [Writ Petition No. 84 of 2008] decided by a Division Bench of the Bombay High Court on 6th June 2011, the Bombay High Court also relied upon the report of Committee headed by Justice Rajinder Sachar and on that basis, came to the conclusion that the scheme in question does not violate the Constitution of India. It appears that the Division Bench referred to reservation of scheduled castes and schedules tribes and other backward communities and decided to apply such principles also to the citizens based on religion. It appears that the said Division Bench of Bombay High Court relied upon the decision of the Supreme Court in the case of Praful Goralia [supra] which we have already mentioned hereinabove. Thus, with great respect to the said Division Bench, we are unable to concur with the ultimate view taken by the Division Bench of the Bombay High Court. In the said judgment, as their Lordships ultimately found that the scheme in question merely provided for incentive under Article 15(1) of the Constitution to meritorious poor students of community specified as minority under the National Commission for Minorities Act 1992, no further discussion was necessary. We are of the view that by taking assistance from National Commission of Minorities Act, 1992, one cannot overcome the hurdle of Article 15(1) of the Constitution of India as all laws enacted by the Legislatures must yield to the Constitution of India and the executive decision cannot claim any overriding effect over the Constitutional provisions.
33. We now propose to deal with the decisions cited by Mr. Qureshi.
33.1 Mr. Qureshi relied upon the observations of the Supreme Court in the case of Union of India vs. Rafique Shaikh Bhikan reported in (2012) 6 SCC 265 at paragraph 41 wherein the Supreme Court directed the Central Government to progressively reduce the amount of subsidy to Haj Pilgrimages so as to completely eliminate the same within a period of 10 years from that date with a further direction that the subsidy money might be more profitably used for upliftment of the community in education and other indices of social development. It appears that that was a decision of a two-judge-bench where a special leave petition was filed by the Union of India against the order passed by the Bombay High Court in a batch of writ-petitions challenging the Government of India Haj Policy that required a private operator/travel agent to have minimum office area of 250 sq. feet as one of the eligibility conditions for registration for ferrying pilgrims of Haj. The High court rejected the challenge but gave direction to the Government of India to allocate certain seats to some of the writ-petitioners from eight hundred seats from the Central Government quota that had not been allocated to anyone till the time of passing of the order by the court.
33.1.2 It appears that in the said judgment also, the Supreme Court's decision in the case of State of Rajasthan [supra] was not considered. We are quite alive that the Parliament is vested with the authority to enact law relating to pilgrimage outside India as provided in List I of the seventh Schedule of the Constitution but that does not mean that in exercise of such power to enact law it can violate Article 15 of the Constitution. If there is prohibition of grant of monitory benefit to one community simply based on religion, law does not permit continuance of the said provision even for a day and similarly, such amount of subsidy based on religion cannot be diverted for other cause also based solely on religion. We are, therefore, unable to rely upon the principles laid down in the said decision as a binding precedent in the facts of the present case when the Supreme Court did not take into consideration the earlier decision of the Constitutional Bench in the case of State of Rajasthan (supra).
33.2 In the case of Ms. Aruna Roy & Ors. v. Union of India reported in AIR 2002 SC 3176, the majority of the judges were of the view that the National Curriculum Frame Work for school education pertaining to education for value development is neither violative of Article 28 of the Constitution of India nor it brings secularism to peril. According to majority decision, the entire emphasis of Article 28 is against imparting religious instructions or of performing religious worship and there is no prohibition for having study of religious philosophy and culture, particularly for having value based social life in a society which is degenerating for power, post or property.
33.2.1 After going through the said decision, we find that at no place of the said decision there is any discussion on the question of deprivation of any citizen on the ground of religion and thus, the said decision cannot have any application to the facts of the present case.
33.3 In the case of Nand Kishore Gupta and Ors. vs. State of U.P. and others reported in AIR 2010 SC 3654, the Supreme Court was dealing with an appeal preferred against the judgment of Allahabad High Court by which a writ-petition challenging the notification under sections 4 and 6 of the Land Acquisition Act regarding Yamuna Expressway Project was dismissed by the High Court. Mr. Qureshi relied upon paragraph 28 of the judgment simply for the purpose of impressing upon us that the Supreme Court in that decision relied upon the facts found by a Commission of Enquiry under the Chairmanship of Mr. Justice Sidheshwar Narain and submitted that in the instant case, the observations of the Committee headed by Justice Rajinder Sachar should not be ignored and we should uphold the scheme based on such report. We are afraid, we are not impressed by such submissions. A report submitted by a committee constituted under the Commission of Enquiries Act is merely a recommendation to the Government which the Government may or may not approve but the findings of such committee cannot be a basis for ignoring the mandatory provisions of Article 15 of the Constitution of India when even the Parliament is not authorized to ignore the mandate of the Constitution. We, thus, find that the said decision does not help Mr. Qureshi in any away.
