Isabella Thoburn College, Lucknow and Another vs State of U.P.and Others

Rajiv Sharma, J.—Heard learned counsel for the petitioners and Sri D.K. Upadhyaya, learned Chief Standing Counsel, for the respondent Nos.1 and 2 and Sri Ashit Kumar Srivastava for respondent No.3.

By means of the instant writ petition, the petitioners have challenged the order dated 22.5.2007 as contained in Annexure No.38 to the writ petition.

It is stated that the petitioner No.1 is one of the premiere Institutions of the country and is being run by Isabella Thoburn College Society, Lucknow, which is a Society registered under the Societies Registration Act, 1860. The said Society was founded by the Christian and the Institution is an aided minority institution. The College was a constituent College of the Lucknow University after coming into force of Lucknow University Act, 1921 and remained as such till the commencement of the U.P. State Universities Act, 1973 the College continues to be the associate College under the Statute 13.01 subclause (4). The Institution is also imparting education of B.Ed course since 1954. The Institution is admitting students in B.Ed course on the basis of Entrance Test Examination and was exempted of the notification 25.8.1975 so as to protect the rights of the Institution provided under Article 30 of the Constitution. In the year 1987, the State Government framed U.P. State Universities (Regulation of Admission to Courses of Instruction for Degree in Education in Affiliated, Associated and Constituent Colleges) Order, 1987 [In short referred to as the ''Order 1987''], consequent to coming into force the Order 1987, the Universitytriede to restrain the College from holding entrance test for admitting students.

The aforesaid action of the University restraining the petitioner from admitting students in B.Ed course, was assailed by the Committee of Management of IT College, by filing a writ petition No.4530 of 1987 and a Division Bench of this Court by the order dated 10.7.1987 provided that the petitioners shall be entitled to admit members of the minority community whose interest they cater to and only thereafter the remaining seats will be filled according to Annexure 2. Consequent to the passing of the aforesaid interim order dated 10.7.1987, the petitionerInstitution has been admitting the students of minority community for pursuing B.Ed course every year.

On 7.8.1995, the State Government issued a Government Order No.1310/1511953(101)/92 which provides that with a view to maintain high standard and for admitting students to the extent of 50% seat in B.Ed. courses in minority institution, a Committee shall be constituted in every University comprising of a representative of the University to be nominated by the ViceChancellor, Principal of the minority institution, a representative of higher Education Department not below the rank of Higher Education Officer. This Committee will law down the guidelines to maintain standard in minority institution. In the Government Order, it was also mentioned that the same is being issued pursuant to the direction issued by the Hon''ble Supreme Court in its order dated 6.12.1991 passed in writ petition No.1868 of 1980 and 13213 of 1984.

Being aggrieved thereof, the petitioners have preferred another writ petition, which was numbered as writ petition No.1678 (M/B) of 1996: Committee of Management, Isabella Thoburn College, Faizabad Road, Lucknow v. State of U.P. and Others, before this Court. When this writ petition No.1678/MB/1996 was decided on 14.2.1997, the Division Bench of this Court desisted from making any observations as the matter relating to the same controversy was pending before the Hon''ble Supreme Court. In the case of T.M.A. Pai Foundation and Others v. State of Karnataka and another along with connected matters [(1993) 4 Supreme Court Cases 286], the Apex Court has observed that certain questions cropped up, which in the opinion of the Bench required answer by a larger Bench. The questions which were framed were, as under:

What is the meaning and content of the expression ''minorities'' in Article 30 of the Constitution of India?

What is the meaning of the expression ''Minority Educational Institution'' and what are the indices to determine whether an educational institution is a Minority Educational Institution?

Whether the decision of this Court in St. Stephen''s case is right in saying that Article 30 clothes a Minority Educational Institution with the power to admit students by adopting its own method of selection and that the State or the affiliating University has no power to regulate admission of students to such Minority Educational Institution even while permitting the Minority Educational Institution, to admit students belonging to the relevant minority to the extent of 50% of its intake capacity?

