O.P. Garg, J.
1. Through this writ petition, under Article 226 of the Constitution of India, the order dated 26.6.1997, a copy of which is Annexure-8 to the writ petition, passed by the Government, in so far as it accords recognition as a minority institution to the Muslim Anglo Hindustani Inter College. Ghazipur, has been challenged primarily on the ground that the order aforesaid has been passed in complete disregard of the provisions of Article 30(1) of the Constitution of India and the various judicial pronouncements interpreting the said Article. The following facts are necessary to appreciate the real import of the controversy.
2. There is a registered society under the name of Muslim Anglo Vernacular Educational Association, Ghazipur. which according to the petitioners was constituted in 1939 and under the aegis of which Muslim Anglo Hindustani Inter College governed by the provisions of the U. P. Intermediate Education Act, 1921 (hereinafter referred to as 'the Act') and other allied Acts is being run. The petitioner Nos. 2, 3 and 4 are permanent lecturers in the said college in different subjects while the petitioner Nos. 5 to 10 are permanent assistant teachers in the L.T. grade. The petitioner No. 1 is the association of the Madhyamik Shikshak which has come into existence for the welfare of the
teachers of the private recognised educational institutions in the State. The case of the petitioners, in short, is that the college, in question, is engaged in imparting normal secular education to the students of all castes, creed and communities and a very large number of members of the staff are also persons belonging to general category. The composition of the registered society, according to the petitioners, indicates that persons belonging to different caste and religion are its members and the membership is not limited to Muslim minority Community only. It is alleged that the institution, in question. has neither been established by the Muslim minority community nor it is administered by the said community and, therefore. the institution is not entitled to any protection under Article 30(1) of the Constitution. The management of the respondent institution, it is alleged, earlier moved an application for conferring minority status on the institution but the said prayer was rejected by the State Government in the year, 1989 and since subsequent thereto, no fresh material has come into existence, the State Government was not justified in reviewing the matter.
3. According to the petitioners, an advertisement had been published in the newspaper 'Purvanchal Times' dated 6.9.1997. Annexure-10 to the writ petition, whereby certain posts in class IV cadre are sought to be filled by treating the institution as an aided minority institution. It is prayed that the Government Order dated 26.6.1997, Annexure-8 to the writ petition be quashed and the respondent Nos. 7 and 8 be directed not to act upon advertisement dated 6.9.1997, Annexure-10 to the writ petition.
4. On behalf of the respondent Nos. 7 and 8, i.e., Committee of Management of Muslim Anglo Hindustani Inter College, as well as the Principal of the College, a joint counter-affidavit has been filed. It narrates in historical retrospect the facts which brought the institution into existence. It is stated that the
institution. in question, was established way back in the year 1932 as a Muslim Minority community School, named as "Chashme Rahmat English Middle School", all the nine founder members belonged to the Muslim Community ; that the Memorandum of the aforesaid body provides the objects of the association, inter alia, to start and maintain schools and colleges for imparting religious education to Muslim students and to establish reading rooms, free night classes, libraries and other institutions for the culture of Muslims in particular, and public in general : that the Committee of Management entitled to manage the institution was to be constituted from amongst the members of the general body and the voting rights were restricted to Muslim members in respect of election of the office bearers ; the body which established the school in the year 1932 continued to function in the name of Muslim Anglo Vernacular Educational Association and it was in the year 1939 that it secured registration under the Societies Registration Act ; that the land on which the Institution was established was donated by the members belonging to the minority community of Muslims and that the Secretary and President of the Society of the school have always been the Muslims. In short the stand taken by the contesting respondent Nos. 7 and 8 is that the institution has been established by the Muslim minority community and is being continuously managed by the said community and the institution conforms to all the requirements of Government orders on the subject and the impugned order dated 26.6.1997 has been rightly passed after taking into consideration the available material, particularly the fact that the entire control and management of the institution was by and through the Muslim community members of the society. It is further asserted that the State Government has reconsidered the matter of declaring minority status of the institution in pursuance of the direction dated 24.1.1996 issued by this Court in Writ Petition No. 9020 of 1990.
5. A separate counter-affidavit has been filed by the Minority Welfare Officer who has stated the facts in support of the impugned order dated 26.6.1997. It has been staled that initially the founder members of the society were all Muslims, though at the time of registration, one non-Muslim member also joined in signing the Memorandum of Association, that during the course of past 60 years of the establishment of the Institution, only 7 members belonging to non-Muslim community had been made members, whereas the overwhelming majority of the membership was essentially of the minority Muslim community, which had established the institution and is administering the same. The institution, it is stated, is also imparting religious and linguistic teachings for the benefit of minority Muslim community, inasmuch as Urdu and Pharsi are being taught as special languages and moral education of Islamic pattern is also imparted to the students. It is reiterated that the Slate Government has considered each and every aspect of the matter and has arrived at a conclusion that the institution has been established and is being administered by a minority community for the benefit of the Muslim community.
