C.S.I.Kanyakumari Diocese,Nagercoil, Kanyakumari District v. The Government of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 7-7-2008CoramThe Honourable Mr.JUSTICE N.PAUL VASANTHAKUMARW.P.No.11032 of 2008M.P.No.2 of 2008C.S.I.Kanyakumari Diocese,Nagercoil, Kanyakumari District,rep.by its Chairman & Bishop,Rt.Rev.G.Devakadacham...PetitionerVs.1.The Government of Tamil Nadu,rep.by its Secretary to Government,Higher Education Department,Fort St.George, Chennai - 9.2.The Director of Collegiate Education,College Road, Chennai - 6.3.The Joint Director of Collegiate Education,Tirunelveli Region, Trivandrum Road,Tirunelveli....RespondentsPRAYER:Writ petition filed under Article 226 of Constitution of India,praying this Court to issue a Writ of Certiorarified mandamus callingfor the records relating to the orders of the second respondent in herproceedings Na.Ka.No.26627/G3/2006-1, dated 7.1.2008 and quash the sameinsofar as the petitioner and the Colleges run by its are concerned andconsequently direct the respondents to approve the appointments of theLecturers appointed in the sanctioned posts in respect of the Collegesviz., 1) Scott Christian College, Nagercoil, 2) Nesamony MemorialChristian College, Marthandam, and 3) Women's Christian College,Nagercoil.For Petitioner:Mr.T.S.Sivagnanam,for Mr.K.VijeyakumarFor Respondents: Mrs.E.Renganayaki, Government Advocate(Education) https://hcservices.ecourts.gov.in/hcservices/ O R D E RPrayer in this Writ Petition is to quash the order of the secondrespondent dated 7.1.2008 insofar as the petitioner Diocese and thecolleges run by it are concerned and consequently direct the respondentsto approve the Lecturers appointed in the sanctioned post in respect ofthree colleges viz., 1) Scott Christian College, Nagercoil, 2) NesamonyMemorial Christian College, Marthandam, and 3) Women's ChristianCollege, Nagercoil.2.This writ petition was admitted on 28.4.2008. The learnedcounsel for the petitioner on 2.7.2008 mentioned before me that theissue involved in this writ petition is covered by the Division BenchJudgment of this Court made in W.P.No.524 of 1975 dated 24.9.1976 andthe decisions of this Court reported in 1999 (1) CTC 121 (TheCorrespondent St.Ignatius Higher Secondary School, Kanyakumari Districtv. Director of School Education, Chennai & others); 2001 (4) CTC 641(DB) (The Secretary, D.G.Vaishnav College, Chennai and another v.Dr.T.Venkataraman & Others) and unreported judgments of mine passed inW.P(MD)No.1971 of 2007 dated 20.11.2007 and W.P.No.27840 of 2005 dated28.2.2008. Hence the case was posted for orders on 2.7.2008.3.The learned Government Advocate took time to verify and report asto whether the matter is covered by the said judgments or not. Today,the learned Government Advocate submitted that though the issue in thiswrit petition is covered by the above referred judgments, she has soughtfor time to file counter affidavit. According to me, for disposal ofthis case, no counter affidavit is necessary as the point of law aloneis involved in this case.4.The case of the petitioner is that Petitioner Diocese, which is aMinority Educational Agency, has established and is administering threecolleges viz., (1) Scott Christian College, Nagercoil, (2) NesamonyMemorial Christian College, Marthandam, and (3) Women's ChristianCollege, Nagercoil, apart from Teacher Training Schools, B.Ed Colleges,CSI College of Technology (Engineering College), Para-medicalInstitutions, 14 Higher Secondary Schools, 3 High Schools and severalprimary schools in the revenue district of Kanyakumari and part ofTirunelveli. All the institutions are treated as minority institutionsby the Government of Tamil Nadu.5.When the Tamil Nadu Recognised Private Schools (Regulation) Act,1973, was enacted and the provisions of the said Act and Rules werechallenged in a batch of writ petitions, a Division Bench of this Courtin W.P.No.4478 of 1974 and 294 of 1975 etc., batch held that severalprovisions of the said Act and Rules are not applicable to the minorityinstitutions as the same are in violation of Article 30(1) of theConstitution of India. In the said Division Bench judgment it isfurther held that wherever minority character of the institutions areadmitted by the Government, they should be treated as minority https://hcservices.ecourts.gov.in/hcservices/ institutions and if there is any dispute with regard to the minoritycharacter, the concerned institutions/Agencies should file civil suit toget declaration of minority status. When W.P.No.524 of 1975 filed bythe petitioner management came up for hearing along with connectedcases, the then Government Pleader agreed that the petitionerEducational Agency viz., the educational institutions established andadministered by the petitioner, are