Punjab-Haryana High Court
Director School Education vs National Commission For ... on 8 July, 2022
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
LPA No.349 of 2021 (O&M)
Date of Decision: July 8th, 2022
The Director School Education, Department of Education,
Chandigarh Administration, Chandigarh
....Appellant
Versus
National Commission for Minority Educational Institution, New Delhi
and others
....Respondents
CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH
HON'BLE MR. JUSTICE SANDEEP MOUDGIL
Present: Mr. Anil Mehta, Senior Standing Counsel for U.T. Chandigarh
with Mr. Sumeet Jain, Additional Standing Counsel,
for the appellant.
Mr. Rajiv Atma Ram, Senior Advocate
with Mr. Arjun Pratap Atma Ram, Advocate
and Mr. Bhagoti Singh, Advocate
for respondents No.2 to 4.
AUGUSTINE GEORGE MASIH, J.
Writ Petition had been filed by the Director School Education,
Department of Education, Chandigarh challenging the order dated 10.09.2014
(Annexure P-13) passed by National Commission for Minority Educational
Institution (hereinafter referred to as 'NCMEI')-respondent No.1, holding and
declaring St. Kabir Public School-respondent No.3 (hereinafter referred to as
respondent No.3-School) as a minority educational institution under Section 2
(g) of The National Commission for Minority Educational Institutions Act,
2004 (hereinafter referred to as '2004 Act') and the order dated 14.03.2017
(Annexure P-18) passed by the said respondent No.1-NCMEI vide which
complaint preferred by respondent No.3-School against the show cause notice
issued by the Chandigarh Administration has been accepted and direction
issued restraining the appellant from imposing any reservation for
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economically weaker section of society on the school, which stands dismissed
vide order dated 20.03.2020 passed by the learned Single Judge upholding the
impugned orders which are under challenge in this intra-Court appeal.
2. It is the contention of learned counsel for the appellant that the
NCMEI-respondent No.1 has no jurisdiction to entertain an application for
declaration of an institution/school as a minority institution under Section 11 of
the 2004 Act, rather under Section 10 of the said Act, a petition is maintainable
at the first instance before the competent authority, which in the case of
Union Territory of Chandigarh is the Director School Education, Chandigarh.
Direct approach on the part of respondent No.3-School is unsustainable and the
order dated 10.09.2014 (Annexure P-13) passed by NCMEI being without
jurisdiction cannot sustain. It is contended that the declaration which has been
issued by respondent No.1-NCMEI qua respondent No.3-School being in
violation of the statutory provisions does not confer any right on the school
and, therefore, the consequential order dated 14.03.2017 (Annexure P-18)
based upon the declaration dated 10.09.2014 (Annexure P-13) cannot be
sustained. This, the counsel contends, is for the reason that the show cause
notice issued by the Chandigarh Administration was issued as per the terms
and conditions of allotment letter dated 13.10.1988 and additionally under and
as per the provisions of The Capital of Punjab (Development and Regulation)
Act, 1952 (hereinafter referred to as '1952 Act') and the rules framed
thereunder. Since as per the terms and conditions of allotment, it was specified
that the admission of the institution shall be subject to direction/instructions
which the Director Public Instructions (Schools/Colleges), Chandigarh, may
issue from time to time, respondent No.3-School was bound to comply with the
same, which mandated 15% seats to be kept for the weaker section of the
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society which is also provided and is as per The Right of Children to Free and
Compulsory Education Act, 2009 (hereinafter referred to as 'Education Act,
2009'). Respondent No.1 has proceeded on the assumption as if the 2004 Act
has overriding effect in the light of the provision of Section 22 of the said Act
over the 1952 Act which is incorrect as both these Acts cover a totally different
field and has no connection whatsoever with an institution being a minority
institution or not. Counsel contends that respondent No.3-School has
approached respondent No.1-NCMEI with the sole purpose to circumvent the
provisions of Education Act, 2009 which mandated and required 15% seats to
be kept for the economically weaker sections of the society by securing the
status of a minority educational institution for the school even though it has not
been established as and for such a purpose. Counsel for the appellant has
submitted that on facts it is apparent that at the time of incorporation of the
society or on establishment of respondent No.3-School by a society, it was
registered as a secular body. There was no mention of any minority character of
the said society nor was it mentioned that it is being established by religious or
linguistic minority. It is at a subsequent date that such incorporation has been
made in the memorandum of association and that too for the purpose of
bringing it within the ambit of minority institution so as to be covered under
the 2004 Act. His submission is that initially the society was formed and
established on 15.09.1976 as a secular society. An application was submitted
for allotment of plot on the basis of the registered society as the
Kabir Education Society. The said application was accepted and plot in
Sector 26, Chandigarh, was allotted to respondent No.3-society on 13.10.1988.
The school became functional from the session 1991. First amendment to the
memorandum of association, especially the objects of the society was carried
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out on 24.12.1994, wherein it was said to be an organization of minority, where
the Punjabi language, Punjabi culture, history of Gurus and Prophets were to be
taught, however, admission to the school would be open to all irrespective of
caste, creed, community and religion. On 31.01.1996, the Chandigarh
Administration notified a scheme known as 'The Allotment of Land to
Educational Institutions (School) etc. on Lease-hold Basis in Chandigarh
Scheme, 1996 (hereinafter referred to as the '1996 Scheme'), according to
which the educational institutions were required to reserve 15% of the total
seats for the EWS category. This scheme was made applicable to all
institutions by virtue of their allotment letter. The Education Act, 2009 came
into force which was challenged before various High Courts. The matter went
up to the Supreme Court, where the Hon'ble Supreme Court in Society for
Un-aided Private Schools of Rajasthan Versus Union of India and another
2012 (6) SCC 1 while upholding the Education Act, 2009 Act gave a direction
that the Act will not be applicable to the extent that the unaided minority
schools as covered under Article 30 (1) of the Constitution were to be kept out
of the purview of the Act. This judgment was pronounced on 12.04.2012 and it
is thereafter to come out of the rigors of Education Act 2009 that respondent
No.3-School submitted an application under Section 11 of the 2004 Act before
the NCMEI for the grant of minority status. During the pendency of the said
application, memorandum of association relating to the objects of the society
was amended on 31.01.2013, where the Kabir Educational Society was stated
to be, especially and basically an organization of Sikh minority community in
Chandigarh, where the sublime philosophy of Sri Guru Granth Sahib Ji,
teachings of Sikh Gurus, Sikh Culture and Sikh history are being taught. It was
further incorporated that the society shall primarily safeguard the interest of the
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boys and girls of Sikh minority community. Additional affidavit by way of
replication in pursuance to the reply of the Chandigarh Administration was
filed by the Principal of the School, wherein for the first time, it was mentioned
that the members of the governing body of the society were Sikhs and were
following the said religion. This affidavit is dated 11.04.2013. It was also
admitted that it was being amended with an intention to bring it within the
ambit of minority institute. On this basis, it has been asserted that the
declaration which has been granted by NCMEI-respondent No.1 is
unsustainable in the light of the settled principle of law as laid down by the
Hon'ble Supreme Court while interpreting Articles 29 and 30 of the
Constitution of India in various judgments that the minority educational
institute should be established by minority and should be with an intention to
preserve, propagate and conserve religion, language, script, culture to the
religious and linguistic minorities. An institution, which has not been
established with an intention to be so as a minority institution and for the
purposes as laid down under Article 30 (1) of the Constitution, cannot at a later
stage be declared as a minority institution. Counsel has contended, on the basis
of the above facts, that respondent No.3-School was never established as a
minority institution nor was the requirement of the establishing members being
belonging to the minority community (Sikh) been asserted or established and
further it was not set up for the purpose as provided under Article 30 (1) of the
Constitution of India and thus, respondent No.3-School cannot be a minority
institution. Prayer has thus been made for setting aside the impugned order
dated 10.09.2014 passed by NCMEI. On this basis, it has further been stated
that the subsequent order dated 14.03.2017 also cannot sustain as it is flowing
from the earlier order dated 10.09.2014 vide which respondent No.3-School
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was declared as a minority institution.
