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Gujarat High Court

Mar Gregorios Orthodox Syrian Church, ... vs State Of Gujarat on 30 July, 2018

Author: M.R. Shah

Bench: M.R. Shah, A.Y. Kogje

      C/WPPIL/105/2018                              CAV JUDGMENT




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                 R/WRIT PETITION (PIL) NO. 105 of 2018
                                With
             R/SPECIAL CIVIL APPLICATION NO. 8322 of 2018
                                With
             R/SPECIAL CIVIL APPLICATION NO. 8325 of 2018
                                With
             R/SPECIAL CIVIL APPLICATION NO. 8326 of 2018
                                With
             R/SPECIAL CIVIL APPLICATION NO. 8327 of 2018
                                With
             R/SPECIAL CIVIL APPLICATION NO. 8350 of 2018
                                With
             R/SPECIAL CIVIL APPLICATION NO. 8432 of 2018
                                With
             R/SPECIAL CIVIL APPLICATION NO. 9395 of 2018
                                With
             R/SPECIAL CIVIL APPLICATION NO. 9397 of 2018
                                With
             R/SPECIAL CIVIL APPLICATION NO. 9398 of 2018
                                With
             R/SPECIAL CIVIL APPLICATION NO. 9399 of 2018
                                With
             R/SPECIAL CIVIL APPLICATION NO. 9400 of 2018
                                With
             R/SPECIAL CIVIL APPLICATION NO. 9401 of 2018
                                With
             R/SPECIAL CIVIL APPLICATION NO. 9402 of 2018
                                With
             R/SPECIAL CIVIL APPLICATION NO. 9403 of 2018
                                With
                 R/WRIT PETITION (PIL) NO. 106 of 2018


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR.JUSTICE M.R. SHAH                      sd/-

and

HONOURABLE MR.JUSTICE A.Y. KOGJE                     sd/-



                               Page 1 of 59
       C/WPPIL/105/2018                                      CAV JUDGMENT



==========================================================

1 Whether Reporters of Local Papers may be allowed to Yes see the judgment ?

2 To be referred to the Reporter or not ? Yes 3 Whether their Lordships wish to see the fair copy of the No judgment ?

4 Whether this case involves a substantial question of law No as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== SANDIP HARSHADRAY MUNJYASARA Versus STATE OF GUJARAT ========================================================== Appearance: WRIT PETITION (PIL) No.105 of 2018 PARTY IN PERSON(5000) for the PETITIONER(s) No. 1 MR SI NANAVATI, SENIOR ADVOCATE assisted by MR TUSHAR L SHETH(3920) for the RESPONDENT(s) No. 4 MS MAMTA R VYAS(994) for the RESPONDENT(s) No. 3 MS MANISHA L.SHAH, GOVERNMENT PLEADER assisted by MR CHITAN DAVE, AGP for the RESPONDENT(s) No. 1,2 Appearance:­SCA Nos.8322, 8325, 8326, 8327 of 2018 MR SI NANAVATI, SENIOR ADVOCATE assisted by MR TUSHAR L SHETH(3920) for the Petitioner MS MANISHA L.SHAH, GOVERNMENT PLEADER assisted by MR CHITAN DAVE, AGP for the RESPONDENT(s) No. 1,2 Appearance:­SCA Nos.8350 of 2018 MR TUSHAR L SHETH(3920) for the Petitioner MS MANISHA L.SHAH, GOVERNMENT PLEADER assisted by MR CHITAN DAVE, AGP for the RESPONDENT(s) No. 1,2 Appearance:­SCA No.8432 of 2018 MS MAMTA R VYAS for the Petitioner MS MANISHA L.SHAH, GOVERNMENT PLEADER assisted by MR CHITAN DAVE, AGP for the RESPONDENT(s) No. 1,2 Appearance:­SCA No.9398 of 2018 MR SAURABH M PATEL for the Petitioner MS MANISHA L.SHAH, GOVERNMENT PLEADER assisted by MR CHITAN DAVE, AGP for the RESPONDENT(s) No. 1,2 MR HS MUNSHAW for Respondent No.3 Appearance:­SCA No.9402 of 2018 MR SAURABH M PATEL for the Petitioner MS MANISHA L.SHAH, GOVERNMENT PLEADER assisted by MR CHITAN DAVE, AGP for the RESPONDENT(s) No. 1,2 MS RV ACHARYA for Respondent No.3 Page 2 of 59 C/WPPIL/105/2018 CAV JUDGMENT Appearance:­SCA Nos.9401, 9399, 9397, 9403, 9400, 9395 of 2018 MR SAURABH M PATEL for the Petitioner MS MANISHA L.SHAH, GOVERNMENT PLEADER assisted by MR CHITAN DAVE, AGP for the RESPONDENT(s) No. 1 MS RV ACHARYA for Respondent No.3 Appearance:­WRIT PETITION (PIL) No.106 of 2018 PARTY IN PERSON(5000) for the PETITIONER(s) No. 1 MS MANISHA L.SHAH, GOVERNMENT PLEADER assisted by MR CHITAN DAVE, AGP for the RESPONDENT(s) No. 1 ========================================================== CORAM: HONOURABLE MR.JUSTICE M.R. SHAH and HONOURABLE MR.JUSTICE A.Y. KOGJE Date : 30/07/2018 COMMON C.A.V. JUDGMENT (PER : HONOURABLE MR.JUSTICE M.R. SHAH)

1. Rule. Service of notice of Rule is waived by learned counsel appearing on behalf of the respective respondents. As common questions of law and facts arise in this group of petitions, they are decided and disposed of together by this common judgment and order.

2. By way of Writ Petition (PIL) No.105/2018, the petitioner, who has appeared as Party-in-Person has prayed for the following reliefs:

"I. Admit 44 children (who have been allocated Saint Francis School but school is not admitting them) in Class-I of Saint Francis School and also admit such other children in Class-I of allocated schools.

II. Declare list of all children along with School Page 3 of 59 C/WPPIL/105/2018 CAV JUDGMENT Name and DISE code who have been allocated schools during first round of 2018-19 RTE Admission Process but not admitted by school claiming to have minority status or admitted after 10.06.2018. III. Publish "Minority Status Certificate" on Web Portal in case of each school holding it and also publish list of all schools who have been exempted from 2018-19 RTE Admission Process just because of their Minority Status.

IV. Put letter pad of each school on Web Portal and Notice Board of school containing details of school (as available on Web Portal -

www.rtegujarat.org/Home/Schoollist) along with signature of principal and verifier as well as publish certificate generated by DEO/ DPEO with his/her signature on Web Portal as described in para 8(III) & 8(IV) respectively before start of RTE Admission Process for each academic year.

V. Impose appropriate penalty on schools as described in para 8(VI) and also initiate departmental-disciplinary actions against whosoever is responsible on the part of State. B. Pending the hearing and final disposal of the petition, Your Lordship may be pleased to direct the respondents to admit 44 children in Class-I of Saint Francis School and also admit such other children in Class-I of allocated schools and also to file an affidavit declaring list of children along with school name and DISE code who have been allocated schools during first round of 2018-19 RTE Admission Process but to admitted by school claiming minority status.

C. Ad interim exparte relief in terms of above paragraph B;

D. The Hon'ble Court may grant such other reliefs as the nature and circumstances of the case may require."

2.1 By way of Writ Petition (PIL) No.106/2018, the Page 4 of 59 C/WPPIL/105/2018 CAV JUDGMENT petitioner, who has appeared as Party-in-Person has prayed for the following reliefs:

(a) to accept this appeal;

(b) to issue a writ of mandamus or any other writ, order or direction upon the respondents to grant admission to all the children belonging to weaker sections of the society and disadvantage group who have applied and are eligible for admission to Class- 1 under section 12(1)(c) of the RTE Act for the academic year 2018-19.

(c) to issue a writ of mandamus or any other writ, order or direction upon the respondents to provide a second opportunity to those of the 3,170 applicants whose applications were rejected on grounds of minor mistakes/ errors in filling the form or on non-submission of proper documents.

(d) to issue a writ of mandamus or any other writ, order or direction upon the respondents to immediately declare the Second Round under section 12(1)(c) of the RTE Act to grant admission to the 45,532 applicants who have already been approved by the DPEO but have still not been allotted a school to protect the fundamental right to free and compulsory education.

