IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 7-7-2008 Coram The Honourable Mr.JUSTICE N.PAUL VASANTHAKUMAR W.P.No.11032 of 2008 M.P.No.2 of 2008 C.S.I.Kanyakumari Diocese, Nagercoil, Kanyakumari District, rep.by its Chairman & Bishop, Rt.Rev.G.Devakadacham ... Petitioner Vs. 1. The Government of Tamil Nadu, rep.by its Secretary to Government, Higher Education Department, Fort St.George, Chennai - 9. 2. The Director of Collegiate Education, College Road, Chennai - 6. 3. The Joint Director of Collegiate Education, Tirunelveli Region, Trivandrum Road, Tirunelveli. ... Respondents PRAYER: Writ petition filed under Article 226 of Constitution of India, praying this Court to issue a Writ of Certiorarified mandamus calling for the records relating to the orders of the second respondent in her proceedings Na.Ka.No.26627/G3/2006-1, dated 7.1.2008 and quash the same insofar as the petitioner and the Colleges run by its are concerned and consequently direct the respondents to approve the appointments of the Lecturers appointed in the sanctioned posts in respect of the Colleges viz., 1) Scott Christian College, Nagercoil, 2) Nesamony Memorial Christian College, Marthandam, and 3) Women's Christian College, Nagercoil. For Petitioner : Mr.T.S.Sivagnanam, for Mr.K.Vijeyakumar For Respondents : Mrs.E.Renganayaki, Government Advocate (Education) O R D E R
Prayer in this Writ Petition is to quash the order of the second respondent dated 7.1.2008 insofar as the petitioner Diocese and the colleges run by it are concerned and consequently direct the respondents to approve the Lecturers appointed in the sanctioned post in respect of three colleges viz., 1) Scott Christian College, Nagercoil, 2) Nesamony Memorial Christian College, Marthandam, and 3) Women’s Christian College, Nagercoil.
2. This writ petition was admitted on 28.4.2008. The learned counsel for the petitioner on 2.7.2008 mentioned before me that the issue involved in this writ petition is covered by the Division Bench Judgment of this Court made in W.P.No.524 of 1975 dated 24.9.1976 and the decisions of this Court reported in 1999 (1) CTC 121 (The Correspondent St.Ignatius Higher Secondary School, Kanyakumari District v. Director of School Education, Chennai & others); 2001 (4) CTC 641 (DB) (The Secretary, D.G.Vaishnav College, Chennai and another v. Dr.T.Venkataraman & Others) and unreported judgments of mine passed in W.P(MD)No.1971 of 2007 dated 20.11.2007 and W.P.No.27840 of 2005 dated 28.2.2008. Hence the case was posted for orders on 2.7.2008.
3. The learned Government Advocate took time to verify and report as to whether the matter is covered by the said judgments or not. Today, the learned Government Advocate submitted that though the issue in this writ petition is covered by the above referred judgments, she has sought for time to file counter affidavit. According to me, for disposal of this case, no counter affidavit is necessary as the point of law alone is involved in this case.
4. The case of the petitioner is that Petitioner Diocese, which is a Minority Educational Agency, has established and is administering three colleges viz., (1) Scott Christian College, Nagercoil, (2) Nesamony Memorial Christian College, Marthandam, and (3) Women’s Christian College, Nagercoil, apart from Teacher Training Schools, B.Ed Colleges, CSI College of Technology (Engineering College), Para-medical Institutions, 14 Higher Secondary Schools, 3 High Schools and several primary schools in the revenue district of Kanyakumari and part of Tirunelveli. All the institutions are treated as minority institutions by the Government of Tamil Nadu.