3. Counsel for the appellant has also challenged the impugned orders
by asserting that the judgments of the Hon'ble Supreme Court, which clearly
lays down the parameters for an institution to be declared as a minority
institution, have been referred to but not understood and applied in the right
perspective leading to an erroneous conclusion resulting in conferring the
status of a minority institution upon respondent No.3-School when there is no
such right entitling such a declaration to be issued. Prayer has thus been made
for setting aside the impugned judgment passed by the learned Single Judge as
also the impugned orders.
4. Learned counsel for the appellant has contended that the learned
Single Judge has proceeded on the wrong assumption that the Limitation Act
per se is applicable to the provisions of the Article 226 of the Constitution,
which confers the power of writ jurisdiction upon the High Court.
His submission is that merely because there is some delay in approaching the
High Court by way of a writ petition challenging the order dated 10.09.2014 in
the year 2018 after a period of three years, the same cannot in itself be a ground
to dismiss the writ petition when the power and jurisdiction of an authority
(NCMEI-respondent No.1) to entertain and issue declaration has been
challenged, meaning thereby that challenged orders are ultra vires the statute
and beyond the adjudicating scope of the authority and thus, non est in law.
In any case, the subsequent order which has also been challenged is dated
14.03.2017 and the writ was filed in February, 2018.
5. Reliance has been placed upon the judgment of the Supreme Court
in Smt. Sudama Devi Versus Commissioner and others (1983) 2 SCC 1.
Reference has also been made to the judgment of the Supreme Court in
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State of U.P. and others Versus Raj Bahadur Singh and another (1998) 8
SCC 685. Reliance has also been placed upon the judgment of the Supreme
Court in Ramachandra Shankar Deodhar and others Versus State of
Maharashtra and others (1974) 1 SCC 317, where the Hon'ble Supreme Court
has held that it must be remembered that the rule which says that the Court may
not inquire into belated and stale claims is not a rule of law but a rule of
practice based on sound and proper exercise of discretion and there is no
inviolable rule that whenever there is delay, the Court must necessarily refuse
to entertain a petition. Each case must depend upon its own facts. On this basis,
counsel for the appellant has submitted that the judgment passed by the learned
Single Judge cannot be justified on rejecting the challenge to the impugned
orders, especially when the delay has been explained which has been referred
to in the judgment itself by the learned Single Judge. In any case, he asserts
that the learned Single Judge has on his own proceeded to decide the case on
merits keeping in view the important issue involved in the case. Prayer has thus
been made for setting aside the said finding as recorded by the learned Single
Judge on the ground of delay and laches.
6. On the other hand, learned Senior Counsel for the respondents
No.2 to 4 (contesting), referring and emphasizing upon the pleadings, has
asserted that although the initial memorandum of association did not refer to
the aspect of it being a minority institution or for the protection and
preservation of the culture and heritage of Sikhism including the propagation
thereof but subsequently with the amendment of 24.12.1994 and 31.01.2013,
it was clearly spelt out that it was established as a minority educational
institution for the purpose and intent as provided for and protected under
Articles 29 and 30 of the Constitution of India. Supporting the judgment of the
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learned Single Judge, learned Senior Counsel has asserted that as per the
provisions of the 2004 Act, under Section 10 of the said Act, an application is
to be submitted to the competent authority, where a new institution has to be
established and that too as a minority institution. The said section would not be
applicable to the already established institutions. For the institutions which
were in existence at the time of coming into force of the 2004 Act as amended
in the year 2006, an application would lie to the NCMEI for a declaration to be
issued to the institution to be a minority institution. It is under these
circumstances that respondent No.3-School has proceeded to file an application
for declaration under Section 11 before respondent No.3 with regard to it being
a minority institution. It is asserted that the Chandigarh Administration has not
denied the fact that the founding members of respondent No.3 society were
Sikhs by religion and had been following Sikhism as there is no rebuttal to the
assertion made either before the NCMEI or in the writ petition which has been
preferred by the appellant. He submits that the institution having been
established by a minority, would be a minority institution, especially when it is
being administered by the minority and that too for preserving, propagating and
enhancing the Sikh religion and Punjabi language. With the amendment of
31.01.2013, the interest of the Sikh minority community students, both boys
and girls, was intended to be safeguarded and accordingly prayer has been
made for dismissing the appeal on merits.
7. Qua the aspects of delay and laches of the writ petition and the
findings by the learned Single Judge, reference has been made by the learned
Senior Counsel for the respondents to the explanation which has been
submitted by the appellant in its writ petition which clearly shows the inaction
on the part of the appellant, rather it is more of a lethargy and uncertainty with
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regard to the action to be taken. With the team of legal officers assisting the
appellant, the explanation and the plea as has been submitted by the appellant
has rightly not been accepted by the learned Single Judge while dismissing the
writ petition on the ground of delay and latches, which is justified, as more
than three years had elapsed since the passing of the impugned order dated
10.09.2014 when challenged. Prayer has thus been made for accepting the
conclusion drawn by the learned Single Judge on the aspect of delay in
approaching the Writ Court. Prayer has been made for dismissal of the appeal.
