Andhra HC (Pre-Telangana)
Ummul Qura Educational Society And Ors. vs Government Of Andhra Pradesh And Ors. on 26 September, 2001
Equivalent citations: 2001(6)ALD250, 2001(5)ALT422
Author: B. Sudershan Reddy
Bench: B. Sudershan Reddy
ORDER
1. This batch of writ petitions may have to be disposed of by a common order since common questions of law arise for consideration and the subject matter involved requiring adjudication is the same.
2. All the writ petitioners herein claim to be the minority educational institutions. They are aggrieved by the action of the Government of Andhra Pradesh in not issuing the minority status certificates. The decision of the State government not to issue any minority status certificates to the engineering colleges established during the academic year 2001-2002 is impugned in these writ petitions. The inaction on the part of the respondent-government in disposing of the applications filed by the petitioners for grant of minority status certificates to the institutions in question is challenged.
3. Wide ranging submissions as to the nature, scope, width, ambit and content of the fundamental right guaranteed under Article 30(1) of the Constitution of India are made by the learned Senior Counsel and the learned counsel appearing on behalf of the petitioners.
4. Each of the submissions shall be dealt with appropriately.
Nature, width and content of Article 30 (1) of the Constitution:
5. Before adverting to the various issues projected during the course of hearing of this batch of writ petitions, it may be necessary to briefly recapitulate and notice the nature, scope and content of the right of minorities to establish and administer educational institutions. Article 30(1) of the Constitution of India confers two distinct rights upon the minorities; right to establish institutions of their choice - and right to administer them. The right to management of the affairs of educational institution is as important as right to create the institution. The guaranteed fundamental right ensures the management of the affairs of the institution free of external control providing freedom to the founders of the institution and their nominees to mould the institution as they think fit and in accordance with their ideas of how best the interest of the community in general and the established institution in particular will be served.
6. It is well settled that the right under Article 30(1) is subject to regulatory jurisdiction of the State. It is not a pact for non-administration of an educational institution. The regulatory measures, so long as they do not deprive the actual management and control on the educational institutions, do not by themselves constitute an infringement of fundamental right guaranteed by Article 30(1) of the Constitution of India.
7. It is well settled that the right to establish the educational institutions of their choice will necessarily include institutions imparting general secular education also apart from the right to establish such educational institutions for the purpose of conserving their religion, language and culture. For establishing and administering such institutions, the State cannot deny recognition "except upon the terms tantamount to the surrender of their constitutional right of administration of educational institutions of their choice......" But, there is no such thing as fundamental right to recognition by the State.
8. The absolute terms, in which Article 30(1) is enunciated, do not deprive the State to impose reasonable regulations especially when it affords recognition to an educational institution. True, the regulatory measures conceived cannot whittle down the very right guaranteed to establish and administer educational institutions. Such regulations which may lawfully be imposed as a condition for grant of recognition must be directed to making the institution, while retaining its character as a minority institution, effective as an educational institution. Such regulation must satisfy a dual test - the test of reasonableness and the test that it is regulative of the educational character of the institution and is conducive to making the institution as effective vehicle of education for the minority community.
9. At the same time, it is required to observe that the fundamental right to administration of minority educational institutions must be free of control. No doubt, the maintenance of standards of education is not a part of management as such. The right of the State to regulate education; educational standards and allied matters would in no manner have any direct bearing as such upon the management of the affairs of the minority educational institutions. While the management of the affairs of minority educational institutions is left to the managements, they may be compelled by the regulations to keep in step with others.
10. These propositions have been firmly established in re Kerala Education Bill, 1957, AIR 1958 SC 956; Sidhrajbhai v. State of Gujarat, AIR 1963 SC 540, Rev. Father W. Proost v. State of Bihar, and State of Kerala v. Mother Provincial, .
11. Very often arguments are advanced that the right conferred by clause (1) of Article 30, which is in absolute terms, is not subject to restrictions as in the case of rights conferred by Article 19 of the Constitution as an absolute right and excludes making of even reasonable regulations in respect of those institutions. Such arguments are misconceived. It has been repeatedly held by the Supreme Court that regulations have necessarily to be made in the interest of the institution as a minority educational institution. "The right to administer educational institutions can plainly not include the right to mal-administer. The State can prescribe regulations to ensure the excellence of the institution. Prescription of standards for educational institutions does not militate against the right of the minority to administer the institutions. Regulations made in the true interests of efficiency of instruction, discipline, health, sanitation, morality, public order and the like may undoubtedly be imposed. Such regulations are not restrictions on the substance of the right which is guaranteed: they secure the proper functioning of the institution, in matters educational...... Regulations may also contain provisions to prevent the diversion of funds of institutions to the pockets of those in-charge of management or their embezzlement in any other manner. Provisions for audit of the accounts of the institution would be permissible regulation. "(See: Ahmedabad St. Xavier's College Society v. State of Gujarat, ).
12. It is true, affiliation and recognition are, no doubt, not mentioned in Article 30(1) of the Constitution. But refusal to recognise or affiliate minority institutions unless they surrender the right to administer those institutions would have the effect of rendering the right guaranteed by Article 30(1) to be wholly illusory and indeed a teasing illusion. It would be totally impermissible to exact from the minorities in lieu of the recognition or affiliation of their institutions as a price, which would entail the abridgement of extinguishment of right under Article 30 (1). An educational institution can hardly serve any purpose or be of any practical utility unless it is affiliated to a University or is otherwise recognised like other educational institutions. The right to recognition or affiliation of a minority institution is an integral part of the fundamental right guaranteed by Article 30(1) of the Constitution of India. But, it does not mean that it is impermissible for the State to prescribe reasonable regulations and make it a condition precedent to accord recognition or affiliation to a minority institution.
