IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 7TH DAY OF JANUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION Nos.16410-16411/2018 (EDN-RES) C/W WRIT PETITION Nos. 13109-13110/2018, 17298- 17299/2018, 23948/2018, 32825/2017 (EDN-RES) IN W.P. Nos. 16410-16411/2018:
BETWEEN:
1. GNYANA MANDIR TRUST REGISTERED TRUST 1163, 26TH A MAIN ROAD, JAYANAGARA, 4TH T BLOCK, BANGALORE - 560041 BY ITS MANAGING TRUSTEE MS HEMAA NARAYAN D/O K V ASHWATHNARAYAN AGED 57 YEARS RESIDING AT 163/D, 2ND CROSS, 6TH MAIN, J P NAGAR, 3RD PHASE, BANGALORE- 560078 2. SUDARSHAN VIDYA MANDIR 1163, 26TH A MAIN ROAD, JAYANAGARA 4TH T BLOCK, BANGALORE - 560041 BY ITS MANAGING TRUSTEE MS HEMAA NARAYAN D/O K V ASHWATHNARAYAN AGED 57 YEARS (BY SRI. BASAVARAJ S, ADVOCATE) AND:
1. STATE OF KARNATAKA BY THE SECRETARY DEPARTMENT OF EDUCATION M S BUILDING, DR AMBEDKAR VEEDHI BANGALORE – 560001 … PETITIONERS 2. THE COMMISSIONER FOR PUBLIC INSTRUCTION DEPARTMENT OF PUBLIC INSTRUCTION OFFICE OF THE COMMISSIONER FOR PUBLIC INSTRUCTION NRUPATHUNGA ROAD, BANGALORE - 560001 3. THE BLOCK EDUCATION OFFICER SOUTH RANGE - III BANGALORE SOUTH DISTRICT 4. NATIONAL COMMISSION FOR MINORITY EDUCATIONAL INSTITUTIONS GATE NO 4, 1ST FLOOR, JEEVAN TARA BUILDING, PATEL CHOWK, NO 5, SANSAD MARG NEW DELHI - 110001 BY ITS REGISTRAR … RESPONDENTS (BY SRI. PRAMODHINI KISHAN, AGA FOR R1-R3;
SRI. SHASHIKANTHA, ASGI FOR R4) THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE GOVERNMENT ORDER AS PER ANNEXURE-T DATED 18.6.2014 ISSUED BY THE FIRST RESPONDENT AS BEING VIOLATIVE OF ARTICLE 30 OF THE CONSTITUTION OF INDIA AS IT VIOLATES THE FUNDAMENTAL RIGHTS OF THE UNAIDED MINORITY EDUCATIONAL INSTITUTIONS AND ETC., IN W.P. Nos. 13109-13110/2018:
BETWEEN:
1. CMR JNANADHARA TRUST(R) HAVING ITS OFFICE AT NO. 2, 3RD CROSS, 6TH-A-MAIN, 2ND BLOCK, HRBR LAYOUT, BENGALURU 560043. REPTD BY ITS PRESIDENT, SMT. SABITHA RAMAMURTHY, W/O. K C RAMAMURTHY, AGE 59 YEARS 2. EKYA SCHOOL NO. 3643, 3RD MAIN, 2ND CROSS, N S PALYA MAIN ROAD, BTM LAYOUT, BANGALROE 560076.
