Heard Mr.K.Elangoo, learned counsel for the petitioner and Mrs.K.Dhakshayani Reddy, learned Government Advocate for the respondents, who made her submission after receiving instructions from the respondents and perused the entire files relating the subject matter involved in this case.
2. The challenge in this writ petition is of the order passed by the Government dated 8.10.2007 under which the first respondent Government by referring to an application filed by the petitioner institution dated 11.4.2002 and based on the subsequent enquiry stated to have been conducted has decided that as per the Government order in existence, it is the Government who has to confer the status of minority to have the benefit under
Article 30 (1) of the Constitution of India.
3. The petitioner school was started in the year 1940 by the father of the petitioner, Late Abdul Kareem. It was established as a minority institution and according to the petitioner more than 90% of the population belonging to the Muslim community and it was started to promote educational requirement. The said institution was recognised by the Department and aids are also been granted. After the death of the petitioner's father, the petitioner being the correspondent is continued to maintain and administer the institution as minority institution. It is stated that he has made various representations to the authorities to recognise it as a minority institution, which was not considered.
4. In those circumstances, the petitioner filed a suit in O.S.No.1324 of 1994 on the file of the Additional District Munis II, Kallakurichi, Villupuram District for declaration of the petitioner school as a minority institution entitled for protection under
Article 30 of the Constitution of India. It is based on the decree passed by the competent Civil Court, the petitioner has made many representations including the one on 11.4.2002 to the respondents to declare the institution as minority institution. The petitioner has also filed W.P.No.23478 of 2002 for a direction to the respondents to dispose of the representation and this Court by order dated 02.7.2002 has directed the second and third respondents to dispose of the representation dated 11.4.2002 in accordance with law. It was thereafter, the petitioner was called to appear by the second respondent on 26.9.2007 and the petitioner has produced all the documents and given his version in writing and it was thereafter, the impugned order came to be passed rejecting the claim.
5. Mr.K.Elangoo, learned counsel appearing for the petitioner would submit that the competent Civil Court has decided everyone of the requirements for the purpose of considering the institution as minority institution and in the said judgment, in which the Government of Tamil Nadu and Director of School Education are parties. In such circumstances, when the said judgment of the Civil Court between the petitioner and the respondents have become final, the respondents are bound by the Civil Court decree and they ought to have declared the petitioner institution as minority institution.
6. On the other hand, Mrs.K.Dhakshayani Reddy, learned Government Advocate appearing for the respondents would rely upon the various Government orders including G.O.(Ms).No.270 Higher Education (J1) Department dated 17.6.1998 to substantiate her contention that to declare the minority status of any institution lies with the Government and in fact the Government has formulated various principles in the form of guidelines for the purpose of declaring an institution a minority institution. According to her, the decision taken by the impugned order by which the Government has retained its power to declare the institution as a minority institution to confer the benefit under
Article 30 of the Constitution of India is well within the jurisdiction of the first respondent Government. She has produced the entire records.
7. At the outset, it is clear that the petitioner institution is established and run by a minority religion, namely, Muslims. The fact that the petitioner's father in the year 1940 has started the institution in the area which is predominantly covered by Muslim community is not in dispute. In fact, after the death of his father, the petitioner has filed a suit in O.S.No.1324 of 1994 on the file of the Additional District Munsif Court No.II, Kallakurichi by making the Government of Tamil Nadu and Director of School Education, who are respondents herein, as defendants. It was after hearing both the parties, after contest, a detailed judgment has been passed by the Civil court in the judgment dated 20.11.1996. While deciding about the status of minority, there has been a specific finding given by the Civil Court stating to the effect that the institution as per the record was started in the year 1940 by Abdul Kareen and that was started for the benefit of Muslim community in that area. That decision was arrived at on examination of the said witness. The petitioner has taken charge after the death of his father as Correspondent and the records have been produced before the Civil Court that the petitioner belong to Mohammedan community, in fact the Civil Court has referred to the voters list, marked as Ex.A.4 and arrived at a factual conclusion that the entire area is covered by Muslim predominantly. The Court has also relied on Ex.A.5, which is a monthly register of the school and has come to the conclusion that the persons who are benefited under the petitioner school are Muslims in large number and the school has been recognised and functioning for the past 50 years and it was taking all the facts and circumstances on record, the Civil Court passed a detailed judgment in which the respondents are parties holding that the petitioner institution is a minority institution covered for the protection under
Article 30 (1) of the Constitution of India.
