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A.M. Jain College By Honorary … vs Government Of Tamil Nadu And Anr. on 14 July, 1992

Madras High Court
A.M. Jain College By Honorary … vs Government Of Tamil Nadu And Anr. on 14 July, 1992
Equivalent citations: (1993) 1 MLJ 140
Author: Lakshmanan


ORDER

Lakshmanan, J.

1. The main writ petition has been filed by the petitioner college through its Honourary Secretary for the following relief : To issue a writ of certiorari or any other appropriate writ, order or direction, calling for the records from the 1st respondent in G.O.Ms. No. 561, Education, dated 15.6.1992, conveyed to the petitioner in the proceedings of the 2nd respondent in Rc. No. 25393/ Ha.8/92 dated 17.6.1992 and quash the same.

2. The writ petition was admitted by this Court on 26.6.1992 and notice was ordered to the respondents on the same date in W.M.P. No. 11880 of 1992. The prayer in W.M.P. No. 11880 of 1992 is as follows : To stay the operation of the impugned G.O.Ms. No. 561, Education, dated 15.6.1992 in so far as it relates to B.Com. and B.A. (Corporate) courses for Jain students in the petitioner college pending disposal of the writ petition.

3. The petitioner college is registered under the Societies Registration Act. It was founded in the year 1952 and primarily meant for the benefit of the young men of the Jain Community, but is open to the young men of the Jain Community, but is open to the young men of all communities. In W.P. No. 1 149 of 1975, this Court has held that Sri S.S. Jain Educational Society, which is conducting the petitioner college, is a minority institution within the meaning of Article 30(1) of the Constitution of India. By G.O.Ms. No. 549, dated 6.4.1988, Education Department of the Government of Tamil Nadu, the petitioner college has been declared as a minority institution on the basis of the order of this Court in W.P. No. 1149 of 1975, and that the privileges provided in the Tamil Nadu College (Regulation) Act, 1967, and the rules framed thereunder are allowed to the petitioner college.

4. It is also an admitted fact that the Jain community in Madras, Tamil Nadu, is a religious and linquistic minority and is a educationally backward community. Besically, it is a community engaged in trading, business and industry. From the beginning of the college, education in commerce and business related subjects were taught to the Jain students with a view to encourage them to undergo college education at least in commerce and business related subjects, since the Jain Community in Madras is basically engaged in trading, commerce and industry. The petitioner college was one of the very few colleges from the beginning which had the B.Com. course. The object was to encourage Jain students, who were otherwise reluctant to undergo college education due to the general educational backward character of the community, to undergo B.Com. course which will be useful for their business career.

5. In the year 1992, admission, 124 Jain students have already been admitted to B.Com., (Evening College) as against the capacity of 150 seats. Similarly, the Day College also for the year 1992, more number of Jain students have applied than the seats available and the Principal was instructed to issue provisional admission cards to 103 Jain students. It is also stated that the non-Jain students are not totally denied admission in B.Com. and B.A. (Corporate) courses and they do get admitted on merit in B.Com. and B.A. (Corporate) courses. But, Jain students are given preference to meet the specific and peculiar need of the Jain community students.

6. While so, the petitioner received from the office of the 2nd respondent Proceedings Rc. No. 25393/ Ha.8/92, dated 17.6.1992 enclosing therewith a copy of G.O.Ms. No. 561, Education, dated 15.6.1992 for necessary action. G.O.Ms. No. 561, Education, dated 15.6.1992, referred to the judgment of the Supreme Court dated 6.12.1991 in St. Stephen’s College v. The University of Delhi . It is pertinent to extract or reproduce the relevant portion in that judgment.

The Minority Aided Educational institutes are entitled to prefer their community candidates to maintain the minority character of the institution, subject, of course, to conformity with the University standard. The State may regulate the intake in this category with due regard to the need of the community in the area which the institutions is intended to serve. But, in any case, such intake shall not exceed 50% of the annual admission. The minority institution shall make available atleast 50% of annual admissions to members of communities other than the minority community. The admission of other community candidates shall be done purely on the basis of merit.

