St. Columba's School v. Lt. Governor of Delhi

1. Present batch of petitions has been filed challenging the order dated 18th December, 2013 as well as Notification dated 30th December, 2013 issued by the Lieutenant Governor of Delhi to the extent it directs private unaided minority schools to admit children belonging to EWS category to the extent of 20% at entry level and provide free ship to them till completion of their school education.

2. According to the Notification, the aforesaid directions have been issued in pursuance to this Court’s Division Bench orders dated 24th September, 2012 and 4th December, 2012 in W.P.(C) 3715/2011 and W.P.(C) 6439/2011.

3. On the first date of hearing of the present batch of petitions, learned counsel for respondent-Government of NCT of Delhi had stated that as the land to petitioners-schools had been given on concessional rates because of sponsorship of the Directorate of Education, petitioners-schools were obliged to admit students belonging to EWS category.

4. Though no document has been placed on record to show that the petitioners-schools had undertaken to provide free ship, yet this Court is of the view that even if the said fact is assumed to be true, the present petitions would have to succeed as the Constitution Bench of the Supreme Court recently on 06th May, 2014 in Pramati Educational & Cultural Trust & Ors. vs. Union of India & Ors., W.P.(C) 416/2012 has held as under:- “25. We may now deal with the contention of Mr. Divan that clause (5) of Article 15 of the Constitution is violative of Article 14 of the Constitution as it excludes from its purview the minority institutions referred to in clause (1) of Article 30 of the Constitution and the contention of Mr. Nariman that clause (5) of Article 15 excludes both unaided minority institutions and aided minority institutions alike and is thus violative of Article 14 of the Constitution. Articles 29(2) 30(1) and 30(2) of the Constitution, which are relevant, for deciding these contentions, are quoted hereinbelow:

On the question whether the right of minority institutions under Article 30(1) of the Constitution would be affected by admission of students who do not belong to the minority community which has established the institutions, Kirpal C.J. writing the majority judgment in T.M.A. Pai Foundation (supra) considered the previous judgments of this Court and then held in paragraph 149 at page 582 and 583 of the SCC:

26. Clause (5) of Article 15 of the Constitution enables the State to make a special provision, by law, for the advancement of socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes. Such admissions of socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes who may belong to communities other than the minority community which has established the institution, may affect the right of the minority educational institutions referred to in clause (1) of Article 30 of the Constitution. In other words, the minority character of the minority educational institutions referred to in clause (1) of Article 30 of the Constitution, whether aided or unaided, may be affected by admissions of socially and educationally backward classes of citizens or the Scheduled Castes and the Scheduled Tribes and it is for this reason that minority institutions, aided or unaided, are kept outside the enabling power of the State under clause (5) of Article 15 with a view to protect the minority institutions from a law made by the majority. As has been held by the Constitution Bench of this Court in Ashoka Kumar Thakur v. Union of India (supra), the minority educational institutions, by themselves, are a separate class and their rights are protected under Article 30 of the Constitution, and, therefore, the exclusion of minority educational institutions from Article 15(5) is not violative of Article 14 of the Constitution. xxxx xxxx xxxx xxxx

45. Under Article 30(1) of the Constitution, all minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice. Religious and linguistic minorities, therefore, have a special constitutional right to establish and administer educational schools of their choice and this Court has repeatedly held that the State has no power to interfere with the administration of minority institutions and can make only regulatory measures and has no power to force admission of students from amongst non-minority communities, particularly in minority schools, so as to affect the minority character of the institutions. Moreover, in Kesavananda Bharati Sripadagalvaru v. State of Kerala & Anr. (supra) Sikri, CJ., has even gone to the extent of saying that Parliament cannot in exercise of its amending power abrogate the rights of minorities. To quote the observations of Sikri, CJ. In Kesavananda Bharati Sripadagalvaru v. State of Kerala & Anr. (supra):

Thus, the power under Article 21A of the Constitution vesting in the State cannot extend to making any law which will abrogate the right of the minorities to establish and administer schools of their choice.

46. When we look at the 2009 Act, we find that Section 12(1)(b) read with Section 2(n) (iii) provides that an aided school receiving aid and grants, whole or part, of its expenses from the appropriate Government or the local authority has to provide free and compulsory education to such proportion of children admitted therein as its annual recurring aid or grants so received bears to its annual recurring expenses, subject to a minimum of twenty-five per cent. Thus, a minority aided school is put under a legal obligation to provide free and compulsory elementary education to children who need not be children of members of the minority community which has established the school. We also find that under Section 12(1)(c) read with Section 2(n)(iv), an unaided school has to admit into twenty-five per cent of the strength of class I children belonging to weaker sections and disadvantaged groups in the neighbourhood. Hence, unaided minority schools will have a legal obligation to admit children belonging to weaker sections and disadvantaged groups in the neighbourhood who need not be children of the members of the minority community which has established the school. While discussing the validity of clause (5) of Article 15 of the Constitution, we have held that members of communities other than the minority community which has established the school cannot be forced upon a minority institution because that may destroy the minority character of the school. In our view, if the 2009 Act is made applicable to minority schools, aided or unaided, the right of the minorities under Article 30(1) of the Constitution will be abrogated. Therefore, the 2009 Act insofar it is made applicable to minority schools referred in clause (1) of Article 30 of the Constitution is ultra vires the Constitution. We are thus of the view that the majority judgment of this Court in Society for Unaided Private Schools of Rajasthan v. Union of India & Anr. (supra) insofar as it holds that the 2009 Act is applicable to aided minority schools is not correct.” (emphasis supplied)

5. This Court is of the view that as the Constitution Bench has held that even after amending the Constitution, the State cannot abrogate the rights of the minorities to establish and administer schools of their choice, then by a covenant in a lease deed, Government certainly cannot appropriate the right to nominate non-minority EWS students to a minority school.

6. In the opinion of this Court, the Constitutional mandate will prevail dehors any alleged provision in the lease deed.