IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT W.P.No.24056 OF 2018 (EDN-RES) BETWEEN GIFTED EDUCATION & RESEARCH FOUNDATION (GEAR FOUNDATION) GEAR INNOVATIVE INTERNATIONAL SCHOOL, NO.175, GEAR ROAD, SARJAPUR ROAD, DODDAKANAHALLI, BANGALORE - 560035 REPRESENTED BY ITS PRESIDENT M SRINIVASAN, S/O MUTHUSWAMY GAUNDER, AGED MAJOR. ... PETITIONER (BY SRI. BASAVARAJU S, ADVOCATE ) AND 1. STATE OF KARNATAKA, BY THE SECRETARY, DEPARTMENT OF EDUCATION, M S BUILDING, DR AMBEDKAR VEEDHI, BANGALORE – 560001.
2. THE COMMISSIONER FOR PUBLIC INSTRUCTION, DEPARTMENT OF PUBLIC INSTRUCTION, OFFICE OF THE COMMISSIONER FOR PUBLIC INSTRUCTION, NRUPATHUNGA ROAD, BANGALORE – 560001.
3. BLOCK EDUCATION OFFICER, KRISHNARAJAPURAM , BANGALORE EAST TALUK – 560067.
4. NATIONAL COMMISISON FOR MINORITY EDUCATIONAL INSTITUTION, GATE NO 4, 1ST FLOOR, JEEVAN TARA BUILDING, PATEL CHOWK, 5, SANSAD MARG, NEW DELHI – 110 001 BY ITS SECRETARY. ... RESPONDENTS (BY SMT.PRAMODHINI KISHAN, AGA FOR R1 TO R3; SRI.C. SHASHIKANTHA, ASG FOR R4) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD 3.5.2018 PASSED BY THE NATIONAL COMMISSION FOR LINGUISTIC MINORITY EDUCATIONAL INSTITUTIONS, THE R-4 HEREIN CASE F.NO.10/2018 VIDE ANNX-P AND THE NOTICE DTD 11.05.2018 ISSUED BY THE DIRECTOR OF PUBLIC INSTRUCTIONS, THE R-2 HEREIN VIDE ANNX-Q AND ETC.
THIS WRIT PETITION COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R This Writ Petition involves the fact matrix as asserted by the learned counsel for the petitioner, akin to the one in W.P.No.32825/2017 and other connected matters that have been disposed off by this Court vide judgment dated 07.01.2019; the learned counsel for the petitioner on the principle of parity seeks the same relief as has been granted in the said matters. This assertion from the side of the petitioner is not disputed by the learned Addl. Govt. Advocate Smt.Pramodhini Kishan who has accepted notice on request for the Respondent Nos.1 to 3 and also by the learned Asst. Solicitor General Sri.C. Shashikantha who too has accepted notice on request for the 4th respondent – Commission.
2.In the cognate Writ Petitions mentioned above, the relevant observation from the judgment reads as under:
“ 11. In all these cases, the institutions have been established before the enactment of 2004 Act. The Apex Court, at Paragraph No. 17 of its judgment dated 18.04.2018 in Civil Appeal No. 3945/2018 in the case of Sisters of St. Joseph of Cluny Vs. State of West Bengal & Others and other connected matters has observed as under:
“17. However, Section 10(1), which was introduced at the same time as Section 11(f) by the Amendment Act of 2006, carves out one facet of the aforesaid power contained in Section 11(f), namely the grant of a no objection certificate to a minority educational institution as its inception. Thus, any person who desires to establish a minority educational institution after the Amendment Act of 2006 came into force, must apply only to the competent authority for the grant of a no objection certificate for the said purpose. It is a little difficult to subscribe to Shri Hegde’s argument that the said powers are concurrent. Harmoniously read, all applications for the establishment of a minority educational institution after the Amendment Act of 2006 must go only to the competent authority set up under the statute. On the other hand, for the declaration of its status as a minority educational institution at any stage post establishment, the NCMEI would have the power to decide the question and declare such institution’s minority status.”.
12. Therefore, it is for the Commission to decide the linguistic minority status of the educational institutions in terms of the notification to be issued by the Central Government under Section 2(f) of the 2004 Act. The grant of minority status as observed by the Division Bench of this Court in the case of Indus Trust (supra) is a sine qua non for any educational institution to seek exclusion/exemption from the provisions of RTE Act, 2009. However, the authorities cannot be permitted to procrastinate the claim for minority status by indulging in blame game against each other inasmuch as the minorities be it linguistic or religious enjoy certain Fundamental Rights guaranteed by Part III of the Constitution. An argument to the contrary would rob off the efficacy of these important rights.
13. Now that in compliance with the order dated 21.08.2018, the State Government having identified the linguistic minorities in the State vide order dated 05.11.2018, the Central Government needs to issue a notification in terms of Section 2(f) of the 2004 Act so that, the petitioner – institutions/Managements can stake their claim before the Commission for the grant of minority status. In the absence of such a notification, they are in a disadvantageous position to exercise the Fundamental Rights guaranteed under Article 30 of the Constitution. This is not a happy state of affair, which the Constitutional jurisprudence spurns at.
14. In the above circumstances, these writ petitions succeed; a Writ of Mandamus issues to the respondent State Government to press forthwith the Central Government for the issuance of a notification under Section 2(f) of the National Commission for Minority Educational Institutions Act, 2004, identifying linguistic minorities in the State of Karnataka on the basis of the Government Order No. ED 226 MAHITI 2018, BENGALURU, dated 05.11.2018; the Central Government shall process the claim for the issuance of such a notification, within an outer limit of three months, from the date the State Government places at its hands the said Government Order.
15. It is needless to mention that on the basis of the notification to be issued by the Central Government as directed above, the respondent – Commission shall consider the individual claims of the petitioner – institutions/Managements for the grant of linguistic minority status, without brooking any delay.
It is open to the petitioners to furnish on their own, or on solicitation by the obligee respondents any information or copies of documents as are necessary for due compliance of the directions above.”
In the above circumstances, this Writ Petition succeeds and is disposed off in terms of the judgment above.
Costs made easy.
Sd/- JUDGE cbc