6. On behalf of the petitioner, a rejoinder-affidavit has been filed maintaining that the Memorandum of Association, a copy of which is Annexure-C.A. 1 is not applicable to the respondent-institution and that the correct Memorandum of Association of Muslim Anglo Vernacular Educational Association, dated 5.5.1939 is that which has been annexed with the writ petition ; that the objects contained in the Memorandum of Association of the society are not limited to members of any particular minority community and they evenly apply to persons of all the communities, caste and creed. In fact, the membership thereof was, it is maintained, open to all adults who deposited the requisite membership fee for becoming member and the statement of objects of the Association also demonstrates that, inter alia, one of the objects of
the Association is to start, and maintain schools and colleges for persons of all creeds, races, to impart moral intellectual and physical training ; while the other objects include the object to start and maintain schools and colleges for imparting education in Arts, Science Industry and other subjects and to open and maintain hostel and other residential quarters for students studying in such institutions.
7. Heard Sri Ashok Khare. learned counsel for petitioners and Sri A. P. Sahi, appearing on behalf of the contesting respondent Nos. 7 and 8 as well as learned standing counsel for the State of U. P. and the Minority Welfare Officer at considerable length.
8. Before embarking upon the basic question whether the State Government was justified in granting minority status to the respondent-institution, it would be proper to remove the cobwebs of the submission with respect to the maintainability of the present writ petition. It has been asserted on behalf of the contesting respondents that the petitioners have no locus standi to challenge the order of the State Government granting minority status to the institution as their rights are not affected, in any manner. This aspect of the matter came to be considered before a Division Bench of this Court in the case of Shobh Nath Singh and others v. Director of Education, U. P. and others, 1991 (2) UPLBEC 1174, by which two connected Writ Petition Nos. 53 of 1977 and 18398 of 1988 were decided. One of the petitions was filed by the parents of students, students and ex-students questioning the validity of an order passed by Director of Education, U. P., declaring Jai Narain Inter College, Varanasi, to be a minority institution within the meaning of Article 30 of the Constitution of India. The other Writ Petition No. 18398 of 1988 was filed by a teacher working in the said college, who was appointed as ad hoc Principal of the college, questioning the validity of the advertisement published by the Authorised
Controller of the College. It was observed that the two writ petitions raised questions of serious import and it cannot be said that the petitioners in Writ Petition No. 53 of 1977 have no locus standi to question the order of the Director of Education declaring the institution to be a minority educational institution. The reasoning adopted by the Division Bench is of far reaching consequence and may be extracted below for clarity and better understanding of the issue involved : "......A minority institution
enjoys several benefits and is exempt from the operation of several regulatory provisions contained in the U. P. Intermediate Education Act. Students and their parents are vitally interested in the character of the institution, where the students are studying. The very fact that the institution claims a right to say that it will appoint only a Christian as the Head of the Institution shows that the character of the institution is not irrelevant. Section 16-FF shows that in the matter of appointment of Head of Institution and in the matter of appointment of teachers, the constitution of the Selection Committee is entirely different in the case of a minority educational institution. It is wholly composed of the members nominated by the Management whereas in the case of non-minority educational institutions, a majority of the members arc nominated by the Education Department. The manner of appointment of teaches and the manner in which they are selected for appointment reflects upon the quality and content of the education imparted in the institution. So far as the petitioner in the other writ petition is concerned, there can, of course, be no question about his locus standi to maintain the writ petition. It must be remembered that the institution in question is in receipt of substantial grant-in-aid besides obtaining recognition from the Board."
A firm finding was recorded that the students, ex-students or parents of
students as well as teachers have locus standi to challenge the order of the Director of Education passed under Section 16FF of the Act declaring an institution as minority institution.
9. It would not be out of place to mention that a Writ Petition No, 7827 of 1995 was filed by one of the life members of the registered society and an assistant teacher of the concerned college to challenge the order passed by the State Government granting minority status to the institution. Learned single Judge summarily dismissed the petition as not maintainable at the instance of the two petitioners, on 18.11.1996. The petitioners of that writ petition filed Special Appeal No. 855 of 1996. which was allowed by a Division Bench bf this Court on 26.2.1997 by making the following observations ; ".....It cannot be said that a
teacher of the institution has no locus standi to question the order declaring the institution as minority institution. The apprehension that the change of status of the institution to a minority institution is likely to affect his service conditions cannot be said to be without any basis. It cannot also be said that a member of the society is not entitled to challenge the order which changes the status of the society. In our considered view, the writ petition should have been considered on merit."
In the light of the above authoritative pronouncement of this Court, one cannot escape from the finding that the present writ petition at the instance of the teachers of the institution and the Sangh which has been brought into existence for the welfare of its member, is maintainable and, therefore, this point needs no further dilation.
10. Now I come to the other point which has been raised by the petitioners to challenge the order of the State Government granting minority status to the respondent-institution on the premise that the State Government having once
rejected the application of the respondent No. 7 to declare the college as a minority institution, could not have reconsidered the matter.
