IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No 7907 of 1995
with
SPECIAL CIVIL APPLICATION No 7908 of 1995
with
SPECIAL CIVIL APPLICATION NO. 7909 of 1995
For Approval and Signature:
Hon'ble MR.JUSTICE R.BALIA.
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1. Whether Reporters of Local Papers may be allowed
to see the judgements?
2. To be referred to the Reporter or not?
3. Whether Their Lordships wish to see the fair copy
of the judgement?
4. Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India, 1950 of any Order made thereunder?
5. Whether it is to be circulated to the Civil Judge?
1 and 2 – Yes 3 to 5 No
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H B KAPADIA EDUCATION TRTUST
Versus
GUJARAT SECONDARY EDUCATION BOARD
————————————————————–
Appearance:
MR BHARAT R PANDYA for Petitioners
MR PREMAL JOSHI for Respondent No. 1
MR. MUKESH PATEL, A.G.P. for Respondent No. 2
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CORAM : MR.JUSTICE R.BALIA.
Date of decision: 05/05/97
ORAL JUDGEMENT
These three petitions raise an identical issue
and are hereby decided by this common order. The
petitioner in Special Civil Application No. 7907 of 1997
is an H.B. Kapadia Education Trust established by H.B.
Kapadia and R.H. Kapadia by Trust Deed dated 15.3.1956.
Special Civil Application No. 7908 of 1995 is by Preyas
Education Trust settled by Arvindbhai Mohanlal Shah by
Trust Deed dated 8.2.1960 and Special Civil Application
No. 7909 of 1995 is by Kapaida Education Trust
established by trust deed dated 5.3.1956 by H.B.
Kapadia. All the three trusts applied to the State
Government claiming benefit of being exempt from the
provisions of Section 17(21), Section 34, 35 and clause
(b) of Sub-section (1) of Section 2,3,4 and 5 of Section
36 in terms of Section 40A stating that the trusts are
established and administered by the persons belonging to
minority community of Jains.
2.In the first instance when the application dated
2.2.1994,12.2.1994 were not decided in respect of H.B.
Kapadia as well as Preyas Education Trust the respective
trusts filed Special Civil Application No. 2785 of 95
and 4471 of 1995 in which ultimately the court directed
the competent officer to decide the applications within
the time specified i.e. 31.5.1995 and 31.7.1995.
Finally by separate orders made on 17.8.1995 the
Secretary, Gujarat Secondary Education Board had rejected
all the three applications. The reasons as per the
translated version of order submitted along with the
petition for refusal are firstly that there is no term in
the constitution that the member except Jain cannot
remain in the trust. It means at the time of
establishment of the trust, there were the members except
the Jain Community. Hence it proves that the institution
is not established by minority community. Secondly, it
was stated by the Secretary that there is also not a
provision that only the person of Jain Minority Community
can be appointed as the trustees and the method of
appointment of trustees has been so provided from which
it becomes clear that the trust is not established by
minority community. Moreover, it is not that the
administration of the trust will be made by only the
persons of minority community. However,it found that at
present all the persons who are trustees belonged to Jain
religion. With the aforesaid conclusion the Secretary
concluded that it does not prove that as per the
provisions of Article 29/30 of the Constitution, the
institution is established by minority community and
administration of it is made by minority.
3.It will be apposite to refer to Articles 29 and
30 of the Constitution of India and Section 40A of the
Gujarat Secondary Education Act.
"Art. 29: Protection of interests of
minorities:
(1) Any section of the citizens residing in the
territory of India or any part thereof having
distinct language, script or culture of its own
shall have the right to conserve the same.
(2) No citizen shall be denied admission into any
educational institution maintained by the State
or receiving aid out of State funds on grounds
only of religion, race, caste, language or any of
them.”
“Art. 30: Rights 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) In making any law providing for the
compulsory acquisition of any property of an
educational institution established and
administered by a minority, referred to in clause
(1), the State shall ensure that the amount fixed
by or determined under such law for the
acquisition of such property is such as would not
restrict or abrogate the right guaranteed under
that clause.
(2)The State shall not, in granting adi to
educational institutions, discriminate against
any educational institution on the ground that it
is under the management of a minority, whether
based on religion or language.”
“Section 40A :
Nothing contained in clause 23 of Section 17,
Sections 34 and 35, and clause (b) of sub-Section
(1) and sub-sections (2), (3), (4) and (5) of
Section 36 shall apply to any educational
institutions established and administered by a
minority, whether based on religion or language.”
4.Article 29 preserves the cultural rights of every
class founded on distinct language, script or culture of
its own by providing that it shall have the right to
conserve the same. Article 30 of the Constitution
specifically deals with rights of all minorities to
establish and administer educational institutions whether
founded on religion or language and provides that every
minority based on religion or language shall have right
to establish and administer educational institutions of
their choice. While clause (2) of Article 30 prohibits
discrimination by the State in the matter of granting aid
to educational institutions on the ground that it is
under the management of minority whether based on
religion or language, Sub-clause (2) of Article 29
inhibits the rights of educational institutions
maintained by minority section to deny admission thereto
on the ground only of religion, race, caste, language or
any of them where such educational institution is
maintained by the State or receiving aid out of State
funds.
