R IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE4H DAY OF SEPTEMBER, 2014 PRESENT THE HON’BLE MR.D.H.WAGHELA, CHIEF JUSTICE AND THE HON'BLE MR. JUSTICE ASHOK B. HINCHIGERI W.P.NO.29061 OF2014(EDN-AD) (PIL) Ashith Karthik Rao, Minor, Represented by next friend father Shobith Balaji Rao, #14, 5th Cross, N.S.Palya, BTM Layout, Bangalore – 76. BETWEEN:
1.
2. 3. Crachika.R, Minor, Represented by next friend father Rajesh Kumar Sen, #220, 1st Main, 1st Cross, Garvebhavipalya, Mangampalya Street, Bangalore South, Bangalore – 68. Abhay Smaran Gonvar Minor, Represented by next friend father Basavaraj Gonvar, #51, 20th Main, 6th ‘A’ Cross, BTM1t Stage, Madivala, Bangalore – 76.
4. 5.
6. 7.
8. 2 Jayanth M.D. Minor, Represented by next friend father Murlidar.N #18, Ragi Mission Road, Patel Layout, Begur, Bangalore North – 68. Boomika D, Minor, Represented by next friend father Dharmendra Sen #220, 1st Cross, 1st Main, Abbaiah Reddy Layout, G.B.Palya, Bommanahalli, Bangalore South – 68. Ravi Kumar S. Minor, Represented by next friend father Shivappa Bailwad #4, 1st Main Road, 1st Cross, S.G.Palya, D.R.C.Post, Bangalore – 29. Bhiganth B. Minor Represented by next friend father Byataraja, #63, 3rd Cross, Brindavana Nagar, Sudguntepalya, Chikkadugodi, D.R.C.Post, Bangalore – 68. Khoushik.N Minor, Represented by next friend father Nagesh Kumar, #161/24, Arasu Colony, Jayanagar, 9th Block, Bangalore – 69. 3 Khadija Konain, Minor, Represented by next friend father Azam Khan, #73/38, 3rd Main ‘H’ Cross, Bismillanagar, Bangalore – 29.
9.
10. Mohammed Afnan, Minor, Represented by next friend father Afzal Ahmed, #422, 30th ‘A’ Cross, Tilaknagar, Jayanagar, Bangalore – 41. Minor, Represented by next friend father B.N.Srikanth, #174, 5th Cross, S.G.Palya, Jayanagar, Bangalore – 29. Minor, Represented by next friend father Venkatachalapathi D.C. #69/12, 9th ‘A’ Main Road, Devarachikkanahalli Main Road, Hongasandra, Bangalore – 68.
11. Charan S.
12. Akhilesh V.
13. Prerana C. Minor, Represented by next friend Chandrashekar.K #19, 1st Cross, Ramaiah Layout S.G.Palya, D.R.C. Post Bangalore-29. 4 Minor Represented by next fried father Nizamuddin, #565, 30th ‘B’ Cross, Tilaknagar, Jayanagar, Bangalore – 41.
14. Mohammed Rehaan 15. Shravya M.
16. Navineeth S.Reddy, Minor, Represented by next friend father T.S.Murthy, #100, 1st Cross, 1st Main, Balajinagar, S.G.Palya, D.R.C.Post, Bangalore -29. Minor, Represented by next friend father S.Govardhan Reddy, #23, Near Raghavendra Mutt, Sir M.V.Colony, 1st Main, 4th Cross, D.C.Halli, Bangalore -76. Minor, Represented by next friend father David A. #107/1, Chruch Road, Basavanapura, Begur, Bangalore – 83.
17. Spurthy Maria, 18. Leysha V.N. Minor, Represented by next friend father Vijayanarasimha #1335, Gangaparameshwari Temple, Begur, Begur Post, Bangalore – 68. 5 Minor, Represented by next friend father Rakesh Sen, #220, 9th Main, 1st Cross, Garvebhavipalya, Bangalore – 68. Minor, Represented by next friend father Ravi Kiran B.R. #64, Poodu Village, Hulimangala Post, Anekal Taluk, Bangalore – 560 321. Minor, Represented by next friend father Manjunath T.S. C/o Ashok Kumar, #134/1, Chikka Thogur, Electronic City, Bangalore – 560 100.