33.4 In the case of the Kerala Education Bill, 1957 reported in AIR 1958 SC 956, the Supreme Court was considering a Presidential Reference by which the President of India referred to the Supreme Court for consideration and report the following questions:
(1). Does sub-cl. (5) of cl.
3 of the Kerala Education Bill, read with cl. 36 thereof or any of the provisions of the said sub-clause, offend Art. 14 of the Constitution in any particulars or to any extent?
(2). Do sub-cl. (5) of cl.
3, sub-cl. 3 of cl. 8 and cls. 9 to 13 of the Kerala Education Bill, or any provisions thereof, offend cl.(1) of Art. 30 of the Constitution in any particulars or to any extent?.
(3). Does cl.15 of the Kerala Education Bill, or any provisions thereof, offend Art. 14 of the Constitution in any particular or to any extent?
(4). Does cl. 33 of the Kerala Education Bill, or any provisions thereof, offend Art. 226 of the Constitution in any particular or to any extent?
33.5 The Supreme Court answered in the following way:
Question 1: Clause 3(5) read with cl. 36 does not offend Art. 14 of the Constitution in any particulars or to any extent.
Question 2: Cl. 3(5), cl.
8(3) and cls. 9 to 13 offend Art. 30(1) of the Constitution, so far as Anglo Indian educational institutions entitled to grant under Art. 337 are concerned. As regards other minorities not entitled to grant as of right under any express provision of the Constitution but are in receipt of aid or desire such aid and also as regards Anglo Indian educational institutions in so far as they are receiving aid in excess of what are due to them under Art. 337, cls. 8(3) and 9 to 13 do not offend Art. 30(1) but cl. 3(5) in so far as it makes such educational institutions subject to cls. 14 and 15 do offend Art.
30(1), (iii) clause 7 (except sub-cls.(1) and (3) which apply only to aided schools) and cl. 10 in so far as they apply to recognized schools to be established after the said Bill comes into force do not offend Art. 30(1) but cl. 3(5) in so far as it makes the new schools established after the commencement of the Bill subject to cl. 20 does offend Art. 30(1).
Question 3: Cl. 15 does not offend Art. 14 of the Constitution.
Question 4: Clause 33 does not offend Art. 226 of the Constitution. Cl. 33 is subject to Art. 226 of the Constitution.
33.5.1 Mr. Qureshi particularly relied upon paragraphs 21 and 34 of the said judgment. In paragraph 21 of the said judgment, the Supreme Court dealt with the question as to what is a minority within the meaning of Article 31 of the Constitution in the State of Kerala. The Supreme Court, after taking into consideration various provisions of the Constitution came to the conclusion that Christians, Muslims and Anglo-Indians would certainly be minorities in the State of Kerala as out of the total population of 1,42,00,000 there were only 34,00,000 Christians and 25,00,000 Muslims and the Anglo-Indians in the State of Travancore-Cochin before the re-organization of the States numbered only 11,990 according to the 1951 census. In paragraph 34, the Supreme Court held that there can be no manner of doubt that our Constitution has guaranteed certain cherished rights of the minorities concerning their language, culture and religion. These concessions must have been made to them for good and valid reasons. By referring to Article 45, the Supreme Court pointed out that the said Article requires the State to provide for free and compulsory education for all children, but there is nothing to prevent the State from discharging that solemn obligation through Government and aided schools and Article 45 does not require that obligation to be discharged at the expense of the minority communities. So long as the Constitution stands as it is and is not altered, it is, according to the Supreme Court, the duty of the Supreme Court to uphold the fundamental rights and thereby honour our sacred obligation to the minority communities who are of our own. The Supreme Court pointed out that throughout the ages, endless inundation's of men of diverse creeds, cultures and races - Aryans and Non-Aryans, Dravidians and Chinese, Scythians, Huns, Pathans and Mughals, have come to this ancient land from distant regions and climes and India has welcomed them all. According to the Supreme Court, looking at the rights guaranteed to the minorities by our Constitution from the angle of vision indicated above, cl. 7 (except sub-cls. 1 and 3 which apply only to aided schools) and cl. 10 may well be regarded as permissible regulation which the State is entitled to impose as a condition for according its recognition to any educational institution but that cl. 20 which has been extended by cl. 3(5) to newly established recognised schools, in so far as it affects educational institutions, established and administered by minority communities is violative of Art. 30(1).