(e) to grant any other or further relief as may deemed fit in the interest of justice....

2.2 In Special Civil Application Nos.8322, 8325, 8326, 8327, 9398, 9402, 9401, 9399, 9397, 9403, 9400 and 9395, 8350, 8432 all of 2018, preferred under Article 226 of the Constitution of India, the respective petitioner - Trusts / Societies have prayed for an appropriate Writ, order or direction to quash and set aside the impugned order/ Page 5 of 59 C/WPPIL/105/2018 CAV JUDGMENT communication dated 19.05.2018 and other by which the concerned educational institutions are directed to admit the students belonging to weaker sections of the society under the provisions of the the Right of Children to Free and Compulsory Education Act, 2009 (hereinafter referred to as "the Right to Education Act" or "the RTE Act") allotted to the respective institution under the RTE Act failing which penal action shall be taken against them. By way of an amendment which has been granted, the respective petitioners have also prayed for an appropriate writ, direction and order to hold that the Government Resolution dated 04.04.2018 issued by the Education Department, State of Gujarat, by which 25% of the seats are reserved in the respective schools/ educational institutions for the students belonging to weaker sections of the society, which are reserved under the provisions of the RTE Act, is having prospective application and minority status of the running schools shall not be affected. 2.3 Special Civil Application No.8432/2018 has been preferred by the petitioner - Gujarat Education Board of Catholic Institutions for the following reliefs with respect to approximately 178 institutions in the State who are imparting education through various schools:

Page 6 of 59 C/WPPIL/105/2018 CAV JUDGMENT

(A) to issue a writ of mandamus or any other appropriate writ, order or direction quashing and setting aside the impugned show-cause notices issued to the schools run by the petitioner Trust by the different District Primary Education Officers under RTE Act, 2009 and further be pleased to restrain the respondent authorities, their servants and/or their agents from taking any action against the schools run by the petitioner Trust pursuant to the show-cause notices issued under the RTE Act, 2009;

(B) Pending admission, hearing and final disposal of this Writ petition, to stay the operation, implementation and execution of the show-cause notices issued to the schools run by the petitioner Trust by the different District Primary Education Officers under RTE Act, 2009 and further be pleased to restrain the respondents and different District Primary Education Officers in the State of Gujarat from taking any further action for cancellation of their recognition and/or any other action under the RTE Act, 2009..."

3. At the outset, it is required to be noted that it is the case on behalf of the respective petitioners of Special Civil Application Nos.8322, 8325, 8326, 8327, 9398, 9402, 9401, 9399, 9397, 9403, 9400 and 9395, 8350, 8432 all of 2018 that all those educational institutions (primary schools) are run by Page 7 of 59 C/WPPIL/105/2018 CAV JUDGMENT the Trust/ Society of which the trustees/ majority of the trustees belong to the religious minority and therefore, they have a fundamental right to establish and administer the educational institutions as per their choice as provided under Article 30(1) of the Constitution of India and therefore, as per the decision of the Hon'ble Supreme Court in the case of Pramati Educational and Cultural Trust (Registered) And Others v. Union of India And Others reported in (2014)8 SCC 1, they are exempted from the applicability of the Right to Education Act and therefore, they cannot be compelled to admit the students belonging to the weaker sections of the society under the provisions of the Right to Education Act.

4. On the other hand, it is the case on behalf of the petitioner of Writ Petition (PIL) No.105/2018 as well as the State Government that the respective educational institutions/ schools have to obtain the "No Objection Certificate" either from the National Commission for Minority Educational Institutions ("NCMEI") or the appropriate authority or the Competent Authority appointed by the appropriate Government to grant No Objection Certificate for the establishment of any educational institutions by the minorities Page 8 of 59 C/WPPIL/105/2018 CAV JUDGMENT as provided under Section 10 or Section 11 of the National Commission for Minority Educational Institutions Act, 2004 (hereinafter referred to as "the Act, 2004").

5. It is further the case on behalf of the petitioner - Party-in-Person in Writ Petition (PIL) No.105/2018 and the State Government/ State Authorities of the Education Department that there cannot be any dispute and it is not disputed that the Constitution has guaranteed the right under Article 30(1) of the Constitution of India to the religious minorities to establish and administer the institutions/ schools of their choice. However, their right to establish and administer the educational institutions as religious minority institutions are subject to fulfilling certain conditions / criteria for which a detailed procedure is provided as per the Guidelines issued by the Government of India for determination of minority status, recognition, affiliation and related mattes in respect of minority educational institutions under the Constitution of India.

6. It is the case on behalf of the State and the State Authorities that for claiming a minority status in respect of the religious minority educational institutions and a Trust/ Society Page 9 of 59 C/WPPIL/105/2018 CAV JUDGMENT claiming minority status to an educational institution on religion basis have to satisfy that the educational institution is established by a member/ members of the religious minority community; that the educational institution has been established for the benefit of such minority community and that the educational institution is being administered by such minority community. It is submitted that therefore, some authority has to decide on the basis of the material produced on record by the concerned Trust/ Society, more particularly, the object of the Trust / Society/ Trust Deed/ Articles of Association or any other document duly executed in this regard reflecting the object of sub-serving the interest of the minority community. Therefore, such powers are conferred/ vested with the Competent Authority as provided under the provisions of the Act, 2004, namely, Sections 10 and 11 thereof.

7. Shri S.I.Nanavati, learned Senior Advocate has appeared on behalf of the petitioners of Special Civil Application Nos.8322, 8325, 8326, 8327, all of 2018, Shri Saurabh M.Patel, learned advocate has appeared on behalf of the petitioners of Special Civil Applications No.9398, 9402, 9401, 9399, 9397, 9403, 9400 and 9395, all of 2018, Shri Page 10 of 59 C/WPPIL/105/2018 CAV JUDGMENT Tushar L. Sheth, learned advocate has appeared on behalf of the petitioner of Special Civil Application No.8350/2018, and Ms.Mamta R. Vyas, learned advocate has appeared on behalf of the petitioner of Special Civil Application No.8432/2018, namely, Gujarat Education Board of Catholic Institutions. Mrs.Manisha Lavkumar, learned Government Pleader has appeared on behalf of the State authorities.

8. Shri S.I.Nanavati, learned Senior Advocate appearing on behalf of the respective Trust/ Society who are running the educational institutions to whom the students belonging to the weaker sections of the society are allotted under the provisions of the RTE Act has challenged the impugned order/ allotment of students under the RTE Act on the following grounds:

8.1 Shri S.I.Nanavati, learned Senior Advocate appearing on behalf of some of the respective Trusts/ Societies who are running educational institutions in the primary section and whose majority of trustees belong to religious minority, has submitted that the respective Trust/ Society whose majority of the trustees are religious minority have a fundamental right guaranteed under Article 30(1) of the Page 11 of 59 C/WPPIL/105/2018 CAV JUDGMENT Constitution to establish and administer the educational institutions of their choice.

8.2 It is submitted by Shri S.I.Nanavati, learned Senior Advocate appearing on behalf of the respective Trust/ Society that as it is their fundamental right to establish and administer the educational institutions of their choice, the declaration of the minority status by the Government is only an open acceptance of a legal character which should necessarily have existed antecedents to such declaration. It is submitted that therefore, the respective schools run by such Trust/ Society whose majority of the trustees are religious minority can claim protection without such declaration.

8.3 It is further submitted by Shri S.I.Nanavati, learned Senior Advocate appearing on behalf of the respective Trust/ Society that therefore, such Trust/ Society whose majority of the trustees are religious minority are not required to obtain No Objection Certificate under Section 10 of the Act, 2004. It is submitted that therefore, insistence on the part of the respondent-State authority to obtain the NOC under Section 10 of the Act, 2004, for the purpose of exemption from applicability of the RTE Act is absolutely illegal and arbitrary Page 12 of 59 C/WPPIL/105/2018 CAV JUDGMENT and violating their rights guaranteed under Article 30(1) of the Constitution of India.

8.4 It is further submitted by Shri S.I.Nanavati, learned Senior Counsel that even otherwise, the requirement of NOC under Section 10 of the Act, 2004, as amended from time to time, shall be applicable only to the institution who wants to establish the educational institution after the Amended Act, 2006 came into force.

