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TMI Blog2018 (4) TMI 1597X X X X Extracts X X X X X X X X Extracts X X X X ..... o deprivation or violation of rights of minorities to establish and administer educational institutions of their choice and any disputes relating to affiliation to scheduled universities under sub-clause (b); and a residuary clause to do all such other acts as may be necessary to the attainment of the objects of the NCMEI under sub-clause (c). A sea change came about by the Amendment Act of 2006. By this amendment, a person who desires to establish a minority educational institution is to apply to the competent authority for a no objection certificate for the said purpose under Section 10. Concomitantly, under Section 11, the functions and powers of the NCMEI were expanded beyond the original sub-clauses (a) to (c) referred to hereinabove, to include, under sub-clause (f), decisions as to all questions relating to the status of any institution as a minority educational institution and declaration of its status as such - The same Amendment Act of 2006 also conferred powers of appeal against orders of the competent authority to the NCMEI under Section 12A as well as over authorities that were established by the Central or State Government, who rejected applications for the grant of m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also for all other persons, irrespective of religion, race, caste, community or social status. 3. The society, in a letter dated 16.12.1997 addressed to the Inspector of Colleges, North Bengal University, made it clear that it did not seek minority status or special concessions it wished to establish a college on secular lines. On 10.1.1998, the Inspector of Colleges, North Bengal University, submitted his inspection report, in which he mentioned that originally the society did desire to have minority status for the proposed college. However, they subsequently changed their mind. As a result, the Deputy Secretary, Higher Education Department, Government of West Bengal, by its letter dated 21.7.1998, approved the proposal for the establishment of Cluny Women s College, on the footing that it would be a non-minority secular institution. On this basis, the first governing body of the college was constituted in accordance with Statute 1 of the Statutes relating to the Governing Bodies of Colleges of North Bengal University. On 13.9.2004, the University granted permanent affiliation to Cluny Women s College from the academic year 2003-2004. 4. Following yet another change of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd/or rescind and/or withdraw the purported letter dated 20th February, 2010 issued by the respondent no.9. (e) A writ of and/or in the nature of mandamus do issue directing the respondents, particularly the respondent no.9, to allow the petitioner to operate the bank account being S.B. Account No. 3936 0201 000 3495 maintained with Union Bank of India, Kalimpong Branch, District-Darjeeling as per the Resolution of the petitioner adopted on 29 th January, 2010. (f) A writ of and/or in the nature of certiorari do issue commanding the respondents to transmit the entire records of the case to this Hon ble Court forming the basis of the purported declaration being F. No. 506 of 2007 dated 25th October, 2007 issued by the respondent no.3 and the purported letter dated 20 th February, 2010 issued by the respondent no.9 and on being so certified quash the same so that conscionable justice may be rendered. 7. A learned single Judge disposed of both the writ petitions holding that the NCMEI had no original jurisdiction to declare the minority status of Cluny Women s College, as a result of which the order dated 23.10.2007 and the consequent certificate issued thereupon were decl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommission for Minorities Act, 1992 and also referred to various provisions of the 2004 Act in some detail. He pointed out, however, that the 2004 Act was amended in 2006 and then in 2010, leading to the position that Section 10 would only deal with the grant of a certificate to a person who desires to establish a minority educational institution for the first time. Otherwise, the functions of the NCMEI under Section 11(f) would be wide enough to include the power to declare the status of minority educational institutions, which were established before the commencement of the 2004 Act. According to the learned senior counsel, it was clear that Cluny Women s College had been set up as a secular college and it was only in 2007 that a volte-face was taken by the society to get it declared as a minority educational institution. As none of the orders passed by the NCMEI have looked in detail into the aspect of whether such a college can be declared to be a minority educational institution, after it has opted to be a secular institution, this is a case which should be remanded to the NCMEI to decide. 11. We have heard learned counsel appearing for all the parties. 12. The 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant or reject the application, as the case may be: Provided that where an application is rejected, the Competent authority shall communicate the same to the applicant. (3) Where within a period of ninety days from the receipt of the application under sub-section (1) for the grant of no objection certificate- (a) the Competent authority does not grant such certificate; or (b) where an application has been rejected and the same has not been communicated to the person who has applied for the grant of such certificate, it shall be deemed that the Competent authority has granted a no objection certificate to the applicant. (4) The applicant shall, on the grant of a no-objection certificate or where the Competent authority has deemed to have granted the no objection certificate, be entitled to commence and proceed with the establishment of a Minority Educational Institution in accordance with the rules and regulations, as the case may be, laid down by or under any law for the time being in force. Explanation.