Karnataka High Court
Gangolli Saraswathi Vidyalaya School ... vs The State Of Karnataka on 15 December, 2023
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO.13834 OF 2018 (EDN-RES)
BETWEEN:
SRI VENKATARAMANA SWAMY
VIDYAVARDHAKA SANGHA
KATAPADI
UDUPI DISTRICT-574 105
REPRESENTED BY ITS PRESIDENT
...PETITIONER
(BY SRI.M S PARTHASARATHI, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS
PRINCIPAL SECRETARY
GOVERNMENT PRIMARY &
SECONDARY EDUCATION
M S BUILDING, BENGALURU-560001
2. THE COMMISSIONER FOR
PUBLIC INSTRUCTIONS
PRIMARY & SECONDARY EDUCATION
NEW PUBLIC OFFICES
NRUPATHUNGA ROAD, K R CIRCLE
BANGALORE-560001
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3. THE DIRECTOR OF PUBLIC INSTRUCTIONS
SECONDARY EDUCATION
NEW PUBLIC OFFICES
NRUPATHUNGA ROAD, K R CIRCLE
BANGALORE-560001
4. THE DEPUTY DIRECTOR OF
PUBLIC INSTRUCTIONS
UDUPI DISTRICT
UDUPI-576101
5. THE BLOCK EDUCATION OFFICER
UDUPI
UDUPI DISTRICT-576101
...RESPONDENTS
(BY SMT. PRAMODHINI KISHAN, AGA FOR R-1 TO R-5 A/W
SMT. ANUKANKSHA KALKERI, HCGP FOR R-1 TO R-5)
THIS W.P. IS FILED UNDER ARTICLES 226 & 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE NOTIFICATION
DTD 18.6.2014 ISSUED BY THE R-1 VIDE ANNEXURE-L
AND QUASH THE ENDORSEMENT DTD 25.01.2018 PASSED BY THE
R-1 VIDE ANNEXURE-N.
THIS PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 14.12.2023, COMING ON FOR PRONOUNCEMENT OF
ORDER THIS DAY, THE COURT MADE THE FOLLOWING:
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ORDER
The captioned writ petition is filed seeking following reliefs:
"a) Quash the Notification dated 18.06.2014 bearing No.ED 27 MAHITI 2012 (Part-I) issued by the 1st Respondent vide Annexure-L.
b) Quash the endorsement dated 25.01.2018 bearing No.ED 2010 SOH 2016 passed by the 1st Respondent vide Annexure-N.
c) Pass any order of consequential relief or any other appropriate order or direction as this Hon'ble Court deems fit in the facts and circumstances of the case in the ends of justice and equity."
2. The petitioner-Society claims that it is running several educational institutions which are declared to be Linguistic Minority Institution. The petitioner-Society claims that the members of the Society are of Konkani speaking population. Therefore, Society claims that it has been declared to be the minority institution vide Government letter dated 15/16.02.1994. The grievance of the Society before this Court is that respondent No.1 vide impugned 4 endorsement dated 25.01.2018 as per Annexure-N placing reliance on the Notification dated 18.06.2014 issued by respondent No.1 has withdrawn the declaration granted in favour of the Society on the ground that the petitioner-Society does not have the strength of more than 25% of students having Konkani as the mother tongue in the institution. Therefore, petitioner-Society has knocked the doors of the Court questioning the Government Notification prescribing minimum percentage of linguistic students to retain the character of minority status. The impugned notification vide Annexure-L and consequent endorsement vide Annexure-N are challenged by the petitioner on the ground that the petitioner- Society is declared to be a minority institution way back in 1994 and therefore, the present petitioner-Society cannot be called upon to adhere to the requisite number of students from linguistic community in terms of fresh notification issued by the respondent No.1 vide Annexure-L. The petitioner- Society has also questioned the impugned notification vide 5 Annexure-L on the ground that Section 141 of Karnataka Education Act, 1983 (for short 'the Act') clearly contemplates that nothing in the Act or the Rules made under this Act shall apply to any Minority Educational Institution to the extent which is found to be inconsistent with the rights guaranteed under Article 30(1) of the Constitution of India. The plaintiff also claims that as per Article 30(1) of the Constitution, all the minority institutions whether based on religion or language shall have absolute right to establish and administer educational institution of their choice. On these set of grounds, the impugned notification vide Annexure-L and consequent endorsement as per Annexure-N withdrawing the status is called in question.