Thereafter, referring Bench, which consisted five Hon''ble Judges of the Apex Court, observed in para2 of the report:

�With regard to the third question, we think we must briefly indicate the reasons for reference to the larger Bench. In St. Stephen''s College v. University of Delhi, it is held that it is not permissible for the State or the affiliating University to provide that admissions to Minority Educational Institutions should also be on the basis of merit as determined in a joint/common entrance test and that the Minority Educational Institution too must draw its students from the common pool on the basis of merit. We entertain serious reservations with respect to the said holding. So long as the Minority Educational Institution is permitted to draw students belonging to that community to the extent of 50% seats, even by going down the merit list, we see no reason why the State/affiliating University cannot stipulate that the general students as well as minority students must all be drawn only from the common merit pool and that even the minority community students must also be admitted on the basis of inter se merit, determined on the basis of common/joint entrance test. Article 30 in our opinion does not clothe a Minority Educational Institution with the power to adopt its own method of selection of students. It is not a part of the minority character of the Institution. The said requirement is but a piece of regulation which the State/affiliating University can prescribe in the interest or fairness and maintenance of standard.�

Relying upon the aforesaid judgment and various other decisions, a Division Bench of this Court allowed writ petition No.1678 of 1996 preferred by the College vide judgment and order dated 14.2.1997. The operative portion reads as under:

�a writ in the nature of mandamus is issued commanding the University authorities, not to create any impediment, hurdle or interference in the matter of admissions to B.Ed. classes, made by the authorities of Isabella Thoburn College, Lucknow in any manner, whatsoever, and allow the students of B.Ed. and to appear into the examination of this academic session and declared their results.�

Learned Counsel for the petitioners has stated that the earlier controversies which were raised in the aforesaid writ petitions have lost its efficacy after promulgamation of National Council for Teacher Education Act, 1993 by the Parliament. Section 3 of the Act provides for establishment of �National Council for Teacher Education�. Under the provisions of Section 21(1) of the Act, the Council so constituted have been empowered to establish Regional Committees. Inviting attention towards Annexure14 to the writ petition, the petitioner submitted that I.T. College falls in Northern Region Committee being a minority Institution. After completion of the formalities as required by the Northern Region Committee an order was issued on 3/5.6.1998 under the provisions of Section 32F(2) read with Section 14 and Section 15 of the Act based on the recommendations of the respective State Governments. A perusal of the said letter dated 3/5.6.1998 [Annexure18 to the writ petition] would show that the College has been approved as an agency as Minority Institution to conduct the entrance test and admit students. According to the learned Counsel for the petitioners, the Regional Director of the Northern Region Committee exercising powers under the provisions of Section 14(3)(a) of the Act granted recognition to the College for B.Ed course from the academic year 199899 with annual intake of 60 students and since then the College is holding their own entrance test for admission in B.Ed course.

On 7.4.2003 and 21.4.2003, Lucknow University issued orders informing the petitionersInstitution that holding of entrance test for admission in the B.Ed. Courses in the Colleges by the petitioners is contumacious to the directions issued by the University. Being aggrieved thereof, the petitioners institution has filed another writ petition, which was numbered as writ petition No.1400 (M/S) of 2003, before this Court.

During the pendency of writ petition Nos.4530 (M/B) of 1987 and 1400(M/S) of 2003, this Court allowed the petitioners institution to admit 50% students from minority community and 50% for general category on the basis of the entrance examination held by the institution. It may be added that on 6.5.2003 this Court passed an order in Writ petition No.1400(M/S) of 2003 to the effect that since the National Council for Teacher Education has granted recognition to the Isabella Thoburn College for 60 students for B.Ed. Course and as such the Lucknow University is restrained from allotting any seat to the petitionerInstitution.

