IMPORTANT POINTS
NCMEI can issue status certificate to existing minority institution.
Fundamental right under Article 30 cannot be waived.

Headnote:(a) National Commission for Minority Education Institutions Act, 2004 – Section 10(1) and Section 11(f) – NCMEI can exercise powers u/s 11(f) notwithstanding anything contained in any other law for the time being in force – Competent authority, on the other hand, can grant NOC u/s 10 only subject to provisions contained in any other law for the time being in force. (Para 15)
       (b) National Commission for Minority Education Institutions Act, 2004 – Section 11(f) –Wide provision – Empowering NCMEI to decide all questions relating to the status of an institution as a minority educational institution and to declare its status as such – Thus NCMEI empowered 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 – NCMEI can declare minority status of an institution at all stages – Article 30, Constitution of India – NCMEI also empowered to declare an institution as minority institution – As per section 11(f) read harmoniously with section 10, all applications for establishment of a minority educational institution must go only to the competent authority – At any stage post establishment, NCMEI would have the power to decide the question and declare such institution’s minority status – Thus NCMEI can issue status certificate to existing minority institution. (Para 16, 17, 21)
       (2017) 15 SCC 595 – Relied upon
       Governing Body OF P.A.E.M. College v. State of Jharkhand – Referred
       (c) Constitution of India – Article 30 – Institution established as secular institution – Later sought to change status to minority institution and obtaining such certificate from NCMEI – University also accepting the certificate of NCMEI – New governing body with minority status constituted – Old governing body has no status – Fundamental right under Article 30 cannot be waived. (Para 22)
       Facts of the case:
       The Cluny Women’s College was established as a secular institution foregoing claim for minority status. Subsequently the society requested for minority status which was granted by NCMEI and a certificate was issued. Application of the Registrar, University of North Bengal for cancellation of the certificate was dismissed by NCMEI.
       Society filed a writ petition. The first governing body also filed a writ petition.
       The High Court held 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 declared as invalid.
       Finding of the Court:
       NCMEI can issue status certificate to existing minority institution.
       Result: Appeals disposed of.

JUDGMENT

R.F. Nariman, J.

1. Leave granted.

2. In order to decide the present batch of appeals, for the sake of convenience, the facts from the civil appeal arising out of Special Leave Petition (Civil) No.35786 of 2016 have been taken. The Sisters of St. Joseph of Cluny is a society registered under the West Bengal Societies Registration Act, 1961, being founded on 26.3.1973. Clause 3(b) of the Memorandum of Association of the petitioner-society states:

“To acquire, take over, rent, provide, establish, aid, maintain, administer and/or run colleges, schools, institutions, hostels, houses, associations, libraries, reading rooms, or any other activity with education for its purpose for all persons, primarily for Catholics but 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 heart, the society issued a letter to the Chairman, National Commission for Minority Educational Institutions (hereinafter referred to as the NCMEI), dated 27.6.2007, seeking the issuance of a status certificate of a minority educational institution for Cluny Women’s College. The NCMEI passed an ex-parte order declaring the said women’s college as a minority educational institution on 23.10.2007. Pursuant to this order, on 25.10.2007, the NCMEI issued a minority status certificate. On 5.9.2008, the Registrar, University of North Bengal, filed an application for cancellation of the said certificate. This was dismissed by the NCMEI on 5.11.2009.

5. These events led to the society filing a writ petition, being W. P. No. 4406 of 2010, praying:

“A. A declaration that statute 1 of the statutes relating to governing bodies of colleges of University of North Bengal is ultra vires and unconstitutional;
B. A writ of mandamus or any other writ, direction or order restraining the 3rd respondent from exercising the functions of the governing body of Cluny Women’s College and to restrain them from interfering with the functions of the governing body of Cluny Women’s College constituted by the petitioner society.”

6. Likewise, the Governing Body, Cluny Women’s College (respondent No.3 herein), which was the governing body set up under the statute of the University, also filed a writ petition, being W. P. No. 5002(W) of 2010, in which it prayed for:

“(a) A writ of and/or in the nature of mandamus do issue directing the respondent authorities to forthwith cancel and/or rescind and/or withdraw the purported declaration being F. No. 506 of 2007 dated 25th October, 2007 issued by the respondent no.3.
(b) A writ of and/or in the nature of mandamus do issue directing the respondents, particularly the respondent nos. 4, 5 and 6, to forbear from acting and/or further acting and/or taking any steps and/or claiming any right on the basis of the purported declaration being F. No. 506 of 2007 dated 25th October, 2007 issued by the respondent no.3 in any manner whatso

Click Here to Read the rest of this document

2018 Supreme(SC) 361

IMPORTANT POINTSNCMEI can issue status certificate to existing minority institution. Fundamental right under Article 30 cannot be waived.

Cases Referred (1)

IMPORTANT POINTS
NCMEI can issue status certificate to existing minority institution.
Fundamental right under Article 30 cannot be waived.