Karnataka High Court
Sri Venkataramana Swamy Vidyavardhaka ... vs The State Of Karnataka on 15 December, 2023
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO.13834 OF 2018 (EDN-RES)
BETWEEN:
SRI VENKATARAMANA SWAMY
VIDYAVARDHAKA SANGHA
KATAPADI
UDUPI DISTRICT-574 105
REPRESENTED BY ITS PRESIDENT
...PETITIONER
(BY SRI.M S PARTHASARATHI, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS
PRINCIPAL SECRETARY
GOVERNMENT PRIMARY &
SECONDARY EDUCATION
M S BUILDING, BENGALURU-560001
2. THE COMMISSIONER FOR
PUBLIC INSTRUCTIONS
PRIMARY & SECONDARY EDUCATION
NEW PUBLIC OFFICES
NRUPATHUNGA ROAD, K R CIRCLE
BANGALORE-560001
2
3. THE DIRECTOR OF PUBLIC INSTRUCTIONS
SECONDARY EDUCATION
NEW PUBLIC OFFICES
NRUPATHUNGA ROAD, K R CIRCLE
BANGALORE-560001
4. THE DEPUTY DIRECTOR OF
PUBLIC INSTRUCTIONS
UDUPI DISTRICT
UDUPI-576101
5. THE BLOCK EDUCATION OFFICER
UDUPI
UDUPI DISTRICT-576101
...RESPONDENTS
(BY SMT. PRAMODHINI KISHAN, AGA FOR R-1 TO R-5 A/W
SMT. ANUKANKSHA KALKERI, HCGP FOR R-1 TO R-5)
THIS W.P. IS FILED UNDER ARTICLES 226 & 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE NOTIFICATION
DTD 18.6.2014 ISSUED BY THE R-1 VIDE ANNEXURE-L
AND QUASH THE ENDORSEMENT DTD 25.01.2018 PASSED BY THE
R-1 VIDE ANNEXURE-N.
THIS PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 14.12.2023, COMING ON FOR PRONOUNCEMENT OF
ORDER THIS DAY, THE COURT MADE THE FOLLOWING:
3
ORDER
The captioned writ petition is filed seeking following
reliefs:
"a) Quash the Notification dated 18.06.2014
bearing No.ED 27 MAHITI 2012 (Part-I) issued by the 1st
Respondent vide Annexure-L.
b) Quash the endorsement dated 25.01.2018
bearing No.ED 2010 SOH 2016 passed by the 1st
Respondent vide Annexure-N.
c) Pass any order of consequential relief or any
other appropriate order or direction as this Hon'ble Court
deems fit in the facts and circumstances of the case in
the ends of justice and equity."
2. The petitioner-Society claims that it is running
several educational institutions which are declared to be
Linguistic Minority Institution. The petitioner-Society claims
that the members of the Society are of Konkani speaking
population. Therefore, Society claims that it has been
declared to be the minority institution vide Government letter
dated 15/16.02.1994. The grievance of the Society before
this Court is that respondent No.1 vide impugned
endorsement dated 25.01.2018 as per Annexure-N placing
reliance on the Notification dated 18.06.2014 issued by
respondent No.1 has withdrawn the declaration granted in
favour of the Society on the ground that the petitioner-Society
does not have the strength of more than 25% of students
having Konkani as the mother tongue in the institution.
Therefore, petitioner-Society has knocked the doors of the
Court questioning the Government Notification prescribing
minimum percentage of linguistic students to retain the
character of minority status. The impugned notification vide
Annexure-L and consequent endorsement vide Annexure-N are
challenged by the petitioner on the ground that the petitioner-
Society is declared to be a minority institution way back in
1994 and therefore, the present petitioner-Society cannot be
called upon to adhere to the requisite number of students
from linguistic community in terms of fresh notification issued
by the respondent No.1 vide Annexure-L. The petitioner-
Society has also questioned the impugned notification vide
Annexure-L on the ground that Section 141 of Karnataka
Education Act, 1983 (for short 'the Act') clearly contemplates
that nothing in the Act or the Rules made under this Act shall
apply to any Minority Educational Institution to the extent
which is found to be inconsistent with the rights guaranteed
under Article 30(1) of the Constitution of India. The plaintiff
also claims that as per Article 30(1) of the Constitution, all the
minority institutions whether based on religion or language
shall have absolute right to establish and administer
educational institution of their choice. On these set of
grounds, the impugned notification vide Annexure-L and
consequent endorsement as per Annexure-N withdrawing the
status is called in question.