11. The learned counsel for the petitioners was very much critical of the orders passed by the State Government conferring minority status on the institution in question in opposition to the earlier order dated 15.7.1989, a copy of which is Annexure-3 to the writ petition. It is a letter written by the Joint Secretary of the State Government to the Director of Education with regard to a number of institutions, with respect to which recommendation for declaring minority institutions was made. The State Government did not find it proper to declare Muslim Anglo Hindustan! Inter College, Ghazipur, as minority institution on the ground that at least two of the founder members were non-Muslims and that the membership to the general body was open to all and sundry. Sri Ashok Khare pointed out that in view of the firm decision, which had already been taken by the State Government in the year 1989, there was no justification to review the said order, particularly. when no subsequent change has come into being. It was also urged that the State Government had no power to review its earlier order. In support of his contention, Sri Ashok Khare placed reliance on the decision dated 22.8.1997 of this Court in Dr. Ram Naresh Singh v. State of U. P. and others. Writ Petition No. 37414 of 1994.
12. I have given thoughtful consideration to the matter and find it difficult to agree with the learned counsel for one simple reason that the State Government was obliged under the orders of this Court to give a fresh look to the matter. The order dated 15.7.1989 refusing to confer minority status on the institution came to be challenged by the Committee of Management respondent No. 7 before this Court by means of a Writ Petition No. 9020 of 1990. This writ petition was decided on 24.1.1996. A copy of the judgment of this Court is Annexure-C.A. 1 to
the counter-affidavit of the Minority Welfare Officer. From the bare reading of the judgment aforesaid, it would be apparent that during the pendency of the writ petition, three Government Orders dated 28.4.1994, 6.10.1994 and 22.5.1995 came into being. The State Government had laid down different criterion for determination of the matter. Pursuant to the said Government Orders, the Minority Committee had again applied for granting minority status. The concerned authorities had forwarded the matter of the institution for consideration of the State Government. In the wake of these subsequent developments, this Court observed that "no useful purpose would be served by dealing with the earlier refusal(tm). The writ petition was finally disposed of by directing the State Government to reconsider the question of grant of minority status to the Institution in the light of the three Government Orders, without being prejudiced by the earlier order of refusal provided the Institution is eligible under law and fulfils necessary conditions laid down in the Government Orders or such Rules and Regulations or Order that might be operating in the field. A further direction was issued that the State Government shall take a decision within a period of four months from the date a certified copy of the order was produced before it. It was in the light of these directions that the State Government embarked upon to enquire into the matter and ultimately after taking into consideration the material produced before it. granted minority status to the respondent-institution. Of necessity, the State Government in pursuance of the orders of this Court was required to pass orders, one way or the other. It is not a case where State Government has reviewed its earlier order dated 15.7.1989.
13. As regards the decision in
Dr. Ram Naresh Singh (supra), it may be mentioned that the various observations made therein are not on universal application and have to be confined to the facts of that case alone. The plank on which the order of State Government in that case was
treated to have become final was that the order was never questioned or challenged in subsequent proceedings and, therefore, the same had attained finality. In the present case as said above, the things are entirely different. The order passed by the State Government in the year 1989 refusing to accord minority status to the institution, in question was. in fact, challenged In Writ Petition No. 9020 of 1990 and in the light of the subsequent events, particularly, the guidelines issued by the State Government, this Court has directed for reconsideration of the matter. Therefore, whatever has been pleaded, considered and determined in the decision of Dr. Rom Naresh Singh (supra), on the point, is not applicable to the facts of the present case and the reference to the observations made In the said case In otiose. The submission that the State Government after having earlier rejected the claim of the respondent Institution for the grant of minority status could not have reconsidered the matter, is nothing but a subterfuge.
14. Having cleared the decks from the controversy which did not touch upon the merits of the impugned order passed by the State Government, it is now the time to consider the question whether the State Government has granted minority status to the respondent-institution in accordance with the constitutional mandate contained in Article 30(1) of the Constitution of India and Section 16FF of the Act, and the guidelines issued to regulate the matter. The provisions of Section 16FF of the Act appear to have been made with a view to secure and extend the benefits envisaged under Articles 29 and 30 of the Constitution. It is stipulated that the provisions contained in the Act in regard to regulating the conditions regarding recruitment, appointment and other service conditions of teachers, including principals shall not be applicable to the educational institutions recognised under the Act so far as those institutions are concerned, which are established and run by the minorities. This section,
thus, provides a saving in the 'case of
a minority institution-certain
provisions of the Act are modified in
their application to minority
institutions. Whether an institution
can be characterised as a minority
Institution would depend on the
establishment of certain facts which
have to be tested by the touch stone
of the provisions of Articles 29 and 30 of the Constitution. It is. therefore, necessary to go into the details of the
provisions of these Articles.
15. The scope and extent of the Fundamental Right guaranteed under Article 30(1) of the Indian Constitution to religious and linguistic minority "to establish and administer educational institutions of their choice" generated a great controversy. Problems continued to arise in this area, probably because of the two extreme attitudes pulling in opposite directions. Sometimes authorities act as if the minorities have no special constitutional protected rights dragging the minority institutions to the Courts while at others certain minority institutions act under the mistaken notion or otherwise that they are totally immune from any kind of regulation and fetters. A survey of all the important decisions of the Supreme Court on various facets of minority rights would indicate that the Supreme Court has, while protecting the minority institutions and giving them the freedom to establish the institution of "their choice" has not spared such institutions from subjecting to the Regulations made for maintaining uniform educational standards and achieving excellence in this sphere. While the broad test is well settled, its application in the concrete case has always presented problems.
