IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 08.06.2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.31169 of 2007 and M.P.NO.1 of 2007 V.S.Issac Arts & Science College, 126 Attupakkam Village, Arakkonam, Vellore District. Rep. By its Secretary, Rev.Dr.V.S.Isaac Jebakumar .. Petitioner Vs. 1.The State of Tamil Nadu, rep. By its Secretary, Higher Education Department, Fort St. George, Chennai-600 009. 2.The Director of Collegiate Education, College Road, Chennai-600 006. 3.The Joint Director, Collegiate Education, Vellore. 4.The Registrar, Thiruvalluvar University, Fort Campus, Vellore. .. Respondents This writ petition has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of mandamus to direct the first and second respondents to pass orders on the petitioner's application for recognition dated 29.9.2006 to start an Arts and Science College without insisting on Endowment Fund of Rs.20.00 lakhs for the academic year 2007-08. For Petitioner : Mr.B.Rabu Manohar For Respondents : Mr.A.C.Mani Bharathi, GA for RR1 to 3 Mr.G.Sankaran for R4 - - - - ORDER
The petitioner is an Arts and Science College represented by its Secretary Rev.Dr.V.S.Isaac Jebakumar. The writ petition is filed by the petitioner college, directing the first and second respondents to pass orders on the petitioner’s application for recognition dated 29.09.2006 to start an Arts and Science College without insisting on Endowment Fund of Rs.20 lakhs for the academic year 2007-2008.
2.When the matter came up on 26.9.2007, notice was issued to the respondents. On notice from this court, the second respondent has filed a counter affidavit, dated 25.11.2009. It is the case of the petitioner that the petitioner institution is a Christian institute of professional education run by a religious trust. All the trustees of the trust belonged to Christian faith. It is a Christian Minority Religious Trust to promote educational institutions. The petitioner’s trust runs several Teacher Training Institutions and B.Ed. Colleges and also Physical Education Colleges in Arakkonam and that the Thiruvalluvar University had granted affiliation. The petitioner institution decided to start an Arts and Science College. Accordingly, they sent an application for recognition under Section 5 of the Tamil Nadu Private Colleges (Regulations) Act, 1976.
3.On receipt of the application, the second respondent directed the third respondent to conduct an inspection and to file a report. A report was filed with the first respondent. The first respondent ought to have passed orders on the application . The petitioner sent the application in the prescribed format along with processing fee of Rs.15000/-. It is claimed that a favourable report of inspection was sent with reference to the requirement and infrastructure for running the Arts and Science College. However, in the annexure to the report, it was stated that the petitioner should create an endowment fund of Rs.20 lakhs for the grant of recognition.
4.According to the petitioner, such a demand for endowment fund in respect of the minority institution is held to be unwarranted as per the judgment of this court in 1997 (1) LW 787. Any demand for such endowment fund was frowned upon by this court in an another judgment of this court in Madras English Baptist Church, Madras Vs. The State of Tamil Nadu reported in 1991 WLR 419. It was also contended that such a demand will deprive the right guaranteed under Article 30(1) of the Constitution. In the judgment cited by the petitioner in Madras English Baptist Church case, reliance was made to the earlier judgment of the division bench of this court in W.P.No.4478 of 1974 and batch cases, dated 17.12.1975, wherein stipulation incorporated under Rule 9(2)(e) of the Rules framed under Tamil Nadu Act 29 of 1974 was held to be an inroad into the minority right to administer the institution and therefore, deposit of Rs.1 lakh towards endowment fund was considered to be an infraction of Article 30(1) of the Constitution.
5.In the counter affidavit, dated 25.11.2009, it was averred that there was no declaration that the petitioner institution is a religious minority institution and they cannot make a self serving declaration. The prescription of creating an endowment fund is regulatory and that the petitioner cannot seek for an exemption from that condition. Such a condition is not violative of Article 30(1) of the Constitution. Even in the inspection report, certain deficiencies have been pointed out with regard to the extent of land allotted for the College. They have not paid Rs.20 lakhs towards the endowment fund. Prescription of endowment was made as a condition precedent by G.O.Ms.No.858, Education Department, dated 15.7.1989, wherein an educational agency should deposit Rs.10 lakhs for the purpose of recognition. Subsequently, by G.O.Ms.No.244, Higher Education Department, dated 7.5.1997, the Endowment Fund was increased to Rs.20 lakhs. No provision of the Constitution exempt minority colleges from the condition imposed.
