Abu Zaid (Minor) And Another v. Principal, Madrasa-Tul-Islah Saraimir, Azamgath And Others

1. By means of this writ petition under Article 226 of the Constitution of India, it is prayed that the respondents be commanded to permit the petitioners to pursue their studies in their respective classes as per their entitlement in the same manner as in the case of other scholars.

2. Counter-affidavit has been filed. Sri J.J Munir states that he does not want to file any rejoinder affidavit and the case be taken up for hearing. Learned counsel for the parties are prepared to make their submissions right now.

3. Heard Sri J.J Munir, learned counsel for the petitioners and Sri Faheem Ahmad for the respondents.

4. Madarasa-Tul-Islah Saraimir, Azamgarh is an institution imparting education to scholars in Arabic language. It is duly recognised by the State Government though it is not aided. The institution is managed by a society registered under the Societies Registration Act, 1860 and has its own approved bye-laws and scheme of administration.

5. Abu Zaid, minor is a student of Darza Awwal, which corresponds to Class VI and the Second petitioner Abu Zar is a student of Darza Panzum-5, which corresponds to Class XI in regular system of education. Both the petitioners, who are sons of Mohd. Ahmad are said to be good scholars and have attained good ranking in their previous classes. As a matter of fact, Abu Zar, the second petitioner, obtained second position in order of merit in the final year examination of Darza Panzum-5.

6. Both the petitioners have been debarred from taking up their studies in the aforesaid institution on account of their involvement in a criminal case. The background in which the two petitioners came to be arraigned in the criminal case is that a thief had entered into the house of the petitioners who was apprehended on the spot. He was given a moderate beating and he was thereafter handed over to the local Police which was called. The thief was medically examined at the Primary Health Centre and thereafter taken to the Police Station obviously for interrogation. It appears that the Police tortured the thief to extract information about the commission of crime during the course of investigation and on account of adoption of third degree method the thief received a number of injuries and ultimately died. It is alleged that the local Police, in order to save their skin, lodged a pre-clocked F.I.R against the petitioners. A case crime No. 2 of 1998 under Sections 323/504/506/342/304, IPC came to be registered at P.S Khetasarai, district Jaunpur against the petitioners. The petitioners were taken into custody and were ultimately enlarged on bail. According to the petitioners, they had no connection with the aforesaid unfortunate incident which had taken place at their residence and that they came to be involved in a crime case on account of local Police having smarted in the matter to foist a false charge against them. It is alleged that in any case, the incident in question had nothing to do with the institution in which the petitioners were studying. The respondents have illegally without affording any opportunity of hearing or of showing cause, prevented them from attending their classes though no specific orders have been passed. The petitioners have, of necessity, to file the present writ petition as the respondents are bent upon to deprive the petitioners from their lawful right to continue their studies in the respondent-institution. The entreaties made by the petitioners have fallen flat on the deaf ears of the respondents.

7. In the counter-affidavit, which has been filed by Mohd. Shoyab Islahi Quasmi, Principal of the institution in question, it has been asserted that the present petition is not maintainable as the Madarasa in question is Arabic institution and has been established and administered by minority community in accordance with the provisions of Article 30 of the Constitution and since it is purely a private institution and is not receiving any aid from the Government it does not fall within the meaning of Article 12 of the Constitution and, is not State instrumentality. It is further averred that in the form of admission, it has been undertaken by a student or his guardian that they would be bound by the rules and regulations framed by the institution and the action taken against any student by Head of the institution will not be questioned by initiating any proceeding in any forum or authority. It is also alleged that the petitioners are involved in a heinous crime of murder and since the petitioners have been in jail for about 3 months and have not sent any information to their teachers their names stood struck off from the rolls on account of their absence for a continuous period of 15 days as provided under the bye-laws. According to the respondents, continuance of the petitioners in the institution would have a deleterious effect on all other students who would be encouraged to commit breach of rules and bye laws and that in any case, it would not be conducive to the cordial atmosphere of the institution to permit the petitioners to continue their studies.

8. The moot point which arises for determination is whether the present petition under Article 226 of the Constitution is maintainable against Madarasa-Tul-Islah, Saraimir, Azamgarh, which is purely a private minority institution imparting education to scholars in Arabic language. Learned counsel for the respondents urged that since the institution in question is not State instrumentality and does not have semblance of it, no writ can lie against it. This submission, in my view, is nothing but an anachronism and in view of the fresh look and new dimension given to Article 12, the submission raised on behalf of the respondents places into insignificance. Imparting of education is one of the very important sovereign functions of a welfare state. Any person or authority, which is performing public duties is an authority or person within the meaning of Article 226 of the Constitution. After the decision of the Supreme Court in the case of Miss. Mohini Jain v. State of Karnataka reported in (1992) 4 JT (SC) 292 : ((1992) 3 SCC 666 : AIR 1992 SC 1858) the right to education has been held to be a fundamental right. In a recent decision reported in (1997) 3 SCC 571 : (1997 AIR SCW 4271), K. Krishnamacharyulu v. Sri Venkateswara Hindu College of Engineering the Supreme Court has taken the view that the private institutions cater to the need of providing educational opportunities. When there is an interest created by the Government in an institution to impart education which is a fundamental right of the citizen the teachers who impart the education, set an element of public interest in the performance of their duties. The element of public interest requires to regulate conditions of service of those employees at par with Government employees. Such employees are entitled to parity of pay scales as per executive instructions of Government. State has obligation to provide facilities and opportunities to people to avail of right to education. A teacher duly appointed to a post in a private institution is entitled to seek enforcement of orders issued by Government. When an element of public interest is created and the institution is catering to that element, the teacher, the arm of the institution is also entitled to avail of remedy provided under Article 226, the jurisdiction part is very wide. It would be a different position if the remedy is a private law remedy. They cannot be denied the same benefit which is available to others. It is, therefore, held that writ petition is maintainable. In another case, Ganpathi National Middle School v. M. Durai Kannan, (1996) 6 SCC 464 : (AIR 1996 SC 2803), the Apex Court observed that it is a constitutional mandate of the State to provide compulsory education. The State cannot impart education by itself. Therefore, the agency through which it organises imparting education is a recognized private institution according to its procedure. The educational institution receiving aid is an instrumentality or education agency of the State imparting education on behalf of the State which is a fundamental requirement of the citizens.

