# Dr. Madan Kumar Bansal v. Union of India and Ors

- **Citation:** (2013) 2 ILRA 1093
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-07-04
- **Case number:** Civil Misc. Writ Petition No.34881 of 2011
- **Bench:** Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-madan-kumar-bansal-v-union-of-india-and-ors-42561
- **Pages:** 6

## Headnote

Constitution of India, Art. 30- Minority
institution-declaration thereof-commission
without
considering
the
fact-whether
institution run and managed by minority
community-controlled by that particular
community-declaration
as
minority
institution-unsustainable-quashed.

Held: Para-21
In light of the said judgement of the
Division Bench and in view of Section 12 (2)
of
Act,
2004
which
provides
that
Commission for the purposes of discharging
its functions under this Act, shall have all
the powers of a civil court trying a suit. It
logically follows that Commission while
declaring the status of a institution to be a
minority institution shall not only consider
the material evidence relevant for the
purpose, but shall also pass a reasoned
order with reference to the evidence so
produced for coming to the conclusions that
institution
in
question
had
been
(a)
established by a minority community and
(b) had been run and managed by a
minority
community
since
its
establishment.

Case Law discussed:
AIR 1968 SC 662; (2002) 8 SCC 481; AIR 1992
SC 1630; Special Appeal No. 903 of 2006

## Text

2 All] Dr. Madan Kumar Bansal Vs. Union of India and Ors.

1093
SCC 728, the Court reiterated that it is
well settled principal of law that even if a
mistake is committed in an earlier case,
the same cannot be allowed to be
perpetuated.

7. It is well settled that if a wrong has
been committed by the respondents in
respect to some other persons, that will not
provide a cause of action to claim parity on
the ground of equal treatment since the
equality in law under Article 14 is applicable
for claiming parity in respect to legal and
authorized acts. Two wrongs will not make
one right. The Apex Court in the case of
State of Bihar and others Vs. Kameshwar
Prasad Singh and another, AIR 2000 SC
2306; Union of India and another Vs.
International Trading Co. and another,
AIR 2003 SC 3983; Lalit Mohan Pandey
Vs. Pooran Singh and others, AIR 2004
SC 2303; M/s Anand Buttons Ltd. etc. Vs.
State of Haryana and others, AIR 2005
SC 5565; and Kastha Niwarak G. S. S.
Maryadit, Indore Vs. President, Indore
Development Authority, AIR 2006 SC
1142 has held that Article 14 has no
application in such cases.

8. In view of the aforesaid, I find no
merit in the writ petition.

9. Dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.07.2013

BEFORE
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No.34881 of 2011

Dr. Madan Kumar Bansal
 ...Petitioner
Versus
Union of India and Ors. ...Respondents
Counsel for the Petitioner:
Sri R.N. Rai, Sri Adarsh Kumar

Counsel for the Respondents:
C.S.C., A.S.G.I., Sri J.P. Singh, Miss
Seema Singh

Constitution of India, Art. 30- Minority
institution-declaration thereof-commission
without
considering
the
fact-whether
institution run and managed by minority
community-controlled by that particular
community-declaration
as
minority
institution-unsustainable-quashed.

Held: Para-21
In light of the said judgement of the
Division Bench and in view of Section 12 (2)
of
Act,
2004
which
provides
that
Commission for the purposes of discharging
its functions under this Act, shall have all
the powers of a civil court trying a suit. It
logically follows that Commission while
declaring the status of a institution to be a
minority institution shall not only consider
the material evidence relevant for the
purpose, but shall also pass a reasoned
order with reference to the evidence so
produced for coming to the conclusions that
institution
in
question
had
been
(a)
established by a minority community and
(b) had been run and managed by a
minority
community
since
its
establishment.

Case Law discussed:
AIR 1968 SC 662; (2002) 8 SCC 481; AIR 1992
SC 1630; Special Appeal No. 903 of 2006

(Delivered by Hon'ble Arun Tandon, J.)

1. Heard Sri B.N. Rai, learned
counsel for the petitioner, Sri J.P. Singh,
learned
counsel
for
the
contesting
respondent no. 6 and learned Standing
Counsel for the State-respondents.

2. Petitioner, before this Court, is the
life member of the the institution
established in the name and style of "Ram
1094 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

Ratan
Intermediate
College,
Billari,
District Moradabad".