8.5 It is further submitted by Shri S.I.Nanavati, learned Senior Counsel that even it is so stated in Section 10 of the Act, 2004 that the Trust may apply for No Objection Certificate.

It is submitted that therefore, the NOC under Section 10 of the Act 2004, is not mandatory.

8.6 It is further submitted by Shri S.I.Nanavati, learned Senior Counsel that therefore, the existing Trusts who have already established minority institutions prior to Act, 2004, are not required to apply for minority status. 8.7 It is further submitted by Shri S.I.Nanavati, learned Senior Counsel that "minority educational institution" is Page 13 of 59 C/WPPIL/105/2018 CAV JUDGMENT defined in Section 2(g) of the Act, 2004. It submitted that as per the said provision, it is a Trust whose members are belonging to minority community from the inception has established and administering the schools. Therefore, the Trust being a legal entity formed by the members of the minority community, is having minority status from the inception. 8.8 It is further submitted by Shri S.I.Nanavati, learned Senior Counsel that in some of the cases, Trusts are running both primary section as well as secondary/ higher secondary section. It is submitted that respondent No.2 has given the status of minority school to most of the petitioners since decades. It is submitted that therefore, it cannot be said that the schools run by the petitioners are not having status of minority qua primary section. It is submitted that both the section of the schools, namely, primary and secondary, are being run by the petitioners-Trust in many case and therefore, it cannot be said that the minority status is qua the secondary and higher secondary section only and not qua the primary section.

8.9. It is further submitted by Shri S.I.Nanavati, learned Senior Counsel that therefore, the separate certificate of Page 14 of 59 C/WPPIL/105/2018 CAV JUDGMENT minority status for primary section is not required. It is submitted that however, in order to avoid any technicality, the petitioner-Trusts have already applied for the same vide letter dated 21.05.2018 after the impugned order is served to the school of the petitioner-Trusts.

8.10 It is further submitted by Shri S.I.Nanavati, learned Senior Counsel that since after the Act, 2004 came into force from 2013, not a single student is sent to the school for admission under the RTE Act. It is submitted that the order of admitting students under the RTE Act is based without giving an opportunity of hearing and therefore, the same is against the principles of natural justice.

8.11 It is further submitted by Shri Shri S.I.Nanavati, learned Senior Counsel that in Special Civil Application No.8350/2018, there is one additional ground. It is submitted that as per Section 10(3) of the Act, 2004, if the Competent Authority does not grant No Objection Certificate within a period of ninety days from the receipt of the application, then it shall be deemed to have granted the No Objection Certificate. It is submitted that though separate certificate is not required, to avoid technicality, the petitioner applied for Page 15 of 59 C/WPPIL/105/2018 CAV JUDGMENT Certificate as to minority status to the District Education Officer on 28.02.2018. However, as there was no response thereafter, the petitioner again made a similar application on 19.05.2018 referring to earlier application dated 28.02.2018 to issue the Certificate as to minority status. That however, the Authority has written a letter dated 06.06.2018 raising unusual queries and impractical requirements only with a view to see that the petitioner is compelled to give admission. It is submitted that thereafter, the petitioner has also written a letter dated 06.06.2018 stating that it has applied for minority status on 28.02.2018, however, there is no response received. It is submitted that the authority has neither granted the Certificate to the petitioner till date nor rejected the application and therefore, in view of the deeming fiction, the petitioner has acquired the status of minority.

In support of the above submissions, learned counsel appearing on behalf of the respective petitioners have heavily relied upon the following decisions of the Hon'ble Supreme Court:-

(i) The Right Rev. Bishop S.K. Patro And Others v. The State of Bihar And Others - 1969(1) SCC 863

(ii) N.Ammad v. Manager, Emjay High School And Others - (1998)6 SCC 674 Page 16 of 59 C/WPPIL/105/2018 CAV JUDGMENT

(iii) Manager, Corporate Educational Agency v. James Mathew And Others - (2017)15 SCC 595

(iv) Pramati Educational and Cultural Trust (Registered) And Others v. Union of India And Others (supra)

(v) Decision of the Bombay High Court in the case of St.Xavier's College through its Principal, Fr.J.M.Dias v. University of Mumbai through its Vice Chancellor - AIR 2018 Bom.41

9. Ms.Mamta R. Vyas, learned advocate appearing on behalf of the petitioner of Special Civil Application No.8432/2018 - Gujarat Education Board of Catholic Institutions has as such adopted the submissions made by Shri S.I.Nanavati, learned Senior Counsel appearing on behalf of some of the petitioners, recorded hereinabove. 9.1 It is further submitted by Ms.Mamta R. Vyas, learned advocate that the Gujarat Education Board of Catholic Institutions is a Trust registered under the Bombay Public Trusts Act. It is submitted that the Trust has been established by the then settlers. It is submitted that all the settlers and the trustees of the Trust belong to Catholic Christian community. It is submitted that the petitioner Trust is established for its charitable and religious purpose and one of the primary object is to promote and support the advancement of educational Page 17 of 59 C/WPPIL/105/2018 CAV JUDGMENT activities and to achieve the said object, the Catholic Trust is imparting education through various schools which are 178 in number.

9.2 It is further submitted by Ms.Mamta R. Vyas, learned advocate that all the 178 schools are minority institutions and many of the schools are having secondary and higher secondary sections which are given Certificate of minority by the Gujarat Secondary and Higher Secondary Education Board and other authorities competent under the other laws.

9.3 It is further submitted by Ms.Mamta R.Vyas, learned advocate that the institutions are discharging duties even otherwise by giving admissions and better facilities to poor students and therefore when the institution is a minority institution, the Government cannot force to admit 25% of the students under the RTE Act.

9.4 It is further submitted by Ms.Mamta R. Vyas, learned advocate that right to admit students is "a part of administrative right" as per Article 30 of the Constitution of India and being a minority institution, certain exemptions are Page 18 of 59 C/WPPIL/105/2018 CAV JUDGMENT given. It is submitted that as held by the Hon'ble Supreme Court in the case of Pramati Educational and Cultural Trust (Registered) And Others v. Union of India And Others (supra), the provisions of the RTE Act shall not apply to the minority institutions.

10. Shri Saurabh M. Patel, learned advocate appearing on behalf of some of the similarly situated petitioner-Trusts has adopted the submission made by Shri S.I.Nanavati, learned Senior Counsel appearing on behalf of some of the petitioners.