REP BY ITS PRINCIPAL, SMT. KR TRISTHA, D/O SRI. K C RAMAMURTHY, AGE 33 YEARS, (BY SRI. OMKAR KAMBI, ADVOCATE) AND:
1. STATE OF KARNATAKA BY ITS SECRETARY, DEPARTMENT OF EDUCATION, M.S. BUILIDING, DR. AMBEDKAR ROAD, BENGALURU 560001 ... PETITIONERS 2. THE COMMISSIONER FOR PUBLIC INSTRUCTION DEPARTMENT OF PUBLIC INSTRUCTION, OFFICE OF THE COMMISSIONER FOR PUBLIC INSTRUCTION, NRUPATHUNG ROAD, BENGALURU 560001 3. DIRECTORATE OF URDU & OTHER LINGUISTIC MINORITIES GOVERNMENT OF KARNATAKA, KR CIRCLE, BANGALORE 560001. REP BY ITS DIRECTOR 4. BLOCK EDUCATION OFFICER SOUTH RANGE -3, BTM LAYOUT,. BENGALURU 5600 5. THE NATIONAL COMMISSION FOR MINORITY EDUCATIONAL INSTITUTIONS, GATENO. 4,1ST FLOOR, JEEVAN TARA BUILDING, SANSAD MARG, PATEL CHOWK, NEW DELHI 110001.
REP BY ITS DEPUTY SECRTEARY ... RESPONDENTS (BY SMT. PRAMODHINI KISSAN, AGA FOR R1 TO R4) THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE GOVT. ORDER DATED 18.6.2014 AS PER ANNEXURE-T ISSUED BY THE R-1 AS BEING VIOLATIVE OF ARTICLE 30 OF THE CONSTITUTION OF INDIA AS IT VIOLATES THE FUNDAMENTAL RIGHTS OF THE UNAIDED MINORITY EDUCATIONAL INSTITUTIONS.
IN W.P. Nos. 17298-17299/2018:
BETWEEN:
1. GNYANAMANDIR TRUST REGISTERED TRUST, 1163, 26TH A MAIN ROAD, JAYANAGARA 4TH T BLOCK, BANGALORE - 560041.
BY ITS MANAGING TRUSTEE, MS. HEMAA NARAYAN, D/O. K.V. ASHWATHNARAYAN AGED 57 YEARS, RESIDING AT 163/D, 2ND CROSS, 6TH MAIN, J.P. NAGAR, 3RD PHASE, BANGALORE - 560078.
2. SUDARSHAN VIDYAMANDIR 43/1, 43/2, LAKSHMIPURA, SAKALAVARA MAIN ROAD, JIGANI HOBLI, BANNERGHATTA ROAD, ANEKAL TALUK BANGALORE - 560083.
BY ITS MANAGING TRUSTEE, MS. HEMAA NARAYAN D/O. K.V. ASWATHNARAYAN, AGED 57 YEARS, (BY SRI. BASAVARAJ S, ADVOCATE) AND:
1. STATE OF KARNATAKA BY THE SECRETARY, DEPARTMENT OF EDUCATION, ... PETITIONERS 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, NRUPATUNGA ROAD, BANGALORE - 560001.
3. THE BLOCK EDUCATION OFFICER ANEKAL TALUK, BANGALORE SOUTH DISTRICT.
... RESPONDENTS (BY SMT. PROMODINI KISHAN, AGA FOR R1 TO R3;
SRI. C SHASHIKANTHA, ASGI FOR R4) THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE GOVERNMENT ORDER AS PER ANNEXURE-S DATED 18.6.2014 ISSUED BY THE FIRST RESPONDENT AS BEING VIOLATIVE OF ARTICLE 30 OF THE CONSTITUTION OF INDIA AS IT VIOLATES THE FUNDAMENTAL RIGHTS OF THE UNAIDED MINORITY EDUCATIONAL INSTITUTIONS AND ETC., IN W.P. NO. 23948/2018:
BETWEEN:
ORANGE EDUCATIONAL SOCIETY SURVEY NO.39, TIGALACHOWDENAHALLI VARTHUR HOBLI, NEAR DOMMASANDRA CIRCLE, SARJAPUR HOBLI, ANEKAL TALUK, BANGALORE-562125, REPRESENTED BY ITS ADMINISTRATIVE OFFICER, MR.JAYAN VIJAYAN, S/O.K.VIJAYAN NAIR, AGED 35 YEARS.
... PETITIONER (BY SRI. BASAVARAJ 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. THE BLOCK EDUCATION OFFICER ANEKAL BANGALORE-562125.