6.Reliance placed upon the division bench judgment in Madras Baptist Church case (supra) may not help the case of the petitioner. In that case, reference was made to the earlier division bench judgment in W.P.No.4478 of 1974, dated 17.12.1975. That decision was taken on appeal by the State to the Supreme Court. The Division Bench, while summing up, declared certain sections as inapplicable to minority institution. But, in the order of remitting the matter, the Supreme Court held thus:-
“The several questions raised in these matters are covered by the decision of a Constitution Bench of this Court in writ Petition No.317/1993-T.M.A. Pai Foundation & Ors. Etc. Vs. State of Karnataka & Ors. Etc. and connected batch decided on 31st October, 2002. Since larger questions have been decided by this Court, it becomes necessary for the High Courts to re-examine the matters which have been decided and which are in appeal before this Court. The orders of the High Court are, therefore, set aside without expressing any opinion on merits and the matters are remitted to the High Court for fresh consideration in accordance with law.
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 Foundation’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.
The appeals are disposed of accordingly.”
7.Subsequently, a division bench of this court in A.Belavendran Vs. The Joint Director of School Education reported in 2010 (1) CWC 343 in paragraph 18 observed as follows:
“18….the Supreme Court, in the same order, observed that the questions raised were covered by the decisions in T.M.A. Pai Foundation Vs. State of Karnataka, 2002 (5) CTC 201 (SC). Since the larger questions have been decided, the High Court had to examine the matter in the light of what is stated by the Supreme court….. We are informed that the school did not challenge it. But, however, the Supreme Court has observed 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 Foundation’s case decided on 31.10.2002. ”
8.Therefore, any challenge for any conditionality will have to be tested in the light of T.M.A.Pai Foundation’s case. In that case, the Supreme Court framed 11 questions and answered them in paragraph 161. Question No.5(c) as found in paragraph 161 as well as answers found therein may be usefully extracted below:
“Q. 5. (c) Whether the statutory provisions which regulate the facets of administration like control over educational agencies, control over governing bodies, conditions of affiliation including recognition/withdrawal thereof, and appointment of staff, employees, teachers and principals including their service conditions and regulation of fees, etc. would interfere with the right of administration of minorities?
A. So far as the statutory provisions regulating the facets of administration are concerned, in case of an unaided minority educational institution, the regulatory measure of control should be minimal and the conditions of recognition as well as the conditions of affiliation to a university or board have to be complied with, but in the matter of day-to-day management, like the appointment of staff, teaching and non-teaching, and administrative control over them, the management should have the freedom and there should not be any external controlling agency. However, a rational procedure for the selection of teaching staff and for taking disciplinary action has to be evolved by the management itself.
For redressing the grievances of employees of aided and unaided institutions who are subjected to punishment or termination from service, a mechanism will have to be evolved, and in our opinion, appropriate tribunals could be constituted, and till then, such tribunals could be presided over by a judicial officer of the rank of District Judge.
The State or other controlling authorities, however, can always prescribe the minimum qualification, experience and other conditions bearing on the merit of an individual for being appointed as a teacher or a principal of any educational institution.
Regulations can be framed governing service conditions for teaching and other staff for whom aid is provided by the State, without interfering with the overall administrative control of the management over the staff.
Fees to be charged by unaided institutions cannot be regulated but no institution should charge capitation fee.”
9.If it is seen in the light of the answers given by the Supreme Court in T.M.A.Pai Foundation’s case, it cannot be said that the condition of creating an Endowment Fund is any way violative of the right under Article 30(1). On the other hand, it only safeguards the stability of the institution and makes deterrent of the persons starting institutions without any financial stability. Hence this court is not inclined to interfere with the impugned order.
10.In the light of the above, the writ petition will stand dismissed. No costs. Consequently, connected miscellaneous petition stands closed.
vvk
To
1.The Secretary,
The State of Tamil Nadu,
Higher Education Department,
Fort St. George,
Chennai-600 009.
2.The Director of Collegiate Education,
College Road,
Chennai-600 006.
3.The Joint Director,
Collegiate Education,
Vellore.
4.The Registrar,
Thiruvalluvar University,
Fort Campus,
Vellore