7. After referring to the Supreme Court judgment, the impugned G.O. directs as follows:

(i) The minority aided colleges are permitted to admit their community candidates subject to the conditions that in case such intake shall exceed 50% of the annual permitted strength in each Branch/Faculty; and

(ii) The aided minority educational institutions shall make available not less than 50% of the annual permitted strength in each Branch/ Faculty to the members of the community other than the minority community and such admissions shall be done purely on the basis of merit subject to the rules of reservation of the Government in force.

The impugned G.O. further states that it comes into force with effect from the academic year 1992-93. The said G.O. is challenged in the main writ petition.

8. I have heard Mr. R. Krishnamurthi, learned Senior Advocate for the petitioner, as instructed by Mr. Surana, Advocate, and Mr. P. Shanmugham, learned Additional Government Pleader, for the respondents.

9. Mr. R. Krishnatmurthi, learned Senior Advocate states, that the decision dated 6.12.1991 of the Supreme Court of India in the case of Sr. Stephen’s College v. The University of Delhi, only states that (1) That State may regulate the intake of students of the minority community with due regard to the community in the area which the institution is intended to serve; and (2) This intake shall not exceed 50% of the annual admission. The balance of 50% of the annual admission should be made available to the members of the communities other than the minority community. He further submits that more than 50% of the total number of seats in the petitioner college every year (annual admission) arc allowed to non-Jains and that the petitioner college is prepared to abide and is abiding by the decision of the Supreme Court of India, which stipulates that the intake of the students belonging to the minority community shall not exceed 50% of the annual admission. Mr. R. Krishnamurthy also submits that the Supreme Court only refers to 50% of the annual admission (total) and that annual admission can only mean that total annual admission in all the courses in the college put together and does not refer to each Branch/Faculty/Course offered by the college. According to him, however, the impugned G.O. directs that 50% of the admission for each branch/faculty should be from the members of the other communities. It also restricts admission of Jain students in each branch/faculty to 50% and that such a restriction is beyond the scope of the Supreme Court judgment and as such ultra vires.

10. It is useful to refer to the decision of the Supreme Curt in this context. The Supreme Court says, the minority aided educational institutions are entitled to prefer their community candidates to maintain the minority character of the institutions, subject, of course, the conformity with the University standard. It further states that the State may regulate the intake in this category with due regarded to the need of the community in the area which the institution is intended to serve. But, in no case, such intake shall exceed 50% of the annual admission. The minority institutions shall make available at least 50% of the annual admission to members of communities other than the minority community and that the admission of other community candidates shall be done purely on the basis of merit.

11. Mr. P. Shanmugham, learned Additional Government Pleader reiterates the points raised by the 2nd respondent/Director of Collegiate Education, in his counter affidavit. According to Mr. P. Shanmugham, the petitioner is mis-interpreting the judgment of the Supreme Court and if the contention of the petitioner is conceded, the spirit of the judgment will be lost. Strong reliance was placed on paragraph 78 of the judgment of the Supreme Court in St. Stephens College case. He also placed reliance on paragraph 81 of the said judgment. Referring to paragraphs 78 and 81 of the judgment, Mr. P. Shanmugham submitted that segregated faculties or universities for imparting general secular education are undesirable and that they may undermine secular democracy, which would be inconsistent with the central concept of secular and equality embedded in the Constitution.

12. I am of the prima facie view that the interpretation now made by the State Government of the Supreme Court judgment in St. Stephens College case is not proper and appropriate. However, it is. a matter for decision ultimately in the main writ petition. The Supreme Court states that the State may regulate the intake of students from the minority community with due regard to the need of the community in the area which the institution intended to serve. The petitioner college, in my view, is undoubtedly intend to serve the Jain community in Madras, Tamil Nadu. As already stated, the Jain students in Madras generally and basically join B.Com. and B.A. (Corporate) course and not in other courses. The impugned G.O. restricting intake of minority community students to 50% in each Branch/Faculty affects the Jain community students in B.Com and B.A. (Corporate) courses also. This will very adversely affect the Jain community people in Madras, which the petitioner college intend to serve, and this also violates the law and the judgment of the Supreme Court. It will also violate Article 30(1) of the Constitution of India. In my opinion, the impugned G.O. is trying to stretch the Supreme Court judgment beyond its scope and intends and lays down fresh rule which interfere with the right guaranteed under Article 30(1) of the Constitution of India.