admittedly minority institutions.Based on the said submission, the said writ petition was allowed interms of the earlier Division Bench Order referred above.6.The State Government challenged the order made in W.P.No.4478 of1974, etc., by filing Civil Appeal.No.5381 of 1990, etc., and theSupreme Court remanded all the matters for fresh consideration in thelight of the decision of the Constitution Bench of the Supreme Court inT.M.A.Pai Foundation and others v. State of Karnataka & Others reportedin (2002) 8 SCC 481. While remanding the matter the Supreme Courtobserved:-"Status-quo shall continue unless the HighCourt so decides to modify the same by anappropriate application made to it by any of theparties. The parties are at liberty to file freshpleadings, if any, within the period fixed by theHigh Courts. It is made clear that all statutoryenactments, orders, schemes, regulations will haveto be brought in conformity with the decision of theConstitution Bench of this Court in T.M.A.PaiFoundations's case decided on 31.10.2002. As andwhen any problem arises the same can be dealt withby an appropriate Forum in an appropriateproceeding."Thus, all these institutions are treated as minority institutions tilldate as no modified order is passed in those cases, which are remanded.7.The institutions viz., the schools and colleges, run by thepetitioner educational agency are treated as minority institutions allthese years. In the three colleges established and administered by thepetitioner educational agency, the second respondent through hisproceedings dated 26.7.2007 permitted to fill up, 20 Lecturer postsbecame vacant in Scott Christian College, Nagercoil; 16 Lecturer postswhich became vacant in Nesamony Memorial Christian College, Marthandam;and 7 Lecturer posts, which became vacant in Women's Christian College,Nagercoil, and the respective College Governing Board appointed fullyqualified Lecturers and submitted proposals to the third respondent forapproval of appointments and for payment of salary.8.When the said proposal for approval of appointments are pending,the second respondent issued the impugned order dated 7.1.2008 anddirected the third respondent to ascertain as to whether the collegeshave obtained minority status from the Government. The said directionissued by the second respondent is challenged in this writ petition onthe ground that the Petitioner Educational Agency and all its https://hcservices.ecourts.gov.in/hcservices/ institutions are already declared as Christian Religious MinorityInstitutions by this Court and therefore the second respondent is notjustified in requesting the third respondent to demand fresh minoritydeclaration from the colleges established and administered by thePetitioner Educational Agency.9.The learned counsel appearing for the petitioner submitted thatthe very same issue was considered by this Court in the decisionreported in 1999 (1) CTC 121 (The Correspondent St.Ignatius HigherSecondary School, Kanyakumari District v. Director of School Education,Chennai & others) wherein the contention of the Government and thefindings are stated in paragraphs 5 to 7, which reads as follows:"5. At this juncture, learned GovernmentAdvocate submitted that in view of the recent Orderof the Honourable Supreme Court, the Government willhave to declare the institute concerned as a minorityinstitution and till then the same cannot haveminority status. I do not think that the submissionof learned Government Advocate could be acceptedsince the very order of the Supreme Court was placedbefore me by learned counsel for petitioner. Theorder was passed in I.A.No.20 in T.M.A.Pai Foundationand others v. State of Karnataka and others, W.P.(C)No.317 of 1993. Going by that order, it is clearthat the direction applied only to respondentsInstitutions which were parties to that I.A. TheHonourable Supreme Court has held thus:- (RelevantPortion):"a) We have been informed that some of therespondents/Institutions are operating asminority institutions on the strength ofvarious orders/decrees obtained from the CivilCourts. We pass hereby a general order stayingthe operation of all the decrees/orders whichmay have been given by any Civil Court inrespect of the minority status or otherwise ofany of the institutions which have been arrayedas respondents in this I.A. All therespondents/ institutions shall be treated asnon-minority institutions till they comply withthe direction given by us at Sl.No.2:i)The Educational Institutions claimingminority status should approach the StateGovernment and till the State Governmentissues an order declaring the Institutionto be a minority institution, it cannotoperate as such."6.Reference may be made to the decision of theHonourable Supreme Court in N.Ammad