4. NATIONAL COMMISSION FOR MINORITY EDUCATIONAL INSTITUTIONS, GATE NO.4, 1ST FLOOR, JEEVAN TARA BUILDING, PATEL CHOWK,5, SANSAD MARG, NEW DELHI-110001, BY ITS REGISTRAR.
... RESPONDENTS (BY SMT. PROMODHINI KISHAN, AGA FOR R1 TO R3;
SRI. C SHASHIKANTHA, ASGI FOR R4) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION PRAYING TO QUASH THE ORDER DATED 3.5.2018 PASSED BY THE NATIONAL COMMISSION FOR LINGUISTIC MINORITY EDUCATION INSTITUTIONS, THE 4TH RESPONDENT HEREIN IN CASE F.NO.1312/2017 (ANNEXURE-Q) AND THE NOTICE DATED 11.05.2018 ISSUED BY THE DIRECTOR OF PUBLIC INSTRUCTIONS, THE SECOND RESPONDENT HEREIN (ANNEXURE-R);
IN W.P. NO. 32825/2017:
BETWEEN:
1. KASTURBA EDUCATION TRUST HAVING ITS REGISTERED OFFICE AT NO. 30, KEMPAPURA HEBBAL, BANGALORE – 560 024.
DULY REPRESENTED BY ITS MANAGING TRUSTEE SMT. HANSA R VITHANI 2. VIDYA NIKETAN SCHOOL NO.30, KEMPAPURA, HEBBAL, BANGLAORE 560024, REP BY ITS PRINCIPAL, SMT. LALITHA DESIKAN.
... PETITIONERS (BY SRI. S M CHANDRASHEKAR, SENIOR ADVOCATE FOR SRI. SIDDHARTHA H M, ADVOCATE) AND:
1. STATE OF KARNATAKA EDUCATION DEPARTMENT REP. BY ITS SECRETARY M.S. BUILDING, BANGALORE – 560 001.
2. DEPARTMENT OF PUBLIC INSTRUCTION GOVERNMENT OF KARNATAKA, K.R. CIRCLE, BANGALORE 560001. REP BY ITS COMMISSIONER 3. THE BLOCK EDUCATION OFFICER PRIMARY AND SECONDARY EDUCATION BANGALORE NORTH, BANGALORE 4. THE ZONAL EDUCATION OFFICER OFFICE OF THE ZONAL EDUCATION OFFICER DEPARTMENT OF PUBLIC INSTRUCTIONS NORTH ZONE-4, YELAHANKA BANGALORE 560064 5. NATIONAL COMMISSION FOR MINORITY EDUCATIONAL INSTITUTIONS GOVERNMENT OF INDIA GATE NO. 4, 1ST FLOOR JEEVAN TARA BUILDING 5, SANSAD MARG, PATEL CHOWK, NEW DELHI - 110 001 REP. BY ITS DEPUTY SECRETARY 6. KARNATAKA GOVERNMENT DIRECTORATE OF URDU AND OTHER MINORITY LINGUISTIC SCHOOLS, K R CIRCLE BANGALORE – 560 001.
REPRESENTED BY THE DEPUTY DIRECTOR (ADMINISTRATION) DEPARTMENT OF PUBLIC INSTRUCTIONS BANGALORE SOUTH DISTRICT BANGALORE 7. UNION OF INDIA MINISTRY OF HUMAN RESOURCES DEVELOPMENT, REPRESENTED BY ITS SECRETARY SHASTRIC BHAVAN NEW DELHI – 110 001.
(IMPLEADED V.C.O DATED 23.01.2018) 8. S THANAV S/O SHASHIDHAR AGED ABOUT 6 YEARS SINCE MINOR REPRESENTED BY NATURAL GUARDIAN, SMT. KAVYASREE W/O SHASHIDHAR AGED ABOUT 40 YEARS RESIDING AT NO.23 2ND CROSS, HEBBAL KEMPAPURA BANGALORE – 560024.