13. In Ahmedabad St. Xavier's College Society v. State of Gujarat (supra) the Supreme Court speaking through Mathew, J., held:
"Recognition or affiliation is granted on the basis of the excellence of an educational institution, namely, that it has reached the educational standard set up by the university. Recognition or affiliation is sought for the purpose of enabling the students in an educational institution to sit for an examination to be conducted by the university and to obtain a degree conferred by the university. For that purpose, the students should have to be coached in such a manner so as to attain the standard of education prescribed by the university. Recognition or affiliation creates an interest in the university to ensure that the educational institution is maintained for the purpose intended and any regulation which will subserve or advance that purpose will be reasonable and no educational institution established and administered by a religious or linguistic minority can claim recognition or affiliation without submitting to those regulations. That is the price of recognition or affiliation: but this does not mean that it should submit to a regulation stipulating for surrender of a right or freedom guaranteed by the Constitution, which is unrelated to the purpose of recognition or affiliation. In other words, recognition or affiliation is a facility which the university grants to an educational institution, for the purpose of enabling the students there to sit for an examination to be conducted by the university in the prescribed subjects and to obtain the degree conferred by the university, and therefore, it stands to reason to hold that no regulation which is unrelated to the purpose can be imposed. If, besides recognition or affiliation, an educational institution conducted by a religious minority is granted aid, further regulations for ensuring that the aid is utilized for the purpose for which it is granted will be permissible. The heart of the matter is that no educational institution established by a religious or linguistic minority can claim total immunity from regulations by the legislature or the university if it wants affiliation or recognition; but the character of the permissible regulations must depend upon their purpose. As we said, such regulations will be permissible if they are relevant to the purpose of securing or promoting the object of recognition or affiliation. There will be borderline cases where it is difficult to decide whether a regulation really subserves the purpose of recognition or affiliation. But that does not affect the question of principle. In every case, when the reasonableness of a regulation comes up for consideration before the Court, the question to be asked and answered is whether the regulation is calculated to subserve or will in effect subserve the purpose of recognition or affiliation, namely, the excellence of the institution as a vehicle for general secular education to the minority community and to other persons who resort to it. The question whether a regulation is in the general interest of the public has no relevance, if it does not advance the excellence of the institution as a vehicle for general secular education as ex-hypothesi, the only permissible regulations are those which secure the effectiveness of the purpose of the facility, namely, the-excellence of the educational institutions in respect of their educational standards. This is the reason why this court has time and again said that the question whether a particular regulation is calculated to advance the general public interest is of no consequence if it is not conducive to the interest of the minority community and those persons who resort to it."
(Emphasis is of mine).
14. Of late, many institutions claiming themselves to be minority educational institutions within the meaning of Article 30(1) of the Constitution invoke the extraordinary jurisdiction of this court under Article 226 of the Constitution of India for a writ of Mandamus to recognise the institutions as minority educational institutions. Very often, appropriate interim directions are also sought to permit them to admit students into such institutions. While it is the duly of the court to view the provisions of the Constitution contained in Articles 25 to 30 in the context of historical background and uphold the object of Article 30(1) to preserve the rights of religious and linguistic minorities and place them on a secured pedestal and protect them from vicissitudes of political controversy. It is equally the duty of the court to see that the right guaranteed to the minorities is not hijacked by the vested interest. The privilege of establishing and maintaining of educational institutions of their choice is guaranteed only to religious and linguistic minorities. The special right is meant to give the minorities a sense of security and feeling of confidence. "The differential treatment for the minorities by giving them special rights is intended to bring about an equilibrium, so that the ideal of equality may not be reduced to a mere abstract idea but should become a living reality and result in true, genuine equality, an equality not merely in theory but also in fact." (See: Ahmedabad St Xavier's college Society v. State of Gujarat (supra).
15. The minority educational institutions as such may not enjoy any, privileges' as such. But the right to establish and administer educational institutions of their choice is a privilege conferred upon the religious and linguistic minorities. Such right to establish and administer the educational institution shall undoubtedly depend upon the proof of establishment of the institution by such religious and linguistic minorities. It is a condition precedent for claiming the right to administer the institution.
16. Chinnappa Reddy, J., in A.P.C.M.E. Society v. Government of A. P., , observed that "the government has the right to go behind the claim that the institution is a minority institution and has every right to investigate and satisfy itself whether the claim is well founded or ill founded. The government or the court have the undoubted right to pierce the 'minority veil' and discover whether there is lurking behind it no minority at all and in any case, no minority institution. 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, 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. Such institutions must be educational institutions of the minorities in truth and reality and not mere masked phantoms." "What is important and what is imperative is that mere must exist some real positive index to enable the institution to be identified as an educational institution of the minorities."
(Emphasis is of mine).
17. The claim of an educational institution as a minority educational institution cannot be accepted without minute scrutiny and proof of the establishment of such institution by the minorities. Mere claim is not enough. All such claims are to be minutely scrutinised and the State would be well within its right to insist for proof of the establishment of the institution by minorities. The right to administer and manage the affairs of such educational institutions depends upon the proof of establishment of institution by the minorities. The State is entitled to evolve such policy and create appropriate machinery either by executive or legislative act to scrutinise all such claims for recognition of educational institution as a minority educational institution. Such a policy and mechanism devised to minutely scrutinise such claims would not be violative of constitutional right guaranteed by Article 30 (1).
18. The issues that arise for consideration may have to be considered and judged in the light of the aforementioned legal and constitutional background.
Factual Matrix:
19. The All India Council for Technical Education (AICTE) has accorded approval for establishment of 57 private engineering colleges in the State of Andhra Pradesh for the academic year 2001-2002 including the petitioners-colleges. The Government of Andhra Pradesh by G.O.Ms.No. 75, dated 1-8-2001 having taken the approval granted by the AICTE for establishment of the private engineering colleges accorded permission for the establishment of private engineering colleges including the petitioners-colleges herein under Section 20 of the A. P. Education Act, 1982 (for short 'the Education Act'). Such permission accorded by the State is subject to the condition that the colleges shall abide by the rules and regulations issued by the government from time to time in respect of the functioning of the colleges. The managements of the colleges are required to seek affiliation either to Jawaharlal Nehru Technological University, Hyderabad or to the University in whose territorial jurisdiction the colleges are located. It is clear that all the petitioners-colleges have come into existence with effect from 1-8-2001 only.