33.5.2 After going through the said decision, we do not find any observation or any law laid down by the Supreme Court permitting the State to violate against any citizen on the ground of religion. The right of minorities, as pointed out therein, is restricted to the specific provisions of the Constitution as indicated earlier, viz. Articles 29, 30 and 340 of the Constitution and those are restricted to the fields mentioned therein, but by taking aid of these Articles, it cannot be extended for granting benefit of monetary scheme to the members of minority community excluding others based only on the ground of religion.
33.6 In the case of M.R. Balaji & others v. The State of Mysore and others reported in AIR 1963 SC 649, in paragraphs 22 and 23, upon which strong reliance was placed by Mr. Qureshi, the Supreme Court dealt with the question as to whether any class of citizens is socially backward or not, it may not be irrelevant to consider the caste of the said group of citizens. The Supreme Court further pointed out that it should be borne in mind that the special provision is contemplated for class of citizens and not for individual citizens as such, and so, though the caste of the group of citizens may be relevant, its importance should not be exaggerated. According to the Supreme Court, if the classification of backward classes of citizens was based solely on the caste of the citizen, it may not always be logical and may perhaps contain the vice of perpetuating the castes themselves. Accordingly, the Supreme Court was of the view that though castes in relation to Hindu may be relevant factor to consider in determining the social backwardness of groups or classes of citizens, it cannot be made the sole or the dominant test in that behalf. Social backwardness is on the ultimate analysis the result of poverty to a very large extent. The classes of citizens who are deplorably poor automatically become socially backward. The Supreme Court further held that occupations of citizens may also contribute to make classes of citizens socially backward and there are some occupations which are treated as inferior according to conventional beliefs and classes of citizens who follow these occupations are apt to become socially backward. The Supreme Court further pointed out that the place of habitation also plays not a minor part in determining the backwardness of a community of persons.
33.6.1 We have already pointed out that in the case before us, the question is whether special benefits could be given to a group of citizens only on the basis of their religion. In the aforesaid decision, the Supreme Court has not dealt with such question but the principles laid down therein support the contention that the special benefit cannot be denied solely on the ground of religion. We have already pointed out that answer to the said question has been specifically given by the Constitutional Bench in the case of State of Rajasthan [supra] where it has been pointed out that not a single citizen can be discriminated only on the ground of religion. We have already indicated that in the instant case, even poorer persons which necessarily means backward class as held in the case of M.R. Balaji [supra] has been deprived of the benefit simply on the ground of religion though persons coming from richer families have been conferred with the benefit simply because they belong to five specified religions pointed out therein. We, thus, find that the above decision does not help Mr. Qureshi in any way.
33.7 In the case of the Ahmedabad St. Xavier's College Society v. State of Gujarat reported in (1974) 1 SCC 717, the Supreme Court was considering the scope of Article 30 of the Constitution and the question was whether it extended to establishing educational institutions only for serving their language, script or culture and whether Article 30(1) has to be read subject to Article 29(2) of the Constitution. The Supreme Court, by majority, held that sections 33A, 40, 41, 51A(1)(b), 51A(2)(b) and 52A of the Gujarat University Act, 1949 as amended do not apply to institutions established and administered by linguistic and religious minorities.
33.7.1 Mr. Qureshi particularly relied upon paragraphs 131, 132 and 133 of the said judgment, which are quoted below:
"131. It is necessary in the interest of clarity of thought to begin with an understanding of the real reason for protection of minorities in a democratic polity.
"Protection of minorities is the protection of non-dominant groups, which, while wishing in general for equality of treatment with the majority, wish for a measure of differential treatment in order to preserve basic characteristics which they possess and which distinguish them from the majority of the population. The protection applies equally to individuals belonging to such groups and wishing the same protection. It follows that differential treatment of such groups or of individuals belonging to such groups is justified when it is exercised in the interest of their contentment and the welfare of the community as a whole".
