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The document discusses the maintainability of a writ petition by Indus Educational Society, an aided minority institution, emphasizing the fundamental right under Article 30(1) for minorities to establish and administer educational institutions without unreasonable state interference. It argues that the Sindhus, though a majority in India, are a minority in the state of Lashkar and thus entitled to protections under the Constitution, including the right to preserve their religion and language. Additionally, it contends that minority educational institutions should be exempt from certain regulations regarding staff selection to maintain their autonomy.

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7 views

Untitled

The document discusses the maintainability of a writ petition by Indus Educational Society, an aided minority institution, emphasizing the fundamental right under Article 30(1) for minorities to establish and administer educational institutions without unreasonable state interference. It argues that the Sindhus, though a majority in India, are a minority in the state of Lashkar and thus entitled to protections under the Constitution, including the right to preserve their religion and language. Additionally, it contends that minority educational institutions should be exempt from certain regulations regarding staff selection to maintain their autonomy.

Uploaded by

Jake Justin
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© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Issue 1: Whether the writ petition is maintainable.

The rst issue that has been to the notion of this Hon'ble Court is
regarding the maintainability of the present writ petition, the petitioner
Indus Educational Society is an aided minority institution which is
established and administered by a minority of lashkar which is Sindhus
to be precise the religious minority and the institution which has the
constitutional validity under Art 30(1) which is a fundamental right vice
versa the basic structure of the Constitution of India.
I would rstly like to contend before this Hon'ble Court that the phrase
of Art 30(1) says that all minorities, whether based on religion or
linguistic, shall have a right to establish and administer educational
institutions of their choice. And I would very particularly contend that
the word "choice" is nothing but an absolute fundamental right
guaranteed by Part III, which is nothing but the basic structure of the
Constitution, which cannot be in any condition or circumstance
infringed.
I would further submit that the word "choice" under Art 30(1) shall be
taken into consideration with the autonomy of educational institutions
irrespective of the aided or unaided nature. The fact is that the autonomy
of this institution shall always prevail against unreasonable action of the
state.
The court regarding the issue of whether the state interference in
administration of aided minority private educational institutions in
landmark judgments, TMA Pai Foundation case, ruled that the aided
minority institutions under Art 30(1), the state can impose reasonable
regulations When providing nancial aid, and in the case of unaided
institutions, regulatory measures imposed by the state should be
minimal. Their recruitment of teaching and non-teaching staff,
administrative control, fee structure would be beyond the government's
control.
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Therefore, the fundamental right of choice in Art 30(1) to administer the
institution for aided minority institutions and the observation made by
seems to be unfair unjust as well as discriminatory under Art 30(1).
Case: AMU v. Naresh Agarwal and others. The court stated that Art
30(1) is anti-discriminatory, and a special right provision, and legislation
or an executive action which discriminates against religious or linguistic
minorities in establishing or administering educational institutions is
ultra vires Art 30(1). Additionally, a linguistic or religious minority
which has established an educational institution receives the guarantee
of greater autonomy in administration.
I would further contend that the court shall take into consideration that
irrespective of whether the institution is aided or unaided, the minority
institution's autonomy shall prevail for all.
Lastly, the case of Sidhajbhai Sahabhai v. State of Bombay, it was held
that the right established by Art 30(1) is a fundamental right declared in
absolute terms, unlike the fundamental freedoms guaranteed by Art
19(1), as it is not subject to reasonable restrictions. It is intended to be a
protection of minorities for setting up educational institutions. The right
intended to be effective and is not meant to be whittled down by so-
called regulatory measures conceived in the interest of minority
educational institutions but public or nation as a whole.

Issue 2: Whether the Sindhus are entitled to claim minority


character.
The another issue that is raised in concern with the determination of
minority character of Sindhus who stands majority in whole of India, but
and in minority in state of Lashkar I would very particularly contend
before this Hon’ble S.C. is that the preamble of the Constitution of India
clearly states that, we the people of India, having solemnly resolved to
constitute India into sovereign, socialist, secular, democratic and
republic.
The doctrine of secularism shall always prevail & the doctrine says that
the country will not have any religious identity and will treat every
religion equally and as a part of this doctrine of secularism the Sindhus
shall have the right to protect, preserve & propagate their religion &
language in a part of country where they stand minority & the state shall
not discriminate to do so. Therefore, to support this contention again, I
would like to cite the landmark judgment of
Pai Foundation - where S.C. made observation that linguistic & religious
minorities are covered by the expression minority under Article 30.
Since the recognition of the state in India has been on linguistic lines,
Therefore for the purpose of determining the minority, the unit will be
the state and not the whole of India. Thus, religious & linguistic
minorities under Article 30 have to be considered state-wise.
Furthermore, I would like to cite another case of this Hon’ble S.C.:
Bal Patil & Anr vs UOI (2005).
With reference to the judgment of Pai Foundation the court stated that
the concept of secularism to put into a nutshell is that the state will have
no religion, the state will treat all the religions & all religious groups
equally with equal protection, respect without any moment interfering
with their individual right of faith & worship.
Further, in the judgment of Ahmedabad St. Xavier College vs State of
Gujarat
It was held that the whole object of conferring right on the minority
under Art. 30 is to ensure that there will be equality between majority &
minority, if minorities do not have such special protection, they will be
denied equality.
Issue 3: Whether the minority educational institutions are exempted
from the provision of EGC regulation regarding the selection of
staff.
The third issue that has come to the notice of this Hon'ble SC. I would
contend here that the EGC regulation of the year 2000 is regarding
minimum quali cation for appointment and career advancement of
teachers in universities and colleges.
And the constitution of selection committees are laid down in Annexure
3.0.0, which shall have:
i) Chairperson of the governing body of the college.
ii) The principal of the concerned college.
iii) One senior teacher/Head of department having at least 10 years of
service.
iv) Two nominees of the vice-chancellor of the af liating university.
v) Two subject experts not connected with the college to be nominated
by the vice-chancellor.
And I would contend the following grounds to this Hon'ble SC:
i) The constitution of the selection committee under UGC regulation
2000 regarding minimum quali cation and the advancement of
teachers in colleges and universities, with a majority of outsiders
nominated by the respondent university which interfered with the
rights of members of the petitioner to administer their institution.
ii) The regulations are only recommendatory in nature, thus the
respondent university cannot refuse to approve the quali cation of
the candidates.
iii) The rights of choice under Art 30(1) shall prevail with regard to
autonomy.
iv) The mechanism of selection committee already exists in colleges for
the selection of teaching staff, which consists of the managing, the
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principal, and the concerned head of the college department, and so the
recommendation under Sec 26(1)(g) read with Sec 14 of the UGC Act,
1956, is without jurisdiction.
Case: Forum of Minority Institutions and Association v. State of Tamil
Nadu - Para 60 - Court held that independence has been given to
minority institutions to select their own people without outside
interference, as the right of appointment of teachers out of quali ed
teachers is to be left to minority institutions alone. It cannot be accepted
as a process of selection of teachers cannot be regulated as it would
amount to interference in the administration of minority institutions.
Case: The Secretary N.V.K.S.D College of Education, Kanyakumari
District v. Union of India held that
For the reasons stated, the writ petitions was allowed, and regulations for
constitution of selection committee shall not be applicable to the
minority institutions. Consequently the Writ in of Mandamus was issued
directing the respondents to approve the selection made by the minority
institutions without reference to Clause 3 of annexure to UGC
Regulations 2000, subject to the selected candidates ful lling other
quali cations, experience
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