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IN THE HIGH COURT OF ALLAHABAD
O. P. GARG
ABU ZAID (MINOR) - Appellant
Versus
PRINCIPAL, MADRASA-TUL-ISLAH SARAIMIR AZAMGATH - Respondents
C. M. W. 14238 Of 1998
Decided On : 07/28/1998
EDUCATION - PRIVATE INSTITUTION - WRIT MAINTAINABILITY - RIGHT TO EDUCATION - FUNDAMENTAL RIGHT - PRIVATE INSTITUTION IMPARTING EDUCATION - PUBLIC DUTY - WRIT PETITION MAINTAINABLE - STUDENTS' RIGHT TO PURSUE STUDIES - CRIMINAL ACT UNRELATED TO INSTITUTION - NO BASIS FOR EXCLUSION - UNDERTAKING ON ADMISSION FORM - NO ESTOPPEL AGAINST LAW - WRIT PETITION ALLOWED.
Fact of the Case:
Petitioners, students of a private minority institution imparting education in Arabic language, were debarred from attending classes due to their involvement in a criminal case unrelated to the institution. The institution relied on an undertaking given by the petitioners or their guardians on the admission form, stating that they would not approach any authority or court to challenge any action taken by the head of the institution.
Finding of the Court:
The court held that the writ petition was maintainable as the institution, though private, was performing a public duty of imparting education, which is a fundamental right. The court further held that the petitioners' alleged criminal act, which had no connection with the institution, could not be the basis for excluding them from pursuing their studies. The undertaking given on the admission form did not operate as an estoppel against the petitioners' right to education.
Issues: 1. Whether a writ petition is maintainable against a private minority institution imparting education in Arabic language? 2. Whether the petitioners' right to pursue their studies can be curtailed due to their involvement in a criminal act unrelated to the institution? 3. Whether an undertaking given on the admission form, not to challenge any action taken by the head of the institution, bars the petitioners from seeking judicial review?
Ratio Decidendi: 1. Imparting education is a sovereign function of a welfare state, and any person or authority performing public duties is subject to Article 226 of the Constitution. 2. The right to education is a fundamental right, and private institutions catering to this need have an element of public interest, entitling their employees to parity of pay scales and remedies under Article 226. 3. The petitioners' alleged criminal act, which had no nexus with the institution, could not be a valid ground for excluding them from pursuing their studies. 4. An undertaking given on the admission form, not to challenge any action taken by the head of the institution, cannot operate as an estoppel against the petitioners' right to education.
Final Decision: The writ petition was allowed, and the respondents were commanded not to prevent the petitioners from pursuing their studies in their respective classes.
( 1 ) BY means of this writ petition under Article 226 of the Constitution of India, itis prayed that the respondents be commanded to permit the petitioners to pursue their studies in their respective classes as per their entitlement in the same manner as in the case of other scholars.
( 2 ) COUNTER-AFFIDAVIT has been filed. Sri J. J. Munir states that he does not want to file any rejoinder affidavit and the case be taken up for hearing. Learned counsel for the parties are prepared to make their submissions right now.
( 3 ) HEARD Sri J. J. Munir, learned counsel for the petitioners and Sri Faheem Ahmad for the respondents.
( 4 ) MADARASA-TUL-ISLAH Saraimir, Azamgarh is an institution imparting education to scholars in Arabic language. It is duly recognised by the State Government though it is not aided. The institution is managed by a society registered under the societies Registration Act, 1860 and has its own approved bye-laws and scheme of administration.
( 5 ) ABU Zaid, minor is a student of Darza Awwal, which corresponds to Class VI and the Second petitioner Abu Zar is a student of Darza Panzum-5, which corresponds to Class XI in regular system of education. Both the petitioners, who are sons of Mohd. Ahmad are said to be good scholars and have attained good ranking in their previous classes. As a matter of fact, Abu Zar, the second petitioner, obtained second position in order of merit in the final year examination of Darza Panzum-5.
( 6 ) BOTH the petitioners have been debarred from taking up their studies in the aforesaid institution on account of their involvement in a criminal case. The background in which the two petitioners came to be arraigned in the criminal case is that a thief had entered into the house of the petitioners who was apprehended on the spot. He was given a moderate beating and he was thereafter handed over to the local Police which was called. The thief was medically examined at the Primary Health Centre and thereafter taken to the Police Station obviously for interrogation. It appears that the Police tortured the thief to extract information about the commission of crime during the course of investigation and on account of adoption of third degree method the thief received a number of injuries and ultimately died. It is alleged that the local Police, in order to save their skin, lodged a pre-clocked F. I. R. against the petitioners. A case crime No. 2 of 1998 under Sections 323/504/506/342/304, IPC came to be registered at P. S. Khetasarai, district Jaunpur against the petitioners. The petitioners were taken into custody and were ultimately enlarged on bail. According to the petitioners, they had no connection with the aforesaid unfortunate incident which had taken place at their residence and that they came to be involved in a crime case on account of local Police having smarted in the matter to foist a false charge against them. It is alleged that in any case, the incident in question had nothing to do with the institution in which the petitioners were studying. The respondents have illegally without affording any opportunity of hearing or of showing cause, prevented them from attending their classes though no specific orders have been passed. The petitioners have, of necessity, to file the present writ petition as the respondents are bent upon to deprive the petitioners from their lawful right to continue their studies in the respondent-institution. The entreaties made by the petitioners have fallen flat on the deaf ears of the respondents.
( 7 ) IN the counter-affidavit, which has been filed by Mohd. Shoyab Islahi Quasmi, Principal of the institution in question, it has been asserted that the present petition is not maintainable as the Madarasa in question is Arabic institution and has been established and administered by minority community in accordance with the provisions of Article 30 of the Constitution and since it is purely a private institution and is not receiving any aid
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