Suo Motto Cognizance in the matter eroding the basic structure of Constitution and taken away rights of Down Trodden unemployed B.T.C. successful Training general candidates by converting it to the proficiency of Urdu Language a

To,

The Hon’ble The Chief Justice Of India,

Hon’ble the Supreme Court Of India

              NEW DELHI

Request for taking Suo Motto Cognizance in the matter eroding the basic structure of Constitution and taken away rights of Down Trodden unemployed B.T.C. successful Training general candidates by converting it to the proficiency of Urdu Language as per dictum of Justice Sacchar Commission

Relevant Dates in chronological order

14.1.2004             Govt. order was issued to fill up the sufficiency in the  

recruitment process of the teachers in junior High schools and by the aforesaid Govt. Order selection for admission to the Special B.T.C. training course of 46189 candidates was offered to the qualified candidates on the basis of quality point marks.

22.1.2004              An advertisement was issued by Director, State Council for 

                             Education  Research and Training. U.P.

22.2.2004.            Advertisement has been issued by the Director, State Council for

Educational Research and Training, U.P. Lucknow, which   Was published in the newspaper Amar Ujala. The matter was                          reconsidered by the State Government and in pursuance thereof a decision has been taken permitting candidates possession Bachelor of physical Education, Certificate of physical Education and Diploma in physical Education also for consideration. Simultaneously the upper age limit has been extended to 40 years as on 1.7.2000.

16.02.2005                           By the Government orders  General subjects have now been

converted to 3,000 posts of Urdu teacher having proficiency in Urdu in High School and Intermediate level without obtaining the permission without having the Concurrence from National Council for Teachers Education, Northern Region, Jaipur in conformity with requirement of section 15 of the National Council Teacher’s Education Act, 1993. This U.P. Govt. order is  illegal and inoperative and a fraud and a colourable exercise of jurisdiction

09.03.2005           Office of the Hon’ble Prime Minister constituted a seven member High Level Committee chaired by Justice (Retd.) Rajindar Sachar to prepare a report on the Social Economic and Educational status of the Muslim Community of India. In this manner there was even no whisper to get the report of Sacchar Commission be placed under Article 350- A of the Constitution of India when the Impugned Govt. Order dated 16.02.2005 was issued seeking conversion of posts of General candidates by converting them for teaching the subjects  with Urdu medium.

03.10.2005           In response to the Committee’s advertisements, two letters dated 20.09.2005 and 03.10.2005 to the Chairperson

05.10.2005           Dr. S. Zafar Mahmood, Joint Secretary to Govt. of India and Officer on Special Duty in Sachar Committee vide his letter dated October 5, 2005. 

18.3.2006            By Second Government orders  General subjects have now been 

converted to 5,000 posts of Urdu teacher having proficiency in                  Urdu in High School and Intermediate level without obtaining the permission without having the Concurrence from National Council for Teachers Education, Northern Region, Jaipur in conformity with requirement of section 15 of the National Council Teacher’s Education Act, 1993. This U.P. Govt. order is also illegal and inoperative and a fraud and a colourable exercise of jurisdiction

15. 9.2006 .           By  Third  Government orders  General subjects have now been 

converted to  finally 13,189  posts of Urdu teacher having proficiency in Urdu in High School and Intermediate level without obtaining the permission without having the Concurrence from National Council for Teachers Education, Northern Region, Jaipur in conformity with requirement of section 15 of the National Council Teacher’s Education Act, 1993 This U.P. Govt. order is  illegal and inoperative and a fraud and a colourable exercise of jurisdiction. the Appellants may be allowed to challenge the propriety, competency and the jurisdiction of the Govt. orders dated 16.2.2005, 18-3-2006 and 15-9-2006 including the advertisement published thereof as well as they may also be permitted to challenge the validity of clause 9 (a) of Rule 5 read-with Rule 8 – Clause (4) as referred to in clause (a) and sub clause (iii) and (iv) of clause (b) of Rule 5 of  “ The U.P. Basic Education (Teachers) Service Rules (Eleventh Amendment) 2006”

17.11.2006           The Committee headed by Justice Sacchar submitted biased and arbitrary report  with a predetermined mindset by denying the Appellants an opportunity to present their viewpoint and deliberately shutting out certain important facts which  resulted in gross violation of fundamental right guaranteed under 14, 19 and 21 of the Constitution of India.

!4. 09.2007                         Judgement was passed by Hon’ble Mr. Arun Tandon in Writ

                                 petition No. 44085 of 2006

05.10.2007                Learned single Judge dated 14.9.2007 was challenged in the    

                                   by the State Govt. in Special Appeal No. 1330 of 2007.

28.11.2007                            The Special Appeal No. 1330 of 2007 filed by State of U.P. has

                                 been allowed by setting aside Judgement was passed by          

                                  Hon’ble Mr. Arun Tandon in Writ  petition No. 44085 of 2006.

09.01.2008                     Copy of the Impugned judgement applied on 01.12.2007( just 

                                     after three days of the pronouncement of judgement) is received               

                                      by the counsel for appellant .

04.04. 2008          Hence this present Appeal is being filed within time under article 136 of Constitution of India for upholding the truth which is bound to adversely affect the multicultural and age old pluralistic ethos of India.

                     FACTS OF THE CASE-

The propriety, jurisdiction and competence of the order passed on 30-12-2006 allegedly in furtherance of the directions issued in writ petition no. 38103 of 2006 filed as the Appellants no. 1 is president of unregistered society and filed his application  in the said petition in his personal capacity. Since the Government orders dated 16.2.2005, 18.3.2006 and order dated 15. 9.2006 have been declared to be illegal and inoperative and such order has been found be a fraud and a colourable exercise of jurisdiction as evident by the judgement dated 14.9.2007 passed in writ petition no. 44085 of 2006 (Km. Sunbul Naqvi Vs. State of U.P.) alongwith other connected writ petitions and as such since the post required to be filled up by conducting the special B.T.C. Course, 2004 general subject to the Special B.T.C. Urdu trainees, 2006 and as such the  impleadment application was  filed in the representative capacity by the Appellants in writ petition no. 38103 of 2006 as well as other affected person.

That it is respectfully submitted in order to appreciate the submission advanced by appellants that the Board of Basic Education U.P. Allahabad runs and manages a large number of Junior Basic schools and Senior Basic Schools in the State of Uttar Pradesh. The recruitment on the post of Assistant Teachers in such institutions is governed by the provisions of U.P. Basic Education (Teachers) Service Rules, 1981. The Board of Basic Education is constituted as a body corporate under Basic Education Act, 1972.

That Rule 8 of 1981 aforesaid Rules prescribes the qualification as that of candidates possessing Basic Teachers certificate, Hindustan Teachers certificates, Junior teachers certificate or any other course recognized by State Govt. as equivalent thereto and there is neither the written examination or interview and as such candidates possessing teachers training certificate are fully suited for appointment and based upon verification of their testimonial by the selection committee.

That the Govt. order was issued on 14.1.2004 in order to fill up the sufficiency in the recruitment process of the teachers in junior High schools and by the aforesaid Govt. Order selection for admission to the Special B.T.C. training course of 46189 candidates was offered to the qualified candidates on the basis of quality point marks. The in pursuance of aforesaid Govt. order dated 14.1.2004 an advertisement dated 22.1.2004 was issued by Director, State Council for Education Research and training.

