Delhi Sikh Gurudwara Management ... vs Union Of India & Ors.
2008 Latest Caselaw 1134 Del

*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+             W.P. (C) No.4584/2008

              Judgment Reserved on: 10.07.2008
%             Judgment Delivered on: 25.07.2008

Delhi Sikh Gurudwara Management
Committee (DSGMC) & Ors.                        ..... Petitioner
                     Through Mr.K.T.S. Tulsi, Sr. Adv. with
                             Mr. Gaurav Bhargava &
                             Mr. Kuber Boddh, Advs.

                     versus

Union of India & Ors.                           ..... Respondent
                          Through Mr. Arvind Nigam & Mr. Amit
                                  Bansal for Delhi University
                                  Mr. Amitesh Kumar for UGC

CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI

1. Whether the Reporters of local papers
   may be allowed to see the judgment?

2. To be referred to Reporter or not?                       Yes

3. Whether the judgment should be reported in the Digest? Yes

VIPIN SANGHI, J.

WP(C) No.4584/2008

Rule.

CM No.8838/2008

1. The petitioners viz. Delhi Sikh Gurudwara

Management Committee (DSGMC), Shri Guru Tegh Bahadur

Khalsa College, Shri Guru Nank Dev P.G. College, Shri Guru

Gobind Singh College of Commerce, Mata Sundri College for

Women have jointly filed this writ petition seeking a

declaration that the aforesaid four colleges, namely, petitioner

Nos.2 to 5 which are being managed by the petitioner No.1

DSGMC are Minority Educational Institutions (MEI for short)

within the meaning of Section 2(g) of the National Commission

for Minority Educational Institutions Act, 2004 (NCMEI Act for

short) and Section 2(f) of the Central Educational Institutions

(Reservation in Admission) Act, 2006 (CEI (R&A) Act for short).

They have also sought a declaration that the reservation policy

of the Central Government for admission and recruitment of

Other Backward Classes (OBCs) is not enforceable against

petitioner Nos. 2 to 5. A direction is also sought that the

respondent authorities, viz, the Union of India, through the

Ministry of Human Resource Development, Department of

Higher Education i.e. respondent No.1, the University of Delhi

i.e. respondent No.2 and the University Grants Commission

(UGC) i.e. respondent No.3 should not hinder the process of

recruitment and/or admission in the petitioner Nos.2 to 5

institutions.

2. The aforesaid miscellaneous application, which I

propose to dispose of by the present order, has been filed to

seek a stay of the operation of the letter dated 18.6.2008

(Annexure P-14) issued by the University of Delhi, whereby the

respondent University has taken the stand to the effect that

petitioner Nos.2 to 5 should follow the provisions regarding

OBC reservations in admissions and recruitment, by observing:

"As a constituent college of the University of Delhi, since you

are subject to the provisions of the Act, the statutes and the

Ordinances, and guidelines of the University, you are expected

to follow the provisions regarding OBC reservations in

admission and recruitment. As you are aware, the University is

constitutionally bound to honour the act of parliament and the

subsequent Supreme Court judgement on OBC reservations

communicated to it by the MHRD."

3. It has, therefore, become necessary to arrive at a

prima facie finding with regard to the claim of the petitioners

that petitioner Nos.2 to 5 are MEIs in view of the fact

admissions to the said four institutions are held up on account

of on going tussel between the petitioners on the one hand

and the respondents on the other hand. Whereas the stand of

the petitioners is that petitioner Nos.2 to 5 being MEIs, they

are not bound by the policies and dictates of the Central

Government to provide 27% reservations to OBCs, the stand of

the respondents is that the petitioner institutions are not MEIs

and that they are bound to follow the policies of the Central

Government by providing 27% reservation to OBCs.

4. Mr. K.T.S. Tulsi, learned senior counsel for the

petitioners submits that Article 30(1) of the Constitution of

India protects the rights of the minorities to establish and

administer educational institutions. The same reads: "All

minorities, whether based on religion or language, shall have

the right to establish and administer educational institutions of

their choice." He submits that `Sikhs‟ are a minority

community in Delhi and even on all India basis, and there can

be no doubt or dispute about the same. Therefore, the rights

of the Sikh community, which is a religious minority, to

establish and administer educational institutions of their

choice cannot be interfered with by the State. He then draws

my attention to Article 15(5) of the Constitution of India.