3. Petitioner seeks quashing of the
notification dated 4th May, 2009 issued
by the Secretary, National Commission
for Minority Educational Institution, New
Delhi as well as the letter dated 5th May,
2009 issued by the same authority and the
consequential order dated 16th March,
2011 issued by the District Inspector of
Schools, Moradabad. Under the aforesaid
documents, the petitioner's institution has
been declared to be a minority institution
covered by Article 30 of the Constitution
of India. The District Inspector of Schools
has further directed that since the status
certificate has been issued by the National
Commission for Minority Educational
Institution, which is a statutory body, the
same has to be honoured. The institution
must therefore, act accordingly.

4. On behalf of the petitioner it is
contended that for any institution being
treated to be minority institution covered
by Article 30 of the Constitution of India,
it has to satisfy, (a) that the institution was
established by a minority community and
(b) said institution is run and managed by
the minority community.

5. According to the petitioner, both
the conditions must co-exist. Even if one
of them is found to be lacking, institution
cannot be treated to be a minority
institution within the meaning of Article
30 of the Constitution of India.

6. Learned counsel for the petitioner
with reference to paragraphs 5 to 11 of the
present writ petition submits that the
institution in qeustion established by the
general public of Billari belonging to
various communities and castes. It is
further his case that in the memorandum
of association of the society, which now
manages the institution, there is no
mention of any minority institution being
established for protecting any of the rights
of
the
minority
community,
either
linguistic or religious. It is further his case
that all through upto 1992-1993, the
Committee
of
Management
of
the
institution
comprised
of
persons
belonging to the various category and
castes. Petitioner, therefore, submits that
the institution was neither established by a
minority nor was exclusively managed by
any such minority community. He then
submits that the National Commission for
Minority Educational Institutions was
constituted under an Act of Parliament
being Act No. 2 of 2005. This Act, as as
amended by Act No. 18 of 2006,
envisages that the minority colleges were
to be established with the permission of
the Commission and these colleges were
to
be
granted
recognition
by
the
Universities as defined under Section 2(f)
of University Grants Commission Act,
1956 including the deemed Universities.
It is his case that very purpose of Act,
2004 is limited to the establishment of
new institution with the permission of the
Minority
Commission
(Reference
Section-10 of Act, 2004). The power of
the Commission to decide the status of
institution and the disputes arising therefrom as envisaged by Sections 11 and 12
has to be treated with reference to such
colleges. Even otherwise, the certificate,
which has been issued by the Commission
itself is wholly illegal, inasmuch as the
institution in question is not a minority
institution. The consequential order issued
by the District Inspector of Schools
directing the institution in question to be
run as a minority institution is also bad.
He lastly contends that the minimum
2 All] Dr. Madan Kumar Bansal Vs. Union of India and Ors.

1095
expected from the Commission was to
have exercised powers as a Civil Court
and to have determined after recording
evidence as to whether requirement of
Article 30 of the Constitution of India as
explained in various judgements of the
Apex Court stood satisfied qua the
institution being a minority institution or
not. A minority status certificate cannot
be issued without relevant facts with
regard to the establishment of the
institution by a minority community and
its management by such community
having been established. For the purpose,
he has referred to Section 11 (f) of Act,
2004 as introduced by amending Act No.
18 of 2006, which provides that the
Commission shall have all powers of
Civil Court trying a civil suit particularly
in respect of matters as elaborated thereunder.

7. Sri J.P. Singh, learned counsel for
respondent no.6 in compliance to the
order of the Court dated 21st February,
2013 has filed an affidavit bringing on
record all the relevant documents, which
according to him, lead to the conclusion
that the institution was established by a
minority community and it has all along
been run and managed by the same
community. It is his case that the
institution made an application before the
National Commission for being declared a
minority institution. On the application,
notices were issued and after relevant
records were produced by respondent
no.5, the National Commission was
satisfied that the institution was a
minority institution and it has accordingly
issued the certificate. He further submits
that against the order of the Commission,
petitioner has the remedy under Section
12-C of Act, 2004 which confers a power
upon the Commission to cancel the
minority
status
conferred
on
an
institution. He also submits that from the
documents enclosed at page 17 of the
Supplementary Counter Affidavit-1, it is
established
that
the
money
for
establishing the institution was paid by
persons belonging to the Jain Community
only and thereafter, they were the persons
responsible for managing the institution.
He therefore, submits that both the
conditions, namely, establishment of the
institution by Jain community and its
management by the members of the same
community was a fact comply. He
explains that if in between for some small
period, members of other communities
were included in the management of the
institution, it will not mean that the
minority status has been lost. He clarifies
that in view of Section 11 (f) of Act,
2004, the Commission has the right to
declare the status of the educational
institution as minority.

