IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 07.01.2014 CORAM THE HON'BLE MR.R.K.AGRAWAL, THE CHIEF JUSTICE AND THE HON'BLE MR. JUSTICE M.SATHYANARAYANAN W.P.Nos.14734/2012, 15498/2013 and 16791/2012 and Connected M.Ps. W.P.Nos.14734/2012 and 15498/2013 The Federation of the Catholic Faithful, Rep. By its General Secretary, Having office at New No.53, Old No.21, Godown Street, Chennai-600 001. .. Petitioner in both W.Ps. Vs. 1.The Government of Tamil Nadu, Rep. By its Secretary, Higher Education Dept., Fort St.George, Chennai-600 009. 2.The Director of Collegiate Education, EVK Sampath Building, College Road, Chennai-600 009. 3.The Regional Joint Director of Collegiate Education, (Govt. B.Ed., College Campus), Saidapet, Chennai-600 015. 4.The Governing Body of Loyola College, Rep. By its Chairman, St.Mary's Residence, Dindigul-624 001. 5.The Management of Loyola College, Rep. By its Principal, Chairman Admission Committee, Chennai-600 034. .. Respondent in both W.P.s W.P.No.16791 of 2012 The Secretary/Correspondent, Loyola College (Autonomous), Sterling Road, Nungambakkam Chennai-600 034. .. Petitioner vs. 1.The State of Tamil Nadu, Rep. By its secretary, Department of Higher Education, Fort St.George, Chennai-600 009. 2.The Director of Collegiate Education, College Road, Chennai-600 005. 3.The Regional Director of Collegiate Education, (Govt. B.Ed College Campus) Saidapet, Chennai-600 015. 4.The University of Madras, Rep. By its Registrar, University Centenary Building, Chepauk, Chennai-600 005. 5.The Federation of the Catholic Faithful, Rep. By its General Secretary, New No.53, Old No.21, Godown Street, Chennai-600 001. .. Respondents (R5 impleaded as per the order dated 25.11.2013 in M.P.No.1/2013) Prayer in W.P.No.14734/2012:- Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorarified Mandamus calling for the records of the fourth and fifth respondents culminating in the publication of the impugned select list dated 04.06.2012 onwards insofar as admitting the students as per the select list for the Shift-I as well as Shift-II courses of study for the academic year 2012-2013 and quash the same and consequently direct the fourth and fifth respondents herein to cause selection of students as per merit and in adherence to the conditions contained under G.O.(ID).No.127, Higher Education (G1) Department dated 23.05.2012. Prayer in W.P.No.15498/2013:- Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Mandamus directing the fourth and fifth respondents to begin and complete the student selection process for all the courses in Shift-I (aided) and Shift-II (unaided) following the provisions of Tamil Nadu Private Colleges (Regulation) Act, 1976 and stipulations and guidelines announced G.O.(ID).No.127, Higher Education (G1) Department dated 23.05.2012 for the academic year 2013-2014 and all subsequent academic years. Prayer in W.P.No.16791/2012:- Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorari calling for the records relating to the impugned G.O.(ID).No.127, Higher Education (G1) Department dated 23.05.2012 and quash the same insofar as the petitioner's college is concerned. For Petitioner In W.P.No.15498/2013 and W.P.No.14734/20132 : Mr.P.T.Perumal In W.P.No.16791/2012 : Mr.Isaac Mohanlal For Respondents : Mr.S.T.S.Moorthy, Govt. Pleader assisted by Mr.D.Krishnakumar Special Govt. Pleader (Education) Mr.Isaac Mohanlal for R5 in W.P.No.15498/2013 For R4 and R5 in W.P.No.14737/2012 Mrs.G.Thilakavathi for R4 in W.P.No.16791/2012 Mr.N.G.R.Prasad, for Ms.Praveen Banu for R5 in W.P.No.16791/2012. C O M M O N O R D E R In W.P.Nos.14734/2012 and 15498 of 2013, challenge is made to the act of the respondents 4 and 5, namely, the Governing Body of Loyola College and the Management of Loyola College in not following G.O.(ID).No.127, Higher Education (G1) Department dated 23.05.2012 which prescribes guidelines for admission of students to Under Graduate/Post Graduate courses in Government/Aided/Unaided Arts and Science Colleges for the academic year 2012-13. The grievances expressed by the petitioner in W.P.Nos.14734/2012 and 15498/2013 is that the Rule of Reservation as prescribed under Clause No.14 of the said Government Order has not been followed by the respondents 4 and 5. 2. W.P.Nos.14734/2012 and 15498/2013 are filed as Public Interest Litigations. The petitioner in the said writ petitions claims that the writ petitioner, as a minority charitable organization, functioning with an object to promote the high Catholic principles amongst the public in general and among the Catholic committees in particular and it is intended to carryout the objects which aim to promote education and extend a beneficial and charitable relief to the members of the Catholic communities and some of the members are former students of the fifth respondent college. The petitioner contended that G.O.