Madhya Pradesh High Court
Christ Jyoti Senior Secondary School vs The State Of Madhya Pradesh on 15 February, 2013
Author: K.K. Trivedi
Bench: K.K. Trivedi
HIGH COURT OF MADHYA PRADESH : JABALPUR.
Writ Petition No.15605/2010
Christ Jyoti Senior Secondary School
& another.
Vs
State of M.P. and others.
PRESENT :
Hon'ble Shri Justice K.K. Trivedi. J.
Shri Brian D. Silva, learned Senior counsel assisted by
Shri Arjun Singh, learned counsel for the petitioners.
Shri Ved Prakash Tiwari, learned Panel Lawyer, for
respondents.
ORDER
(14.2.2013) By this petition under Article 226 of the Constitution of India, the petitioners have called in question the order dated 11.10.2010, passed by the respondent No.2, by which certain queries have been made and information is sought from the petitioners. It is contended that such an order has been issued in complete violation of the law asking the petitioners to furnish such information which is not relevant for the purposes of implementing any Scheme of the State Government made for the benefit or to facilitate the Backward Class community students. It is contended that such an action of the respondents is nothing but highhandedness and colourable exercise of their power though not available to them, to pressurise a minority community.
2: Brief facts giving rise to filing of this writ petition are that the petitioner No.2 is a Society of minority constituted 2 and protected under the provisions of Article 30 of the Constitution of India. The petitioner No.2 has established petitioner No.1, a Senior Secondary School for imparting education in the area. The petitioners are not receiving grant-in-aid from the State Government or the Central Government. The Society has its object to support and promot the advancement of educational and cheritable activities amongst the minority communities. The petitioner No.1 is duly recognized by the National Commission for Minority Educational Institutions under the provisions of National Commission for Minority Educational Institutions Act, 2004. The petitioner No.1 is duly affiliated by the Central Board of Secondary Education, New Delhi.
3: The State Legislature has promulgated the M.P. Rajya Pichhada Varg Ayog Adhiniyam, 1995 (hereinafter referred to as the Act for short). The Act prescribes to constitute a State Commission for backward classes. The object of the formation of such a Commission is to act as a watch-dog Commission for protection of the members of the backward Classes and to make the recommendation to the State Government to take steps to add particular backward classes or communities in the list of such communities. It is contended that the respondent No.3, who is a political activists was trying to get certain students admitted in the school of the petitioners, but since the same was not permissible as per the procedure prescribed for admission of the students in the school of petitioners, such requests were refused. The respondent No.3 on account of such grudges started acting against the petitioners. Since the respondent No.3 has been appointed as a member of Pichhda Varg Kalyan Ayog, he started summoning the Principal of the school of the petitioner. On certain occasions, it was objected to. Lastly, a letter was issued to 3 the petitioners on 11.10.2010 calling on the petitioners to submit certain information as were described in Clause (1) to (8) of the said notice. Such information is not required to be obtained for the purposes of implementation of any of the Scheme of the respondent No.2. Further, the respondent No.2 is not required to conduct any enquiry whatsoever. At the best, the respondent No.2 could give an advice as its function is advisory only. The advice made by the respondent No.2 is not binding even on the State Government as has been held in several cases. Thus, it is contended that in fact the petitioners are being harassed by the respondents authorities, therefore, they are required to call in question such act of the respondents by way of filing this writ petition.
4: In response to the notice of the writ petition issued to the respondents, a return has been filed. The respondents No. 1 and 2 have stated that such information was necessary in terms of the provisions of Section 9 of the Act and, therefore, it cannot be said that because of any prejudices in the mind of respondent No.3 such a notice was issued. The respondent No.3 has filed the return and has contended that the Collector District Satna, was requested to call certain information from the petitioners for placing the same before the respondent No.2 for the next consideration in the meeting and, therefore, it cannot be said that such an act of the respondents was biased or prejudiced act. It is, thus, contended that the claim made in the writ petition is misconceived and the petition is liable to be dismissed.
5: Heard learned counsel for the parties at length and perused the record.
6: It will be proper to see what authority the respondents 4 have to initiate any action against the petitioners even for calling the information. Chapter-III prescribes function and powers of the Commission. Section 9 of the Act prescribes as to how the Commission has to function. For the purposes of proper appreciation, the provisions of Section 9 are reproduced, which read thus :-
"9. Functions of the Commission.-(1) It shall be the function of the Commission-
(a) to act as watch-dog commission for the protection afforded to the members of the backward classes under the Commission and under any other law for the time being in force;
(b) to watch the proper and timely implementation of programmes meant for the welfare of backward classes and to suggest improvement in such programmes of the State Government or any other body or authority responsible for implementation of such programmes;
(c) tender advice regarding reservation for backwards classes in public services and for admission in educational institutions;
(d) to examine requests for inclusion of any of the citizens as backward classes in the list prepared by State Government from time to time for purpose of making proviso for the reservation in appointments in the posts and hear complaints of overinclusion or under-inclusion of any backward class in such lists and tender such advice to the State Government as it deems appropriate;
(e) ascertain the category of person or groups falling under the creamy layer within the backward classes;
(f) to perform such other functions as may be assigned to it by the State Government.