16. There now appears to be a general and broad based consensus about the content and dimensions of the Fundamental Right guaranteed under Article 30(1) of the Constitution. Without burdening this judgment unnecessarily with series of authorities, an attempt would be to refer only to the barest minimum decisions to highlight the scope and
extent-of the Fundamental Right available to the minority community under Article 30(1) of the Constitution. In oft quoted case of S. Azeez Basha and another v. Union of India and others. AIR 1968 SC 662, a Constitution Bench of the Apex Court observed fn paragraph 19 of the report, as follows : "(19) Under Article 30(1) "all minorities whether based on religion or language shall have the right to establish and administer educational institutions of their choice". We shall proceed on the assumption in the present petition that Muslims are a minority based on religion. What then is the scope of Article 30(1) and what exactly is the right conferred therein on the religious minorities? It is to our mine! quite clear that Article 30(1) postulates that the religious community will have, the right to establish and administer educational institutions of their choice meaning thereby that where a religious minority establishes an educational institution, it will have the right to administer that. An argument has been raised to the effect that even though the religious minority may not have established the educational institution, it will have the right to administer it, if by some process it had been administering the same before the constitution came into force. We are not prepared to accept this argument. The Article in our opinion clearly shows that the minority will have the right to administer educational institutions of their choice provided they have established them, but not otherwise. The Article cannot be read to mean that even if the educational institution has been established by somebody else, any religious minority would have the right to administer it because, for some reason or other, it might have been administering it before the Constitution came into force. The words "establish and administer" in the Article must be read conjunctively and so read it gives the right to the minority to administer an educational
institution provided it has. been established by it....."
The above view came to be reiterated in a subsequent decision of the Apex Court in the case of Frank Antnony P.S.E. Association v. Union of India, AIR 1987 SC 311. It was observed that :
"........The right guaranteed to
religious and linguistic minorities by Article 30(1) is two-fold, to establish and to administer educational institutions of their choice. The key to the Article lies in the words "of their own choice". These words indicate that the extent of the right is to be determined not with reference to any concept of State necessity and general societal interest but with reference to the educational institutions themselves that is. with reference to the goal of making the institutions "effective vehicles of education for the minority community or other persons who resort to them"......"
The above aspect of the matter came to be considered by a Division Bench of this Court in the case of Badrul Hasan Quadri v. State of V. P. and others, 1992 (1) UPLBEC 362 and U. P. Madhyamik Siksha Sangh and another v. State of U. P., 1995 AWC 191. The twin requirements must exist before an institution could be granted recognition as a minority institution under Article 30(1) of the Constitution. It was further laid down that both the conditions must be read conjunctively with the result that a minority can have the right to administer an educational Institution as a minority Institution only if it was established by them and not otherwise.
17. The real reason embodied in Article 30(1) of the Constitution is not too far to seek. In St. Xaviers College v. State of Gujarat, AIR 1974 SC 1389, the Supreme Court pointed out that the signature tune of Article 30(1) is the conscience of the nation that the minorities, religious as well as linguistic, are not prohibited from establishing and administering educational institutions, of their
choice for the purpose of giving their children the best general education to make them complete men and women of the country. The minorities are given this protection under Article 30 in order to preserve and strengthen the integrity and unity of the country. The sphere of general secular education is intended to develop the commonness of boys and girls of our country. This is in the true spirit of liberty, equality and fraternity through the medium of education. If religious or linguistic minorities are not given protection under Article 30 to establish and administer educational institutions of their choice, they will feel isolated and separate. General secular education will open doors of perception and act as the natural light of mind for our countrymen to live in the whole. Similarly, in Lilly Kurian v. Sr. Lewing, AIR 1979 SC 52, it was observed that protection of the minorities is an article of faith in the Constitution of India. The right to the administration of the institution of minority's choice, enshrined in Article 30(1) of the constitution means "management of the affairs of the institution". Unlike Article 19(1), the fundamental freedom under Article 30(1) is absolute in terms, it is not made subject to any reasonable restrictions of the nature the fundamental freedoms enunciated in Article 19 may be subjected to. Alt minorities, linguistic or religious have by Article 30(1). an absolute right to establish and administer educational institutions of their choice, and any law or executive direction which seeks to infringe the subsistence of that right under Article 30(1) would, to the extent, be void.
18. The words "establish and administer" used in Article 30(1) are, as said above, to be read conjunctively. Right claimed by a minority community to administer the educational institution depends upon the proof of establishment of the Institution is thus a condition precedent for claiming the right to administer the institution. Prior to the commencement of the Constitution of India, there was no settled concept of Indian citizenship.
Minority, under Article 30, must necessarily mean those who form a distinct and identifiable groups of citizens of India. Whether It is 'old stuff or 'new product', the object of the institution should be genuine and not devices or dubious. There should be nexus between the means employed and the ends desired. There must exist some positive index to enable the educational institution to be identified with religious or linguistic minorities. Article 30(1) is a protective measure only for the benefit of religious and linguistic minorities and it is essential, to make it absolutely clear that no ill-fit or camouflaged institution should get away with the constitution-protection. See St. Stephen's College v. University of Delhi. AIR 1992 SC 1630.