132. The problem of the minorities if, not really a problem of the establishment of equality because if taken literally, such equality would mean absolute identical treatment of both the minorities and the majorities. This would result only in equality in law but inequality in fact. The distinction need not be elaborated for it is obvious that "equality in law precludes discrimination of any kind; whereas equality in fact may, involve the necessity of differential treatment in order to attain a result which establishes an equilibrium between different situations.
133. It may sound paradoxical but it is nevertheless true that minorities can be protected not only if they have equality but also, in certain circumstances, differential treatment."
33.7.2 In our opinion, the aforesaid observations made by the Supreme Court in the light of Article 30 of the Constitution of India cannot be taken to be an authority for the proposition that notwithstanding the provisions contained in Article 15(1) of the Constitution, the said provisions can be overcome by discrimination in favour of a citizen of minority community based on religion alone. We, therefore, find that the decision in the case of Ahmedabad St. Xavier's College Society v. State of Gujarat [supra] is of no avail to Mr. Qureshi's client.
33.8 In the case of State of Uttar Pradesh & Others v. Pradip Tandon reported in 1975 (1) SCC 267, the State Government of U.P., made reservation of seats in medical colleges in favour of rural areas, hill areas and Uttrakhand, on the basis of that reservations were made for socially and educationally backward classes. The appellants were candidates who secured more marks than those who obtained admission on reserved seats but failed to secure admission. The reservations were upheld by the Allahabad High Court in one case but struck down in a later decision without reference to the earlier decision. In such a situation, the Supreme Court upheld the reservation for the hill areas and Uttrakhand but the reservation for rural area were held to be unconstitutional. Mr. Qureshi laid emphasis on paragraphs 13 to 15 of the said judgment, which are quoted below:
"13. Article 15 (4) was added by the Constitution First Amendment Act, 1951. The object of the amendment was to bring Articles 15 and 29 in line with Article 16 (4). Article 16 (4) states that nothing in that Article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State. In the State of Madras v. Smt. Champakam Dorairajan, (1951) SCR 525 = (AIR 1951 SC 226) the reservation for seats for non-Brahmins, backward Hindus, Brahmins, Harijans, Anglo Indians and Indian Christians and Muslims was held to offend Articles 15 (1) and 29 (2). This Court pointed out that the omission of a clause like Article 16 (4) from Article 29 indicated the intention of the Constitution-makers not to introduce communal consideration in matters of admission to educational institutions.
14. Article 15 (4) speaks of socially and educationally backward classes of citizens. The State described the rural, hill and Uttrakhand areas as socially and educationally backward-areas. The Constitution does not enable the State to bring socially and educationally backward areas within the protection of Article 15 (4). The Attorney General however, submitted that the affidavit evidence established the rural, hill and Uttrakhand areas to have socially and educationally backward classes of citizens. The backwardness contemplated under Article 15 (4) is both social and educational. Article 15 (4) speaks of backwardness of classes of citizens. The accent is on classes of citizens. Article 15 (4) also speaks of Scheduled Castes and Scheduled Tribes. Therefore, socially and educationally backward classes of citizens in Article 15 (4) could not be equated with castes. In M. R. Balaji v. State of Mysore (l963) Supp 1 SCR 439 = (AIR 1963 SC 649) and State of Andhra Pradesh v. P. Sagar, (1968) 3 SCR 595 = (AIR l968 SC 1379) this Court held that classification of backwardness on the basis of castes would violate both Articles 15 (1) and 15 (4).
15. Broadly stated, neither caste nor race nor religion can be made the basis of classification for the purposes of determining social and educational backwardness within the meaning of Article 15 (4). When Article 15 (1) forbids discrimination on grounds only of religion, race, caste, caste cannot be made one of the criteria for determining social and educational backwardness. If caste or religion is recognised as a criterion of social and educational backwardness Article 15 (4) will stultify Article 15 (1). It is true that Article 15 (1) forbids discrimination only on the ground of religion, race, caste, but when a classification takes recourse to caste as one of the criteria in determining socially and educationally backward classes the expression "classes" in that case violates the rule of expressio unius est exclusio alterius. The socially and educationally backward classes of citizens are groups other than groups based on caste."