20. It is evident from the record that the State government by its letter dated 29-11 -2000 had sent No Objection Certificate for establishment of engineering colleges in the State for the academic year 2001-2002 an 2002-2003. In all, the State Government granted No Objection Certificate for 61 engineering colleges spread over at 39 approved locations in the State. The recommendation was required to be made in order to enable the AICTE to consider the applications for grant of approval for establishing the engineering colleges. At that stage, the State government could not have recommended or shown any particular college as belonging to any particular minority community.
21. It is an admitted fact that all the petitioners herein have submitted their respective applications for grant of recognition as minority educational institutions though there is some controversy that some of the applicants are stated to have not submitted the applications in the prescribed form. It may not be necessary to go into that particular aspect of the matter. It is also an admitted fact that so far the 'Recognition Authority' vested with the power to accord recognition to the institutions as minority educational institutions has not granted any such certificate to any of the petitioners-colleges.
22. The Government of Andhra Pradesh in exercise of the powers conferred by Section 99 of the Education Act made the rules relating to establishment, recognition and regulation of minority educational institutions under the private managements. The rules are notified vide G.O.Ms.No. 526, Education (Rules), Dated 21-12-1988 and known as 'THE ANDHRA PRADESH MINORITY EDUCATIONAL INSTITUTIONS (ESTABLISHMENT, RECOGNITION AND REGULATION) RULES, 1988' (for short 'the Recognition Rules').
23. At the outset, it is required to observe that the constitutional validity of the rules as such is not challenged in any of the writ petitions.
24. The Government of Andhra Pradesh having regard to the number of representations by individuals and institutions belonging to minority community and in order to remove such difficulties being faced by the minority educational institutions, issued orders in G.O.Ms.No. 23, Minority Welfare (M&R) Department, dated 10-3-1999. Certain clarifications are made as to the definition of religious minorities educational institutions. The Principal Secretary/ Secretary to Government in Minorities Welfare Department or his nominee is specified as the authority to, grant minority status certificates to the minority educational institutions. The governmental order inter alia prescribes a period of thirty days for disposal of applications after the receipt of the applications.
25. It is required to appreciate that some of the colleges including the petitioners-colleges herein even at the threshold stage of sending of No Objection Certificate by the State Government for establishment of engineering colleges claimed the institutions sought to be established by them as minority educational institutions. The Government thought it necessary to verify the genuineness of such claims. The government, in order to verify the genuineness of the claims of the institutions that are seeking recognition as minority educational institutions and to verify the authenticity of the records produced by the educational institutions before according necessary minority status to such institutions thought it fit to constitute a committee to verify the genuineness of all the educational institutions who applied for minority category and recognition as minority educational institutions on merits.
26. All the petitioners herein submitted their claims before the said committee for recognition as minority educational institutions. The committee is stated to have made an elaborate enquiry, verified the records and also interviewed the applicants personally. The committee examined the claims of the petitioners in accordance with the statutory rules (recognition rules). The committee is stated to have made its own recommendations to the State government. It may not be necessary to notice the details of the recommendations and no comment be made about the recommendations, as any such comment from this court, at this stage, may cause avoidable prejudice.
27. The government is seized of the matter. The government in view of the observations and recommendations of the committee thought it fit to make a detailed examination of the requirements of minority institutions linked to population and also various other relevant parameters to decide the issue. The government thought it fit to make a thorough probe into the whole issue with reference to the various orders passed by the Apex Court, the government itself etc. The fact remains that the request of the petitioners for recognition as minority educational institutions is under serious consideration of the authorities. No decision as such is yet taken by the authorities concerned. The petitioners are aggrieved by the inaction.
28. Learned Senior Counsel Sri E.Manohar and Sri S.R.Ashok led the submissions made on behalf of the petitioners followed by the learned counsel Sri Nooty Ramamohana Rao, Sri A.Ramanarayana, Sri S.Niranjan Reddy and Sri S.Sriram.
29. Sri E.Manohar contended that the government after thorough investigation and enquiry even at the stage of granting No Objection Certificate (NOC) and forwarding the same to AICTE for granting permission for establishment of engineering colleges by the petitioners has accepted the minority status of the colleges as Christian Minority colleges. The petitioners have satisfied all the prescribed requirements and conditions. The issuance of minority status certificate is purely a ministerial one. The inaction on the part of the respondent government in issuing the certificate of minority status to the petitioners, according to the learned Senior Counsel, is an arbitrary one and the same has resulted in infringement of the guaranteed fundamental right of the petitioners to establish and administer minority educational institutions of their choice;
30. Sri S. R.Ashok, learned Senior Counsel would contend that there is no requirement in law to evaluate each and every institution established by a recognised minority "educational agency". It is submitted that once the agency is recognised as of a minority, there is no further need to evaluate every time whenever such agency establishes an institution. It is contended by the learned Senior Counsel that after all it is an educational agency, which runs and manages the educational institution. It is submitted that the educational agencies, which have established the colleges in question are already recognised as of minority and all the educational institutions established by such agencies should be automatically granted the status of minority educational institutions.
31. The submissions made by Sri A.Ramanarayana, learned counsel for the petitioners are more or less similar. However, Sri Ramanarayana would contend that the competent authority had already granted recognition under Rule 7(5)(a) of the Establishment of Minority Educational Institutions Rules, 1988 and the same would be valid for this academic year enabling such institutions to make 50% of admissions into first year engineering courses.