8. We have considered the submissions made by the counsel for the
parties and with their assistance, have gone through the pleadings, records of
the case as also the judgment of the learned Single Judge.
9. The facts in sequence to understand the factual matrix are that the
Kabir Education Society was incorporated and a memorandum of association
was signed on 15.09.1976, which was registered. The memorandum of
association reads as follows:-
"MEMORANDUM OF ASSOCIATION
OF
'KABIR EDUCATIONAL SOCIETY'
1. Name: The name of the Society shall be "The Kabir Educational
Society". The principal registered office: office of the Society shall be at No.1,
Sector 8A, Chandigarh. Area of Operation: Chandigarh and India
2. Objects of the Society: The objects for which the Society is established
are:
(i) The advancement of knowledge and education in all its forms.
(ii) That management of public schools especially in Chandigarh and
generally in the whole of India for imparting such education as aids.
(a) The mental, physical, moral, cultural and general development of
children.
(b) The fostering in children the higher values of life, such as good
character, purity of thought, word and deed, discipline, spirit-de-corps,
comradeship, spirit of service and sense of duty,
(c) The training and grooming of the taught for the service of the Nation,
the Country and humanity at large.
(d) The promotion of arts service and technology for its application to the
progress, peace and prosperity of the country.
(iii) The taking of measures of providing scholar to the deserving children.
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(iv) To hire, purchase, acquire, hold and dispose of property and to do
generally all such things which may be necessary for the accomplishment of
the aforesaid objects.
(v) The Society will be a no profit earning Organization. Its income and
property shall strictly and be used towards the promotion of the aforesaid
objects of the Society. No member shall be to receive any share from the
profits.
3. Without prejudice to the generality of the forthcoming objects and for
the purposes of carrying out the same, the society shall have the power to
acquire, receive, hold property any kind, to manage, dispose of, or deal with
the property of any kind belonging to the Society, to enter into contracts for
and in connection any person in such manners as may be deemed fit for the
benefit of the Society.
4. Governing Council:
The names and addresses and occupations of the members of the Governing
Council of the society to whom the management and its affairs are entitle by
the rules and regulations are as follows:-
1. The President : Mr. J.P. Singh, 1/8-A, Chandigarh
2. Secretary : Mrs. Santosh J.P. Jingh
3. Member : Mrs. Surinder Chopra.
1270, 8-C, Chandigarh.
5. That Shri J.P.Singh is an eminent educationist by profession and has
much experience in the promotion of Public Schools. In fact, he is the
originator of the idea of the formation of this society. In view of this, he shall
be the President of the Society during his life time and his advice in regard to
the management of the affairs of the Society and School shall invariably be
follow.
After Shri J.P. Singh Mrs. Santosh J.P. Singh who too is connected with
the field of education shall be the Chairman of the Society in her lifetime.
We the undersigned have resolved to form a Society in pursuance of the
above Memorandum of Association to be registered under the Societies
Registration Act, 1860.
1. Mr. J.P. Singh House No.741, 8-B, Chd. Educationist
2. Mrs. Santosh J.P. Singh House No.741, 8-B, Chd. Educationist
3. Mrs. Suinder Chopra H.No.1270, 8-C, Chd. Housewife
4. Mr. Joginder Singh Chopra H.No.1270, 8-C, Chd. Controller of
Purchases & Stores
Bhillai, (M.P.)
5. Kanwar Jasbir Singh H.No.1, 8-A, Chd. Business
6. Mrs. Parduman Kaur H.No.1, 8-A, Chd. House wife
7. Amarjit Singh Kapur H.No.1, 8-A, Chd. Service Personnel
Officer, Bhillai, (M.P.)
Chandigarh Dated 15.09.1976"
ASSH: Estate Office,
U.T. Chandigarh
10. In pursuance to this memorandum of association, an application
was moved by the respondent-society for allotment of a site for school to the
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Chandigarh Administration which was accepted and on 13.10.1988
(Annexure P-1), Estate Officer, Union Territory Chandigarh, allotted a plot on
leasehold basis for 99 years for construction of a school subject to certain
conditions laid down therein. In the terms and conditions of the allotment
letter, in addition to provisions of Capital of Punjab (Development and
Regulation) Act, 1952 and the rules made thereunder. The Chandigarh Lease-
Hold of Sites and Building Rules were made binding on the lessee was another
condition which would be relevant for the present case, which reads as
follows:-
"The admission to the institution shall be subject to
directions/instructions which the Director Public
Instructions (Schools/Colleges), Chandigarh may
issue from time to time."
11. Respondent No.3-School accepted these terms and conditions
in toto and started functioning from the building so constructed from the
academic session 1991. It would not be out of way to mention here that the
respondent-society was incorporated as a secular entity which is apparent from
the objects of the society as enumerated in the memorandum of association
reproduced above. A glaring aspect which needs to be further elaborated herein
is, that it was neither established as a minority institution relatable to any
religion or language nor was it intended for the purposes as have been so
provided under Article 30 of the Constitution of India, which deals with right
of establishment and administering of an institution by the minority. It has not
even been mentioned that the said society has been established by the minority.
12. On 24.12.1994, the memorandum of association was amended for
the first time and an introductory paragraph was inserted in the objects of the
society which reads as follows:-
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"2. Objects of the Society:-
The objects for which the Society is established are:
Kabir Educational Society being essentially an
organization of Minority holding St. Kabir Public
School, Chandigarh as its functional wing where the
Punjabi Language, Punjabi Culture, History of
Prophets and Gurus are being taught on top priority
and is based on Articles 29 and 30 of the
Constitution of India (Cultural and Educational
Rights of Minorities). But, admission into the school
will be open to all irrespective of caste, creed,
community and religion. All religions will be fully
respected. This concept of the Society is based on the
social and secular philosophy of the great mystic St.
Kabir."
Rest of the objects of the society remained the same.
13. On 31.01.1996 (Annexure P-3), Chandigarh Administration
notified scheme known as 'The Allotment of Land to Educational Institutions
(Schools) etc. on Lease-hold Basis in Chandigarh Scheme of 1996'. Condition
No.18 (ii) required the educational societies/institutions (schools)/trusts to
reserve 15% or more seats as may be determined by the Chandigarh
Administration from time to time, in the schools for students belonging to
economically weaker sections of the society. The said condition reads as
follows:-
"18. The Educational Societies/Institutions (Schools)/
Trusts shall be required:
(i) XXXX XXXX XXX
(ii) To reserve 15% or more seats as may be
determined by the Chandigarh Administration from
time to time, in the schools for students belonging to
economically weaker sections of the Society and the
fee charged from those students shall be nominal
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preferably the same as is charged from the students
of the Government Institutions"
14. National Commission for Minority Education Act, 2004 (2004
Act) came into force on 06.04.2005, which deal with the aspects relatable to
the minority institutions and the recognition/declaration as such of the minority
institutions.
