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TMI Blog2010 (7) TMI 1020X X X X Extracts X X X X X X X X Extracts X X X X ..... a minority status certificate cannot be kept under suspended animation. In this view of the issue, we find it just and expedient in the interest of justice to intervene in the matter. Despite grant of repeated adjournments, the State Government did not file its written statement in opposition to the petition filed by the petitioner. However, following issues arise for consideration:- (i) Whether the petitioner institution has been established by the Christian community which is a notified minority community? (ii) Whether the petitioner institution has been established for the benefit of the Christian community? (iii) Whether the petitioner institution is being administered by the Christian community? Issue No 1 it is stated in the petition that the petitioner school has been established by the Buckley Primary School, which is a registered trust, constituted by the members of the Christian community. The petitioner has produced original deed of trust of the Buckley Primary School, Cuttack which clearly proves that the said Trust has been constituted by members of the Christian Community and all the trustees of the Trust are from the Christian Community. It fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution is being managed by the Diocese, Cuttack. Consequently, we find and hold that the petitioner institution is being managed by the Christian community. It is stated in the affidavit of Mrs. Smruti Rekha Panda, Head Mistress of the petitioner institution that out of 297 students admitted in the institution, only 95 students are from the Christian community. Thus, the percentage of students from Christian community admitted in the petitioner school is 31.98% only. Here an interesting question which arises for consideration is : whether percentage of admission of students from a notified minority community in a minority educational institution can be included in the indicia for determining the minority status of such an institution? Learned counsel for the petitioner has strenuously urged that the indentifying criteria of a minority educational institution based on bulk or majority of admission of a minority community or on the basis of ratio of admission of students belonging to minority community fixed by the State Government would be unreasonable, impractical and unworkable. According to the learned counsel, this identifying test of a minority educational institution would a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the reasonable extent would vary from types of institution, the course of education for which admission is sought and other factors like educational needs. The State Government concerned has to notify the percentage of the non minority students to be admitted in the in the light of the above observations . In St. Stephen's College vs. University of Delhi (1992) 1 SCC 558, the Supreme Court has held that in view of the importance which the Constitution attaches to protective measures to minorities under Article 30(1), the minority aided educational institutions are entitled to prefer their community candidates to maintain the minority character of the institutions subject, of course, to conformity with the university standard. The State may regulate the intake in this category with due regard to the need of the community in the area which the institution is intended to serve. But in no case such intake shall exceed 50 per cent of the annual admission. The minority institutions shall make available at least 50 percent of the annual admission to members of communities other than the minority community. The admission of other community candidates shall be done purely on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the bulk of the students fitting into the description of the minority community or students of that group from the State appear to have been made in the context of cross border admissions. The practice adopted by the institutions established by the religious or linguistic minorities have shown that they will make admission from across the border of the State where the concerned minority was not a minority. The State has to be the unit for determining the minority and it would be possible that a minority in Orissa may not be a minority in Andhra Pradesh or Madhya Pradesh. Surely, if the minority educational institutions are given the right to make admissions from that minority community which is a majority community in another State, it would be a fraud on the Constitution. It is in that context, the observations came to be made that bulk or majority of admission of minority community has to be from within the State where the community is a minority. Despite the observations made above, it has further been observed that there could be a sprinkling of admissions from across the border. These observations cannot at all be construed to mean that the minority institutions aided or una ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s were designed not to create inequality. Their real effect was to bring about equality by ensuring the preservation of the minority institutions and by guaranteeing to the minorities autonomy in the matter of administration of these institutions (St. Xavier‟s College, Ahmedabad vs. State of Gujarat 1974 (1) SCC 717). It can be said to be an index of the level of civilization and catholicity of a nation as to how far their minorities feel secure and are not subjected to any discrimination or suppression. As Hon. Venkatarama Aiyer J. observed in AIR 1958 956 at page 990, the Constitution gives the minorities two distinct rights one a positive and the other a negative one, viz, (i) The State is under a positive obligation to give equal treatment in the matter of aid, recognition to all educational institutions including those of minorities, religious or linguistic; and (ii) The State is under a negative obligation as regards those institutions not to prohibit their establishment or interfere with their administration. Thus, the identifying criteria of fixation of a percentage of the students to be admitted in a minority educational institution does not fit in the