32. Sri Nooty Ramamohana Rao would contend that there is no dichotomy between the "educational agency" and the management of educational institution as such, since Section 20-A of the Andhra Pradesh Education Act, 1982 prohibits the establishment of educational institutions by individuals. It is the society which establishes the educational institution and once the agency is recognised as a minority one, there is no further need to make an enquiry into the minority status of the educational institution established by such agency.
33. Sri S.Niranjan Reddy, contends that the government has decided, as a measure of policy, not to give minority status certificate to any of the institutions for the academic year 2001-2002 and the said decision not only adversely effects the rights of the petitioners, but also tantamount to infringement of the guaranteed constitutional right. The respondents have ostensibly taken such a decision on the ground of paucity of time. It is further submitted that the admissions into the petitioners colleges are regulated by the Act 5 of 1983 and Rules framed there under. The rules framed for the grant of recognition as minority educational institution are limited only for the purpose of consideration of the application for grant of such status. The direction to the Convenor to allot students into the petitioners colleges by treating them as non-minority educational institutions is not only arbitrary, but also ultra vires.
34. Sri S.Sriram contends that the government's policy decision is in the nature of declaration of holiday on Article 30(1) of the Constitution of India amounting to keeping the guaranteed fundamental right in suspension. Anesthecisation of right guaranteed under Article 30(1) of the Constitution is impermissible.
35. All the learned counsel would contend that the inaction on the part of the State in considering and disposing of the applications for recognition had resulted in infringement of guaranteed fundamental right. The Committee constituted for the purpose having screened the applications ought to have taken an appropriate decision in the matter to enable the institutions to admit the students belonging to the minorities in their colleges.
36. The facts in detail in each of the writ petitions are not required to be noticed except when it is necessary to deal with such specific contentions as may have been urged.
37. The orders of the State government issued in G.O.Ms.No. 23, dated 10-3-1999 and the orders issued in G.O.Ms.No. 29, dated 30-7-2001 are to be read to be in tune and inconformity with the statutory rules, viz., recognition rules. The said governmental orders are in addition to and supplementary in nature to the recognition rules. The said governmental orders in no manner supersede the statutory rules. It is too elementary to reiterate the proposition that the executive and administrative instructions can never supersede the statutory rules. In case of any conflict the executive or administrative instructions shall yield to the statutory rules. The period of one month prescribed for the disposal of the applications, in my considered opinion, does not confer any enforceable right upon any of the applicants for disposal of their applications for grant of recognition within one month, since the recognition rules grant ordinarily a period of three months for disposal of the applications. At any rate, an applicant is not entitled for any automatic recognition in case of failure on the part of the authority concerned to dispose of the application within the prescribed period.
38. At any rate, neither G.O.Ms.No. 23, dated 10-3-1999 nor G.O.Ms.No. 29, dated 30-7-2001 confers any additional enforceable rights upon any of the applicants claiming recognition as minority educational institution. They are supplemental to the recognition rules. Those governmental orders in no manner alter the statutory rules. They have no effect of varying, amending or altering the statutory rules. The governmental instructions do not supplant the Rules,
39. Sri S.R.Ashok, learned Senior Counsel, however, contended that the government's power to issue such instructions vide G.O.Ms.No. 23, dated 10-3-1999 is traceable to Section 102 of the Education Act. The instructions so issued are statutory in nature and enforceable. The learned Senior Counsel relied upon the decision of the Supreme Court in K.P. Varghese v. I.T.O., . It is difficult to accept the submission for the reason; firstly, the Recognition Rules do not create any difficulty whatsoever in giving effect to any of the provisions of the Education Act and secondly, Section 102 of the Education Act does not confer any jurisdiction upon the Government to issue any circulars or instructions contrary to the statutory rules framed under the Education Act. The circulars issued by the Central Board of Revenue under Section 109 of the Income Tax Act were held to be binding on all officers and persons employed in execution of the Act in K.P. Varghese (supra). K.P. Varghese is not an authority for any proposition that the government having framed the rules is entitled to issue instructions from time to time contrary to the statutory rules.
40. The claim of each of the applicants is required to be considered only in accordance with the recognition rules.
Nature and scope of Recognition Rules:
41. In the circumstances, it may be necessary to notice the recognition rules in somewhat detail to decide as to whether any educational agency as such at all could be recognised or conferred with the status of minority educational institution.
42. Rule 2 (d) of the Recognition Rules defines the Educational Agency. Educational Agency means, the Society/Trust/Committee, Mission/Church/Wakf Board and the like managing any of the educational institutions coming within the ambit of the Act.
43. Rule 2(e) defines Educational Institution. Educational Institution means, any educational institution coming within the ambit of the Act which is managed by a minority community (both religious and linguistic) as defined in Article 30 of the Constitution of India.
44. Rule 2(i) defines Recognition Authority. Recognition Authority means the statutory authority empowered to accord permission to the educational institutions as minority educational institutions (both religious and linguistic) basing on the guidelines issued by the Government from time to time and issue a certificate to that effect.
45. Sub-rule (2) of Rule 2 provides that words and expressions used in these rules, but not defined herein shall carry the same meaning as are assigned to them in the Act.
46. Rule 6 prescribes the procedure for grant of recognition of educational institutions as minority institutions. Sub-rule (4) of Rule 6 mandates that only the educational institution will be recognised by the competent authority as the minority institution and no management sponsoring the institution shall be recognised as of minority. It reads:
"The Competent Authority will recognise the educational institution as the minority institution and will not recognise the management sponsoring the institution as of minority."
47. It is contended that it is the educational agency, which establishes the educational institution, and once the educational agency establishing an institution is found to be of minority, all the educational institutions established by such agency shall be automatically recognised as minority institutions.