33.8.1 The Supreme Court has made a clear statement of law that Article 15(1) forbids discrimination on the grounds only of religion, race and caste, and caste cannot be made one of the criteria for determining social and educational backwardness. According to the Supreme Court, if caste or religion is recognized as a criterion of social and educational backwardness, Article 15(4) will stultify Article 15(1) of the Constitution. The Supreme Court further pointed out that Article 15(1) forbids discrimination only on the ground of religion, race, caste but when a classification takes recourse to caste as one of the criteria in determining socially and educationally backward classes the expression "classes" in that case violates the rule of expressio unius est exclusio alterius.
According to the Supreme Court, the socially and educationally backward classes of citizens are groups other than groups based on caste.
33.8.2 In view of the clear statement made by the Supreme Court in paragraph 15 mentioned above that Article 15(1) forbids discrimination only on the ground of religion, and in the instant case the benefit is sought to be deprived solely on the basis of religion and when socially and educationally backward citizens of this country having been deprived of the benefit of the scholarship only on the ground that they do not belong to five specified religions, the case clearly comes within the purview of Article 15(1). We, therefore, find that the said decision cannot be of any help to Mr. Qureshi's client in any way.
33.9 In the case of Indra Swahney v. Union of India reported in AIR 1993 SC 477, the Supreme Court was dealing with the scope of Articles 14 to 18 and in particular the scheme for scheduled Castes and Scheduled Tribe in Public Employment. Mr. Qureshi in particular relied upon paragraphs 80(c) of the judgment, which is quoted below:
"(c) It is significant to notice that throughout his speech in the Constituent Assembly, Dr. Ambedkar was using the word "communities" (and not 'castes') which expression includes not only the castes among the Hindus but several other groups. For example, Muslims as a whole were treated as a backward community in the princely State of Travancore besides several sections/ denominations among the Christians. The word "community" is clearly wider than "caste"
and "backward communities" meant not only the castes- wherever they, may be found - but also other groups, classes and sections among the populace."
33.9.1 Mr. Qureshi also relied upon paragraphs 81, 88.A and 237, which are quoted below.
"81. Indeed, there are very good reasons why the Constitution could not have used the expression "castes" or "caste" in Art. 16(4) and why the word "class" was the natural choice in the context. The Constitution was meant for the entire country and for all time to come. Non-Hindu religions like Islam, Christianity and Sikh did not recognise caste as such though, as pointed out hereinabove, castes did exist even among these religions to a varying degree. Further, a Constitution is supposed to be a permanent document expected to last several centuries. It must surely have been envisaged that in future many classes may spring-up answering the test of backwardness, requiring the protection of, Art. 16(4). It, therefore, follows that from the use of the word "class" in Article 16(4), it cannot be concluded either that "class" is antithetical to "caste" or that a caste cannot be a class or that a caste as such can never be taken as a backward class of citizens. The word "class" in Art. 16(4), in our opinion, is used in the sense of social class - and not in the sense it is understood in Marxist jargon.
In Rajendran (AIR 1968 SC 1012), Trilokinath-II (AIR 1969 SC 1), Balram (AIR 1972 SC 1375) and Peerikarupan (AIR 1971 SC 2303), this reality was recognised and given effect to, notwithstanding the fact that they had to respect and operate within the rather qualified formulation of Balaji (AIR 1963 SC 649).
For the sake of completeness, we may refer to a few passages from Vasant Kumar (AIR 1985 SC 1495) to show what does the concept of 'caste' signify? D.A. Desai, J. defines and describes "caste" in the following terms (Para 22 of AIR):
"What then is a caste?
Though caste has been discussed by scholars and jurists, no precise definition of the expression has emerged. A caste is a horizontal segmental division of society spread over a district or a region or the whole State and also sometimes outside it. Homo Hierarchicus is expected to be the central and substantive element of the caste/ system which differentiates it from other social systems. The concept of purity and impurity conceptualises the caste system......There are four essential features of the caste system which maintained its homo hierarchicus character: (1) hierarchy (2) commensality : (3) restrictions on marriage; and (4) hereditary occupation. Most of the caste are endogamous groups. Intermarriage between two groups is impermissible. But 'Pratilom' marriages are not wholly unknown."