19. The yardstick for determining the status of minority institutions has not been uniformly applied. Aligarh Muslim University was held not to be a minority institution on the ground that It was brought into existence by a Parliamentary statute see Aziz Basha's case (supra). On the other hand, educational institutions set up by followers of Arya Samaj in Punjab were treated as such See : D. A. V. College. Jullundhur v. State of Punjab. The institution founded by Christian Missionary Society. London, was not dented the protection of Article 30(1) See : S. K. Patra v. State of Bihar, AIR 1970 SC 259. With regard to the questions concerning the status of minority institutions, the Supreme Court has been highly critical of the fraudulent minority status claimed by some groups to exploit the students, teachers and the staff See : A. P. Christian Medical Education Society v. Government of A. P. and another, (1986) 2 SCC 667. The object of the Article is not to allow bogies to be raised by pretenders. Sometimes, the persons who had formed the minority society merely seek to reap unfair advantage over other similar educational institutions by claiming fraudulently the status of a minority educational institution by claiming fraudulently the status of a minority educational institution it was clarified that the institution must be
educational Institution of minority in truth and reality and not mere masked phantorys. The question as to what constitutes a minority educational institution is of great significance because the character of a minority educational institution carries with if a good amount of privileges and protections which are not available to a non-minority educational institution. The Court has tried to restrict the misuse of the benefits granted to the minorities.
20. The educational institutions can be characterised as a minority institution only if it is not only administered by a minority community but is also established by it. For a proper determination of the character of the institution. It is necessary to examine the antecedent history of the institution right from its inception in the light of the principles of law enunciated by several decisions of the Apex Court and the High Courts. Before an institution can be granted the status of minority Institution, it has got to be established, as a matter of fact, that the institution has been established and has all through been administered by the minority community alone. Incidentally, in the Instant case, parties have brought on record quite a fair bit of material bearing on the point from which certain conclusions may easily be drawn.
21. The first question that falls for consideration is whether the institution was established as a minority institution. Obviously, for the decision of this question, we have to go back to the origin of the Institution and ascertain whether the Institution was established by the Muslim minority community for imparting education to the members of that community. The expression 'established' occurring in Article 30(1) implies and means 'to bring into existence'. The enquiry, therefore, is to be confined to the question as to who brought the institution in existence and with what alms and objects in view. Both the parties are unanimous, at least on the point that Muslim Anglo Vernacular Educational
Association. Ghazipur. was in existence in the year 1939 when it had undergone the process of registration Annexure-1 to the writ petition as well as Annexure C.A. 1 to the counter-affidavit filed by respondent Nos. 1 and 2 is a Memorandum of Association of the Society, which was registered on 5.5.1939. The founder members of the registered society were seven in number out of whom six belonged to Muslim community while only one person, namely, Dr. Ram Daras Ray, who was a Medical Practitioner, was a non-Muslim. It was. therefore, a society, which was formed and registered with the active participation of six Muslims and one Hindu. Sri Ashok Khare, learned counsel for the petitioners, appeared to be of the view that on account of joining of a Hindu in bringing into existence the society, the institution Muslim Anglo Hindustani Inter College, cannot be treated to have been established by a minority community. In substance, the submission on behalf of the petitioners bolls down to this that if some persons not belonging to the minority community have joined in bringing into existence the society or to establish an institution, it cannot be characterised as a minority Institution. In support of this contention, reliance was placed on the decision of the Division Bench of this Court in Badrul Hasan Quadri's case (supra). I have carefully scrutinised the facts of the aforesaid case and the observations made therein and find that the decision is clearly distinguishable and cannot be treated as a precedent for deciding the controversy in hand. In that case. the institution was established by prominent citizens which included not only Muslims but also several Hindus. The institution was established for the spread and promotion of education in general and not merely for the benefit of any particular community. Still further according to the aims and objects of the society, which brought into existence the institution, the basic object was to impart general and technical education to all and it was
provided that the institution shall be run on the lines prescribed by the Education Department. U. P. This fact was also noted in that case that the membership of the society was open to all and not confined to any particular community. It was not a closed house confined only to a particular section of the society viewed in the light of these facts, the Division Bench held that there is not the slightest doubt that the institution was not established as a minority institution by the members of any particular community for its own benefit or for promotion of any religious thoughts and ideals. The Institution, it was held, was established purely as an Anglo Vernacular School for the spread and promotion of general and technical education for the benefit of all and, it was in the light of this finding that it was concluded that first and one of the twin requirements of Article 30(1) is. therefore, absent.
22. A reference was also made to the objects of the Association contained in paragraph 2 of the Memorandum of Association. On the basis of various objects-mentioned therein, it was urged that the schools and colleges established or to be established by the registered society were open to persons of all creeds and races for moral, intellectual and physical training and that variety of subjects, such as Arts. Science. Industry and other subjects have been prescribed for imparting education and that hostels and residential quarters for the students reading in the Institution opened by the Association or elsewhere have to be maintained. On the strength of the omnibus objects incorporated in the Memorandum of Association it was urged that the society and the Institution established and run by it do not bear the complexion of minority institution qualifying under Article 30(1) of the Constitution and Section 16-FF of the Act. It was also pointed out that under the Rules and Regulations of the Association, any person can acquire the membership of the Association after paying the requisite amount and can also take part in the management of the affairs
of the society as well as the institution run by it. A reference was also made to the list of the members of the managing committee, a copy of which is Annexure-2 to the writ petillon. which contains the names of 30 members out of which 7 are non-Muslims. Sri Ashok Khare vehemently argued that the objects contained in the Memorandum of Association. Rules and Regulations of the society and the Association of the non-Muslim persons with the society and its committee of management are such facts as would make it clear that the respondent-institution has neither been established by minority community nor it is being managed by it. For the reasons to be recorded presently, in the light of the preponderance and weight of the evidence and circumstances. I find it difficult to agree with the learned counsel for the petitioners.
