SISTERS OF ST. JOSEPH OF CLUNY versus THE STATE OF WEST BENGAL & ORS.

Citation: [2018] 3 S.C.R. 1033 · Decided: 18-04-2018 · Supreme Court of India · Bench: ADARSH KUMAR GOEL · Disposal: Disposed off

Judgment (excerpt)

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SISTERS OF ST. JOSEPH OF CLUNY
v.
THE STATE OF WEST BENGAL & ORS.
(Civil Appeal No. 3945 of 2018)
APRIL 18, 2018
[ADARSH KUMAR GOEL AND R. F. NARIMAN, JJ.]
National Commission for Minority Educational Institutions
Act, 2004:
ss.10(1) and 11(f) – Declaration of minority status to
educational institution – Appellant-Society established the College
in question as a secular institution – Thereafter, sought minority
status to the College – National Commission for Minority Educational
Institutions (NCMEI) declared the College as minority educational
institution and issued minority status certificate – The Society as
well as Governing Body of the College filed writ petition – High
Court held the declaration and consequent issuance of the certificate
as invalid on the ground that NCMEI had no original jurisdiction
to make such declaration – On appeal, held: Section 11(f) is a wide
provision which empowers NCMEI to decide all questions relating
to the status of an institution as a minority institution and declare
its status as such – After Amendment Act, 2006, Competent Authority
has the power for establishing a minority educational institution –
However, for declaration of minority status to educational institution,
at any stage, post establishment, NCMEI has the power – Thus, in
the present case, s. 11(f) confers jurisdiction on NCMEI to issue
certificate regarding minority status to the institution in question –
Therefore the orders by NCMEI are valid – Constitution of India –
Art. 30.
Disposing of the appeals, the Court
HELD: 1. Article 30 of the Constitution of India grants a
fundamental right to all minorities, whether based on religion or
language, to establish and administer educational institutions of
their choice. Section 11(f) empowers the National Commission
for Minority Educational Institutions to decide all questions
relating to the status of an institution as a minority educational
institution and to declare its status as such.  The expression “all
questions” as well as the expression “relating to”, which are
[2018] 3 S.C.R. 1033
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SUPREME COURT REPORTS
[2018] 3 S.C.R.
words of wide import, clothe the NCMEI with the power 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.  The power under Section 11(f), read by itself, would
clothe the NCMEI with the power to decide any question that
may arise with regard to the right to establish and/or administer
educational institutions by a minority.  It also includes the power
to declare such institution as a minority educational institution,
which is established and administered as such, so that it can avail
of the fundamental right guaranteed under Article 30 of the
Constitution. [Para 16][1048-D-F]
2. However, Section 10(1), which was introduced at the
same time as Section 11(f) by the Amendment Act of 2006, carves
out one facet of the aforesaid power contained in Section 11(f),
namely the grant of a no objection certificate to a minority
educational institution at its inception.  Thus, any person who
desires to establish a minority educational institution after the
Amendment Act of 2006 came into force, must apply only to the
competent authority for the grant of a no objection certificate for
the said purpose.  It cannot be said that the said powers are
concurrent. Harmoniously read, all applications for the
establishment of a minority educational institution after the
Amendment Act of 2006 must go only to the competent authority
set up under the statute.  On the other hand, for the declaration
of its status as a minority educational institution at any stage post
establishment, the NCMEI would have the power to decide the
question and declare such institution’s minority status. [Para
17][1048-G-H; 1049-A]
3. The fundamental right under Article 30 cannot be waived.
The University of North Bengal has accepted the NCMEI’s order
dated 5.11.2009 in which the NCMEI had gone into the question
of the college’s minority status. It would not, therefore, be in the
fitness of things to send back this matter to be decided afresh at
the behest of a governing body which can no longer claim to govern
the college set up by the society. As the new governing body has
been constituted on the footing that the College is a minority
educational institution, the parallel governing body, which claims
to continue as such, has no legs to stan

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