19. Simran, 20. Mallikarjun S.R.
21. Nisarga, 22. Navyashree 23. Mahaveer R Minor Represented by next friend father Yadava Rao, Hulimangala, Jigni Hobli, Bangalore Rural, Bangalore. Minor, Represented by next friend father, Rajesh Kumar, #220, 1st Main, 1st Cross, Garvepalya, Hosur Main Road, Bangalore – 68. 6 Minor, Represented by next friend father Vinayak, #345, Jagajeevan Nagar, Hulimangala, Bangalore – 562 106. Minor, Represented by next friend father Ganesha M, #11, Nanjunda Reddy Building, 1st Cross, Shankarnagar Road, Viratnagar, Bommanahalli, Bangalore – 68.
24. Prashanth, 25. Pratham G.
26. Tasmya Taharen, 27. Lohitaksha, Minor, Represented by next friend father Hussain Sab, #337/6, Ayesha Masidi Road, Hospet, Mangampalya, Bommanahalli, Bangalore. Minor, Represented by next friend father, Pavan Kumar, Adishakti Mariamma Temple, Old Madivala, BTM1t Stage, Bangalore. ... Petitioners (By:Smt.Suman Hegde, Advocate) 7 AND:
1.
2. 3.
4. 5.
6. 7.
8.
9. The State of Karnataka, Represented by Principal Secretary, Department of Education, M.S.Building, Bangalore – 560 001. The Director of Public Instruction, Department of Primary Education, Nrupathunga Road, Bangalore. The Deputy Director of Public Instructions, Bangalore South District, (3) Kalasipalya, Bangalore – 02. The Block Education Officer, Bangalore South District, (3) Bangalore – 29. Vibgyor School, N.S.Palya, Bangalore, Represented by its Principal. Vibgyor School, Somasandra Palya, Bangalore – 100. Represented by its Principal. Vibgyor School, Vittasandra, Bangalore – 100, Represented by its Principal. Clarrence School, J.P.Nagar, Bangalore – 78. Represented by its Principal. St.Miras School, BTM Layout, Bangalore – 76. Represented by its Principal. 8 Suddaguntepalya, Bangalore – 29. Represented by its Principal.
10. Christ School (ICSE) 11. St.Zavier School, Bethadasanpura, Bangalore – 100 Represented by its Principal. ... Respondents (By: Sri A.S.Ponnanna Addl. Advocate General with Smt.Shweta Krishnappa, H.C.G.P. for R1 to R4 Smt.Anuparna Bordoloi, Advocate for R5; Sri M.R.Naik, Senior Advocate for Sri Sharath.S. Gowda Advocate for R6; Sri Shashi Kiran Shetty, Senior Advocate for Smt.Deepika Bhargava, Advocate for R7; Sri M.Nagaprasanna, Advocate for R8; Sri G.R.Mohan, Advocate for R9; Sri S.Basavaraj, Advocate for R10; Sri Shashi Kiran Shetty, Senior Advocate for Sri K.Prasanna Shetty, Advocate for R11) This writ petition is filed under Articles 226 and 227 of the Constitution of India praying to call for records from the respondent Nos.5 to 11 for scrutiny by this Hon’ble court regarding the claim of the minority status of respondents schools 5 to 11 and declare that none of the R-5 to 11 has such a status and etc. The order in this writ petition having been reserved and being listed for pronouncement today, Ashok B.Hinchigeri J., made the following:
9. C.A.V.
JUDGMENTThe grievance of the petitioning toddlers is over the denial of admissions by the respondent schools. The petitioners are all selected and allotted to the respective respondent schools under the Right of Children to Free and Compulsory Education Act, 2009 (‘R.T.E. Act’ for short).