(ID).No.127, High Education (G1) Department dated 23.05.2012 stipulates among other things that the fifth respondent college can fill up only 50% of the seats by following the Rule of Reservation both under the aided as well as the self-financed course of studies and that the College is running 13 Aided Undergraduate courses and it did not choose to follow Clause No.14 of the above said Government order and such act, on their part, is a total and deliberate omission. It is further contended by the petitioner in the above said writ petitions that the fifth respondent while releasing the select list of candidates, failed to indicate the category under which, each candidate has been accommodated, their ranks/marks in the order of merit and number of students going through the select list and expressed their grievance and started approaching the petitioner counsel with queries and having found that the grievance expressed by the students were justifiable, the petitioner made a detailed representation dated 29.05.2013 to the Chairman, Governing Body of Loyola College, Dindigul and the Principal-cum-Chairman, Admission Committee, Loyola College, Chennai-600 034, pointing out the above said lapses on their part and requested them to follow the provisions of the relevant act, guidelines for admission as stipulated in the above said Government Order for the ensuing academic year 2013-14 and for all the subsequent years and since they failed to come out with any kind of response, have filed the above said writ petitions. 3. The Secretary/Correspondent, Loyola College (Autonomous), Chennai-600 034 has filed W.P.No.16791/2012 praying for issuance of a Writ of Certiorari to quash the above said Government Order in G.O.(ID).No.127, issued by the Department of Higher Education (G1), Government of India dated 23.05.2012. In the affidavit filed in support of the said writ petition, it is stated that the Loyola College, Chennai, is one among the several recognized educational institutions established and administered by the Congregation of the Society of Jesus and their members are popularly known as Jesuits. The said Society is a word wide organization of religious men, numbering about 19,673 and spread all over the world, of which nearly 4000 are working in the 18 Provinces of India. Insofar as Tamil Nadu alone, there are 480 Jesuits working in various schools and colleges and following are the premier institutions of higher education administered by the Jesuits in India : 1.Loyola-ICAM College of Engineering Technology (LICET), Chennai 2.Loyola Institute of Business Administration (LIBA), Chennai 3.Loyola College of Education, Chennai 4.Loyola College, Thiruvannamalai 5.Loyola College, Thiruvananthapuram 6.St.Xavier's College, Ahmedabad 7.St.Xavier's College, Mumbai 8.St.Xavier's College, Kolkata 9.St.Joseph's College, Bangalore 10.St.Joseph's College, Tiruchy 11.Andhra Loyola Collee, Vijayawada 12.St.Aloysius College, Mangalore 13.Xavier Institute of Engineering, Mumbai 14.St.Xavier's College of Management and Research, Mumbai 15.St.Xavier's College of Education, Mumbai 16.St.Xavier's College, Thiruvananthapuram 17.St.Joseph's College of Commerce 18.St.Joseph's College, Darjeeling 19.St.Xavier's College, Ranchi 20.Xavier Institute of Social Studies, Ranchi 21.St.Xavier's College, Palayamkottai 22.St.Xavier's College of Education, Palayamkottai 23.Arul Anandar College, Karumattur-Madurai 24.Vidyajoti College of Theology, Delhi 25.Xavier Institute of Management (XIM), Bhubaneswar 26.Xavier Labour Research Institute (XLRI), Jamshedpur. 4. It is further stated that the Loyola College was established in the year 1925 and is a recognized religious Minority Educational Institution in terms of Article 30 of the Constitution of India and its primary aim is to provide University education in a Christian atmosphere to students especially those belonging to the Catholic Christian community and the said college became an autonomous college in the year 1978 and hence it is free to frame its own courses of studies and to adopt innovative methods of teaching and evaluation. The College offers 25 Under Graduate Courses, out of which 13 are partially aided and the remaining 12 are wholly unaided. The petitioner in W.P.No.16791/2012 would further state that it is recognized as a College with Potential for Excellence by the University Grants Commission (UGC) and the National Accreditation and Assessment Council (NAAC) granted it with 'Five Star' status in the year 1999 and it is also rated as 'A' level, which is the highest level of accreditation conferred on any Arts and Science College. It is further stated by the writ petitioner in W.P.No.16791/2012 that though Loyola College is an Minority Educational Institution, admission is not denied to anyone on the ground only of religion and at present, there are 3502 students studying in the college under the Aided Scheme (Shift-I) and 150 teachers and 61 staff are working in the college under the said Aided scheme and out of them, 100 teachers and 43 staff are receiving salary by way of Grant-in-Aid extended by the Government and out of the remaining 50 teaching posts, only 28 are permitted to be filled up by the Government and Grant-in-Aid even in respect of these 28 is not paid fully over the past 6 years and the balance 22 teaching posts as well as 18 non-teaching posts are not permitted to be filled up. In Aided Scheme (Shift-II), 3003 students are studying and 116 teachers and 150 other staff are working in the college under the said Unaided Scheme. The college also caters to the needs of the oppressed and downtrodden segments of the community and they are provided with all kinds of encouragement such as scholarships, midday meal etc. 5. Insofar as the challenge made to G.O.