Article 15 prohibits the State from discriminating against any

citizen on grounds only of religion, race, caste, sex, place of

birth or any of them. Sub-Article (5) of Article 15 carves out an

exception to Articles 15(1) & (2). The same reads as follows:

"15(5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30." (emphasis supplied)

5. He, therefore, submits that the Constitution itself

carves out an exception in respect of MEIs, while permitting

the State to make special provision by law, for the

advancement of any socially or educationally backward classes

of citizens or for the Scheduled Castes and the Scheduled

Tribes, relating to their admission to educational institutions.

He submits, in respect of MEIs the State has no authority to

thrust its policies for the provision of special reservations, inter

alia, for the socially or educationally backward classes of

citizens.

6. Mr. Tulsi refers to the notification dated 22.10.1993

issued by the Government of India bearing No.S.O.816(E) in

exercise of powers conferred by Clause (c) of Section 2 of the

National Commission of Minorities Act, 1992, notifying, inter

alia, "Sikhs" as a minority community for the purposes of the

said Act. He also seeks to heavily rely on the order passed by

the National Commission for Minority Educational Institutions

(„NCMEI‟ or the „Commission‟ for short) in case No.152/2005.

The said Commission in its order dated 10.5.2006 observed

that the status of Shri Guru Tegh Bahadur Khalsa College i.e.

petitioner No.2 which is established and administered by the

`Sikh‟ community is that of a MEI within the meaning of

Section 2(g) of the NCMEI Act. The said order also recorded

the admitted position that Shri Guru Tegh Bahadur Khalsa

College was a MEI within the meaning of Section 2(g) of the

NCMEI Act and as such entitled to protection under Article

30(1) of the Constitution of India. Mr. Tulsi submits that before

the NCMEI, both the University of Delhi and University Grants

Commission were represented through counsel. The issue

raised before the NCMEI by St. Stephen‟s College, Delhi and

Shri Guru Tegh Bahadur Khalsa College, Delhi i.e. petitioner

No.2 was with regard to the violation of their rights under

Article 30(1) of the Constitution. This issue had arisen in the

context of the regulations framed by the University Grants

Commission with regard to the appointment of teaching staff

and principal of a college. Mr. Tulsi submits that in view of the

undisputed position that Shri Guru Tegh Bahadur Khalsa

College, Delhi was a MEI, the NCMEI gave its finding that the

ordinance in challenge in those proceedings, viz. ordinance

XVIII Clause 7(2) violates the right of the minority to establish

and administer educational institutions of their choice

guaranteed under Article 30(1) of the Constitution of India. Mr.

Tulsi points out that though this order of NCMEIs has been

subjected to challenge in this Court in W.P.(C) No.10119/2006

titled "The Registrar University of Delhi v. St. Stephen's

College" and the operation of the said order dated 10.5.2006

has been stayed, there is no challenge even in that writ

petition to the finding of the NCMEI with regard to the status of

the Shri Guru Tegh Bahadur Khalsa College as being a MEI

within the meaning of Section 2(g) of the NCMEI Act. It is

argued that, in fact, the said petition also proceeds on the

foundation that Shri Guru Tegh Bahadur Khalsa College i.e.

petitioner No.2 is a MEI. The thrust of that petition is to justify

the regulations framed by the UGC on the ground that they do

not offend Article 30(1) of the Constitution. Mr. Tulsi submits

that Section 2(f) of the CEI (R&A) Act (the central enactment

whereby reservation in admission of students belonging to

Scheduled Castes, Scheduled Tribes and OBCs to Central

Educational Institutions, established, maintained and aided by

the Central Government has been provided for), also defines a

MEI to mean "an institution established and administered by

the minorities under Clause (1) of Article 30 of the Constitution

and so declared by an Act of Parliament or by the Central

Government or declared as a Minority Educational Institution

under the National Commission for Minority Educational

Institutions Act, 2004." Section 3 of the CEI (R&A) Act

provides for reservation, inter alia, for OBCs to the extent of

27% of the seats. However, Section 4 of the said Act itself

provides that the provisions of Section 3 of the Act shall not

apply to MEIs as defined in the said Act.

7. Mr. Tulsi submits that the Delhi Sikh Gurudwaras

Act, 1971 was enacted by the Parliament to provide for the

proper management of Sikh Gurudwaras and Gurudwara

property in Delhi and for matters connected therewith. Under

Section 3 of this Act, a Committee was established called the

Delhi Sikh Gurudwara Management Committee i.e. DSGMC,

petitioner No.1 herein, for the proper management and Control

of Gurudwara‟s and Gurudwara properties. Section 24 of this

Act recites the powers and functions of the DSGMC which,

inter alia include control, direction and general

superintendence over all of the Gurudwaras and Gurudwara

properties in Delhi. This power also includes a power to do all

such things as may be incidental and conducive to the

efficient management of the affairs of the Gurudwaras,

educational and other institutions under the DSGMC and their

properties. It also enables the DSGMC to establish educational

institutions, research centers and libraries and to render

financial assistances to religious and educational institutions,

societies and needy persons.

