Rajiv Sharma, J.@mdashHeard Mr. Ashish Verma, learned Counsel for the petitioner, Mr. Rajesh Chandra Misra, learned Counsel for University
and Mr. Sanjay Sarin, learned State Counsel.
2. Aggrieved by the action of the authorities of Deen Dayal Upadhyay Gorakhpur University [in short referred to as the ''University''] in not
conducting the examination of B.Ed. Course for the session 2009-10 of the petitioner institution, this writ petition has been preferred by the
Institution.
3. Counsel for the petitioner has pointed out that on 15.10.2009, by amending para 7 of the U.P. State Universities (Regulation of Admission to
Courses of Instruction for Degree in Education in Affiliated Associated Colleges) Order, 1987 the State Government has declared 2009-10
session for B.Ed course as Zero Session.
4. The said Government Order dated 15.10.2009 was assailed in writ petition bearing no. 11617 (MB) of 2009 by St. Andrews College, when
the said order was being extended on the minority institution. A Division Bench of this Court passed an order on 21.12.2009 that the order will not
come in the way in getting the examination conducted for the Academic Session 2009-10 with regard to the minority institution. The Court further
directed the State Counsel to provide details of other minority institutions, which may be entitled for same order, so that the multiplicity of the
litigation be avoided. It has clearly been pointed out that the petitioner is also one of the minority institutions and as such the Government Order
dated 15.10.2009, is not applicable.
5. Counsel for the petitioner has submitted that the petitioner institution admittedly is a minority institution and has admitted the candidates against
the sanctioned seats for pursuing B.Ed course and had conducted the requisite classes for imparting education during the academic session 2009-
10 as prescribed under the Rules and Regulations. After completing 180 days'' teaching, the petitioner institution has submitted an application to
the Registrar of the University on 31.12.2010 requesting therein that for the Session 2009-10, the examinations forms be made available and the
examinations be conducted. The grievance of the petitioner is that inspite of specific order passed by this Court dated 21.12.2009 that the
Government Order dated 15.10.2009 would not apply on the minority institutions, the University is not holding the examinations causing serious
prejudice to the validly admitted students and amounts to an interference in the affairs of the minority institutions, which is not permissible under
law.
6. It has been vehemently argued on behalf of the petitioner that there being specific bar under the provisions of Section 2 of the Act of 2006 i.e.
Uttar Pradesh Private Professional Educational Institution (Regulation of Admission and Fixation of Fee) Act 2006 and proviso to Section 28(5) of
the State Universities Act, the State Government does not have any authority or power to regulate admissions and fee with regard to the minority
institutions and despite number of pronouncements having been made by the Apex Court as also by this Court, the opposite parties are showing
defiant attitude towards the minority institutions. Therefore, he summed up by saying that denial of conducting examination of the minority institution
by the University for the academic session 2009-10, is wholly erroneous and unwarranted and smacks arbitrariness on the part of the University
authorities. He also added that delay in conducting the examination will have adverse impact on the future career of the students.
7. Counsel for the University says that though the petitioner is a minority institution but the B.Ed course, which the institution is running, is pursuant
to the recognition granted by the National Council for Teachers'' Education (NCTE). Only thereafter, the institution has been granted affiliation by
the University. Therefore, NCTE is a necessary party, but the same has not been arrayed as one of the respondents. As per Appendix-4,
admission shall be made on merit on the basis of marks obtained in the qualifying examination and/or in the entrance examination or any other
selection process as per policy of the State Government. Furthermore, as per provisions of Section 28 of the State University Act, 1973, the
University is vested with the power to regulate the process of admission in any course of the University and its affiliated colleges. Therefore, the
minority and non-minority institutions, both are covered by the admission procedure of the affiliating University.
8. As regards issuance of Government Order dated 15.10.2009 whereby academic session 2009-10 was declared as Zero Session, it has been
stated that it does not differentiate between the ''minority'' and ''non-minority'' institutions and is applicable on both types of institutions. However,
he added that the said Government Order was quashed by this Court vide judgment and order dated 23.3.2010 and at present, the matter is
pending before the Apex Court.