15. On 29.07.2005 (Annexure P-4) in exercise of the powers conferred
under Section 3 and Section 22 of the Capital of Punjab (Development and
Regulation) Act, 1952 (1952 Act) and all other powers enabling him in this
behalf, the Administrator, Union Territory of Chandigarh, made certain
amendment to the Allotment of Land to Educational Institutions (schools) etc.
on Leasehold Basis in Chandigarh Scheme 1996. Clause 8 of this amendment
related to para 18 of the original scheme reads as follows:-
"i) Reserve 15% or more seats as may be
determined by the Chandigarh Administration from
time to time, in the schools for students belonging to
economically weaker sections of the Society and the
fee charged from those students be nominal
preferably the same as is charged from the students
of a Government Institutions. Provided that if for
certain reasons schools are unable to fill up these
15% seats reserved for economically weaker sections
in any academic year, the same shall be brought to
the notice of the Chandigarh Administration and the
concurrence of the competent authority shall be
obtained with reasons to be recorded in writing for
reducing/condoning this reservation for that
particular academic year"
16. On 19.02.2016 (Annexure P-6), Chandigarh Administration,
Education Department, in partial modification of its earlier Office Order dated
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12.09.2006 (Annexure P-5), appointed competent authority for grant of
'No Objection Certificate' in respect of institutions which imparted education
for establishment of minority educational institutions in U.T. Chandigarh under
Sections 10 and 12 (B) of the NCMEI Act, 2004, according to which the
Director Higher Education, Chandigarh Administration was appointed as the
competent authority in respect of institutions which impart education above
10+2 level and Director School Education, Chandigarh Administration,
in respect of institutions which impart education up to 10+2 level. For the
purpose of the present case, Director School Education, Chandigarh
Administration would be the competent authority as per the 2004 Act as
respondent No.3-School is imparting education up to 10+2 level.
17. Education Act, 2009 was enacted by the Parliament with an aim to
strengthen the elementary education system and to achieve the same, special
emphasis was laid upon the weaker sections of the society as also the
disadvantaged. To ensure that the provisions are given effect to, certain powers
were conferred upon the Central and the State Government to take action
against the schools including the supervisory powers. This Act was challenged
by the schools/institutions/trust in different High Courts.
18. When the matter was pending before the Courts, respondent No.3-
School applied for and was granted affiliation by the Central Board of
Secondary Education on 22.02.2011 (Annexure P-7). Clause 19 of the said
affiliation letter specified a condition that the admission to the school shall be
open to all without any discrimination on the ground of religion, caste or race
or place of birth or any of them. It would not be out of way to mention here that
the application which was submitted by respondent No.3-School did not
mention that the school is a Sikh minority institution nor was it mentioned that
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any special lectures or specific syllabus has been incorporated for propagating
and preserving the Sikh culture and interest of the Sikh community. The school
accepted the terms and conditions of affiliation thereby committed to adhere to
the same.
19. Challenge to the Education Act, 2009, ultimately landed up in the
Hon'ble Supreme Court, where Society for Unaided Private Schools of
Rajasthan Versus Union of India and another, (2012) 6 SCC 1 came to be
decided on 12.04.2012. The Education Act, 2009 was held to be
constitutionally valid with a rider that the unaided minority schools which
come within the purview of Article 30 (1) of the Constitution of India would
not be governed by the said Act, meaning thereby that they would be out of the
purview of the said Act.
20. It is after the judgment in Society for Unaided Private Schools of
Rajasthan's case (supra) having been pronounced by the Hon'ble Supreme
Court and with an intention to come out of the applicability of the Education
Act, 2009, an application was filed by respondent No.3-School before NCMEI-
respondent No.1 for grant of minority status and for declaration to the said
effect on 07.05.2012 (Annexure P-8). Along with the said application, an
affidavit was also filed of the even date by the President of the St. Kabir
Education Society and the Principal of the School. In this affidavit, for the first
time, it was stated that the society comprises of members of the Sikh
community and is managed by them. The school is being run by the society for
the benefit of the members of the Sikh minority community. It needs to be
mentioned here that even in these affidavits, it is nowhere stated that the
society was established by the minority for the benefit of the Sikh minority
community with an intention to propagate Sikhism and Punjabi language.
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21. During the pendency of the application before NCMEI-respondent
No.1, amendment to the memorandum of association was carried out by the
respondent-society relating to the preamble and objects of the society on
31.01.2013 by deleting the earlier amendment which was carried out in the
objects of the society on 24.12.1994, which amendments read as follows:-
"Preamble and Objects of the Society"
2. (a) Kabir Educational Society being essentially
and basically an organization of Sikh minority
community in Chandigarh and St. Kabir Public
School, (An Unaided School), Chandigarh is
its functional wing, where the sublime
philosophy of Sri Guru Granth Sahib Ji,
teachings of Sikh Gurus, Sikh Culture and Sikh
History are taught, is based on Article 29 & 30
of the Constitution of India, (Cultural
educational Rights of Minorities).
(b) But, the admission into the School shall not be
refused to the members of the other
communities.
(c) The Society shall primarily safeguard the
interests of the Boys and Girls of Sikh Minority
Community."
22. A perusal of the above would show that for the first time the
society mentioned in its objects that it would primarily safeguard the interests
of the boys and girls of the Sikh minority community. On 25.03.2013
(Annexure P-11), Union Territory of Chandigarh filed its reply before the
NCMEI and in response thereto, additional affidavit along with replication
dated 11.04.2013 (Annexure P-12) was filed before NCMEI. In this affidavit, it
was admitted that the memorandum of association has been amended to make it
consistent with the inherent tenets of the society and in the rejoinder, it was
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admitted that the memorandum of association has been so amended which
would result in getting the benefit of declaration as a minority institution. It is
in pursuance thereto on the basis of these pleadings that the impugned order
dated 10.09.2014 (Annexure P-13) was passed by NCMEI allowing the
application of respondent No.3-School and declaring it as a minority
institution.
23. When the process with regard to the steps to be taken in pursuance
to the order of NCMEI-respondent No.1 was being worked out, a show cause
notice dated 26.08.2015 (Annexure P-15) was served upon respondent No.3-
School by the appellant under Rule XX of the Chandigarh Leasehold of Sites
and Building Rules, 1973 (hereinafter referred to as '1973 Rules'), for non-
compliance, rather violation of the condition of allotment under the Scheme of
1996, whereby 15% seats were to be reserved and filled up from the
economically weaker sections of the society in the academic year as per the
instructions dated 19.09.2014 of the Director Public Instructions (Schools).