3. The respondent No.1/State has filed statement of
objections in connected writ petition bearing
W.P.No.2702/2014. The State has not filed statement of
objections in the present captioned petition.
4. Learned counsel appearing for the petitioner
reiterating the grounds urged in the captioned petition would
vehemently argue and contend that respondent No.1 cannot
withdraw the minority status on the ground that institution
does not possess requisite number of students from the said
community. He would vehemently argue and contend that
while minority status was conferred on the petitioner -Society,
no condition was imposed. Therefore, subsequent notification
vide Annexure-L cannot be implemented against the
petitioner-Society to review the minority status. Reliance is
placed on Section 2(21) of the Act to contend that the
institution should be established by person coming from a
state linguistic minority and if education institution is
established and administered by minority, the said right is
insulated and protected under clause (1) of Article 30 of the
Constitution of India. He would further contend that these
impugned notifications are not enforceable without amending
Education Act.
5. Learned counsel has placed reliance on the
following judgments:
1) Sri M.V.Dixit and Others vs. State of Karnataka and Others
- ILR 2004 KAR 3802;
2) Hindustan Times and Others vs. State of U.P. and Another
- (2003) 1 SCC 591;
3) Punjab State Warehousing Corporation, Chandigarh vs.
Manmohan Singh and Another - (2007) 9 SCC 337.
6. Placing reliance on the above said judgments, he
would vehemently argue and contend that if a school is a
minority institution, the government only formally declares
that the said institution is a minority institution. By issuing
such a declaration, it merely recognizes the factual position
that the institution was established and is being administered
by a minority community either religious or linguistic. He
would vehemently argue and contend that declaration is
merely an open acceptance of legal character of the institution
which must necessarily have existed antecedent of such
declaration. Reliance is also placed on the judgment rendered
by the Apex Court in the case of N.Ammad vs. Manager,
Emjay High School and Others1.
7. Referring to Section 2(21), he would further
contend that the above provision does not lead to any
ambiguity and it is quite clear that a minority status is to be
determined on the basis of a person who has established the
institution. It is the status of those persons administering an
educational institution which would confer a status and that it
is the only criteria to declare institution as a minority
institution. He would further point out that if management is
constituted by the members belonging to the minority, then it
has to be considered as a linguistic minority. He would further
emphasize that the definition under Section 2(21) of the Act
commences with the word "means" and the Apex Court in the
case of Feroze N.Dotivala vs. P.M.Wadhwani and Others2
would point out that the definition of the word beginning with
"it means" cannot be further subjected to any interpretation.
(1998) 6 SCC 674
(2003) 1 SCC 433
Reliance is also placed on the judgment rendered by the Apex
Court in the case of Bihar State Madrasa Education Board
vs. Madrasa Hanfia Arabic College Jamalia & Others3.
Referring to the principles laid down in the said judgment, he
would point out that Apex Court has held that for running a
minority institution, it is not necessary that majority of
members should belong to that particular religious minority
group or linguistic minority group. Placing reliance on
S.K.Mohd. Rafique vs. Managing Committee, Contai
Rahamania High Madrasah & Others4, he would further
contend that the impugned notification vide Annexure-L
requiring requisite number of students to retain a minority
status does not augur well with the practice of educational
institution maintaining a proper balance by admitting students
from different communities. He would contend that the State
cannot impose a condition that students from a particular
(1990) 1 SCC 428
(2020) 6 SCC 689
group are to be admitted in a sizeable number in a minority
educational institution.
8. Referring to these judgments and grounds urged in
the captioned petition, he would contend that respondents are
not entitled to review the minority status by fixing the
percentage of students and therefore, he would request this
Court to quash the impugned notification issued by the
respondent No.1/State vide Annexure-L and consequent
endorsement withdrawing the declaration.