9. On the strength of the decisions rendered in P. A. Inamdar vs. State of Mahrashtra; 2005 SCC (6), Tuples Educational Society vs. State of
U.P. LCD 2008 (26) 687 and Veer Bahadur Singh Purvanchal University vs. Bimala Rama Shanker Mahavidyalaya, Counsel for the University
has argued that though being a minority institution, it has no power to adopt its own admission procedure. Thus, institution is not permitted to take
a single admission beyond the Common Entrance Test.
10. Counsel for the University also clarified that earlier the minority institutions were admitting students against entire seats allocated to them but
this Court modified the same by and ad-interim order dated 1.2.2010 passed in writ petition no. 806 (MB) of 2010 whereby the minority
institutions permitted to admit only 50% seats on their own and 50% candidates are to be allocated through Counselling.
11. Before adverting to the merits of the case, it would be useful to refer various pronouncements of the Supreme Court with regard to the rights of
minorities to establish and administer educational institutions of their choice. In T.M.A. Pai Foundation and Others Vs. State of Karnataka and
Others, , the Supreme Court was considering the scope of right of minorities to establish and administer educational institutions and observed as
under:-
A minority institution may have its own procedure and method of admission as well as selection of students, but such a procedure must be fair and
transparent, and the selection of students in professional and higher education colleges should be on the basis of merit. The procedure adopted or
selection made should not be tantamount to maladministration. Even an unaided minority institution ought not to ignore the merit of the students for
admission, while exercising its right to admit students to the colleges aforesaid, as in that event, the institution will fail to achieve excellence.
It was further observed as under:-
The State or other controlling authorities, however, can always prescribe the minimum qualification, experience and other conditions bearing on the
merit of an individual for being appointed as a teacher or a principal of any educational institution.
Regulations can be framed governing serving conditions for teaching and other staff for whom aid is provided by the State, without interfering with
the overall administrative control of the management over the staff.
Fees to be charged by unaided institutions cannot be regulated but no institution should charge capitation fee.
12. In Islamic Academy of Education and Another Vs. State of Karnataka and Others, , the Hon''ble Supreme Court constituted the committees
for each State to oversee the tests to be conducted by the Association.
13. As regard the life of the Committee so constituted, the Hon''ble Supreme Court has laid down in explicit words as under:-
Our direction for setting up two sets of Committees in the States has been passed under Article 142 of the Constitution of India which shall remain
in force till appropriate legislation is enacted by Parliament...
14. In P.A. Inamdar and Others Vs. State of Maharashtra and Others, , the Hon''ble Supreme Court reiterated that the Committees constituted by
the judgment in Islamic Academy [supra] in exercise of power under Article 142 of the Constitution are in stopgap arrangement until a suitable
legislation or regulation framed by the State steps in. Further, such Committees cannot be equated with Unni Krishnan Committees which were
supposed to be permanent in nature. The relevant paragraphs runs as under:-
A fortiori, we do not see any impediment to the Constitution of the Committees as a stopgap or ad hoc arrangement made in exercise of the power
conferred on this Court by Article 142 of the Constitution until a suitable legislation or regulation framed by the State steps in. Such Committees
cannot be equated with Unni Krishnan Committees which were supposed to be permanent in nature.
[emphasis supplied]
15. It may also be added that from the propositions enunciated in N. Ammad Vs. The Manager, Emjay High School and Others, and The
Secretary, Malankara Syrian Catholic College Vs. T. Jose and Others, The Secretary, Malankara Syrian Catholic College Vs. T. Jose and
Others, , it is imminently clear that a minority institution established by a minority community would continue to be so whether Government
declared it as such or not. Further the extension of aid by the State does not alter the nature and character of the minority educational institution.
Conditions can be imposed by the State to ensure proper utilization of the aid, without however diluting or abridging the right under Article 30(1)
of the Constitution.
16. In Malankara Syrian Catholic College [supra] the questions cropped up before the Hon''ble Supreme were as under:-
(I) To what extent, the State can regulate the right of the minorities to administer their educational institutions, when such institutions received aid
from the State?
(II) Whether the right to choose a Principal is part of the right of minorities under Article 30(1) to establish and administer educational institutions of
their choice. If so, would Section 57(3) of the Act violate Article 30(1) of the Constitution of India?
