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2019 Supreme(Mad) 1499
IN THE HIGH COURT OF JUDICATURE AT MADRAS
T. RAJA, J.
The Institute of the Franciscan Missionaries of Mary represented by its President St. Thomas Convent Mylapore – Petitioner
Versus
The Government of Tamil Nadu represented by the Principal Secretary Department of School Education Fort St.George, Chennai & Others – Respondent
W.P.Nos. 23789, 25737, 25741, 25748, 25758, 25784, 25790, 25803, 25809, 25812, 25751, 26365, 26372, 26375, 26383, 26385, 26501, 26502, 26519, 26550, 26540, 26613, 26627, 26687, 26696, 26787, 26795, 27552, 27562, 27567, 27571, 27576, 27647, 27737, 27740, 27742, 27762, 27764, 27748, 27750, 27752, 27760, 27858, 27867, 27981, 27987, 27993, 28000, 28088, 28320, 28339, 28354, 28357, 28375, 28383, 28410, 28394, 28423, 28396, 28397, 28405, 28434, 28439, 28447, 28483, 28530, 28555, 28579, 28655, 28663, 2
Decided On : 30-01-2019
For the Petitioner:Dr.Fr. A. Xavier Arulraj, Senior Counsel for M/s Father Xavier Associates, M. Joseph Thatheus Jerome, Advocates.
For the Respondent: C. Munusamy, Special Government Pleader.
Headnote:
National Commission for Minority Educational Institutions Act, 2004 - Section 11 - Constitution of India - Article 226 - Respect of member educational institutions - Claiming minority status - Not promoting interests of minority students - Senior Counsel for petitioners critically analyzing reasons shown therein has pleaded that impugned Government Order is directly running contrary to several judgments of Apex Court and also this Court more particularly in Foundation and others v. State of Karnataka and others which holds in paragraph-that right of admission in minority educational institution is one of four cardinal rights of a minority educational institution that cannot be regulated at level of school education and much less in unaided institution – Held, Since first respondent has also taken a stand that percentage is not rigid and in case of non-availability of minority students minority status will not be withdrawn on ground of non-achievement of target for new admissions and it is only when admission to minority student is denied within limit action will be taken against institution for withdrawal of minority status on grounds of not promoting interests of minority students writ petitions deserve to be allowed recording undertaking given by petitioners institutions that they will not deny admission to minority students subject to their fulfilling eligibility criteria and also availability of vacancies - For all foregoing reasons in light of ratio laid down by Apex Court in Educational and Cultural Trust Asoka Kumar Taker and in Sisters of St Joseph of Cluny cases impugned G.O No.65 School Education Department is set aside recording undertaking given by petitioners institutions that all minority educational institutions shall not deny admission to eligible candidates of minority community subject to eligibility of students and availability of accommodation in schools - However it is made clear that if any complaint is given that a minority candidate of any sex is denied admission by a minority educational institution in spite of establishing eligibility and availability of seats it is open to respondents to ventilate grievance before National Commission for Minority Educational Institutions under Section 11(f) of National Commission for Minority Educational Institutions Act 2004 - Petitions are closed
JUDGMENT :
(Prayer: Petition under Article 226 of the Constitution of India, praying for issuance of a Writ of Certiorari, calling for the records pertaining to the impugned G.O.(Ms.) No.65, School Education (MS) Department dated 05.04.2018 on the file of the first respondent, in respect of the member educational institutions of the petitioner society as mentioned in the Annexure in the above writ petition and quash the same.)
This batch of writ petitions has been filed questioning the correctness of the G.O.(Ms.)No.65, School Education (MS) Department dated 5.4.2018 issued by the Principal Secretary to Government, Department of School Education, the first respondent herein framing additional guidelines for grant of minority status to the educational institutions, stipulating that the educational agency of all educational institutions claiming minority status shall admit not less than 50% of the students belonging to the minority community in every academic year, while fixing the upper limit of 75% in respect of the aided institutions. The impugned Government Order also further stipulates that the educational agency of such minority educational institutions have to file their returns regarding the details of admissions and the percentage of minority students by the end of September every year, in order to retain their minority status.
2. Dr.Fr.A.Xavier Arulraj, learned Senior Counsel for the petitioners, critically analysing the reasons shown therein, has pleaded that the impugned Government Order is directly running contrary to the several judgments of the Apex Court and also this Court, more particularly, in T.M.A.Pai Foundation and others v. State of Karnataka and others, (2002) 8 SCC 481, which holds in paragraph-116 that the right of admission in the minority educational institution is one of the four cardinal rights of a minority educational institution that cannot be regulated at the level of school education and muchless in unaided institution. Therefore, the guidelines laid down in the impugned Government Order will be violative of the right of administration guaranteed under Article 30(1) of the Constitution of India. Referring to paragraph-122 of the judgment in T.M.A.Pai Foundation case, Dr.Fr.A.Xavier Arulraj explained further that any regulation pertaining to minority institution has to satisfy the dual test for its constitutionality i.e., (i) the test of reasonableness and (ii) the test that is regulative of the educational character of the particular institution. Therefore, the impugned Government Order cannot satisfy both the tests for the following reasons. In usual course, the school admits any child that approaches for admission, provided there is a vacancy for accommodation in the school and the child is eligible. While so, there is no quota system in the school either for minorities or for non-minorities, because the number of admissions can increase or decrease irrespective of their religion. Explaining further, the learned Senior Counsel submitted that for instance, if only 10 available minority students are admitted, in order to strike the ratio of 50:50, the school cannot restrict the total admission only to 20, when the non-minority children are going to outnumber the minority children, because it will militate against the minority population of Christians amounting to 6.1% in the State of Tamil Nadu. Again welcoming the higher number of admission of minority students in a minority school as a good and acceptable measure, Dr.Fr.A.Xavier Arul Raj would strive to contend that the said phenomenon cannot be linked to conferment or deprivation of minority status granted to any minority educational institution, since no institution becomes a minority or loses its minority status because of the number of children admitted therein every year. This is for the reason that if a Christian minority school admits more muslim children who are living nearby with all deserving criteria, that itself cannot make the Chri
