Delhi High Court
Tk Trust Public School vs The Central Board Of Secondary ... on 12 January, 2018
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 12.01.2018
+ LPA 15/2018 & CM Nos.1345-1347/2018
TK TRUST PUBLIC SCHOOL ..... Appellant
Through: Dr. M.P. Raju with Mr. Jose
Abraham, Mr. M.P. Srivignesh, Mr. Blessen
Mathews & Ms. Sarah Shaji, Advs.
versus
THE CENTRAL BOARD OF SECONDARY EDUCATION &
ANR ..... Respondents
Through: Mr. Amit Bansal with Ms. Seema
Dolo, Advs. for CBSE.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE A. K. CHAWLA
ORDER
% 12.01.2018
1. The appeal is directed against the order of the learned Single
Judge rejecting the writ petition filed by the appellant Trust.
It sought a direction that the "deemed no objection" under Section
10(3) of the National Commission for Minority Educational
Institutions Act, 2004 (hereafter referred to as „the Act‟) resulted in
the „no objection certificate‟, which obliged the CBSE to affiliate
its school established by it. The Commission had adopted its
interpretation; the Trust sought enforcement of the Commission‟s
observations and order through the writ petition, which was
rejected by the impugned order. The Single Judge also imposed
costs.
2. Dr. M.P. Raju, learned counsel brought to the notice of the
Court Section 2(a) and Section 10 of the Act, to highlight that the
concept of affiliation is limited to affiliation of Colleges alone and
that the Single Judge fell into error in interpreting the provisions so
as to confine affiliation to the right to seek affiliation only to one
class of institutions i.e. the Colleges. It is also highlighted that in
the past the Central Board of Secondary Education (CBSE) was
directed, to grant the affiliation, which it did. Learned counsel for
the CBSE urged that this Court should not disturb the order of the
Single Judge and submitted that the right to seek affiliation is only
to Colleges as the tenor of Section 10A explicitly suggests.
3. The Act appears to be Parliament‟s attempt to consolidate
the legal position arising out of declaration of law by the Supreme
Court in various Larger Bench formations (Kerala Education Bill
1958 Supp. SLR 995; St. Xavier's College v. State of Gujarat 1975
1 SCC 175 and T.M.A. Pai Foundation v. State of Karnataka 2002
8 SCC 481). The essential requirements for establishing minority
education have been spelt out in the latter two judgments.
It appears that the Commission‟s task is to discern whether those
tests are fulfilled and assist the concerned authorities in the
functions assigned to them in various statutes - both State and
Central. This is evident from Section 10; Section 2(a) states as
follows:
"Section 2(a)-
In this Act, unless the context otherwise requires, -
"affiliation" together with its grammatical
variations, includes, in relation to a college,
recognition of such college by, association of such
college with, and admission of such college to the
privileges of, a University."
The above definition of affiliation, in the opinion of the Court, is
not confined only to the institutions of higher learning such as
Colleges but being an inclusive one would also extend to other
educational institutions as well. This is apparent from the
definition of minority educational institutions under Section 2(g)
which reads as follows:
"Section 2(g)
"Minority Educational Institution" means a
college or institution (other than a University)
established or maintained by a person or group of
persons from amongst the minorities.
[prior to National Commission for Minority
Educational Institutions (Amendment) Act, 2010
(Act No. 20 of 2010): "Minority Educational
Institution" means a college or an educational
institution established and administered by a
minority or minorities.]"
4. Section 10 does not authorize the National Commission for
Minority Educational Institutions per se to declare that an applicant
is a minority institution. It merely provides for the mechanism,
whereby, a competent authority has to deal with the application of
an institution which states that it is a minority educational
institution. This is apparent from Section 10(2) and 10(3). Section
10(2), (3) and (4) read as follows:
"Section 10
(1) xxxx xxxx xxxx
(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 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.
Explanation.- For the purposes of this section,-
(a) "applicant" means any person who makes an
application under subsection (1) for establishment
of a Minority Educational Institution;
(b) "no objection certificate" means a certificate
stating therein, that the Competent authority has
no objection for the establishment of a Minority
Educational Institution."
5. Thus, the "deemed no objection" arising on account of
Section 10(3) is only for the purpose of establishing that the
institution concerned, fulfils the criteria of minority educational
institution under the Act. This is also clear that the purpose of the
"deemed no objection" is "for the establishment of a minority
educational institution" - in terms of Section 10(4) explanation.
It is quite apparent, therefore, that the right to establish the
minority educational institution is not per se controlled by
provisions of the Act; rather that arises from the larger right, which
all minorities have under Article 30 of the Constitution. The
provisions of the Act appear to be to only regulate the concerns of
institutions, who may face inordinate delay, in seeking the
declaration. At the same time, however, no provision of the Act
entitles any institution to claim a right to affiliation per se. Even
the lone provision i.e. Section 10A merely enables an institution
such as a College, to apply for affiliation, and, if not informed in
time, within 60 days to seek explanation for the delay in the
processing of its application for affiliation. This is understandable
because the right to seek affiliation is dependent upon fulfillment
of various regulatory conditions and criteria that statutory
authorities may require and insist upon, depending on the scheme
of various annexures. As far as schools are concerned, the
"deemed no objection" under the Act would only mean that the
State cannot object to the minority status. However, the institution,
would nevertheless, have to seek the no objection or clearance
from the local or state authorities to establish the school having
regard to the stipulated criteria for school or college education such
as availability of land, location, financial resources, etc. Equally,
the right to seek affiliation from a Board or from the state
authorities by the Board would also depend upon the educational
institution fulfilling the basic conditions spelt out from such
authority or Board. To that extent, the Single Judge interpreted
Section 2(a) restrictively, it appears, there is a clear error. Equally,
the right to seek affiliation being a larger one, cannot be said to be
per se regulated by Section 10A. Therefore, in view of the analysis
and discussion by this Court, all that can be said is that the
"deemed no objection" obtained by the appellant is only for the
purpose of stating that it is a minority educational institution.
However, it would still have to fulfil the other criteria to establish a
school i.e. no objection/clearance from the concerned state
authorities and based upon that, seek affiliation from the CBSE.
The directions of the Single Judge, to pay costs, in view of
the above discussion, are hereby set aside. The appeal is disposed
of in the above terms. All the pending applications also stand
disposed of accordingly.
S. RAVINDRA BHAT, J
A. K. CHAWLA, J
JANUARY 12, 2018
kks