(ID).No.127, Higher Education (G1) Department dated 23.05.2012, it is contended by the writ petitioner in W.P.No.16791/2012 that prescription of such guidelines in paras 14 and 15 of the said Government Order cannot legitimately be imposed on them which is admittedly a Minority Educational Institution and it also abrogates the right of admission guaranteed under Article 30 of the Constitution of India. The writ petitioner in W.P.No.16791/2012 also took a stand that the guidelines issued in the above said Government Order are without any constitutional or statutory basis and the Tamil Nadu Private Colleges (Regulation) Act and Rules framed therein do not empower the Government with any such power to enforce the Rule of Reservation in matters of admission in Minority Educational Institutions such as the petitioner college and even in respect of appointment of teachers and staff, Minority Educational Institutions are exempted from the Rule of Reservation. Moreover, the guidelines in the impugned Government Order are not protected under the Tamil Nadu Backward Classes, Scheduled Castes, Scheduled Tribes (Reservation of Seats in Private Educational Institutions) Act, 1993. Therefore, the writ petitioner prayed for quashment of the impugned Government Order. 6. The Governing Body of Loyola College and the Management of Loyola College, who are arrayed as the respondents 4 and 5, had filed their counter affidavit and took a similar stand as taken by them in W.P.No.16791/2012. In W.P.No.16791/2012, the official respondents 1 to 3 had filed their counter stating among other things that Clause (b) of Rule 25 of the Tamil Nadu Private Colleges (Regulation) Rules, 1976 provides for reservation in aided minority colleges and unaided colleges including the minority college and so also the Tamil Nadu Act 45/1994 and as such, the impugned Government Order is perfectly valid and prays for dismissal of the writ petition. 7. Mr.Isaac Mohanlal, learned counsel appearing for the petitioner in W.P.No.16791/2012 and for the respondents 4 and 5 in W.P.Nos.14734/2012 and 15498/2013 made the following submissions: 7.1. The guidelines contained in paras 12 and 14 are per se in violation of Article 30 of the Constitution of India as it abrogates right of Minority Educational Institutions such as Loyola College to establish, administer and run an educational institution. Article 15(5) of the Constitution of India provides that, "Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of Article 30. 7.2. The said Article specifically exempts from its operation the Minority Educational Institutions referred to in Clause (1) of Article 30 of the Constitution of India. The Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribes (Reservation of Seats in Educational Institutions and of Appointments or Posts in the Services under the State) Act, 1993 (Tamil Nadu Act 45 of 1994) came to be passed taking into consideration the judgment of the Hon'ble Supreme Court of India in Indra Sawhney v. Union of India [AIR 1993 SC 477] wherein it has been held that total reservations under Article 16(4) should not exceed 50% and an unanimous resolution was also passed calling upon the Central Government to take steps immediately to bring in suitable amendments to the Constitution of India, so as to enable the Government of Tamil Nadu to continue its policy of 69% reservation in Government services and for admission in educational institutions and it reflected the sentiments of the vast majority of people of Tamil Nadu and to ensure continued implementation of 69% reservation and it was unanimously resolved to bring a special resolution and accordingly the above said Act came to be passed. 7.3. Section 3(b) of the said Act defines 'educational institution' and as per sub-clause (i) any college or other educational institution, maintained by the State, or receiving aid out of the State funds, or affiliated to any University established by law including an University College and a constituent college and Section 4 of the Act provides for reservation of 69% seats in educational institutions. 7.4. The Constitutional 93rd amendment came to be passed in the year 2005 with effect from 21.01.2006 wherein the States are conferred with power to make special provisions, by law, for the advancement of any socially and educationally Backward Classes of citizens or for the Scheduled Castes or Scheduled Tribes insofar as it relate to their admission to educational institutions, including private educational institutions whether aided or unaided by the State other than minority educational institutions referred to in Clause (1) of Article 30 of the Constitution of India. In tune with the said Constitutional amendment, Tamil Nadu Act 45 of 1994 came to be amended by Tamil Nadu Act 12 of 2006 with effect from 07.06.2006. The private educational institutions as defined under Tamil Nadu Act 45 of 1994 came to be amended as follows: 2.(a) " Backward Classes of citizens" means the class or classes of citizens who are socially and educationally backward notified by the Government in the Tamil Nadu Government Gazette and includes the Most Backward Classes and the Denotified Communities. ....