2. Smt. Suman Hegde, learned counsel for the petitioners submits that the respondent schools claim to be outside the purview of the R.T.E. Act on the ground that they are minority institutions. She submits that the respondent schools are not justified in claiming the minority status, as they have admitted the students mainly from the general category. She submits that the non-minority students outnumber the minority students in the respondent schools. She submits that the respondent schools are not declared as minority institutions by any competent authority. She brings to our notice the information furnished by the Directorate of Urdu and other Minority’s Linguistic Schools, in its letter, dated 7.3.2014 (Annexure-F). The said letter states that the respondent schools are not declared as minority institutions. 10 3. Smt. Suman read out paragraph Nos.102 and 132 from the Apex Court’s judgment in the case of P.A.INAMDAR AND OTHERS v. STATE OF MAHARASHTRA AND OTHERS reported in (2005) 6 SCC537 “102. It necessarily follows from the law laid down in Pai Foundation that to establish a minority institution the institution must primarily cater to the requirements of that minority of that State else its character of minority institution is lost. However, to borrow the words of Chief Justice S.R. Das (in Kerala Education Bill) a 'sprinkling' of that minority from other State on the same footing as a sprinkling of non-minority students, would be permissible and would not deprive the institution of its essential character of being a minority institution determined by reference to that State as a unit.
132. Our answer to the first question is that neither the policy of reservation can be enforced by the State nor any quota or percentage of admissions can be carved out to be appropriated by the State in a minority or non-minority unaided educational institution. Minority institutions are free to admit students of their own choice including students of non-minority community as also members of their own community from other States, both to a limited extent only and not in a manner and to such an extent that their minority 11 educational institution status is lost. If they do so, they lose the protection of Article 30(1).” 4. Sri A.S.Ponnanna, learned Additional Advocate General appearing for the respondent Nos.1 to 4 submits that the State Government in exercise of its executive power under Article 162 of the Constitution of India issued the Government Order, dated 18.6.2004 constituting the examining committee for the purpose of determining the religious linguistic minority status of the schools operating within the State of Karnataka. He submits that the respondent schools have not made any application before the State Government claiming the minority status. He submits that they are the self-styled minority schools.
5. Learned Additional Advocate General submits that the eighth respondent Clarrence School is declared as a religious minority institution by the examining committee. In this regard, he brings to our notice the copy of the memorandum, dated 3.11.2009 (Annexure-R5). He submits that so far the respondent Nos.5 to 7 and the respondent No.9 have neither applied nor in any manner sought to be 12 declared as religious minority institutions either before the State Government or before any other authority. Therefore, these institutions are bound to comply with the Government’s directions issued for the purpose of giving effect to the provisions of R.T.E. Act.
6. He submits that the respondent schools have refused to receive the list of students selected and allotted under the R.T.E. Act. He submits that the respondent schools closed their gates; they did not allow the Cluster Resource Person even to enter their campus. In this regard, the notices are already issued to the erring and defiant schools.
7. The learned Additional Advocate General submits that the respondent schools have not denied that they have refused to receive the selection list in their reply to the show cause notice issued by the Block Education Officer.
8. He submits that the right granted to the minorities under Article 30 of the Constitution of India are not of absolute nature. In this regard, he read out paragraph No.32 of the Apex Court’s judgment in the case of DAYANAND13ANGLO VEDIC (DAV) COLLEGE TRUST AND MANAGEMENT SOCIETY v. STATE OF MAHARASHTRA AND ANOTHER reported in (2013) 4 SCC14 “32. In view of the opinion expressed by this Court in a catena of decisions, there cannot be any controversy that minorities in India have a right to establish and administer educational institutions of their choice and the State Government or the Universities cannot interfere with the day-to-day management of such institutions by the members of minority community. At the same time, this Court pointed out that though Article 30 itself does not lay down any limitation upon the right of a minority to administer its educational institution but this right is not absolute. This is subject to reasonable regulations for the benefit of the institution. The State Government and Universities can issue directions from time to time for the maintenance of the standard and excellence of such institution which is necessary in the national interest.” 9. He submits that the National Commission for Minority Educational Institutions has issued the certificates declaring the respondent Nos.9 and 10 as minority educational institutions in April 2014 and March 2014 respectively. Even before they were declared as the minority 14 educational institutions, the process of selecting and allotting the students under the R.T.E. Act was concluded.