5.The two provisions read together make out a
comprehensive scheme of the rights of minorities in the
matter of establishing and administering educational
institutions and inhibition against grant in aid on the
ground of denial of admission on the basis of religion,
race, caste, language or any of them. It is the
declaration already made in favour of educational
institution which has been established by members of
minority community and is being administered by it. If
the two factors are established, namely that it has been
established by member or members of minority community
whether founded on language or religion and is being
administered by such minority the protection under
Articles 29/30 follows. It necessary implied that a
protection which is available in presenti may be lost if
at any time either of the conditions ceases to exist. In
other words, the declaration and protection of rights
have nexus and correlation to the point of time when such
right is sought to be enforced. If at that relevant time
it is established that the educational institution in
question has been established by member/members of
minority community and is being administered by such
minority the rights or benefits flowing from Article
29/30 at that point of time secures the protection, and
the same cannot be denied by imaginary projecting in
future that for want of certain conditions in the deed of
settlement such protection may or may not exist in
future. The provision under which benefit for the
educational institution is sought under Section 40A of
the Gujarat Secondary Education Act was to operate in a
specific field as noticed above. Educational institution
established or administered by a minority whether based
on religion or language has been granted exemption from
the operation of certain provisions of the Act leaving
room for freedom of operation for the management in that
area. The provisions which are not made applicable to
the institutions established and administered by minority
relates to laying down qualifications and method of
selection and condition of appointment, promotion and
termination of employees and rules of conduct and
discipline of the Headmaster and teaching and
non-teaching staff of registered private secondary
school. Provisions of Section 13 and the provisions
relating to service in registered private secondary
schools delineated in Sections 34, 35 and section 36(1),
(2)(3)(4) and (5). Thus it is to be seen that in the
matter of recruiting personnel to its institution which
is established and administered by minority has been left
free from interference from outside and rigors of the
other provisions of the Act except to the extent it
provides for providing a reasonable opportunity for
showing cause against action proposes to be taken against
the Headmaster and member or members of non-teaching
staff, which is fundamental to all proceedings resulting
in civil consequences. The exemption flow automatically
on fulfillment of two conditions namely the institution
has been established by member or members of such
minority community that is based on religion or language
and that such educational institution is being
administered, as distinct from `shall continue to be
administered’, by that community.
6.In the aforesaid scheme of the constitutional
provisions and the provisions of Gujarat Secondary
Education Act so far as the present administration of the
institution is concerned, it has been found by the
competent authority in its impugned order in unequivocal
terms that all persons who are trustees and managing
affairs of the institution in question belonged to Jain
community. It is not the case of the authority that
members belonging to Jain religion did not fulfill the
criteria of a minority community for the purpose of Arts.
29, 30 of the Constitution or Section 40A of the Act.
Rather he proceeded on the assumption that person
following Jain religion fulfills the criterion of
Articles 29 and 30 and Section 40A. The criteria that
the institution is being administered in presenti by
members of that community is the finding reached by the
officer himself. What shall be the future constitution
of the management cannot affect the rights which are
being claimed in presenti. If in future the institution
loses its character of its being administered by such
minority community, it may lose entitlement to continued
exemption flowing from Section 40A but that cannot be a
ground for refusing the operation of exemption clause
when both the conditions can be shown to have fulfilled
at the given point of time when the question arises about
operation of such provision at that point of time.
7.So far as the finding which has been reached by
the Secretary that the institution is not established by
minority community, it is neither supported by any reason
which can lead to such conclusion at all on the reading
of the nor there is reference to any material to that
effect. The sole ground for coming to the conclusion
that institution is not established by minority community
emanates from the fact that the constitution of trust did
not provide that no members except Jain community can
become the trustee to administer the said trust. So far
as the question of institution established by a minority
community or members of minority community is concerned
is directly related to the question whether the settlor
of the trust or founder of the institution belonged to
any such class founded on language or religion.
Therefore, the question directly asks for the religion to
which the settler of such trust or institution belong to
and not the religion of trustees who have been or may be
entrusted with the task of administering the trust. The
fact that the trustees belong to a minority community or
not can have no relevant bearing whatsoever on the
question whether an institution has been established by
any member or members belonging to a particular community
founded on language or religion which can be termed as
minority institution. No material other than the lack of
prohibition against appointment of any person other than
Jain as trustees has been referred to or has been pointed
out by the learned counsel for the respondents to support
this conclusion. Obviously the conclusion is neither
supported by any reason nor founded on any material. An
order founded on such findings suffers from error
apparent from record. It appears that the Secretary has
not drawn any distinction between the class to which
settler belongs and the class to which the trustees may
belong. The order therefore cannot be supported on any
of the grounds disclosed in the order.
8.Moreover, it would not be out of place to mention
decision of this court in the case of F.A.H. S. School
Ahmedabad Vs. M.M. Dave (Guj) 1950-91(4) All India
Education Cases 377. This clearly postulates that merely
because one or some of the members in the governing
council are engaged for the better management of the
institution who may or may not belong to minority
community it does not cease to be an institution
administered by minority community so far the majority of
the governing body are belonging to minority
communication. Induction of outsiders in the governing
body may be necessitated for the reason of better
administration required of educational institution or
securing better standards of education and ancillary
activities so much so such right to establish educational
institution under the Constitution and exemption from
outside control in administration is envisaged in the
context of establishment of educational institution to
which the admissions to outsiders without distinction of
religion, caste, race or language is the constitutional
requirement. Right to administer such institution to the
member or members of such religion or linguistic
community exclusively is guaranteed to such member or
members but that does not inhibit member or members of
such community to exercise their right with the
assistance of others.
9.As a result of the aforesaid discussion these
petitions succeed. The impugned orders in each case
rejecting the application of the petitioners claiming
benefit of Section 40A of the Gujarat Secondary Education
Act is quashed and set aside and the competent officer is
directed to decide the application afresh in accordance
with law keeping in view the observations made
hereinabove and the principles laid down in the F.A.H.
S. School, Ahmedabad’s case referred to above. These
respective applications shall be decided within six weeks
from the date of service of the writ of this order. Rule
made absolute accordingly in each case. No order as to
costs. Direct service is permitted.
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