(d)."private educational institution" means any deemed University or any private college or other private educational institution, including any institute or training centre recognized or approved by the Government, whether aided or unaided by the State, other than the minority educational institution referred to in clause(1) of Article 30 of the Constitution established with the object of preparing, training or guiding its students for any certificate, degree or diploma or other educational distinctions granted or conferred by any University or authority established or approved in this behalf by the Government.
7.5. Therefore, it is the submission of the learned counsel appearing for the petitioner in W.P.No.16791/2012 that by virtue of the Constitutional Act 93rd amendment read with the amendment made under Tamil Nadu 12 of 2006, any Minority Educational Institution is exempted from providing reservation in the light of the right guaranteed to them under Article 30(1) of the Constitution of India and the impugned Government Order has failed to take note of the same and it virtually seeks to amend the Constitution as well as Tamil Nadu Act 12/2006 and therefore, Clause 14 of the said Government Order is exfacie illegal. In the light of the said amendments, Tamil Nadu Private Colleges (Regulation) Act and Rules have no application to the case on hand.
7.6. The learned counsel appearing for the petitioner in W.P.No.16791/2012 has drawn the attention of this Court to paras 23 and 24 of the counter affidavit in M.P.No.2/2012 in W.P.No.14734/2012 and would submit that insofar as Aided Courses are concerned, reservation policy need not be followed in terms of Clause 15(5) of the Constitution of India read with Tamil Nadu Act 12/2006 and they are not bound to do so and therefore, on facts also the writ petition in W.P.Nos.14737/2012 and 15498/2013, styled as Public Interest Litigations deserves dismissal with exemplary costs. Insofar as the contention put forward by the petitioner in W.P.Nos.14737/2012 and 15498/2013 that the select list lacks necessary particulars, it is the submission of the learned counsel appearing for the petitioner in W.P.No.16791/2012 that it is only a provisional list and in the final list all the details will be provided. The learned counsel appearing for the petitioner in W.P.No.16791/2012, in support of his submissions, placed reliance upon the following judgments:
(1) T.M.A. Pai Foundation and Others v. State of Karnataka and Others [(2002) 8 SCC 481] (2) Ashoka Kumar Thakur v. Union of India and Others [(2008) 6 SCC 1] (3) Sindhi Education Society and Another v. Chief Secretary, Government of NCT of Delhi and Others [(2010) 8 SCC 49]
8. Mr.P.T.Perumal, learned counsel appearing for the petitioner in W.P.Nos.14734/2012 and 15498/2013 has vehemently contended that the impugned Government Order is in tune with the sentiments of vast majority of people of Tamil Nadu and it is an admitted fact that the Loyola College is also receiving aid in respect of courses conducted in Shift -I and consequently they are bound to provide reservation in terms of Tamil Nadu Act 45 of 1994 and in respect of selection in aided courses, Loyola College has not published the list containing rank, vacancy position and reservations and there is total lack of transparency on their part and since the students who are affected by the said illegal practice adopted by the Management of Loyola College, has started approaching the writ petitioner and therefore, the above said writ petitions came to be filed purely as public interest litigations.
9. Mr.N.G.R.Prasad, learned counsel appearing for the impleaded party, who is also the petitioner in W.P.Nos.14734/2012 and 15498/2013, has supported the stand of Mr.P.T.Perumal, learned counsel appearing for the petitioner in W.P.No.16791/2012 and would contend that once it is an admitted fact that in respect of Shift-I Course the Loyola College is receiving aid, they have to follow the Rule of Reservation and insofar as the select list is concerned, there is nothing to indicate the vacancy position, merit, Rule of Reservation and admittedly the said material particulars are lacking and as an institution receiving aid, it should follow the Government policy and consequently, it is bound to follow the Rule of Reservation in respect of aided courses. Therefore, the learned counsel appearing for the fifth respondent in W.P.No.16791/2012 prays for dismissal of the said writ petition.
10. This Court paid its best attention to the rival submissions and also considered the materials placed before it and the decisions rendered by the Hon'ble Supreme Court of India.
"(5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of Article 30.
As per the said Article, Article 19(1)(g) shall not prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes from insofar as the said special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than minority educational institutions referred to in 30(1) of the Constitution of India.
12. Article 30(1) of the Constitution of India reads as follows:
"30.Right of minorities to establish and administer educational institutions.(1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.
In order to claim the benefit of Article 30(1) of the Constitution of India, the community must show (a) that it is a religious or linguistic minority and (b) that the institution was established by it and if the above said two conditions are fulfilled, the right guaranteed under the said Article extends to the institutions established by religious or linguistic minority community.
13. In T.M.A.Pai Foundation and Others v. State of Karnataka and Others [(2002) 8 SCC 481], the following issues arose for consideration before the Hon'ble Supreme Court:
(1) Is there a fundamental right to set up educational institutions and if so, under which provision?
(2) Does Unni Krishnan case, [(1993) 4 SCC 111], require reconsideration?
(3) In case of private institutions (unaided and aided), can there be government regulations and, if so, to what extent?