9. JOSIKA G D/O GANAPATHI P BHOSGE AGED ABOUT 6 YEARS SINCE MINOR REPRESENTED BY ITS NATURAL GUARDIAN VIJAYALAKSHMI W/O GANAPATHI P BHOSGE AGED ABOUT 39 YEARS R/A NO.23, BEHIND ESHWARA TEMPLE, AMRTUTHHALLI, BANGALORE – 560 092 10. ARUN KUMAR A S/O ANADHA T AGED ABOUT 6 YEARS SINCE MINOR REPRESENTED BY NATURAL GUARDIAN ANANDA T S/O TIMMIAH , AGED ABOUT 38 YEARS R/O NO.219, H R ANJANAPPA LAYOUT OPP. PRESIDENCY COLLEGE BANGALORE-560 024 11. DHANUSH NAIDU S/O RASINENI THIRUPA, AGED ABOUT 6 YEARS SINCE MINOR REPRESENTED BY NATURAL GUARDIAN RASINENI THIRUPA S/O RASINENI NARASIMHA NAIDU AGED ABOUT 32 YEARS, R/AT #07, CHINNAPPA LAYOUT NEAR VINAYAKA SUNRISE SCHOOL HEBBAL, KEMPAPURA BANGALORE- 560 024 12. YASHWANTH K S/O KUMAR N AGED ABOUT 6 YEARS SINCE MINOR REPRESENTED BY NATURAL GUARDIAN KUMAR N S/O NARAYANAPPA AGED ABOUT 43 YEARS R/AT NO.243/04, VENKATEGOWDA LAYOUT KEMPAPURA, BANGALORE – 560 024 13. MANSI G D/O GURURAJ AGED ABOUT 6 YEARS SINCE MINOR REPRESENTED BY NATURAL GUARDIAN GURURAJ V S/O VENKATARAMANAPPA AGED ABOUT 29 YEARS R/AT 30, KOLARAMMA GARDEN, HEBBAL, KEMPAPURA, BANGALORE- 560024 14. MANVI G D/O GURURAJ V AGED ABOUT 6 YEARS SINCE MINOR REPRESENTED BY NATURAL GUARDIAN GURURAJ V S/O VENKATARAMAPPA AGED ABOUT 29 YEARS RESIDING AT NO. 30, KOLARAMMA GARDEN HEBBAL, KEMPAPURA BANGALORE- 560 024.
15. SUJIT MAGIMAI R S/O RAJENDRAN V S AGED ABOUT 6 YEARS SINCE MINOR REPRESENTED BY NATURAL GUARDIAN RAJENDRAN V S/O VADIVEL AGED ABOUT 47 YEARS RESIDING AT NO.7, KOLARAMMA GARDEN, 1ST CROSS, NEAR PURVA APARTMENT HEBBAL, KEMPAPURA BANGALORE- 560 024 16. VINUTH C P S/O PRASANNA AGED ABOUT 6 YEARS SINCE MINOR REPRESENTED BY NATURAL GUARDIAN PRASANNA S/O NIRVANAIAH AGED ABOUT 32 YEARS RESIDING AT NO. E-249 KOLARAMMA GARDEN HEBBAL, KEMPAPURA BANGALORE- 560 024 17. H JASMIN D/O HARIF AGED ABOUT 6 YEARS SINCE MINOR REPRSENTED BY ITS NATURAL GUARDIAN HARIF F S/O FAROOQ AGED ABOUT 32 YEARS RESIDING AT NO.9, 1ST MAIN, 1ST CROSS ANJANEYA SWAMY TEMPLE G NARYANAPPA LAYOUT HEBBAL KEMPAPURA BANGALORE – 560 024 (IMPLEADED V.C.O DATED 23.10.2018) ... RESPONDENTS (BY SMT. PROMODHINI KISHAN, AGA FOR R1-R4 & R6; SMT. K S ANUSUYA DEVI, CGC FOR R7;
SRI. C SHASHIKANTA, ASG FOR SRI. B S PRAMOD, CGC FOR R5;
SMT. DHANALAKSHMI K, ADVOCATE FOR R8 TO 17) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS LEADING TO ISSUANCE OF NOTICE/ORDER DATED 14.07.2017 ISSUED BY R-2 AND LETTER/COMMUNICATION DATED 3.7.2017 ISSUED BY R-3 AND QUASH THE NOTICE/ORDER DTD 14.07.2017 VIDE ANNX-L ISSUED BY R-2 THE LETTER DTD 3.7.2017 VIDE ANNX-J ISSUED BY R-3 AND THE ENTIRE PROCEEDINGS LEADING TO THE ISSUANCE OF AFORESAID ORDER DATED 14.07.2017 AND LETTER DATED 3.7.2017 AS BEING CONTRARY TO THE PROVISIONS OF RIGHT OF CHILDREN TO FREE AND COMPULSORY EDUCATION ACT, 2009 AND HENCE NULL AND VOID.