8. He lastly submits that in Section 2
(g) of Act, 2004, use of the word "Or"
after establishment is purposive. Under
the said provision, if the institution has
been established or if it is being run by a
minority community, it would become
entitled to be treated as a minority
institution. Both the requirements are not
required to be satisfied simultaneously.

9. I have considered the submissions
made by the learned counsel for the
parties and have examined the records of
the present writ petition.

10. So far as the law in respect of
minority institutions covered by Article
30 of the Constitution of India is
concerned, suffice is to refer to the
judgement of the Apex Court in the case
of Azeez Basha vs. Union of India
1096 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

reported in AIR 1968 SC 662. The Apex
Court has laid down that for an institution
to be covered within the meaning of
Article 30 of the Constitution of India, it
must be proved that (a) institution was
brought into existence (established) by a
minority community and (b) institution
has all along been run and managed by
the minority community, which had
established the same. Relevant portion of
the Judgement reads as follows:

"19. ............................The Article in
our opinion clearly shows that the
minority will have the right to administer
educational institutions of their choice
provided they have established them, but
not otherwise. The Article cannot be read
to mean that even if the educational
institution
has
been
established
by
somebody else, any religious minority
would have the right to administer it
because, for some reason or other, it
might have been administering it before
the Constitution came into force. The
words "establish and administer" in the
Article must be read conjunctively and so
read it gives the right to the minority to
administer
an
education
institution
provided it has been established by it.
.............."

11. The Apex Court has held that
both the above conditions must be
satisfied simultaneously. If one of the
conditions is found to be wanting, then
the institution will not be treated to be a
minority institution within the meaning of
Article 30 of the Constitution of India.

12. This Court may therefore, deal
with the last contention raised on behalf
of respondent no.6, first namely that the
use of word "OR" in Section 2 (g) of Act,
2004 has diluted the law laid down by the
Apex Court for the purposes of treating an
institution as minority institution within
the meaning of Article 30 of the
Constitution of India and now satisfaction
of only one of the conditions, namely,
establishment or management by a
minority community would suffice.

13. Contention raised on behalf of
the respondent no.6 has only been raised
to be rejected. Article 30 is a part of PartIII of the Constitution of India. Scope of
Article 30 of the Constitution of India
cannot be diluted by any Act of
Parliament. Article 30 has been explained
in detail by the Apex Court in the case of
T.M.A. Pai Foundation & others vs.
State of Karnatka & others, reported in
(2002) 8 SCC 481. The use of word "Or"
in Section 2 (g) of Act, 2004 has to be
read in consonance with the law laid
down by the Apex Court and would,
therefore, necessarily mean "AND". The
contention raised on behalf of the
petitioner has to be rejected as being
without any substance.

14. It has been specifically laid
down in paragraph-19 by the Apex Court
in the case of Azeez Bhasha (Supra) that
if an institution has not been established
by any minority community, then it
cannot set up a right under Article 30 of
the Constitution of India only because it is
started managing the same at some later
point of time.

15. From the document enclosed as
Annexure-1 to the counter affidavit filed
by
the
respondent-Committee
of
Management, which is said to be
proceedings book (page-17 of the counter
affidavit) it is apparently clear that in the
said meeting, all the prominent residents
of Billari and representatives of all
2 All] Dr. Madan Kumar Bansal Vs. Union of India and Ors.

1097
communities
were
present.
It
was
unanimously resolved that private school
(English) run by the public of Billari be
taken over by the association and steps be
immediately taken to raise it to the High
School standard and get it affiliated and
recognised
by
the
U.P.
Education
Department.

