Karnataka High Court
The Foundation Educational Trust vs State Of Karnataka on 26 April, 2018
Equivalent citations: AIR 2018 KARNATAKA 116, AIRONLINE 2018 KAR 35
Bench: Chief Justice, P.S.Dinesh Kumar
W.A.No.980/2018
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF APRIL, 2018
PRESENT
HON'BLE MR.JUSTICE DINESH MAHESHWARI, CHIEF JUSTICE
AND
HON'BLE MR.JUSTICE P.S.DINESH KUMAR
WRIT APPEAL NO.980 OF 2018 (EDN-RES)
BETWEEN:
THE FOUNDATION EDUCATIONAL TRUST
NO. 613, RANKA HEIGHTS
4TH MAIN, 7TH CROSS
DOMLUR LAYOUT
BENGALURLU - 560 071
REPRESENTED BY ITS TRUSTEE
MR. TERRY MATHEWS
... APPELLANT
(BY SRI SRIDHAR G., ADVOCATE)
AND:
1. STATE OF KARNATAKA
DEPARTMENT OF EDUCATION
BY THE SECRETARY
M.S. BUILDING, DR. AMBEDKAR VEEDHI
BANGALORE - 560001
2. THE COMMISSIONER FOR
PUBLIC INSTRUCTION
DEPARTMENT OF
PUBLIC INSTRUCTION
OFFICE OF THE COMMISSION
NRUPATHUNGA ROAD
BANGALORE - 560001
W.A.No.980/2018
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3. NATIONAL COMMISSION FOR
MINORITY EDUCATIONAL INSTITUTIONS
GATE NO. 4, 1ST FLOOR
JEEVAN TARA BUILDING
SANSAD MARG, PATEL CHOWK
NEW DELHI -110 001
... RESPONDENTS
(SMT. PRAMODHINI KISHAN, AGA FOR R1 - R2
SRI SANJAY NAIR, CGC FO R3)
---
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF
THE HIGH COURT ACT, PRAYING TO SET ASIDE THE ORDER
PASSED IN WRIT PETITION NO.5586/2018 DATED 12.02.2018.
THIS APPEAL COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP THIS DAY, THE CHIEF JUSTICE, DELIVERED
THE FOLLOWING:
JUDGMENT
Having heard learned counsel for the parties and having perused the material placed on record, we are not persuaded to consider interference in the order dated 12.02.2018, as passed in W.P.No.5586/2018, whereby, a learned Single Judge of this Court has declined the prayer for interim relief.
Shorn of unnecessary details, the relevant background aspects of the matter are that the petitioner/appellant has filed the writ petition aforesaid, questioning the vires of Section W.A.No.980/2018 -3- 12(1)(c) of the Right to Children to Free and Compulsory Education Act, 2009 ['the Act of 2009'] as also the Government Order dated 18.06.2014, being that of guidelines and procedure to declare the educational institutions run by the minorities as the linguistic/minority institutions. In the said writ petition, the petitioner has also made the prayer for interim relief with the submissions that, being a minority educational institution, the Act of 2009 does not apply to its case.
It has been an admitted position before the learned Single Judge that the petitioner/appellant had made an application to the respondent No.3 - National Commission for Minority Educational Institutions for being recognised as a minority educational institution. It was prayed that pending consideration of such an application, the respondents be restrained from directing the petitioner to make admissions as per the provisions of the Act of 2009. The order dated 08.09.2017, as passed by the Division Bench of this Court in the case of M/s. Sharada Vidyalaya vs. State of Karnataka and Others in Writ Appeal No.1512/2017, was referred to. W.A.No.980/2018 -4-
Per contra, on behalf of the Government, the decision of the Supreme Court in the case of Dayanand Anglo Vedic (DAV) College Trust and Management Society vs. State of Maharashtra and another: (2013) 4 SCC 14 was referred to and another order dated 08.01.2018 by a Division Bench of this Court in the case of Indus Trust vs. Amitha Srinivas and others in W.A.No.6644/2017 was also referred to wherein, it was held that until an institution has been granted the minority status, it was bound to admit the students assigned by the State Government pursuant to the Government Order dated 18.06.2014.
The learned Single Judge, after having examined the relevant provisions of the Act of 2009 as also Article 21-A of the Constitution of India and the referred decisions, has rejected the prayer for interim relief while, inter alia, observing that the petitioner/appellant has itself applied to the respondent No.3 - Commission for grant of no-objection certificate on the premise that it belongs to the minority group. The learned Single Judge has observed that only upon the Competent Authority granting such no-objection or when such W.A.No.980/2018 -5- no-objection having deemed to have been granted, the applicant would be entitled to commence and proceed with establishment of minority educational institution. The learned Single Judge was, obviously, of the view that until such status of minority educational institution was available with the petitioner/appellant, it was bound to comply with the provisions of the Act of 2009. The learned Single Judge, inter alia, observed and concluded as under:
"15. In the instant case, the petitioner is seeking status of a Minority Educational Institution on the premise that it belongs to Christian minority group. The Christian community is a community which is notified by the Central Government to be a minority community based on religion in terms of Section 2(f) of the Minority Educational Institutions Act, 2004. Petitioner has applied to the 3rd respondent Commission itself for grant of no objection Certificate on the premise that it is the competent authority under the Act constituted by the Central Government, as the petitioner is recognized to run the institution under a Central Act. Once the competent authority grants no objection certificate or when the competent authority is deemed to have granted the no objection certification to an applicant, the applicant would be entitled to commence and proceed with the establishment of Minority Educational Institution.