8. Mr. Tulsi submits that petitioner No.1, i.e., DSGMC

has over the years been controlling and administering

petitioner Nos.2 to 5 institutions and for this purpose he

places reliance on the successive nominations made by

petitioner No.1 on the governing body of petitioner No.2

college which have always been accepted by the University of

Delhi. He further submits that only petitioner No.2 institution

was established before the constitution of the petitioner No.1

DSGMC, whereas all others have been established

subsequently. Even petitioner No.2, he submits, was

established by 19 individuals who were overwhelmingly

belonging to the `Sikh‟ community. He submits that,

therefore, all the petitioner institutions were established by the

„Sikh‟ minority community and have been administered by the

„Sikh‟ community throughout.

9. Mr. Tulsi further submits that insistence of the

respondent authorities on the production of a certificate to

show the registration of petitioner institutions as MEIs is

misconceived, since there is no provision for any such

registration being granted under the NCMEI Act. He submits

that there are hardly any „Sikh‟ communities amongst the

OBCs, and the imposition of the 27% quota for the OBC

students would change the demography of the students in the

petitioner institutions, which he states is presently having a

large „Sikh‟ population. He submits that the respondents are

bent upon the infringing the fundamental rights of the

petitioners guaranteed under Article 30 of the Constitution of

India, despite the position being absolutely clear with regard to

the status of the petitioner institutions as being MEIs. He

seeks to rely upon the observations of Hon‟ble Mr. Justice H.R.

Khanna in "The Ahmedabad St. Xavier's College Society

& Anr. v. State of Gujarat & Anr." (1974) 1 SCC 717 in para

77, which reads as follows:

"77. The idea of giving some special rights to the minorities is not to have a kind of a privileged or pampered Section of the population but to give to the minorities a sense of security and a feeling of confidence. The great leaders of India since time immemorial had preached the doctrine of tolerance and catholicity of outlook. Those noble ideas were enshrined in the Constitution. Special rights for minorities were designed not to create inequality. Their real effect was to bring about equality by ensuring the preservation of the minority institutions and by guaranteeing to the minorities autonomy in the matter of the administration of those institutions. 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. The majority in a system of adult franchise hardly needs any protection. It can look after itself and protect its interests. Any measure wanted by the majority can without much difficulty be brought on the statute book because the majority can get that done by giving such a mandate to the elected representatives. It is only the minorities who need protection, and Article 30, besides some other articles, is intended to afford and guarantee that protection. It may be apposite in this context to refer to the observations made by Latham CJ. in Adelaide Co. of Jehovah's' Witnesses Inc. v. The Commonwealth while dealing with Section 116 of the Commonwealth of Australia (Constitution) Act which provides inter alia that the Commonwealth shall not make any law for prohibiting the free exercise of any religion. Said the learned Chief Justice :

"..... it should not be forgotten that such a provision as Section 116, is not required for the protection of the religion of a majority. The religion of the majority of the people can look after itself. Section 116 is required to protect the religion (or absence of religion) of minorities, and, in particular, of unpopular minorities."

10. On these submissions, Mr. Tulsi submits that the

operation of the impugned communication should be stayed so

that the petitioners are free to carry out the admission process

without having to grant 27% reservations to the OBC category

candidates.

11. Mr. Arvind Nigam, learned counsel for Delhi

University submits that vide office memorandum dated

13.8.1990, Government of India introduced 27% reservation

for OBCs in services under the Government of India and vide

office memorandum dated 8.9.1998 the same position was

reiterated. However, these notifications did not pertain to the

grant of reservation for OBCs for admission to educational

institutions. He submits that reservations for OBCs in Central

Educational Institutions was introduced by the CEI (R&A) Act.

12. The submission of Mr. Nigam is that the petitioner

institutions are not MEIs, since these institutions have not

been created with the object of providing education to children

belonging to the „Sikh‟ minority community. Mr. Nigam

submits that to qualify as a MEI, the institution should not only

be established and administered by the minority community,

but such institutions should be established primarily for the

benefit of the minority community. Only such institutions

which are not only established and administered by the

minority community, but are established with the objective of

providing education to the particular minority community

could claim the protection under Article 30(1) of the

Constitution. Mr. Nigam submits that even if it were to be

assumed that the petitioner institutions were established, and

are being administered by the „Sikh‟ minority community, the

memorandum of association and rules and regulations of none

of these institutions show that any of them had been

established primarily for the benefit of the children of the

„Sikh‟ community. Copies of the memorandum of association

and bye-laws of each the petitioner institutions have been filed

by the respondent University alongwith their short affidavit.