Venkataramiah, J. also defined "caste" in practically the same terms. He said (Para 109 of AIR):
"A caste is an association of families which practise the custom of endogamy i.e. which permits marriages amongst the members belonging to such families only. Caste rules prohibit its members from marrying outside their caste........A caste is based on various factors. Sometimes it may be a class, a race or a racial unit. A caste has nothing to do with wealth. The caste of a person is governed by his birth in a family. Certain ideas of ceremonial purity are peculiar to each caste ...... Even the choice of occupation of members of castes was predetermined in many cases, and the members of particular caste were prohibited from engaging themselves in other types of callings, profession or occupations. Certain occupations were considered to be degrading or impure."
"88A. We may now summarise our discussion under Question No. 3(a) a caste can be and quite often is a social class in India. If it is backward socially, it would be a backward class for the purposes of Art. 16(4). Among non-Hindus, there are several occupational groups, sects and denominations, which for historical reasons are socially backward. They too represent backward social collectives for the purposes of Art. 16(4). (b) Neither the Constitution nor the law prescribes the procedure or method of identification of backward classes. Nor is it possible or advisable for the court to lay down any Such procedure or method. It must be left to the authority appointed to identify. It can adopt such method / procedure as it thinks convenient and so long as its survey Covers the entire populace, no objection can be taken to it. Identification of the backward classes can certainly be done with reference to castes among, and along with, other groups, classes and sections of people. One can start the process with the castes, wherever they are found, apply the criteria (evolved for determining backwardness) and find out whether it satisfies the criteria. If it does - what emerges is a "backward class of citizens"
within the meaning of and for the purposes of Article 16(4). Similar process can be adopted in the case of other occupational groups, communities and classes, so as to cover the entire populace. The central idea and overall objective should be to consider all available groups, sections and classes in society. Since caste represents an existing, identifiable social group/class encompassing an overwhelming majority of the country's population, one can well begin with it and then go to other groups, sections and classes. (c) It is not necessary for a class to be designated as a backward class that it is situated similarly to the Scheduled Caste/Scheduled Tribes. (d) 'Creamy layer' can be, and must, be excluded. (e) It is not correct to say that the backward classes contemplated by Article 16(4) is limited to the socially and educationally backward classes referred to in Article 15(4) and Article 340. It is much wider. The test or requirement of social and educational backwardness cannot be applied to Scheduled Castes and Scheduled Tribes, who indubitably fall within the expression "backward class of citizens." The accent in Article 16(4) appears to be on social backwardness. Of course, social, educational and economic backwardness are closely intertwined in the Indian context. The classes contemplated by Article 16(4) may be wider than those contemplated by Article 15(4).
237. The facts in Balaram (cited above) disclose that for the admission to the integrated M.B.B.S. Course in the government medical colleges in Andhra Pradesh, the Government issued a GO making a reservation of 25% of seats in favour of 'backward classes' as recommended by the Andhra Pradesh Backward Classes Commission besides other reservations inclusive of reservation for Scheduled Castes and Scheduled Tribes. The reservation for the 'backward classes' was challenged on the ground that the Government Order violated Article 15(1) read with Article 29 and that the reservation was not saved by Article 15(4). The High Court held that the Commission had merely enumerated the various persons belonging to a particular caste as 'backward classes' which was contrary to the decision of this Court and violative of the constitutional provisions and consequently struck down the GO. The Government preferred an appeal before this Court. Vaidialingam, J. speaking for the Bench had observed :
"In the determination of a class, to be grouped as backward, a test solely based upon caste or community cannot be valid. But, in our opinion, though Directive Principles contained in Art. 46 cannot be enforced by Courts, Art. 15(4) will have to be given effect to in order to assist the weaker sections of the citizen, as the State has been charged with such a duty. No doubt, we are aware that any provision made under, this clause must be within the well defined limits and should not be on the basis of caste alone. But it should not also be missed that a caste is also a class of citizens and that a caste as such may be socially and educationally backward. If after collecting the necessary data, it is found that the caste as a whole is socially and educationally backward, in our opinion, the reservation made of such persons will have to be upheld notwithstanding the fact that a few individuals in that group may be both socially and educationally above the general average. There is no gainsaying the fact that there are numerous castes in the country, which are socially and educationally backward and, therefore, a suitable provision will have to be made by the State as charged in Art. 15(4) to safeguard their interest."