11. Mrs.Manisha Lavkumar, learned Government Pleader has appeared on behalf of the State Government and its authorities.

11.1 It is submitted by Mrs.Manisha Lavkumar, learned Government Pleader that primary schools in the State of Gujarat are governed by the Bombay Primary Education Act, 1947 and the Rules therein. It is submitted that Section 40 of the Bombay Primary Education Act and the Rules stipulate that only a Society registered under the Societies Registration Act, 1960, and a Charitable Trust registered under the Bombay Public Trust Act, 1950, can undertake the exercise of imparting Page 19 of 59 C/WPPIL/105/2018 CAV JUDGMENT primary education. It is submitted that with the enactment of the RTE Act, the State and every primary school, whether granted or not, is obligated to impart primary education to a child between the age group of 06 to 14. It is submitted that as provided under Article 21A of the Constitution, every child has a fundamental right to elementary education subject to the Rules made under Section 38 of the RTE Act. It is submitted that it is true that minority schools are exempted from this obligation, as per the decision of the Hon'ble Supreme Court in the case of Pramati Educational and Cultural Trust (Registered) And Others v. Union of India And Others (supra). It is submitted that however, all those institutions claiming to be the minority educational institutions have to get a No Objection Certificate from the Competent Authority established/ declared by the appropriate authority and/or the National Commission. It is submitted that the Trust/ Society running such educational institutions cannot themselves proclaim the institutions/ schools run by them as minority educational institutions. It is submitted that number of factors are required to be considered while granting the No Objection Certificate to establish the minority educational institution. She has further submitted that therefore, in consonance with the provisions of the Act, 2004, for grant of No Objection Page 20 of 59 C/WPPIL/105/2018 CAV JUDGMENT Certificate to establish the minority institution in primary section, the State Government has designated the Director of Primary Education, Gandhinagar, as the Competent Authority to grant No Objection Certificate under Section 10 of the Act, 2004. It is submitted that the State Government has also issued the Resolution dated 11.04.2008 prescribing the procedure to be adopted for grant of No Objection Certificate to establish and run the minority educational institutions in primary section. It is submitted that the guidelines have been issued vide Resolution dated 11.04.2008 and the said guidelines are absolutely in consonance with the Guidelines issued by the Government of India for establishment of minority educational institutions. It is submitted that as none of the institutions run by the petitioner Trust/ Society have obtained the No Objection Certificate as required under Section 10 of the Act, 2004, and considering the Resolution issued by the State Government, only those institutions who are minority educational institutions and as such have obtained the No Objection Certificate for establishing minority educational institution under Section 10 of the Act, 2004, the State Government/ State authorities of the Education Department have allotted the students belonging to the weaker sections of the society for admission in their respective Page 21 of 59 C/WPPIL/105/2018 CAV JUDGMENT classes, under the provisions of the RTE Act. 11.2 It is vehemently submitted by Mrs.Manisha Lavkumar, learned Government Pleader that as such, the Trust and/or the Society whose majority of the trustees are belonging to minority cannot automatically and as a matter of right claim the minority educational institution status. It is submitted that majority of the trustees belonging to minority can be one of the ground and/or one of the relevant considerations for the No Objection Certificate and/or for grant of minority educational status under Section 10 of the Act, 2004. Therefore, while considering the issuance of No Objection Certificate to establish and run a minority educational institution, the appropriate competent authority and/or the National Commission is to be satisfied on the basis of the material/ evidence produced by the concerned Trust/ Society that the majority of the trustees of the Trust belong to religious minority community; that the educational institution has been established for the benefit of the minority community; and that the educational institution is being administered by the minority community. There must be some positive index to enable the educational institution to be identified with religious minorities. That there should be nexus Page 22 of 59 C/WPPIL/105/2018 CAV JUDGMENT between the means employed and the ends desired. The Trust Deed/ Articles of Association must reflect the object of subserving the interest of the minority community. Relying upon one of the Trust Deed, it is submitted that even object of the Trust is to run the Educational Institutions, irrespective of race, creed, religion etc. It is submitted that it has also been found that in most of the schools run by such minority Trusts/ Associations, approximately 75% students are admitted who do not belong to such religious minority. It is submitted that therefore, unless and until an appropriate application is made by the concerned Trust/ Society in the prescribed format and with relevant documentary evidence and the conditions as stated hereinabove are satisfied, the concerned Trust and/or the Society cannot claim the institution/ school run by it as minority educational institution.

11.3 It is further submitted by Mrs.Manisha Lavkumar, learned Government Pleader that in the present case, all the concerned Trusts/ Societies who have preferred the present Special Civil Applications have approached the Competent Authority by one-page application which is not in prescribed format and without any supporting documents, for grant of No Objection Certificate and the same have been rejected by the Page 23 of 59 C/WPPIL/105/2018 CAV JUDGMENT Competent Authority by observing that the applications are not in the prescribed format and/or no supporting documents have been produced. It is submitted that therefore, when none of the Trusts/ Societies who are running the educational institutions in the primary education and who claim the status of minority education institution and claim exemption from the applicability of the RTE Act, have obtained No Objection Certificate to establish and run the minority educational institution(s) either from the Competent Authority or the National Commission, as required under Sections 10 and 11 of the Act, 2004, they cannot claim exemption from the purview of the RTE Act.

11.4 It is vehemently submitted by Mrs. Manisha Lavkumar, learned Government Pleader that thousands of students belonging to weaker sections of society for whose benefits the RTE Act has been enacted and who have a fundamental right to education/ elementary education guaranteed under Article 21A of the Constitution and who are allotted to the respective schools - petitioner schools are waiting anxiously for getting admission. It is submitted that therefore, if those students belonging to the weaker sections of the society are not granted the admission, in that case, all Page 24 of 59 C/WPPIL/105/2018 CAV JUDGMENT those students belonging to the weaker sections of the society are likely to be affected. It is therefore requested to dismiss the present petitions and vacate the ad-interim relief granted earlier and direct the concerned Trusts/ Schools/ Educational Institutions to admit those students belonging to weaker sections who are allotted the concerned schools under the provisions of the RTE Act.

11.5 It is submitted by Mrs. Manisha Lavkumar, learned Government Pleader that Article 30(1) of the Constitution confers fundamental rights on every religious or linguistic minority to establish and administer a minority educational institution of their choice. It is submitted that however, as observed by the Hon'ble Supreme Court in a catena of decisions, the State Government as prescribed may impose reasonable restrictions for conferring status of "minority educational institution" in order to avail of the exemption of admitting 25% of the total strength of the admitted students in Class-I for primary education as stipulated under Section 12 of the RTE Act.

11.6 It is further submitted by Mrs. Manisha Lavkumar, learned Government Pleader that the National Commission for Page 25 of 59 C/WPPIL/105/2018 CAV JUDGMENT Minority Educational Institutions Act, 2004, is enacted to constitute a National Commission for Minority Educational Institutions and to provide for matters connected therewith or incidental thereto. It is submitted that under the Act, 2004, the Competent Authority appointed by an appropriate Government or the National Commission alone can issue No Objection Certificate for minority educational institution status. It is submitted that the Director of Primary Education is appointed as a Competent Authority by the State Government for issuance of No Objection Certificate to run the minority educational institution in primary section. It is submitted that the State Government, by Government Resolution dated 23.02.2006, designated the Director of Primary Education, as the Competent Authority under the Act, 2004 and vide Resolution dated 11.04.2008, it prescribed criteria to be adopted and the guidelines to be followed to grant status of a minority educational institution by the Competent Authority. It is submitted that the procedure prescribed is required to be followed and the application is required to be submitted in the prescribed format. It is submitted that the Policy framed by the State Government prescribing procedure to be followed for conferring status of minority educational institution would not be violative of the rights guaranteed to such religious or Page 26 of 59 C/WPPIL/105/2018 CAV JUDGMENT linguistic minority under Article 30(1) of the Constitution of India. It is submitted that the National Commission and/or the Competent Authority constituted by the State Government is well within its rights to examine the constitution and functioning of each petitioner institution and to verify whether these institutions are established by minorities with an object of promotion and upliftment of the members of the community for the minority. It is submitted that such scrutiny by a Competent Authority is neither violative nor takes away the right of the minorities to establish educational institutions as conferred under Article 30(1) of the Constitution. 11.7 It is further submitted by It is further submitted by Mrs. Manisha Lavkumar, learned Government Pleader that a minority institution, even if established prior to coming into force of the Act, 2004, in order to absolve itself of the rigors of Section 12 of the RTE Act, must approach the Competent Authority in the prescribed format and after due procedure procedure prescribed, for grant of status of minority educational institution and only after obtaining the NOC as per Section 10 or Section 11 of the Act, as the case may be.

Making above submissions and relying upon the Page 27 of 59 C/WPPIL/105/2018 CAV JUDGMENT following decisions of the Hon'ble Supreme Court as well as this Court, it is requested by learned Government Pleader to dismiss the present petitions:

(a) State of Kerala v. Very Rev. Mother Provincial

- (1970)2 SCC 417

(b) A.P.Christian Medical Educational Society v. Government of Andhra Pradesh And Another -

      (1986)2 SCC 667

      (c) P.A.Inamdar   And    Others   v.  State               of
      Maharashtra And Others - (2005)6 SCC 537

(d) Decision of learned Single Judge of this Court in the case of Atladara Kelavani Mandal & Ors. v.

State of Gujarat and others - 2004(1) GLH 383

(e) Decision of the Division Bench of this Court in the case of Shantiniketan Education Trust & Ors. v. State of Gujarat & Ors. - Letters Patent Appeal No.1731 of 2004 and allied matters decided on 15.01.2013

(f) Dayanand Anglo Vedic (DAV) College Trust And Management Society v. State of Maharashtra And Another - (2013)4 SCC 14

12. Heard learned counsel appearing for the respective parties at length. At the outset, it is required to be noted that the respective petitioner - Trusts/ Societies are running the educational institutions in the primary sections and the respective schools are allotted the students to the extent of 25% of their admission capacity belonging to weaker sections of the society, under the provisions of the RTE Act. It is reported that some of the institutions run by Gujarat Education Page 28 of 59 C/WPPIL/105/2018 CAV JUDGMENT Board of Catholic Institutions have admitted students under the RTE. However, most of the schools/ educational institutions have not admitted the students allotted to them and they are informed that if they do not admit the students, they shall face penal action under the provisions of the RTE Act. At that stage, challenging the said communication dated 19.05.2018 and other similar communications, the respective petitioners have preferred the present Special Civil Applications mainly contending, inter alia, that as the majority of the trustees of the Trusts/ Societies who are running educational institutions in the primary section are belonging to the religious minority, they have an absolute fundamental right to establish and administer/ run the schools of their choice as provided/ conferred under Article 30(1) of the Constitution of India. 12.1 It is also the case on behalf of the petitioners that therefore, the educational institutions in primary sections run by such Trusts/ Societies are not required to obtain any No Objection Certificate/ minority educational institution status under the provisions of the Act, 2004. It is also the case on behalf of the petitioners that therefore, being the minority institutions, they are exempted from the purview of the RTE Act.