3. The respondent No.1/State has filed statement of objections in connected writ petition bearing W.P.No.2702/2014. The State has not filed statement of objections in the present captioned petition. 6
4. Learned counsel appearing for the petitioner reiterating the grounds urged in the captioned petition would vehemently argue and contend that respondent No.1 cannot withdraw the minority status on the ground that institution does not possess requisite number of students from the said community. He would vehemently argue and contend that while minority status was conferred on the petitioner -Society, no condition was imposed. Therefore, subsequent notification vide Annexure-L cannot be implemented against the petitioner-Society to review the minority status. Reliance is placed on Section 2(21) of the Act to contend that the institution should be established by person coming from a state linguistic minority and if education institution is established and administered by minority, the said right is insulated and protected under clause (1) of Article 30 of the Constitution of India. He would further contend that these impugned notifications are not enforceable without amending Education Act.
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5. Learned counsel has placed reliance on the following judgments:
1) Sri M.V.Dixit and Others vs. State of Karnataka and Others
- ILR 2004 KAR 3802;
2) Hindustan Times and Others vs. State of U.P. and Another
- (2003) 1 SCC 591;
3) Punjab State Warehousing Corporation, Chandigarh vs. Manmohan Singh and Another - (2007) 9 SCC 337.
6. Placing reliance on the above said judgments, he would vehemently argue and contend that if a school is a minority institution, the government only formally declares that the said institution is a minority institution. By issuing such a declaration, it merely recognizes the factual position that the institution was established and is being administered by a minority community either religious or linguistic. He would vehemently argue and contend that declaration is merely an open acceptance of legal character of the institution which must necessarily have existed antecedent of such declaration. Reliance is also placed on the judgment rendered 8 by the Apex Court in the case of N.Ammad vs. Manager, Emjay High School and Others1.
7. Referring to Section 2(21), he would further contend that the above provision does not lead to any ambiguity and it is quite clear that a minority status is to be determined on the basis of a person who has established the institution. It is the status of those persons administering an educational institution which would confer a status and that it is the only criteria to declare institution as a minority institution. He would further point out that if management is constituted by the members belonging to the minority, then it has to be considered as a linguistic minority. He would further emphasize that the definition under Section 2(21) of the Act commences with the word "means" and the Apex Court in the case of Feroze N.Dotivala vs. P.M.Wadhwani and Others2 would point out that the definition of the word beginning with "it means" cannot be further subjected to any interpretation. 1 (1998) 6 SCC 674 2 (2003) 1 SCC 433 9 Reliance is also placed on the judgment rendered by the Apex Court in the case of Bihar State Madrasa Education Board vs. Madrasa Hanfia Arabic College Jamalia & Others3. Referring to the principles laid down in the said judgment, he would point out that Apex Court has held that for running a minority institution, it is not necessary that majority of members should belong to that particular religious minority group or linguistic minority group. Placing reliance on S.K.Mohd. Rafique vs. Managing Committee, Contai Rahamania High Madrasah & Others4, he would further contend that the impugned notification vide Annexure-L requiring requisite number of students to retain a minority status does not augur well with the practice of educational institution maintaining a proper balance by admitting students from different communities. He would contend that the State cannot impose a condition that students from a particular 3 (1990) 1 SCC 428 4 (2020) 6 SCC 689 10 group are to be admitted in a sizeable number in a minority educational institution.
8. Referring to these judgments and grounds urged in the captioned petition, he would contend that respondents are not entitled to review the minority status by fixing the percentage of students and therefore, he would request this Court to quash the impugned notification issued by the respondent No.1/State vide Annexure-L and consequent endorsement withdrawing the declaration.