THESE PETITIONS COMING ON FOR HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER The petitioner – institutions and their Managements are before this Court claiming that these institutions are established by the linguistic minorities and therefore, they have protection under Article 30 of the Constitution of India. In effect, they seek a relief from the coercive action taken by the official respondents under the provisions of the Right of Children to Free and Compulsory Education Act, 2009 (hereafter ‘RTE Act, 2009’), the plurality of prayers made in the petition, notwithstanding.
2. After service of notice, the respondent -State has entered appearance through the learned AGA, Smt. Pramodhini Kishan; the respondent – National Commission for Minority Educational Institutions (hereafter, ‘the Commission’) is represented by the Additional Solicitor General of India, Sri. C. Shashikantha; the other respondent – the Union of India is represented by the Additional Central Government Counsel, Smt. K.S.Anusuya Devi. The respondent children who have been allotted seats under the RTE Quota are represented by their counsel, Smt. Dhanalakshmi K, who has not made any submission. At their request, all these cases are clubbed together and heard as common questions of facts and law have arisen, notwithstanding the varying prayers made in the Writ Petitions.
3. The State Government has filed its Statement of Objections resisting the writ petition. The respondent- Central Government has filed a memo dated 19.03.2018, paras 3 and 4 whereof read as under:
“3. Thus, it is observed that the problems of linguistic minorities are to be resolved by the State Government. It is not the domain of Central Government to declare linguistic minorities in a particular State. The Central Government has notified six religious minority communities under Section 2(c) of NCM Act, 1992. These communities are Muslim, Sikh, Christian, Parsi, Bhuddhist and Jain. As per the Section 2(f) of NCMEI Act, 2004 minority means a community notified as such by the Central Government. It is worth mentioning that this Act is governed by Ministry of HRD and they can amend their provisions to include any community as minority. The religious minorities notified under the NCM Act, 1992 have been adopted for use by the M/o HRD to the purpose of the NCMEI Act, 2004 and this Ministry has nothing to say in this regard.
4. In view of the position clarified above, it is informed that the Ministry of Minority Affairs is not concerned with the issue for declaring/notifying any community as linguistic minority and also that the subject matter falls in the purview of the State Government concerned. It is not out of place to point out the State Government of Maharashtra has declared Jews as minority community in the State while jews are not covered under the NCM Act, 1992.
Wherefore, the 7th Respondent prays this Hon’ble Court may be pleased to consider the above facts and direct the State Government to take necessary action in this regard, in the interest of justice and equity.”