That against the restriction contained in the Government order and the advertisement of considering only upon Bachelor of Education and L.T. Training and specification of 35 years as the upper age limit a large number of writ petitions were filed before this Hon’ble Court. During the pendency of the said writ petition the matter was reconsidered by the State Government and in pursuance thereof a decision has been taken permitting candidates possession Bachelor of physical Education, Certificate of physical Education and Diploma in physical Education also for consideration. Simultaneously the upper age limit has been extended to 40 years as on 1.7.2000.

That in view of the aforesaid decision another advertisement has been issued by the Director, State Council for Educational Research and Training, U.P. Lucknow, which has been published in the newspaper Amar Ujala dated 22.2.2004.

That all the  members of Appellants society being fully qualified and eligible in terms of the aforesaid advertisement also applied. Each of the members of Appellant had applied under their respective category.

 That the aggregate percentage of the members of Appellant’s  society was worked out in accordance with the stipulations contained in the government order making themselves selected in the said selection.

That the right of similarly placed individuals whose posts of general subjects have now been converted to posts of Urdu teacher having proficiency in Urdu in High School and Intermediate level and as such since the out come of the present special appeal may directly effects the rights of 13189 candidates eligible for appointment as Assistant Teacher.

That applicant is an unregistered society fighting against the conversion of 13,189 vacancies required to be fill up from the candidates having eligibility for selection in Special B.T.C. Course- 2004 (Third merit list), which have been converted for accommodating the Urdu language teacher with proficiency in Urdu, for which the decision was taken allegedly by the State Govt. (Cabinet Decision) dated 9^th February, 2005 and the process for starting such Special B.T.C. training course Urdu was initiated by an office note put up Secretary Basic Education ( as mentioned in the judgement passed in writ petition no. 14085 of 2006 decided on 14.9.2007) and the said judgment, reported in 2007 (3) UPLBEC 2301, is the subject matter of challenge in the present Special Appeal.

That on 27.5.2004 the first merit list was published comprising of 41,450 candidates. Thereafter counseling was conducted and in the said counseling a total number of 31,450 candidates alone participated with 10,000 of the candidates included in the merit list not having responded for counseling.

That in August, 2004 a second merit list was published comprising of 6700 candidates. Subsequently about 4000 more candidates were declared selected under the category of scheduled caste and other backward class.

That in view of the aforesaid details the total number of candidates declared successful came to 42,150, however, as a result of verification during the course of the counseling as also on the basis of subsequent enquiry 9150 candidates stood deleted from the select list on account of their educational certificates being forged or being of institutions, which were not duly recognized thereby leaving a total number 33000 candidates alone.

That out of the aforesaid 33000 candidates 29000 candidates has already been imparted training and have granted appointment as Assistant Teachers in the month of January, 2006. Presently training for about 4000 candidates is till underway.

That the facts and figures detailed above clearly demonstrate that almost 13,189 vacancies still continue to exist, which were covered by the government order and the advertisement issued by the respondents.

That it has consistently been given out that a further merit list would be published from amongst the Appellants, who had originally applied for filling up the remaining vacant posts.

That the training imparted to the second batch has finished and the candidate successfully completed training is in the process of getting appointed.

That, however, there remains complete inaction on the part of the respondents in publishing the list of candidates selected for the remaining vacancies covered by the government orders dated 12.2.2004 and 20.2.2004.

That the inaction of the respondents is wholly arbitrary, discriminatory and violative of Article 14 of the Constitution of India. There does not exist any justification for withholding the merit list for the remaining vacant posts even though such posts stood covered by the advertisement in question.

 That it is settled legal position that the number of vacancies covered by the advertisement should be filled up on the basis of the merit list of the selection alone. There was hardly any justification for not filling up the advertised vacancy of a particular selection and keeping the same vacant.

That the aforesaid inaction of the respondents is contrary to the repeated representations effected that the remaining vacancies were to be filled up on the basis of the same merit list.

That in case the remaining vacancies are permitted to be re-advertised and fresh Appellants invited then the result would be that the vast majority of the candidates who were within the permissible age limit in pursuance to the January 2004 advertisement would be over age and would stand excluded from consideration.

That in the alleged compliance of the aforesaid judgement the Director State Council for Educational Research and training U.P. Lucknow passed an order on 30-12-2006 rejecting the representation of the applicant no. 1 to 7 filed on 9-11-2006 by the aforesaid order.

That in the aforesaid order the correct position as is being revealed regarding circumventing the rights of the Appellants in the judgement dated 14.9.2007 has not been disclosed and Director State Council for Educational Research and Training, U.P. appears to have the enforced silence regarding the conversion of the post of General Subjects as that of the 10000 posts of Urdu Teachers by the Govt. Order dated 15-9-2006. This fact came to the notice of Appellant first time when the Appellant’s Society office bearer filed their application seeking impleadment in the Special Appeal No. 1330 of 2007, Which was  filed against the judgement dated 14-9-2007 (2007(3) UPLBEC 2301) when the contents of the aforesaid judgment came to the notice of the Appellants. The impleadment application was allowed of 8 applicants, Which were including the  Appellant’s Society and the name of its office  bearer.

That in the order dated 30-12-2006, which came to the notice of the Appellants when the said order was annexed in the counter affidavit. However, as soon as it came to the notice of the Appellants in the month of October, 2007 after reading the aforesaid judgment dated 14-9-2007 impugned in the present Special Appeal, the Appellants wanted to challenge the order dated 30-12-2006 passed by Director State Council for Educational Research and Training, U.P. then it was advised to the Appellants that filing of the fresh writ petition is not permissible till the matter pertaining to the foundation based upon the judgement dated 14-9-2007 impugned in the present special appeal raised for assailing the order dated 30-12-2006 afresh by filing another writ petition. Thus filing of the present impleadment application in the present special appeal is sought by seeking the permission from the Hon’ble Division Bench.

That the order dated 31-12-2006 passed by Director State Council for Educational Research and Training, U.P. is clearly based upon the incorrect facts regarding the decision dated 23-5-2006 passed in writ petition no. 1674 (M/S) of 2006 Shravan Kumar Dwivedi and others VS. Director State Council for Educational Research and Training, U.P. and others conversion of 13,189 general subject vacancies for imparting the training to B.T.C.-2001 course by formulating two selections lists of such candidates and as such the third list could not be issued.

That the order of Director State Council for Educational Research and Training, U.P. is again a misrepresentation regarding certain orders passed on 9-12-2005 in Special appeal no. 630 of 2005 seeking qualification of Shiksha Shastri provided from Sampurnanand Sanskrit University for whom the aforesaid facility regarding completion of training in Special B.T.C. Course- 2004 (General Subjects) has been granted.

That the other grounds pertaining to judgement dated 23.3.2005 in writ petition no. 23197 of 2005 and the judgement dated 10-3-2005 passed in writ petition no. 989 (M/S) of 2005 Lal Mani Maurya and others Vs. State Of U.P. and others are again the misrepresentation for circumventing the rights of the eligible candidates for conducting the training of Special B.T.C. Course (General Subjects) –2004 and in none of the orders the number of individual candidates required to be accommodated in the existing vacancy of 13189 remaining posts has not been given.

That on the other hand many of the prospective members of Appellant’s society have crossed their upper age limit and as such they have been debarred from seeking the appointment on the other posts. Thus the conversion of 13189 posts required to be filled up from General Subjects being converted to the individuals for imparting the teaching of other subject in the medium of Urdu is contrary to the provisions of Article 14 to 18 as well as Article 21 of the Constitution of India.