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13. Therefore, while considering the aforesaid questions, few decisions of the Hon'ble Supreme Court on the right of the religious minority/ linguistic minority are required to be referred to and considered.

13.1 In the case of State of Kerala v. Very Rev. Mother Provincial (supra), the Hon'ble Supreme Court has observed and held as under:

"8. Article 30 (1) has been construed before by this Court. Without referring to those cases it is sufficient to say that the clause contemplates two rights which are separated in point of time. The first right is the initial right to establish institutions of the minority's choice. Establishment here means the bringing into being of an institution and it must be by a minority community. It matters not if a single philanthropic individual with his own means, founds the institution or the community at large contributes the funds. The position in law is the same and the intention in either case must be to found an institution for the benefit of a minority community by a member of that community. It is equally irrelevant that in addition to the minority community others from other minority communities or even from the majority community can take Page 30 of 59 C/WPPIL/105/2018 CAV JUDGMENT advantage of these institutions. Such other communities bring in income and they do not have to be turned away to enjoy the protection."

13.2 In the case of A.P.Christian Medical Educational Society v. Government of Andhra Pradesh And Another (supra), the Hon'ble Supreme Court was considering the following objectives mentioned in the Memorandum of Association of the Society who was claiming minority educational institution status and/or claiming the minority status:

"to establish, manage and maintain educational and other institutions and impart education and training at all stages, primary, secondary, collegiate, Post- graduate and doctoral, as a Christian Minorities' Educational Institution"

Another object was "to promote, establish, manage and maintain Medical Colleges, Engineering colleges, Pharmacy colleges, Commerce, Literature, Arts and sciences and Management colleges and colleges in other subjects and to promote allied activities for diffusion of useful knowledge and training." While considering the aforesaid objectives mentioned in the Memorandum of Association of the Society, and rejecting the claim of the said Society to start a minority educational institution, the Hon'ble Supreme Court has Page 31 of 59 C/WPPIL/105/2018 CAV JUDGMENT observed in Paragraphs-7 and 8 as under:

"7. Even while narrating the facts, we think, we have said enough to justify a refusal by us to exercise our discretionary jurisdiction under Art. 136 of the Constitution. We do not have any doubt that the claim of the petitioner to start a minority educational institution was no more than the merest pretence. Except the words, "As the Christian Minorities Educational Institutions"

occurring in one of the objects of the society, as mentioned in the memorandum of association, there is nothing whatever to justify the claim of the society that the institutions proposed to be started by it were 'minority educational institutions'. Every letter written by the society whether to the Central Government, the State Government or the University contained false and misleading statements. As we had already mentioned the petitioner had the temerity to admit or pretend to admit students in the first year MBBS course without any permission being granted by the Government for the starting of the medical college and without any affiliation being granted by the University. The society did this despite the strong protest voiced by the University and the several warnings issued by the university. The society acted in defiance of the University and the Government, in disregard of the provisions of the Andhra Pradesh Education Act, the Osmania University Act and the Regulations of the Osmania Page 32 of 59 C/WPPIL/105/2018 CAV JUDGMENT University and with total indifference to the interest and welfare of the students. The society has played havoc with the careers of several score students and jeopardised their future irretrievably. Obviously the so-called establishment of a medical college was in the nature of a financial adventure for the so-called society and its office bearers, but an educational misadventure for the students. Many, many conditions had to be fulfilled before affiliation could be granted by the University. Yet the society launched into the venture without fulfilling a single condition beyond appointing someone as Principal. No one could have imagined that a medical college could function without a teaching hospital, without the necessary scientific equipment, without the necessary staff, without the necessary buildings, and without the necessary funds. Yet that is what the society did or pretended to do. We do not have any doubt that the society and the so-called institutions were started as business ventures with a view to make money from gullible individuals anxious to obtain admission to professional colleges. It was nothing but a daring imposture and skul duggery. By no stretch of imagination, can we confer on it the status and dignity of a minority institution.

8. It was seriously contended before us that any minority, even a single individual belonging to a minority, could found a minority institution and had the right so to do under the, Constitution and Page 33 of 59 C/WPPIL/105/2018 CAV JUDGMENT neither the Government nor the University could deny that society's right to establish a minority institution, at the very threshold as it were, howsoever they may impose regulatory measures in the interests of uniformity, efficiency and excellence of education. The fallacy of the argument in so far as the instant case is concerned lies in thinking that neither the Government nor the University has the right to go behind the claim that the institution is a minority institution and to investigate and satisfy itself whether the claim is well founded or ill founded. The Government, the University and ultimately the court have the undoubted right to pierce the 'minority veil' with due apologies to the Corporate Lawyers and discover whether there is lurking behind it no minority at all and in any case, no minority institution. The object of Art. 30(1) is not to allow bogies to be raised pretenders but to give the minorities a sense of security and a feeling of confidence' not merely by guaranteeing the right to profess, practise and propagate religion to religious minorities and the right to conserve their language, script and culture to linguistic Minorities, but also to enable all minorities, religious or linguistic, to establish and administer educational institutions of their choice. These institutions must be educational institutions of the minorities in truth and reality and not mere masked phantoms. They may be institutions intended to give the children of the minorities the best general and professional Page 34 of 59 C/WPPIL/105/2018 CAV JUDGMENT education, to make them complete men and women of the country and to enable them to go out into the world fully prepared and equipped. They may be institutions where special provision is made to the advantage and for the advancement of the minority children. They may be institutions where the parents of the children of the minority community may expect that education in accordance with the basic tenets of their religion would be imparted by or under the guidance of teachers, learned and steeped in the faith. They may be institutions where the parents expect their children to grow in a pervasive atmosphere which is in harmony with their religion or conducive to the pursuit of it. What is important and what is imperative is that there must exist some real positive index to enable the institution to be identified as an educational institution of the minorities. We have already said that in the present case apart from the half a dozen words as a Christian minorities institution occurring in one of the objects recited in the memorandum of association, there is nothing whatever, in the memorandum or the articles of association or in the actions of the society to indicate that the institution was intended to be a minority educational institution. As already found by us these half a dozen words were introduced merely to found a claim on Art. 30(1). They were a smoke-screen." 13.3 In the case of P.A.Inamdar And Others v. State Page 35 of 59 C/WPPIL/105/2018 CAV JUDGMENT of Maharashtra And Others (supra), the Hon'ble Supreme Court has observed in Paragraphs 101 and 102 as under:

"101. In this background arises the complex question of transborder operation of Article 30(1). Pai Foundation has clearly ruled in favour of the State (or a province) being the unit for the purpose of deciding minority. By this declaration of law, certain consequences follow. First, every community in India becomes a minority because in one or the other State of the country it will be in minority - linguistic or religious. What would happen if a minority belonging to a particular State establishes an educational institution in that State and administers it but for the benefit of members belonging to that minority domiciled in the neighbouring State where that community is in majority? Would it not be a fraud on the Constitution? In St. Stephen's, Their Lordships had ruled that Article 31(1) is a protective measure only for the benefit of religious and linguistic minorities and "no illfit or camouflaged institution should get away with the constitutional protection" (para 28). The question need not detain us for long as it stands answered in no uncertain terms in Pai Foundation. Emphasising the need for preserving its minority character so as to enjoy the privilege of protection under Article 30(1), it is necessary that the objective of establishing the institution was not defeated.