(Emphasis supplied) 33.9.2 We are unable to appreciate how the said decision can have any application on the question as to whether only on the ground of religion, the State can discriminate against a citizen on the question of grant of scholarship. The said decision in the case of Indra Swahney v. Union of India reported in AIR 1993 SC 477 has not at all dealt with the question of Article 15(1) of the Constitution. Thus, in our view, the said decision is irrelevant for our purpose.
33.10 Lastly, by referring to the case of State of Rajasthan v. Union of India reported in AIR 1977 SC 1361 Mr. Qureshi tried to impress upon us that it is within the province of the Union Government to give executive directions to the State Government by taking aid of Article 256 and 257 of the Constitution. According to Mr. Qureshi, Article 73(1) (a) of the Constitution mentions about the executive power of the Union which extends to all matters on which the parliament has power to make laws. Mr. Qureshi contends that Article 248 of the Constitution vests exclusively in the Parliament residuary powers of making laws on any matter not enumerated in the Concurrent or State Lists. According to Mr. Qureshi, Article 256 covers cases where the President may want to give directions in exercise of the executive power of the Union to a State Government in relation to a matter covered by existing law made by the parliament. Mr. Qureshi submits that the scheme in question having been issued by the Central Government upon the State in exercise of such executive power, it is the duty of the State Government to comply with the same.
33.10.1 We do not, for a moment, dispute the power of the Central Government to issue executive directions upon the State within the scope of Constitution but the question before us is whether the Central Government can issue any such directions upon the State which discriminates against the citizens on the ground of religion. In our view, such power is not conferred upon the Central Government to compell the State Government to enforce any scheme which violates Article 15(1) of the Constitution. Consequently, the above decision in the case of State of Rajasthan v. Union of India reported in AIR 1977 SC 1361 is of no avail to Mr. Qureshi.
33.11 Thus, the decisions cited by Mr. Qureshi do not help in resolving the question involved in this case.
34. On consideration of the entire materials on record, we find that in order to get the benefit of the Scheme in question, the following basic conditions must be complied with:-
(a). The student concerned must not get less than 50% marks in the previous final examination.
(b). The annual income of his/her parents/guardian from all sources must not exceed Rs.1 lakh. However, interse selection weightage should be given to poverty rather than the marks obtained.
(c). The student must be either a Muslim or Christian or Sikh or Buddhist or Zoroastrian [Parsi].
34.1 Let us now consider a situation where two citizens of this country, one belonging to any of those five religions and the other, not belonging to those five religions, due to their misfortune are reduced to the lowest ebb of poverty and distress and earning their livelihood as street-beggars, having the same meagre amount of annual income which is much less than Rs.1 lakh. Both the aforesaid persons have a son each and they want that their respective son should complete education so that he is not forced to undergo a life of misery. The son of the person not belonging to any of those five religions has secured 90% marks in the last final examination whereas the son of the other, who belongs to one of those five religions, has obtained 60% marks. According to the Scheme in question, the son of the former one who does not belong to any of those five religions will be deprived of the benefit only on the ground that he does not belong to those five religions whereas the son of the other person, who belongs to one of those five religions, will be entitled to the benefit only because he belongs to one of those five religions and no other ground although he is less meritorious than the former and the socio-economic condition of his father is the same as that of the father of the former. The Scheme in question, therefore, clearly discriminates against a citizen only on the ground of religion.
35. We, therefore, hold that if we pass direction upon the State Government to implement the scheme in question it will amount to passing direction upon the State Government to violate Article 15(1) of the Constitution. Since our above view is in conflict with the earlier decision of a Division Bench of this Court in Special Civil Application No. 2245 of 2008 (Vijay Harishchandra Patel vs. the Union of India) disposed on March 20, 2010, in our opinion, the judicial decorum demands that we should refer the question before a Larger Bench.
36. We, therefore, formulate the questions to be referred as follows:
[1]. Whether the scheme in question violates Article 15(1) of the Constitution and a direction should be given to the State Government to implement the scheme.
[2]. Whether the decision of the Division Bench of this court in Special Civil Application No. 2245 of 2008 (Vijay Harishchandra Patel vs. the Union of India) disposed on March 20, 2010 lays down the correct proposition that the scheme in question does not violate Article 15 of the Constitution of India.
37. Let the matters be placed before the Chief Justice for constitution of a Larger Bench.
[BHASKAR BHATTACHARYA, C.J.] mathew [J.B.PARDIWALA. J.]