During the pendency of the aforesaid writ petition, the Hon''ble Supreme Court pronounced the judgment in Islamic Academy of Education and another v. State of Karnataka and Others, reported in [(2004) 13 Supreme Court Cases 3]. In compliance of the directions issued by the Apex Court in Islamic Academy of Education and another (supra), two separate committee were appointed by the State of U.P., in which, one Committee was authorized to regulate the admission in professional courses including B.Ed. and the other was authorized to fix the fees of the institution to be charged by the students, pursuing their professional courses in the respective Colleges.

The grievance of the petitioners is that though there was neither any complaint from the State Government or any authority but the Committee for Fairness and Transparency in Admission Procedure of Technical, Medical and Other Professional Courses [in short referred to as �Fairness Committee�] took a suo moto cognizance and not only by the order dated 13.4.2007 restrained the College from declaring the result of the Entrance Test for admission to B.Ed. Course but by the order dated 22.5.2007 the Committee hold that Isabella Thoburn College is not a minority Institution. Learned counsel for the petitioners has vehemently argued that the Fairness Committee was constituted to decide the percentage of the seats to be allotted under State quota and the Management Quota in unaided minority and nonminority Institution but it was not at all within the domain of the Fairness Committee so as to decide the status of the Institution i.e. minority, which had already been notified twice by the State Government in the year 1975 and 1996. Thus the Committee has exceeded its jurisdiction and the order dated 22.5.2007 passed by the said Committee is ab initio illegal and without jurisdiction. Learned Counsel for the petitioner has vehemently argued that after coming into force of U.P. Private Professional Educational Institutions (Regulation of Admission and Fee Structure) Act, 2006 the term of the Fairness Committee has come to an end and as such it was not competent to pass any order. Petitioners have also challenged the amendment incorporated on 1.2.2007 in U.P. State Universities (Regulation of Admission to Courses of Instruction for Degree in Affiliated, Associated and Constituent Colleges on the ground that the said order not only is inapplicable on the minority institution but is inconsistent to the provision of Section 28(5) (b) of the U.P. State Universities Act. He also added that it affects the rights of the minorities.

Controvering the arguments, learned Chief Standing Counsel has argued that after coming into force of The Uttar Pradesh Private Professional Educational Institution (Regulation of Admission and Fixation of Fee) Act, 2006 it was the duty of the petitioners to apply as per provisions of the Act for getting it declared as Minority Institution. For the reasons best known to the petitioners, they have not chosen to apply under the provisions of Section 3 of the Act and as such they are not entitled for any relief as sought in the present writ petition. He further added that the perusal of the aforesaid Act, 2006 will reveal that there is no saving clause enacted by the State Legislature to safe guard the interest of the Institution, which have already been declared as the Minority Institution. He further defended that the impugned order passed by the Committee is perfectly justified and the Committee has not exceeded its jurisdiction while passing the impugned order as it was well within the domain of the Committee to examine relevant factors before giving permission for holding its own test by the College in professional courses.

Before adverting to merits and demerits of the present case, it would be apt to refer as to how the Committee has come into existence and what would be the life of such Committee.

In Islamic Academy of Education v. State of Karnataka and Others, (2003) 6 SCC 697, the Hon''ble Supreme Court directed the respective State Government to appoint Committee. The relevant paragraph reads as under:

����For each State a separate Committee shall be formed. The Committee would be headed by a retired Judge of the High Court. The Judge is to be nominated by the Chief Justice of that State. The other member, to be nominated by the Judge, would be a doctor or an engineer of eminence (depending on whether the institution is medical or engineering/technical). The Secretary of the State in charge of Medical or Technical Education, as the case may be, shall also be a member and act as the Secretary of the Committee. The Committee will be free to nominate/coopt an independent person of repute in the field of education as well as one of the ViceChancellors of the University in that State so that the total number of persons on the Committee do not exceed five. The Committee shall have powers to oversee the tes''s to be conducted by the association. This would include the power to call for the proposed question paper(s), to know the names of the papersetters and examiners and to check the method adopted to ensure papers are not leaked. The Committee shall supervise and ensure that the test is conducted in a fair and transparent manner. The Committee shall have the power to permit an institution, which has been established and which has been permitted to adopt its own admission procedure for the last, at least, 25 years, to adopt its own admission procedure and if the Committee feels that the needs of such an institute are genuine, to admit students of their community, in excess of the quota allotted to them by the State Government. Before exempting any institute or varying in percentage of quota fixed by the State, the State Government must be heard before the Committee. It is clarified that different percentage of quota for students to be admitted by the Management in each minority or nonminority unaided professional College(s) shall be separately fixed on the basis of their need by the respective State Governments and in case of any dispute as regards fixation of percentage of quota, it will be open to the Management to approach the Committee. It is also clarified that no institute, which has not been established and which has not followed its own admission procedure for the last, at least, 25 years, shall be permitted to apply for or be granted exemption from admitting students in the manner set out hereinabove.�

