C/SCA/7766/2021 CAV JUDGMENT DATED: 09/07/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7766 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE N.V.ANJARIA
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1 Whether Reporters of Local Papers may be allowed to see the judgment ? No 2 To be referred to the Reporter or not ? No 3 Whether their Lordships wish to see the fair copy of the judgment ? No 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution No of India or any order made thereunder ?
========================================================== SEVENTH DAY ADVENTIST PRIMARY AND SECONDARY SCHOOL Versus STATE OF GUJARAT & 1 other(s) ========================================================== Appearance:
MR PERCY KAVINA, SR. ADVOCATE WITH MS.DILBUR CONTRACTOR(6388) for the Petitioner(s) No. 1 for the Respondent(s) No. 3 MR TIRTHRAJ PANDYA, AGP (1) for the Respondent(s) No. 1 NOTICE SERVED BY DS(5) for the Respondent(s) No. 2 ========================================================== CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA Date : 09/07/2021 CAV JUDGMENT What the petitioner has prayed is for issuance of direction to prohibit the respondents from including the name of the petitioner institution in the list of institutions eligible for granting admissions under the provisions of the Right of Children to Free and Compulsory Education Act, 2009. It is prayed to direct the authorities to remove the name of the petitioner from such list.
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2. In other words, the petitioner Seventh Day Adventist Primary School wants to be absolved from the compliance of the provisions of the Right of Children to Free and Compulsory Education Act, 2009 (hereinafter referred to as 'Right to the Education Act') while granting admissions in primary section, contending that it is required to be treated as minority educational institution for primary section also.
3. As per the case of the petitioner, since its establishment in the year 1979 and having run the school at Ahmedabad recognised by the Council for Indian School Certificate Examination, it has been imparting quality education. Petitioner society and its sister trusts functioning under the same management have been running several schools and colleges in different States, it was stated. The higher secondary school run by the petitioner at Ahmedabad is given certificate dated 21st May, 2013 as minority educational institution under Section 2(j) of the National Commission for Minority Educational Institutions Act, 2004.
3.1 The issue about existence and availability of such minority educational institution status in respect of the primary school run by the petitioner arose when the District Education Officer, Ahmedabad addressed communication dated 10th August, 2020 asking the petitioner to furnish certificate including the proof that its primary section was recognised with minority status. As the petitioner did not and could Page 2 of 13 Downloaded on : Mon Jul 12 21:17:54 IST 2021 C/SCA/7766/2021 CAV JUDGMENT DATED: 09/07/2021 not furnish the required information, another communication dated 13th August, 2020 was sent. By order dated 14th August, 2020, competent authority thereafter informed the petitioner that the petitioner school will have to grant admission to the students eligible under the Right to Free Education Act, 2009 in the admission process for the on-going academic year.
3.2 It is stated that petitioner filed Special Civil Application No.10045 of 2020 which was finally disposed of by order dated 03rd September, 2020. The Court required the petitioner to make application with regard to its primary section for issuance of no-objection certificate to be declared as minority educational institution. It was provided that necessary application shall be made before the Director of Primary Education which was the competent authority before 11th September, 2020 and the said authority was directed to decide the application within stipulated time. Necessary application was made by the petitioner on 11th September, 2020.
3.3 The request for grant of certificate for primary section made by the petitioner under Section 10 of the National Commission for Minority Educational Institutions Act, 2004 came to be rejected as per communication dated 16th September, 2020. In the grounds of rejection order, it was stated that the constitution of the Trust did not show that it had the object of encouraging and developing the religious minority; secondly the Page 3 of 13 Downloaded on : Mon Jul 12 21:17:54 IST 2021 C/SCA/7766/2021 CAV JUDGMENT DATED: 09/07/2021 members of the Trust had not produced the necessary certificates to show that they belonged to religious minority, and thirdly that it was not shown that school had permission to run standards 2 to 8.
3.4 The aforesaid order dated 16th September, 2020 was passed by the Director of Primary Education. The petitioner repeated its request before the Director of Education which again was turned down by communication dated 22nd September, 2020, recording even the additional grounds and thereby maintaining the aforementioned order dated 16th September, 2020 of the same office. It appears that by letter dated 17th September, 2020, the petitioner school submitted certain details stating that those details were in compliance of the requirements, however could not satisfy the competent authority.
