- (1.) THIS petition seeks quashing of notification dated 13.4.2001, Annexure P.7 declaring Sikh Educational institutions in the State of Punjab to be 'minority' and permitting them to reserve 50% seats for the members of Sikh Community. Further, direction has been sought for quashing notification dated 26.4.2006 (Annexure P11) and notification dated 18.6.2007 (Annexure P.10). Vide notification dated 18.6.2007, certain institutions have been allowed to divide NRI seats equally between the Government quota and the management quota. A direction has also been sought for quashing notification dated 1.8.2007 (Annexure P8) fixing the separate fee structures for Government quota and management.
(2.) CASE set out in the petition is that the petitioner passed his +2 examination in the year 2007. He appeared for counselling but was not selected. His chance of selection was affected on account of 50% seats having been exclusively reserved for the members of the Sikh community in violation of Article 14 of the Constitution, vide notification dated 3.4.2001, Annexure P.7. Further, notification dated 18.6.2007 was issued permitting minority quota and NRI seats to be divided between the government quota and minority quota, thereby affecting meritorious candidates. Notification dated 26.4.2006 has also been issued under section 2(f) of the Punjab Private Health Sciences Educational Institutions (Regulation of Admission, Fixation of Fee and Making of Reservation) Act, 2006 declaring that Christians and Sikh Institutions run by the Shiromani Gurdwara Parbandhak Committee (SGPC) to be minority institutions for the purpose of the Act (Annexure P.11). The said notification was also contrary to law laid down by the Hon'ble Supreme Court. Prayer made is that if declaration of Sikhs as minority is declared void, the petitioner has every chance of getting admission on his own merit. It has also been stated that Sikhs are in majority in the State of Punjab but the basis of the impugned notification Annexure P.7 is that number of Sikhs was minority in the country which was not legally permissible basis. In the reply filed on behalf of the State, stand taken is that under section 8 of the Act, complaints could be filed for violation of the Act or directions or notification and, therefore, the writ was not maintainable. Affected students and affected institutions have not been impleaded as parties and on that ground also, the writ petition was not maintainable. On merits, it has been stated that declaration of institutions run by the SGPC as minority institutions vide notifications dated 3.4.2001 and 25.4.2006 was valid. Question of minority should be interpreted liberally as held in re : The Kerala Education Bill, 1957 (Special Reference No. 1 of 1958), AIR 1958 SC 956 (at Page 986). The SGPC has been constituted under the Sikh Gurdwara Act, 1925 (in short, 'the 1925 Act') for better administration of Sikh Gurdwaras. The SGPC is an inter-State body as per Section 72 of the Punjab Reorganisation Act, 1966 and has electoral jurisdiction outside the State of Punjab also. The SGPC also looks after the Sikh minority community in all the States and is, thus, a minority organisation. Under Section 2(9) of the 1925 Act, the word 'Sikh' is defined as under :- "Sikh means a person who professes the Sikh religion or, in the case of deceased person, who professed the Sikh religion or was known to be a Sikh during his life time. If any question arises as to whether any living person is or is not a Sikh, he shall be deemed respectively to be or not to be a Sikh accordingly as he makes or refuses to make in such manner as the State Government may prescribe the following declaration :- I solemnly affirm that I am a Sikh, that I believe in the Guru Granth Sahib that I believe in the Ten Gurus, and that I have no other religion." Section 49 of the 1925 Act lays down the qualifications for the electors. Number of Sikh voters in the year 2004 was 53,57,988 and as against total voters (1,65,71585) in the State of Punjab, the said figure was minority. Seats in the minority quota are filled up by entrance examination conducted by Association of Unaided Sikh Minority Medical and Dental Institutions (Punjab State) on all India basis for Sikh Minority Community candidates only. As per the prospectus for the eligibility and qualification to appear in the entrance test, it is essential for the candidate to be resident of India and belongs to Sikh Community. In addition to this, a candidate is to be considered Sikh/belonging to Sikh Community if he practices the Sikh faith and maintains Sikh appearance i.e. he/she does not cut or trim hair and wears turban (in case of male candidates) and has the word "Singh/Kaur" with his/her name, has faith in the Ten Sikh Gurus and Sri Guru Granth Sahib only, and does not owe allegiance to any other sect or religion. It has been further stated that questions relating to minorities were left open in TMA Pai Foundation v. State of Karnataka, 2003(2) SCT 385 : 2002(8) SCC 481. As per judgment of the Hon'ble Supreme Court in Manager St. Thomas UP School Kerala and another v. Commissioner and Secretary to General Education Department and others, 2002(2) SCT 104 : (2002)9 SCC 497, question of grant of minority status should be left to fact finding authorities.