These institutions have been established to develop and

maintain the educational institutions, recognized by the

respondent University, and to manage, supervise and

administer their affairs. None of these institutions provide for

any reservation or any special benefit in favour of students

belonging to the „Sikh‟ community. These institutions

presently provide for reservations as per the Governmental

policy for the Scheduled casts and Scheduled Tribes. Mr.

Nigam in support of this submission relies on In Re The

Kerala Education Bill, 1957 Reference under Article

143(1) of the Constitution of India (1959) SCR 995 and

P.A. Inamdar & Ors. v. State of Maharashtra & Ors.

(2005) 6 SCC.

13. Mr. Nigam submits that petitioner Nos.2 to 5 are all

receiving grant in aid from the Government. He further

submits that under General Financial Rules 2001 (GFR 2001)

Rule 209(6)(xii)(b), for becoming eligible for the release of

grant-in-aid, the institutions are bound to provide reservations

as per the policy of the Government.

14. Mr. Nigam countered the argument of Mr. Tulsi

founded upon the order of the NCMEI by submitting that the

Union of India was not a party in those proceedings. He

submits that the NCMEI did not, as a matter of fact, examine

the issue as to whether petitioner No.2 was a MEI or not, within

the meaning of Section 2(g) of the NCMEI Act by applying the

test laid down by the Supreme Court in its various decisions

beginning from In Re The Kerala Education Bill, 1957

(supra). He submits that Section 11 of the NCMEI Act lays

down the functions of the Commission and Clause (f) of

Section 11 empowers the NCMEI to decide all questions

relating to the status of any institution as a MEI and to declare

its status as such. He argues that the petitioners have not

moved any application before the NCMEI to seek a declaration

of their status as that of a MEI. Had that issue been raised by

the petitioners the NCMEI would have had the occasion to

examine the issue in the presence of the concerned parties, by

application of law laid down by the Supreme Court . He

submits that it is open to the petitioners to even now approach

the NCMEI to seek a declaration, if they so desire, about their

claimed minority status. Instead of resorting to the said

procedure, the petitioners have straight away approached this

Court to seek a declaration with regard to their minority status.

Mr. Nigam submits that it is not for this Court to determine the

minority status of the petitioners in proceedings under Article

226 of the Constitution of India. For this proposition he relies

on the decision of the Supreme Court in Manager, St.

Thomas U.P. School, Kerala & Anr. vs. Commissioner &

Secy. To General Education Deptt. & Ors. (2002) 2 SCC

497. The Supreme Court in this decision has held that the

question whether an institution is a MEI, is a question of fact

and that the High Court in that case had erred in entertaining

the writ petition and determining the status of the educational

institution before it. The observations of the Supreme Court in

paragraphs 5 & 6 of the said decision are as follow:

"5. The question before us is whether the High Court was correct in taking the decision it did. Under Article 30(1), all minorities whether based on religion or language, have been guaranteed the right to establish and administer educational institutions of their choice. It is not in dispute that Christians form a minority in this country. The right of minorities under Article 30(1) to establish and administer educational institutions has been judicially construed as defining minority institutions. What is expressed in terms of a right under Article 30(1) in fact describes the institution in respect of which the protection of Article 30(1) can be claimed. It has, therefore, been held that unless the educational institution has been established by a minority, it cannot claim the right to administer it under Article 30(1). Thus the critical issue is was the School established by a minority. The issue has to an extent become academic as both the respondents 5 and 6 have since retired and we are given to understand that they have been paid the salary of a Headmaster for the period they would have served had the decision of the High Court been given effect to. However, the issue is still alive as far as the appellants are concerned. The second appellant is still in service and he has, because of the decision of the High Court, been asked by the School to refund the salary paid to him as Headmaster. Also if the decision is allowed to stand, the status of the School would be finally determined without scrutiny entailing far-reaching consequences in its day to day administration.