16. The expression 'applicant' is explained to be a person who makes an application under W.A.No.980/2018 -6- sub-section (1) of Section 10 for establishment of Minority Educational Institution. The expression 'no objection certificate' has been explained to mean a certificate stating therein that the competent authority has no objection for establishment of Minority Educational Institution. Once the Minority Educational Institution has been established with no objection granted for the establishment of Minority Educational Institution, such institution wherever applicable can seek affiliation to any University of its choice.
17. Thus, Section 10 squarely applies to an educational institution which is sought to be established as a Minority Educational Institution. As the petitioner has approached 3rd respondent Commission by way of an application as per Annexure-D and the 3rd respondent is yet to consider the same under the said provision for the purpose of granting no objection certificate for the establishment of Minority Educational Institution by the petitioner, at this stage, the petitioner cannot claim to have the status of a minority institution, it may be running an educational institution, but definitely not a Minority Educational Institution within the meaning of the Minority Educational Institutions Act, 2004. Therefore, the petitioner is bound by the provisions of the RTE Act.
18. In this regard, reference may be made to the latest judgment of the Division Bench of this Court in the case of Indus Trust Vs. Amitha Srinivas and Other in Writ Appeal No.6644/2017 & Writ Appeals No.6789-6792/2017, wherein the Division Bench of this Court has affirmed that, unless an educational institution establishes, that it has been granted 'minority status' and that it demonstrates that it is a minority institution, it is W.A.No.980/2018 -7- bound to comply with the provisions of the RTE Act.
In the circumstances, the interim order sought for by the petitioner is declined."
It has been pointed out in this case that the application made by the petitioner/appellant remains pending with the respondent No.3 - Commission and is to be considered on 05.07.2018.
Learned counsel for the appellant has strenuously argued that in the order dated 08.01.2018 in the case of Indus Trust (supra), the Division Bench of this Court has not taken into consideration the earlier decision of another Division Bench of this Court in the case of M/s.Sharada Vidyalaya (supra) and, therefore, the decision in the case of Indus Trust (supra) cannot be said to be a binding authority. Learned counsel would also argue that the status as being a minority is inherent and is not granted. In other words, according to the learned counsel, the recognition is only an acceptance of a legal character of the school being administered by a minority community and as such, the recognition by itself does not W.A.No.980/2018 -8- grant any status. Learned counsel has referred to a decision of the Hon'ble Supreme Court in the case of N.Ammad vs. Manager, Emjay High School and Others: (1998) 6 SCC 674.
In our view, at the stage of prayer for interim relief, the learned Single Judge has examined the matter in the proper perspective and has declined to grant the interim relief on relevant considerations.
In the case of M/s. Sharada Vidyalaya (supra), this Court only made a request to the Commission to determine the case of the institution concerned and rather this Court observed that the Commission was being empowered by the order to decide on the status. In the given situation, the Court made an interim arrangement that the Government would not insist upon admission of 25% of the total strength of the students as recommended under the Act of 2009. However, in the order dated 08.01.2018 in Indus Trust (supra), this Court has examined the other order of the learned Single Judge wherein, the school concerned was seeking not to admit the students assigned by the State Government on the strength of W.A.No.980/2018 -9- it being a minority institution. This Court observed that unless the school was able to demonstrate that it was a minority institution, it was not entitled to the benefit of other interim orders passed by this Court staying the operation of the Government Order dated 18.06.2014.
There cannot be any doubt about the principles of law enunciated by the Hon'ble Supreme Court in the referred decisions; but the fact of the matter remains that in the present case, the application made by the petitioner/appellant for grant of no-objection certificate to establish minority educational institution remains pending with the Commission.
Under the Scheme of the National Commission for Minority Educational Institutions Act, 2004, any person desirous of establishing a minority educational institution, may apply to the competent authority for grant of no-objection for the said purpose. Further to this, in view of the Constitution Bench decision in the case of PRAMATI EDUCATIONAL AND CULTURAL TRUST AND OTHERS vs. UNION OF INDIA AND OTHERS: AIR 2014 SCC 2114 (paragraphs 45 W.A.No.980/2018
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and 46) the Act of 2009 does not apply to the minority educational institution but then, such an exclusion obviously depends on the basic fact that the educational institution is in fact a minority educational institution.
As noticed, for the purpose of recognition of its status, the petitioner has moved the application that remains pending with the Commission. Until such application is granted, it is difficult to accept the submission of the petitioner/appellant that it be considered excluded from the purview of the Act of 2009. That being the position, the learned Single Judge cannot be said to have erred in declining to grant interim relief in the matter.
It goes without saying that any other step taken in the matter would remain subject to the final decision of the writ petition.
With the observations foregoing, this appeal stands dismissed.
W.A.No.980/2018
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However, we make it clear that the observations herein as also those occurring in the impugned order of the learned Single Judge are relevant only for the purpose of consideration of the prayer for interim relief and shall not have any bearing on the merit consideration of the writ petition.
The pending interlocutory application also stands disposed of.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE AHB