According to the stand of the appellant, the representative of respondent No.3-
School appeared before the Estate Officer, U.T. Chandigarh on 15.10.2015
(Annexure P-16) and made a statement that the school is being run by minority
institution and they are exempted from the EWS quota, however, they are ready
to comply with the instructions of the DPI as per the condition of the allotment
letter, which aspect is disputed by respondent No.3-School before this Court,
rather the stand of the school is that they approached the NCMEI against the
said show cause notice dated 26.08.2015 by way of an application which was
entertained by respondent No.1 and notice issued to the appellant on
15.03.2016. Reply was filed by U.T. Chandigarh before NCMEI-respondent
No.1 on 07.12.2016 highlighting the aspect that the requirement which has
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been imposed upon respondent No.3-School is as per the provisions of
Education Act, 2009 as also the terms and conditions of allotment letter dated
13.10.1988. Respondent No.1-NCMEI proceeded to set aside the show cause
notice vide impugned order dated 14.03.2017 (Annexure P-18), which has been
challenged by the appellant by way of CWP No.4211 of 2018 filed on
16.02.2018 which has been dismissed by the learned Single Judge vide
judgment dated 20.03.2020 leading to the filing of the present appeal.
24. The first and foremost question which requires to be dealt with at
the very outset is the plea with regard to the delay in challenging the order
dated 10.09.2014 (Annexure P-13) by way of a writ petition which was
preferred in February 2018 which has been emphasized upon by learned senior
counsel for the respondent with great vehemence. Referring to the facts and the
pleadings, learned senior counsel for the respondent has submitted that there is
a delay of 3 years and 5 months approximately in challenge to the impugned
order which is the basis for passing of the subsequent order dated 14.03.2017
(Annexure P-18). He contends that as long as the order dated 10.09.2014 holds
the field, which has the effect of declaring respondent No.3-School a minority
institution, the challenge to the subsequent order dated 14.03.2017 cannot
sustain as in case respondent No.3-School is a minority institution, then the
provisions of the Education Act, 2009 would not be applicable and, therefore,
there cannot be any mandate binding the school to reservation of seats for the
economically backward class category. He places reliance upon the judgment
of the Hon'ble Supreme Court in P.A. Inamdar and others Versus State of
Maharashtra and others 2005 (6) SCC 537 apart from others, where it has
been held so. Reliance has also been placed upon the judgments of the Hon'ble
Supreme Court in State of M.P. Versus Bhailal Bhai 1964 AIR (SC) 1006 and
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Office of the Chief Post Master General and others Versus Living Media
India Limited and another 2012 (2) SCT 269 and some other cases on the
question of non-entertainment of the case on delay.
25. On the other hand, learned senior standing counsel for the
appellant has contended that there is no limitation as such prescribed for
entertaining a writ petition under Article 226 of the Constitution of India. He,
however, has on the basis of the pleadings in the writ petition, explained the
delay in filing the writ petition and efforts and steps taken to give effect
thereto. In support of this contention, he has placed reliance on the judgment of
the Hon'ble Supreme Court in Smt. Sudama Devi Versus Commissioner and
others (1983) 2 SCC 1 to contend that there is no period of limitation
prescribed by any law for filing a writ petition under Article 226 of the
Constitution. The facts and circumstances of each case would determine
whether the appellant is guilty of laches or not. The fact with regard to
dismissing the petition on the question of delay would not merely depend upon
the period which is taken for approaching the Court but the reasons and the
aspect with regard to the challenge to the impugned order leaving it to the
Court to exercise such powers as conferred which is a discretionary and
considered choice of the High Court. Reliance has also been placed upon
Ramachandra Shankar Deodhar and others Versus State of Maharashtra
(1974) 1 SCC 317. What has been emphasized upon by the learned counsel for
the appellant is that where the jurisdiction itself of an authority which has
passed the impugned order is being challenged, it would be open to the Court
to entertain such a writ petition when it is alleged that such entertainment of
the application/petition is beyond the statutory powers of the said authority.
It has further been emphasized upon by the learned counsel for the
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appellant that the learned Single Judge although has concluded that the matter
of delay and laches should be held in favour of respondents No.2 to 4 but
keeping in view the nature of the controversy and the public interest involved,
the Court had proceeded to decide the writ petition on merits as well
recognizing and exercising the High Court's discretionary power.
He, therefore, contends that the writ petition has not been dismissed on delay
and laches, rather the Court proceeded to decide the same on merits and,
therefore, the plea and submission on delay and laches of the learned senior
counsel for the respondent cannot be accepted.
26. On consideration of the submissions of the counsel for the parties
and on going through the pleadings, the explanation which has been put forth
by the appellant with regard to the delay in approaching the Court appears to be
quite reasonable if not fully satisfactory but it needs to be emphasized herein
that merely on the question of delay, a Writ Court would not be bound or
mandated to dismiss the petition as there is no limitation as such prescribed for
entertaining a writ nor has any rules or statutory provisions available for non-
entertainment of the writ petition after a particular period of limitation been
brought to our notice. In other words, there is no period of limitation prescribed
for approaching the Court by way of a writ petition under Article 226 of the
Constitution of India. However, it may be pointed out here that the delay even
if substantial, if explained with justifiable reasons and where the Writ Court
prima facie finds that non-entertainment of the writ petition would lead to an
illegality or it would confer an undue benefit on a party, the High Court would
not shy away from exercising its extraordinary jurisdiction to entertain such a
writ petition. Present is one of such cases, where even the learned Single Judge
has found it to be one which requires to be entertained on merits as public
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interest was involved.
27. In the case in hand, the competence and the jurisdiction of
NCMEI-respondent No.1 is being challenged to entertain an application
preferred under Section 11 of the 2004 Act by asserting that an institution
which for the first time has claimed itself to be a minority educational
institution despite it having been established as a secular institution, as it is
submitted by the appellant, an application under Section 10 was required to be
filed before the competent authority, which in this case would be the Director
School Education, Chandigarh Administration as per the notification issued on
19.02.2016 (Annexure P-6), whereas the application under Section 11 has been
entertained by NCMEI, wherein for the first time as per the admitted position,
respondent No.3-School has acknowledged that the memorandum of
association has been amended during the pendency of the application under
Section 11 of the 2004 Act to bring it within the ambit of a minority institution
so that it can be so declared by NCMEI. This being the position in the
pleadings, we are of the considered view that the writ petition was required to
be and rightly so entertained by the learned Single Judge on merits and the
same was not required to be dismissed on delay alone. It may be added here
that not only the order dated 10.09.2014 (Annexure P-13) was challenged but
the subsequent order dated 14.03.2017 (Annexure P-18) passed by the NCMEI
setting aside the show cause notice dated 26.08.2015 had been challenged on
16.02.2018, which was well within the period of one year. The writ petition,
therefore, in any case could not have been dismissed on the question of delay
alone. The submission of the senior counsel for the respondents is thus rejected
on the question of dismissal of the writ petition on delay and laches.