const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... back ground of providing rights to minority communities in the matter of running educational institutions of their choice and the said right being not subject to any restriction would be clearly suggestive of the fact that once a community is a minority, it would have the right guaranteed under Article 30(1) of the Constitution. As stated earlier the petitioner institution has been established by the Christian community. In St. Xavier‟s College case (Supra), it has been observed as under: As far as Catholic educational institutions are concerned, Catholics believe that education belongs pre-eminently to the church. Catholic dogma categorically denies the premise that secular general education can be isolated from religious teaching. In the 1930 encyclical Christian Education of Youth‟ Pope Plus XI has commended: The only school approved by the Church is one where the catholic religion permeates the entire atmosphere and where all teaching and the whole organization of the school and its teachers, syllabus and textbooks in every branch is regulated by the Christian spirit. The minorities regard it as essential that the education of their children should be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was totally destructive of the rights of the minorities to establish and administer educational institutions of their choice. The excellence of the institution provided by an institution would depend directly on the quality and contentment of the teaching staff. The right to administer is to be tempered with regulatory measures to facilitate smooth administration. Regulations in the interest of efficiency of teachers, discipline and fairness in administration are of paramount importance in good administration. The best administration will reveal no trace or colour of minority. A minority institution should shine in exemplary electism in the administration. The best compliment that can be paid to a minority institution is that it does not rest on or proclaim its minority character. However, the fixed formula of a percentage governing admissions in all types of educational institutions established by the minorities does not fall within the domain of academic excellence of an institution and as such it cannot be held as a reasonable restriction. What appears to the correct proposition of law can be culled out from the following observations of their lordships of the Supreme Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of ratio of admission of students belonging to minority community fixed by the State Government. No such rigid formula for identifying a minority educational institution, it appears, can be imposed upon minorities under Article 30(1) of the Constitution. The emphatic point in T.M.A. Pai‟s case (supra) reasoning is that a minority educational institution is under an obligation to admit bulk of the students of minority group residing in the State in which the institution is located. A minority educational institution must, therefore, primarily cater to the requirements of that minority of the State in which the institution is located. If not, the very objective of the establishment of the educational institution would be defeated. In other words, the predominance of minority students hailing from the States in which the minority educational institution is established should be present. The management of such institutions cannot resort to the device of admitting bulk of the minority students of the adjoining State in which they are in majority under the fa ade of the constitutional protection given under Article 30(1) as it would be a fraud on the Constitution. It follows that s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State Government may fix a minimum intake of minority and non-minority students in a minority educational institution. At this juncture, we must make it clear that this Commission does not have power to fix a percentage governing admission of students of the minority group in a minority educational institution. This is the function of the State Government concerned. There is no complaint whatsoever against the petitioner institution to show or suggest that it had denied admission to any student of the Christian community for the purpose of accommodating a student of the non-minority community. In the absence of prescription of a workable and reasonable percentage governing admission of students of the Christian community in a minority educational institution by the State Government in the manner indicated above, we are unable to hold that the petitioner institution has lost its minority character. The matter may be looked from another angle. If any State Government has fixed 50% or more as the identifying criteria of minority students admitted to a minority institution for conferral of minority status. Fixation of such a percentage by the State Government obliges a minority e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... racticability of the said fixed formula we may further give an illustration. In a given academic year, say 2007-2008, an institution run by the Christian community may be able to secure 50% of admissions from its community. In that academic year, it would be a religious minority capable of exercising its right enshrined in Article 30(1). For the next academic year, 2008-2009, it may not be able to secure 50% admissions from its community and for that academic year it would lose the right guaranteed to it under Article 30(1). In the next academic year, 2009-2010, it may again be able to secure 50% admission from its community, its character as a minority educational institution shall be again restored. Would any educational institution established by the Christian community of Orissa in such a situation would be able to manage its affairs. The only answer appears to us is an emphatic no. The aforesaid fixed formula of percentage governing admission of students in a minority educational institution virtually involves an abject surrender of the right of establishment and management of educational institutions and the same is inconsistent with the Constitutional guarantee enshrined in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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