17. The Hon''ble Apex Court held that if any regulations interfere with the overall administrative control by the management over the staff, or
abridges/dilutes, in any other manner, the right to establish and administer educational institutions, such regulations, to that extent, will be
inapplicable to minority institutions. The Hon''ble Apex Court also summarized the general principles relating to establishment and administration of
educational institution by minorities:-
(1) The right of minorities to establish and administer educational institutions of their choice comprises the following rights:
(a) to choose its governing body in whom the founders of the institution have faith confidence to conduct and manage the affairs of the institution;
(b) to appoint teaching staff (teachers/lecturers and Headmasters/Principals) as also non-teaching staff, and to take action if there is dereliction of
duty on the part of any of its employees;
(c) to admit eligible students of their choice and to set up a reasonable fee structure
(d) to use its properties and assets for the benefit of the institution.
(i) The right conferred on minorities under Article 30 is only to ensure equality with the majority and not intended to place the minorities in a more
advantageous position vis-a-vis the majority. There is no reverse discrimination in favour of minorities. The general laws of the land relating to
national interest, national security, social welfare, public order, morality, health, sanitation, taxation etc. applicable to all, will equally apply to
minority institutions also.
(ii) The right to establish and administer educational institutions is not absolute. Nor does it include the right to mal-administer. There can be
regulatory measures for ensuring educational character and standards and maintaining academic excellence. There can be checks on administration
as are necessary to ensure that the administration is efficient and sound, so as to serve the academic needs of the institution. Regulations made by
the State concerning generally the welfare of students and teachers, regulations laying down eligibility criteria and qualifications for appointment, as
also conditions of service of employees (both teaching and non-teaching), regulations to prevent exploitation or oppression of employees, and
regulations prescribing syllabus and curriculum of study fall under this category. Such regulations do not in any manner interfere with the right under
Article 30(1).
(iii) Subject to the eligibility conditions/ qualifications prescribed by the State being met, the unaided minority educational institutions will have the
freedom to appoint teachers/lecturers by adopting any rational procedure of selection.
(iv) Extension of aid by the State does not alter the nature and character of the minority educational institution. Conditions can be imposed by the
State to ensure proper utilization of the aid. Without however diluting or abridging the right under Article 30(1).
18. Thus from the above facts, it is apparently clear that minority institutions are free to establish and administer educational institutions of their
choice and admit eligible students of their choice and to set up a reasonable fee structure etc. Further, the institution is free to appoint teaching staff
including non-teaching staff and to take action if there is dereliction of duty on the part of any of its employees.
19. In the State of Uttar Pradesh, by U.P. Act No. 24 of 2006 the State Government enacted The Uttar Pradesh Private Professional Educational
Institution (Regulation of Admission and Fixation of Fee) Act, 2006 on 10th July, 2006. Section 2 deals with the applicability of the Act and
provides that the provisions of the Act be applicable to the private aided or unaided professional education institutions, excluding minority
institutions. Section 3 is the definitions clause and Section 3(g) and 3(h) defines minority and minority institution as under:-
[g] ""minority"" means a minority defined under clause (f) of Section 2 of the National Commission for Minority Educational Institutions Act, 2004
(Act No. 2 of 2005]
[h] ""minority institution"" means an institution, established and administered by a minority and notified as such by the State Government.
20. Section 12 deals with the overriding effect and says that the provisions of this Act shall have effect notwithstanding anything inconsistent
therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.
21. It is relevant to point out that the life of the Committees which were constituted by the judgment in Islamic Academy case was till the suitable
legislation or regulation by the respective State is enacted. As averred above, the State of Uttar Pradesh, by U.P. Act No. 24 of 2006 has enacted
The Uttar Pradesh Private Professional Educational Institution (Regulation of Admission and Fixation of Fee) Act, 2006 on 10th July, 2006. The
Bill received the assent of the Governor on September 7, 2006 and was published in the U.P. Gazette, Extra, Part I Section (ka) dated 8th
September, 2006. So the existence of both the Committee constituted by the judgment in Islamic Academy case ceased automatically, the moment
the aforesaid Act, 2006 came into force i.e. on 10th July, 2006. Section 2, as indicated above, clearly enshrines that the provisions of the said Act
are not applicable upon the minority institutions.