28. The question which needs to be dealt with and would have direct
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bearing upon the outcome of the present appeal is whether respondent No.3-
School had been established and administered as a minority educational
institution, by the minority, for the benefit of the minority community (Sikhs);
attached to it would the consequences of the answer to this question on the
orders passed by respondent No.1-NCMEI.
29. There is yet another situation and consequential contingency
which requires to be further dealt with i.e. in case a conclusion is reached that
respondent No.3-School is a minority institution where respondent No.1-
NCMEI had the jurisdiction and authority to entertain an application under
Section 11 where for the first time, respondent No.3-School has claimed itself
to have been established and administered as a minority institution and has
respondent No.1-NCMEI passed the order in consonance with the provisions as
mandated under the 2004 Act.
30. For proceeding to decide the question as to whether respondent
No.3-School is a minority institute or not, it would be essential to first see and
lay down the characteristics and essentials laid down by the Constitution under
Article 30 (1), for which reference thereto is essential, the same reads as
follows:-
"30. Right of minorities to establish and administer
educational institutions.-
(1) All minorities, whether based on religion or language, shall
have the right to establish and administer educational institutions
of their choice.
(1A) XXXX XXXX XXXX"
31. Various judgments on which reliance has been placed by the
counsel for the parties before us have been also referred to before the learned
Single Judge and in the judgment under challenge, relevant portions thereof
have been in extenso reproduced dealing with and laying down the
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requirements as also the essentials for seeking and being entitled to protection
of this Article for and as a minority.
In Re The Kerala Education Bill, 1957, AIR 1958 SC 956, a
Constitution Bench of seven Judges concluded that the minority is to be
determined with reference to the population of a particular State. It has further
been concluded that the educational institution should have been established by
the minorities and administered of their choice. This Article gives right not
only to the religious minority but also to the linguistic minorities, meaning
thereby that the religious and linguistic minorities would have a right to
establish educational institutions of their choice and there cannot be any
limitation placed on the subjects to be taught in such educational institutions.
In State of Kerala etc. Versus Very Rev. Mother Provincial etc.
1970 (2) SCC 417, a six Judges Bench has clearly held that the first right
which flows from Article 30 (1) of the Constitution is the initial right to
establish institution of the minorities' choice i.e. to bring an institution into
being by a minority community with an added rider that the same must be
founded as an institution for the benefit of minority community. The second
right would be of administration of such institution which means management
of the affairs of the institution and it would be open to the founders or the
nominees to mould the institution as they think fit. It would thus, mean that the
minority should not only establish an educational institution but the same
should also be for the benefit of minority community.
In St. Stephen's College etc. Versus The University of Delhi etc.
(1992) 1 SCC 558, it has been held that there must be proof of establishment of
the institution by a minority which should precede before claiming right to
administer the institution.
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In S. Azeez Basha and another Versus Union of India etc. AIR
1968 SC 662, the Hon'ble Supreme Court while dealing with Article 30 (1) of
the Constitution held that it postulates that the religious minority community
will have a right to establish and administer educational institution of its
choice, meaning thereby that where religious minority community establishes
an educational institution, it will have a right to administer that. The Court
proceeded to reject the argument that an institution which has been established
not by the minority but, if by some process, that institution is being
administered by a minority, the same would not make it a minority institution
under Article 30 (1) of the Constitution. It has been emphasized that the
minority will have a right to administer an educational institution of their
choice provided they have established it, but not otherwise. The words
'establish and administer' in the Article must be read conjunctively and so it
gives right to the minority to administer an educational institution provided it
has been established by it. If an educational institution has not been established
by a minority, it cannot claim the right to administer it under Article 30 (1) of
the Constitution.
32. In the case of A.P. Christians Medical Educational Society
Versus Government of Andhra Pradesh and another (1986) 2 SCC 667, the
Hon'ble Supreme Court has proceeded to hold that the Government, University
and ultimately the Court had the right to pierce the minority veil and discover
whether it is actually a minority institution or not. Article 30 (1) of the
Constitution not only guarantee the right to profess, practice and propagate
religion to religious minorities and the right to conserve their language, script
and culture to the linguistic minorities but also to enable all minorities,
religious and linguistic, to administer an educational institution of their choice.
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These institutions must be educational institution of minorities in truth and
reality and not mere masked phantoms. What is important and imperative is
that there must exist some real positive index to enable the institution to be
identified as an educational institution of the minority. Mere referring in the
articles of association or memorandum or objects of the society of it being
intended to be minority educational institution would not be acceptable.
33. The legal position that flows from the foregoing judgments is that
merely because the admissions are open to all religions or that the education is
being imparted as per the requirements of the recognizing
board/authority/university would not deprive the institution of its right as a
minority institution. However, the requirement of Article 30 (1) will be
fulfilled only where an institution is established by the minority, as a minority
institution and for the benefit of the minority community. After this primary
requirement having been fulfilled, then and only then the administration and
management of the institution is to be kept untouched by the operation and
protection which flows from Article 30 (1) of the Constitution as a minority
institution.
34. With the legal position having been spelt out as above, the time is
now ripe to apply the above legal principles to the facts of the present case.
For the purpose of brevity, the contents with regard to the original
memorandum of association and amendments thereto from time to time by the
respondent-society are not being detailed herein except for mentioning that as
per the initial memorandum of association dated 15.09.1976 when the society
was established and registered, its aims and objects were purely secular in
nature with there being no semblance of any connection with the minority
aspect either with regard to the establishment or administration thereof which
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includes for the benefits of the minority community. Allotment of the plot is on
13.10.1988 after an application was submitted by the respondent-society.
With the building having been constructed, the institution commenced its
functioning with effect from academic session 1991-1992.
First amendment to the memorandum of association was carried
out on 24.12.1994, where it has been said to be an organization of minority.
There is nothing mentioned with regard to the establishing members being of
Sikh community nor is there anything provided for with regard to giving any
special benefit to the said community, meaning thereby that it was not intended
to be for the benefit of the Sikh community.