That an enquiry was given under the Rights of Information Act that 6343 candidates required to be filled up from women O.B.C. Science and Arts categories as well as from Scheduled caste Science category and Scheduled tribes Science and Art category are not available for the aforesaid recruitment and as such all these posts were required to be filled up from general category candidates and thus the order of Director State Council for Educational Research and Training, U.P. passed on 30-12-2006 is based upon misconceived statement and thereby misleading to the Appellants as well as to the Hon’ble Court through her inconsistent stand as disclosed in the judgement dated 14.9.2007 impugned in the present special appeal.

That about 32045 candidates have been shown selected in the different Districts of the Uttar Pradesh, out of which the appointment of 1274 candidates were found for being considered in the aforesaid selection on the basis of forge documents in the entire Uttar Pradesh. The news item published in the different newspapers disclosing illegal appointments obtaining from amongst 32045 posts may clearly establish that there remain the vacancies to be offered to the Appellants in the remaining posts lying vacant for imparting the Special B.T.C.Course-2004 even from the existing appointments.

That in this manner the filing of present  appeal regarding national curriculum framework-2000 and 2005 (based upon Sachhar Commission) by the N.C.E.R.T. through Regional Director National Council for Teachers Education, Northern Region, Jaipur, emphasizing provisions of facilities for instruction in Urdu in order to accommodate linguistic minority groups is the foundation created for another partition as the demand for partition of our mother land was based on linguistic minority groups in the pre-independence years, which is incompatible with the preamble and basic structure of Constitution of India.

That the other aspect of the matter raised regarding the common judgement in all such writ petitions passed by Hon’ble Single Judge on 14-9-2007 shall be suitably replied during the course of arguments as the question pertaining to the route of the matter of taking no concurrence from National Council for Teachers Education Act and the ministry of finance has not been taken (State of Maharashta Vs. Sant Dhyaneshwar Shikshan Santha Mahavidyala J.T. 2006 (4) S.C. Page 201) for conversion of these 10000 posts for imparting education in Urdu language and providing stipend of Rs.2500/- per month to such Urdu trainees is violative of Article 246 and 256 of the Constitution of India.

That even the amendments made to Rule 8 (5) vide Uttar Pradesh Basic Education (Teachers) Service (Eleventh Amendment) Rules, 2006 as no amendment is recorded in Rule 5 of aforesaid Rules for Urdu language Teacher, which place down the source of recruitment, may not authorize the State Govt. for conversion of the post of general subjects to Urdu medium trainer.

That for the kind perusal of this Hon’ble Court the Article-351 is being quoted below: -

“ Directive for development of the Hindi Language; - It shall be the duty of the Union to promote the spread of the Hindi Language, to develop it so that it may serve as a medium of expression for all the elements of the composite culture of India and to secure its enrichment by assimilating without interfering with its genius, the forms, style and expressions used in Hindustani and in the other languages of India specified in the Eighth Schedule, and by drawing, wherever necessary or desirable, for its vocabulary, primarily on Sanskrit and secondarily on other languages.”

That for the kind perusal of this Hon’ble court article 394-A is being quoted below: -

 “394-A. Authoritative text in the Hindi Language; - (1) The President shall cause to be published under his authority, -

a.     the translation of this Constitution in the Hindi language, signed by the members of the Constituent Assembly, with such modifications as may be necessary to bring it in conformity with the language, style and terminology adopted in the authoritative texts of Central Acts in the Hindi language, and incorporating therein all the amendments of this Constitution made before such publication; and

b.     the translation in the Hindi language of every amendment of this Constitution made in the English language.

(2) The translation of this Constitution and of every amendment thereof published under clause (1) shall be construed to have the same meaning as the original thereof and if any difficulty arises in so construing any part of such translation, the President shall cause the same to be revised suitably.

(3) The translation of this Constitution and of every amendment thereof published under this article shall be deemed to be, for all purposes, the authoritative text thereof in the Hindi language.”

That the Appellants may be allowed to challenge the propriety, competency and the jurisdiction of the Govt. orders dated 16.2.2005, 18-3-2006 and 15-9-2006 including the advertisement published thereof as well as they may also be permitted to challenge the validity of clause 9 (a) of Rule 5 read-with Rule 8 – Clause (4) as referred to in clause (a) and sub clause (iii) and (iv) of clause (b) of Rule 5 of  “ The U.P. Basic Education (Teachers) Service Rules (Eleventh Amendment) 2006” .

That the challenge of these Govt. orders and provisions are mainly on the grounds of Article 14, 15 and also on the grounds of being contrary to the secular status of our country assuring the fraternity and the unity and integrity in the preamble and in the basic structure of our constitution. No such reservation to the alleged linguistic minority groups could have been given by getting the conversion of the posts required to be filled up by the candidates belonging to the general subjects category even under Article 26, Article 28, Article 29 and Article 30 of the Constitution of India.

That the other ground of the challenge is based upon that despite no extension of intake regarding permission for conducting B.T.C. Course with Urdu and to teach the subject in the medium of Urdu from Class- 6 to 10 and thereby conducting the two years Urdu B.T.C. course was ever accorded in conformity with requirement of section 15 of the National Council Teacher’s Education Act, 1993, but the aforesaid conversion of the recruitment required to be filled up by the candidates belonging to general subjects to the group of alleged linguistic minority affecting the rights of the Appellants have been done by the State Govt. The same being contrary to the ratio laid down in 2006 J.T. (4) S.C. 201 (State of Maharashta Vs. Sant Dhyaneshwar Shikshan Santha Mahavidyala) as well as on the ground of the competency of no legislative power under Article 246 and 254 of the Constitution of India.

That the letter dated 18-5-2005 providing the special training in Urdu language through translated slab us of Hindi Medium in Urdu is contrary to the provisions of Article 343, Article 344,  Article 351 and 394-A (3) as the provision of Article 350-A as amended shall always be subject matter of the scrutiny made by these articles and as such the right of the Appellants for moving present impleadment application is made out and the Appellants may be permitted to place their submissions and their arguments may be considered by the Hon’ble Court before passing any judgement in present special appeal.

That the object and the purpose shown by the Secretary of Basic Education department in its affidavit dated 22.11.2006 is certainly may not provide any justification for issuance of Govt. Orders dated 16.2.2005, 18.3.2006 and 15.9.2006. For the convenient perusal of the national curriculum framework issued in 2000 and 2005 in the context of National Education Policy, 1986 and report on Indian Education Commission- 1964-1966 may be taken into consideration; -

(a) Report of the Indian Education Commission 1964-66 known as Kothari report which was submitted by Dr. D.S. Kothari in relations to Education system and the said committee made a recommendation that:

  (Chapter VIII, Para 8.35)

“ At the lower primary stage only language should be studies compulsorily the mother tongue or the regional language, at the option of the pupil. In the case of the vast majority of pupils, the language of study at this stage will be the regional language, which will also be their mother tongue. Some children belonging to the linguistic minorities may also opt for instruction in the regional language, because of its great advantages, but this cannot be forced on them, and they have the right under the Constitution to have facilities provided for their primary education through their mother tongue. The State Governments should, therefore, provide primary schools teaching through the mother tongue for the children of linguistic minorities if they desire to have such an education, subject to the unusual condition approve by the Education Ministers ‘Conference (1994) that the minimum number of such children should be 10 in a class or 40 in a school.”

(b) National Education Policy, 1986 Program of Action. (Chapter XX Para2.)

