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PUBLIC INTEREST WRIT PETITION(CIVIL) NO. 1942 OF 2012 IS MERITORIOUS

ENOUGH TO BE HEARD BY THE COURT

Any person who complains of any infraction of the fundamental rights guaranteed by the

constitution id at liberty to move the Supreme Court. Any member of the public havingsufficient interest can maintain an action for judicial redress for public injury arising from thebreach of public duty or from violation of some provision of the constitution or the law and seek

enforcement thereof of such public duty and observance of such constitutional or legal provision.This is absolutely essential for maintaining the rule of law, furthering the cause of justice and

accelerating the pace of realization of constitutional objective.

JUSTICE KRISHNA IYYER IN Fertilizer corpn. Kangar union v. Union of India 1said: If a

citizen belongs to an organization which has special interest in the subject- matter ,has some

interest deeper than that of a busy body ,he cannot be told off the gates .

Here private unaided non-minority educational institutions are directly affected by the decision

given under writ petition(civil) No. 1066 of 2010 and by the provisions of the right of children tofree and compulsory education Act 2009 passed by the State of Konigsberg.

Prof. Sathe has summarized the extent of the jurisdiction which has been exercised in the

following words: PIL may, therefore ,be described as satisfying one of the following parameters.These are not exclusive, but merely descriptive:

1. Where the concerns underlying a petitioner are not individual but are shared widely by alarge number of people.

2. Where the affected persons belong to disadvantaged section of the society.3. Where judicial law making it necessary to avoid exploitation.4. Where judicial intervention is necessary for the protection of sanctity of democratic

institutions.Here in this case, it is clearly visible thatpetitioners concern is shared by a specific groupcomprising of large number of people, it is necessary for the judiciary to interfere in matter

so as to avoid the exploitation of non- minority private unaided institutions as the group is

deprived of its fundamental rights under 19(1)(g) and Article 14 so the right to life enshrined

in Article 21 which is the soul of fundamental rights guaranteed to every citizen of thecountry. And judicial intervention is necessary for protecting the sanctity of fundamental

rights provided to citizens under partIII of the constitution.

1AIR 1981 SC344

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BURDENI NING ONLY THE NON-MINORTY INSTITUTIONS AND NOT THE

MINORITY INSTITUTION IS VIOLATIVE OF ARTICLE 14 OF THE CONSITUTION

Supreme courts three judge bench in its judgment dated 12-04-2012 unanimously held that RTE

Act was invalid so fas as minority unaided private educational institution as it violated theirfundamental rights under article 29 and 30 and by majority of two to one upheld the

constitutional validity of RTE in respect to the private unaided non-minority institutions and socreating a arbitrary classification in respect to the object that legislation in question sought to

achieve.

While classifying two groups or persons of the society, it must be kept into the mind that

classification must be:

1. Founded on intelligible differentia which distinguishes persons or things together fromother left out;

2. That the differential must have a rational relation to the object sought to be achieved, theimpugned legislation ,

or executive order would plainly be arbitrary and the guarantee of equality under Article14 would be breached.

Classification made must not only be based on some qualities of characteristics which are tobe found in all persons grouped together and not in others who are left out, but those qualities

or characterization much have reasonable relation to the object of the legislation. Otherwise itwill be arbitrary.2

Right to education Act, was passed in order to achieve the object and reason stated in Article

21-A

the constitution of India in a directive principle contained in article 45, has made a provision for

free and compulsory education for children upto the age of 14 years within ten years ofpromulgation of the constitution. And thats why act vide section 12(1)(c) burden both minority

and non- minority institution to give 25% reservation to financially weaker section.

Minority as defined inA.M Patoni v. EC kesvan is any community, religious or linguistic,

numerically less than 50% of the population of the state. So the minority community also have a

financially weak section within itself, And differentiating between minority and non- minority

do not have a reasonable relation to the object of the legislation, which in order to provide free

and compulsory education to all children of age of six to fourteen years ,burden only non-

minority institutions to give 25% reservation to financially weaker section of the society.

Burdening only non- minority institutions and not minority institution do not seem to be thedifference capable to be understood in task of providing education to all children of 6-14 years

and do not seem to be a relevant in order to achieve the ultimate goal of right to education act ,

i.e providing universal quality education.