48. The petitioners in W.P.Nos. 18397, 18428, 18429, 18540, 18574, 18577 and 18668 of 2001 claim that the educational agencies have already established number of educational institutions and those institutions are already recognised as minority educational institutions and, therefore, the present engineering colleges established by them are entitled for automatic recognition as minority educational institutions. The submission, in my considered opinion, is totally misconceived. Some of the petitioners have produced the certificates in support of their submission. But those certificates issued by the Recognition Authority do not support the claim of the petitioners. The certificates are issued not in favour of the educational agencies but in favour of the educational institutions established and managed by the educational agencies concerned. The assertion that the educational agencies are already recognised as minority educational institutions, is factually incorrect. It is brought to the notice of the court by the learned Government Pleader for Higher Education that in the State of Andhra Pradesh so far no educational agency as such is recognised as a minority educational institution. In fact, there cannot be any recognition of educational agency under the recognition rules. Any such recognition would be ultra vires the recognition rules. The educational institution, for the purpose of rules, means the institution coming within the ambit of the Education Act, which is managed by a minority community as defined in Article 30(1) of the Constitution of India. According to the Education Act, minority educational institution means a private educational institution of its choice established and administered by a minority, whether based on religion or language, having the right to do so under clause (1) of Article 30 of the Constitution of India.
49. Rule 4 of the Recognition Rules provides the criteria for recognition of educational institutions as Minority Educational Institutions. Rule 4 reads:
4. Criteria for recognition of educational institutions as Minority Educational Institutions :-- Any private educational institution established and administered by a minority community whether based on religion or language (having the right to do so under clause (1) of Article 30 of the Constitution of India) and recognised as such by the Recognition Authority mentioned under Rule 3 basing on the following guidelines, is entitled to be recognised as minority educational institution:
(1) Mere naming of educational institution to mimic as of belonging to minority community will not entitle the institution to be recognised as minority educational institution.
(2) The educational agency managing the institution should have been registered under the Societies Registration Act, 1860 or the Andhra Pradesh (Telangana area) Societies Registration Act, 1350 Fasli, as the case may be, as a society/ trust/ committee and the like. It shall not be a single individual's management.
(3)The managing committee of the educational agency and the other official members should be wholly/substantially named by representatives of the minority community (religious or linguistic) to which they claim to belong.
(4) The aims and objects of the educational agency incorporated in its bye-laws should clearly specify that it is meant to primarily to serve the interests of the minority community (religious or linguistic) to which they claim to belong, in the letter and spirit.
(5) A minority community can establish an educational institution in accordance with the provisions of the Education Act and the Rules made there under, unless of course the institution is meant exclusively for imparting instruction in religious tenets or teachings of the language of the minority concerned.
(6) The educational institutions established and managed by the minorities (religious or linguistic) shall serve the educational needs of their community to which they claim to belong by making substantially high percentage of admissions with the candidates belonging to the concerned community.
(7) An educational institution which, on account of receiving State Funds as aid, cannot claim all the privileges of a minority educational institution. Such of the institutions which are receiving grant-in-aid or are desirous of getting grant-in-aid shall be entitled for recognition as minority educational institutions subject to the condition that the Government shall have power to order inspection of such institutions.
(8) An educational institution receiving 100% grant, that is, wholly maintained by State Funds cannot provide any religious instruction and cannot compel any one to take part in any religious instruction or to attend any religious worship that may be conducted in such institution.
50. It would be clearly evident from a plain reading of the Rules that only such of the private educational institutions established and administered by a minority based on religion or language alone are entitled for recognition as minority educational institutions. The mandatory requirement is that the educational agency itself predominantly must consist of minorities and the educational institutions established by such educational agencies are managed by the minority community. Only such minority educational institutions are entitled for recognition under the Recognition Rules. The recognition is to be granted as mandated by Rule 6 (4) to the educational institution and not to the management sponsoring the institution.
51. It is not as if an educational agency consisting of minorities can establish only a minority educational institution. It can as well establish an educational institution, which may not be a minority educational institution. An educational institution established and managed by the minorities to serve the educational needs of their community alone is entitled for recognition as minority educational institution. Not every educational institution established by an educational agency and the management consisting of minorities is entitled for recognition as a minority educational institution.
52. The dichotomy between the educational agency and the management on the one and Educational Institution on the other is apparent and they are different entities. The same has been recognised by this court in Y. Philomena v. Prl Secretary to Government, .
53. The learned Senior Counsel Sri S.R.Ashok, however, suggested interpretation of Rule 6(4) of the Recognition Rules by substituting the word 'educational agency' in the place of 'educational institution'. Such an interpretation, according to the learned Senior Counsel, is not only permissible, but also requires to avoid inconvenience and hardship to such of those educational agencies which have already established number of educational institutions that are recognised as minority educational institutions. By such reading, according to the learned Senior Counsel, the ritual of applying every time for recognition of an educational institution as a minority one could be avoided. The learned Senior Counsel would place reliance upon the decisions in K.P, Varghese v. ITO (supra) and C.I.T. v. Gotia, , in support of his contention that such an interpretation by modifying the language used in the statue is permissible. It is true if a strict and literal construction of the statute leads to an absurd result, i.e., a result not intended to be subserved by the object of the legislation ascertained from the scheme of the legislation, then, if another construction is possible apart from the strict literal construction, then, that construction should be preferred to the strict literal construction. But where the plain literal interpretation of a statutory provision does not result in any unjust result, the court is not entitled to modify or substitute the language used by the legislature.
54. A plain reading of the scheme and the rules and Rule 6 (4) in particular, in my considered opinion, does not result in any unjust result. On the other hand, the distinction between the 'educational agency' and the 'educational institution' is clearly maintained through out the scheme of the Education Act and the Recognition Rules.
Whether Recognition Rules do not provide for any enquiry?
