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Allahabad High Court dismisses petition of college claiming to be minority institution

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The Lucknow Bench of the Allahabad High Court has dismissed a petition of a minority institution, saying merely running an educational institution for minorities it does not become a minority institution.

The Division Bench of Justice Devendra Kumar Upadhyaya and Justice Subhash Vidyarthi passed this order while hearing a petition filed by MTV Buddhist Religious And Charitable Trust Thru President Andanr.

By instituting these proceedings under Article 226 of the Constitution of India, initially a challenge was made to the orders dated 05.10.2020 and 07.10.2020, both issued by the Director General Medical Education and Training, UP requiring the Management/Principals of all Dental College and Medical Colleges in the State of UP running in private sector to submit their proposals so that the fee to be charged by these institutions from the students may be determined.

Another prayer made in the writ petition is to quash the order dated 26.07.2018 passed by the State Government in the Department of Medical Education and Training, whereby the representation dated 12.06.2018 preferred by the petitioner was rejected.

The said order dated 26.07.2018 was passed by the State Government in compliance of an order dated 22.06.2018 passed by the Court in Writ Petition instituted by the petitioners whereby the State Government was directed to look into the grievance of the petitioners and pass appropriate orders on their representation.

By the said order dated 26.07.2018, the State Government has refused to treat the petitioner’s institution as a minority institution.

The petitioners have also prayed to issue a direction to the Director General Medical Education and Training to treat the petitioner no 2-College as a minority institution in view of the minority status granted to the said College by National Commission for Minority Educational Institutions.

It has also been prayed that the respondents State of UP in the Department of Minority Welfare as also in the Department of Medical Education and Training be directed to allow the privileges of a minority institution to the petitioner-college. Subsequently by amending the writ petition, the petitioners have also prayed for quashing of a Government Order dated 06.11.2020, issued by the State Government, in the Department of Medical Education and Training, whereby the fee to be charged by the petitioner no 2-College from its students for pursuing MBBS and MDS courses has been determined.

By amending the writ petition, another prayer has been made to quash the Government Order dated 28.08.1999, whereby the State Government in the Department of Medical Education and Training has determined certain criteria for declaration of a non-Government Medical/Dental/Para Medical College to be a Minority Institution on the basis of language and religion, that is to say, Linguistic Minority Institution and Religious Minority Institution.

Sanjay Bhasin, Senior Advocate, representing the Director General Medical Education and Training, has submitted at the outset that the petition is not maintainable for the reason that prior to filing of the writ petition the petitioners had instituted Writ-C No 31941 of 2018 whereby a challenge was made to quash the order dated 26.07.2018 which is under challenge in this petition as well.

He has also stated that another prayer made in the Writ-C No 31941 of 2018 was for issuing a direction to the State authorities to acknowledge and treat the petitioner-College as Minority Institution and to confer all benefits available to Minority Institutions.

He has further stated that during the pendency of the Writ C No 31941 of 2018 the Director General Medical Education and Training had issued two letters/orders dated 29.01.2019 and 04.02.2019 directing the petitioner-College to submit its proposal for fixation of fee for its Post Graduate Courses and these two letters/orders dated 29.01.2019 and 04.02.2019 were challenged by the petitioners by filing Civil Misc Writ Petition.

It has, thus, been argued by Sanjay Bhasin, Senior Advocate representing the Director General Medical Education and Training, that the writ petition seeks a prayer to quash the orders dated 05.10.2020 and 07.10.2020 which are akin to the orders dated 29.01.2019 and 04.02.2019 which were challenged in the earlier writ petition which was withdrawn without seeking liberty to file a fresh petition.

Further submission of Bhasin is that the order dated 26.07.2018 which has been challenged in the writ petition was challenged in Writ C No 31941 of 2018 which was also withdrawn without seeking liberty to challenge the same.

Accordingly, he submitted that the writ petition being second writ petition for the same relief is not maintainable which is liable to be dismissed.

In reply to the objection raised by Bhasin regarding maintainability of the writ petition, it has been argued on behalf of the petitioners by Sudeep Seth that the writ petition has been preferred after disclosing filing of the earlier writ petitions and the order dated 05.08.2019 granting liberty to the petitioners to withdraw the said writ petitions so as to approach the authorities for redressal of the grievances.