10. He submits that the Government of Karnataka has framed the Rules under the R.T.E. Act. The said Rules, namely, the Karnataka Right of Children to Free and Compulsory Education Rules, 2012 have the primacy over the provisions of the Rules made under the Karnataka Education Act, 1983. He read out Rule 1(4) of the said Rules in this regard. “1(4) The provisions of these rules shall apply to all schools and shall have overriding effect over the provisions of rules made under the Karnataka Education Act, 1983 (Karnataka Act 1 of 1995), to the extent of their repugnancy. Where no provisions are made in these rules, the provisions of other rules, made under any other law shall continue to apply.” 11. Sri G.R.Mohan, learned counsel appearing for the ninth respondent School submits that St.Mira’s English School run by Public Education Society is declared as a minority educational institution under Section 2(g) of the National Commission for Minority Educational Institutions 15 Act, 2004 (‘2004 Act’ for short) on 8.5.2013. He submits that the minority status is for all the schools run by the said Management. To avoid any confusion, the said Management has obtained the certificate from the National Commission for Minority Educational Institutions in respect of its school in BTM Layout, which is arraigned as the respondent No.9 in these proceedings. In support of his submissions, he read out paragraph No.8 from the Apex Court’s judgment in the case of STATE OF KERALA v. VERY REV. MOTHER PROVINCIAL reported in AIR1970SC2079 “8. Article 30(1) has been construed before by this Court. Without referring to those cases it is sufficient to say that the clause contemplates two rights which are separated in point of time. The first right is the initial right to establish institutions of the minority's choice. Establishment here means the bringing into being of an institution and it must be, by a minority community. It matters not if a single philanthropic individual with his own means, founds the institution or the community at large contributes-the funds. The position in law is the same and the intention in either case must be to found an institution for the benefit of a minority community by a member of that community. It is equally irrelevant that in addition to the minority community others from other 16 minority communities or even from the majority community can take advantage of these institutions. Such other communities bring in income and they do not have to be turned away to enjoy the protection.” 12. For contending that the RTE Act has no application for the minority educational institutions, he relies on the Apex Court’s judgment in W.P.(C)No.416/2012 and other connected petitions between PRAMATI EDUCATIONAL AND CULTURAL TRUST ® AND OTHERS v. UNION OF INDIA AND OTHERS reported in 2014 (2) KLT547 The portions read out by him from the said decision are as follows: “46………. Therefore, the 2009 Act insofar it is made applicable to minority schools referred in clause (1) of Article 30 of the Constitution is ultra vires the Constitution. We are thus of the view that the majority judgment of this Court in Society for Unaided Private Schools of Rajasthan v. Union of India & Anr. (supra) insofar as it holds that the 2009 Act is applicable to aided minority schools is not correct.
47. In the result, we hold that the Constitution (Ninety-third Amendment) Act, 2005 inserting clause (5) of Article 15 of the Constitution and the Constitution (Eighty-Sixth Amendment) Act, 2002 inserting Article 21A of the Constitution do not alter the basic structure 17 or framework of the Constitution and are constitutionally valid. We also hold that the 2009 Act is not ultra vires Article 19(1)(g) of the Constitution. We, however, hold that the 2009 Act insofar as it applies to minority schools, aided or unaided, covered under clause (1) of Article 30 of the Constitution is ultra vires the Constitution. Accordingly, WP (C) No.1081 of 2013 filed on behalf of Muslim Minority Schools Managers’ Association is allowed and WP (C) Nos.416 of 2012, 152 of 2013, 60 of 2014, 95 of 2014, 106 of 2014, 128 of 2014, 144 of 2014, 145 of 2014, 160 of 2014 and 136 of 2014 filed on behalf of non-minority private unaided educational institutions are dismissed. All I.As. stand disposed of. The parties, however, shall bear their own costs.” 13. He submits that the term, ‘minority’, for the purposes of 2004 Act, means a community notified as such by the Central Government, as per the definition contained in Section 2(f) of the 2004 Act. As per Section 2(da) of the 2004 Act, the educational rights of minorities means the rights of minorities to establish and administer educational institutions of their choice. Under Section 2(g) of the 2004 Act, minority educational institution means a college or an institution established or maintained by a person or group of 18 persons from amongst the minorities. He submits that the Public Education Society is established in 1969.