23. The right conferred by
Article 30(1) of the Constitution is not an illusion and such a right cannot be allowed to whittle down. A generous, liberal and sympathetic approach should weigh with the Court in construing the provision of Article 30(1). The safeguarding of interest of minorities amongst affluent population is very important. Such a generous and sympathetic approach is reflected in the Constitution so as to preserve the right of the minorities insofar as their educational institutions are concerned. A few facts as have been unfolded in the counter-affidavit filed on behalf of the respondent Nos. 7 and 8 which have not been successfully challenged would reveal that the institution. namely, Muslim Anglo Hindustani College, Ghazipur finds its roots in an institution, which was established in the year 1932. The said institution was established by 9 founder members, who all belonged to the Muslim community. It was Muslim community which originated the Institution. Even in the year 1939 out of 7 founder members of the society, 6 were Muslims. In clause (b) of paragraph 2 of the Memorandum of Association, one of the objects is to start and maintain schools and colleges for imparting religious
education to Muslim students. In clause (f) it is further provided that the object of the Association is to found and establish reading rooms, free night classes, libraries and other institutions for the culture of Muslim in particular and public in general. In sub-clause (c), one of the objects of the Association is to start and maintain schools and colleges for promoting study of English, Urdu. Hindi. Persian. Arabic, Sanskrit and other literatures. The Rules and Regulations of the Association came to be amended according to which a scheme of administration for running the institution was prepared. The amended Rules and Regulations of 1964 are Annexure-C.A. 3. It is true that the membership of the Association is open to all persons regardless of their caste, creed and community and any person can acquire the membership of the Association by making a deposit of the prescribed amount under the various clauses of the Rules and Regulations. The Management of the Association is in the hands of the Managing Committee, which has to consist of the President, Vice-President, Manager, Treasurer, four ordinary members to be elected by the Association from amongst its members and three ex officio members, i.e., Principal and two teacher representative as provided in Section 16A (I) of the Act and the Regulations framed thereunder. In paragraph 4 of the Rules and Regulations, Annexure-C.A. 3 which deals with the Constitution of the Committee of Management, a proviso has been inserted which read as follows : "Provided that the above office-bearers shall be elected only from amongst Muslim voting members of the Association."
On the strength of the aforesaid proviso, it is rightly asserted by the contesting respondents that the office bearers of the Committee of Management shall be the persons belonging only to the Muslim community. To put it conversely, a non-Muslim cannot be an office bearer of the Committee of
Management. It was for this reason that the office bearers of the. committee have always been the persons who belonged to Muslim community.
24. From the above facts, it is
clear that the institution was
established before the
commencement of the Constitution of
India by the members belonging to
Muslim community except the one
who was a non-Muslim. It is also true
that the secular character of
education has been, by and large,
maintained though the establishment
of the institution was primarily for
the benefit of the Muslim community
as one of the objects was to impart
religious education to the Muslim and
to promote the study of Urdu, Persian
and Arabic literatures along with
English, Hindi and Sanskrit. Muslim
culture was sought to be preserved
and conserved by establishing
reading rooms, free night classes,
libraries and other institutions.
25. The above aspect of the matter came to be considered in Re-Kerala Education Bill, 1957, AIR 1958 SC 956. It was observed that the real Import of Articles 29(2) and 30(1) is that they clearly contemplate a minority institution with a sprinkling of outsiders admitted into it. By admitting a non-member into it, the minority institution does not shed its character and cease to be a minority institution. The Apex Court took the view that. Indeed, the object of conservation of distinct language, script and culture of a minority may be better served by propagating the same amongst non-members of the particular minority community. In the case of State of Kerala v. Very Rev. Mother Provincial. AIR 1970 SC 2079. the Apex Court had taken the view that it is irrelevant that in addition to the minority community others from other minority communities or even from the majority community can lake advantage of these institutions. This observation was made with reference to the initial right of the minority community to establish institutions, it was further observed that the management must be free of control so that founders or their nominees
can mould the institution as they think fit and in accordance with their ideals of how the interest of community in general and the institution in particular will be best served.