(4) In order to determine the existence of a religious or linguistic minority in relation to Article 30, what is to be the unit, the State or the country as a whole?
(5) To what extent can the rights of aided private minority institutions to administer be regulated?
As per the majority view, it has been held that the right under Article 30(1) of the Constitution of India cannot be such as to override the national interest or to prevent the Government from framing regulations in that behalf and that the Government regulations cannot destroy the minority character of the institution or make the right to establish and administer a mere illusion; but the right under Article 30 is not so absolute as to be above the law. A balance has to be kept between the two objectives, that of ensuring the standard of excellence of the institution, and that of preserving the right of the minorities to establish and administer their educational institutions. Regulations that embraced and reconciled the two objectives could be considered to be reasonable. While answering question No.3, it has been held that right under Article 30(1) implies that any grant that is given by the State to the minority institution cannot have such conditions attached to it which will in any way dilute or abridge the rights of the minority institution to establish and administer that institution. The conditions that can normally be permitted to be imposed, on the educational institutions receiving the grant, must be related to the proper utilization of the grant and fulfillment of the objectives of the grant.
14. In Ashoka Kumar Thakur v. Union of India and Others [(2008) 6 SCC 1], the Constitution 93rd Amendment Act, 2005 and the enactment of the Central Educational Institutions (Reservation in Admission) Act, 2006 giving reservation to Other Backward Classes (OBCs), Scheduled Castes (SC), Scheduled Tribes (ST) were put to challenge and it is relevant to extract the following paras of the said decision:
"127. Another contention raised by the petitioners counsel is that the exclusion of minority institutions under Article 15(5) itself is violative of Article 14 of the Constitution. It was contended that the exclusion by itself is not severable from the rest of the provision. This plea also is not tenable because the minority institutions have been given a separate treatment in view of Article 30 of the Constitution. Such classification has been held to be in accordance with the provisions of the Constitution. The exemption of minority educational institutions has been allowed to conform Article 15(5) with the mandate of Article 30 of the Constitution. Moreover, both Articles 15(4) and 15(5) are operative and the plea of non-severability is not applicable.
668. The Constitution (Ninety-third Amendment) Act, 2005, is valid and does not violate the basic structure of the Constitution so far as it relates to the State-maintained institutions and aided educational institutions. Question whether the Constitution (Ninety-third Amendment) Act, 2005 would be constitutionally valid or not so far as private unaided educational institutions are concerned, is not considered and left open to be decided in an appropriate case. Bhandari, J. in his opinion, has, however, considered the issue and has held that the Constitution (Ninety-third Amendment) Act, 2005 is not constitutionally valid so far as private unaided educational institutions are concerned.
669. Act 5 of 2007 is constitutionally valid subject to the definition of Other Backward Classes in Section 2(g) of Act 5 of 2007 being clarified as follows: If the determination of Other Backward Classes by the Central Government is with reference to a caste, it shall exclude the creamy layer among such caste.
670. Quantum of reservation of 27% of seats to Other Backward Classes in the educational institutions provided in the Act is not illegal.
671. Act 5 of 2007 is not invalid for the reason that there is no time-limit prescribed for its operation but majority of the Judges are of the view that the review should be made as to the need for continuance of reservation at the end of 5 years.
672. The writ petitions are disposed of in the light of majority judgment. However, in Contempt Petition No. 112 of 2007 in WP (C) No. 265 of 2006, no orders are required."
15. In Sindhi Education Society v. Chief Secretary, Government of NCT of Delhi and Others [(2010) 8 SCC 49], the facts of the case would disclose that the appellant before the Hon'ble Supreme Court of India, namely, Sindhi Education Society is running a School and Sindhi language is not spoken by the majority of people in Delhi and therefore, it has been held to be a linguistic minority by virtue of Article 30(1) of the Constitution of India and therefore, the said School was established for preservation of Sindhi language. The Delhi School Education Act (DSE Act) came to be passed in the year 1973 and Sindhi Education Society having felt that certain provisions of the above said Act infringe the minority character of the Society, particularly, in matters related to administration and management of the School, filed the writ petition before the High Court of Delhi. The Delhi High Court held that Sindhi Education Society is a linguistic minority and the provisions of DSE Act would not be applicable to them. The Delhi High Court, while deciding the case, held that Rule 64 of DSE Rules is to be construed in respect of minority schools to require compliance only if the provisions of the Act and the Rules and instructions thereunder are in consonance with the provisions of the Constitution, particularly, with Article 30(1) of the Constitution. Rule 64 came to be amended by the notifications dated 23.02.1990 and it is extracted below:
4. Since the schools are required to apply for grants-in-aid every year on the prescribed pro forma as provided under the Act, they are also required to give an undertaking to make reservation in the services and posts for Scheduled Castes and Scheduled Tribes accordingly. A specimen of the declaration is sent herewith with the request that the same be sent to this office duly filled in and signed with stamp of the authority signing.