6. At the outset, we record our disapproval of the High Court entertaining the writ application at all.

Both the Single Judge and the Division Bench have determined what were clearly disputed questions of fact without the benefit of a full-scale trial. The appellants have drawn our attention to evidence which, according to them, conclusively proves that the School was a minority institution and which was not considered by the High Court. We do not propose to commit the same mistake as the High Court. Given the nature of the dispute, the issue of the status of the School should have been left to the fact-finding authorises whether executive or judicial for determination in jurisdictions equipped for the purpose. As far as the legal aspect is concerned, the High Court denied the School minority status under Article 30 of the Constitution because

"the School was established by an individual who is the buyer of the land in question under Ext. P5 document of sale making use of his own personal funds which negatives any intention on the part of the vendee to establish a minority institution"

and because "there is no contribution from any member of the minority community for the purchase of the property".

15. Without conceding that the petitioner institutions

are MEIs, and while maintaining that they are not MEIs, Mr.

Nigam submits that, in any event, for the sake of argument

even if it were accepted that the petitioners are MEIs, the

respondents are still entitled to reasonably regulate such

institutions. Mr. Nigam by relying upon the Constitution Bench

decision in P.A. Inamdar (supra), and in particular upon the

observations made in paragraph 103 of the said judgment,

submits that the right to establish and administer an

educational institution conferred by Article 30(1) does not

include the right to mal-administer the institution. The State

may prescribe reasonable regulations to ensure maintenance

of excellence of the educational institution which is granted

aid, or is recognized. It is open to the State to lay down

conditions for recognition. He submits that, no doubt, in the

name of laying down conditions for aid and recognitition the

State cannot directly or indirectly defeat the very protection

conferred by Article 30(1) on the minority to establish and

administer educational institutions. Mr. Nigam submits that the

enforcement of the policy of the Government of India to

provide reservations for OBCs is a reasonable condition,

particularly, when the petitioner institutions are in receipt of

grant-in-aid from the Government.

16. He also refers to In Re The Kerala Education

Bill, 1957 (supra) to submit that the Supreme Court upheld

various clauses of the Bill which it held were merely regulatory

and do not offend Article 30(1) while declaring various other

clauses of the said Bill as being offensive to Article 30(1) of the

Constitution.

17. Another submission of Mr. Nigam is that the

petitioner institutions, even otherwise, do not satisfy the

definition of a "minority" as contained in Section 2(f) of the

NCMEI Act, inasmuch as, the „Sikh‟ community has not been

notified by the Central Government as a minority community.

Mr. Nigam further submitted that, in law, it is possible that an

institution may be a MEI at a given point of time, and it may

give up its character of being such an institution at some later

point of time, and may re-acquire its status by amendment of

its rules and regulations. Mr. Nigam submits that at present

the memorandum of association and the rules and regulations

which govern the petitioner institutions do not provide for any

specific benefit or reservation for students of the „Sikh‟

community and in case the petitioners were to so amend their

rules and regulations in future, as to specifically provide

special rights and benefits to students of the „Sikh‟ community,

the petitioners may acquire the status of being MEI. In this

regard he places reliance on Managing Committee, Khalsa

Middle School & Anr. vs. Mohinder Kaur (Smt) & Anr.

1993 Supp (4) SCC 26.

18. Mr. Amitesh Kumar who appears for UGC has

adopted the submissions of Mr. Nigam. He further submits

that the petitioners have been granting reservations in terms

of Government of India policy to the Scheduled Castes and

Scheduled Tribues students in the past. This is also evident

from their prospectus. This shows that the petitioner

institutions are also aware of their obligation to follow the

norms and regulations of the respondents, pertaining to

reservations in the grant of admissions. There is no

justification for the petitioners to deny reservations for the

OBC category student as per the Government of India policy.

His further submission is that the petitioners have, in fact,

availed of the increase in aid by the UGC for the purpose of

creating infrastructure to increase the number of seats in their

colleges in a staggered manner so that the prescription of

reservation for OBCs does not adversely impact the number of

available seats for the general category candidates. The UGC

has, with the same objective in mind, increased the

retirement age of the teaching staff and this too has been

accepted by the petitioners. He, therefore, submits that the

petitioners cannot now seek to deny reservations for the OBCs

since the aforesaid measures are a part of the same package

implemented by the UGC.

19. Mr. Tulsi in his rejoinder submits that merely

because a minority community which has set up an

educational institution does not discriminate between the

students of any community, and opens its doors for students of

all communities, such an institution should not be placed at a

disadvantageous position when compared to an institution set

up and administered by a minority community primarily for the

purpose of imparting education to that minority community.

He also submits that the voluntary action of the petitioners to

grant reservations to students of the SC and ST communities

also cannot lead to the inference that the petitioner

institutions are bound to provide reservations for the OBC

category students as well. Mr. Tulsi submits that the approach

of the respondent would only be counter productive and would

lead the minority community to close its doors to students of

other communities who are presently welcome to join the

institutions being run by them.

