(Prayer: These writ petitions are filed under Articles 226 and 227 of Constitution of India praying to quash the memo dated 24.04.2018 made in No.C6 St. Joseph.01/2018-19 issued by the second respondent vide Annexure-D and etc.)
1. Petitioner No.1 a society registered under the Karnataka Societies Registration Act, 1966 and the Petitioner No.2 a Lower Primary School founded by the said society are invoking the writ jurisdiction of this Court for the quashment of the impugned Memoranda dated 24.04.2018 and 26.04.2018 issued by the second respondent B.E.O at Annexures D & F respectively, whereby they are warned in effect to admit the students under the RTE quota, failing which coercive action would be taken.
2. After service of notice the respondents have entered appearance through the learned Additional Government Advocate Smt. Pramodini Kishan who resists the petition prayer, having filed the Statement of Objections Inter alia accompanied by a copy of Division Bench Judgment dated 26.04.2018 in W.A.No.980/2018 in a matter allegedly having some bearing on the issue raised herein.
3. Learned Counsel for the petitioners succinctly submits that the first respondent State has issued the Notification dated 13/19th of August 1987 declaring all the primary schools established by the first petitioner Society as the schools approved and recognized by the Education Department, and that they are established and administered by the first petitioner-management that belongs to a Minority Community; that being so the second respondent-BEO is not justified is coercing the school for admitting the students under the RTE quota and of threatening the petitioners of penal consequences, on their refusal/failure.
4. Learned AGA per contra contends that the aforesaid Notification of August 1987 only declares the petitioner management to be of the management belonging to the minority community and further covers all the primary schools established by it as on till that day only, as the State approved/recognized schools administered by the minority community, and therefore the said Notification does not cover the second petitioner school which is established now i.e., apparently decades after the issuance of the said Notification and therefore the same is not covered thereunder.
5. The learned AGA further submits that the National Commissioner for Minority Educational Institutions Act, 2004 (hereafter ‘2004 Act’) having been enacted by the Parliament with effect 11.11.2004, the second petitioner-school cannot be treated as being established and administered by a Minority Community in the absence of a No-Objection Certificate accorded to the first petitioner- Society in terms of section 10 of the said Act and therefore the petitioners cannot escape from the coverage of the socio-beneficial provisions of the Right of Children to Free and Compulsory Education (RTE) Act, 2009 (hereafter ‘2009 Act’).
6. I have heard the learned counsel for the petitioners and the learned Additional Government Advocate for the respondents. I have perused the petition papers as also the Statement of Objections. I have read the Division Bench judgment dated 26.04.2018 in W.A.No.980/2018 a copy whereof is at Annexure-R1.
7. A brief description of the 2004 Act enacted by the Parliament is pertinent; the Act came into force with retrospective effect from 11.11.2004; Section 2(aa) defines ‘appropriate Government’ to mean the State Government or the Central Government, one that recognizes the conducting of the programmes of studies under the State Act or the Central Act, as the case may be; Section 2(c) defines the ‘Commission’ to mean the National Commission for Minority Educational Institutions; section 2(ca) defines ‘Competent authority’ to mean the authority appointed by the appropriate Government to grant NOC to the minority community for the establishment of any educational institutions; Section 2(g) defines the ‘Minority Educational Institution’ to mean a college or an educational institution founded by minorities; Section 2(f) defines, the ‘minority’ to mean a community notified as such, by the Central Government; Section 2(da) defnies ‘educational rights of minorities’ to mean the rights of the minorities to found educational institutions of their choice. Other definitions are not relevant for the adjudication of the present case.
8. It is not in dispute that the Christians in the State of Karnataka are declared to be religious minority and that the 1st petitioner-management of the 2nd petitioner-school belongs to this community and consequently the said school is to be treated as an educational institution established and administered by a minority community. There is also no dispute that the recognition for conducting the study programmes is granted under the State Act i.e., the Karnataka Education Act, 1983 and the Rules made thereunder, and therefore the appropriate Government under the 2004 Act happens to be State Government.
9. The provisions of Section 10(1) and (2) read as under:
“10(1) Subject to the provisions contained in any other law for the time being in force, any person, who desires to establish a Minority Educational Institution may apply to the competent authority for the grant of no objection certificate for the said purpose.
(2) The Competent authority shall,- (a) on perusal of documents, affidavits or other evidence if any; and (b) after giving an opportunity of being head to the applicant, decide every application filed under sub-section (1) as expeditiously as possible and grant or reject the application, as the case may be: Provided that where an application is rejected, the Competent authority shall communicate the same to the applicant.
(The Proviso to the above sub-section (2), and the other sub-sections being no relevant, are not reproduced.)
