The Supreme Court has reiterated that the fundamental right of Minorities under Article 30 of the Constitution of India to administer educational institutions cannot be waived.
The issue in this case was whether Khalsa Girls High School is a minority institution, if so, whether the Institution's right to select and appoint teachers is in any way affected by the provisions of the Rules of Management of Recognised Non-Government Institutions (Aided and Unaided), 1969 framed under the provisions of the West Bengal Board of Secondary Education Act, 1963?
The Bench comprising Justice RF Nariman, Justice R.Subhash Reddy and Justice Surya Kant was answering a reference which arose out of a split judgment by division bench (Justice TS Thakur and Justice R Banumathi) in which one of the judges (Justice Banumathi) held that the school having accepted the special constitution in terms of Rule 8(3) of the Rules, the school is estopped from contending that it is a minority institution governed by special rules to be framed by the State under Rule 33 of the Rules.
Referring to the letter from the Secretary, West Bengal Board of Secondary Education to the school setting up a special constitution of the managing committee of the school, the bench said:-
"It is obvious on a reading of this document that whereas Rule 6 required only one representative of the Sikh community to be on 17 the Management Board, there are three representatives appointed. Equally, whereas Rule 6 requires that there be six guardian representatives to be elected, only four are provided for by this letter. Thus, it cannot be said that by acceptance of this letter, Respondent No.4 has, in any manner, unequivocally waived its right to be treated as a minority institution. On the contrary, the application dated 19th April, 1976, was to recognise it as a minority institution, and merely because Rule 8(3) of the Rules was purportedly applied, it does not mean that the minority character of the institution was not kept in mind while framing the special constitution for future management of the school. On facts, therefore, it is difficult to appreciate how the Respondent No.4 can be said to have waived its right to be treated as a linguistic minority institution set up by a linguistic minority, namely, the Sikhs in the State of West Bengal."
In this regard, the bench referred to Ahmedabad St. Xavier's College Society v. State of Gujarat 1974 AIR 1389 and also the recent judgment in K.S. Puttaswamy v. Union of India W.P. (C) NO. 494/2012 and thereafter held that:-
"We have held that it cannot be said that Respondent No.4 is, in any manner, estopped from claiming its minority status on the facts of this case. Quite apart from this, it is settled law that the 29 fundamental right under Article 30 cannot be waived."
Hence, the Court allowed the appeals and upheld the initial Single Judge High Court order, passed over 15 years ago.
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