5. When the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973, was enacted and the provisions of the said Act and Rules were challenged in a batch of writ petitions, a Division Bench of this Court in W.P.No.4478 of 1974 and 294 of 1975 etc., batch held that several provisions of the said Act and Rules are not applicable to the minority institutions as the same are in violation of Article 30(1) of the Constitution of India. In the said Division Bench judgment it is further held that wherever minority character of the institutions are admitted by the Government, they should be treated as minority institutions and if there is any dispute with regard to the minority character, the concerned institutions/Agencies should file civil suit to get declaration of minority status. When W.P.No.524 of 1975 filed by the petitioner management came up for hearing along with connected cases, the then Government Pleader agreed that the petitioner Educational Agency viz., the educational institutions established and administered by the petitioner, are admittedly minority institutions. Based on the said submission, the said writ petition was allowed in terms of the earlier Division Bench Order referred above.
6. The State Government challenged the order made in W.P.No.4478 of 1974, etc., by filing Civil Appeal.No.5381 of 1990, etc., and the Supreme Court remanded all the matters for fresh consideration in the light of the decision of the Constitution Bench of the Supreme Court in T.M.A.Pai Foundation and others v. State of Karnataka & Others reported in (2002) 8 SCC 481. While remanding the matter the Supreme Court observed:-
“Status-quo shall continue unless the High Court so decides to modify the same by an appropriate application made to it by any of the parties. The parties are at liberty to file fresh pleadings, if any, within the period fixed by the High Courts. It is made clear that all statutory enactments, orders, schemes, regulations will have to be brought in conformity with the decision of the Constitution Bench of this Court in T.M.A.Pai Foundations’s case decided on 31.10.2002. As and when any problem arises the same can be dealt with by an appropriate Forum in an appropriate proceeding.”
Thus, all these institutions are treated as minority institutions till date as no modified order is passed in those cases, which are remanded.
7. The institutions viz., the schools and colleges, run by the petitioner educational agency are treated as minority institutions all these years. In the three colleges established and administered by the petitioner educational agency, the second respondent through his proceedings dated 26.7.2007 permitted to fill up, 20 Lecturer posts became vacant in Scott Christian College, Nagercoil; 16 Lecturer posts which became vacant in Nesamony Memorial Christian College, Marthandam; and 7 Lecturer posts, which became vacant in Women’s Christian College, Nagercoil, and the respective College Governing Board appointed fully qualified Lecturers and submitted proposals to the third respondent for approval of appointments and for payment of salary.
8. When the said proposal for approval of appointments are pending, the second respondent issued the impugned order dated 7.1.2008 and directed the third respondent to ascertain as to whether the colleges have obtained minority status from the Government. The said direction issued by the second respondent is challenged in this writ petition on the ground that the Petitioner Educational Agency and all its institutions are already declared as Christian Religious Minority Institutions by this Court and therefore the second respondent is not justified in requesting the third respondent to demand fresh minority declaration from the colleges established and administered by the Petitioner Educational Agency.
9. The learned counsel appearing for the petitioner submitted that the very same issue was considered by this Court in the decision reported in 1999 (1) CTC 121 (The Correspondent St.Ignatius Higher Secondary School, Kanyakumari District v. Director of School Education, Chennai & others) wherein the contention of the Government and the findings are stated in paragraphs 5 to 7, which reads as follows:
“5. At this juncture, learned Government Advocate submitted that in view of the recent Order of the Honourable Supreme Court, the Government will have to declare the institute concerned as a minority institution and till then the same cannot have minority status. I do not think that the submission of learned Government Advocate could be accepted since the very order of the Supreme Court was placed before me by learned counsel for petitioner. The order was passed in I.A.No.20 in T.M.A.Pai Foundation and others v. State of Karnataka and others, W.P.(C)No.317 of 1993. Going by that order, it is clear that the direction applied only to respondents Institutions which were parties to that I.A. The Honourable Supreme Court has held thus:- (Relevant Portion):
“a) We have been informed that some of the respondents/Institutions are operating as minority institutions on the strength of various orders/decrees obtained from the Civil Courts. We pass hereby a general order staying the operation of all the decrees/orders which may have been given by any Civil Court in respect of the minority status or otherwise of any of the institutions which have been arrayed as respondents in this I.A. All the respondents/ institutions shall be treated as non-minority institutions till they comply with the direction given by us at Sl.No.2:
i) The Educational Institutions claiming minority status should approach the State Government and till the State Government issues an order declaring the Institution to be a minority institution, it cannot operate as such.”