4. Acting on the said Memo filed by the Central Government, this Court vide order dated 21.08.2018 had directed the respondent State Government to take steps for identifying the linguistic minorities in the State of Karnataka. Paragraph No.7 of the said order reads as under:
“7. Learned AGA submits that so long as the institution is not recognized as a minority institution, it cannot claim the status as minority institution and cannot be kept outside the purview of RTE Act. The said submission would have force only if the State identifies the linguistic minorities in the first instance. Without identifying the linguistic minorities in the State, it is not possible for any institution to claim the status of a linguistic minority institution. Identification of the linguistic minority is a cardinal aspect in order to have protection under Article 30(1) of the Constitution. It is not that any educational institution can claim the status of a minority institution, it is only religious or linguistic minority institution which can claim such protection under Article 30(1) of the Constitution and claim exemption under the provisions of RTE Act. But for that there must be clear identification of religious or linguistic minorities. As far as the religious minority institutions are concerned, the Central Government has issued Notifications from time to time identifying the religious minorities in the country. But no steps have been taken by the Central Government in so far as linguistic minorities are concerned. Even according to Memo dated 19.03.2018 filed before this Court, the Government of India has stated that it is a matter left to the State Government.
In the circumstances, the Respondent – State Government is directed to take steps to identify the linguistic minority communities in the State of Karnataka in accordance with law. Such a direction is being issued under Article 30(1) of the Constitution which states that all minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice. Therefore, it is crucial and necessary to identify the linguistic minorities in the State of Karnataka so as to ascertain whether they are exempted under the provisions of the RTE Act. In the absence of there being any such identification, it is not possible for the educational institution to claim minority status and on that basis, approach this Court and seek interim measures from year to year resulting in improper implementation of the RTE Act which has been enacted by the Parliament pursuant to Article 21A of the Constitution of India which is a fundamental right. It states that the State shall provide free and compulsory education to all children of the age of six to fourteen years in such a manner as the State may, by law, determine. At the same time, there cannot be any negation of the fundamental rights guaranteed under Article 30(1) of the Constitution of India concerning religious and linguistic minority communities. Therefore, the said exercise shall be carried out by the State Government in an expeditious manner and within the period of three months from the date of receipt of a copy of this order……”
5. Pursuant to the aforesaid order of this Court, the State Government undertook the exercise of identifying the linguistic minorities in the State and accomplished the same by issuing the Government Order No. ED 226 MAHITI 2018, BENGALURU, dated 05.11.2018, enlisting as many as ten languages i.e., Urdu, Telugu, Tamil, Malayalam, Marathi, Tulu, Lamani, Hindi, Marathi and Gujarati, spoken by the linguistic minorities in the State, for the limited purpose of declaration of Linguistic Minority Status of the educational institutions. Paragraph No. 6 of the said Government Order (in Kannada) reads as under:
“ªÉÄîÌAqÀ CA±ÀUÀ¼À£ÀÄß PÀÆ®APÀĵÀªÁV ¥Àj²Ã°¹ F PɼÀPÀAqÀAvÉ DzÉò¹zÉ.
¸ÀPÁðgÀzÀ DzÉñÀ ¸ÀASÉå: Er 226 ªÀiÁ»w 2018, ¨ÉAUÀ¼ÀÆgÀÄ, ¢£ÁAPÀ: 05.11.2018 ¥Àæ¸ÁÛªÀ£ÉAiÀÄ°è «ªÀj¸À¯ÁzÀ CA±ÀUÀ¼À »£É߯ÉAiÀÄ°è, d¹Öøï gÀAUÀ£ÁxÀ «Ä±Àæ, ¤ªÀÈvÀÛ ªÀÄÄRå £ÁåAiÀĪÀÄÆwðUÀ¼ÀÄ ºÁUÀÆ CzsÀåPëÀgÀÄ, ªÀÄwÃAiÀÄ ªÀÄvÀÄÛ ¨sÁµÁ C®à¸ÀASÁåvÀgÀ DAiÉÆÃUÀ, ¨sÁgÀvÀ ¸ÀPÁðgÀ, EªÀgÀÄ ¢£ÁAPÀ: 10.05.2007 gÀ°è ¤ÃrgÀĪÀ ªÀgÀ¢AiÀÄ°è G¯èÉÃT¸À¯ÁVgÀĪÀ “GzÀÄð, vÉ®UÀÄ, vÀ«Ä¼ÀÄ, ªÀÄ®AiÀiÁ¼ÀA, ªÀÄgÁp, vÀļÀÄ, ®ªÀiÁtÂ, »A¢, PÉÆAPÀt ªÀÄvÀÄÛ UÀÄdgÁw” ¨sÁµÉUÀ¼À£ÀÄß C®à¸ÀASÁåvÀ ¨sÁµÉUÀ¼ÉAzÀÄ C¢ü¸ÀÆa¹ DzÉò¹zÉ.