5. It may be noted that the future grants-in-aid shall be released on giving the aforesaid undertaking on the enclosed pro forma. Sindhi Education Society has sent its response to the said letter by inviting attention of the authorities to the judgment of the High Court dated 14.07.1982 in W.P.No.940/1975. The Secretary (Education), Government of NCT of Delhi, vide his communication dated 21.03.1986, informed the Society that the undertaking, which was required to be given by all the government aided schools in the matter of compliance with the provisions relating to reservation for Scheduled Castes and Scheduled Tribes in the institutions, is not applicable to minority institutions and therefore, they were not required to adhere to the same. However, the said Society received another letter from the authority during September 1989 stating that all appointment of Scheduled Caste and Scheduled Tribe candidates is a precondition for all the agencies receiving grant-in-aid from the Government and they were required to comply with the directions and that was put to challenge by the Society by filing W.P(C).No.2426/1992 and it was allowed on 14.09.2005. The NCT of Delhi preferred an appeal in LPAs.Nos.33-36 and 40-43/2006 and it was allowed on 30.11.2006 and the Certificate of Leave to Appeal was also granted and hence, Sindhi Education Society preferred an appeal in Civil Appeal No.5489/2007 before the Hon'ble Supreme Court of India and the Hon'ble Supreme Court of India has referred to T.M.A. Pai case (cited supra), more particularly the answer to Question No.4 i.e., whether the admission of students to a minority educational institution, whether aided or unaided, can be regulated by the State Government or by the University to which the institution is affiliated ? and also the decision in P.A.Inamdar v. State of Maharashtra [(2005) 6 SCC 537] and held as follows:
"79. As is evident from the above-narrated principles, the Government does not enjoy identical control over the management of the schools belonging to the minority and/or majority schools. In view of the above ground reality and amendment in law, Article 30(2) provides a definite protection to the minority institutions that they would not be discriminated against for providing of grant-in-aid. This aspect is further dealt with some clarity in Chapter VI relating to grant-in-aid under the provisions of the DSE Rules, 1973.....
83. Article 15(5) of the Constitution excludes the minority educational institutions from the power of the State to make any provision by law for the advancement of any socially or educationally backward classes of the citizens or for Scheduled Castes and Scheduled Tribes in relation to their admission to educational institutions including private educational institutions whether aided or unaided. This article is capable of very wide interpretation and vests the State with power of wide magnitude to achieve the purpose stated in the article. But, the framers of the Constitution have specifically excluded minority educational institutions from the operation of this clause.
92. The right under clause (1) of Article 30 is not absolute but subject to reasonable restrictions which, inter alia, may be framed having regard to the public interest and national interest of the country. Regulation can also be framed to prevent maladministration as well as for laying down standards of education, teaching, maintenance of discipline, public order, health, morality, etc. It is also well settled that a minority institution does not cease to be so, the moment grant-in-aid is received by the institution. An aided minority educational institution, therefore, would be entitled to have the right of admission of students belonging to the minority group and, at the same time, would be required to admit a reasonable extent of non-minority students, to the extent, that the right in Article 30(1) is not substantially impaired and further, the citizens right under Article 29(2) is not infringed.
93. A minority institution may have its own procedure and method of admission as well as the selection of students but it has to be a fair and transparent method. The State has the power to frame regulations which are reasonable and do not impinge upon the basic character of the minority institutions. This Court, in some of the decisions, has taken the view that the width of the rights and limitations thereof of even unaided institutions, whether run by a majority or by a minority, must conform to the maintenance of excellence and with a view to achieve the said goal indisputably, the regulations can be made by the State.
94. It is also equally true that the right to administer does not amount to the right to maladminister and the right is not free from regulations. The regulatory measures are necessary for ensuring orderly, efficient and sound administration. The regulatory measures can be laid down by the State in the administration of minority institutions. The right of the State is to be exercised primarily to prevent maladministration and such regulations are permissible regulations. These regulations could relate to guidelines for the efficiency and excellence of educational standards, ensuring the security of the services of the teachers or other employees, framing rules and regulations governing the conditions of service of teachers and employees and their pay and allowances and prescribing course of study or syllabi of the nature of books, etc. Some of the impermissible regulations are refusal to affiliation without sufficient reasons, such conditions as would completely destroy the autonomous status of the educational institution, by introduction of outside authority either directly or through its nominees in the governing body or the managing committee of a minority institution to conduct its affairs, etc. These have been illustrated by this Court in State of Kerala v. Very Rev. Mother Provincial[(1970) 2 SCC 417], All Saints High School v. Govt. of A.P.[(1980) 2 SCC 478] and T.M.A. Pai case [(2002) 8 SCC 481].
