A.N.VERMA, J. - (1.) This is the second time that the petition has come up for hearing before the court. Earlier by our order dated 24/05/1984, the petition had been dismissed on the ground that in view of the consistent stand taken by him throughout his tenure as a principal of the institution that it was a minority institution, it was not open to the petitioner to turn round and contend that it was not a minority institution and, therefore, the disciplinary action initiated against him by the Management was subject to the control of the educational authorities under Section 16G(3) of the Intermediate Education Act. The petitioner appealed to the Supreme Court. By its order dated 29/10/1984, the Supreme Court granted Special Leave to the petitioner letting aside the judgment of this Court and remanded the case for the determination of the question whether the institution is or is not a minority institution.
(2.) Upon remand, we heard learned counsel for the parties again at some length on the issue whether the institution of which the petitioner was the principal, bears the character of a minority institution protected by Art. 30(1) of the Constitution of India, the main and the principal contention of the learned counsel for the petitioner was that the institution was neither established by the minority community nor run as a minority institution. The words 'establish and administer', it was argued, must be read conjunctively, i.e., not only should the institution be administered by the minority but it should have been established, i.e., brought into existence by the minority. Both the requirements, namely, the establishing as well as the administering of the institution must be fulfilled. Article 30(1) of the Constitution which states- "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." has been the subject of numberous pronouncements of the Supreme Court, but it is not necessary to burden this judgment with all those decisions. We will refer only to the barest minimum. In S. Azeez Basha v. Union of India reported in AIR 1968 SC 662, Chief Justice Wanchoo speaking for the Constitution Bench of the Court observed in paragraph 19 of the judgment thus : "Under Article 30(1), "all minorities whether based on religion or language shall have the right to establish and administer educational institutions of their choice". We shall proceed on the assumption in the present petitions that Muslims are a minority based on religion. What then is the scope of Art. 30(1) and what exactly is the right conferred therein on the religious minorities? It is to our mind quite clear that Art. 30(1) postulates that the religious community will have the right to establish and administer educational institutions of their choice meaning thereby that where a religious minority establishes an educational institution, it will have the right to administer that. An argument has been raised to the effect that even though the religious minority may not have established the educational institution, it will have the right to administer it, if by some process it had been administering the same before the constitution came into force. We are not prepared to accept this argument. The article in our opinion clearly shows that the minority will have the right to administer educational institutions of their choice provided they have established them, but not otherwise. The Article cannot be read to mean that even if the educational institution has been established by somebody else, any religious minority would have the right to administer it because, for some reason or other, it might have been administering it before the constitution came into force. The words 'establish and administer' in the Article must be read conjunctively and so read it gives the right to the minority to administer an educational institution provided it has been established by it." (Emphasis supplied).
(3.) The same view was reiterated in the case of Frank Anthony Public School Employees' Association v. Union of India, reported in AIR 1987 SC 311. Their Lordships observed that the right guaranteed to religions and linguistic minorities under Article 30 is two-fold : to establish and administer educational institutions of their choice. Both the requirements must exist before the institution could claim the right guaranteed to religious and linguistic minorities by Article 30(1). That is, it must be shown that the institution was established by the minorities, whether religious or linguistic, and, having been so established, it was being administered by them as an institution for imparting education.;