26. The members of the minority community, though have been given 'a right to establish the institution of their own choice and to conserve their distinct language, script or culture, they continue to be the part of the society in general. Their rights cannot be worked out in isolation. Of necessity, they have to interact and complete with the members of other minority or majority communities. It was in this context that the Hon'ble Supreme Court in the case of St. Xaviers's College (supra) observed that the object of Article 30 is to enable children of minorities to go out in the world' fully equipped. All persons whether in the majority or in the minority have the right under Article 25 freely to profess, practise and propagate religion. Any section of the citizen which includes the majority, as well as, minority shall have under Article 29, the right to conserve their distinct language, script or culture. That is why the minorities are given a specific right in respect of the educational institutions under Article 30. Article 30(1) gives the right to linguistic minorities as well where no question of religion arises. it is, therefore, not at all possible to exclude secular education from Article 30. In the case of Rev. Father Proost v. State of Bihar, AIR 1969 SC 465, a contention was advanced before the Apex Court that protection to minorities in Article 29(1) was only a right to conserve a distinct language, script or culture of it s own and, therefore, the educational institutions, which imparted general education did not qualify for protection under Article 30. The Supreme Court said that the width of Article 30 could not be cut down by introducing any consideration on which Article 29(1) is based. Article 29(1) is a general protection given to sections of citizens to conserve their language, script or culture while Article 30 is a special right to
minorities to establish educational institutions of their choice. The Apex Court said that the two Articles create two separate rights though it is possible that the rights might meet in a given case.
27. Establishment of the minority educational institutions solely for their own benefit is not permissible. Such an institution cannot draw a line to keep at bay the students of other minority and majority communities. There has to be a proper mix of students of different communities even in an institution which has been granted minority status. As a matter of fact, a complete answer to the various submissions made by the learned counsel for the petitioners in the present case is to be found in the decision of the Constitution Bench of the Supreme Court in the case of St. Stephen's College v. University of Delhi, AIR 1992 SC 1630. It was ruled that the choice of institution provided in Article 30(1) does not mean that the minorities could establish educational institution for the benefit of their own community people. Indeed, they cannot. It is legally impermissible to construe Article 30(1) as conferring the right on the minorities to establish educational Institution only for their own benefit. The minorities are not entitled to establish and administer educational institution for their exclusive benefit. The observations of the Constitution Bench contained in paragraph 82 are of great significance and may profitably be extracted as below : "Even in practice, such claims are likely to be met with considerable hostility. It may not be conducive to have relatively a homogeneous society. It may lead to religious bigotry which is the bane of mankind. In the nation building with secular character sectarian schools or colleges segregated faculties or Universities for imparting general secular education are undesirable and they may undermine secular democracy. They would be inconsistent with the central concept of secularism and equality embedded in the
constitution. Every educational institution irrespective of community to which it belongs is a 'melting pot' in our national life. The students and teaches are the critical ingredients. It is there they develop respect for, and tolerance of. the cultures and beliefs of others. It is essential, therefore. that should be proper mix of students of different communities in all educational institutions."
28. The submission on behalf of the petitioners that a person of any community can acquire membership of the Association and become a member of the Committee of Management, and, therefore, the institution cannot be characterised as a minority institution, is not well merited. If the Rules. Regulations and the Bye Laws ensure that only those persons who belong to the minority community, which has established the institution have a dominance and a controlling voice in the administration of the institution, in that event. Induction of the persons belonging to the other communities would be of no consequence. If the minority community which has established the institution and is administering the same, continues to exert its effective control over the institution by keeping effective majority of persons belonging to the minority community either in the governing body or managing body. provision for inclusion of persons belonging to other communities cannot be said to be inconsistent with the minority character of the institution. Even according to the list of members of the Committee of Management furnished by the petitioners, there are 23 members belonging to the Muslim community, out of the total strength of 30. Only seven members are non-Muslims. Not only this, the office bearers of the Committee of Management have, of necessity, on account of insertion of the proviso referred to above, to be persons belonging to the Muslim community. Undoubtedly, there is dominance of the Muslim community in the administration of the affairs of the institution. It has not only controlling voice but the last voice in
all the matters. The non-Muslims are in a hopeless minority and cannot change the destiny of the institution, which is in the hands of more than three fourth members and all the office bearers belonging to the Muslim community.
29. The State Government has prescribed certain guidelines to grant minority status to the certain categories of educational institutions. Initially guidelines contained in the Government Order dated 6.10.1994. came to be challenged before this Court in the case of U. P. Madhyamik Sikshak Sangh and another v. Stale of U. P. and others (supra). This Court observed that the twin requirements of establishment and administration of the educational institution by the minority must exist before any recognition under Article 30(1) of the Constitution can be granted to an institution. Pursuant to the decision of this Court in the case of U. P. Madhyamik Sikshak Sangh (supra), the State Government has issued fresh guidelines on 22.2.1995 in the light of which application for grant of minority status has to be considered. The proforma annexed to the guidelines cannot be said to be an idle formality or a meaningless requirement. The details which are to be furnished in the various columns of proforma are of Intrinsic value for the determination of the question whether or not minority status is to be granted to a particular institution. A copy of the proforma is annexed with C.A. 10 to the counter-affidavit of the respondent Nos. 7 and 8. The details given in this proforma clearly Indicate that the institution was established with a view to conserve the language and the culture of the Muslim community and that out of 26 members. 22 belonged to the Muslim community. It has also been mentioned that all the members of the Managing Committee are Muslims, Srt Ashok Khare. learned counsel for the petitioners placed reliance on a Division Bench decision of this Court in the case of Shree Gujarat Samaj (registered) Kanpur v. State of U. P. and others, AIR 1998 All 244, to support his contention that in these cases in which Rules and
Regulations provide that any person regardless of the community, caste, and creed may become member of the society or the Committee of Management and the membership is not restricted only to the minority community, such an institution cannot be held to be the minority institution. In the case aforesaid. Gujarati Samaj was a registered society. Rule 2 of the Rules and Regulations of the Gujarati Samaj. which provided for the composition of membership of the Gujarati Sama), reads thus : "Any individual, firm or company subscribing to the objects of the society shall be eligible for membership of the society on filing with the secretary an application in the form as per Appendix A annexed hereto."
