( 1 ) IT does not appear from the records that the writ petitions were contested or supported by the School at the trial stage. The learned Counsel appearing on behalf of the Headmistress of the School submitted that the school had no knowledge of institution of the writ petitions and, accordingly, his client had no occasion to appear at the writ stage. We need not go to investigate whether the School had been served or had not been served.

( 2 ) IN Paragraph 6 of the writ petitions it was the contention of the writ petitioners that Khalsa Community a Punjabi religious minority community, solely with the funds contributed by the members of that religious minority, community established the School for the purpose of promoting their culture and religious tenets and imparting the same to the pupils belonging to their community. It was then added that the institution has been granted recognition and the Managing Committee is enjoying Special Constitution as contemplated in Rule 8 (3) of the Rules for Management of Recognised Non-Govemment institutions (Aided and Unaided) 1969 (hereinafter referred to as the said Rules ). The State Government filed affidavits-in-opposition to the writ petitions but did not deny the above assertion of the writ petitions. In the writ petitions, the petitioners contended that since they have been appointed by the School and since they have been rendering service for a long time, their appointments should be regularised and the State Government should pay their salaries in the form of grant-in-aid to the School. There is no dispute that the School is not only a recognised institution but is also an aided institution. A recognised aided institution in terms of Rule 28 of the said rules can appoint a teacher in a permanent vacancy provided such teacher has been recommended for such appointment by the Sehool Service commission. It cannot appoint anyone else. Admittedly, there is no recommendation in favour of any of the writ petitioners on the basis of the pleadings as above. It was impressed upon the learned Judge and His Lordship accepted that the School is a minority community institution. The question is on the basis of such plea, as above, the Court could come to a conclusion that the institution was a minority institution.

( 3 ) ARTICLE 30 of the Constitution of India grants a fundamental right to all minorities, whether based on religion or language, the right to establish and administer educational institutions of their choice.

( 4 ) ARTICLE 30 (1) of the Constitution debars the State from making any law which takes away or abridges such rights of minorities. In terms of Rule 6 of the said Rules, a recognised Managing Committee must have composition as has been prescribed thereunder. An exception to that is permissible under sub-rule 3 of Rule 8 of the said Rules. However- while making such exception, the authority concerned is bound to bring in the managing Committee four guardians of the institution, three teaching and one non-teaching staff and one person to be nominate'd by the Directors members of such Managing Committee. The fundamental right enshrined under Article 30 does not stop after establishment of an institution, it continues while the institution is to be administered. It is the minority community who is to administer the School. It is not necessary that the Administrator must be a member of the minority community. But what is necessary is the choice must be that of absolute choice vested absolutely in the community. It alone should enjoy that fundamental right. The moment there is an imposition, the choice no longer remains a choice and the fundamental right is thus abridged. In such view of the matter, a Constitution permitted under sub-rule III of Rule 8 of the said Rules cannot be in relation to minority community institutions. That has been amply cleared by framing Rule 33 in the Management Rules which specifically deals with institutions entitled to protection of Articles 2

Click Here to Read the rest of this document