 “ The emphasis in the policy is on the adoption of modern Indian languages as the media of instruction at the University stage. However, the need to provide education through the mother tongue, which may be different from the modern Indian language included in the VIII Schedule, is recognised, on academic grounds. The constitution of India recognizes in respect of linguistic minorities, the desirability of providing instruction through the mother tongue for first five years of education (Article 350-A). Every efforts is, therefore, required to implement this obligation, although a number of difficulties are likely to be encounter, administrative and financial feasibility of providing instructional facilities through a verity of mother tongue, difficulty to use some tribal languages as media of education etc.

(c) National Curriculum Framework 2000 by N.C.E.R.T. (Para 2.11)

  “The mother tongue in the most vial factor for the children’s intellectual, emotional and spiritual growth. The mother tongue is the “mother tongue” not because it is the mother’s tongue but because like the mother, it is central factor behind the nurturance of the children’s mental and emotional make up. Their perceptions, comprehension, responses creative expressions, thinking and analysis, all are maximally developed, therefore, through the medium of the mother tongue. The medium of instruction ideally, therefore, ought to be the mother tongue at all the stages of school education.

     In the regional language of state language, it must continue as the medium of instruction ideally at all the level of schooling or at least up to the end of elementary stage. However, in the case of those students whose mother tongue is different from the state language or regional language, the regional language may be adopted as a education only from the IIIrd Stancard onward. IN the earlier years the student’s mother tongue ought to be used in such a manner that a anooth transition from the student’s operations in the mother tongue to those in the original language naturally takes place at the earliest.”

(d) National Curriculum Framework 2000 by N.C.E.R.T. (Chapter III 3.11)

 “ Today, we know for certain that by bilingualism or multi-lingualism confers definite, cognitive, advantages. The three- languages formula in an attempt to address the challenges and opportunities of the linguistic situation in India. It is a strategy that should ready serve as a launching pad for learning more languages. It needs to be followed both in letter and spirit. Its primary aim is to promote multilingualism and national harmony. The following guidelines may help us achieve this aim.

·         Language teaching needs to be multilingual not only in terms of the number of languages offered in children but also in terms of evolving strategies that would use the multilingual classroom as a resource.

·         Home language (s) of children as defined above n 3.1 should be the medium of learning in schools.

·         If a school does not have provisions for teaching in the child’s home language (s) at the higher levels, primary school education must still be covered through the home language (s). It is imperative that we honor the child’s home language (s). According to Article 350-A of our Constitution. “It shall be the endeavour of every State and of every local authority within the State to provide adequate facilities for instruction in the mother tongue of the primary stage of education to children belonging to linguistic minority groups.” 

That the Appellants are also placing the Govt. order dated 11.8.1997 providing the equivalent qualification to the trained B.T.C., Hindustani teachers Certificate, Junior teacher certificate and teachers certificate being set aside. Such equivalent qualification may not be the certificate of Moallim—e-Urdu, which has been de-recognized by the State Govt. and as such no such amendment could have been done subsequently by repealing the effect of the previous stand taken in the different Govt. orders including the guidelines given in Education Curriculum 1964-66.

That the decision taken by the State Govt. for issuance of aforesaid Govt. orders is not in consonance with the provisions of Uttar Pradesh Authentication (Order and other instruments) Rules, 1975.

That without teaching the Urdu language in class 1 to 5 on the pretext of that no specified subject Urdu is provided in the primary schools and as such after taking the alleged permission from N.C.T.E. for having proficiency in Urdu in primary schools, there could have not been any conversion of such approval for teaching other subjects in Urdu language as medium of proficiency of Urdu in secondary education from class 6 to 10, for which Special B.T.C. Course general subjects were organized, but the conversion of the vacancy to the aforesaid course is certainly a fraud on power by the State Govt.

That the Eleven Judges Bench of the Apex Court in T.M.A. Pai Foundation and others v. State of Karnataka, AIR 2003 SC 356 has also considered report of the Advisory Committee on minority placed in the Constituent Assembly. A part of Paragraph 160 is being reproduced below: -

“160. A citizen of India stands in a similar position The Constitution recognizes the differences among the people of India, but it gives equal importance to each of them, their differences notwithstanding, for only then can there be a unified secular nation. Recognizing the need for the preservation and retention of different pieces that go into the making of a whole nation, the Constitution, while maintaining, inter alia, the basic principle of equality, contains adequate provisions that ensure the preservation of these different pieces."

That one of the Hon'ble Judge in Eleven Judges' Bench of the Apex Court in Paragraphs 169, 170 and 184 observed as follows:-

"169. Dr. B.R. Ambedkar while intervening in debate in regard to amendment to draft Art.23 which related to the rights of religious and linguistic minorities stated that "the term 'minority' was used therein not in the technical sense of the word minority as we have been accustomed to use it for purposes of certain political safeguards, such as representation in the legislature, representation in the services and so on." According to him, the word minority is used not merely to indicate, the minority in technical sense of the word, it is also used to cover minorities which are not minorities in the technical sense but which are nonetheless minorities in the cultural and linguistic sense. Dr. Ambedkar cited following example, which runs as under:-

     "For instance, for the purposes of this Art. 23, if a certain number of people from Madras came and settled in Bombay for certain purposes, they would be, although not a minority in the technical sense, cultural minorities. Similarly, if a certain number of Maharastrians went from Maharashtra and settled in Bengal, although they may not be minorities in technical true sense, they would be cultural and linguistic minorities in Bengal.

That the Article intends to give protection in the matter of culture, language and script not only to a minority technically, but also to a minority in the wider sense of the term as I have explained just now.  That is the reason why we dropped the word minority because we felt that the word might be interpreted in the narrow sense of the term when the intention of this House, when it passed Art. 18, was to use the word "minority” in a much wider sense, so as to give cultural protection to those who were technically not minorities but minorities nonetheless." (See Constituent Assembly Debates Official Report reprinted by Lok Sabha Secretariat).

    “170. The draft article and the Constituent assembly Debates in unambiguous terms show that minority status of a group of persons has to be determined on the basis of population of a State or Union Territory.
184. In view of what has been stated above, my conclusion on the question who are minorities either religious or linguistic within the meaning of Article 30 is as follows:

  “The person or persons establishing an educational institution who belong to either religious or linguistic group who are less than fifty per cent, of total population of the State in which educational institution is established would be linguistic or religious minorities."

54. That Paragraph 246 of the judgment of the Apex Court is also very relevant, the same is being quoted below:-

"246.  It has been settled by a catena of decisions of this Court (In RE: The Kerala Education Bill, 1957 (1959 SCR 995), Rev. Sidhajbhai Sabhjai & Ors. v. State of Bombay & Anr..(1963 (3) SCR 837), The Ahmedabad St. Xavier's College Society & Anr. (1975 (1) SCR 173) and St. Stephen's College v. University of Delhi (1992 (1) SCC 558), that Article 30 of the Constitution conferred special rights on the minorities (linguistic or religious).

That the word 'minority' is not defined in the Constitution but literally it means 'a non-dominant' group.   It is a relative term and is referred to, to represent the smaller of two numbers, sections or group called 'majority'.  In that sense, there may be political minority, religious minority, linguistic minority, etc."
Paragraph 143 of the judgment of Apex Court is also very relevant in the context of the matter before the Court, the same is being quoted below:-

   "143.  This means that the right under Art. 30(1) implies that any grant that is given by the State to the minority institution cannot have such conditions attached to it, which will in any way dilute or abridge the rights of the minority institution to establish and administer that institution.  The conditions that can normally be permitted to be imposed, on the educational institutions receiving the grant, must be related to the proper utilization of the grant and fulfillment of the objectives of the grant.  Any such secular conditions so laid, such as a proper audit with regard to the utilization of the funds and the manner in which the funds are to be utilized, will be applicable and would not dilute the minority status of the educational institutions.  Such conditions would be valid if they are also imposed on other educational institutions receiving the grant."