9. Learned AGA, however, has countered the grounds
urged in the captioned petition and also the arguments
addressed. Learned AGA by referring to definition of Sections
2(f) and 2(g) of National Commission for Minority Education
would contend that it is well within the discretion of the
Government to review the minority status. Placing reliance on
para 153 of the judgment rendered by the Apex Court in the
case of T.M.A.Pai Foundation and Others vs. State of
Karnataka5, would contend that Apex Court has clearly held
that the aided linguistic minority education has to admit
students belonging to linguistic minority to a reasonable
extent to ensure that its minority character is preserved and
that the objective of establishing the institution is not
defeated. He would further contend that the condition that
2/3rd management should belong to the concerned linguistic
community and 2/3rd students admitted in a linguistic minority
education should belong to linguistic community is now
relaxed from 75% to 25%.
10. Referring to Section 21 of the General Clauses Act,
1897, learned AGA submits that power to issue, to include,
power to add to, amend, vary or rescind notification is
permissible. Referring to Article 162, learned AGA would also
point out that the said Article does confer power on the State
subject to provisions of the Constitution and the Legislature of
the State has power to make laws.
AIR 2003 SC 355
11. Heard learned counsel appearing for the petitioner
and learned AGA appearing for the State. I have examined
the records placed by both the parties.
12. Vide impugned notification at Annexure-L, the State
Government has fixed the benchmark to admit students from
a linguistic community at 25%. The petitioner-Society's claim
is that State Government has no power to regulate and fix the
minimum percentage of students from minority community to
retain the character and status of linguistic minority. The
object underlying Article 30(1) of the Constitution is to see the
desire of minorities being fulfilled and that the children are
brought up properly and effectively and that would enhance
their skills to acquire eligibility for higher education. The twin
objects sought to be achieved by Article 30(1) in the interest
of either linguistic or religious minorities are, (i) to enable
such 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 aforesaid
two objectives, the institution would remain a minority
institution.
13. In the present case on hand, though petitioner-
Society is conferred with linguistic minority status which is a
Konkani linguistic minority institution, it has only three
students which is indicated in the endorsement vide Annexure-
N issued by the respondent No.1 withdrawing the minority
status on the ground that the Society does not possess
students to retain the character of linguistic minority status.
14. In St. Stephen's College vs. University of
Delhi6, the Apex Court held that Article 30(1) is a protective
measure only for the benefit of the religious and linguistic
minorities and "no ill fit or camouflaged institution can get
away with a constitutional protection."
15. The Apex Court in T.M.A.Pai's case (supra) has
made the following observations:
(1992) SCC 558
"................If so, such an institution is under an
obligation to admit the bulk of the students fitting into
the description of the minority community. Therefore,
the students of that group residing in the State in which
the institution is located have to be necessarily
admitted in a larger measure because they constitute
the linguistic minority group as far as that State is
concerned. In other words the pre-dominance of
linguistic minority students hailing from the State in
which the minority educational institution, is established
should be present. The Management bodies of such
institutions cannot resort to the device of admitting the
linguistic students of the adjoining states in which they
are in a majority, under the façade of the protection
given under Article 30(1)."
16. As regards the prescription of percentage in
governing admissions in the minority educational institutions,
it would be useful to extract the following observations made
by the Apex Court in the same judgment which would be
relevant and the same reads as under:
"........The situation would vary according to the
type of institution and the nature of education that is
being imparted in the institution. Usually, at the school
level, although it may be possible to fill up all the seats
with the students of the minority group, at the higher
level, either in colleges or in technical institutions, it
may not be possible to fill up all the seats with the
students of the minority group. However, even if it is
possible to fill up all the seats with students of the
minority group, the moment the institution is granted
aid; the institution will have to admit students of the
non minority group to a reasonable extent, whereby the
character of the institution is not annihilated, and at the
same time, the rights of the citizen engrafted under
Article 29(2) are not subverted."