¸ÀzÀj CzÉñÀªÀÅ ¥ÁæxÀ«ÄPÀ ªÀÄvÀÄÛ ¥ËæqsÀ ²PëÀt E¯ÁSÉAiÀÄ ªÁå¦ÛUÉ ¸ÀA§A¢ü¹zÀ C®à¸ÀASÁåvÀ ¨sÁµÁ ±Á¯ÉUÀ¼À£ÀÄß WÉÆõÀuÉ ªÀiÁqÀĪÀ GzÉÝñÀPÉÌ- ªÀiÁvÀæ ¹Ã«ÄvÀªÁVgÀÄvÛÀzÉ.
PÀ£ÁðlPÀ gÁdå¥Á®gÀ DeÁÕ£ÀĸÁgÀ ªÀÄvÀÄÛ CªÀgÀ ºÉ¸Àj£À°è”
6. Learned Senior Advocate, Sri. S M Chandrashekar and learned Senior Member of the Bar, Sri. Basavaraj S. vehemently contend that, now that the State Government in compliance of this Court’s direction dated 21.08.2018 having issued the Government Order mentioned above identifying ten linguistic minorities in the State, the Central Government should be mandamussed to issue a notification in terms of Section 2(f) of the 2004 Act so that the individual claims of the institutions can be considered by the respondent Commission in accordance with the provisions of Section 11 of the said Act. The petitioners have filed a memo for the disposal of the writ petition accordingly.
7. The learned Additional Central Government Counsel, Smt. Anusuya Devi concedes that the Central Government indeed had filed a memo on 19.03.2018 which occasioned this Court’s order dated 21.08.2018 directing the State Government to identify the linguistic minorities in the State and that accordingly, the State has issued the Government Order dated 05.11.2018 and therefore, all these Writ Petitions be disposed off, reserving liberty to the petitioners to pursue their further remedies elsewhere.
8. The learned Assistant Solicitor General of India, Mr.
Shashikantha, appearing for the Commission submits that under the Scheme of 2004 Act, the Commission can act upon only the notification issued by the Central Government in terms of Section 2(f); that being the position, regardless of the stand of the Central Government expressed in terms of its memo dated 19.03.2018, there is difficulty in Commission acting upon the Government Order dated 05.11.2018 enlisting the linguistic minorities in the State. He also submits that the Commission will not have any difficulty in treating the claim for grant of linguistic minority status if the Central Government issues the notification accordingly.
9. The learned Additional Government Advocate Smt.
Pramodhini Kishan vehemently submits that in the absence of grant of minority status, no educational institution can seek exemption from the RTE Act, 2009 as observed by the Division Bench of this Court vide judgment dated 08.01.2018 in the case of Indus Trust v. Amitha Srinivas and Others in W.A. No.6644/2018 & connected Writ Appeals; now that the State Government, in compliance with the Court’s order dated 21.08.2018 having issued the Government Order dated 05.11.2018, it is for the Central Government to issue the notification under Section 2(f) of the 2004 Act enlisting the linguistic minorities for the State of Karnataka and thereafter the petitioner should seek grant of minority status at the hands of 5th respondent Commission; till all that is done, no educational institution can escape from the coercive rigors of RTE Act, 2009.
10. I have heard the learned Senior Counsel Sri. S M Chandrashekar and the Senior Member of the Bar, Sri. Basavaraj S for the petitioners; I have also heard the other counsel for the petitioners and the learned ASG Sri C.Shashikantha, the learned CGC, Smt. Anusuya Devi and the learned AGA, Smt. Pramodhini Kishan for the official respondents.
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.
Costs made easy.
Sd/- JUDGE Bsv