16. It is no doubt true that in the said
meeting, contributions were made by the
members of Jains family. However, the
proceedings are in themselves sufficient
to establish that the institution had been
established by the public of Billari
belonging to the various communities. It
is this established institution was sought
to be taken over by the association, and a
decision was taken to get it recognised by
the U.P. Education Board after upgradation upto High School. From a
simple reading of the proceedings so
enclosed, it is apparent that there was
decision to convert the private school
(English) into any minority institution
either for the purposes of protecting any
minority linguistic rights or religious
rights. Even the Managing Committee
formed
under
the
said
resolution
comprised
of
persons
of
various
communities. From the said document
filed by the respondent-Committee of
Management itself, at least one thing
stands proved beyond doubt that the
institution in question was not established
by any minority community/Jains. The
institution in question was established and
was being run and managed by the public
of Bilari, members whereof belonging to
the various communities upto to date of
passing of the resolutions enclosed as
Annexure-1 to the counter affidavit.

17. The Apex Court in the case of
Azeez Bhasha (Supra) as already noticed
above, has specifically laid down that if
an institution has not been established by
the
minority
community,
then
subsequently only on the plea that it has
started managing the said institution, it
cannot
claim
a
fundamental
right
guaranteed under Article 30 of the
Constitution of India and such institution
cannot be treated to be a minority
institution.

18. A constitution Bench of the
Apex Court in the case of St. Stephen's
College etc. etc. vs. The University of
Delhi, etc. etc., reported in AIR 1992 SC
1630, has specifically held in paragraph29 as follows:

"29. ............ It should be borne in
mind that the words "establish" and
"administer" used in Article 30 (1) are to
be read conjunctively. The right claimed
by a minority community to administer
the educational institution depends upon
the proof of establishment of the
institution. The proof of establishment of
the institution, is thus a condition
precedent for claiming the right to
administer the institution. ..................."

19. In view of the aforesaid, the
Minority Commission appears to be
unjustified in declaring the institution in
question as a minority institution. It
appears that the law laid down by the
Apex Court in the case of Azeez Bhasha
(Supra) and in the case of St. Stephen's
College (Supra) has completely been
ignored.

20. Another aspect of the matter,
which needs mentions is that under
Section 11 (f) of the Commission Act,
2004, a power has been conferred upon
the Minority Commission to examine the
1098 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

issue pertaining to the status of an
institution
as
a
minority
education
institution, but it has to be kept in mind
that a Division Bench of this Court in
Special Appeal No. 903 of 2006
(Committee
of
Management
Inter
College Dharaon, District Chandauli
vs. State of U.P. And others) decided on
24th August, 2006, has held that it is only
for a competent Court of law to declare an
institution to be minority institution and it
is not within the competence of the State
Government to issue any such declaration.
The relevant portion of the order of the
Division Bench reads as follows:

"..........It is not for any State
Government to grant any minority status
to any institution; not even the Parliament
or State Legislature can do it. A minority
institution has to grow by itself. Only a
competent Court of law can declare such
status."

21. In light of the said judgement of
the Division Bench and in view of Section
12 (2) of Act, 2004 which provides that
Commission
for
the
purposes
of
discharging its functions under this Act,
shall have all the powers of a civil court
trying a suit. It logically follows that
Commission while declaring the status of
a institution to be a minority institution
shall not only consider the material
evidence relevant for the purpose, but
shall also pass a reasoned order with
reference to the evidence so produced for
coming to the conclusions that institution
in question had been (a) established by a
minority community and (b) had been run
and managed by a minority community
since its establishment.

22. In absence of reasons having
been recorded in the order passed by the
Commission declaring minority status
with reference to the evidence on record,
the declaration issued appears to be
unjustified.

23. The notification dated 4th May,
2009 issued by the Secretary, National
Commission for Minority Educational
Institution, New Delhi as well as the letter
dated 5th May, 2009 issued by the same
authority and the consequential order
dated 16th March, 2011 issued by the
District Inspector of Schools, Moradabad
cannot be legally sustained and are hereby
quashed.

24. The present writ petition is
allowed.
---------
ORIGINAL JURISDICTION
CIVIL- SIDE
DATED: ALLAHABAD 15.07.2013

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No.35695 of 2013

Mahendra Prakash Srivastava..Petitioner
Versus
D.J., Allahabad and Anr. ..Respondents

Counsel for the Petitioner:
Sri Satish Dwivedi

Counsel for the Respondents:
C.S.C., Sri Yashwant Verma

Constitution of India, Art. 226- Gratuitywithheld-on ground of pendency of
disciplinary
action-against
petitionermuch
after
retirement-disciplinary
proceeding
initiated
without
any
authority of law-direction issued to
release amount of gratuity within one
month-interest payable-after one month
from actual date of retirement @ 10%
per
annum.