On 22.02.2011, affiliation letter was issued by the CBSE to the
respondent No.3-School, where in the application, so submitted for affiliation,
there is no reference with regard to the said school being a minority institution
nor is there any mention with regard to reserving any seat(s) for the Sikh
community. A condition that the admission to the school shall be open to all
without any discrimination on the ground of religion, caste, race etc., as
specified in the conditions, was accepted by the respondent-society and the
school.
35. The Right of Children to Free and Compulsory Education Act,
2009, is passed by the Parliament which was challenged before various
High Courts resulting in a final upholding of the same by the Hon'ble Supreme
Court in Society for Unaided Private Schools of Rajasthan's case (supra) on
12.04.2012 with a rider that the operation and applicability of this Act would
not extend to the unaided minority schools covered under the umbrella of
Article 30 (1) of the Constitution or in other words, these minority schools
were kept out of the purview of the Education Act, 2009. It is, thereafter, that
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for the first time, respondent No.3-School, in order to come out of the rigors
and applicability of the Education Act, 2009 moved an application on
07.05.2012 before NCMEI for grant of minority status along with which an
affidavit of the President of the society was also filed stating that the said
society comprises of members of the Sikh community and is managing the
school. The school is being run for the benefit of members of Sikh minority
community. It is, for the first time, that such a claim is projected but what is
missing herein is the fact that the said institution was established by the
minority. What was said was that the members of the society belong to the Sikh
community. Nothing is said with regard to the establishment of the society or
the institution.
36. Then comes the next stage where during the pendency of the
matter before NCMEI, the memorandum of association is amended and the
preamble to the objects of the society are introduced on 31.01.2013. There for
the first time, it is mentioned that the society shall primarily safeguard the
interest of the boys and girls of the Sikh minority community but here again the
important aspect with regard to the establishment of the institution by the
minority is missing. This lacuna is sought to be ultimately filled by way of an
additional affidavit dated 11.04.2013 (Annexure P-12) which is filed along
with the replication, wherein for the first time, it has been mentioned that the
memorandum of association has been amended and the objections as raised by
the respondent therein (now appellant), taken care of.
A point which is required to be emphasized at this stage is that in
the rejoinder filed on behalf of the respondent No.3-School on 11.09.2013, it is
admitted that the memorandum of association has been amended after the
application was filed before the NCMEI in order to make the claim consistent
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with the requirement of the 2004 Act so as to get the benefit of being declared
a minority institution.
37. The sequence of above events with regard to the amendments so
carried out to the memorandum of association from time to time, with the
requirement of the 2004 Act, makes it amply clear that the society was neither
established by the minority, as a minority educational institution nor was it
formed for the benefit of the minority community i.e. Sikhs. The mandate of
Article 30 (1) of the Constitution having not been fulfilled, it cannot be said to
be a minority institution.
38. If it is not a minority institution, a declaration could not have been
issued to that effect by NCMEI under Section 11 of the 2004 Act. Section 11
deals with the function and powers of the Commission, especially clause (f)
thereof. According to this, NCMEI could decide all questions relating to the
status of any institution as a minority educational institution and declare its
status as such.
The governing Section in this regard which would guide NCMEI
to issue such a declaration would be Section 2 (g) which defines minority
educational institution. The same reads as follows:-
"Section 2. Definitions- In this Act, unless the context
otherwise requires,-
XXXX XXXX XXXX
(g) Minority Educational Institution means a college
or an educational institution established and
administered by a minority or minorities."
A perusal of the above would show that for a minority educational
institution to be declared as such, the first requirement is that it has to be
established by a minority or minorities and administered by the minority or
minorities and, therefore, the parameters would be the same as have been laid
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down under Article 30 (1) of the Constitution of India i.e. words 'established
and administered' have to be read in conjunction as held by the Hon'ble
Supreme Court in the judgments referred to above. Since the respondent has
not been able to show that at the time when the society came into existence,
it was established as a minority institution nor was it said and claimed that the
society/school was established by the minority and for the benefit of the
minority (Sikhs) as is apparent from the original memorandum of association
as also the subsequent amendments, respondent No.2-Society as also
respondent No.3-School cannot be termed as a minority educational institution.
39. It needs to be pointed out here that the NCMEI has totally ignored
and overlooked the aspect with regard to the fulfillment of the mandate of the
statute. A declaration is only of an established right which unfortunately could
not be substantiated by the respondent-society and respondent No.3-School.
What was essential, therefore, was that the mandate of the statute as laid down
in Section 2 (g) of the 2004 Act was required to be fulfilled prior to the coming
into force of the 2006 Amendment Act to the 2004 Act in case the provisions
of Section 11 were to be given effect to, otherwise it would be governed by
Section 10 with regard to the right to establish a minority educational
institution.
40. For so concluding, we fall back upon the ratio of the judgment in
Sisters of St. Joseph of Clunny's case (supra), wherein it has been held that
all applications for establishment of a fresh minority educational institution
after the Amendment Act of 2006 must go only to the competent authority to
set up under the statute for which the application would be under Section 10 of
the 2004 Act but for declaration of the status as a minority educational
institution at any stage post establishment, NCMEI would have the power to
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decide the question and declare such institution's minority status.
41. In Sisters of St. Joseph of Clunny Versus State of West Bengal
and others 2018 (2) SCT 640, the Hon'ble Supreme Court while dealing with
the provisions of 2004 Act and the powers of the NCMEI did not in any way
concluded that an institution which has not been established as a minority
institution for the benefit of the said community would be entitled subsequently
to be granted the minority status. What has been said by the Hon'ble Supreme
Court in the said case is that Section 10 (1) deals with applications for
establishment of a minority educational institution after the Amendment to the
2004 by the Amending Act of 2006 has come into force, where after, the
applications so moved, must go only to the competent authority set up under
the statute while on the other hand, for declaration of its status as a minority
educational institution at any stage post establishment. As regards the powers
and jurisdiction of NCMEI is concerned, it was said that the same would have
the power to decide the question relating to status and declare such institution
minority status under Section 11 of the 2004 Act. A further observation has
been made that fundamental right cannot be waived.
42. In this case, respondent-society and the school have during the
pendency of the application for declaration as a minority institution for the first
time claimed that the founder members of the society belonged to the minority
community (Sikhs) and also acknowledged that they had filed the affidavit to
bring their case within the mandate of the statute to be as a minority institute.