9. Learned AGA, however, has countered the grounds urged in the captioned petition and also the arguments addressed. Learned AGA by referring to definition of Sections 2(f) and 2(g) of National Commission for Minority Education would contend that it is well within the discretion of the Government to review the minority status. Placing reliance on para 153 of the judgment rendered by the Apex Court in the case of T.M.A.Pai Foundation and Others vs. State of 11 Karnataka5, would contend that Apex Court has clearly held that the aided linguistic minority education has to admit students belonging to linguistic minority to a reasonable extent to ensure that its minority character is preserved and that the objective of establishing the institution is not defeated. He would further contend that the condition that 2/3rd management should belong to the concerned linguistic community and 2/3rd students admitted in a linguistic minority education should belong to linguistic community is now relaxed from 75% to 25%.
10. Referring to Section 21 of the General Clauses Act, 1897, learned AGA submits that power to issue, to include, power to add to, amend, vary or rescind notification is permissible. Referring to Article 162, learned AGA would also point out that the said Article does confer power on the State subject to provisions of the Constitution and the Legislature of the State has power to make laws.
5 AIR 2003 SC 355 12
11. Heard learned counsel appearing for the petitioner and learned AGA appearing for the State. I have examined the records placed by both the parties.
12. Vide impugned notification at Annexure-L, the State Government has fixed the benchmark to admit students from a linguistic community at 25%. The petitioner-Society's claim is that State Government has no power to regulate and fix the minimum percentage of students from minority community to retain the character and status of linguistic minority. The object underlying Article 30(1) of the Constitution is to see the desire of minorities being fulfilled and that the children are brought up properly and effectively and that would enhance their skills to acquire eligibility for higher education. The twin objects sought to be achieved by Article 30(1) in the interest of either linguistic or religious minorities are, (i) to enable such to conserve its religion and language, and (ii) to give a thorough good general education to the children belonging to such minority. So long as the institution retains its minority 13 character by achieving and continuing to achieve the aforesaid two objectives, the institution would remain a minority institution.
13. In the present case on hand, though petitioner- Society is conferred with linguistic minority status which is a Konkani linguistic minority institution, it has only three students which is indicated in the endorsement vide Annexure- N issued by the respondent No.1 withdrawing the minority status on the ground that the Society does not possess students to retain the character of linguistic minority status.
14. In St. Stephen's College vs. University of Delhi6, the Apex Court held that Article 30(1) is a protective measure only for the benefit of the religious and linguistic minorities and "no ill fit or camouflaged institution can get away with a constitutional protection."
15. The Apex Court in T.M.A.Pai's case (supra) has made the following observations:
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(1992) SCC 558 14 "................If so, such an institution is under an 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 larger measure because they constitute the linguistic minority group as far as that State is concerned. In other words the pre-dominance of linguistic minority 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 states in which they are in a majority, under the façade of the protection given under Article 30(1)."
16. As regards the prescription of percentage in governing admissions in the minority educational institutions, it would be useful to extract the following observations made by the Apex Court in the same judgment which would be relevant and the same reads as under:
"........The situation would vary according to the type of institution and the nature of education that is being imparted in the institution. Usually, at the school 15 level, although it may be possible to fill up all the seats with the students of the minority group, at the higher level, either in colleges or in technical institutions, it may not be possible to fill up all the seats with the students of the minority group. However, even if it is possible to fill up all the seats with students of the minority group, the moment the institution is granted aid; the institution will have to admit students of the non minority group to a reasonable extent, whereby the character of the institution is not annihilated, and at the same time, the rights of the citizen engrafted under Article 29(2) are not subverted."