That the Apex Court in T.M.A. Pai Foundation case (supra) has recoded a finding in Paragraph-158

“ That India consists of six main ethnic groups, 52 major Tribes, six major religions, 6400 castes and sub-castes, 18 major languages and 1600 minor languages and dialects.  The Apex Court further found that Muslims are neither unprivileged nor weaker section of the Indian society, but the protection of minority was introduced only to instill in them a sense of security and confidence.
On consideration of Constituent Assembly debates, it transpires that at the time of partition on the basis of two nations theory India was partitioned on the ground that Hindus and Muslims constitute two nations, most of the Muslims were expected to go to Pakistan and only few nationalist Muslims were expected to remain in India who were insecure or lacking confidence at the time of partition. The questions arise to be considered Whether sense of insecurity and lack of confidence prevailing at the time of partition still continuing in 2007 and Muslim community are still continuing as minority and how minority will be calculated in comparison to which religious group?”  
57. That in order to consider these questions, the Court has gone through the relevant part of proceeding of Constituent Assembly.

 That the Constituent Assembly Debates (Proceedings commenced on 9.12.1946 and continued till 24.1.1950 (Vol. 1, published by Lok Sabha Secretariat, New Delhi, 1989)) make it clear that Constituent Assembly appointed an Advisory Committee on minority, which submitted a report on minority rights before the Constituent Assembly.  Constituent Assembly deliberated the issue and fixed certain percentage of population for consideration of any community as religious minority community.
From perusal of the report, it transpires that the Advisory Committee on Minority divided minorities according to their strength and population and prepared a Schedule in three parts, the same is being reproduced below:-
    "...We have divided the minorities according to their strength or according to their population.  In the Schedule the three parts are set out and dealt with separately because they require separate consideration proportion to their strength...."
59. That the Court is considering of only such religious minorities mentioned in the Schedule of Advisory Committee on Minority, notified in notification dated 23.10.1993 issued by Government of India under Section 2(c) of National Minority Commission Act, 1992.
From perusal of the Constituent Assembly Debates dated 27th August, 1947, it is clear that the Schedule of religious minority communities was prepared.

           "This Schedule is based on the strength of the communities in order that the relevant provisions in the subsequent section may fit in and therefore this is merely a formal matter.  There is no controversy about it."

 That the report of the Advisory Committee on minority containing Schedule was adopted on 27.8.1947. Some members of the Constituent Assembly belonging to Muslim religion were demanding some special rights including proportionate representation of Muslims.  Deliberations made in Constituent Assembly by some members on the rights of minorities are relevant in the present context, same are being reproduced as follows:-

         Speech of  Dr. P.S. Deshmukh

      ".........I believe I voice the feeling of a large section of this House when I say that the representatives of these minorities have taken a long  and nationalistic view of the whole matter and provided they do not do anything to spoil the good effect.  I would like to assure them on behalf of us all that they will never have any occasion to repent what they have conceded.  It should always be remembered that we are, speaking the bare truth, a highly charitable and liberal-minded people.  Some of our Muslim friends, mostly as a result of the British policy, painted us as tyrants and majority-made oppressors.  I have never found any justification for such an accusation, but an unjust and untrue charge was repeated ad nauseous and somehow sustained throughout the last so many years.  It is upon those false foundations that Pakistan was demanded and conceded.  Very few showed patience to analyze the facts.  Rather than tyrannize the minorities, the fact was that in most places the minorities’ privileges far in excess of what may be called just or fair.  In my own curious Province, Muslims still enjoy a position, which is even today denied to over 60 per cent of the peasants and workers by our own Hindu rulers. This is not an occasion on which I would like to go further into the matter than this.  I am content that no minority is going to try any more to deprive others of what legitimately belongs to them.  For many years past, it was the majority that has been tyrannized.  Unfortunately, the so-called majority is dumb and deaf and although many of us try always to speak in their name, I have no hesitation in stating that we have completely failed in translating our words into action.  May I ask, Sir, what place has been given to millions of Jats, millions of Ahirs, Gujars, Kurmis, Kunbs, the Adibasis and millions of others.  Have we not been a little too engrossed in our own exploits and have given inadequate though to the thousands of these poor people who have sacrificed their lives to give us the present freedom.  What place have we assigned to them except to visualize that they will as heretofore blindly, meekly and religiously vote for any one we will choose for them.  From this point of view, the situation is gloomy even today...."

That Mr. H.J. Khandekar, one of the members of the Constituent Assembly while replying the same on 28th August, 1947 made following speech:-

    ".....Speaking plainly it means that he desires separate electorates in a different form.  I may explain to you the effects of separate electorates in this country.   It was because of Lord Mortley Minto that Muslims got separate electorates and the result was that our country was divided into two.  The same separate electorates are being brought before us in the form of percentage.  If this is accepted either for Harijans or for our Muslim brothers, then it would mean the fulfilment of what my friend Mr. Jinnah has always said "Muslims of India and Muslims of Pakistan"-which means the preparation for Pakistan within India.  Much suffering has been caused already.  India has been divided into two.  Brother Muslims have got what they wanted and was for their benefit.  Having got that, they should be good enough not to try to create Pakistan within India and should not bring an amendment of this sort in this House......"

That Mr. Naziruddin Ahmad and other speakers also wanted some reservation for muslim community in the Constitution of India, which was refused by the Constituent Assembly and Honourable Sardar Vallabhbhai J. Patel, President of Advisory Committee while  replying for such demands of members of the minorities made following speech in the Constituent Assembly, relevant part of which is being quoted below:-