20. Mr. Tulsi further submits that the aspect whether

the petitioners are in receipt of grant in aid from the

Government or not, cannot have any bearing on the issue as

to whether the petitioner institutions are obliged to offer

reservations to the OBCs category candidates. He submits

that merely because the petitioners are drawing aid from the

Government, the same cannot be used as a handle to invade

the rights of a MEI which are protected by Article 30(1) of the

Constitution. He refers to the observations of the Supreme

Court in In Re The Kerala Education Bill, 1957 (supra) at

page 1051 to the following effect: -

"It is said that an educational institution established by a minority community which does not seek any aid from the funds of the State need not admit a single scholar belonging to a community other than that for whose benefit it was established but that as soon as such an educational institution seeks and gets aid from the State coffers Art. 29(2) will preclude it from denying admission to members of the other communities on grounds only of religion, race, caste, language or any of them and consequently it will cease to be an educational institution of the choice of the minority community which established it. This argument does not appear to us to be warranted by the language of the Article itself. There is no such limitation in Art. 30(1) and to accept this limitation will necessarily involve the addition of the words "for their own community" in the Article which is ordinarily not permissible according to well established rules of

interpretation. Nor is it reasonable to assume that the purpose of Art. 29(2) was to deprive minority educational institutions of the aid they receive from the State. To say that an institution which receives aid on account of its being a minority educational institution must not refuse to admit any member of any other community only on the grounds therein mentioned and then to say that as soon as such institution admits such an outsider it will cease to be a minority institution is tantamount to saying that minority institutions will not, as minority institutions, be entitled to any aid. The real import of Art. 29(2) and Art. 30(1) seems to us to be that they clearly contemplate a minority institution with a sprinkling of outsiders admitted into it. By admitting a non-member into it the minority institution does not shed its character and cease to be a minority institution. Indeed the object of conservation of the distinct language, script and culture of a minority may be better served by propagating the same amongst non-members of the particular minority community. In our opinion, it is not possible to read this condition into Art. 30(1) of the Constitution." (emphasis supplied)

21. He also relies on Ashok Kumar Thakur V Union

of India & Others, MANU/SC/1397/2008 wherein the

Supreme Court has again reiterated the same position in

paragraph 100. Mr. Tulsi also submits that all the petitioner

institutions offer non professional courses and the Supreme

Court in Islamic Academy of Edcuation &Anr. vs. State of

Karnataka & Ors. (2003) 6 SCC 697 has held that unaided

institutions, compared to the aided institutions will have more

autonomy to run the institutions, however, in the matter of a

non professional institutions the autonomy is absolute which

is not the case with professional institutions. The right to

establish and administer an institution comprises, inter alia,

the right to admit students. He, therefore, argues that this

right of the petitioner to admit students cannot be interfered

with by the respondents, since the petitioner institutions are

not offering professional degrees.

22. The issue as to whether a particular institution is a

MEI or not is a mixed question of fact and law. The same

would have to be determined upon a proper enquiry by a

competent forum, which happens to be the NCMEI. In its order

dated 10.05.2006 the NCMEI was dealing with two cases i.e. of

St. Stephen‟s College, Delhi and petitioner No.2. From the

order it appears that the issue as to whether petitioner No.2 is

a MEI or not was not raised and, therefore, not debated before

the said Commission. The said Commission proceeded on the

assumption that petitioner No.2 is a MEI. The commission also

did not apply its mind to the issue whether petitioner No.2 is a

MEI or not by reference to the tests laid down by the Supreme

Court in its decisions in In Re The Kerala Education Bill,

1957 (supra) and P.A. Inamdar & Ors. (supra). The

Memorandum of Associations, Bye Laws etc. were not

examined by the NCMEI. It appears that the said Commission

proceeded on the assumption that petitioner No.2 is a MEI on

account of concession to that effect made by the University of

Delhi and the University Grants Commission. However, to my

mind that concession cannot be conclusive of the issue as to

whether the petitioner Nos.2 to 5, or in particular petitioner

No.2 is a MEI. This is so, firstly because the Union of India was

not even a party respondent before the said Commission. The

issue before the Commission was with regard to the

appointment of the teaching staff in the petitioner No.2

college. The issue was not with regard to the grant of

reservations for OBCs in the admission process in petitioner

No.2 institution. The said reservation for OBCs has been

granted by the Central Government by bringing in the CEI

(R&A) Act, 2006. Secondly, as aforesaid, the issue with regard

to the status of petitioner institutions is a mixed question of

fact and law. Assuming that a concession was made by the

University of Delhi and by the UGC before the NCMEI with

regard to the status of petitioner No.2 as being a MEI, the

same cannot operate as an estoppel against them since there

can be no estoppel against the law.