98. Even in T.M.A. Pai case, which view was reiterated by this Court in Malankara Syrian Catholic College[(2007) 1 SCC 386], it was held that the conditions for proper utilisation of the aid by the educational institution was a matter within the empowerment of the State to frame regulations but without abridging or diluting the right to establish and administer educational institutions. In that case, while dealing with the appointment of a person as Principal, the Court clearly stated the dictum that the freedom to choose the person to be appointed as Principal has always been recognised as a vital facet to right to administer the educational institution. It being an important part of the administration and even if the institution is aided, there can be no interference with the said right. The power to frame regulations and control the management is subject to another restriction which was reiterated by the Court in P.A. Inamdar case stating that it is necessary that the objective of establishing the institution was not defeated.
104. In our considered view, it will not be permissible to infringe the constitutional protection in exercise of State policy or by a subordinate legislation to frame such rules which will impinge upon the character or in any way substantially dilute the right of the minority to administer and manage affairs of its school. Even though in Mohinder Kaur [1993 Supp (4) SCC 26] the Bench of this Court held that upon restoration of the minority character of the institution, the provisions of the Act and the Rules framed thereunder would cease to apply to a minority institution, we still would not go that far and would preferably follow the view expressed by the larger Bench of this Court in T.M.A. Pai case and even rely upon other subsequent judgments, which have taken the view that the State has the right to frame such regulations which will achieve the object of the Act. Even if it is assumed that there is no complete eclipse of the DSE Act in the Rules in the case of minority institutions, still Rule 64(1)(b), if enforced, would adversely affect and dilute the right and protection available to the minority school under the Constitution.
111. A linguistic minority has constitution and character of its own. A provision of law or a circular, which would be enforced against the general class, may not be enforceable with the same rigours against the minority institution, particularly where it relates to establishment and management of the school. It has been held that founders of the minority institution have faith and confidence in their own committee or body consisting of the persons selected by them. Thus, they could choose their managing committee as well as they have a right to choose its teachers. Minority institutions have some kind of autonomy in their administration. This would entail the right to administer effectively and to manage and conduct the affairs of the institution. There is a fine distinction between a restriction on the right of administration and a regulation prescribing the manner of administration. What should be prevented is the maladministration. Just as regulatory measures are necessary for maintaining the educational character and content of the minority institutions, similarly, regulatory measures are necessary for ensuring orderly, efficient and sound administration.
112. Every linguistic minority may have its own social, economic and cultural limitations. It has a constitutional right to conserve such culture and language. Thus, it would have a right to choose teachers, who possess the eligibility and qualifications, as provided, without really being impressed by the fact of their religion and community. Its own limitations may not permit, for cultural, economic or other good reasons, to induct teachers from a particular class or community. The direction, as contemplated under Rule 64(1)(b), could be enforced against the general or majority category of the government-aided schools but, it may not be appropriate to enforce such condition against linguistic minority schools. This may amount to interference with their right of choice and, at the same time, may dilute their character of linguistic minority. It would be impermissible in law to bring such actions under the cover of equality which in fact, would diminish the very essence of their character or status. Linguistic and cultural compatibility can be legitimately claimed as one of the desirable features of a linguistic minority in relation to selection of eligible and qualified teachers.
113. A linguistic minority institution is entitled to the protection and the right of equality enshrined in the provisions of the Constitution. The power is vested in the State to frame regulations, with an object to ensure better organisation and development of school education and matters incidental thereto. Such power must operate within its limitation while ensuring that it does not, in any way, dilutes or impairs the basic character of linguistic minority. Its right to establish and administer has to be construed liberally to bring it in alignment with the constitutional protections available to such communities.
114. The minority society can hardly be compelled to perform acts or deeds which per se would tantamount to infringement of its right to manage and control. In fact, it would tantamount to imposing impermissible restriction. A school which has been established and granted status of a linguistic minority for years, it will not be proper to stop its grant-in-aid for the reason that it has failed to comply with a condition or restriction which is impermissible in law, particularly, when the teachers appointed or proposed to be appointed by such institution satisfy the laid down criteria and/or eligibility conditions. The minority has an inbuilt right to appoint persons, which in its opinion are better culturally and linguistically compatible to the institution."
The Hon'ble Supreme Court of India by citing the above said reasons held that every linguistic minority institution may have its own social, economic and cultural limitations and it has a constitutional right to conserve such culture and language and thus, it would have a right to choose teachers, who possess the eligibility and qualifications, as provided, without really being impressed by the fact of their religion and community. The Hon'ble Supreme Court of India further held that when a school which has been established and granted status of a linguistic minority for years, it will not be proper to stop its grant-in-aid for the reason that it has failed to comply with a condition or restriction which is impermissible in law and therefore, the Civil Appeal filed by Sindhi Education Society was allowed and the circular of September 1989 and Rule 64(1)(b) of DSE Rules held to be not enforceable against the linguistic minority school in the NCT of Delhi.