     "....I thought that our friends of the Muslim League will see the reasonableness of our attitude and allow themselves to accommodate themselves to the changed conditions after the separation of the country.  But I now find them adopting the same methods, which were adopted when the separate electorates were first introduced in this country, and in spite of ample sweetness in the language used there is a full dose of poison in the method adopted.  (Hear, Hear).  Therefore, I regret to say that if I lose the affection of the younger brother, I am prepared to lose it because the method he wants to adopt would bring about his death.  I would rather lose his affection and keep him alive.  If this amendment is lost, we will lose the affection of the younger brother, but I prefer the younger brother to live so that he may see the wisdom of the attitude of the elder brother and he may still learn to have affection for the elder brother.
Now, this formula has a history behind it and those who are in the Congress will be able to remember that history.  In Congress history this is known as the Mohammad Ali Formula.  Since the introduction of separate electorates in this land there were two parties amongst the Muslims.  One was the Nationalist Muslims or the Congress Muslims and the other the Muslim League members, or the representatives of the Muslim League.  There was considerable tension on this question and at one time there was a practical majority against this joint electorate.  But a stage was reached when, as was pointed out by the Mover of this amendment in Allahabad a settlement was reached.  Did we stand by that settlement?  No.  We now have got the division of the country.   In order to prevent the separation this formula was evolved by the nationalist Muslims, as a sort of half-way house, until the nation becomes one; we wished to drop it afterwards.  But now the separation of the country is complete and you say, let us introduce it again and have another separation.  I do not understand this method of affection.  Therefore, although I would not have like to say anything on this motion, I think it is better that we know our minds perfectly each other, so that we can understand where we stand.  If the process that was adopted, which resulted in the separation of the country, is to be repeated, then I say: Those who want that kind of thing have a place in Pakistan, not here (Applause).  Here, we are building a nation and we are laying the foundations of One Nation, and those who choose to divide again and sow the seeds of disruption will have no place, no quarter, here, and I must say that plainly enough.  (Hear, Hear.)  Now, if you think that reservation necessarily means this clause as you have suggested, I am prepared to withdraw the reservation for your own benefit.  If you agree to that, I am prepared, and I am sure no one in this House will be against the withdrawal of the reservation if that is a satisfaction to you.  You cannot have it both ways.  Therefore, my friends you must change your attitude, adapt yourself to the changed conditions.  And don't pretend to say "Oh, our affection is very great for you".  We have seen your affection.  Why talk of it?  Let us forget the affection.  Let us face the realities.  Ask yourself whether you really want to stand here and cooperate with us or you want again to play disruptive tactics.  Therefore, when I appeal to you, I appeal to you to have a change in your heart, not a change in the tongue, because that won't pay here.  Therefore, I still appeal to you: "Friends, reconsider your attitude and withdraw your amendment".  Why go on saying, "Oh, Muslims were not heard; Muslim amendment was not carried".  If that is going to pay you, you are much mistaken, and I know how it cost me to protect the Muslim minorities here under the present condition and in the present atmosphere.  Therefore, I suggest that you don't forget that the days in which the agitation of the type you carried on is closed and we begin a new chapter.  Therefore, I once more appeal t you to forget the past.  Forget what has happened.  You have got what you wanted.  You have got a separate State and remember, you are the people who were responsible for it, and not those who remain in Pakistan.  You led the agitation.  You got it.  What is it that you want now?  I don't understand.  In the majority Hindu provinces you, the minorities, you led the agitation.  You got the partition and now again you tell me and ask me to say for the purpose of securing the affection of the younger brother that I must agree to the same, thing again to divide the country again in the divided part.  For God's sake, understand that we have also got some sense.  Let us understand the thing clearly.  Therefore when I say we must forget the past, I say it sincerely.  There will be no injustice done to you.  There will be generosity towards you, but there must be reciprocity.  If it is absent, then you take it from me that no soft words can conceal what is behind your words.  Therefore, I plainly once more appeal to you strongly that let us forget and let us be one nation....."
63. That the amendment proposed by the Muslim members were refused by the Constituent Assembly on the reservation and separate electorate.
The matter was again considered by the Constituent Assembly while considering  Article 17, i.e., "Conversion from one religion to another brought about by coercion or undue influence shall not be recognized".

That the Speech of Shri R.V. Dhulekar, member of the Constituent 

                     Assembly  is very relevant in the context of controversy involved in the

present case, the same is being reproduced below:-

    "Mr. President, my opinion is that clause 17 should be retained as it stands.  In the present environment, all sorts of efforts are being made to increase the population of a particular section in this country, so that once again efforts may be made to further divide the country.  There is ample proof, both within this House and outside that many who live in this country are not prepared to be the citizens of this country.  Those who have caused the division of our land desire that India may be further divided.  Therefore in view of the present circumstances, I think that this clause should be retained.  It is necessary that full attention should be paid to this.  While on tour, I see every day refugees moving about with their children and I find them at railway stations, shops, hotels, bakeries and at numerous other places.  The men of these bakeries abduct these women and children.  There should be legislation to stop this.  I would request you that an early move should be made to stop all this and millions of people would be saved.  I submit that we cannot now tolerate things of this nature.  We are being attacked and we do not want that India's population, the numerical strength of the Hindus and other communities should gradually diminish, and after ten years the other people may again say that "we constitute a separate nation".  These separatist tendencies should be crushed. Therefore, I request that section 17 may be retained in the same form as is recommended by the Advisory Committee."

 That in  Constituent Assembly debate dated 27th August, 1947 Sri B. 

              Pocker Sahib Bahadur, a Representative of Muslim from Madras made

               following statement:-

      ".....At present the Muslims are strong and well-organised.  Now, if they are made to feel that their voice cannot even be heard in the Legislature, they will become desperate.  I would request you not to create that contingency...." (Page 214 of the Constituent Assembly Debates). Aforesaid statement of a Muslim representative was made in the Constituent Assembly debates after partition of the country has taken place. Participating in the debate of the Constituent Assembly, Sri M. Ananthasayanam Ayyangar, a representative of Madras in his speech before the Constituent Assembly stated as follows:-
     "....In my part of the world, the Madras Presidency, though the Muslims are in a minority, they also joined in this move for separating the country.  Have you a responsible for it? Have you a paralled to this carriage that is going on in the Punjab whoever may be responsible for it."

That replying the debates, the President of the Advisory Committee on Minority has made a speech, relevant part of which is being reproduced below:-

     "My friends the Mover of this amendment says the Muslim community today is a strong-knit community.  Very good, I am glad to hear that, and therefore I say you have no business to ask for any props (Cheers).  Because there are other minorities who are not well-organised, and deserve special consideration and some safeguards, we want to be generous to them”.

. That this was the situation at the time immediately after partition coupled with the finding recorded by the Apex Court that Muslim minorities were never regarded as weaker and unprivileged section of the society, but only for a sense of security and confidence minorities  were given special treatment.  

       That in Paragraph 246 of the Eleven Judges' Bench judgment of the Apex Court in T.M.A. Pai Foundation and others v. State of Karnataka case reported in AIR 2003 SC 356, word minority was defined and it means 'a non-dominant' group.  

“It is a relative term and is referred to represent the smaller of two numbers. Considering the controversy of Muslim minority in its entirety, this Court feels it appropriate to consider whether the Muslims in India or in State of Uttar Pradesh are non-dominant group which is the intention of the Constitution of India as held by the Apex Court in Eleven Judges' Bench Judgment in T.M.A. Pai Foundation case (supra) followed by the judgments of the Apex Court reported in 2005 (3) ESC 373,  (2003) SCC (6) 697, Islamic Academy of Education and another v. State of Karnataka and others”.  

     That the Apex Court while considering the case of Jain community claiming as minority has laid down certain principles relating to minority and made observations that such demands may lead to multi-nationalism.

   That in this regard Paragraphs 10, 14, 20, 21, 22, 23, 25, 32, 33, 34, 36 of Three Judges' Judgment of the Apex Court in Bal Patil and another v. Union of India and others reported in AIR 2005, SC, 3172 are very relevant, same are being reproduced below:-

"10. The expression 'minority' has been used in Article 29 and 30 of the Constitution but it has nowhere been defined.  The Preamble of the Constitution proclaims to guarantee every citizen 'liberty of thought, expression, belief, faith and worship'.  Group of Articles 25 to 30-guarantee protection of religious, cultural and educational rights to both majority and minority communities.  It appears that keeping in view the constitutional guarantees for protection of cultural, educational and religious rights of all citizens, it was not felt necessary to define 'minority'.  Minority as understood from constitutional scheme signifies an identifiable group of people or community who were seen as deserving communities who happen to be in majority and like to gain political power in a democratic form of Government based on election.

“14. On considering the general functions of the Commission enumerated under section 9 which are only illustrative and not exhaustive, the Commission cannot be said to have transgressed its authority in entertaining representation, demands and counter-demands of members of Jain community for the status of 'minority'.  Keeping in view the provisions of the Act, the recommendation made by the Commission in favour of the Jains is in the nature of advice and can have no binding effect.  The power under Section 2(c) of the Act vests in the Central Government, which alone, on its own assessment, has to accept or reject the claim of status of minority by a community.