22. Thus, it is clear that the Uttar Pradesh Private Professional Educational Institution (Regulation of Admission and Fixation of Fee) Act, 2006 is
applicable to the private aided or unaided professional educational institutions and is not applicable on minority institutions, which is evident from
Section 2 of the Act itself.
23. After coming into force of the Act of 2006, the Committees constituted in pursuance of the Islamic Academy of Education and P. A.
Inamdar''s case [supra] ceases to exist and because of the fact that by virtue of Section 2 of the Act of 2006, the minority institutions are excluded
from the purview of the Act of 2006, the petitioner institution, undoubtedly, being a minority institution has a right to admit the students on their
own. It is pertinent to add that by virtue of proviso appended to Section 28(5) of the U. P. State Universities Act, 1973 the provisions of Section
28(5) are also not applicable on the minority institutions.
24. The objection of the University Counsel that National Council for Teacher Education is a necessary party is wholly misconceived as the
petitioner''s grievance is not against the NCTE but they are aggrieved by the inaction of the University in not holding the examination, even though
the Government Order dated 15.10.2009 is not applicable upon the minority institution and moreso, when the aforesaid Government Order dated
15.10.2009 has already been set-aside by a Division Bench of this Court in writ petition no. 11908(MB) of 2009 decided on 23.3.2010. No relief
has been sought against the NCTE, therefore, the objection raised by the University Counsel is misconceived. Moreover, the judgment of the Full
Bench of this Court in the case of Tuples Education Society, which has been relied upon by the University Counsel, is not applicable in the instant
case as the said Full Bench has not dealt with the rights and privileges of the minority institutions. It may also be added that assailing the
Government Order dated 15.10.2009, number of writ petitions were filed by private unaided institutions and non-minority institutions separately
and the different Division Benches of this Court while observing that u/s 28(5) of the State Universities Act, the minority institutions are exempted
provided that the students admitted by the minority institution shall be permitted to continue to study in the academic session 2009-10.
25. As averred above, Counsel for the University has argued that the minority institutions are permitted to admit only 50% of seats on their own
and 50% seats are to be filled through the Entrance Test conducted by the State Government and in this regard, he has placed reliance on an
interim order dated 1.2.2010 passed by a Division Bench of this Court in Writ Petition No. 810 (MB) of 2010. I have also gone through the
interim order dated 1.2.2010 and the assertion of the University Counsel is wholly misconceived and misleading. Nowhere, in the interim order
dated 1.2.2010 it has been provided that minority institutions are permitted only to fill-up 50% seats on their own and 50% seats are to be filled
through the candidates allocated to the institution by Counselling. It appears that on some objections having been raised by the Counsel for the
University, the Division Bench was pleased to provide that the order would inure only for 50 students, who were admitted in July, 2009 and not
for any other admission. At this juncture it would be relevant to reproduce the relevant portion of the order dated 8.9.2010 passed in Writ Petition
No. 8824 of 2010( MB) wherein also a Division Bench of this Court in respect of a minority institution directed that the students so admitted by
the institution shall be allowed to appear in the emanations also and their result shall be declared and mark-sheet shall also be issued:-
Considering the pleas raised by the learned counsel for the petitioner Sri Prashant Chandra and Sri Sandeep Dixit, we, are prima-facie satisfied
that in view of series of orders passed by this Court, the copies of which have been brought on record including the order dated 7.1.2010, passed
in Writ Petition No. 11617 of 2009 (MB) in re: St. Andrews College vs State of U.P. and others coupled with the fact that section 2 of Uttar
Pradesh Admission to Educational Institutions (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 2006,
excludes its applicability to minority institutions, we direct that no further action will be taken against the petitioner''s Institution, in pursuance of the
directive issued by the Vice Chancellor dated 3.9.2010 (contained as Annexure No. 1 to the writ petition) and the petitioner Institution shall be
allowed to continue to provide education to the B.Ed students and the students so admitted shall be allowed to appear in the examinations also,
their result shall be declared and mark-sheet shall also be issued.