On the strength of the aforesaid clause, the Division Bench held that a bare perusal of the rule quoted above, indicates that membership of Gujarati Samaj is not restricted to the Gujarati speaking people alone. It is open to any individual, firm or company who satisfies the requirements of Rule 2. In these circumstances, it is not possible to conclude that the institution was, in fact, established by the Gujarati speaking people alone. According to Sri Ashok Khare, learned counsel for the petitioners the membership of the Association was open to anybody and he can become member by depositing the requisite fee and since the membership is not restricted only to the persons belonging to the Muslim community, the institution cannot be held to be minority institution. There is no doubt about the fact that the membership is open to any community but the fact remains that the control over the society is that of the Muslim community, whose members are in a dominating position. The other clause of the Rules and Regulations, governing the Association also indicate that the institution was established by the minority community with a view to conserve it s culture. The above aspect of the matter came to be considered by a learned single Judge of this
Court in Bengali Educational Society and another v. State of U. P. and others. Civil Misc. Writ Petition Wo. 2265 of 1977, decided on 6.2.1997. a copy of which is Annexure-C.A. 17 to the counter-affidavit of respondent Nos. 7 and 8. In that case, it was observed :
"........A minority educational
institution may impart even secular education and the medium of institutions to be followed by such an institution may be of its choice. it is also open to a minority educational institution to induct competent and reputed individuals from other communities in its Managing Committee and the general bodies. but it must be emphasised that such an induction of persons who cannot be treated to be members of the linguistic or religious minority which has established and is administering the institution is permissible only so long as the constitution of the managing committee/governing body of the institution provides for an effective majority of the members of the minority community for the purposes of administration ensuring that the minority character of the institution is not affected. it is, therefore, necessary to find out whether the induction of an outsider could result in taking control of the institution out (of the hands) of the minority. It must be established that the bye-laws or the Rules ensure that only the persons belonging to the minority community, which has established the Institution, have a controlling voice in the administration of the institution.......... the provision for induction of persons belonging to other community cannot be said to be inconsistent with the minority character of the institution. Undoubtedly. Article 30(1) of the Constitution does not warrant confining of its protection to the educational institution established and run by a minority community whether religious or linguistic to the members of such community alone. The minority institution
cannot be taken to have shed its character and ceased to be the minority institution by simply admitting non-minority community person into it subject however, to the condition referred to here-in-above in regard to securing the administration of the institution by the majority of the minority community members either in the governing body or in the managing committee."
Gauged with the parameters given in the aforesaid decision. I find that in the present case, though the bye-laws and Regulations provide for the admission of the non-minority community persons as members, the minority character of the institution does not stand eclipsed as more than two thirds of the members belonging to the Muslim community hold the reins of the Associations and the institution. They are in a dominating position and in the effective control of the affairs of the minority Institution in spite of the fact that non-Muslims may be admitted and inducted as members. The observations made by the Division Bench in Sri Gujarati Samaj's case (supra), are not attracted to the facts of the present case. The decision in the said case is clearly distinguishable on facts of the present case.
30. The twin conditions, which are required to be established to confer minority status on an Institution have been established in the case of the respondent institution. The institution was. In fact and reality, established by the minority community and. as said above, it would be of no consequence that one of the founder members was a non-Muslim. It is also irrelevant that the institution has been established for the benefit of the members of all the communities and secular education is prescribed. As found above, the institution has been established primarily for the children
of the Minority community and to conserve the culture as well as language of the said community. Mixing of the students of the different communities is permissible. A minority community cannot claim that it shall establish the institution, admission to which is confined to the members of the minority community. No minority educational institution can be established for the benefit of a particular community alone. The Management and control of the institution is in the hands of the members of the Minority community. They are in a thumping majority and have a decisive role to play. Their . dominance in the affairs of the institution is unassailable. The majority of the minority community being in the effective control of the institution, is in a position to mould and shape the destiny of the educational institution. The Stale Government has scrutinised the matter in the light of the guidelines issued by it on 22.2.1995 pursuant to the decision of this Court in U. P. Madhyamik Sikshak Sangh's case (supra). There is no reason whatsoever, to come to a conclusion different from that arrived at by the State Government.
31. In the result, I come to an irresistible conclusion that on the basis of the material available on record, the respondent-institution was established by the minority community of Muslims and is being administered by it. The State Government has rightly granted minority status to the respondent-institution. The impugned order dated 26.6.1997. Annexure-8 to the writ petition passed by the State Government calls for no interference. Both on factual and legal matrix, the writ petition fails and is accordingly dismissed. The interim order passed by this Court on 29.9.1997 shall stand discharged. Parties are directed to bear their own costs.