17. In the light of the law laid down by the Apex Court
in the judgment cited supra, what can be inferred is that the
State can prescribe percentage of minority community to be
admitted in minority educational institution taking into account
the population and educational needs of the area in which the
institution is located. However, it does not mean that
linguistic minority institution cannot admit non-minority
students. To maintain a balance, the institution while
preserving rights of minorities can admit non-minority
students. However, admitting non-minority students should
not be violative of minority character of the institution. It is
significant to mention here that Section 12C(b) of the National
Commission for Minority Educational Institutions Act, 2004 (for
short 'the NCMEI Act') also empowers the State Government
to prescribe percentage governing admissions in the minority
educational institution. Therefore, it is well within the domain
of the State to prescribe percentage governing admission of
students in the minority educational institution in accordance
with the aforesaid principles of law enunciated by the Apex
Court in the case of T.M.A.Pai's (supra) and P.A.Inamdar
vs. State of Maharashtra7.
18. The emphatic point in P.A.Inamdar (supra) is
that minority educational institution is primarily for the benefit
of minority. Sprinkling of the non-minority students in the
student population of minority educational institution is
expected to be only peripheral either for generating additional
(2005) 6 SCC 537
financial source or for cultural courtesy. Thus, a substantive
section of student population in minority educational
institution should belong to the minority.
19. On reading of Article 30(1) of the Constitution
conjointly with a stream of authoritative pronouncements of
the Apex Court and bearing in mind the definition of Minority
Educational Institution in Section 2(g) of the NCMEI Act, the
following facts should be proved for grant of minority status to
an educational institution or to review/recall the status:
(i) that the educational institution is established by a
member/members of the religious minority community;
(ii) that the educational institution is established for the
benefit of the minority community; and
(iii) that the educational institution is being administered
by the minority community.
20. Therefore, in view of the above said criteria, an
educational society/trust/institution to retain its character of
minority status must maintain some positive index to enable
the educational institution to be identified with religious
minorities. There should be nexus between the means
employed and the ends desired.
21. The contention of learned counsel appearing for the
petitioner that once an institution is declared as a minority
institution, the same cannot be reviewed and recalled, cannot
be acceded to. Even if an entity is declared as a linguistic
minority institution entitling the rights envisaged under Article
30(1) of the Constitution of India, in the event there is a
fundamental change of circumstances or if the State is
apprised of suppression of facts, it is well within the authority
or the State Government or the concerned competent
authority to withdraw the status. However, it is settled that in
administrative order involving civil consequences, has to be
passed strictly in conformity with the principles of natural
justice.
22. This Court is also not inclined to accede to the
arguments that since the institution is managed by minority
community that in itself meets the requirement of Article
30(1). Under Article 30(1), the requirements of establishment
and management have to be read conjunctively. The twin
requirements have to be fulfilled and in absence of one, an
institution cannot retain its minority status. The Apex Court
has consistently held that the State while declaring institution
as a minority educational institution, it merely recognizes the
factual position that institution was established and is
administered by the minority community. The declaration is
merely an open acceptance of legal character of institution
which must necessarily have existed antecedent to such
declaration. Such a declaration is neither necessary nor
decisive of the character of institution in question as a
minority educational institution. It is ultimately for the Court
to decide whether institution in question is a minority
institution or not.
23. In the present case on hand, the notification as per
Annexure-L prescribing minimum percentage of linguistic
minority students is called in question. In the light of the
principles discussed supra, the State Government is vested
with power to fix norms and conditions fixing 25% minimum
benchmark is not found to be violative of Article 30(1). The
petitioner-Society has failed to meet the requirements
prescribed by the State Government under policy guidelines
framed by the State Government for regulation or retaining
the status of linguistic minority institution. The material on
record clearly gives an indication that State has given
sufficient opportunity to the institution to show cause as to
why order conferring linguistic minority institution should not
be withdrawn. The officials of respondent No.1 on spot
inspection and after verifying the records, have found that
petitioner-Society has only 1.88% of students belonging to
linguistic minority, while the prescribed benchmark is 25%.
This clearly violates the minimum requirement prescribed by
the State to retain the character of linguistic minority status.
On verification of the records during inspection and
investigation, the officials have found that petitioner-Society
has failed to admit students belonging to linguistic minority
community as per Rules and prescribed percentage governing
admission during any academic year.
24. For the reasons stated supra, I am not inclined to
interfere with the notification issued by respondent No.1 vide
Annexure-L and the consequent endorsement vide Annexure-
N. Accordingly, I pass the following:
ORDER
The writ petition is dismissed.
The pending interlocutory application, if any, does not
survive for consideration and stands disposed of.
Sd/-
JUDGE
CA