23. Keeping in view the decision of the Supreme Court

in Manager, St. Thomas U.P. School, Kerala & Anr.

(supra), in my view, it would really for the NCMEI to determine

the status of the petitioner institutions in the first instance by

examining all the relevant facts and materials that may be

placed before it. Such a determination would be made by the

Commission as and when the petitioners invoke its jurisdiction

to seek a declaration of their status as being MEIs under

Section 11(f) of the NCMEI Act, which empowers the MEI to

"decide all questions relating to the status of any institution as

a Minority Educational Institution and declare its status as

such".

24. However, for the present purpose, it is essential to

arrive at a prima-facie view with regard to the status of the

petitioner institutions on the basis of the material placed on

record.

25. The Supreme Court in In Re Kerala Education

Bill, 1957 (supra) observed as follows:

"Schools run by minorities in Kerala were not strictly minority schools as envisaged by Art. 30(1) as they were not run mainly for the children of the minority community. In most of these schools at least 75 per cent of the students were from non-minorities. Article 30(1) contemplates schools for the education of members of the minority communities only. Right of the minority communities to establish and administer institutions of their choice does not include the right to receive aid and recognition on their own terms. Article 30(2) only prohibited the State from discriminating against any educational institution on the ground of religion or language. In order to attract the operation of Art.30(1) it should be established that there is a minority community, that it has established an educational institution and that the education institution is run for the education of the members of that community. Ramani Kanta Bose v. The Gauhati University (I.L.R. [1951] Ass.348 at 352). Not one of these conditions is fulfilled in any of the educational institutions in the State. The choice in Art.30(1) lies in the establishment of a school and not in its management." (emphasis supplied)

26. In P.A. Inamdar (supra) the Constitution Bench of

the Supreme Court again examined, inter alia, the issue as to

what constitutes a Minority Educational Institution. The

discussion of the said issue is to be found in paragraphs 97 to

99 and 102 of the said judgment. The same being instructive

is set out herein below:

"97. In Kerala Education Bill the scope and ambit of right conferred by Article 30(1) came up for consideration. Article 30(1) does not require that minorities based on religion should establish educational institutions for teaching religion only or that linguistic minority should establish educational institution for teaching its language only. The object underlying Article 30(1) is to see the desire of minorities being fulfilled that their children should be brought up properly and efficiently and acquire eligibility for higher university education and go out in the world fully equipped with such intellectual attainments as will make them fit for entering public services, educational institutions imparting higher instructions including general secular education. Thus, the twin objects sought to be achieved by Article 30(1) in the interest of minorities are: (i) to enable such minority to conserve its religion and language, and (ii) to give a thorough, good general education to the children belonging to such minority. So long as the institution retains its minority character by achieving and continuing to achieve the above said two objectives, the institution would remain a minority institution.

98. The learned Judges in Kerala Education Bill were posed with the issue projected by Article 29(2). What will happen if the institution was receiving aid out of State funds? The apparent conflict was resolved by the Judges employing a beautiful expression. They said, Articles 29(2)and 30(1), read together, clearly contemplate a minority institution with a 'sprinkling of outsiders' admitted in it. By admitting a member of non- minority into the minority institution, it does not shed its character and cease to be a minority institution. The learned Judges went on to observe that such 'sprinkling' would enable the distinct language, script and culture of a minority being propagated

amongst non-members of a particular minority community and that would indeed better serve the object of conserving the language, religion and culture of that minority.

99. Chief Justice Hidayatullah, speaking for the Constitution Bench in State of Kerala. v. Very Rev. Mother Provincial has not used the expression 'sprinkling' but has explained the reason why that was necessary. He said:

"It matters not if a single philanthropic individual with his own means, founds the institution or the community at large contributes the funds. The position in law is the same and the intention in either case must be to found an institution for the benefit of a minority community by a member of that community. It is equally irrelevant that in addition to the minority community others from other minority communities or even from the majority community can take advantage of these institutions. Such other communities bring in income and they do not have to be turned away to enjoy the protection". (SCC p.420, para

8)