10. The text and context of sub-section (1) & (2) of Section 10 mean that: the community which is notified by the Central Government as a Minority Community can establish a minority educational institution of its choice; as a precondition for such establishment in needs to obtain a no objection certificate as defined under Explanation-b to Section 10 which reads “n objection certificate” means a certificate stating therein, that the Competent authority has no objection for the establishment of a Minority Educational Institution”. This authority is appointed by the appropriate Government and therefore, logically, the authority is different from the Government.
11. The aforesaid notification of August, 1987 at Annexure-A is issued by the State Government. There is no indication in the 2004 Act that the powers statutorily vested in the Competent authority can be exercised by the appropriate Government itself. Nor there is any provision which deems that the Notification of the kind in question issued before the 2009 Act is enacted, is a no objection certificate issued thereunder. That being so, the said Notification cannot be construed to be a ‘no objection certificate’ issued by the Competent authority under Section 10(1) in favour of the first petitioner-Society for the establishment of the second petitioner- School. Therefore, as of now, the 2nd petitioner-School does not have a ‘no objection certificate’.
12. Section 12-B of the 2004 Act is introduced by 2006 Amendment with retrospective effect from 23.01.2006, Sub-section(1) whereof, reads as under:
12 B Power of Commission to decide on the minority status of an educational institution,-(1) Without prejudice to the provisions contained in the National Commission for Minorities Act, 1992 (19 of 1992), where an authority established by the Central Government or any State Government, as the case may be, for grant of minority status to any educational institution ejects the application for the grant of such status, the aggrieved person may appeal against such order of the authority to the Commission.
The next and context of this provision indicates that even the claim for the grant of minority status to a particular management which intends to establish an educational institution needs to be considered by the Competent authority as defined under Section 2(ca). It needs to be reiterated that there is no provision in the Act which provides for deeming of the Notification of the kind in question issued by the State Government as the one granting the minority status. This Sub-section provides for an appeal to the Commission where such claim is rejected.
13. The Division bench of this Court in the case of the Foundation Educational Trust vs. State of Karnataka and Others at pages 8 & 9 of its Judgment dated 24.06.2018 has observed as under:
“In the case of M/s. Sharada Vidyalaya (supra), this Court only made a request to the Commission to determine the case of the institution concerned and rather this Court observed that the Commission was being empowered by the order to decide on the status. In the given situation, the Court made an interim arrangement that the Government would not insist upon admission of 25% of the total strength of the students as recommended under the Act of 2009. However, in the order dated 08.01.2018 in Indus Trust (supra), this Court has examined the other order of the learned Single Judge wherein, the school concerned was seeking not to admit the students assigned by the State Government on the strength of it being a minority institution. This Court observed that unless the school was able to demonstrate that it was a minority institution, it was not entitled to the benefit of other interim orders passed by this Court staying the operation of the Government Order dated 18.06.2014.
Under the Scheme of the National Commission for Minority Educational Institutions Act, 2004, any person desirous of establishing a minority educational institution, may apply to the competent authority for grant of no-objection for the said purpose. Further to this, in view of the Constitution Bench decision in the case of PRAMATI EDUCATIONAL AND CULTURAL TRUST AND OTHERS VS. UNION OF INDIA AND OTHERS: AIR 2014 SCC 2114 (paragraphs 45 and 46) the Act of 2009 does not apply to the minority educational institution but then, such an exclusion obviously depends on the basic fact that the educational institution is in fact a minority educational institution.”
14. The above observations of the Division Bench show that the said judgment was rendered in the light of the case of M/s. Sharada Vidyalaya i.e., W.A.No.1512/2017 disposed off on 08.09.2017 wherein a request was made by the Court to the Commission to determine the case of the institution therein for the grant of minority status. This newly adde
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d Section B of the 2004 Act was not brought to the notice of the Division Bench. Therefore, the said observations may not be of much assistance is deciding the case at hands. 15. In the light of the above discussion, the submission of the learned counsel for the petitioners that in view of the Notification of August, 1987 at Annexure-A, there is not need for the first petitioner-Society to obtain NOC in terms of section 10(1) of the 2004 Act does not merit acceptance. In the above circumstances, these writ petitions fail and accordingly, they are dismissed. The impugned Memoranda dated 24.04.2018 and 26.04.2018 cannot be faltered. Consequently, the second petitioner-School is liable to admit the students from RTE Quota and further to make good the deficiency thereof in the succeeding Academic Years. Liberty is reserved to the petitioners to make appropriate application to the competent Authority for the grant of ‘no objection certificate’ in terms of Section 10(1) of the 2004 Act; if such an application is made, the authority concerned, shall consider the same in accordance with law after giving an opportunity of hearing to the petitioners. No costs.