8. In the case of The Secretary, D.G.Vaishnav College, Arumbakkam, Chennai 600 106 and another V. Dr.T.Venkataraman Reader and Head, Post Graduate and Research, Dept. of Chemistry, D.G.Vaishnav College, Chennai 106 and 3 others reported in 2001 (4) CTC 641, the Honourable First Bench of this Court while dealing with the minority status of an institution in the context of a Civil Court decree held that if the Civil Court has granted minority status to any institution that has to be taken note of for the purpose of deciding the minority status of the institution. In fact, the Division Bench has also taken note of the interim order passed by the Honourable Supreme Court in the case of T.M.A.Pai Foundation and ors. V. State of Karnataka and others, L.A.No.20 in WP(C) No.317 of 1993 dated 17.10.1994 wherein by way of interim direction the Supreme Court has directed the minority institution to approach the Government for the purpose of necessary declaration. While considering that aspect of the interim order passed by the Apex Court, the Divison Bench has held that the interim direction granted does not operate as in rem. Further G.O.(MS)No.270 Higher Education (J1) Department dated 17.6.1998, which is relied upon by the learned counsel for the respondent by producing the copy of the G.O., was also brought to the notice of the Division Bench and the Division Bench has considered. The operative portion of the judgment is as follows:
"3. The appellant in W.A.No.2387 of 2001 has been granted a minority status by a declaration granted by a decree dated 19.2.1988 by the Court of the Principal District Judge, Madras, in A.S.No.275 of 1987. It is not disputed that the said decree had become final. As on date, the said decree has not been nullified. But Mr.P.Jyothimani, learned counsel for the first respondent, submits that in view of G.O.(Ms.)No.270, dated 17.6.1998, the decree, which has been granted on 19.2.1988, had become inoperative. Prima facie, we are unable to agree with the said submission as the Government has been a party and suffered a decree on 19.2.1988 and the said decree having become final, the Government is bound by the same unless there is a specific legislation that too, if it is not an affront to the above decree granted by the judicial authority. Then Mr.Jyothimani takes us to the order of the Supreme Court in T.M.A.Pai Foundation and ors. V. State of Karnataka and others, L.A.No.20 in WP(C) No.317 of 1993 dated 17.10.1994. It is not disputed that the said writ petition is still pending on the file of the Supreme Court. In the interim order passed on the above date, the Civil Court's decree granting minority status to the respondents, who have been parties therein, that is respondents 2 to 6, has not been taken cognisance of Particular reference has been made to the said respondents and the said order does not operate in rem. In fact that position has been clarified by a learned single Judge of this Court in The Correspondent, St.Ignatius Higher Secondary School, Kurumbanai 629 251, Kanyakumari District and others v. Director of School Education, College Road, Chennai 6 and others, 1999 (1) CTC 121. It is not brought to our notice that this judgment of the learned single Judge has been overruled. As such, we find a prima facie case in favour of the appellant in W.A.No.2387 of 2001 that it still enjoys minority status as on date."
9. Now it is informed that T.M.A.Pai Foundation case has been finally disposed of by the Supreme Court reported in AIR 2003 SC 355 : (2002) 8 SCC 481. While rendering judgment in the said case, it is seen that the Honourable Apex Court has not decided about the authority competent to decide about the minority status.
10. In such circumstances, the decision of the Division Bench as cited supra observing that the interim order passed by the Honourable Apex Court does not operate in rem comes to be true. Now by a reference to G.O.(Ms) No.270 dated 17.6.1998, it is seen that the Government has issued following guidelines in the said G.O. for the purpose of declaring the claim of any institution as a minority institution for conferring minority status.
"(i) The object of the educational institutions should be for noting the interests of the minority concerned and it should subserve the interests of the minority community concerned.
(ii) Such educational institutions should have been established by the minority and should be continuously administered only by the members of that minority.
(iii) An educational institution which was originally not established by a minority community cannot acquire such status or character subsequently under any circumstances.
(iv) All the Trustees or members of the Governing Body of the minority educational institutions shall belong only to the concerned minority. In the case of self-financing educational institutions imparting professional courses of education established and administered by any minority they shall admit students of that minority alone, not exceeding 50% of the sanctioned strength, if there is any vacancy not filled as above such vacancy in that 50% shall be filled up only on the basis of merit and from common merit list prepared by the competent authority.
(v) To decide whether an applicant is a minority or not based on religion or language, the total population of that minority in the State of Tamil Nadu shall be taken into consideration and not the population of that minority in any particular region where the educational institution is situated.
(vi) In so far as Tamil Nadu State is concerned, any person whose mother tongue is any language other than Tamil shall be considered as linguistic minority, in the State and in respect of religious minority, any person whose religion is other than Hinduism shall be considered as a religious minority in the State."
11. A reference to the said requirements contemplated as a matter of guidelines in the above G.O along with Civil Court judgment, which has been referred to, which relates to the petitioner institution, shows that in fact everyone of the requirements as contemplated in the form of guidelines has been dealt with by the Civil Court between the same parties. In fact, it is found on record by the competent Civil court that the institution has been established by the father of the petitioner 40 years before and the area in which the institution is started is predominantly Muslims and that the majority of the students studying there are Muslims.
12. In such view of the matter, the requirements as contemplated in the guidelines of the Government are on the face of it have been fulfilled. Therefore, in such view of the matter, the impugned G.O.(ID)No.293 dated 12.09.2000, which is admitted to have been passed in respect of the petitioner institution alone and Letter No.33970/X.2/2002-9 dated 08.10.2007 are set aside with a direction to the first respondent to consider the case of the petitioner afresh in the light of the guidelines as well as the factual position stated above and pass appropriate orders regarding grant of minority status of the petitioner expeditiously, in any event, within a period of 16 weeks from the date of receipt of a copy of this order.
13. It is needless to state that in the event of the first respondent granting such minority status, the petitioner shall maintain all the stipulations required for the purpose of retaining the minority status and in the absence of following any one of the stipulation, it is always open to the Government to take action in accordance with law.
14. Accordingly, this Writ Petition is allowed. No costs. Consequently, M.P.Nos.1 and 3 of 2009 are closed.
sl To
1. The Secretary to Government, The State of Tamil Nadu, Department of School Education, Fort St. George, Chennai 9.
2. The Director of School Education, Egmore, Chennai 6