The Court noted,

When we consider the rival submissions made by the parties in respect of the maintainability of the writ petition, what we notice is that so far as the challenge to the orders/letters dated 05.10.2020 and 07.10.2020 is concerned, the same pertain to proposal for fee fixation for the academic year 2020-21 which were never challenged in earlier writ petitions filed by the petitioners.

As regards the prayer relating to quashing of the order dated 06.11.2020, we may record that the said order was also never challenged in the earlier writ petitions and as a matter of fact, the said order gives fresh cause of action to the petitioners to challenge the same.

In respect of the decision dated 26.07.2018, which was challenged in the earlier writ petition, we may observe that the representation made by the petitioners dated 12.06.2018 was considered in compliance with the order dated 26.06.2018 passed by the Court.

By the said order, the prayer of the petitioners for treating the petitioner-College as Minority Institution was rejected. This order was challenged in Writ C No 31941 of 2018, however, the same was permitted to be withdrawn by the Court by means of the order dated 05.08.2019 with liberty to the petitioners to approach the authorities for redressal of their grievances. The petitioners are said to have made representations on 15.07.2020 and 27.09.2020 in regard to the order dated 26.07.2018 to reconsider the same and when no decision was taken by the authorities, in the writ petition amongst other prayers, a prayer has been made to quash the said order dated 26.07.2018 as well.

The Court further noted that the Act, 2004 was enacted by the Parliament for a purpose different from the purpose for which UP Act No.24 of 2006 has been enacted by the State Legislature. The purpose of enactment 2004 Act was to constitute a National Commission for Minority Educational Institutions and to provide for matters connected therewith or incidental thereto, whereas the purpose of enacting UP Act No 24 of 2006 was to provide for regulation of admission and fixation of fee in private professional educational institutions and the matters connected therewith or incidental thereto. UP Act No 24 of 2006 excludes a Minority Institution from purview of its operation which, as observed above, operates to regulate admission and fixation of fee in private educational institutions.

What will be a Minority Institution for the purposes of UP Act No 24 of 2006 can be found in section 2(h) where Minority Institution has been defined to mean an institution established and administered by a minority and notified as such by the State Government. Thus for an institution to qualify a Minority Institution within the meaning of UP Act No 24 of 2006, it should be an institution not only being administered by a minority but it also ought to have been established by the minority and it should also be notified by the State as such.

Thus, in terms of the provisions contained in section 2(h) of UP Act No 24 of 2006 there are three conditions for an institution to qualify as a minority institution. The conditions are (i) that the institution should have been established by a minority, (ii) the institution should be administered by a minority and (iii) the institution should be notified as such by the State Government.

The Court said,

As already noticed above, respondent no 2 was established at a time when the petitioner was not a minority as it became minority only in 2015. The petitioner is currently said to be a minority since 2015 though at the time of establishment of petitioner no 2, it was not a minority and hence the petitioner no 2 will, in our considered opinion, not qualify to be a Minority Institution within UP Act No 24 of 2006.

Once an institution does not qualify to be a Minority Institution under UP Act no 24 of 2006, it is difficult for us to hold that such an institution, despite being administered currently but was not established by a minority, will be excluded from operation of UP Act No 24 of 2006. Establishing an institution and administering it are two different happenings. If a society or a Trust did not comprise of members of any Minority Community (either linguistic or religious) at the time when it established an educational institution and subsequently attains the status of a minority and starts administering such an institution, in our considered opinion, in such a situation the educational institution concerned will neither be a Minority Institution within UP Act No 24 of 2006, nor shall it be Minority Educational Institution within Act, 2004.

“For the reasons given and discussion made above, we do not find any illegality in the decision of the State Government not to treat the petitioner no 2 as Minority Institution so as to exclude it from the purview of UP Act No 24 of 2006 and accordingly we also do not see any illegality in the orders dated 05.10.2010 and 07.10.2010 whereby the Director General Medical Education and Training had sought the proposal from the petitioner no 2 for the purposes of fixation of fee to be charged from the students pursuing their MBBS and BDS Courses for the academic year 2020- 21.

For these reasons, we also do not find any illegality in the impugned order dated 06.11.2020 passed by the State Government in the Department of Medical Education whereby fee to be charged from its students was fixed.

For all the reasons given above, we are unable to agree with the submissions made by the counsel for the petitioners. Accordingly, we find that the writ petition lacks merit,” the Court observed while dismissing the petition.

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