   “20. The history of the struggle for Independence of India bears ample testimony of the fact that the concept of 'minorities' and the demands for special care and protection of their religious and cultural rights arose after bitter experience of religious conflicts which intermittently arose in about 150 years of British Rule.  The demand of partition gained momentum at the time the Britishers decided to leave by handing over self-rule to Indians.  The Britishers always treated Hindus and Muslims as two different groups of citizens requiring different treatment.  To those groups were added Anglo-Indians and Christians as a result of large-scale inter-marriages and conversions of several sections of communities in India to Christianity.  Prior to passing of the Independence Act of India to hand over self-rule to Indians, Britishers in the course of gradually conceding some democratic right to Indians, contemplated formation of separate constituencies on reservations of certain seats in Legislature in proportion to the population of Hindus and Muslims. That attempt was strongly resisted by both prominent Hindu and Muslim national leaders who had jointly and actively participated in the struggle for independence of India.

  “21. The attempt of the Britishers to form separate electorates and make reservations of seats on the basis of population of Hindus and Muslims, however, ultimately led to revival of demand for reservation of constituencies and seats in the first elected Government to be formed in free India.  Resistance to such demands by Hindu and some Muslim leaders ultimately led to partition of India and formation of separate Muslim State presently known as Pakistan.

 “22. Many other revelations concerning competing claims for reservation of seats on religious basis can be gathered from the personal diary of prominent national leaders late Abdul Kalam Azad. The diary was made public, in accordance with his last wish only after 25 years of independence.  The publication of Azad's diary made it necessary for constitutional expert H.M. Seervai to re-write his chapter under caption 'Partition of India - Legend and Reality' in his book on 'Constitutional Law of India'.  Many apprehensions and fears were expressed and disturbed the minds of the Muslims. They thought in democracy to be set up in India, the Hindus being in majority would always dominate and retain political power on the basis of their voting strength.  There were also apprehensions expressed by many prominent Muslim leaders that there might be interference with and discouragement to their cultural, religious and educational rights. Abdul Kalam Azad acted as mediator in negotiations between the national leaders of the times namely late Nehru and Patel on one side and late Jinnah and Liaqat Ali on the other.  Nehru and Patel insisted that in the new Constitution, there would be one united India belonging to people of various religious faiths and cultures with all having full freedom of their social, cultural religious and other constitutional rights.  They advocated one single citizenship to every Indian regardless of his language or religion.  The opposing group of Muslim leaders, in the interest of members of their community, insisted on providing to them participation in democratic processes proportionate to their ratio of population and thus counter-balance the likely domination of Hindu majority.  They also insisted that separate electorate constituencies based on their population be formed and seats be reserved for them in different parts of India.  Late Abdul Kalam Azad tried his utmost to find a midway and thus break the stalemate between the two opposing groups but Nehru and Patel remained resolute and rejected the proposal of Jinnah and Liaqat Ali.  The tragic result was that provinces with the highest Muslim population in the erstwhile States of Sindh, Punjab and Baluchistan had to be ceded to form a separate theocratic nation - Pakistan.  See the following paragraph 1,314 at pg. 153 of 'Constitutional Law of India' by H.M. Seerval, Fourth Edition, Vol. I:-
"1,314. Azad passionately believed in Hindu-Muslim unity, but he found that from the mid-twenties Gandhi had lost interest in Hindu-Muslim unity and took no steps to secure it.  Further, Azad had played a leading part in providing a framework for the Constitution of a free and united India on which the Cabinet Mission Plan was largely based, a Plan which offered India her last chance to remain united.    However, Gandhi accepted partition instead, Azad did his utmost to prevent the partition of India, but he failed to persuade Nehru and Gandhi not to accept partition."

  “23. It is against this background of partition that at the time of giving final shape to the Constitution of India, it was felt necessary to allay the apprehensions and fears in the minds of Muslims and other religious communities by providing to them special guarantee and protection of their religious, cultural and educational rights.  Such protection was found necessary to maintain unity and integrity of free India because even after partition of India, communities like Muslims and Christians in greater numbers living in different parts of India opted to continue to live in India as children of its soil.

 
  “25. Parsis constituted a numerically smaller minority.  They had migrated from their native State Iran and settled on shores of Gujarat adopting the Gujarati language, customs and rituals thus assimilating themselves into the Indian population.

“32. We have traced the history of India and its struggle for independence to show how the concept of minority developed prior to and at the time of framing of Constitution and later in the course of its working, History tells us that there were certain religious communities in India who were required to be given full assurance of protection of their religious and cultural rights. India is a country of people with the largest number of religions and languages living together and forming a Nation.  Such diversity of religions, culture and way of life is not to be found in any part of the world.  John Stuart Mill described India as "a world placed at closed quarters".  India is a world in miniature. The group of Articles 25 to 30 of the Constitution, as the historical background of partition of India shows, was only to give a guarantee of security to the identified minorities and thus to maintain integrity of the country.  It was not in contemplation of the framers of the Constitution to add to the list of religious minorities.  The Constitution through all its organs is committed to protect religious, cultural and educational rights of all. Articles 25 to 30 guarantee cultural and religious freedoms to both majority and minority groups.  Ideal of a democratic society, which has adopted right of equality as its fundamental creed, should be elimination of majority and minority and so-called forward and backward classes. Constitution has accepted one common citizenship for every Indian regardless of his religion, language, culture or faith. the only birth in India.  We have to develop such enlightened citizenship where each citizen of whatever religion or language is more concerned about his duties and responsibilities to protect rights of the other group than asserting his own rights.  The constitutional goal is to develop citizenship in which everyone enjoys full fundamental freedoms of religion, faith and worship and no one is apprehensive of encroachment of his rights by others in minority or majority.

   “33. The constitution ideal, which can be gathered from the group of articles in the Constitution under Chapters of Fundamental Rights and Fundamental Duties, is to create social conditions where there remains no necessity to shield or protect rights of minority or majority.

   “34. The above-mentioned constitutional goal has to be kept in view by the Minorities Commissions set up at the Central or State levels.  Commissions set up for minorities have to direct their activities to maintain integrity and unity of India by gradually eliminating the minority and majority classes.  If, only on the basis of a different religious thought or less numerical strength or lack of health, wealth, education, power or social rights, a claim of a section of Indian society to the status of minority is considered and conceded, there would be no end to such claims in a society as multi-religious and multi-linguistic as India is.  A claim by one group of citizens would lead to a similar claim by another group of citizens and conflict and strife would ensure.  As such, the Hindu society being based on caste, is itself divided into various minority groups.  Each caste claims to be separate from the other.  In a caste-ridden Indian society, no section or distinct group of people can claim to be in majority. All are minorities amongst Hindus.  Many of them claim such status because of their small number and expect protection from the State on the ground that they are backward.  If each minority group feels afraid of the other group, an atmosphere of mutual fear and distrust would be created posing serious threat to the integrity of our Nation.  That would sow seeds of multi-nationalism in India.  It is, therefore, necessary that Minority Commission should act in a manner so as to prevent generating feelings of multi-nationalism in various sections of people of Bharat.