55. It is submitted that the recognition rules do not contemplate any enquiry for the purpose of granting recognition particularly in case where the educational agency concerned has been recognised as a minority one. The submission is misconceived. We have already noticed that the Rule 4 of the Recognition Rules prescribes the criteria for recognition of educational institutions as minority educational institutions. Rule 5 mandates making of application in the prescribed form to the Recognition Authority accompanied by the documents in support of its claim as a minority educational institution. Rule 6 prescribes the procedure for grant of recognition of educational institutions as minority institutions. The Recognition Authority on receipt of the applications is entitled to inspect the educational institutions personally or may send copies of the applications, to any of his Subordinate Inspecting Officers, directing them to inspect the respective educational institutions and send the inspection report. The Recognition Authority is required to thoroughly examine the application basing on the documentary evidence available and the inspection report and he is entitled to take a decision either according recognition or rejecting the application for recognition. The Recognition Authority shall accord recognition to the institution by issuing a certificate in Form-II only if he is of the opinion that the educational institution deserves such recognition. It is not possible to accede to the contention that the government dispensed with the formalities of enquiry by constituting a Committee under G.O.Ms.No. 29, dated 30th July, 2001. The Committee so constituted is only to assist the Recognition Authority.
56. The Supreme Court in St. Stephen's College v. The University of Delhi, , observed "that there must exist some positive index to enable the educational institution to be identified with religious or linguistic, minorities. Article 30(1) is a protective measure only for the benefit of religious and linguistic minorities and it is essential to make it absolutely clear that no ill-fit or camouflaged institution should get away with the constitutional protection."
(Emphasis is of mine).
57. A Full Bench of this court in Society of St.Ann's v. Secretary to Government (Education), (FB), observed that "a minority community is equally bound by the provisions of the Education Act, 1982 and the rules made there under which regulate the establishment and administration of educational institutions and they are also bound by the policy decisions, if any, taken by the State government." Admittedly, the petitioners herein have yet to obtain the recognition to their educational institutions from the Recognition Authority as minority educational institutions. The minority character of the educational institutions established by the petitioners is yet to be recognised by the Recognition Authority.
58. It is necessary to hold that no educational institution, for whatever purpose, may be considered as a minority educational institution unless a certificate is issued according recognition in Form-II. There is no other mode or method for recognising an educational institution as a minority institution. The rules are comprehensive in their nature. The scheme is a self-contained code by itself. The certificate so issued is valid for a period of five academic years. The certificate recognising the institution as a minority one shall, however, relate back to the date of its establishment. Such institutions acquire the status of minority institutions from the date of their establishment.
Interpretation of Rule 7 (5) (a) of the Recognition Rules:
59. It is sought to be contended as if the Government granted permission to the petitioners-institutions to be established as minority educational institutions and, therefore, they shall be deemed to have been accorded minority status for the purpose of making admission of students subject to obtaining of certificate of recognition as minority institutions from the Competent Authority. This submission based upon Rule 7 (5) (a) of the Recognition Rules is again misconceived. None of the educational institutions of the petitioners herein has been permitted to be established with the status of minority educational institution. The No Objection Certificate sent by the government through its proceedings dated 29-11-2000 for establishment of engineering colleges in the State including the petitioners herein is in the nature of recommendation to enable the AICTE to consider the applications for grant of approval for establishing engineering colleges. Obviously, the State government had not recommended or shown any particular college as belonging to any minority community. The State government at that stage, in my considered opinion, could not have taken any such decision.
60. The assertion in paragraph 2 of the affidavit filed by the petitioner -St.Ann's College of Engineering and Teclinology in W. P. No. 1 8436 of 2001 that the petitioner institution was shown with an identifying mark as 'C' in the NOC given to AICTE is denied in the counter affidavit. The list of No objection Certificates filed by the petitioner is not an authenticated list. It is stated in the counter affidavit that the list sent by the government to AICTE is altogether different and in the said list there is no identification mark 'as to the nature of any institution'. It may have to be noticed that the government issued G.O.Ms.No. 75, dated 1-8-2001 permitting to establish 57 Engineering Colleges including the petitioners herein in the State and that is the permission granted by the State for establishing the educational institutions. The said order does not disclose that any particular institution to have been permitted to be established with the status of minority educational institution. The nature of the institution to be established by any of the petitioners herein has never been the subject matter of any consideration by the State Government.
Whether the institutions are entitled to make admission of minority candidates?
61. It is true that the admission of students into the educational institutions including the minority educational institutions is regulated by the A. P. Educational Institutions (Regulation of Admissions and Prohibition of Capitation Fee) Act, 1983 (for short 'Act 5 of 1983') and the rules framed there under. According to Section 4 of the Act 5 of 1983, the minority educational institutions are entitled to admit students belonging to the concerned minority on the basis of the marks obtained by them in the qualifying examination or as the case may be, on the basis of the ranking assigned to them in the entrance test conducted in the prescribed manner. The expression 'minority educational institution' is not defined in Act 5 of 1983. But Section 2(i) of the Act 5 of 1983 declares that all words and expressions used but not defined in this Act shall have the meanings assigned to them in the Andhra Pradesh Education Act, 1982. We have already noticed that according to the Education Act and rules framed there under, the minority community shall be entitled to establish an educational institution only in accordance with the provisions of the Act and the rules framed there under, unless of course the institution is meant exclusively for imparting instruction in religious tenets or teachings of the language of the minority concerned. Therefore, for the purpose of the Act 5 of 1983, a minority educational institution is the one, which is recognised as such by the Recognition Authority under the Recognition Rules.
62. As observed by this court in Ameeruddin Academic of General Technical, Professional Educational Society v. State of A.P., 1995 (1) An.W.R. 67, section 4 of the Act 5 of 1983 which purports to make a special provision in regard to minority educational institutions does not come into play until the institution has been established in accordance with law. The rights of such institution as a minority institution arise only after the recognition is granted as a minority institution under the Recognition Rules, 1988. Therefore, the contention that the Recognition Rules have no bearing whatsoever upon the admissions to be made into the educational institutions established by the minorities is untenable and unsustainable.