(3.) IN the reply filed by the SGPC, it has been stated that the 1925 Act was enacted on account of agitations in which over 65000 persons were arrested and about 400 persons lost their lives. The area of operation of SGPC comprises Punjab, Haryana, Chandigarh and parts of Himachal Pradesh. 15 persons, of whom not more than 5% are from Punjab, are co-opted by the elected members and thus, SGPC is a representative body of Sikhs from all over the country. Under Section 72(3) of the 1925 Act, SGPC is an inter-State body. The plea regarding leaving of questions relating to minority open in TMA Pai Foundation (supra) and definition of 'Sikh" under section 2(9) of the 1925 Act, has also been repeated. It has been further mentioned that followers of sects known as Nirmalas, Ramraiyas, Dhirmalias, Udasis, Namdhari Kukas, Nirankaris, Radhasoamis, followers of Divya Jyoti Jagran Samiti, followers of Dera Sacha Sauda of Sirsa, followers of Baba Bhaniarewala cannot be considered to be Sikhs. Some of them believe in a living Guru, which is contrary to the basic tenets of Sikh faith. Hukamnamas have been issued by the Akal Takht Sahib against Nirankaris, followers of Divya Jyoti Jagran Samiti, followers of Dera Sacha Sauda of Sirsa etc., declaring that they are not Sikhs and calling upon the Sikh community to severe all social and cultural relations with them. On account of influx of persons of different religions from other States in Punjab, Sikhs are in minority. No census have been conducted as per definition of "Sikh" under the 1925 Act. In the elections of the SGPC held in 2004, number of eligible Sikh electors in Punjab were 53,97,988 as against total voters being 1,65,71,585. As per prospectus of Guru Ram Das Institute of Medical Sciences and Research, a "Sikh" has been separately defined and following provision has been made :- "1) A candidate will be considered Sikh/belonging to the Sikh community if he practices the Sikh faith, and maintains Sikh appearance i.e., he/she does not cut or trim hair and wears turban (in case of male candidates) and has the word "Singh/Kaur" with his/her name, has faith in the Ten Sikh Gurus and Sri Guru Granth Sahib only, and does not owe allegiance to any other sect or religion. 2) A male Sikh candidate who does not presently bear the suffix "Singh" and a female Sikh candidate the word "Kaur" with his/her name, may get it added legally (that is through an affidavit plus notice in a newspaper regarding the change of name) before submission of his/her application by the last date." Affidavit D1, D2 and E affirming the above conditions is required to be filed by the candidates as mentioned in the prospectus of these institutions." Section 2(c) of the National Commission for Minorities Act, 1992, defines "minority" as under :- "(c) "minority", for the purposes of this Act, means a community notified as such by the central Government; In exercise of powers conferred by clause (c) of Section 2 of the National Commission for Minorities Act, 1992 the Central Government by notification dated 23rd October, 1993 notified the following communities as 'the minority communities' for the purposes of the said Act. Namely : 1. Muslims 2. Christians 3. Sikhs 4. Buddhists 5. Zoroastrians (Parsis)" Reference has also been made to National Commission for Minority Educational Institutions Act, 2004. ;