3.5 Thereafter by communication dated 21st October, 2020 the management of the petitioner school was communicated by the office of the Director of Primary Education that since the defects mentioned in communication dated 16th September, 2020 and 22nd September, 2020 were not cured, the proposal for obtaining the certificate of minority educational institution status was finally rejected and filed.
3.6 Another letter dated 10th May, 2021 came to be addressed by the District Education Officer, Ahmedabad, stating that after the rejection of the proposal as per communications dated 16th September, 2020 and 22nd September, 2020, yet another request was made but the same too was turned down by the Page 4 of 13 Downloaded on : Mon Jul 12 21:17:54 IST 2021 C/SCA/7766/2021 CAV JUDGMENT DATED: 09/07/2021 Director's office as per communication dated 30th March, 2021. It was stated that petitioner school would be required to give admissions to 25% students of the total 841 students, in the Academic Year 2021- 22 in compliance with the provisions of the Right to Free Education Act.
3.7 Contesting the petition, affidavit-in-reply dated 02nd July, 2021 was filed on behalf of respondent No.1. Various contentions have been raised in the reply affidavit inter alia that the petitioner has not challenged orders dated 16th September, 2020 and 22nd September, 2020, and that no-objection certificate for being recognised as minority educational institution under Section 10 of the National Commission for Minority Educational Institutions Act, 2004 by the competent authority was a necessary requirement. Reliance was placed on the observations and conclusions by the Division Bench of this Court in the judgment in Writ Petition (PIL) No.105 of 2018.
4. Learned senior advocate Mr.Percy Kavina with learned advocate Ms.Contractor for the petitioner submitted that while the secondary school section of the petitioner is granted the minority status, there is no reason not to consider such request for the primary section. He further submitted that the petitioner has already approached the National Commission for Minority Educational Institutions, New Delhi with Case No.383 of 2020, and according to his submission, therefore the issue of grant of minority Page 5 of 13 Downloaded on : Mon Jul 12 21:17:54 IST 2021 C/SCA/7766/2021 CAV JUDGMENT DATED: 09/07/2021 status was pending. He further submitted that prayers in the petition was for exemption from the operation of the provisions of the Right to Free Education Act. He submitted that such relief may be granted prospectively by Court in wake of the possibility of issuance of the necessary certificate. Learned senior advocate made a vain attempt to submit that the grounds for rejection of the proposal in communication dated 16th September, 2020 and 22nd September, 2020 are too weak to be countenanced. It was submitted that if the protection is not afforded in this petition and the petitioner succeeds before the Minority Commission, it will not be able to enjoy the fruits.
4.1 Learned Assistant Government Pleader relied on the contentions in the affidavit-in-reply. Giving further facts, he submitted that 350 students have already applied to be admitted in the primary standards at the petitioner school for the current academic year. It was also submitted that current Academic Year 2021-22 has already commenced. It was submitted that when the petitioner is denied the certificate necessary under Section 10 of the Minority Educational Institutions Act, and such orders passed by the competent authority stand valid, the petitioner is bound to comply wit the provisions of the Right to Free Education Act and duty-bound in law to give admissions in its primary section under the provisions of the said Act.
5. At the outset, it may be observed that it Page 6 of 13 Downloaded on : Mon Jul 12 21:17:54 IST 2021 C/SCA/7766/2021 CAV JUDGMENT DATED: 09/07/2021 was a nose-diving attempt on part of learned senior advocate for the petitioner when he sought to contend that the grounds mentioned by the competent authority for rejecting the request to grant the certificate of minority status were meritless, for the simple reason that the said orders dated 16th September, 2020 and 22nd September, 2020 have never been challenged. Not only that the said orders are not challenged, it is rightly contended on behalf of the respondents that twice the petitioner was refused the grant of minority certificate/no-objection certificate and that the petitioner is bound by it and cannot question the applicability of the Right to Free Education Act through its primary section.
5.1 Coming to the crux and core aspect of the controversy, there is no gainsaying that the petitioner school does not have the no-objection certificate for the purpose of being entitled to run the minority educational institution for its primary school, as required under Section 10 of the National Commission for Minority Educational Institutions Act. This Section reads as under.
