Committee Of Management Of Murti ... vs State Of U.P. And 5 Others
2022 Latest Caselaw 20211 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 29
 

 
Case :- SPECIAL APPEAL No. - 768 of 2022
 
Appellant :- Committee Of Management Of Murti Devi Kanya Inter College
 
Respondent :- State Of U.P. And 5 Others
 
Counsel for Appellant :- Manish Kumar Pandey
 
Counsel for Respondent :- C.S.C.,A.K.S.Parihar,Kushmondeya Shahi,Mahipal Singh
 

 
Hon'ble Manoj Misra,J.

Hon'ble Vikas Budhwar,J.

Heard Sri G.K. Singh, learned Senior Counsel assisted by Sri Manish Kumar Pandey for the appellant; the learned Standing Counsel for Respondents 1, 2 and 3, Sri K. Shahi for the fourth respondent and Sri Kripa Shankar Singh assisted by Sri Mahipal Singh for the Respondent no.5 and perused the record.

This intra-court appeal is against an order dated 01.11.2022 passed in Writ-A No. 17533 of 2022 by which, even though the minority status of the appellant's institution was recognised but the learned Single Judge refused to grant interim protection to the institution against the impugned orders which seek to enforce appointment of a candidate recommended by the Selection Board.

The contention of the learned counsel for the appellant is that once the minority status of the institution is recognised, the provisions of the U.P. Secondary Education (Services Selection Boards) Act, 1982, by virtue of Section 30, would not apply, therefore, the order impugned in the writ petition was void and its implementation ought to have been stayed. Refusal to stay such a void order has an impact on the fundamental right guaranteed under Article 30(1) of the Constitution of India and, therefore, this intra-court appeal, even though against refusal of an interim order, is maintainable.

Sri Kripa Shankar Singh, who appears for the recommended candidate, submits that the learned Single Judge has placed reliance on a Division Bench decision dated 12.09.2022 in Mtv Buddhist Religious And Charitable Trust Through President and another vs. State of U.P. and others, Writ-C No. 19316 of 2020, wherein it has been observed that protection to a minority institution is available only when an institution has been established and administered by a minority and notified as such by the Government, but where the institution has not been established as such rather, subsequently, acquires the status of a minority institution, it cannot avail the rights attached thereto.

Sri Kripa Shanker Singh vehemently argued that from the documents brought on record, the institution in question, upto the year 2016, was run and administered as a secular institution; a requisition was sent to the Board in the year 2011 for recommending candidate; and, therefore, the candidate recommended has to be offered appointment and the institution cannot resist appointment of the recommended candidate. 

In response to the above submission, Sri G.K. Singh has invited our attention to a Supreme Court's decision in Sisters of St. Joseph of Cluny vs. State of West Bengal, (2018) 6 SCC 772, where, in paragraphs 20, 21 and 22, it has been held as follows:-

"20. In Corporate Educational Agency v. James Mathew, (2017) 15 SCC 595, a Division Bench of this Court dealt with a judgment of the High Court, which in turn dealt with the appointment of teachers in minority educational institutions. This Court, after noticing that the Appellant was already an existing minority educational institution, went on to hold:

"9. Chapter III deals with rights of minority educational institutions. Under Section 10, whosoever desires to establish a minority educational institution, has to apply to the competent authority for a "no-objection certificate". The "competent authority" is defined Under Section 2(ca) of the Act to mean, the authority appointed by the appropriate Government to grant "no-objection certificate" for the establishment of any educational institution of their choice by the minorities.

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11. Therefore, after the introduction of the National Commission for Minority Educational Institutions Act, 2004, it is also within the jurisdiction and mandate of the National Commission to issue the certificate regarding the status of a minority educational institution. Once the Commission thus issues a certificate, it is a declaration of an existing status."

21. This judgment unequivocally holds that, insofar as existing minority institutions are concerned, Section 11(f) clearly confers jurisdiction on the NCMEI to issue a certificate regarding the status of the minority educational institution. We respectfully concur with the aforesaid view.

22. Shri Dhavan, however, exhorted us to send back the matter to the NCMEI for a hearing de novo on merits. We may mention that the fact that the college was begun as a secular institution and wished to change into a minority educational institution midstream, which was not permissible according to Shri Dhavan, is not a plea taken up before the learned single Judge. This plea, however, was raised before the Division Bench and answered by both Judges stating that the fundamental right Under Article 30 cannot be waived. While agreeing with this view, it is necessary to point out, on the facts of the case, that the University of North Bengal has accepted the NCMEI's order dated 5.11.2009, in which the NCMEI went into the aforesaid question. It would not, therefore, be in the fitness of things to send back this matter to be decided afresh at the behest of a governing body which can no longer claim to govern the college set up by the society. It needs only be pointed out that, by a letter dated 4.5.2009, the Principal of Cluny Women's College requested the Vice-Chancellor of the University to extend the term of the governing body set up under the statutes of the University only until the constitution of a new governing body. As the new governing body has been constituted on the footing that Cluny Women's College is a minority educational institution, we are of the view that the parallel governing body, which claims to continue as such, has no legs to stand after the formation of a new governing body. This being the case, we are not inclined to send the matter back to the NCMEI for a de novo hearing on merits at the behest of Shri Dhavan's client."

Relying on the aforesaid decision of the Apex Court, Sri G.K. Singh submitted that issuance of a certificate under 2004 Act is a declaration of an existing status and is not conferment of a new status and, therefore, once a declaration is made under the said Act and a certificate is issued, it is recognition of a pre-existing status and as nothing has been shown that the status of the institution had altered since the date of its establishment, the said status of an institution would be deemed to exist from the date of its establishment and therefore, the benefits available to a minority institution would inhere in it. He has pointed out that the Division Bench decision on which the learned Single Judge has placed reliance upon, in paragraph 29 of the judgment, clearly discloses that that institution, when established, was run as a Secular Trust and the Trust Deed of the institution was amended in the year 2015 and thereafter, it was accorded minority status. He submitted that in such circumstances, the institution with which the Division Bench was dealing in Writ-C No. 19316 of 2020 was an institution not established as a minority institution and its status changed midway, consequently the said decision is distinguishable, whereas the case of the appellant is squarely covered by the decision of the Apex Court in Sisters of St. Joseph of Cluny (supra).

Having accorded consideration to the rival submissions, on perusal of the record we could notice no material from which it could be gathered that there was any change in the constitution/ bye-laws of the Society / Trust, which established the institution in question, showing a change in its status i.e. secular to minority. Even no material was placed before us to demonstrate that the status of the institution, of which the appellant professes to be the Management Committee, had changed after its establishment. In these circumstances, as this matter arises out of an interim order, we do not deem it appropriate to express any specific opinion in that regard and leave the party to agitate the said issue in the pending writ proceedings, however, as we notice that the minority status has been recognised and there is no dispute that a certificate to that effect has been accorded to the appellant's institution in the year 2016, we deem it appropriate to stay the effect and operation of the orders dated 29.09.2022 (impugned in the writ petition) and 06.10.2022 (impugned in the writ petition) till the decision of Writ A No.17533 of 2022 or till such time the minority institution certificate accorded under the 2004 Act subsists, whichever is earlier.

The appeal stands disposed off in terms of the directions above. It is clarified that this order shall not be treated as a decision on the merits of the case with regard to the institution being established as a minority institution. This issue will be considered by the learned Single Judge on the basis of material and pleadings exchanged between the parties and placed on the record in the writ proceedings.

Order Date :- 7.12.2022

N.S.Rathour