13. In the concluding part of his argument Mr. P. Shanmugham submits that the institutional preference for admission based on religion is violative of Article 29(2) of the Constitution of India : He further submits that the petitioner college shall not prefer or deny admission to candidates on grounds of religion. Any preference given to the religious minority candidate in their own institution, in my view, cannot be a discrimination falling under Article 29(2) of the Constitution of India. The institution in question is established for the benefit of the Jain community and if they are prevented from admitting their own community candidates, the very purpose of establishing the institution would be defeated. In my view, minority institutions are entitled to admit their candidates by preference or by reservation. They are also entitled to admit them to the exclusion of all others, and that right, in my view, flows from administer the educational’ institutions guaranteed under Article 30(1) of the Constitution of India. In my view, the State can lay down reasonable conditions for obtaining and for admission of students in their institutions but the State has no right to compel the minority institutions to give up their right under Article 30(1) of the Constitution of India.

14. Admittedly, the institution is a minority institution, which is entitled to protection under Article 30(1) of the Constitution of India. Of the 14 courses/faculties offered by the institution, the students from Jain community, for whose benefit the institution was originally founded, seek admission only to B.Com., and B.A. (Corporate) courses. Therefore, when the students of the minority community seek admission to a particular course, it will not be fair on the part of the State Government to compel the management to admit them in some other course, having in mind the fact that the institution is for their benefit and development.

15. Even the Apex Court in paragraph 102 of the judgment St. Stephen’s College v. The University of Delhi , has observed as follows:

In the light of all these principles and factors, and in view of the importance which the Constitution attaches to protective measures to minorities under Article 30(1), the minority aided educational institutions are entitled to prefer their community candidates to maintain the minority character of the institutions subject of course to conformity with the University standard. The State may regulate the intake in this category with due regard to the need of the community in the area which the institution is intended to serve. But in no case such intake shall exceed 50 per cent of the annual admission. The minority institutions shall made available at least 50 per cent of the annual admission to members of communities other than the minority community. The admission of other community candidates shall be done purely on the basis of merit.

[Italicised is mine]

16. The language used by the Apex Court, in my considered opinion, should be interpreted by to reason that 50% of the total number of seats in the annual admission of the institution should made available to students of other communities and not 50% in each Branch/Faculty as directed by the State Government in the impugned G.O.

17. It is also seen that applications have been received in large number from the students of the minority community only for B.Com., and B.A. (Corporate) courses. It is also slated that admission cards have already been issued to the minority students. Therefore, at this juncture, it would be unfair and unjust to unsettle the process of admission adopted by the management all these years.

18. It is also pertinent to note that the petitioner has sought stay of the impugned G.O. in so far as it relates to B.Com., and B. A.(Corporate) courses alone. Hence, all the other courses are available for students of other communities. Hence, I feel that the management has made out a prima facie case for grant of stay. The balance of convenience is also in favour of the management. Hence, there shall be a stay of the operation of the impugned G.O.Ms. No. 561, Education, dated 15.6.1992, in so far as it relates to B.Com., and B.A. (Corporate) courses for the Jain students of the petitioner college. However, the petitioner management is directed to consider the applications of the students from other communities for filling up the seats in B.Com., and B.A. (Corporate) courses, which are available after admitting the Jain community students, who have applied prior to the passing of the impugned G.O. It is made clear that the stay granted above is with reference to the petitioner college alone. The Supreme Court in St. Stephen’s College v. The University of Delhi , while issuing rule nisi in the writ petition by St. Stephen’s College, had stayed the operation of the impugned Circular in that case and permitted the college to continue to follow its own admission policy, modality and schedule in the succeeding years – vide para 11 of the judgment of the Supreme Court. Hence, I feel justified in staying the impugned G.O. in the instant case, as prayed for.

19. For the fore-going reasons, there will be stay of the impugned G.O., as indicated above.

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