As regard the life of the Committee so constituted, the Hon''ble Supreme Court has laid down in clear words as under:

�Our direction for setting up two sets of Committees in the States has been passed under Article 142 of the Constitution of India which shall remain in force till appropriate legislation is enacted by Parliament.�

In P.A. Inamdar v. State of Maharashtra, (2005) 6 SCC 537, the Hon''ble Supreme Court reiterated that the Committees constituted by the judgment in Islamic Academy (supra) in exercise of power under Article 142 of the Constitution are in stopgap arrangement until a suitable legislation or regulation framed by the State steps in. Further, such Committees cannot be equated with Unni Krishnan Committees which were supposed to be permanent in nature. The relevant paragraphs runs as under:

�A fortiori, we do not see any impediment to the Constitution of the Committees as a stopgap or ad hoc arrangement made in exercise of the power conferred on this Court by Article 142 of the Constitution until a suitable legislation or regulation framed by the State steps in. Such Committees cannot be equated with Unni Krishnan Committees which were supposed to be permanent in nature. (emphasis supplied)

In the State of Uttar Pradesh, by U.P. Act No.24 of 2006 the State Government has framed. The Uttar Pradesh Private Professional Educational Institution (Regulation of Admission and Fixation of Fee) Act, 2006 on 10th July, 2006. Section 2 deals with the applicability of the Act and says that this Act shall be applicable to the private aided or unaided professional education institutions, excluding minority institutions. Section 3 is the definitions clause and Section 3(g) and 3(h) defines minority and minority institution as under:

�(g) �minority� means a minority defined under Clause (f) of Section 2 of the National Commission for Minority Educational Institutions Act, 2004 (Act No.2 of 2005).

(h) �minority institution� means an institution, established and administered by a minority and notified as such by the State Government.

Section 4, Chapter II deals with the composition of the Committee, disqualifications and its functions. Relevant provisions runs as under:

(1) There shall be a Committee for admission and for regulation to be constituted in such manner as may be prescribed. The Committee shall be presided over by a person who is or who has been a Senior Administrative Officer of the State or Vice Chancellor of a Central or a State University or a deemed to be University; who shall be called the Chairman of the Committee and shall included two other Members having experience in matters of finance of administration.

(2) The State Government shall appoint the Chairman and the Members of the Committee mentioned in subsection (1).

(3) The terms of the Chairman and every Member of the Committee shall be three years from the date of its notification; and State Government shall fill such vacancy for the remander of the term.�

Section 12 deals with the overriding effect and says that the provisions of this Act shall have effect not withstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.

Elaborating his arguments, learned Counsel for the petitioners has submitted that the Christian community has been declared as a minority community not only by the Government of India but by the State Government also vide notification dated 7th October, 1994. Further the Institution has been declared as a minority Institution by the State Government which is evident from the Government Order dated 18th January, 1996. As regard to the contention advanced by the learned Standing Counsel that the petitioner College has not applied after coming into force of the Uttar Pradesh Private Professional Educational Institution (Regulation of Admission and Fixation of Fee) Act, 1006, the learned Counsel has relied upon N. Ammad v. Manager, Emjay High School and Others, (1998) 6 SCC 674 and (2007) 1 SCC 386, Secretary, Malankara Syrian Catholic College v. T. Jose and Others and contended that a minority institution established by a minority Community would continue to be so whether Government declared it as such or not. Further the extension of aid by the State does not alter the nature and character of the minority educational institution. Conditions can be imposed by the State to ensure proper utilization of the aid, without however diluting or abridging the right under Article 30(1) of the Constitution. However, learned Counsel stated that as a precautionary measure the petitioners have submitted an application to the Principal Secretary, Higher Education for issuing notification as well as for revalidating the declaration made on 18.1.1996 declaring the institution as minority institution.