63. No educational agency can by itself treat an educational institution established by it as a minority educational institution and proceed to make admission of students into such educational institution on its own, The provisions of the Education Act and of Act 5 of 1983 and the rules made under the respective Acts have to be read together.
Is there any Policy decision by the government leading to deliberate inaction as alleged?
64. It is further submitted that the government, as a measure of policy, took a decision not to accord any recognition to any educational institution as minority educational institution for this academic year. It is submitted that there cannot be any such policy decision virtually depriving the petitioners of their constitutional right to establish and administer minority educational institutions of their choice. The inaction, according to the petitioners, in considering their request is pursuant to the said policy decision of the government. In the counter affidavit filed by the respondent government, it is clearly stated that there is no such policy decision taken by the government. The applications of the petitioners are still pending consideration. The State government is of the opinion that a detailed examination of the requirements of minority institutions linked to population and also other various relevant parameters need to be made and the locations where the institutions would be established also need to be examined. The government has decided that the character of institutions claiming the minority status is required to be probed thoroughly with reference to the orders passed by the Apex Court from time to time. The government is stated to have taken such a decision in view of several adverse reports about the functioning of some minority institutions to whom permissions have already been granted by the State Government. Suffice it to notice that as of now the claims of the petitioners are neither rejected nor accepted. They are pending consideration.
65. Some of the writ petitioners proceed on the assumption as if the Committee constituted by the Government in G.O.Ms.No. 29, dated 30th July, 2001 having considered their applications made necessary recommendations for grant of minority status to the educational institutions established by them and the government is deliberately refusing to act on such recommendations to deprive the legitimate right of the petitioners to make admission of students of minority community of their choice into their institutions. The record made available by the learned Government Pleader Sri S.Satyanarayana Prasad, would reveal that there is no positive recommendation as such made by the Committee constituted in any of the cases. On the other hand, the Committee observed that the applications are required to be screened meticulously and a detailed scrutiny and verification is required to be made. The Committee made its specific recommendations in respect of each of the claims. The Committee observed that the data given by the societies is insufficient, particularly in respect of the financial data and accounts as they relate to source of funding. I do not propose to refer in extenso to the recommendations as an appropriate decision is yet to be taken by the government in the matter pursuant to the observations and recommendations of the Committee.
66. Suffice it to notice that there is no recommendation as such made by the Committee to issue/grant any certificate of recognition in favour of any of the petitioners. There is no evidence of any policy decision as such taken by the government not to grant recognition certificate.
Doctrine of Estoppel and Waiver:
67. Sri S.Satyanarayana Prasad, learned Senior Counsel and Government Pleader for Higher Education brings to the notice of the court that altogether 11 societies had withdrawn their claim for recognition as minority educational institutions and accordingly requested the State government to issue No Objection Certificate for establishing the engineering colleges. But having given up their claim, they are asserting their right to get recognition as minority educational institutions and accordingly requested the Committee to consider their claim also. It is submitted that the petitioners in W. P. Nos. 18428 and 18429 of 2001 have submitted their undertaking before the government that they have decided to withdraw their claim for minority status and requested for grant of No Objection Certificate in general category. So also the petitioners in W.P.Nos. 18412 and 18427 of 2001 are stated to have given an undertaking to the same effect. It is submitted by the learned Government Pleader that they cannot be permitted to invoke the extraordinary jurisdiction of this court under Article 226 of the Constitution of India asserting their claim for recognition as minority educational institutions. It is submitted that the petitioners cannot be permitted to approbate and reprobate. The learned Government Pleader would rely upon the decisions of the Supreme Court in Nagubai v. B.Shama Rao, , Morvi Mercantile Bank v. Union of India, , New Bihar Biri Leaves Co. v. State of Bihar, , R. N. Gosain v. Yashpal Dhir, and Delta International Ltd. v. Shyam Sundar Ganeriwalla, , in support of the submission.
68. Sri S.Niranjan reddy, learned counsel appearing on behalf of the petitioners contends that the petitioners were compelled to give such undertaking and in the circumstances, the petitioners have given an undertaking and such undertaking would not come in their way to assert their right for grant of recognition as minority educational institution. The learned counsel for the petitioners would submit that the right to establish and administer educational institution by minorities is a fundamental right guaranteed by Article 30 (1) of the Constitution of India and the doctrine of estoppel and waiver can have no application to the provisions of law which have been enacted as a matter of constitutional policy. In short, it is submitted that it is not open to waive the fundamental rights conferred by Part-III of the Constitution. The learned counsel would place reliance upon the decisions of the Supreme Court in Behram Khurshid v. Bombay State, and Basheshar Nath v. I.T. Commissioner, .
69. There is absolutely no difficulty whatsoever to accept the submission made by the learned counsel for the petitioners that the doctrine of waiver and estoppel cannot be imported to whittle down the plenitude of the fundamental rights enshrined in Part-III of our Constitution. With specific reference to the fundamental right under Article 30(1) of the Constitution, the Supreme Court observed that "it is doubtful whether the fundamental right under Article 30(1) can be bartered away or surrendered by any voluntary act or that it can be waived. The fundamental right is for the living generation. By a voluntary act of affiliation of an educational institution established, and administered by a religious minority the past members of the community cannot surrender the right of the future members of that community. (See: Ahmedabad St. Xavier's College Society v. State of Gujarat (supra).
70. But as rightly contended by the learned Government Pleader for Higher Education, the conduct of the petitioners cannot altogether be ignored by this court while exercising its jurisdiction under Article 226 of the Constitution of India. The nature of an institution as to whether it is a minority educational institution or not, may not depend upon the views expressed by the management at a given point of time. But such inconsistent versions may create a doubt in the mind of the Recognition Authority or the government, as the case may be, about the genuineness of the claim. Such claims would require a detailed and deeper probe. The undertaking stated to have been given by the petitioners in their anxiety to get No Objection Certificate from the State government may speak for itself. But that itself would not be enough to direct the Recognition Authority to reject their claim. Their claim is required to be scrutinised in accordance with law. Their claim cannot be rejected only on the ground that they have waived their right to recognise as a minority educational institution. Such rejection may infringe the guaranteed fundamental right under Article 30(1) of the Constitution of India.