6. Reference may be made to the decision of the Honourable Supreme Court in N.Ammad v. Manager, Emjay High School & Others, 1998 (6) SCC 674, wherein their Lordships considered what is the effect of declaration. The argument was that even if the Government had not declared the institution as a minority institution, the status of minority institution will continue and the effect of the declaration is only a recognition of its legal character. In Paragraph 13 of the judgment, Their Lordships have said thus:-
“When the Government declared the School as a minority school, it has recognised a factual position that the School was established and is being administered by a minority community. The declaration is only an open acceptance of a legal character which should necessarily have existed antecedent to such declaration. Therefore, we are unable to agree with the contention that the School can claim protection only after the Government declared it as minority school on 2.8.1994.”
7. In view of the judgment in The Diocese of Kottar v. The State of Tamil Nadu, W.P.No.497 of 1975 and also in view of the decision of the Honourable Supreme Court mentioned above, there cannot be any doubt as to the minority status of the petitioners.”
10. The binding nature of the Civil Court decree granting minority status was again considered by a Division Bench of this Court in the decision reported in 2001 (4) CTC 641 (The Secretary, D.G.Vaishnav College, Chennai and another v. Dr.T.Venkataraman & Others), and in paragraph 3 the Division Bench held as follows:
“3. The appellant in W.A.No.2387 of 2001 has been granted a minority status by a declaration granted by a decree dated 19.2.1988 by the Court of the Principal District Judge, Madras, in A.S.No.275 of 1987. It is not disputed that the said decree had become final. As on date, the said decree has not been nullified. But Mr.P.Jyothimani, learned counsel for the first respondent, submits that in view of G.O.(Ms)No.270, dated 17.6.1998, the decree, which has been granted on 19.2.1988, had become inoperative. Prima facie, we are unable to agree with the said submission as the Government has been a party and suffered a decree on 19.2.1988 and the said decree having become final, the Government is bound by the same unless there is a specific legislation that too, if it is not an affront to the above decree granted by the judicial authority. Then Mr.Jyothimani takes us to the order of the Supreme Court in T.M.A.Pai Foundation and ors. v. State of Karnataka and others, LA.No.20 in WP(C) No.317 of 1993 dated 17.10.1994. It is not disputed that the said writ petition is still pending on the file of the Supreme Court. In the interim order passed on the above date, the Civil Court’s decree granting minority status to the respondents, who have been parties therein, that is respondents 2 to 6, has not been taken cognisance of Particular reference has been made to the said respondents and the said order does not operate in rem. In fact that position has been clarified by a learned single Judge of this Court in The Correspondent, St.Ignatius Higher Secondary School, Kurumbanai-629 251, Kanyakumari District and others v. Director of School Education, College Road, Chennai-6 and others, 1999 (1) CTC 121. It is not brought to our notice that this judgment of the learned single Judge has been overruled. As such, we find a prima facie case in favour of the appellant in W.A.No.2387 of 2001 that it still enjoys minority status as on date.”
In the above Division Bench Judgment, the order of the learned single Judge reported in 1999 (1) CTC 121 (cited supra) was approved and it is categorically held that once the minority declaration is made by a competent Civil Court, the said institution need not apply again to the Government to declare its status as the Civil Court judgment has become final.