16. In the considered opinion of the Court, the judgment reported in Sindhi Education Society's case (cited supra) is squarely applicable to the facts of this case for the reason that as per the impugned Government Order, Rule of Reservation is applicable to admission of students to Undergraduate/Postgraduate Courses in respect of 50% of seats in the case of aided minority colleges, 90% of seats in the cases of Aided Non-Minority colleges, 50% of seats in the case of Unaided Private (Self-financing) colleges and 50% of seats in the Unaided courses offered by the Aided Colleges. As per Clause 14(f) of the said Government Order, in respect of both Aided Courses and Unaided Courses in minority Colleges which are under the direct administration of Regional Joint Director of Collegiate Education, 50% of seats shall be filled by students belonging to minority concerned and the balance 50% of the seats shall be filled by following the Rule of Reservation. In the light of the above said judgment, even in respect of aided courses run by minority colleges, there cannot be any direction to follow the rule of communal reservation.
17. As per Section 4 of Tamil Nadu Act 45 of 1994, reservation of seats in educational institutions is provided and it included any College or other educational institution maintained by the State or receiving aid out of State funds or affiliated to any University established by law including a constituent College. After 93rd amendment which came into being with effect from 21.01.2006, Tamil Nadu Act 12 of 2006 came to be passed. As per Section 2(d), private educational institution is defined and it excludes Minority Educational Institutions referred to in Article 30(1) of the Constitution of India. Section 3 speaks about reservation of seats in private educational institutions. By virtue of Article 15(5) of the Constitution of India r/w. Section 2(d) of the Tamil Nadu Act 12 of 2006, the reservation of seats for Backward Classes, Scheduled Castes or Scheduled Tribes for admission to private educational institutions cannot be made applicable to the Minority Educational institutions referred to in Article 30(1) of the Constitution of India.
18. The impugned Government Order in G.O.(ID).No.127, Higher Education (G1) Department dated 23.05.2012 is in the form of guidelines for admission to students to UG/PG courses in Government/Aided/Unaided Arts and Science Colleges for the academic year 2012-13 and the said guidelines cannot override the mother of all laws, namely, Constitution of India, more particularly Article 15(5) of the Constitution of India and the Statute, namely, the Tamil Nadu Act 12 of 2006.
19. On facts of the case, the Loyola College in its counter affidavit in M.P.No.2/2012 in W.P.No.14734/2012 took a specific stand that insofar as Aided Courses are concerned, it has provided 50% of seats in admission by following rule of reservation viz., 18% Scheduled Caste, 1% Scheduled Tribe, 31% OBC, 10% Christians and 40% Non-Christians and remaining 50% seats are filled up with 40% Christian candidates and 10% Non-Christian candidates, who are selected based on their academic merit plus other factors viz., First Generation Learners, Dalit Christians, Orphans, Dalit of other communities, Widow's children, Economically Poor, Neighbourhood children and Sportsmen. The above said course adopted by the Loyola College is also in compliance of T.M.A. Pai case (cited supra). It is also the stand of the petitioner in W.P.No.16791/2012 that while releasing the final results, all details will be provided and it has also been indicated that for further details the college website www.loyolacollege.edu is to be visited.
20. In the light of the legal position and the factual aspects, this Court is of the considered view that W.P.No.16791/2012 filed by the Loyola College is to be allowed and W.P.Nos.14734/2012 and 15498/2013 filed by the Federation of the Catholic Faithful are liable to be dismissed.
21. In the result, W.P.No.16791/2012 is allowed and G.O.(1D).No.127, Higher Education (G1) Department dated 23.05.2012, insofar as the Loyola College (Autonomous), Chennai-34 is quashed. W.P.Nos.14734/2012 and 15498/2013 are dismissed. In the circumstances of the case, there shall be no order as to costs. Consequently, the connected miscellaneous petitions are closed.
[R.K.A. CJ.] [M.S.N, J.] 07.01.2014 Index : No Internet : Yes jvm To
1.The Secretary, The Government of Tamil Nadu, Higher Education Dept., Fort St.George, Chennai-600 009.
2.The Director of Collegiate Education, EVK Sampath Building, College Road, Chennai-600 009.
3.The Regional Joint Director of Collegiate Education, (Govt. B.Ed., College Campus), Saidapet, Chennai-600 015.
4.The Chairman, The Governing Body of Loyola College, St.Mary's Residence, Dindigul-624 001.
5.The Principal, The Management of Loyola College, Chairman Admission Committee, Chennai-600 034.
6.The General Secretary, The Federation of the Catholic Faithful, Having office at New No.53, Old No.21, Godown Street, Chennai-600 001.
THE HON'BLE THE CHIEF JUSTICE, J., AND M.SATHYANARAYANAN, J.
jvm Common Order in W.P.Nos.14734/2012, 15498/2013 and 16791/2012 07.01.2014