On the issue of government funding of religious education in institutions, the Allahabad High Court has directed the Registry to register a Public Interest Litigation (PIL) as a separate case.
The Division Bench of Justice Devendra Kumar Upadhyaya and Justice Om Prakash Shukla passed this order while hearing an appeal filed by Azaj Ahmad and Others.
The intra-Court appeal arises out of the proceedings drawn by the Single Judge in Writ wherein two orders, namely, the order dated 17.05.2023 and the other order dated 27.03.2023 have been passed.
By the order dated 17.05.2023, intervention application moved by the NCPCR has been allowed and the NCPCR has been permitted to intervene in the proceedings.
Submission of the Senior Advocate representing the appellants is that from a perusal of the two orders dated 27.03.2023 and 17.05.2023 passed by the Single Judge, it is apparent and more than clear that apart from considering the issue raised primarily in the writ petition, Single Judge also intends to consider the issues having wider ramification and some importance and that outcome of the writ petition will affect the education system as well as the rights of the children studying in Madrasas.
His submission, thus, is that it is apparent that the Single Judge intends to clearly embark upon a journey to adjudicate the issue of larger public interest which has cropped up before him during the pendency of the case, having due regard to the nature of grievances raised by the writ petitioner and the prayers made therein.
Drawing our attention to the prayer clause of the writ petition, it has been stated by the Senior Advocate that the writ petition was filed by the writ petitioner seeking a direction to the respondents therein to release his withheld salary and to pay him regular salary as admissible to him under law.
Thus, it has been argued by the Senior Advocate that apart from considering the prayers made in the writ petition on the basis of pleadings made by the writ petitioner, if certain issues relating to larger public interest crops up, the Court either sitting singly or in division benches is not precluded from taking cognizance of such issues, however, in that eventuality the law laid down by Full Bench of this Court in the case of Dinesh Kumar Singh @ Sonu vs State of U.P & Ors Decided on 05.01.2017 [Writ Petition No 2599 (MB) of 2014] has to be followed.
According to the Senior Advocate, in such a situation that part of the matter which touches upon or which needs to be addressed in larger public interest has to be referred to the Chief Justice for being referred to the Division Bench dealing with the Public Interest Litigation.
In this view, submission of the Senior Advocate is that no party to the proceedings before the Single Judge may have any grievance, whatsoever, if the matters directly or tangentially touching the issues of general public interest are taken up, however, in such a situation recourse needs to be taken to the law laid down by the Full Bench in the case of Dinesh Kumar Singh @ Sonu (supra).
Counsel representing the Union of India R.C Tiwari has submitted that counter affidavit on behalf of Union of India was prepared and it was to be filed as well, however, considering the order dated 17.05.2023 passed by the Single Judge, he has instructions to pray for more time for preparation of the counter affidavit. However, he does not deny that Public Interest elements in the matter have arisen as are apparent from a perusal of the orders dated 27.03.2023 and 17.05.2023 passed by the Single Judge.
Counsel representing NCPCR Swarupama Chaturvedi has submitted that NCPCR has sought its intervention in the matter only on account of the fact that certain anomalies and discrepancies relating to rights of the children in Madrasa have been noticed by the NCPCR. She has categorically stated that NCPCR has nothing to do with the original list amongst the writ petitioner, the management of the Madrasas and the State authorities though the NCPCR has been taking up the matter relating to children rights involved with the State Government as well.
Having submitted as above, counsel for NCPCR has also stated that the Single Judge has yet to form its opinion as to whether the issues concerning larger public interest have cropped up or arisen in the matter pending before him or not, which will be better decided once the response from all the parties are filed before the writ Court.
It has also been stated that it is only on 17.05.2023 that the Single Judge has appointed an amicus in the matter and as to whether the issue relating to larger public interest which has arisen needs to be referred to appropriate Bench of the Court in terms of the law laid down by the Full Bench of the Court in the case of Dinesh Kumar Singh @ Sonu (supra) may be decided by the Single Judge.
Amicus appointed in the proceedings of the writ petition has also submitted that in a matter like this, two courses are available before the Bench in a matter where apart from the regular list between the parties some issues concerning general public interest also arise.
Amicus thus has submitted that first course is to refer the Public Interest element arising in any matter straightaway in terms of the Full Bench decision in the case of Dinesh Kumar Singh @ Sonu (supra) and the second course is such a reference may be made after inviting the responses from the parties not only in relation to the issue raised originally in the writ petition but also in relation to the issues concerning the larger public interest.
Thus, in his submission he has urged that a perusal of the order dated 27.03.2023 and 17.05.2023 passed by the Single Judge reveals that it is only a prima facie view which has been formed by the Single Judge that in the writ petition pending before him certain issues relating to larger public interest have arisen, however, the Single Judge has yet to form his final opinion in the mater as to whether issues of general public interest have arisen before him or not. Accordingly, his submission is that the matter at this stage may be left to be decided by the Single Judge.
Ordinarily against interlocutory orders passed by the Single Judge, intra-Court appeal under Chapter VIII Rule 5 of the Rules of the Court would not be maintainable, however, since in this case the issue raised by the appellants touches upon the very jurisdiction of the Single Judge, we have entertained this Special Appeal, the Court noted.
The Court observed that,
We completely agree with the order passed by the Single Judge where he has expressed his opinion that the matter at hand requires consideration not only from the point of view of the prayers made by the writ petitioner but also from the point of view as to whether the funding by the State Exchequer of the institutions imparting religious instructions is violative of Articles 14, 25, 26, 29 and 30 of the Constitution of India.
It is in this context that we also agree with the Single Judge where NCPCR, which is a statutory commission incorporated primarily for overseeing protection of children rights, as intervenor. If any issue which has wide ramification concerning the education system as also the rights of children being imparted education and such institutions, there cannot be any quarrel that such issue does involve larger public interest and in this appropriate case if cognizance of such issue apart from the issues concerning the Writ Petitioner, has been taken up by the Single Judge, no one can have any objection to the same.
“It is in this context only that we find that the Single Judge has rightly called upon the Central Government as also the State Government to file their responses not only to the issue raised by the writ petitioner but also to the issue relating to the larger public interest as is reflected from the orders dated 27.03.2023 and 17.05.2023. We have no doubt in our mind, whatsoever, that there is a clear intent in the proceedings of the writ petition that apart from the issue relating to the writ petitioner claiming payment of salary the issue of larger public interest has also to be considered and agitated”, the Court further observed while disposing the Appeal.
The Court said that, however, the question is as to whether in such a situation the larger public interest issues can be entertained by the same Bench or the matter needs to be referred to the PIL Bench as per the law laid down by the Full Bench of this Court in the case of Dinesh Kumar Singh @ Sonu (supra).
In view of the aforesaid and having regard to the conclusion drawn by the Full Bench of the Court in the case of Dinesh Kumar Singh @ Sonu (supra), the Court directed the Registry to register the PIL as a separate case and place it before the Chief Justice for appropriate direction or before the appropriate PIL Bench.