"10. Right to establish a Minority Educational Institution.-- (1) Subject to the provisions contained in any other law for the time being in force, any person, who desires to establish a Minority Educational Institution may apply to the competent authority for the grant of no objection certificate for the said purpose.
(2) The Competent authority shall,--
(a) on perusal of documents, affidavits or other evidence, if any; and
(b) after giving an opportunity of being heard Page 7 of 13 Downloaded on : Mon Jul 12 21:17:54 IST 2021 C/SCA/7766/2021 CAV JUDGMENT DATED: 09/07/2021 to the applicant, decide every application filed under sub-section (1) as expeditiously as possible and grant or reject the application, as the case may be:
Provided that where an application is rejected, the Competent authority shall communicate the same to the applicant.
(3) Where within a period of ninety days from the receipt of the application under sub-section (1) for the grant of no objection certificate,--
(a) the Competent authority does not grant such certificate; or
(b) where an application has been rejected and the same has not been communicated to the person who has applied for the grant of such certificate, it shall be deemed that the Competent authority has granted a no objection certificate to the applicant.
(4) The applicant shall, on the grant of a no objection certificate or where the Competent authority has deemed to have granted the no objection certificate, be entitled to commence and proceed with the establishment of a Minority Educational Institution in accordance with the rules and regulations, as the case may be, laid down by or under any law for the time being in force."
5.2 As could be seen from the above provision, an institution which intends to become a minority educational institution, has to obtain from the competent authority no-objection certificate for the said purpose. The Director of Primary Education is the competent authority. Undisputedly, the petitioner's application-cum-request in this regard have been rejected by orders dated 16th September, 2020 and 22nd September, 2020 for the grounds stated therein. And as said above, the said orders have not been challenged and have been holding the field.
Page 8 of 13 Downloaded on : Mon Jul 12 21:17:54 IST 2021C/SCA/7766/2021 CAV JUDGMENT DATED: 09/07/2021 5.3 It is essential requirement to obtain the no-objection certificate from the competent authority under the aforesaid Section 10 of the Act for claiming status of minority educational institution. In Sandip Harshadray Munjyasara v. State of Gujarat being Writ Petition (PIL) No.105 of 2018 and allied matters, following categorical conclusions were laid down by the Division Bench in its judgment dated 30th July, 2018.
"18. The sum and substance of the above discussion would lead us to the following conclusions:-
(i) Article 30(1) of the Constitution of India confers a right upon the religious minority or linguistic minority to establish and administer educational institution of their choice;
(ii) However, at the time of establishment of a minority educational institution, such Trust/ Society / Association has to obtain a No Objection Certificate and/or get the declaration of their status as a minority educational institution from the Competent Authority as per Section 10 of the Act, 2004 or from the National Commission for Minority Educational Institutions;
(iii) Merely because the majority of the trustees of a Trust/ Society belong to religious minority, such Trust/ Society cannot claim automatically minority educational institution status and for claiming such status and/or a No Objection Certificate, such Trust/ Society has to fulfill the relevant criterion as per the guidelines issued by the National Commission for Minority Educational Institutions, Government of India, for determination of minority status, recognition, affiliation and related mattes in respect of minority educational institutions under the Constitution of India, which have been so issued after considering various decisions of the Hon'ble Supreme Court referred to hereinabove and/or as provided in the Government Resolution dated 11.04.2008 issued by the State Government;
(iv) Unless and until a Trust/ Society/ Association obtains a No Objection Certificate/ declaration of a minority educational institution in respect of an Page 9 of 13 Downloaded on : Mon Jul 12 21:17:54 IST 2021 C/SCA/7766/2021 CAV JUDGMENT DATED: 09/07/2021 educational institution run by it under the Act, 2004, such educational institution cannot claim exemption from the purview of the RTE Act;
(v) The moment an educational institution run by such religious minority Trust/ Society gets the No Objection Certificate/ status of a minority educational institution, it shall be exempted from the purview of the RTE Act, as observed by the Hon'ble Supreme Court in the case of Pramati Educational and Cultural Trust (Registered) And Others v. Union of India And Others (supra)."
5.4 It is unequivocally held in the aforesaid judgment in (iv) above that obtaining no-objection certificate or declaration of minority educational institution is indispensable condition and unless the Trust or Society running the school does not obtain such certificate, the educational institution run by it cannot claim exemption from the purview of the Right to Free Education Act. Once such certificate is obtained, the exemption from the provisions of the Act would entail for the school.