"If so, such an institution is under an Page 36 of 59 C/WPPIL/105/2018 CAV JUDGMENT obligation to admit the bulk of the students fitting into the description of the minority community. Therefore, the students of that group residing in the State in which the institution is located have to be necessarily admitted in a large measure because they constitute the linguistic minority group as far as that State is concerned. In other words, the predominance of linguistic students hailing from the State in which the minority educational institution is established should be present. The management bodies of such institutions cannot resort to the device of admitting the linguistic students of the adjoining State in which they are in a majority, under the facade of the protection given under Article 30(1)." (para 153).

The same principle applies to religious minority. If any other view was to be taken, the very objective of conferring the preferential right of admission by harmoniously constructing Articles 30(1) and 29(2), may be distorted.

102. It necessarily follows from the law laid down in Pai Foundation that to establish a minority institution the institution must primarily cater to the requirements of that minority of that State else its character of minority institution is lost. However, to borrow the words of Chief Justice S.R. Das in Kerala Education Bill a 'sprinkling' of that minority from other State on the same footing as a sprinkling of non-minority students, would be permissible and would not deprive the institution of its essential character of being a minority institution determined by reference to that State as a unit."

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13.4 In the case of Dayanand Anglo Vedic (DAV) College Trust And Management Society v. State of Maharashtra And Another (supra), the Hon'ble Supreme Court has observed and held in Paragraph-34 as under:

"34. After giving our anxious consideration in the matter and in the light of the law settled by this Court, we have no hesitation in holding that in order to claim minority/linguistic status for an institution in any State, the authorities must be satisfied firstly that the institution has been established by the persons who are minority in such State; and, secondly, the right of administration of the said minority linguistic institution is also vested in those persons who are minority in such State. The right conferred by Article 30 of the Constitution cannot be interpreted as if irrespective of the persons who established the institution in the State for the benefit of persons who are minority, any person, be it non-minority in other place, can administer and run such institution."

13.5 Identical question came to be considered by the Division Bench of this Court in the case of Shantiniketan Education Trust & Ors. v. State of Gujarat & Ors. (supra), the Division Bench of this Court has observed in Paragraphs 14 to 16 as under:

"14. Considering the aforesaid decision of the Hon'ble Supreme Court and Article 30(1) of the Page 38 of 59 C/WPPIL/105/2018 CAV JUDGMENT Constitution of India, the view is taken by the learned Single Judge in the impugned judgment and order that while considering the claim by person or group of persons belonging genuinely to the group of Hindi linguistic as linguistic minority in the Gujarat State, it will be open for the officer concerned to examine the Constitution and functioning of each petitioner institutions and to find out as to whether the petitioner institutions are formed with an object to promote and preserve Hindi language, script and culture or not and if as the outcome of the inquiry it is found that the concerned petitioner institutions is formed with an object to promote and preserve Hindi as its language, culture and script, consequently status would be conferred upon such petitioners for such performance as minority institutions cannot be sustained. Such requirement would be violative of rights guaranteed to such linguistic minority persons guaranteed under Article 30(1) of the Constitution of India.

15. Now, so far as other observations made by learned Single Judge in the impugned judgment and order that while considering claim of the petitioners institutions as linguistic minority (Hindi) in Gujarat State, it will be open for the concerned authority of the State Government to examine facts of each institution and to ascertain as to whether such person or group of persons running the petitioners institutions are genuinely belonging to the Hindi Page 39 of 59 C/WPPIL/105/2018 CAV JUDGMENT linguistic group does not require any interference. As observed by the Hon'ble Supreme Court in the case of A.P. Christian Medical Educational Society (supra) the institution must be genuinely educational institution of the minorities. The Hon'ble Supreme Court has further observed and held as under:

The object of Article 30(1) is not to allow bogies to be raised by pretenders but to give the minorities a sense of security and a feeling of confidence not merely by guaranteeing the right to profess, practice and propagate religion to religious minorities and the right to conserve their language, script and culture to linguistic, minorities, but also to enable all minorities, religious or linguistic, to establish and administer educational institutions of their choice. What is imperative is that there must exist some real positive index to enable the institution to be identified as an educational institution of the minorities.

The Government, the University and ultimately the Court have the undoubted right to pierce the minority veil and to go behind the claim that the institution is a minority institution and to investigate and satisfy itself whether the claim is well founded or not.

16. As observed by the Hon'ble Supreme Court in the case of P. A. Inamdar (supra) the objective underlying Article 30(1) is to see the desire of minorities being fulfilled that their children should be brought up properly and efficiently and acquire eligibility for higher university education and go out into the world fully equipped with such intellectual attainments as will make them fit for entering the public services, educational institutions imparting Page 40 of 59 C/WPPIL/105/2018 CAV JUDGMENT higher instructions including general secular education. Therefore, objective underlying Article 30(1) of the Constitution of India is to enable such minority institutions religion or linguistic to give thorough, good, general education to children belonging to such minority. Therefore, a person or group of persons belonging genuinely to the group of Hindi linguistic claiming status as linguistic minority in the Gujarat State has to satisfy that their object is to establish such institution for the benefit of their own linguistic minority i.e. genuinely Hindi speaking persons so as to see that such Hindi speaking persons who are found to be in minority in the Gujarat State may compete with others. Therefore, the contention on behalf of the petitioners institutions that while claiming status as linguistic minority (Hindi) in the Gujarat State by establishing a institution, it need not be restricted predominantly for the benefit of genuinely Hindi speaking persons cannot be accepted. There objects should be to establish the institution predominantly for the benefit of persons belonging to such linguistic minority (Hindi speaking persons). To that extent, the impugned judgment and order passed by the learned Single Judge deserves to be modified."

13.6 In the case of Atladara Kelavani Mandal & Ors. v. State of Gujarat and others (supra), a learned Single Judge of this Court, after considering the various decisions of Page 41 of 59 C/WPPIL/105/2018 CAV JUDGMENT the Hon'ble Supreme Court on the point, in Paragraph-9 has observed as under:

"9. A question may arise as to what would be and could be the yardstick for the purpose of ascertaining the status of an institution as that of minority institution. In my view, there can be various considerations for coming to the conclusion as to whether an institution is a minority institution or not. Merely because it is formed by the person belonging to the minority, may be linguistic or religious, itself would not confer the status automatically as that of the minority institution. It is not necessary that a person belonging to the minority community or linguistic minority may not desire to make charity or render services to the public at large irrespective of the fact that the beneficiaries are belonging to such minority or not. If the belonging of the author of the Trust or belonging of the community of the author of the Trust or belonging of the community of the Trustees, who are to participate in the Trust, are to be treated as the only yardstick then in my view, it would frustrate the basic features or quality of human psychology or mankind in general. It is not necessary that a person belongs to a minority community and, therefore, he would be every time desired to see that his fund or property is used only for the community to which he belongs. There are number of cases where the persons belonging to minority have extended their valuable properties Page 42 of 59 C/WPPIL/105/2018 CAV JUDGMENT and services by various modes to all public, including non minority. There are also cases where the persons belonging to non-minority have rendered their valuable properties and services to non-minority as well as to minority. Therefore, a person is belonging to a minority community, may be religious or linguistic, cannot be the sole and absolute criteria for testing the institution as that of the minority institution. It may be one of the considerations, but, at the same time, major consideration, in my view, which would rather be one of the crucial tests, is the formation of the institution for the benefit of linguistic or religious minority. Fund may be coming from any source or who is the author of such Trust, or settler of the Trust, may be relevant, but not the only relevant consideration. What is more required to be considered is the desire of the settler of the Trust or the Trustees itself or the Deed of the Trust, which would speak for advancement, encouragement or for upliftment of such minority institution. If the Deed is silent on this aspects, then, it would be possibly difficult to reach to a definite conclusion that an institution belongs to a minority. The intention appears to be that if an institution is formed by the person belonging to the minority for the benefit of the minority. It may be that in addition thereof the benefits of the institutions are made available to non-minority but, at some where or at some place, the intention must be shown to make it apparent for encouraging or for Page 43 of 59 C/WPPIL/105/2018 CAV JUDGMENT advancement or for upliftment or even for preservation of culture or class of minority, may be in the field of education or any other field. Therefore, Mr.Mehta and Mr.Vyas are not right in contending that since the institution is formed by the majority of the persons belonging to the religious or linguistic minority, it would automatically be entitled to claim the status of minority. It is true that identification of such status may not be relevant but when a claim is based for invoking Article 30 of the Constitution, or wherever such provision of Article 30 is invoked, it would be for the authority concerned or the Court concerned to examine the facts of each case and to find out as to whether the institution is genuinely a minority institution or as in the language used by the Apex Court in the above referred judgement in the case of A.P. Christians Medical Educational Society (supra) that it is having a mask of phantoms for claiming the status of minority. Therefore, there cannot be any straight jacket formula for testing or examining the status of an institution as minority. It would vary from facts to facts and various considerations may be required to be examined and some of them are - the persons forming the institutions, the intention with which the institutions is formed, the beneficiaries of the institutions by and large and whether any intention is made express or implied for advancement, upliftment or preservation of minority, etc."

