Court No. - 18 Case :- WRIT - A No. - 26153 of 2010 Petitioner :- C/M Kewal Ram Gurmukh Das (Co-Education) Inter College Respondent :- State Of U.P. And Others Petitioner Counsel :- Dr. H. N. Tripathi Respondent Counsel :- C. S. C. Hon'ble Arun Tandon, J.
The original records pertaining to the application made by the
petitioner’s institution for being declared as a minority
institution has been produced today before this Court by the
Standing Counsel along with other original records. It may be
recorded that it took four orders of the Court to ensure that
records are produced by the State.
On record are the Rules and Regulations of the Society, its
registration and the memorandum of association.
There is absolutely no material on record which can establish
as to how the institution was established, who contributed to
the establishment of the institution and in what manner. This
Court further finds from the Rules and Regulations of the
Society that there is no restriction with reference to the
particular caste or members of linguistic minority being
admitted as members of the Society, even the list of the
members of general body has not been enclosed. The
Constitution Bench of the Hon’ble Supreme Court of India has
repeatedly held that for an institution to be declared as
minority institution, it is necessary to prove that the institution
has been established by a minority community and that it is
managed by the same minority community exclusively. (Ref.
T.M.A. Pai Foundation vs. State of Karnataka reported in (2002)
8 SCC, 481 and Islamic Academy of Education and another vs.
State of Karnataka and others reported in (2003) 6 SCC, 697).
From the original records this Court finds that on 28.08.2006
a Committee comprising of 5 members, H.L.Gupta,
Secretary, Madhyamik Shiksha, S.K.Pandey, Special
Secretary (Legal Department), A.K. Chaudhary, Director
(Minority Welfare Department), Mushtaq Ahmad Siddiqui,
Member, Minority Commission, Dhyan Pal Singh Chaudhary,
Under Secretary, Welfare and Waqf Board in its meeting
resolved to recommend the names of as many as 29
institutions for being declared as a minority institutions and on
the basis of aforesaid, an order was issued by the State
Government on 16.11.2006 declaring 29 institutions as
minority institutions including the petitioner’s institution.
What is surprising to note is that on the same file, there is a
detailed note of the Special Secretary which records that the
High Court in Writ Petition No. 4096 of 2004 and Writ Petition
No. 404 of 2004 vide judgment and order dated 13.07.2006
has held that the order of the State Government granting
minority status to an institution was without authority of law
and the order in that regard dated 09.06.2004 was set side.
Against the order of the Hon’ble Single Judge, the Committee
of Management filed Appeal No. 903 of 2006 before the
Division Bench of this Court. The order of the Division Bench
has been quoted in the revision which reads as follows :
“The State Government has by the impugned order dated of 9 th of June, 2004
sought to confer a minority status on the school in question.
The society controlling the school was registered in 1947. It was always run
as an open institution. Hindus became even a majority during the middle of
the last century. Some interest parties hopelessly misconstrued. The
Constitution and prayed to the State Government for grant of minority status.
It is not for any State Government to grant any Minority status to any
institution not even the Parliament of State Legislature can do it. Minority
institution has to grow by itself. Only a competent Court of law can declare
such status.
The order of the State Government shows a complete misunderstanding of Article 30
of the Constitution. It appears to have constituted a Committee and on the basis of the
report of the Committee, it took upon itself the power and authority to grant minority
status with immediate effect.
The matter is so hopelessly illegal that it is very difficult to explain how hopeless
it is. The appeal is dismissed.”
Yet the State Government through its highest officials in utter
disregard to High Court’s orders has chosen to take law with
its own hands by issuing the notification dated 16.11.2006.
Let the Chief Secretary of the State file his personal affidavit
on or before 19.07.2010 and explain as to why contempt
proceedings against the officers responsible of the State for
dis-regard shown to the law declared by the High Court may
not be initiated. Such order has conferred illegal benefit upon
29 institutions whereby they have gone out of the purview of
the U.P. Secondary Education Services Selection Board Act,
1982 and have got a right to appoint chosen few with the help
of being declared a minority institution.
The original records are being returned to Shri R.B.Pradhan,
Standing Counsel, who shall produce the same, before this
Court, again on the next date fixed.
Put up on 19.07.2010.
Dated : 08.07.2010
VR/26153/10