17. In the light of the law laid down by the Apex Court in the judgment cited supra, what can be inferred is that the State can prescribe percentage of minority community to be admitted in minority educational institution taking into account the population and educational needs of the area in which the institution is located. However, it does not mean that linguistic minority institution cannot admit non-minority students. To maintain a balance, the institution while preserving rights of minorities can admit non-minority 16 students. However, admitting non-minority students should not be violative of minority character of the institution. It is significant to mention here that Section 12C(b) of the National Commission for Minority Educational Institutions Act, 2004 (for short 'the NCMEI Act') also empowers the State Government to prescribe percentage governing admissions in the minority educational institution. Therefore, it is well within the domain of the State to prescribe percentage governing admission of students in the minority educational institution in accordance with the aforesaid principles of law enunciated by the Apex Court in the case of T.M.A.Pai's (supra) and P.A.Inamdar vs. State of Maharashtra7.
18. The emphatic point in P.A.Inamdar (supra) is that minority educational institution is primarily for the benefit of minority. Sprinkling of the non-minority students in the student population of minority educational institution is expected to be only peripheral either for generating additional 7 (2005) 6 SCC 537 17 financial source or for cultural courtesy. Thus, a substantive section of student population in minority educational institution should belong to the minority.
19. On reading of Article 30(1) of the Constitution conjointly with a stream of authoritative pronouncements of the Apex Court and bearing in mind the definition of Minority Educational Institution in Section 2(g) of the NCMEI Act, the following facts should be proved for grant of minority status to an educational institution or to review/recall the status:
(i) that the educational institution is established by a member/members of the religious minority community;
(ii) that the educational institution is established for the benefit of the minority community; and
(iii) that the educational institution is being administered by the minority community.
20. Therefore, in view of the above said criteria, an educational society/trust/institution to retain its character of 18 minority status must maintain 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.
21. The contention of learned counsel appearing for the petitioner that once an institution is declared as a minority institution, the same cannot be reviewed and recalled, cannot be acceded to. Even if an entity is declared as a linguistic minority institution entitling the rights envisaged under Article 30(1) of the Constitution of India, in the event there is a fundamental change of circumstances or if the State is apprised of suppression of facts, it is well within the authority or the State Government or the concerned competent authority to withdraw the status. However, it is settled that in administrative order involving civil consequences, has to be passed strictly in conformity with the principles of natural justice.
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22. This Court is also not inclined to accede to the arguments that since the institution is managed by minority community that in itself meets the requirement of Article 30(1). Under Article 30(1), the requirements of establishment and management have to be read conjunctively. The twin requirements have to be fulfilled and in absence of one, an institution cannot retain its minority status. The Apex Court has consistently held that the State while declaring institution as a minority educational institution, it merely recognizes the factual position that institution was established and is administered by the minority community. The declaration is merely an open acceptance of legal character of institution which must necessarily have existed antecedent to such declaration. Such a declaration is neither necessary nor decisive of the character of institution in question as a minority educational institution. It is ultimately for the Court to decide whether institution in question is a minority institution or not.
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23. In the present case on hand, the notification as per Annexure-L prescribing minimum percentage of linguistic minority students is called in question. In the light of the principles discussed supra, the State Government is vested with power to fix norms and conditions fixing 25% minimum benchmark is not found to be violative of Article 30(1). The petitioner-Society has failed to meet the requirements prescribed by the State Government under policy guidelines framed by the State Government for regulation or retaining the status of linguistic minority institution. The material on record clearly gives an indication that State has given sufficient opportunity to the institution to show cause as to why order conferring linguistic minority institution should not be withdrawn. The officials of respondent No.1 on spot inspection and after verifying the records, have found that petitioner-Society has only 1.88% of students belonging to linguistic minority, while the prescribed benchmark is 25%. This clearly violates the minimum requirement prescribed by 21 the State to retain the character of linguistic minority status. On verification of the records during inspection and investigation, the officials have found that petitioner-Society has failed to admit students belonging to linguistic minority community as per Rules and prescribed percentage governing admission during any academic year.
24. For the reasons stated supra, I am not inclined to interfere with the notification issued by respondent No.1 vide Annexure-L and the consequent endorsement vide Annexure- N. Accordingly, I pass the following:
ORDER The writ petition is dismissed.
The pending interlocutory application, if any, does not survive for consideration and stands disposed of.
Sd/-
JUDGE CA