Conclusion:
71. The State Government or the Recognition Authority, as the case may be, is bound to meticulously scrutinise each and every application seeking recognition of an institution as a minority educational institution. Recognition and grant of certificate is not a matter of course. May be the claim of such of educational agencies which have already established different educational institutions and obtained recognition of minority status may stand on different footing in comparison to fresh applicants and their claim could be separately dealt with. But altogether enquiry itself cannot be dispensed with. Every application may have to be enquired into in detail to find out the genuineness of the claims. Each applicant is bound to clearly establish that the proposed institution is established and administered by religious or linguistic minority, as the case may be. The authority must insist the proof of existence of real positive index to get recognition as minority educational institution. The recognition should be granted as minority educational institutions only to such of the educational institutions of minorities in truth and reality and not mere 'mask phantoms'. Only such of the educational institutions established and administered by minorities to predominantly cater the educational needs of minorities alone are entitled for such recognition.
72. The government must pierce the minority veil to discover the truth and genuineness of the claim. Grant of recognition of minority status to the institutions set up by the pretenders masquerading as minorities is fraught with serious consequences. Such a course would be detrimental to the interest of the genuine minorities. The space made available for establishing educational institutions of choice is to the religious and linguistic minorities. Such space meant for the minorities cannot be permitted to be usurped by others masquerading as minorities. That would be detrimental to the interest of the minorities. The authorities are duty bound and are under constitutional obligation to examine every claim in detail. Hasty decisions and award of certificates of recognition on mere asking may result in chaos in the temples of learning. Public interest itself may be at peril leading to disastrous consequences.
73. The decision of the government in the instant case to scrutinise, screen and analyse each and every application in detail with reference to the parameters indicated by the Supreme Court and other relevant factors does not suffer from any infirmities. Such scrutiny and in depth evaluation is the need of hour.
74. The Recognition rules say that ordinarily the Recognition Authority shall not take more than three months for taking a decision either in according or rejecting the application seeking recognition. In a given case and situation, it may take even more than three months. In the case on hand even three months time for taking decision has not elapsed. In the circumstances, it cannot be said that there is any deliberate inaction on the part of the State or the authority in considering the claim of each of the petitioners for grant of recognition as minority educational institution.
75. Be that as it may, the instructions contained in G.O.Ms.No. 23, dated 10-3-1999 and the orders framing some sort of a scheme through G.O.Ms.No. 29, dated 30th July, 2001 in the matter of granting recognition of minority status to the educational institutions reflect the uncalled for anxiety on the part of the State government. The government issued orders in G.O.Ms.No. 23, dated 10-3-1999 radically altering the definition of religious minority educational institutions. In the said governmental order, it is inter alia stated that "the certificate shall be issued within thirty days of the receipt of the application"! Whether the period prescribed relates to disposal of the application or the certificate itself shall have to be issued within thirty days of the receipt of the application? Such inexplicable instructions are issued in anticipation of amendment to the statutory rules. For whose benefit and at whose instance, such instructions are issued? It may not be difficult to see the real faces behind the move. G.O.Ms.No. 23, dated 10-3-1999 itself would reveal that the government is conscious and aware that the instructions issued are at variance with the statutory rules.
76. There is no justification whatsoever to issue such instructions in anticipation of amendments to the statutory rules. For whose benefit such instructions were issued in haste and in clear contravention of the statutory rules giving a go-bye to the regulatory mechanism is a matter for deeper probe by the Government to fix up responsibility as to why such memos and instructions were issued from time to time virtually whittling down the statutory scheme and regulatory mechanism. We have a system governed by rule of law and constitutionalism in which the action of the Government at every level is accountable. Such instructions and memos issued by the authorities concerned from time to time in contravention of the statutory scheme are destructive of rule of law. Such instructions metamorphosis into breeding centres of litigation and haven for unscrupulous litigants.
77. Likewise, the government in G.O.Ms.No. 29, dated 30th July, 2001 framed a scheme and constituted a Committee for verification of the genuineness of the claims of the educational institutions seeking minority status for this particular year. There appears to be no rational behind it. The scheme envisaged for disposal of claims unless read to be inconformity with the Recognition rules itself may crumble. May become ultra vires. Why an attempt to deviate from the statutory rules? What is the intentment and object sought to be achieved?
78. Various memos and orders issued from time to time by the government may reflect the ad hoc nature of the decision based on exigencies rather than any firm and prudent constitutional policy in the matter of grant of recognition of minority status to the educational institutions. No further observations are required to be made since a solemn statement is made in the affidavit filed by the government that it intends to take a comprehensive view as to the manner, method and procedure for disposal of the claims for grant of minority status. The State government is required to take a comprehensive view in the matter if necessary by amending the statutory rules in order to protect the interest of the genuine minorities and their institutions and simultaneously to weed out and prevent the pretenders masquerading as minorities. The paramount consideration for taking any such decision shall be in the interest of the minorities and their educational institutions and national interest which are inseparable.
79. Long live the minorities and their educational institutions.
80. Before parting with the case, I consider it as my duty to place on record the invaluable and dispassionate assistance given by the learned Senior Counsel Sri E.Manohar and Sri S.R.Ashok and the learned counsel Sri Nooty Ramamohana Rao, Sri A.Ramanarayana, Sri S.Niranjan Reddy and Sri S.Sriram. The court also acknowledges the invaluable assistance of Sri S.Satyanarayana Prasad, learned Senior Counsel representing the State of Andhra Pradesh in this batch of writ petitions.
81. For the aforesaid reasons, no relief need be granted to the petitioners for the present.
82. The writ petitions shall accordingly stand disposed of. There shall be no order as to costs.