v. Manager,Emjay High School & Others, 1998 (6) SCC 674,wherein their Lordships considered what is the https://hcservices.ecourts.gov.in/hcservices/ effect of declaration. The argument was that evenif the Government had not declared the institutionas a minority institution, the status of minorityinstitution will continue and the effect of thedeclaration is only a recognition of its legalcharacter. In Paragraph 13 of the judgment, TheirLordships have said thus:-"When the Government declared the Schoolas a minority school, it has recognised afactual position that the School wasestablished and is being administered by aminority community. The declaration is only anopen acceptance of a legal character whichshould necessarily have existed antecedent tosuch declaration. Therefore, we are unable toagree with the contention that the School canclaim protection only after the Governmentdeclared it as minority school on 2.8.1994."7.In view of the judgment in The Diocese ofKottar v. The State of Tamil Nadu, W.P.No.497 of1975 and also in view of the decision of theHonourable Supreme Court mentioned above, therecannot be any doubt as to the minority status of thepetitioners."10. The binding nature of the Civil Court decree granting minoritystatus was again considered by a Division Bench of this Court in thedecision reported in 2001 (4) CTC 641 (The Secretary, D.G.VaishnavCollege, Chennai and another v. Dr.T.Venkataraman & Others), and inparagraph 3 the Division Bench held as follows:"3. The appellant in W.A.No.2387 of 2001 hasbeen granted a minority status by a declarationgranted by a decree dated 19.2.1988 by the Court ofthe Principal District Judge, Madras, in A.S.No.275of 1987. It is not disputed that the said decreehad become final. As on date, the said decree hasnot been nullified. But Mr.P.Jyothimani, learnedcounsel for the first respondent, submits that inview of G.O.(Ms)No.270, dated 17.6.1998, the decree,which has been granted on 19.2.1988, had becomeinoperative. Prima facie, we are unable to agreewith the said submission as the Government has beena party and suffered a decree on 19.2.1988 and thesaid decree having become final, the Government isbound by the same unless there is a specificlegislation that too, if it is not an affront to theabove decree granted by the judicial authority.Then Mr.Jyothimani takes us to the order of theSupreme Court in T.M.A.Pai Foundation and ors. v.State of Karnataka and others, LA.No.20 in WP(C) https://hcservices.ecourts.gov.in/hcservices/ No.317 of 1993 dated 17.10.1994. It is not disputedthat the said writ petition is still pending on thefile of the Supreme Court. In the interim orderpassed on the above date, the Civil Court's decreegranting minority status to the respondents, whohave been parties therein, that is respondents 2 to6, has not been taken cognisance of Particularreference has been made to the said respondents andthe said order does not operate in rem. In factthat position has been clarified by a learned singleJudge of this Court in The Correspondent,St.Ignatius Higher Secondary School, Kurumbanai-629251, Kanyakumari District and others v. Director ofSchool Education, College Road, Chennai-6 andothers, 1999 (1) CTC 121. It is not brought to ournotice that this judgment of the learned singleJudge has been overruled. As such, we find a primafacie case in favour of the appellant in W.A.No.2387of 2001 that it still enjoys minority status as ondate."In the above Division Bench Judgment, the order of the learned singleJudge reported in 1999 (1) CTC 121 (cited supra) was approved and it iscategorically held that once the minority declaration is made by acompetent Civil Court, the said institution need not apply again to theGovernment to declare its status as the Civil Court judgment has becomefinal.11. Similar issue was considered by me in W.P(MD)No.1971 of 2007order dated 20.11.2007, wherein the petitioner educational agency andits institutions, which were granted minority status by the Governmentfor the academic year, was required to get renewal of minority statusfrom the Government. Following the earlier judgment of a Division Benchof this Court reported in (2001) 3 MLJ 433 (Thirumuruga KirupanandaVariyar Thavathiru Sundara Swamigal, Medical Educational and CharitableTrust, Salem v. State of Tamil Nadu and another) I have allowed the writpetition holding that the minority declaration once granted will holdgood for the subsequent years also, unless it is duly cancelled by theGovernment. The said Division Bench judgment was followed by a learnedsingle Judge in the decision reported in 2004 WLR 202 (C.S.L.Instituteof Technology, Thovalai v. The Government of Tamil Nadu & another), andparagraph 6 of the decision is extracted hereunder:"6. It is true