14. He submits that this petition is liable to be rejected on the short ground of availability of alternative remedy of filing the complaint before the State Commission for protection of children rights constituted under Section 17 of the Commission for Protection of Child Rights Act, 2005.
15. Sri M.R.Naik, learned Senior Counsel appearing for Sri Sharath S. Gowda for the respondent No.6 submits that this writ petition in its present form as a PIL is not maintainable. As the petitioners are seeking the personal relief for themselves, the P.I.L. is not maintainable. The petitioners are not justified in seeking the relief of declaration that the respondent schools do not have the minority status.
16. He submits that K.J.
foundation, a Trust which has established the sixth respondent School, is created by the members of Parsi Community. As the said school is a minority educational school, it is entitled to the protection under Article 30 of the Constitution of India. 19 17. The learned Senior Counsel submits that the Zoroastrians (Parsis) are declared as minorities by (i) a notification, dated 23.10.1992 issued by the Central Government under the National Commission for Minorities Act, 1992 (ii) notification, dated 18.1.2005 issued by the Central Government under the National Commission for Minority Education Act, 2004 and (iii) the notification, dated 17.9.2007 issued by the Government of Karnataka under the provisions of the Karnataka State Minority Commission, Act 1994. He contends that the minority school would continue to be so whether the Government declares it as such or not. Declaration by the Government is at best only a recognition of an existing fact; it is only an open acceptance of a legal character, which would have necessarily existed antecedent to such recognition. He would contend that there is no law requiring prior declaration of its minority status at the hands of an authority. To support his contention, he read out paragraph No.12 from the Apex Court’s judgment in the case of N.AMMAD v. MANAGER, EMJAY HIGH SCHOOL AND OTHERS reported in (1998) 6 SCC674 It reads as follows:
20. “12. Counsel for both sides conceded that there is no provision in the Act which enables the Government to declare a school as a minority school. If so, a school which is otherwise a minority school would continue to be so whether the Government declared it as such or not. Declaration by the Government is at best only a recognition of an existing fact…….” 18. Taking support from the Supreme Court’s decisions in the case of SOCIETY FOR UNAIDED PRIVATE SCHOOLS OF RAJASTHAN v. UNION OF INDIA AND ANOTHER reported in (2012) 6 SCC1and PRAMATHI EDUCATION TRUST (supra), he would contend that the R.T.E. Act has no application for the minority educational institutions.
19. The learned Senior Counsel submits that the sixth respondent is imparting ICSE syllabus and that it has applied for seeking the declaration that it is a minority educational institution, before the National Commission for Minority Educational Institutions. He submits that in view of the parliamentary enactment (National Commission for Minority Educational Institutions Act, 2004), the State Government is denuded of its executive power in the matter. 21 20. Learned Senior Counsel submits that the State Government has not framed any Rules under Section 38 of the RTE Act. The notification, dated 18.6.2014 only contains the circular instructions to the officials of the State Government; they may at best be treated as the guidelines for the Government officials in the matter of scrutinizing and granting the minority status to the schools. The said guidelines cannot be considered as constituting any authority or providing for a mechanism for determining the minority status of an educational institution. No format and procedure are prescribed for the making of an application by the institutions and for its consideration by the State Government. He submits that the stand of the Government that it has forwarded the list of the students through the Cluster Resource Person is not true. The name of the respondent No.6 is not even found in Annexure-A. He asserts that the copy of the office memorandum, dated 13.2.2014 (Annexure-R7) is not sent to the respondent No.6. In fact, the respondent No.6 has sought the copies of the various letters referred by the Block Education Officer. 22 21. He submits that once the prima-facie claim is established, the burden shifts to the State to disprove the claim of the status of minority. In support of this submission, he relies upon this Court’s decision in the case of SOCIO LITERATI ADVANCEMENT SOCIETY, BANGALORE vs. STATE OF KARNATAKA AND OTHERS reported in AIR1979KAR217 He submits that the Courts have time and again prevented the Government from infringing on the rights of the minority educational institutions.