- For the purpose of this section,- (a) applicant means of person who makes an application under sub-section (1) for establishment of a Minority Educational Institution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing in force, the Commission shall- (a) advise the Central Government or any State Government on any question relating to the education of minorities that may be referred to it; (b) look into specific complaints regarding deprivation or violation of rights of minorities to establish and administer educational institutions of their choice and any dispute relating affiliation to a Scheduled University and report its findings to the Central Government for its implementation; and (c) to do such other acts and things as may be necessary, incidental or conducive to the attainment of all or any of the objects of the Commission. Section 11 (as amended in 2006) 11. Functions of Commission.- Notwithstanding anything contained in any other law for the time being in force, the Commission shall- (a) advise the Central Government or any State Government on any question relating to the education of minorities that may be referred to it; (b) enquire, suo motu, or on a petition presented to it by any Minority Educational Institution, or any person on its behalf into complaints regarding deprivation or violation of rights of minorities to establish and administer educational in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Commission shall be deemed to be a civil court for the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).]. 12A. Appeal against orders of the Competent authority.- (1) Any person aggrieved by the order of refusal to grant no objection certificate under sub-section (2) of section 10 by the Competent authority for establishing a Minority Educational Institution, may prefer an appeal against such order to the Commission. (2) An appeal under sub-section (I) shall be filed within thirty days from the date of the order referred to in sub-section (I) communicated to the applicant: Provided that the Commission may entertain an appeal after the expiry of the said period of thirty days, if it is satisfied that there was sufficient cause for not filing it within that period. (3) An appeal to the Commission shall be made in such form as may be prescribed and shall be accompanied by a copy of the order against which the appeal has been filed. (4) The Commission, after hearing the parties, shall pass an order as soon as may be practicable, and give such directions as may be necessary or expedient to give effect to its orders or to pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to obtain minority status has subsequently been amended in such a way that it no longer reflects the purpose or character of a Minority Educational Institution; (b) if, on verification of the records during the inspection or investigation, it is found that the Minority Educational Institution has failed to admit students belonging to the minority community in the institution as per rules and prescribed percentage governing admissions during any academic year. xxx xxx xxx 12F. Bar of jurisdiction.- No court (except the Supreme Court and a High Court exercising jurisdiction under articles 226 and 227 of the Constitution) shall entertain any suit, application or other proceedings in respect of any order made under this Chapter. xxx xxx xxx 22. Act to have overriding effect.- 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. 13. The National Commission for Minority Educational Institutions Act, as it originally stood in 2004, by Section 10 only concerned itself with the recognition of minority educa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 11(f) is a very wide provision which empowers the NCMEI to decide all questions relating to the status of an institution as a minority educational institution and to declare its status as such. The expression all questions as well as the expression relating to , which are words of wide import, clothe the NCMEI with the power to decide any question that may arise, which may relate directly or indirectly, with respect to the status of an institution as a minority education institution. Looked at by itself, Section 11(f) would include the declaration of the status of an institution as a minority educational institution at all stages. Article 30 of the Constitution of India grants a fundamental right to all minorities, whether based on religion or language, to establish and administer educational institutions of their choice. The power under Section 11(f), read by itself, would clothe the NCMEI with the power to decide any question that may arise with regard to the right to establish and/or administer educational institutions by a minority. The power does not stop there. It also includes the power to declare such institution as a minority educational institution, which is establ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to decide all questions relating to the status of any institution as minority educational institution and declare its status as such. More over under Section 12B, where an authority established by the Central Government or any State Government has rejected the application for grant of minority status to any educational institution, the aggrieved person may appeal against such order of the authority to the Commission. The provisions contained in Section 11(f) of 2004 Act and Section 12B of the Amendment Act are, thus, wholesome provisions for deciding all questions relating to the status of any institution as minority educational institution and for declaration of such status. 20. In Corporate Educational Agency v. James Mathew, (2017) 15 SCC 595 (at 600-601), a Division Bench of this Court dealt with a judgment of the High Court, which in turn dealt with the appointment of teachers in minority educational institutions. This Court, after noticing that the appellant was already an existing minority educational institution, went on to hold: 9. Chapter III deals with rights of minority educational institutions. Under Section 10, whosoever desires to establish a minority ed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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