In my considered opinion, from the cases referred to above, it is amply clear that the life of the Committees which were constituted by the judgment in Islamic Academy case was till the suitable legislation or regulation framed by the respective State is enacted. In the State of Uttar Pradesh, by U.P. Act No.24 of 2006 the State Government has framed The Uttar Pradesh Private Professional Educational Institution (Regulation of Admission and Fixation of Fee) Act, 2006 on 10th July, 2006. The Bill received the assent of the Governor on September 7, 2006 and was published in the U.P. Gazettee, Extra, Part 1 Section (ka) dated 8th September, 2006. So the existence of the both the Committee constituted by the judgment in Islamic Academy case would automatically come to an end, the movement (sicmoment) the aforesaid Act, 2006 came into force i.e. on 10th July, 2006. Even assuming that the Committee was in existence, it was beyond the jurisdiction of the Fairness Committee to hold that the petitionerinstitution is not a minority Institution. The Committees so constituted by the State Government pursuant to the direction of the Hon''ble Supreme Court in Islamic Academy''s case are only to regulate the admission in professional courses including B.Ed and the other authorized to fix the fees of the institution to be charged from the students. These Committees are not empowered to determine as regard to the status of any Institution. Thus, the Committee has traveled beyond the limit for which it is not empowered.

Petitioners have set up a definite case that the petitionerInstitution is a Cristian minority institution which is being run by the Isabella Thoburn College Society, Lucknow. The said Society was constituted for the purpose of running a minority educational institution for imparting sound learning and setting up character and in calculation (sicinculcation) of spiritual truth and knowledge of God as revealed in Jesus Christ for the said purpose. By the notification dated 23.10.1993 issued by the Government of India recognizing Muslims, Christians, Sikhs, Buddhists, Jain and Parsees as minorities. Above minorities were divided in three groups i.e. A, B and C as mentioned in the schedule prepared by a Committee on Minority Rights.

GroupA consists of population less than � percent in the Indian Dominion omitting States.

AngloIndians

Parsees

Plain''s tribesmen in Assam (Other than Tea Garden''s tribesmen)

GroupB population not more than 1 � percent.

Muslims

It is relevant to point here that the Government of India in the Ministry of Minority Affairs while reiterating the notification dated 23.10.1993 communicated the Secretary to the U.P. Commisison for Minorities by the letter dated 14th March, 2007 that Government of India have notified five religious communities viz. Muslims, Christians, Sikhs, Buddhists and Zoroastrians (Parsees) as minority communities at national level. Not only this, the State of U.P. by the notification dated 7th October, 1994 while exercising powers under Section 2(d) of the U.P. Minority Commisison Act, 1994 has notified the following communities as minority communities:

Muslim

Christian

Sikh

Buddhists

Parsees

Learned Counsel for the petitioner has also brought on record the Government Order dated 18th January, 1996 by which Isabella Thoburn College has been declared as minority Institution.

In N. Ammad (supra) which has relied upon by the learned Counsel for the petitioner, the Hon''ble Supreme Court held as under:

�13. When the Government declared the School as a minority school it has recognized a factual position that the School was established and is being administered by a minority community. The declaration is only an open acceptance of a legal character which should necessarily have existed antecedent to such declaration. Therefore, we are unable to agree with the contention that the School can claim protection only after the Government declared it as a minority school on 2.8.1994.�

In Malankar Syrian Catholic College (supra) the questions cropped up before the Hon''ble Supreme Court were as under:

(I) to what extent, the State can regulate the right of the minorities to administer their educational institutions, when such institutions received aid from the State?