    “36. These concluding observations were required after the eleven-Judges' Bench in TMA Pai Foundation case (supra) held that claims of minorities on both linguistic and religious basis would be each State as unit.  The country has already been reorganized in the year 1956 under the States Reorganization Act on the basis of language.  Differential treatments to linguistic minorities based on language within the State is understandable but if if the same concept for minorities on the basis of religion is encouraged, the whole country, which is already under class and social conflicts due to various divisive forces, will further face division on the basis of religious diversities.  Such claims to minority status based on religion would increase in the fond hope of various sections of people getting special protections, privileges and treatment as part of constitutional guarantee.  Encouragement to such fissiparous tendencies would be a serious jolt to the secular structure of constitutional democracy.  We should guard against making our country akin to a theocratic State based multi-nationalism.  Our concept of secularism, to put it in a nutshell, is that 'State' will have no religion.  The States will treat all religions and religious groups equally and with equal respect without in any manner interfering with their individual rights of religion, faith and worship."

    In view of the judgment of the Apex Court in Bal Patil case (supra) after considering T.M.A. Pai Foundation case, it is clear that intention to provide minority status was to remove sense of insecurity and lack of confidence in the mind of Muslim and other religious communities at the time of partition of India and further the Apex Court cautioned the country not to create a theocratic State based on multi-nationalism and refused to recognise Jain as a minority.

                        That Considering the matter in its entirety, criterion for minority, i.e., population and strength and also judgments of the Apex Court referred above that the intention was to provide protection to a non-dominant group, this Court is of the view that at present Muslim religious community in U.P. is not a religious minority as there is no sense of insecurity or lack of confidence prevailing amongst them in present scenario. According to the finding of the Apex Court in T.M.A. Pai Foundation case (supra) that Muslim minority is not weaker or unprivileged section of the society.

          That the Appellants may be permitted to place the note on minority children in Parashiva Primary School as per the Government India instructions and the letter issued by the Govt. Of India Ministry of Human Resources Department to State Project Direction U.P. Education for all projects. The aforesaid correspondence is filed herewith in order to demonstrate that the same is inconsistence to the constitutional committee debate as there is the difference between Parliamentary discussions and that of the aforesaid debate, on the basis of which, Constitution of India was adopted by the Govt. of India prior to its becoming the Republic Day on 26^th January, 1950.

     That the Appellants most respectfully submits that by the bare reading of Article 343, Article 344, Article 351 and Article 394-A and Schedule VIII of the Constitution of India as well as preamble of our constitution, an attempt is made in the society as a multi-religious and multi-linguistic – caste ridden Indian, the competence of the court to try the question of the public importance, which arose to the public at large as the affected party, it has been held in case of Guruvayoor Devasvour Managing committee and another Vs. C.K. Ranjan (2003) 7 S.C.C. 546, Shivaji Rao Nilangekar Patil Vs. Dr. Mahest Madhav Gasavi as referred in this judgement and Rakesh Lanka and another Vs. Rishi Dixit (2005) 5 S.C.C. 298 and Prahlad Singh Vs. Col. Sukhdeo Singh 1987 (1) S.C.C. page 727  General Manager Kisan Sahakari Chini Mills Sultanpur Vs. Shatrughan Nishad A.I.R. 2003 S.C. 4531, the said question may be decided in order to protect the Rule of Law in the Society, otherwise it may erode the vary foundation on the basis of which our democratic institution has been founded with the power given to the constitutional court for judicial review of the administrative/ quasi judicial action. The case of U.P. Gram Panchayat Adhikari Sangh Vs. Daya Ram Saroj 2007 (2) S.C.C. 138, is not applicable for setting aside the judgement passed on 14.9.2007.

      That it is, therefore, most respectfully prayed that the present appeal may be allowed and they may be permitted to place their submissions for the protection of their rights as the conversion of the trainees of general subjects to the Urdu subject trainees having the proficiency in the said language in special B.T.C. training course-2004 granted to such individuals on the basis of Govt. Order dated 16.2.2005, 18-3-2006 and 15.9.2006 and the advertisement thereof is an action without jurisdiction and the same is ultra-vires a fraud and colourable exercise of power of the State Govt., which has rightly been dealt with in the judgement dated 14.9.2007 challenged in the present special appeal.

The following questions of the law arises for consideration by this

Hon'ble Court:

A) Whether the ratio of  the  judgement of  Eleven Judges Bench of the Apex Court in T.M.A. Pai Foundation and others v. State of Karnataka, AIR 2003 SC 356, having  considered report of the Advisory Committee on minority placed in the Constituent Assembly may be overruled by the Impugned Judgement?.

B) Whether the learned Single Judge  was not  competence to try the question of the public importance in passing the judgement dated 14.9.2007 in Writ Petition no. 44085 of 2006 ?.

C) Whether the learned Single Judge  was not justified in passing the judgement dated 14.9.2007 in Writ Petition no. 44085 of 2006 on the basis of Article 343, Article 344 Article 351 and Article 394-A readwith  Schedule VIII of the Constitution of India?.

 D) Whether the Government orders dated 16.2.2005, 18.3.2006 and order dated 15. 9.2006 are  not illegal and inoperative and a fraud with  a colourable exercise of jurisdiction without having the Concurrence from National Council for Teachers Education, Northern Region, Jaipur in conformity with requirement of section 15 of the National Council Teacher’s Education Act, 1993?.

E) Whether the amendments made to Rule 8 (5) vide Uttar Pradesh Basic Education (Teachers) Service (Eleventh Amendment) Rules, 2006 as no amendment is recorded in Rule 5 of aforesaid Rules for Urdu language Teacher, which place down the source of recruitment, may authorize the State Govt. for conversion of the 13189 posts of general subjects to Urdu medium trainer?.

F)  Whether the amendment of clause 9 (a) of Rule 5 read-with Rule 8 – Clause (4) as referred to in clause (a) and sub clause (iii) and (iv) of clause (b) of Rule 5 of  “ The U.P. Basic Education (Teachers) Service Rules (Eleventh Amendment) 2006” is not violative of Article 246 and Article 254 in absence of Sanction of Central Govt.?.

G) Whether the basic Structure of our Constitution including the  preamble of our constitution  may be subjected to  be reviewed by Article 350- A for implementing the proposed recommendations of Sachhar Commission  prior to it’s implementation  in State of U.P.?.

H) Whether the Hon’ble  Court  shall not provide endeavored to avoid Indian multi-religious and multi-linguistic – caste ridden Conflicts in Our Society, which was done by the Judgement of Learned Single Judge dated 14.09.2007 in Writ petition No. 44085 of 2006?.

Reserved
Civil Misc. Writ Petition No. 44085 of 2006
Km. Sumbul Naqvi .....Petitioner
Vs.
State of U.P. and others ..... Respondents
Along with connected Writ Petition Nos. 23362/05, 41406/05, 63306/06, 63336/06, 63245/06, 56175/06, 64115/06, 64174/06, 64853/06, 64860/06, 65029/06, 65091/06, 55762/06, 66003/06, 66132/06, 66895/06, 67549/06, 67143/06, 67253/06, 67725/06, 67822/06, 45381/06, 65285/06, 68529/06, 68792/06, 68912/06, 68916/06, 68849/06, 69070/06, 70245/06, 51409/06, 58479/06, 47044/06,  60007/06, 60389/06,  60296/06, 60520-06, 61459-06, 61770/06, 70783/06, 70338/06, 70117/06, 8571/07, 340/07,   14799/07,  760/07, 785/07, 1072/07, 7732/07, 5681/07, 6866/07, 3712/07, 5588/07, 2444/07, 5076/07, 3039/07, 3206/07, 1866/07, 1851/07, 24382/07, 9829/07, 14025/07, 14228/07, 23837/07, 23809/07, 22788/07, 21792/07, 14592/07, 8320/07.
HON. ARUN TANDON, J.