ASN 1 PIL-34.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION PUBLIC INTEREST LITIGATION NO.34 OF 2011 Shaikh Rahim Bashir. ...Petitioner. Vs. The State of Maharashtra and ors. ...Respondents. Mr. S.G.Kudle for the Petitioner. Ms. Anjali Helekar, A.G.P. with D.A.Nalawade, G.P. for Respondent Nos. 1 and 2. Mrs. Geeta Joglekar for Respondent No.3. Mr. Manoj Sanklecha i/by Sagar Kasar for Respondent Nos. 4 and 5. CORAM : MOHIT S. SHAH, C. J. AND SMT. ROSHAN DALVI, J. DATE : 12 October 2011 ORAL ORDER : (Per Chief Justice) In this petition under Article 226 of the Constitution, the petitioner has prayed for a direction that the respondent Nos. 4 and 5 running primary school be directed not to admit Telugu speaking students beyond their 50% quota. The petitioner has prayed for direction to respondent No.5 Management of the Primary School to strictly follow 50% quota as specified by the Government resolution from time to time. 2 The petitioner has relied on Government resolution dated 4 July 2008 in support of the contention that aided minority education institution shall admit only 50% students of the sanctioned strength from ASN 2 PIL-34.sxw out of the concerned minority and the remaining 50% students should be filled in from non minority students. Respondent Nos. 4 and 5 have filed affidavit in reply and inter alia stated as under: “3 I further say that the Respondent Society is formed and is managed/governed by different classes of people, including Traders, Government officials, Industrialists and such other classes of persons, who all belong to the State of Andhra Pradesh and have been living in the City of Mumbai and its agglomerated areas for the last several decades. 4 I say that since beginning, the Respondents are catering to the educational needs of children of Telugu origin and in the initial stages the medium of instruction was Telugu. However subsequently the respondents have been granted permission to grant the education with the English as the medium of instruction. However, Telugu language continued to be taught in the school as one of the subjects. Subsequently, the Deputy Director Education, under Letter No.DDE/SEC/59/445-46 dated 20.9. 1984 granted recognition as a linguistic minority institution, to the respondents. The said status of linguistic minority institution has once again been recognized by the Government of Maharashtra by its letter dated 19.4.2011. This in terms of the G.R.No. Ashaisam-2008/Pra.Kra 133/2008/Ka-1 dated 4th July 2008 issued by the Government of Maharashtra.” ASN 3 PIL-34.sxw 3 It is further submitted that as far as primary schools are concerned, the Government Resolution dated 4th July 2011 has not prescribed any specific percentage or quota for minority and non minority students. In the matter of non minority quota, the Government Resolution dated 4 July 2011 clause (b) of Terms and Conditions of Recognition provides as under:- “(b) in the case of aided institutions (except aided minority language institutions having the medium of education in the recognized minority language) shall admit all eligible minority students who have applied for admission, within the time limit prescribed, based on merit by a fair and transparent admission process and no application of any eligible minority student shall be rejected by the institution. They shall also admit a reasonable number of non minority students based on the local needs.” 4 Only in case of Minority Educational Institution running Higher, Technical and Professional Educational, it is provided that 50% of the sanctioned strength should be filled in from the institution. The manner of granting admission is also specified for the Higher, Technical and Professional Educational courses run by the minority institutions. It is thus clear that for unaided institutions, there is no specified percentage of seats for minority students and non minority students. The learned counsel for the respondent Nos. 4 and 5 has invited our attention to the following principle laid down by the Apex Court in the case of Ashok Kumar Thakur Vs. Union of India and others (2008) 6 SCC 1. ASN 4 PIL-34.sxw “610. Given the inherent tension between Articles 29(2) and 30(1), I find that the overriding constitutional goal of realizing a castless/classless society should serve as a tie breaker. We will take a step in the wrong direction if we subject minority institutions (even those that are aided) to reservation. 611. Minority aided institutions were subject to a limited form of reservation. In order to preserve the minority character of the institution, reservation could only be imposed to a reasonable extent. Minority aided institutions could select their own students, contingent upon admitting a reasonable manner of non-minority students as per the percentage provided by the State Government. This conclusion was derived from two conflicting constitutional articles. Of course I am only concerned with minority aided institutions because I have already determined that the State shall not impose reservation in unaided institutions (minority or non minority). 612. (Article 30(1) provides that : “30.Right of minorities to establish and administer educational institutions-(1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.: Article 29(2) states that : “29.(2) No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.” In other words, Article 30(1) by itself would allow minority aided institutions to reject all non minority candidates, and Article 29(2) by itself would preclude the same as discrimination based solely on religion. Yet neither provision exists by itself. Rather than disturb the Constitution, this Court struck a ASN 5 PIL-34.sxw compromise and diluted each provision in order to uphold both. Reading Articles 30(1) and 29(2) harmoniously, Kerala Education Bill provided that once minority institutions receive aid, a sprinkling of outsiders must be admitted. 613. “Sprinkling” ensured that the minority character of the institution would not be lost. In regard to the “sprinkled” seats, minority institutions cannot discriminate based on religion in violation of Article 29(2). At the same time, if the State compelled aided minority institutions to take too many non-minority students, the institution would be “minority” in name only. But what does “too many” mean? Can “sprinkling” be quantified? Clearing up the ambiguity, St. Stephen’s held that minority institutions must make 50% of their seats available to outsiders and that admission for the other 50% (its own community) must be done on merit. T.M.A. Pai later rejected the rigidity attached to this fixed percentage. Along these lines, T.M.A. Pai returned to a more flexible standard, one akin to “sprinkling” in Kerala Education Bill, the moment a minority institution takes aid, it has to admit non minority students to a reasonable extent, whereby the character of the institution was maintained and yet citizens” Article 29(2) rights were not subverted. (Also see T.M.A. Pai at Para 149.)”. 5 It is thus clear that relevant portion of the Government resolution is in consonance with the principles laid down by the Supreme Court. In the facts and circumstances of the present case also it is pointed out by respondent Nos. 3 and 4 that some non minority students are admitted to the primary school of the institution in the year 2006. So also number of non minority student other than Telugu were admitted to ASN 6 PIL-34.sxw the primary school of respondent Nos. 3 and 4 in 2006 onwards. In the current academic year also, out of 21 new admissions were granted to the first standard, nine students were from non minority community as their language is other than Telugu. Thus, it appears that every year respondent Nos. 4 and 5 are admitting about 9 to 10 students while granting fresh admissions to the first standard. It needs to be noted that respondent No.5 also runs nursery classes and Sr. K.G. Classes and therefore, the students who have passed out from the Sr. K.G. Classes from the respondent society, will be admitted to first standard. It is also required to be noted that Telugu is one of the subjects for standard 1 to 10 and the students from the school run by respondent No.5 take Telugu as one of the subjects in their S.S.C. and H.S.C. Examinations. It is, therefore, seen that under the Government Resolution dated 4 July 2011, 50% of the seats are not required to be reserved for non-minority students in a primary school run by a linguistic minority group as contended by the petitioner. Only a sprinkling of the students from the non-minority communities are required to be admitted in each class if such school is an aided institution. The Government Resolution is in consonance with the law laid down by the Supreme Court. Respondent nos.4 and 5 have complied with the said Government Resolution. The refusal to grant admission to other non-minority students is neither unconstitutional nor illegal. ASN 7 PIL-34.sxw 6. We therefore, do not find any merit in the petition. Accordingly, petition is summarily rejected. CHIEF JUSTICE ( SMT. ROSHAN DALVI, J. )