11. Similar issue was considered by me in W.P(MD)No.1971 of 2007 order dated 20.11.2007, wherein the petitioner educational agency and its institutions, which were granted minority status by the Government for the academic year, was required to get renewal of minority status from the Government. Following the earlier judgment of a Division Bench of this Court reported in (2001) 3 MLJ 433 (Thirumuruga Kirupananda Variyar Thavathiru Sundara Swamigal, Medical Educational and Charitable Trust, Salem v. State of Tamil Nadu and another) I have allowed the writ petition holding that the minority declaration once granted will hold good for the subsequent years also, unless it is duly cancelled by the Government. The said Division Bench judgment was followed by a learned single Judge in the decision reported in 2004 WLR 202 (C.S.L.Institute of Technology, Thovalai v. The Government of Tamil Nadu & another), and paragraph 6 of the decision is extracted hereunder:
“6. It is true that by order dated 20.11.2003, the Government had renewed the minority status of the petitioner institution for the academic year 2001-2002. But the question which arises for consideration in this writ petition is with regard to the justification of the Government to seek for periodical renewal for every academic year. That issue was particularly considered by the Division Bench of this Court as stated above. I am in respectful agreement with the views expressed by the Division Bench in this context. There is no provocation for the Government to insist on such renewal for every year when once the institution has been granted the Minority Status. Unless or otherwise, there is any change in the Constitution of the agency or any adverse information is received by the Government, which might lead to the conclusion that the declaration of the Institution is fraudulent and erroneous or the Management had undergone any change in its constitution, there is absolutely no need or necessity for the Government to expect such periodical renewal. Such requirement will unnecessarily lead to delay and red-tapism which is totally uncalled for. In the present case itself for the academic year 2001-2002 renewal is granted only on 20.11.2003, that too only because the petitioner has moved this Court. The administration of the school and the plight of the students cannot be kept under such unreasonable suspense and doubt, which is totally unwarranted. Assuming that periodical check is necessary, the Government should evolve a methodology whereby renewal could be sought for once in five years or more and in such a manner that renewal should be applied for and granted atleast three or four months prior to the lapse of the said period. The present requirement of annual renewal is neither reasonable nor warranted. As stated earlier, it is always open to the authorities to call upon the management to explain the position if any adverse information is received by the Government. It is totally unreasonable to expect all the minority schools in the State to be knocking at the doors of the authorities every year and the authorities would pass orders only after two years as in this case in spite of filing of a writ petition”.
The above said orders are again followed by me in W.P.No.27840 of 2005, order dated 28.2.2008.
12. Here in this case, the Government conceded before this Court in W.P.No.524 of 1975 dated 4.9.1976 that the institutions run by the Petitioner Educational Agency are Minority Educational Institutions. There is no change pointed out in the constitution of the petitioner educational agency and the request of the department to get minority status insofar as the other similarly placed institutions are concerned, the same has already been set aside by this Court and the said orders, as stated supra, have become final. In the light of the above cited judgments, there is no need for the petitioner Diocese to get minority status from the Government and the demand made by the second respondent through the impugned order, is unsustainable. Further, no reason is given by the second respondent to get further declaration from the government. It is not the case of the second respondent that the character of the institution is changed, particularly when the petitioner educational agency is a Diocese. Even if the authorities of the Diocese are changed, the character of the institutions will never change. Hence the impugned order requesting the petitioner management to get minority declaration from the Government for treating the institutions as minority institutions cannot be sustained.
13. The writ petition is allowed with a direction to the third respondent to consider the approval of appointments sought for by the respective colleges of the petitioner Diocese, if the persons appointed in the respective posts are qualified to hold the post, without reference to the order dated 7.1.2008 passed by the second respondent. Third respondent is directed to consider the request of approval of each of the appointments made by the colleges established and administered by the petitioner Diocese and pass necessary orders within six weeks from the date of receipt of copy of this order.
The writ petition is ordered accordingly. No costs. Connected miscellaneous petition is closed.
Vr
To
1. The Secretary to Government, Higher Education Department,
Fort St.George, Chennai – 9.
2. The Director of Collegiate Education, College Road, Chennai – 6.
3. The Joint Director of Collegiate Education,
Tirunelveli Region, Trivandrum Road,
Tirunelveli