Supreme Court in its judgment of writ petition (civil) No. 1066 of 2010 by creating this arbitraryclassification has obstructed the goal that legislation sought to achieve. And thus violated the

right to equality enshrined under article 14 of the constitution.

2R.K garg v. union of India (1981) 1 scc 722

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CHIEF JUSTICE OF KONIGSBERG HAS VIOLATED ARTICLE 14 AND 21 OF

THE PETITIONERS

Chief justice of Konigsberg along with two other judges of the 3 judge bench listening thematter in writ petition (civil) No 1066 of 2010, in hearing on January 17,2011 expressed

before the learned counsel that it is not in favour of referring the matter to a constitution

bench as the supreme court was hard pressed for work and referring the matter toconstitutional bench would prolong the hearing and thus violated the Fundamental right of

equality enshrined in Article 14 and right to life under Article 21 of the constitution.

In the case ofstate of Rajasthan Vs. Prakash Chand and Ors3it was held that the Chief

Justice is the master of the roster. He alone has the prerogative to constitute benches of thecourt and allocate cases to the benches so constituted. And as the power vests in him of

framing the roster he can direct any particular matter to be placed for hearing before anyparticular bench of any strength in spite of the rules laid down. Having all the power toconstitute the bench, Chief justice of Konigsberg still refused to refer the matter on specious

grounds that court is hard pressed for work, for if it had been so he still had the power torefer the matter to bench any number of judges as may be determined by the urgent need of

judiciary as held in the case ofCentral board of davoodi bohra community v. state of

Maharashtra4- having regard to the volume of work demanding the attention of the

supreme court of India, it has been found necessary as a general rule of practice and

convenience that the court should sit in divisions consisting of judges whose number may be

determined by exigencies of judicial need and by such other consideration which the chief

justice in whom such authority devolves by convention ,may find most appropriate. He is

also empowered to appoint ad hocjudges under article 127 of the quoroum required by Cl.(2)or (3) of Article 145 is not available at any time owing to illness, absence or like.

5Thus the

excuse laid down for not referring the matter to the constitutional bench are no doubt ,

specious.

It is also directed to him to direct any matter of constitutional interpretation to 5 judges bench

by way of clause(3) of Article 145 , thus in the case chief justice thepater familias of thejudiciary of Konigsberg has not only violated the fundamental rights of the petitioners as they

were denied to represent their grievances in front of appropriate forum but also violated the

directions prescribed under article 145(3).

3AIR1998SC1344

4Central board of davoodi bohra community v. state of Maharashtra AIR 2005 SC 752

5CL(3) Of article 145 provides that not less than five judges shall sit for deciding any case involving the substantial

question on constitutional interpretation.

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DENIED PETITIONERS HAVE BEEN DENIED THE RIGHT TO HEARING

BY CHIEF JUSTICE OF KONIGSBERG AND THUS VIOLATING THE

PRINCIPLES OF NATURAL JUSTICE

A.K. MUKHERJEA, J.stated in the case ofkeshav mills Co.Ltd v.Union of India

6

what are the principles of natural justice that should regulate and administrative act or

order is much more difficult to answer. We do not think it either feasible to lay down any

fixed or rigorous yardstick in this manner. The concept of natural justice cannot be put into a

straitjacket. It is futile, therefore to look for definitions or standards of natural justice from

various decisions and then try to apply them to the facts of any case. The only essential point

that has to be kept in mind in all cases is that the person concerned should have a reasonable

opportunity of presenting his case and that the administrative authority concerned should act

fairly, impartially and reasonably. Where administrative officers are concerned, the duty is

not so much to act judicially as to act fairly.

Here the petitioners have not been given a proper opportunity to present their case before the

court of law. The vague, biased and mala fide act of not referring the matter to five judgesconstitutional bench by chief justice of Konigsberg, has resulted into infringement of

petitioners right under Article 14 which amounts to denial of equality.

Emphasis has been laid on administrative functionaries to act fairly, as the basic aim is to

prevent miscarriage of justice and to arrive at a just decision. Arbitrariness should not appearin administrative actions or decisions

6( 1973) 1SCC 380