26. As regard declaring the academic session 2009-2010 as Zero Session by the State Government, number of writ petitions were filed and this
Court provided that the students admitted by the minority institution in the present academic session shall continue to study and the aforesaid Order
of 1987 as amended by the Government Order dated 15.10.2009, shall not come in its way in getting the examination conducted for the academic
session 2009-10. The question of competence of the State Government in declaring the Academic Session 2009-10 was also examined by this
Court in Writ Petition No. 11908 (MB) of 2009; Jamuna Devi Naresh Cahdnra Mahavidyalaya vs. State of U.P. and another and other
connected writ petitions and a Division Bench of this Court held as under:-
On having a close look upon the events aforesaid, we have no hesitation in observing that the State Government was having no competence to
declare the academic session 2009-10 a zero session by issuing the impugned order and, therefore, the said order cannot be sustained legally. The
impugned order of the State Government dated 15.10.2009 is per se without any authority and cannot be justified even on the facts and the
reasons given therefor. The said order is liable to be quashed, which is hereby quashed.
27. It may also be added that number of minority Institutions affiliated to the Chhatrapati Shahu Ji Maharaj University, Kanpur, University of
Lucknow and Agra University approached this Court when the examinations of their institutions were not being conducted by the respective
University. The Coordinate Benches of this Court after examining the matter directed for holding the examination in the month of March, 2011. A
Division Bench of this Court in the matter of St. John''s College, Agra criticized the delay on the part of the University in not conducting the
examination. At this juncture, it is relevant to mention that number of writ petitions were also filed before this Court at Allahabad [Writ-C No.
70664 of 2009 and other connected writ petitions decided on 7.2.2011] by the Minority Institutions and their grievance was that though teaching
work has been completed and respective Universities have been informed of this fact, but the Universities are not holding the written examination
for these candidates. The Court while allowing the writ petitions observed as under:-
Learned counsel appearing for the Mahatma Jyotiba Phule Rohil Khand University, Bareilly had made a statement before the Lucknow Bench of
this Court in Writ Petition No.10694 of 2010 that the University shall hold the examination. It is the contention of the learned counsel for the other
Universities that they are not bound by such a statement. It may be so, but when the decision of the State Government to declare the Academic
Session 2009-10 as Zero Session has been set aside by the Court in Jamuna Devi Naresh Chandra Mahavidyalaya (supra) and the Institutions
affiliated to these Universities have also made admissions of the students to the B.Ed. Course, there is no good reason why the University should
not hold the examination.
28. In view of the aforesaid discussions and series of orders, referred to above, passed by this Court in this context, I find no justification on the
part of Dr Ram Manohar Lohia Avadh University, Faizabad in not conducting the examination of students admitted in B.Ed. Course for the
academic session 2009-10 by the minority institution like the petitioner. Any delay in conduct of exam has a chain reaction also affecting the career
of the students and it is totally unfair and irrational on the part of the University in not conducting the examination at the earliest. Further, learned
Counsel for the petitioner has drawn the attention of this Court towards the order dated 18.5.2011 passed in Writ Petition No. 1905 (MS) of
2011 Haji Ismail Degree College versus State of U.P. and others. The controversy involved in the said writ petition is similar to the instant writ
petition. Therefore, it is squarely covered. It may be noted that against the order passed by the Single Judge, the University filed a Special Appeal
No. 605 of 2011 Dr Ram Manohar Lohia Avadh University v. Haji Ismail Degree College, which was dismissed vide order dated 29.8.2011.
While dismissing the appeal, the Division Bench observed as under:-
..... the minority institutions are a class by themselves, therefore, they are free to admit the students of their choice, of course, subject to the
condition that the merit of students cannot be ignored. Moreover, in an identical case of minority institutions being Writ Petition No.10694 (MB) of
2010 (Muslima Girls Degree College Sir Syed Nagar Moradabad v. State of U.P.) the direction given by this Bench to the University to hold
examination for the Session 2009-10 is said to have attained finality on disposal of Civil Appeal No. 7137 of 2011 on 19th August, 2011.
29. Accordingly, it is provided that the petitioner-institution shall forward the names of the students admitted to the Institutions along with their
applications forms to the University, if not sent earlier. The University after scrutinizing the documents, shall complete the necessary formalities for
conducting the examinations and shall conduct the examinations, within a maximum period of three months from today. It is further provided that
the result of the students shall also be declared and mark-sheet shall also be issued to them.
30. In view of above, the writ petition is allowed and the impugned order dated 15.10.2009 is quashed.