(2) The advice of the Commission shall, ordinarily be binding upon the State Government;
where, however, the Government does not accept the advice, it shall record its reasons therefor."
7: This particular aspect whether such function is required any collection of information or not, was interpreted by this Court in the case of S.K. Verma Vs. 5 State of M.P. and others [2008 (5) MPHT 438 (DB)]. The Division Bench has categorically held that the Commission is only advisory and has limited power to look into the welfare, but has no power to act as an adjudicatory body into individual complaints. For the purposes of appreciation, the findings of the Division Bench in paragraphs 14, 15 and 16 are relevant, which read thus :-
"14. A perusal of the functions conferred upon the Commission under Section 9 of the Act of 1995 also makes it clear that the Commission has basically been constituted for the aforesaid purposes and Section 9(1) (a), on which heavy reliance has been placed by the learned Counsel for the respondent No.3, has to be understood and interpreted in the aforesaid context. It is also clear from reading of the provisions of Section 9(2) of the Act of 1995 that the Commission is only a recommendatory and advisory body and that its recommendations and advise is not final and binding upon the State Government as the State has been conferred with the discretion to accept or not to accept the advice given by the Commission by recording reasons therefor. A perusal of Section 9(1)(a) indicates that the Commission constituted under the Act has to act as a watch-dog for the protection afforded to the members of the Scheduled Caste under the Constitution and under any other law for the time being in force.
15. In the light of the above, when various clauses to Section 9(1) are read together along with Section 9(2) it is abundantly clear that Section 9(1) (a) only confers upon the Commission a function to over see that the constitutional benefits and protections as well as statutory protections afforded to the members of Scheduled Castes as a whole are being made available to them and in case of Commission is of the opinion that there are certain lapses or shortcomings in affording the same, the Commission may advise the State Government as to the steps to be taken by the State for proper implementation of the constitutional and statutory protections, which advice may or may not be accepted by the State Government. The powers conferred on the Commission are limited to the aforesaid extent. In other words, the 6 Commission has not been empowered to act as an adjudicatory body into individual complaints.
16. Section 10 of the Act of 1995 gives limited powers to the Commission of a Civil Court only for the purposes of Section 9(1) in performing its advisory role of summoning and enforcing the attendance of any person, requiring the discovery and production of any document, receiving evidence on affidavits, requisitioning any public record or copy thereof from any Court or office, issuing Commissions for examination of witnesses and documents and such incidental matters. Section 10 does not confer powers of a Regular Civil Court to adjudicate all issues raised before it like a judicial forum with all its complexities. The Commission is only an advisory body having no judicial powers of a Regular Civil Court as is manifest from reading the provisions of the Act of 1995."
8: Yet another aspect is to be examined whether in respect of a complaint made under any enactment could the respondent No.2 initiate any proceedings against the petitioners to inquire into the said complaints. The Parliament has enacted the Right of Children to Free and Compulsory Education Act, 2009, which has been enforced in the State of Madhya Pradesh with certain amendments in the year 2012. Prior to this, only M.P. Jan Shiksha Adhiniyam, 2002 was made by the State Government, but the said Act is made applicable to the schools of State Government and local bodies as also the schools receiving grant-in-aid from the State Government. The said Act is not made applicable even to the institutions covered under Article 30 of the Constitution of India. Thus, to say that in the Act of 1995, any provision was made calling for any information from such a minority institutions or to make any enquiry with respect to any complaint whatsoever made against the said institutions, is totally misconceived. The respondents could not have asked for such an information without disclosing the reasons as to how and 7 why such information was necessary, otherwise it has to be treated that the power was being exercised by the respondents in arbitrary manner without there being any justified reasons for asking for such information. The stand taken by the respondents nowhere indicates as to how such an information was necessary for other backward classes communities and whether any specific provision made by the law was being violated by the petitioners, therefore, such an action was initiated. The statement made in the return that the power has been given to the Commission to make certain inquiries and carry out the Scheme for other backward classes community is thus totally misconceived in the present case where the petitioners institution is being governed solely on its own fund by the petitioners, that too with the privilege of protection under Article 30 of the Constitution of India.
9: Consequently, the writ petition is allowed. The impugned order dated 11.10.2010 Annx.P/3 is hereby quashed. The petitioners are not required to furnish the information as sought for under the said communication.
10: The petition is allowed to the extent indicated hereinabove. However, there shall be no order as to costs.
(K.K. TRIVEDI) Judge 14/2/2013 A.Praj.
8HIGH COURT OF MADHYA PRADESH : JABALPUR.
Writ Petition No.15605/2010Christ Jyoti Senior Secondary School & another.
Vs State of M.P. and others.
ORDER
Post it for /02/2013
(K. K. Trivedi)
Judge
/02/2013