22. Sri S. Basavaraj, learned counsel appearing for the respondent No.10 submits that the National Commission for Minority Educational Institutions has issued the certificate on 20.3.2014 to the effect that the respondent No.10 is a minority educational institution.
23. He submits that without prejudice to the contention of the respondent No.6 that it is not obliged to admit the students under the RTE Act from 2014-15 academic year, as the respondent No.10 is a minority educational institution, it is prepared to admit the students selected and sent by the 23 Block Education Officer to the tenth respondent school in Kannada medium section.
24. On being asked by the Court, Sri Basavaraj submits, on instructions, that the application forms for admission were issued on 6.2.2014 and the list of students selected and allotted to the sixth respondent school was issued on 5.3.2014.
25. Sri Shashi Kiran Shetty, learned Senior Counsel appearing on behalf of the respondent Nos.7 and 11 submits that the respondent No.11 has filed W.P.Nos.17883-884/2014 and that the learned Single Judge granted an interim order of stay, dated 10.4.2014 (Annexure-R11). He also brings to our notice the interim order, dated 7.2.2014 (Annexure-R12) granted by the learned Single Judge in W.P.No.44968/2012 and W.P.No.44969/2012 directing the State Government not to resort to coercive measures to enforce the provisions of the R.T.E. Act.
26. He submits that the application filed by the respondent No.11 seeking the declaration that it is a minority 24 educational institution is pending consideration before the National Commission for Minority Educational Institutions. He submits that its application came for hearing before the said Commission on 22.7.2014. He submits that in view of the undeclared minority status of the respondent No.11, it is entitled to enjoy the protection under the Article 30(1) of the Constitution of India.
27. The learned Senior Counsel submits that as the respondent No.7 is affiliated to ICSE, the Karnataka Education Act, 1983 has no application for the said school. He submits that there is no competent authority in the State of Karnataka, which is presently constituted to declare any institution as unaided minority institution. There is no mechanism for the determination of the minority status of an educational institution.
28. Sri M.Nagaprasanna, the learned counsel for the respondent No.8 submits that the Government has declared the eight respondent School as a minority educational institution, as is evident from the memorandum, dated 25 3.11.2009 (Annexure-R8). He submits that the said School does not even figure in the list of schools (Annexure-A) notified for the allotment of students to unaided institutions under the R.T.E. Act.
29. Urging these two-fold submissions, he prays for the dismissal of this petition as against the respondent No.8.
30. The learned counsel for the respondent No.5 adopts the submissions made on behalf of the respondent No.6 31. Sri Ponnanna joins issue with Sri M.R.Naik by bringing to our notice that the sixth respondent School is at Sl.No.31 in the list of schools published by the Block Education Officer for admission to 25% of seats in unaided institutions.
32. The submissions of the learned counsel have received our thoughtful consideration. 26 33. We propose to first consider the threshold objection to the maintainability of this petition: Whether this PIL is to be rejected, as the petitioners are seeking the personal reliefs for themselves. In a matter of this nature, what has to be examined is the suitability of the litigating applicant for the espousal of a cause. In matters such as due enforcement of the educational rights, Courts will be inclined to apply relaxed rules of standing or litigational competence. The petitioners have suffered the common injury with rest of the public. It is sufficient if the applicants before this Court are merely amongst the injured.