that by order dated 20.11.2003,the Government had renewed the minority status ofthe petitioner institution for the academic year2001-2002. But the question which arises forconsideration in this writ petition is with regardto the justification of the Government to seek forperiodical renewal for every academic year. Thatissue was particularly considered by the DivisionBench of this Court as stated above. I am in https://hcservices.ecourts.gov.in/hcservices/ respectful agreement with the views expressed by theDivision Bench in this context. There is noprovocation for the Government to insist on suchrenewal for every year when once the institution hasbeen granted the Minority Status. Unless orotherwise, there is any change in the Constitutionof the agency or any adverse information is receivedby the Government, which might lead to theconclusion that the declaration of the Institutionis fraudulent and erroneous or the Management hadundergone any change in its constitution, there isabsolutely no need or necessity for the Governmentto expect such periodical renewal. Such requirementwill unnecessarily lead to delay and red-tapismwhich is totally uncalled for. In the present caseitself for the academic year 2001-2002 renewal isgranted only on 20.11.2003, that too only becausethe petitioner has moved this Court. Theadministration of the school and the plight of thestudents cannot be kept under such unreasonablesuspense and doubt, which is totally unwarranted.Assuming that periodical check is necessary, theGovernment should evolve a methodology wherebyrenewal could be sought for once in five years ormore and in such a manner that renewal should beapplied for and granted atleast three or four monthsprior to the lapse of the said period. The presentrequirement of annual renewal is neither reasonablenor warranted. As stated earlier, it is always opento the authorities to call upon the management toexplain the position if any adverse information isreceived by the Government. It is totallyunreasonable to expect all the minority schools inthe State to be knocking at the doors of theauthorities every year and the authorities wouldpass orders only after two years as in this case inspite of filing of a writ petition".The above said orders are again followed by me in W.P.No.27840 of 2005,order dated 28.2.2008.12. Here in this case, the Government conceded before this Courtin W.P.No.524 of 1975 dated 4.9.1976 that the institutions run by thePetitioner Educational Agency are Minority Educational Institutions.There is no change pointed out in the constitution of the petitionereducational agency and the request of the department to get minoritystatus insofar as the other similarly placed institutions are concerned,the same has already been set aside by this Court and the said orders,as stated supra, have become final. In the light of the above citedjudgments, there is no need for the petitioner Diocese to get minoritystatus from the Government and the demand made by the second respondentthrough the impugned order, is unsustainable. Further, no reason is https://hcservices.ecourts.gov.in/hcservices/ given by the second respondent to get further declaration from thegovernment. It is not the case of the second respondent that thecharacter of the institution is changed, particularly when thepetitioner educational agency is a Diocese. Even if the authorities ofthe Diocese are changed, the character of the institutions will neverchange. Hence the impugned order requesting the petitioner managementto get minority declaration from the Government for treating theinstitutions as minority institutions cannot be sustained. 13. The writ petition is allowed with a direction to the thirdrespondent to consider the approval of appointments sought for by therespective colleges of the petitioner Diocese, if the persons appointedin the respective posts are qualified to hold the post, withoutreference to the order dated 7.1.2008 passed by the second respondent.Third respondent is directed to consider the request of approval of eachof the appointments made by the colleges established and administered bythe petitioner Diocese and pass necessary orders within six weeks fromthe date of receipt of copy of this order.The writ petition is ordered accordingly. No costs. Connectedmiscellaneous petition is closed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarVrTo1.The Secretary to Government, Higher Education Department,Fort St.George, Chennai - 9.2.The Director of Collegiate Education, College Road, Chennai - 6.3.The Joint Director of Collegiate Education,Tirunelveli Region, Trivandrum Road, Tirunelveli.1 cc To Mr.K.Vijayakumar, Advocate, SR.35144.1 cc To The Government Pleader, SR.35213.W.P.No.11032 of 2008 USV(CO)RVL 15.07.2008