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14. There cannot be dispute that Article 30(1) of the Constitution of India confers a right upon the religious minorities to establish and administer the educational institutions of their choice. However, when such religious minorities establish the educational institution and claim the status of minority educational institution, they have to satisfy certain conditions/ criterion as per the law laid down by the Hon'ble Supreme Court in the aforesaid decisions. While establishing the minority educational institution, such Trust/ Association has to satisfy that (i) the educational institution was established by a member/ members of the religious minority community; (ii) that the educational institution was established for the benefit of the minority community; and (iii) that the educational institution is being administered by the minority community.

Therefore, it will always be open for the State Government and/or the appropriate authority to consider the Trust Deed, objectives mentioned in the Trust Deed and/or the Memorandum of the Society, the purpose for which the Trust is established; whether the majority of the trustees belong to religious minority; whether the educational institution is established and/or to be established for the benefit of such Page 45 of 59 C/WPPIL/105/2018 CAV JUDGMENT religious minorities; the funds received by such Trust, etc. Therefore, merely because the majority of the trustees belong to such religious minority, on that ground alone, they cannot establish the minority educational institution and/or they cannot claim the minority educational institution status. Therefore, while considering the application for No Objection Certificate to run the minority educational institution, it is for the Competent Authority established by the appropriate Government/ authority or the Minority Commission will have to hold the inquiry and considering the various factors referred to hereinabove, and only thereafter when the Competent authority or the National Commission is satisfied that the concerned Trust or the Society fulfills the requisite criterion for establishing the minority educational institution, then and then only such Trust shall be issued a No Objection Certificate to establish and run the minority educational institution and such authority shall grant the minority educational institution status. The procedure to be followed by the Competent Authority constituted by the State Government is as per the Government Resolution dated 11.04.2008. The concerned Trust has to apply to the Competent Authority in the prescribed format along with necessary relevant evidence such as Trust Deed/ Memorandum of Association etc. Detailed guidelines are issued Page 46 of 59 C/WPPIL/105/2018 CAV JUDGMENT by the Central Government also for determination of minority status, recognition, affiliation and related matters in respect of minority educational institutions under the Constitution of India. After taking note of and/or considering the various decisions of the Hon'ble Supreme Court, including the decisions of the Hon'ble Supreme Court in T.M.A. Pai Foundation v. State of Karnataka - (2002)8 SCC 481, DAV College v. State of Punjab - AIR 1971 SC 1731, decision of the Madras High Court in the case of T.K.V.T.S.S. Medical Educational and Charitable Trust v. State of Tamil Nadu - AIR 2002 Madras 42, decision of the Hon'ble Supreme Court in the case of Andhra Pradesh Christian Medical Association v. Government of Andhra Pradesh - AIR 1986 SC 1490, decision of the Hon'ble Supreme Court in the case of N.Ammad v. Emjay High School - (1998)6 SCC 674, and other decisions of the Hon'ble Supreme Court on the point, the National Commission for Minority Educational Institutions, Government of India, has observed thus:

"On a reading of Article 30(1) of the Constitution read with several authoritative pronouncements of the Supreme Court and the definitions of Minority Educational Institution in Section 2(g) of the Act and Section 2(f) of the Central Educational Institutions (Reservation in Admission) Act, 2006, the following facts should be proved for grant of minority status Page 47 of 59 C/WPPIL/105/2018 CAV JUDGMENT to an educational institution on religious basis:

(i) that the educational institution was established by a member/ members of the religious minority community;

(ii) that the educational institution was established for the benefit of the minority community; and

(iii) that the educational institution is being administered by the minority community.

The aforesaid facts may be proved either by direct or circumstantial evidence. There must be some positive index to enable the educational institution to be identified with religious minorities. There should be nexus between the means employed and the ends desired. If the minority educational institution concerned is being run by a trust or a registered society, then majority of the trustees of the trust or members of the society, as the case may be, must be from the minority community and the trust deed/ Articles of Association or any other document duly executed in this regard must reflect the objective of sub-serving the interest of the minority community. In the absence of any documentary evidence some clear or cogent evidence must be produced to prove the aforesaid facts. There is no bar to the members of other communities to extend their help to the member of a minority community to establish an educational institution of its choice."

Page 48 of 59 C/WPPIL/105/2018 CAV JUDGMENT 14.1 Therefore, the submission on behalf of the petitioner - Trusts / Societies that as the majority of the trustees of the Trust belong to the religious minority and therefore, automatically they have absolute right to establish the minority educational institution and/or such institution may get automatically the minority educational institution status, and/or they are not required to obtain the No Objection Certificate under the Act, 2004, cannot be accepted. The concerned Trust has to satisfy and/or fulfill the relevant criterion as mentioned hereinabove, more particularly, as mentioned in the guidelines issued by the Government of India referred to hereinabove and/or as mentioned in the Government Resolution of the State Government.

15. Now so far as the submission on behalf of the respective petitioner - Trust/ Society that in case of some of the Trusts/ Societies, they are already running the minority educational institution in the secondary / higher secondary section which are recognized by the appropriate authority granting recognition to run the secondary and higher secondary section and therefore, for primary section too, they are automatically entitled to run school as minority educational Page 49 of 59 C/WPPIL/105/2018 CAV JUDGMENT institution and are not required to obtain any No Objection Certificate under the Act, 2004, more particularly, under Sections 10 or 11 of the Act, 2004, is concerned, at the outset, it is required to be noted that the No Objection Certificate under Section 10 and /or 11 of the Act, 2004 is with respect to an educational institution and not with respect to the Trust/ Society. Section 10 of the Act, 2004, which pertains to minority educational institution provides that any person (may be a Trust or Society), desirous to establish a minority educational institution may apply to the Competent Authority for grant of a No Objection Certificate for the said purpose. As observed by the Hon'ble Supreme Court in the case of Sisters of St.Joseph of Cluny v. The State of West Bengal & Ors. - Civil Appeal No.3945/2018 etc. vide Judgment dated 18.04.2018, the functions and powers of the NCMEI, include, under sub-clause (f) of Section 11 of the Act, 2004, decisions as to all questions relating to the status of any institution as a minority educational institution and declaration of its status as such. Thus, considering Sections 10 and 11 of the Act, 2004, the applications for No Objection Certificate are for grant of minority status to an educational institution and therefore, any person, Trust or Society, desirous to establish a minority Page 50 of 59 C/WPPIL/105/2018 CAV JUDGMENT educational institution has to obtain a declaration of its status as such from the Competent Authority by way of a No Objection Certificate for the said purpose or from the NCMEI. 15.2 At this stage, It is required to be noted that even the primary schools are required to be established and registered / recognized under the provisions of the Gujarat Primary Education Act. Running a minority educational institution in secondary / higher secondary section by a Trust/ Society who also wants to run and establish primary section may be a relevant consideration for grant of minority educational institution status with respect to primary section. Therefore, any Trust/ Society who wants to establish, run and manage the minority educational institution in primary section shall have to get such status and/or No Objection Certificate to run the minority educational institution and/or get the minority educational status, as per Sections 10 and 11 of the Act, 2004. As held by the Hon'ble Supreme Court in the case of Sisters of St.Joseph of Cluny v. The State of West Bengal & Ors. (supra), No Objection Certificate to run the minority educational institution can be granted either by the Competent Authority declared by the appropriate authority as per Section 10 or by the National Commission as per Section Page 51 of 59 C/WPPIL/105/2018 CAV JUDGMENT 11 of the Act, 2004.