34. Collaborative litigation and collective engagement of the parties in the redressal of injustice to the students community are to be permitted. The access to justice and right of the deprived and vulnerable sections of the community may get jeopardized, if ventilation of collective or common grievances is discouraged. We therefore over-rule the first preliminary objection. 27 35. The second preliminary objection raised by Sri G.R.Mohan, learned counsel appearing for the respondent No.9 that this petition has to be rejected on the short ground of availability of an alternative remedy is also required to be considered. No doubt, the State Commission for Protection of Children Rights is assigned with the additional function of enquiring into the complaints relating to child’s right to free and compulsory education. But we are afraid, the formidable legal submission raised before us that the respondent schools are not required to admit the students sent by the Government, as they claim to be minority institutions, cannot be examined by the said Commission. We therefore overrule both the preliminary objections and proceed to consider this petition on merits.
36. The first question that falls for our consideration is whether the respondent Nos.5 to 11, except respondent No.8 can refuse to admit the students selected and allotted under the R.T.E. Act on the basis of their claim that they are the minority educational institutions. That the R.T.E. Act has no application for the minorities is no more res integra. It is 28 fully covered by the Apex Court’s judgment in the case of Pramati (supra). Under Article 30 of the Constitution of India all the minorities, whether based on religion or language, have the right to establish and administer educational institutions of their choice. If the National Commission for Minority Educational Institutions or the State Government or any other competent authority has not declared the educational institutions to be the minority educational institutions, the managements of such schools cannot be permitted to deny the admissions on the basis of their self-serving assertion that they are the minority educational institutions.
37. The contesting respondent schools in question have not produced any declaration or certificate issued by any authority in support of their claim that they are the minority educational institutions.
38. The respondent schools have not even produced the statement of admissions to show that they have been 29 admitting mainly those children who belong to minority. As held by the Apex Court in P.A.Inamdar’s case, there can be only sprinkling of non-minority students in the minority educational institutions. In the instant case, there appears to be more of non-minority students in the schools, which are purportedly established and are being administered for the purpose of minority. No documents are placed on the record of this Court to show the practices of the schools for denying the allegation of the petitioning children and of the Government that the non-minority students outnumber the minority students in the schools in question. The first question is therefore answered in the negative.
39. The second question that falls for our consideration is whether all the schools started by a particular management are automatically entitled to claim the status of minority educational institutions. This question is formulated to test the tenability of the submission urged on behalf of St.Mira’s School, the respondent No.9 herein. It is not in dispute that St.Mira’s English School being run by Public Education Society is declared as a minority 30 educational institution by the National Commission for Minority Educational Institutions on 8.5.2013. The said certificate reads as follows:- “This is to certify that by the order dated 8th day of May 2013 passed by the National Commission For Minority Educational Institutions, New Delhi in Case No.599 of 2013 (St.Mira’s English School, Rajajinagar, Bangalore, Karnataka, VS. Principal Secretary, education department (Primary & Secondary Education), Government of Karnataka), St.Mira’s English School run by Public Education Society has been declared as a minority educational institution covered under Section 2(g) of the National Commission for Minority Educational Institutions Act, 2004. Given under my hand and the seal of the commission on this 8th day of May,. 2013.” (emphasis supplied) 40. The perusal of the afore-extracted certificate shows that the declaration of minority status was only in respect of St.Mira’s High School in Rajajinagar. As such, the certificate cannot be used or construed to contend that all the schools, which the Public Education Society may establish are to be automatically taken as minority educational 31 institutions. The National Commission for Minority Educational Institutions Act, 2004 does not provide for such sweeping generalizations. On the other hand, the term ‘minority educational institution’ is defined in Section 2(g) of the 2004 Act as follows:- “2(g) – “Minority Educational Institution” means a college or an educational institution established and administered by a minority or minorities.” 41. The plain reading of the above definition makes it very clear that the minority educational institution is a college or institution and not a society or trust or any other group of persons. If a person or group of persons from amongst the minorities establishes and administers a school, he/it has to seek the declaration of minority status for it, if it proposes to contend that a particular legislative Act or executive action is not applicable to it. Article 30, though styled as a right, is more in the nature of protection for minorities.