The original memorandum of association clearly stated and proclaimed the
society to be a secular entity. It was never established nor intended to be a
minority institute for the benefit of any minority community nor was it claimed
to have been established by the minority (Sikhs). The requirement of the statute
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and the Constitutional mandate having been not fulfilled, the exercise of
jurisdiction by NCMEI is erroneous, both in law and on facts. The declaration
of respondent No.3-School as a minority institution by NCMEI is illegal. The
order dated 10.09.2014 (Annexure P-13), therefore, passed by respondent
No.1-NCMEI cannot sustain and deserves to be set aside.
43. Heavy reliance was placed upon the judgment of the Hon'ble
Supreme Court in Sisters of St. Joseph of Clunny's case (supra) to contend
that even if a society/educational institution has been established as secular, the
same can be declared as a minority educational institution post establishment
as well is misplaced. The said contention has not been dealt with by the
Hon'ble Supreme Court in this case and it has left it open as is apparent from
the discussion in the judgment. Another aspect which makes a major dent on
the claim of respondent No.3-School is that the facts in the case which was
being dealt with by the Hon'ble Supreme Court were different from the one
which is the subject matter of the present appeal. Before the Supreme Court, in
the memorandum of association of the society, it was clearly mentioned that
the said society has been formed/established primarily for the Catholics. It was
also not disputed that the said society was established by the minorities, while
in the present case, it is nowhere in the original memorandum of association
which was submitted for making an application for allotment of land or after
the establishment of respondent No.3-School by the respondent-society that the
educational institution has been established as a minority institute, for the
benefit of the Sikh minority or that it was established by minority (Sikhs) nor
was it claimed that establishing members of the society belong to the Sikh
community.
44. According to Article 30 (1) of the Constitution as also Section 2
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(g) of the 2004 Act, the term 'established and administered' by the minority or
minorities make it amply clear that they have to be read in conjunction as has
been laid down by the Hon'ble Supreme Court in S. Azeez Basha's case
(supra). The first essential ingredient, therefore, is establishment of an
institution by the minority, which should have been claimed as such for taking
benefit of the provisions referred to above in the Constitution and the statute.
This being the position, especially detailed above on factual aspects that it is
for the first time that the establishment of the institute by the establishing
members belonging to the Sikh religion came to be asserted before NCMEI-
respondent No.1 and that too by way of affidavit dated 11.04.2013 of the
President of the society, makes it amply clear that the said fact had never been
mentioned in the memorandum of association even at the stage of amendment
to the said memorandum as it originally stood.
45. The Hon'ble Supreme Court has emphasized upon this aspect in
the case of A.P. Christians Medical Educational Society's case (supra) that
what is important and what is imperative is that there must exist some real
positive index to enable an institution to be identified as an educational
institution of the minorities, which should be apparent from the memorandum
or article of association or in the actions of the society to indicate that the
institution was intended to be a minority educational institution. At the stage of
establishment of an educational institution, therefore, would be the most
relevant time and the existing memorandum of association then would be the
determinative factor. In the case of respondent No.2-Society and
respondent No.3-School, admittedly, as reproduced above, the society was
established purely as a secular society with no semblance or relation to any
minority community/linguistic minority muchless Sikh minority community. It
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is at a subsequent stage i.e. on 24.12.1994 with the amendment of the objects
of the society for the first time, Punjabi language, Punjabi culture, history of
prophets and gurus were introduced apart from mentioning that it was an
organization of minority. This amendment has come into effect after allotment
of the plot on 13.10.1988 and construction of the school and the educational
institution becoming functional from the academic session 1991-92. Therefore,
it is not only at the time of establishment of the society but even at the time of
inception of the institution i.e. respondent No.3-School, there was no
connection whatsoever with the claim of minority in any form either regarding
establishment by and or as a minority nor for the benefit of the minority
(Sikhs).
46. In the light of the above, when it has been found and held that
neither respondent No.2-Society nor respondent No.3-School is a minority
institution, the impugned order dated 10.09.2014 (Annexure P-13) passed by
respondent No.1-NCMEI is not in accordance with law and thus, deserves to be
set aside.
47. Now moving to the impugned order dated 14.03.2017 (Annexure
P-18) which has been passed by respondent No.1-NCMEI setting aside the
show cause notice dated 26.08.2015 (Annexure P-15) which was served on the
respondent-school under Rule 20 of the 1973 Rules for violation of condition
of allotment under the Scheme of 1996, suffice it to say that the said order is
primarily based upon the order dated 10.09.2014 (Annexure P-13) vide which
respondent No.3-School has been declared as a minority institution leading to
the conclusion that the reservation of 15% seats for the economically weaker
sections of the society under the 1996 Scheme would not be applicable, is not
sustainable. It is settled principle of law and it is so held that the provisions of
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the Education Act, 2009 would not be applicable to only the minority
institutions and since respondent No.3-School is not a minority institution, as
held above, the Education Act, 2009 would be applicable and the 2004 Act
would have no applicability resulting in the show cause notice dated
26.08.2015 having been served upon the respondent-school to be valid
requiring response from the respondent-school. We would not further delve on
this aspect as there has been no adjudication on merits on the said show cause
notice. In any case, impugned order dated 14.03.2017 (Annexure P-18) passed
by NCMEI setting aside the show cause notice cannot sustain and deserves to
be set aside.
48. The judgments passed by the Hon'ble Supreme Court in the case of
T.M.A. Pai Foundation and others Vs. State of Karnataka and others, (2002)
8 SCC 481 and P.A. Inamdar and others' case (supra), on which reliance has
been placed by the senior counsel for the respondents, shall have no bearing in
the present case keeping in view the facts and circumstances as dealt with
above as they are distinguishable especially when we have held that respondent
No.3-School is not a minority institution and, therefore, The Education Act,
2009 would apply to the contesting respondents bringing them out of the
umbrella and shield of protection which they were claiming under Article 30 of
the Constitution.
49. In the light of the above, the present appeal is allowed. Judgment
dated 20.03.2020 passed by the learned Single Judge is hereby set aside.
50. As a consequence thereof, writ petition preferred by the appellant
succeeds. Impugned order dated 10.09.2014 (Annexure P-13) and order
dated 14.03.2017 (Annexure P-18) passed by respondent No.1-NCMEI are
hereby set aside.
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51. Respondent No.3-School, if it so desires, may reply to the show
cause notice dated 26.08.2015 (Annexure P-15) within a period of four weeks
from today. Thereafter the appellant(s) shall proceed in accordance with law.
52. In the light of the decision of the appeal, pending applications
stand disposed of as infructuous.
(AUGUSTINE GEORGE MASIH)
JUDGE
July 8th, 2022 (SANDEEP MOUDGIL)
Puneet JUDGE
Whether speaking/reasoned: Yes
Whether reportable: Yes
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