Bara Intercollege v. Deputy Director, Minorities Welfare Department and Ors.

16. The Court allowed the said writ petition by an order dated 30.11.2016. In its order, the Court observed that the Commission had not noted the facts with regard to establishment of the petitioner institution and had not examined whether the institution had been set up by the religious minority. The earlier orders passed by the Allahabad High Court had also not been noticed by the Commission.

17. In view of the aforesaid observations, the order dated 08.12.2014 passed by the Commission was set aside. However, the Court reserved the liberty to the manager of the petitioner institution to make a fresh application before the Commission. It further directed that the Commission would examine the orders passed by the Allahabad High Court and it would be open for the Commission to take a fresh decision in accordance with law.

18. The petitioner filed an appeal against the aforesaid decision (Special Appeal No. 82 of 2017). Cross appeals were also filed against the said decision. The said appeals were disposed of by a common order dated 01.08.2017. The Division Bench of the Allahabad High Court upheld the conclusion that the petitioner was not established as a minority institution. The Court further held that the amendments to the Memorandum of Association and Byelaws would not dilute the findings of the Court that the petitioner institution had not been established as a minority institution. However, the Court set aside the observations whereby liberty was granted to the petitioner to file a fresh application before the Commission.

19. The petitioner filed a Special Leave Petition before the Supreme Court seeking leave to appeal against the decision of the Division Bench of the Allahabad High Court, being Special Leave to Appeal (C) Nos. 29994-29995/2017). The said SLP was disposed of by an order dated 13.11.2017, whereby the Supreme Court expressly observed that there was nothing wrong with the approach of the Division Bench of the Allahabad High Court. However, the Supreme Court restored the direction of learned Single Judge with respect to reserving liberty for filing a fresh application with the Commission.

20. In view of the above, on 04.12.2017, the petitioner filed a fresh application for Minority Status Certificate. The Commission has rejected the said application by the impugned order. Submissions

21. Mr Romy Chacko, learned counsel for the petitioner contended that the Commission had erred in rejecting the petitioner‟s application for the minority status on the ground that the National Association also included members who were not from the minority community. He referred to the decision in the case of St. Stephen’s College v. University of Delhi: 1992 (1) SCC 558 in support of his contention that it is not necessary that all members of the governing body of a minority society belong to the minority community. He drew the attention of this Court to paragraph no. 38 of the said decision, wherein the Supreme Court had observed that out of thirteen categories of members only three categories could be non-Christians and, therefore, the same made little difference in the Christians character of the Governing Body of the St. Stephan‟s College. He further submitted that the petitioner was a government aided institution and, therefore, in terms of Article 29(2) of the Constitution of India, was required to impart education to persons of all communities. He also submitted that the Commission had erred in overlooking that the petitioner institution had been established by a member of the Muslim Community (Mrs Nabihan Bibi). Discussion and Conclusion

22. At this stage, it will be relevant to refer to Section 2(g) of the National Commission for Minority Educational Institutions Act, 2004. The said clause is set out below:- “2(g) “Minority Educational Institution” means a college or an educational institution established and administered by a minority or minorities;”

23. Keeping in mind the aforesaid contention as well as Article 30(1) of the Constitution of India as interpreted in various decisions, the Commission had noted that the following aspects were required to be determined for concluding whether an educational institution could be granted minority status:

(i) Whether educational institution was established by a member/members of religious minority community;

(ii) Whether the educational institution was established for the benefit of minority community; and

(iii) Whether the educational institution was being administered by the minority community.

24. The Commission concluded that the petitioner institution was not established by Muslims for Muslims. The operative part of the impugned order reads as under:-

25. The contention that the Commission has erred in not appreciating that the petitioner institution was initially established by Mrs Nabihan Bibi, widow of Late Raja Khan is unpersuasive. The petitioner relies upon entry in land record which indicates that the Junior School was constructed on land of Mrs Nabihan Bibi. However, there is no material to indicate that the petitioner institution (or the Junior School) was established by her. On the other hand, it is not disputed that the petitioner institution is an undertaking of the society, National Association. Admittedly, this Society did not bear any religious character when established. There was no restriction in the Memorandum of Association with regard to the membership of the said society. Indisputably, members of all communities could be included as members of the Society. The aims and objects of the said society also were not focused towards any religious community. It is also relevant to note that apparently there was no dispute, in the initial round of litigation before the Allahabad High Court, that the institution in question was established by the National Association, and this fact was noted by the learned Single Judge in the Order dated 05.04.1999 passed in Writ Petition NO. 7827/1998 captioned Yogendra Nath Singh & Anr. v. State of U.P. & Ors. (supra) and the said decision has become final. Plainly, the petitioner cannot be permitted to now invite a fresh investigation.

26. Even if it is accepted that a junior high school was established on land donated by Mrs Nabihan Bibi, as noticed above, there is no material to establish that she had established the junior high school for the benefit of the minority community.

27. At this stage, it is also relevant to refer to the objects of the National Association as set out in its Memorandum of Association. The object clause in the Memorandum of Association is set out below:-

28. It is, at once, clear from the aforesaid that the petitioner institution was not established for the benefit of the minority community. Mr Chako had contended that the expression “cultural education” as used in subclause (b) of Article 2 of the Memorandum of Association referred to cultural education of the Muslim community. This contention is bereft of any merit. There is no reason to interpret the expression “cultural education” in the manner as contended. Given the various objects of the said society as well as its name, it would not be apposite to restrict the meaning of the expression “cultural education” to any particular religion. The expression „cultural education‟ must be understood in the context Indian Culture and universal cultural values.

29. The question whether the change in the name of the said society from National Association to Muslim Welfare Association and the subsequent changes in the Memorandum of Association have any relevance is of any relevance has already been answered against the petitioner by the Division bench of the Allahabad High Court in the order dated 01.08.2017 passed in Special Appeal No. 82/2017 and other cross appeals. In the said order, the Division Bench of the Allahabad High Court had observed as under:- “In our opinion, any change of memorandum of Association of bye-laws of the society after 64 years of the establishment of the institution has no legal consequence on me issue of establishment of the Society/Institution by persons belonging to different community i.e., not only by minority community. No such subsequent developments would dilute the finding of the writ Court that the Institution had not been established by the Minority Institution.”

30. The aforesaid decision was appealed against by the petitioner but the Supreme Court had not interfered with the aforesaid conclusion.

31. In view of the above, this Court finds no infirmity with the impugned order. The petition is unmerited and is, accordingly, dismissed. All pending applications stand disposed of.

VIBHU BAKHRU, J JANUARY 18, 2019