9. Placing reliance on the decision in Sri Anadi Mukta Sadguru Shree Muktajee Vindasjiwami Swarna Jayanti Mohotsya Trust v. Rudani, (1989) 2 SCC 691 : AIR 1989 SC 1607 and Saryan Singh v. President, (1992) 1 UPLBEC 464 : (1992 All LJW 1057) this Court in the case of Poornima Banerjee v. Council for the Indian School Certificate Examination New Delhi (1995 (1) UPLBEC 265) has held that even assuming that Council of Indian School Certificate Examinations respondent No. 1 in that case is not a ‘State’ within the meaning of Article 12 of the Constitution under Article 226 of the Constitution of India, this Court can issue writ order or direction to any person or authority. It may be mentioned that this Court under Article 226 has such wide powers than the British Courts. While exercising powers under Article 226 not only can this Court issue writs, it can also issue orders and directions in the nature of writ. There is yet another celebrated decision of this Court in which the point has been thrashed out threadbare. It is Arvind Kumar Sharma v. Central Board of Secondary Education New Delhi, (1996) 2 UPLBEC 1331, in which it has been held that after the judgment of the Supreme Court in Miss. Mohini Jain's case ((1992) 3 SCC 666 : AIR 1992 SC 1858) (supra) the complexion and position of law with regard to the educational institutions stands altogether changed. If a private body or private institution has chosen to impart education to the public at large they have chosen to deal with right to education which has been held to be a fundamental right as declared by Hon'ble Supreme Court. Any unfair, arbitrary or illegal act which affects prejudicially the right to education shall be subjected to scrutiny of the Court. The educational institutions on the basis of mere technicalities that they are private bodies cannot be allowed to play freely with this important fundamental right directly connected with the development of the human life, according to their wish and whims. If their action is prejudicial to the right to education of any individual, he may approach this Court for issuing appropriate direction and the writ petition is legally maintainable.

10. The respondent Madarasa-Tul-Islah, Saraimir, Azamgarh admittedly is an institution duly recognised under the Societies Registration Act and its affairs are regulated by the approved bye laws and scheme of administration. The institution even though a minority one, is discharging a public duty of imparting education which has been held to be a fundamental right. Therefore, in view of the law discussed above, the petitioners are entitled to approach this Court for issuing appropriate direction and Orders in the nature of writ.

11. Now it is the time to consider about the second plea of the respondents that the petitioner or their guardians have undertaken that they will not approach any authority, forum or Court to ventilate their grievance against an order passed by, the head of the institution and in view of their solemn undertaking, the present petition is not maintainable. This submission has been stated simply to be rejected. If a student is given admission, he is entitled to complete his education from that particular institution. He cannot be left in lurch or to face uncertainties at the whims of the head of the institution. The student who has once been enrolled in an institution has an innate right to pursue his studies in that institution unless there is some legal justification to debar him from entering the premises of the institution. Such contingency may arise where a student has been adjudged as guilty of insubordination disobedience and misbehaviour. If a student behaves in a violent manner and disturbs the peace and tranquility in the campus, resorts to hooliganism and takes recourse to vandalism or indulges in some activity, which may subvert the smooth functioning of the institution or adopts unfair means, indulges in copying at the examination, he may certainly be debarred and prevented from attending the classes or to pursue further studies in the next higher class after adopting the proper procedure prescribed by law, which includes rules, regulations and bye-laws.

12. In the instant case, the alleged incident, the facts of which have been narrated above, had no nexus with the conduct of the petitioner, vis-a-vis respondent institution. An unfortunate incident occurs in the house of the petitioners in which a thief is caught. He is beaten up and ultimately for reasons best known either to the petitioners or to the local Police, he meets with an unnatural death. The petitioners, one of whom is a minor, it appears, came to be arraigned as accused persons on account of alleged manipulation and machination of local Police. By their alleged criminal act, the petitioners never intended to hurt the head of the institution in which they were studying or caused loss of their alma mater. The stray criminal act, which has no connection with the affairs of the institution, in any manner, cannot be made the basis of excluding the petitioners from other students in the matter of pursuing their studies. As said above, the petitioners have a fundamental right to pursue their studies. This right cannot be jeopardised or blocked in any manner by the respondents and the undertaking which has been obtained on the admission form would not operate as estoppel against them. It is common knowledge that there is no estoppel against law. Therefore, on the alleged undertaking given by the petitioners or their guardian, they cannot be prevented from pursuing their studies.

13. It appears that the respondents have acted in a very hyper technical and ultra-sensitive manner in unlawfully preventing the petitioners from pursuing their studies.

14. In conclusion, the writ petition succeeds and is allowed. The respondents are commanded not to prevent the petitioners from pursuing their studies in their respective classes of Madarasa-Tul-Islah Saraimir, Azamgarh.

15. Petition allowed.