42. If the ninth respondent’s argument is accepted, then it would create an anomalous situation that a minority 32 cannot start a school for the benefit of majority, because all the schools started by minority group would become invariably minority schools, as per the understanding of the respondent No.9. There is no dispute that the Parsis, Christians and Muslims are the minorities in a given State, but it does not mean that they cannot start the schools and colleges for the benefit of all the people nor the establishment of a school by a person or group of persons from amongst the minorities ipso facto entitle it to claim the minority status, notwithstanding that it has been admitting the students mainly from the general category. We therefore answer the second question in the negative by holding that the minority educational status granted by National Commission for St.Mira’s School in Rajajinagar does not come to the rescue of the said Management for its school in B.T.M. layout, as the latter is not declared as a minority educational institution.
43. The third question that falls for our consideration is whether the certificate issued by the National Commission to St.Mira’s School in B.T.M. Layout on 22.4.2014 and to 33 Christ School on 20.3.2014 have the retrospective application. It is not in dispute that the process of selection and allotment of students under R.T.E. Act to the schools was initiated and concluded well before 20.4.2014. The list of the allottee-students was issued by the Block Education Officer on 5.3.2014. The process of admission involves several stages starting from the date of calling for applications, submitting the applications, scrutiny of applications, selection of students for admission and finally the payment of fees alongwith the submission of original documents. The rules or instructions cannot be changed to the disadvantage of any party. The pre-existing right of admission cannot be permitted to be extinguished by the subsequent developments. Admittedly, when the applications for admission were received, scrutinized and the students were selected and allotted to St.Mira’s School in B.T.M. layout and to the Christ School, the said Schools were not having the declaration to the effect that they are minority educational institutions. 34 44. Even if the resistance of the ninth and tenth respondent Schools is examined from the angle of equity or reasonableness, what can be said is that the parents of the petitioning students on being assured that their wards would be admitted to the said Schools cannot be left high and dry. We take judicial notice of the commencement of process of applying for admission 8 to 10 months prior to the commencement of the academic year in May/June. The privilege accrued to the petitioning students at the time of their selection for admission to the ninth and tenth respondent Schools cannot be erased just because the said Schools are subsequently given the declaration of minority status. The rigors of transition from non-minority to minority status have to be softened. The children and their parents cannot be confronted with a situation in which the respondent Nos.9 and 10 herein deny admission and they cannot get admission in other schools on account of the expiry of the last date for submitting the application for admission. 35 45. We thus answer the third question that the obtaining of the certificate of minority status by the ninth and tenth respondents would have only prospective application, meaning, the Government cannot allot the students under the R.T.E. Act to the ninth and tenth respondent Schools from the academic year 2015-2016.
46. Keeping the petitioning students out of school violates not only their fundamental right to education guaranteed under Article 21A of the Constitution of India, but also their human right. Further, it is to be noted that the admission of the petitioning children would not put the managements of the schools in question to any loss, because the State Government has fairly come forward to reimburse the fees of the petitioning children.
47. Thus, not finding any merit in the resistance of the respondent schools (except the respondent No.8), we allow this petition by directing the respondent schools (except respondent No.8) to admit the students selected under the 36 R.T.E. Act to their respective Schools without any further loss of time.
48. We cannot be oblivious to the loss of instructions suffered by the petitioning students on account of their non- admission to the schools till now. We therefore deem it necessary and just to direct the said Schools to conduct special classes for the petitioning children and for all those similarly placed students, who are not the petitioners before us, but who have been selected and allotted by the Government under the R.T.E. Act. Not to leave anything to chance, we clarify that the cost of conducting the special classes has to be borne by the managements of the concerned Schools.
49. As the managements of the said Schools have to bear the financial burden of conducting the special classes, we are not imposing any costs on them, although their defiant conduct and their utter disregard for the lawful allotments of students made by the officers, who are in charge of 37 implementing the provisions of the R.T.E. Act, warrant the imposition of punitive and exemplary costs.
50. The writ petition as against the respondent No.8 is dismissed, as the Government has issued the memorandum, dated 3.11.2009 (Annexure-R5) to the effect that respondent No.8 is a minority educational institution and further, as the said School does not figure in the list of schools (Annexure-A) notified for the allotment of students to unaided institutions under the R.T.E. Act. CHIEF JUSTICE Sd/- Sd/- JUDGE MD/VGR