16. Now so far as the submission made by Shri S.I.Nanavati, learned Senior Counsel appearing on behalf of some of the petitioner - Trusts / Societies that in Section 10 of the Act, 2004, the word used is "may" and therefore, it is not mandatory for a Trust/ Society to obtain the No Objection Certificate under Sections 10 or 11 of the Act, 2004, is concerned, the same has no substance. In the case of Sisters of St.Joseph of Cluny v. The State of West Bengal & Ors. (supra), the Hon'ble Supreme Court has observed that any person desirous of establishing a minority educational institution after the Amendment Act, 2006, came into force must apply only to the Competent Authority for the grant of a No Objection Certificate for the said purpose. It is further observed in Paragraph-17 of the said Judgement that for the declaration of its status as a minority educational institution at any stage post establishment, the NCMEI would have the power to decide the question and declare such institution's minority status. Even in the case of Manager, Corporate Educational Agency v. James Mathew And Others (supra), the Hon'ble Supreme Court has specifically observed that Chapter-III deals with rights of minority educational Page 52 of 59 C/WPPIL/105/2018 CAV JUDGMENT institutions and under Section 10, whosoever desires to establish a minority educational institution, has to apply to the Competent Authority for a "No Objection Certificate". Therefore, any person who desires to establish a minority educational institution has to approach the Competent authority for the grant of a No Objection Certificate for the said purpose.

17. Now so far as reliance placed upon the decisions of the Hon'ble Supreme Court relied upon by learned counsel appearing on behalf of the respective petitioners referred to hereinabove in support of their submission that the certificate of declaration of minority status is only a declaration of an existing status and what is declared is a status which was already in existence is concerned, it is required to be noted that no one disputes that same and it cannot be disputed that religious minorities have an absolute right to establish and administer educational institutions of their choice. However, whether they fulfill the relevant criterion for declaring such institution as a minority educational institution or not, can be culled out and considering from the relevant materials like Trust Deed, objectives of the Trust etc., which have to be considered which the appropriate authority and now after the Page 53 of 59 C/WPPIL/105/2018 CAV JUDGMENT establishment of the Act, 2004, it is within the jurisdiction and mandate of the NCMEI or the Competent Authority declared by the appropriate Government to issue the certificate regarding the status of a minority educational institution and once the Commission thus issues a Certificate, it is a declaration of an existing status and thereafter only such minority educational institution can claim exemption from the purview of the RTE Act. Therefore, for the purpose of claiming exemption from the purview of RTE Act and/or any other exemption, obtaining the No Objection Certificate and/or declaration of status as a minority educational institution either from the NCMEI or from the Competent Authority under the provisions of the Act, 2004 is must.

18. The sum and substance of the above discussion would lead us to the following conclusions:-

(i) Article 30(1) of the Constitution of India confers a right upon the religious minority or linguistic minority to establish and administer educational institution of their choice;

(ii) However, at the time of establishment of a minority educational institution, such Trust/ Society / Association has to obtain a No Objection Certificate and/or get the declaration of their status as a minority educational institution from the Competent Authority as Page 54 of 59 C/WPPIL/105/2018 CAV JUDGMENT per Section 10 of the Act, 2004 or from the National Commission for Minority Educational Institutions;

(iii) Merely because the majority of the trustees of a Trust/ Society belong to religious minority, such Trust/ Society cannot claim automatically minority educational institution status and for claiming such status and/or a No Objection Certificate, such Trust/ Society has to fulfill the relevant criterion as per the guidelines issued by the National Commission for Minority Educational Institutions, Government of India, for determination of minority status, recognition, affiliation and related mattes in respect of minority educational institutions under the Constitution of India, which have been so issued after considering various decisions of the Hon'ble Supreme Court referred to hereinabove and/or as provided in the Government Resolution dated 11.04.2008 issued by the State Government;

(iv) Unless and until a Trust/ Society/ Association obtains a No Objection Certificate/ declaration of a minority educational institution in respect of an educational institution run by it under the Act, 2004, such educational institution cannot claim exemption from the purview of the RTE Act;

(v) The moment an educational institution run by such religious minority Trust/ Society gets the No Objection Certificate/ status of a minority educational institution, it shall be exempted from the purview of the RTE Act, as observed by the Hon'ble Supreme Court in the case of Pramati Educational and Cultural Trust (Registered) And Others v. Union of India And Page 55 of 59 C/WPPIL/105/2018 CAV JUDGMENT Others (supra).

19. Considering the aforesaid facts and circumstances of the case, the impugned communications dated 19.05.2018 and other similar communications from the respective District Primary Education Officers by which the concerned schools are directed to admit students allotted to them under the provisions of the RTE Act failing which penal action may be taken cannot be said to be illegal and/or arbitrary and/or infringing the rights of the concerned Trusts/ Societies to run such educational institutions.

20. At this stage, it is required to be noted that even most of the schools thereafter had approached the Competent authority for the issuance of No Objection Certificate(s) and except in one case, in case of most of the educational institutions, such applications are rejected on the ground that the same were not submitted in the prescribed format and with supporting documents. Therefore, it will always be open for the concerned Trusts/ Societies/ educational institutions to apply in the prescribed format and with all supporting documents as per the Government Resolution dated 11.04.2008, issued by the Education Department, State of Page 56 of 59 C/WPPIL/105/2018 CAV JUDGMENT Gujarat (which prescribes the procedure for grant of No Objection Certificate by the Competent Authority), and as and when such applications are made, the same are required to be considered by the Competent Authority on merits considering the Trust Deed/ objectives of the Trust and other relevant considerations mentioned in the Government Resolution dated 11.04.2008 issued by the State Government as well as the guidelines issued by the Union of India referred to above and in case such institutions are declared as minority educational institutions, they shall be exempted from the purview of the RTE Act, only thereafter.

21. In view of the above and for the reasons stated hereinabove, Special Civil Applications Nos.8322, 8325, 8326, 8327, 9398, 9402, 9401, 9399, 9397, 9403, 9400 and 9395, 8350, all of 2018, preferred by the respective Trust/ Society/Association and Special Civil Application No.8432/2018 preferred by the Gujarat Education Board of Catholic Institutions fail and the same deserve to be dismissed and are accordingly dismissed. Rule is discharged. Ad-interim relief, granted earlier, stands vacated forthwith in respective Special Civil Application.

Page 57 of 59 C/WPPIL/105/2018 CAV JUDGMENT 21.1 Consequently, Writ Petition (PIL) No.105/2018 is allowed and the respective educational institutions run by respondents No.3 and 4 of the petition are directed to admit the students allotted to them under the provisions of the RTE Act by the concerned District Primary Education Officers. Rule is made absolute in the above terms.

21.2 So far as Writ Petition (PIL) No.106/2018 is concerned, looking to the object and purpose of enactment of the RTE Act, i.e. to protect the fundamental rights of the students belonging to weaker sections of the society, the State Government/ concerned District Primary Education Officers are directed to see that those students belonging to the weaker sections of the society who initially applied but could not get the admission in the first round are admitted in the concerned schools for which they applied and were allotted under the provisions of the RTE Act within the 25% of the seats available for admission in the concerned schools. With this, Writ Petition (PIL) No.106/2018 stands disposed of.

sd/-

(M.R. SHAH, J) sd/-

(A.Y. KOGJE, J) Page 58 of 59 C/WPPIL/105/2018 CAV JUDGMENT FURTHER ORDER:

At this stage, Shri S.I.Nanavati, Senior Counsel appearing on behalf of some of the petitioners and Ms.Mamta Vyas, Shri Tushar L. Sheth, and Shri Saurabh M. Patel, learned advocates appearing on behalf of the respective petitioners, pray to continue the ad-interim relief granted earlier, which has been continued till date so as to enable the respective petitioners to approach the Hon'ble Supreme Court. The prayer is opposed by Ms.Manisha Lavkumar, learned Government Pleader appearing on behalf of the State submitting that there are approximately more than 1000 students belonging to the weaker section of the society, who are waiting for their turn to get admissions in the schools allotted to the institutions run by the respective petitioners and as such they have already lost their valuable two months. However, in the interest of justice and so as to enable the respective petitioners to approach the Hon'ble Supreme Court and obtain appropriate order, ad- interim relief granted earlier in respective petitions, if any, is directed to be continued till 13.08.2018.

sd/-

(M.R. SHAH, J) sd/-

(A.Y. KOGJE, J) sunil Page 59 of 59