(II) Whether the right to choose a Principal is part of the right of minorities under Article 30(1) to establish and administer educational institutions of their choice. If so, would Section 57 (3) of the Act violate Article 30(1) of the Constitution of India?

The Hon''ble Apex Court held that if any regulations interfere with the overall administrative control by the management over the staff, or abridges/dilutes, in any other manner, the right to establish and administer educational institutions, such regulations, to that extent, will be inapplicable to minority institutions. The Hon''ble Apex Court also summarized the general principles relating to establishment and administration of educational institution by minorities

(i) The right of minorities to establish and administer educational institutions of their choice comprises the following rights;

(a) to choose its governing body in whom, the founders of the institution have faith and confidence to conduct and manage the affairs of the institution;

(b) to appoint teaching staff (Teachers/Lecturers and Headmasters/ Principals) as also nonteaching staff, and to take action if there is dereliction of duty on the part of any of its employees;

(c) to admit eligible students of their choice and to set up a reasonable fee structure;

(d) to use its properties and assets for the benefit of the institution.

(ii) The right conferred on minorities under Article 30 is only to ensure equality with the majority and not intended to place the minorities in a more advantageous position vis�vis the majority. There is no reverse discrimination in favour of minorities. The general laws of the land relating to national interest, national security, social welfare, public order, morality, health, sanitation, taxation etc. applicable to all, will equally apply to minority institutions also.

(iii) The right to establish and administer educational institutions is not absolute. Nor does it include the right to maladminister. There can be regulatory measures for ensuring educational character and standards and maintaining; academic excellence. There can be checks on administration as are necessary to ensure that the administration is efficient and sound, so as to serve the academic needs of the institution. Regulations made by the State concerning; generally the welfare of students and teachers, regulations laying down eligibility criteria and qualifications for appointment, as also conditions of service of employees (both teaching and nonteaching), regulations to prevent exploitation or oppression of employees, and regulations prescribing syllabus and curriculum of study fall under this category. Such regulations do not in any manner interfere with the right under Article 30(1).

(iv) Subject to the eligibility conditions/qualifications prescribed by the State being met, the unaided minority educational institutions will have the freedom to appoint teachers/lecturers by adopting any rational procedure of selection.

(v) Extension of aid by the State does not alter the nature and character of the minority educational institution. Conditions can be imposed by the State to ensure proper utilization of the aid. Without however diluting or abridging the right under Article 30(1).

Thus from the above facts it is apparently clear that apart from other communities, the Christian Community has been declared as a minority community and the Isabella Thoburn College is a minority Institution. It is also established from the recent decision in Malankara Syrian Catholic College (supra) that minority institutions are free to establish and administer educational institutions of their choice and admit eligible students of their choice and to set up a reasonable fee structure etcetra. Further, the institution is free to appointing teaching staff including nonteaching staff and to take action if there is dereliction of duty on part of any of its employees.

Before parting, I would like to add that the Uttar Pradesh Private Professional Educational Institution (Regulation of Admission and Fixation of Fee) Act, 2006 is applicable to the private aided or unaided professional educational institutions and is not applicable on minority institutions which is evident from Section 2 of the Act itself. Further, after coming into force of the Uttar Pradesh Private Professional Educational Institution (Regulation of Admission and Fixation of Fee) Act, 1006 a new Committee, composition of which has been prescribed in Section 4 of the Act, has come into existence and only the ministerial act is left. It is expected that the State Government will take necessary steps for appointment of the Chairman and its members mentioned in subsection (1) of the Act, in order to achieve the object the said Act.

For the reasons discussed above, the writ petition is allowed. The order dated 22.5.2007 contained in Annexure38 to the writ petition, passed by the opposite party No.2 is quashed. The State Government shall abide the law laid down by the Hon''ble Supreme Court in the cases, referred to above.

Costs easy.

(Petition allowed)