5.5 The aspect was also dealt with that Secondary or Higher Secondary School running primary section shall have to get such certificate or status from the competent authority for primary section.
"15. Now so far as the submission on behalf of the respective petitioner - Trust/ Society that in case of some of the Trusts/ Societies, they are already running the minority educational institution in the secondary / higher secondary section which are recognized by the appropriate authority granting recognition to run the secondary and higher secondary section and therefore, for primary section too, they are automatically entitled to run school as minority educational institution and are not required to obtain any No Objection Certificate under the Act, 2004, more particularly, under Sections 10 or 11 of the Act, 2004, is concerned, at the outset, it is required to be noted that the No Objection Certificate under Section 10 and /or Page 10 of 13 Downloaded on : Mon Jul 12 21:17:54 IST 2021 C/SCA/7766/2021 CAV JUDGMENT DATED: 09/07/2021 11 of the Act, 2004 is with respect to an educational institution and not with respect to the Trust/ Society. ... ... ..."
5.6 In Paragraph No.15.2 of the aforesaid judgment, it was observed that having the no- objection certificate as minority for the secondary section in the school may be a relevant aspect for giving such status to the primary section. However, such status is not automatically conferred. The primary section and the secondary sections are the schools run and are functioning under two different statutes. It was stated, "At this stage, It is required to be noted that even the primary schools are required to be established and registered / recognized under the provisions of the Gujarat Primary Education Act. Running a minority educational institution in secondary / higher secondary section by a Trust/ Society who also wants to run and establish primary section may be a relevant consideration for grant of minority educational institution status with respect to primary section. Therefore, any Trust/ Society who wants to establish, run and manage the minority educational institution in primary section shall have to get such status and/ or No Objection Certificate to run the minority educational institution and/or get the minority educational status, as per Sections 10 and 11 of the Act, 2004. As held by the Hon'ble Supreme Court in the case of Sisters of St.Joseph of Cluny v. The State of West Bengal & Ors. (supra), No Objection Certificate to run the minority educational institution can be granted either by the Competent Page 11 of 13 Downloaded on : Mon Jul 12 21:17:54 IST 2021 C/SCA/7766/2021 CAV JUDGMENT DATED: 09/07/2021 Authority declared by the appropriate authority as per Section 10 or by the National Commission as per Section 11 of the Act, 2004."
6. The submission on behalf of the petitioner that the rejection of the application for grant of certificate is subject matter of consideration before the National Commission for Minority Educational Institutions, is by itself of no avail. Even if the said is the factor, mere pendency of the proceedings before the minority commission cannot arrest the applicability of Right to Free Education Act for the petitioner's primary section when the certificate of minority to be sine qua non under Section 10 of the Act is not obtained. The academic year 2021-22 has already started and as per the figures given by learned Assistant Government Pleader, 350 students are in queue waiting to be admitted in the petitioner's primary section under the Right to Free Education Act.
6.1 Even otherwise, the contents of the notice of the Commission in Case No.383 of 2020/3162 (Annexure-J, Page No.108 of the petition) which is relied on in the petition for contending that therein the orders of rejection for issuance of no-objection certificate by the competent authority are challenged, prima facie appeared to be containing something else. The notice is in the nature of show- cause notice as to why the petition should not be dismissed. The hearing with regard to that was kept on 05th May, 2021. It is not known what is the Page 12 of 13 Downloaded on : Mon Jul 12 21:17:54 IST 2021 C/SCA/7766/2021 CAV JUDGMENT DATED: 09/07/2021 progress thereafter. Be as it may. Mere filing of proceedings before the Commission and mere pendency thereof cannot be a ground to seek exclusion from the operation and applicability of the provisions of the Right to Free Education Act. The primary section of the petitioner school as on date does not possess the requisite certificate and the status of minority educational institution.
7. In view of the above facts and aspects as well as the reasons stated, the prayers in the petition could not be granted. The petition stands meritless. The same is dismissed. Notice is discharged.
(N.V.ANJARIA, J) ANUP Page 13 of 13 Downloaded on : Mon Jul 12 21:17:54 IST 2021