102. It necessarily follows from the law laid down in Pai Foundation that to establish a minority institution the institution must primarily cater to the requirements of that minority of that State else its character of minority institution is lost. However, to borrow the words of Chief Justice S.R. Das in Kerala Education Bill a 'sprinkling' of that minority from other State on the same footing as a sprinkling of non-minority students, would be permissible and would not deprive the institution of its essential character of being a minority institution determined by reference to that State as a unit." (emphasis supplied)

27. A perusal of the memorandum of association/bye-

laws of the petitioner institution shows that the petitioners do

not provide for any special rights or privileges such as

reservation etc. to the children of the Sikh minority

community. From the aforesaid decisions it appears that to

become eligible to avail of the protection under Article 30(1) of

the Constitution, not only should the educational institution be

one established and administered by the minority community,

but also it should primarily caters to the needs of the said

minority community. It appears that petitioner Nos.2 to 5

were established predominantly by the „Sikh‟ Minority

Community and it also appears that petitioner Nos.2 to 5 are

being administered by the petitioner No.1 DSGMC, i.e. the

„Sikh‟ Community. However, the third essential requirement

that the petitioner institutions should primarily be catering to

the students of the „Sikh‟ Community does not appears to be

satisfied. In fact, Mr. Tulsi, learned senior counsel for the

petitioners candidly admitted in the course of his arguments

that the „Sikh‟ Community does not believe in providing

reservations to its own community and it is in implementation

of that philosophy that the petitioner institutions have not

incorporated any provision in their memorandum of

association/bye-laws to provide any special privileges to the

students of the „Sikh‟ Community. It, therefore, appears that

the petitioner institutions do not qualify for the protection

granted to MEIs under Article 30(1) of the Constitution. The

petitioner institutions do not satisfy the definition of "Minority

Educational Institution" contained in Section 2(f) of the CE

1(R&A) Act since they cannot be said to be institutions

established and administered by the minorities under Article

30(1) of the Constitution upon the application of the

interpretation given to the said provision by the Supreme

Court In Re: The Kerala Education Bill (supra) and in P.A.

Inamdar (supra), and there is no declaration made by either

the Parliament or by the Central Government or by the NCMEI

to the effect that any of the petitioner institutions are MEIs.

On the other hand, the petitioner Nos.2 to 5 fall within the

definition of "Central Educational Institution" contained in

Section 2(d) of the CEI (R&A) Act, 2006 since each one of them

is undisputedly "an institution maintained by or receiving aid

from the Central Government, whether directly or indirectly,

and affiliated to" the respondent Delhi University, which is

established by the Delhi University Act- a Central enactment.

Consequently, it follows that the petitioner institutions cannot

avoid the implementation of the CEI (R&A) Act 2006, and the

petitioner institutions are not saved by the exception carved

out in respect of MEIs under Article 15(5) of the Constitution.

The order passed by the NCMEI in case No.152/05 dated

10.05.2006, in my view, cannot be said to be a declaration

made by the said commission in terms of Section 11(f) of the

NCMEI Act. The petitioner institutions have not been declared

to be MEIs either by an act of Parliament, or by the Central

Government. Therefore, it cannot be said that the petitioner

institutions fall within the definition of the expression "Minority

Educational Institutions" contained in Section 2(f) of the CEI

(R&A) Act, 2006.

28. The submission of Mr. Nigam that assuming that

the petitioner institutions are MEIs, by virtue of the General

Financial Rules, they are bound to provide reservations,

however, does not appear to be correct. As pointed out by Mr.

Tulsi the Supreme Court in In Re The Kerala Education Bill,

1957 (supra) has held that merely because a MEI is in receipt

of grant-in-aid, it is not bound to admit students of other

communities. This position has been reiterated by the

Supreme Court in Ashok Kumar Thakur (supra). The

Supreme Court, in para 100 of this judgment has held:

"Minority institutions are also entitled to the exercise of fundamental rights under Article 19(1)(g) of the Constitution, whether they be aided or unaided. But in the case of Article 15(5), the minority educational institutions, whether aided or unaided, are excluded from the purview of Article 15(5) of the Constitution."

29. For the aforesaid reasons, I dismiss the aforesaid

application filed by the petitioners and hold that during the

pendency of the writ petition, the petitioner shall be bound to

implement the reservation policy of the Government of India in

respect of Other Backward Classes by providing 27%

reservation while admitting students to the courses run by the

petitioner institutions.

30. Any observation made by me in this order shall,

however, not come in the way of the petitioner, if an issue is

raised before the competent forum with regard to the

petitioners‟ status as MEI, or at the time of hearing of this

petition.

VIPIN SANGHI JUDGE JULY 25, 2008 as/aj/rsk