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2009 Supreme(Mad) 4374
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE P. JYOTHIMANI
Rt.Rev.G.Devakadashyam Bishop
Versus
The Secretary to Government Education Department & Others
Writ Petition Nos.16188 and 16287 of 2009 and connected Miscellaneous Petitions
Decided on: 24-10-2009
For the Petitioner:V. Selvaraj for C. Robert Bruse, Advocate. For the Respondents:R1 & R2, Ms.Dhaskshayani Reddy, Government Advocate, R3 & R4, N. Muralikumaran, Advocate.
Ratios:
a. State cannot impose any restriction on the rights of minorities to establish and administer educational institutions so long as such institutions are not aided by the State. However, the State can always, to a limited extent, impose regulations for the purpose of maintaining the excellence in education etc.
b. Fundamental right guaranteed under Art.30 of the Constitution of India to the minorities to establish an educational institution can be availed by an individual, firm, society, trust or company and the State cannot restrict the right to any particular form of organization and exclude others.
Headnote:(A)Constitution of India-Art.29, 30-Fundamental rights-Minorities-Minority rights-Education-Educational institution-Company-Petitioner claimed as Christian minority and sought for permission to establish technical institution-Request rejected on the ground that the petitioner was a company and only a society or trust can establish such institution-Petitioner challenged the decision of the respondent and contended that the respondent cannot insist any particular form of organization to enable him to avail the fundamental right guaranteed to him under Art.30-Respondents contended that it was for safeguarding the properties of such institution-Held, the right guaranteed under Art.30 is available to a minority citizen and the State cannot deny him the right on the ground that application was not made in the name of a society or trust-Writ petition allowed and the respondent was directed to consider the application of the petitioner.
(B)Constitution of India-Art.29, 30-Fundamental rights-Minorities-Minority rights-Education-Educational institution-Establishment-Condition-Right of State-State cannot impose any restriction on the rights of minorities to establish and administer educational institutions so long as such institutions are not aided by the State. However, the State can always, to a limited extent, impose regulations for the purpose of maintaining the excellence in education etc.
Law is well settled that the State cannot impose any restriction on the rights of minorities to establish and administer educational institutions so long as such institutions are not aided by the State. However, the State can always, to a limited extent, impose regulations for the purpose of maintaining the excellence in education etc. It is equally settled that in cases of institutions which are recognised by the State and receiving aids or even in respect of minority institutions, for the purpose of recognition by the State Government, the State can impose restrictions regarding the qualification of teachers, pay of teachers, constituents of governing body, etc. Para 8
(C)Constitution of India-Art.29, 30-Fundamental rights-Minorities-Minority rights-Education-Educational institution-Company-Fundamental right guaranteed under Art.30 of the Constitution of India to the minorities to establish an educational institution can be availed by an individual, firm, society, trust or company and the State cannot restrict the right to any particular form of organization and exclude others.
Therefore, the first part of the scheme which makes it mandatory that professional colleges should be established only by a registered Society or by a Trust registered under the Trust Act and not by any firm or any individual or company or any other body of individuals and the requirement relating to the establishment and administration of minority institutions under Article 30 goes. Para 43
When the right under Article 30 as laid down in the judicial precedents can be restricted only by way of regulation for the purpose of maintenance of academic standards, fee structure, qualifications of teaching staff, etc., the restriction in respect of minorities to have a right to establish an educational institution only if they are in the form of a Society or a Trust or Wakf, etc. the same cannot be held to be in the nature of either in the interest of nation or maintaining standard of education as permissible restriction stated above. Para 44
There may be a case where an individual person belonging to a linguistic or religious minority may intend to start an educational institution of course subject to various conditions imposed by the Supreme Court and he may not be able to form a Society or a Trust and in such case, compelling him to make a Society or Trust along with somebody else in the minority community would certainly be making inroad in the right of a minority citizen to establish and administer an educational institution of his choice. The compulsion in the form of registered Society or a Trust is certainly not in the interest of maintaining the academic standards or in the national interest. Para 48
The writ petitioner, the Bishop of Kanyakumari Diocese, C.S.I. (Church of South India), has filed these writ petitions challenging the clause in the approval process for Diploma Institutions issued by the All India Council for Technical Education (AICTE), New Delhi, stipulating that the application for establishment of new technical institutions can be made by a registered Societies and trusts, so far as it relates to the petitioner institutions which are religious minority institutions having protection under the Constitution of India, and also the order passed by the Director of Technical Education, Chennai-25 dated 8. 2009 by which the said second respondent rejected the claim of the petitioner to start a new polytechnic college as per the application dated 6. 2009 on the basis that the Church of South India Trust Association has been incorporated under the Indian Companies Act, 1913, as a Limited Company on 29. 1947, but as per AICTE approval process, the applicant should be either a Registered Society or a Trust or Central/State Government institution or Government Aided institution.
2. It is stated that C.S.I. Trust Association was registered as a company under section 25 of the Companies Act. It is stated that the Church of South India has 22 dioceses one of which is Kanyakumari Diocese to which the petitioner is the Bishop. All the properties of CSI have been vested with the CSI Trust Association. The petitioner on behalf of Kanyakumari Diocese of CSI has applied for permission to start a polytechnic college in the name and style of Vethamonikam Memorial CSI Polytechnic College, Viricode, Marthandam in Kanyakumari District.
2(a). The institute has purchased 5.05 acres of land and constructed building in more than 25000 sq.ft. and established the college as per the norms and standards of the respondents including AICTE. The third respondent in W.P.No.16188 of 2009 is the Southern Regional Council of AICTE, empowered to grant recognition and issue letter of intent and letter of approval. When an application was made along with necessary fees to the first respondent who has to issue no objection certificate, the second respondent, the Director of Technical Education after processing the application, by order dated 8. 2009 which is impugned in W.P.No.16287 of 2009, refused to process the application on the basis that the petitioner is neither a Society, nor a Trust and is a Company registered under section 25 of the Companies Act and therefore, quoting the approval process for diploma institutions issued by the AICTE, the 4th respondent in W.P.No.16188 of 2009, the said refusal order came to be passed.
2(b). In those circumstances, the petitioner has filed the writ petitions, one challenging the said clause in the approval process for diploma institutions and another challenging the order of the second respondent, the Director of Technical Education refusing to process the application on the ground that the petitioner is neither a Society, nor a Trust and is a Company registered under section 25 of the Indian Companies Act.
3. The main ground on which the writ petitions are filed is that compelling the petitioner under the norms prescribed by the AICTE, in respect of minority institutions that it must be a Society or a Trust is against law and it is opposed to the Constitution of India, since any citizen is entitled to start an educational institution and that is also the power given to the minority citizen belonging to minority community as per Article 30 of the Constitution of India and also the said norms are against the judgment of the Apex Court in TMA Pai Foundation case [2002 (8) SCC 481].
4. Even though the learned counsel for the AICTE has attempted to raise a factual issue that the petitioner has filed the writ petitions in individual capacity as Rt.Rev.G.Devakadashyam, stating that he is the Bishop of Kanyakumari Diocese, and there is no material to show that the petitioner belongs to Christian Min
