CORAMTHE HONOURABLE MR v. The State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 24.08.2009CORAMTHE HONOURABLE MR.JUSTICE P.JYOTHIMANIWrit Petition No.11896 of 2009& M.P.Nos.1 and 3 of 2009Shieik Kaboor SahibCorrespondentAided Middle SchoolVedankeeranoorSankarapuram Taluk,Villupuram District. ..PetitionerVs.1. The State of Tamil Nadu, rep. By its Secretary to Government, Department of School Education, Fort St. George, Chennai – 9.2. The Director of School Education, Egmore, Chennai – 6. ..RespondentsPETITION under Article 226 of The Constitution of India prayingfor the issuance of Writ of Certiorarified Mandamus call for therecords relating to G.O.(ID)No.293 dated 12.09.2000 of the firstrespondent and Letter No.33970/X.2/2002-9 dated 08.10.2007 on thefile of the second respondent and quash the same and direct therespondents to accord minority status to the petitioner school.For Petitioner : Mr.K.ElangooFor Respondents : Mrs.K.Dhakshayani Reddy, G.A.O R D E RHeard Mr.K.Elangoo, learned counsel for the petitioner andMrs.K.Dhakshayani Reddy, learned Government Advocate for therespondents, who made her submission after receiving instructionsfrom the respondents and perused the entire files relating thesubject matter involved in this case.2. The challenge in this writ petition is of the order passedby the Government dated 8.10.2007 under which the first respondent https://hcservices.ecourts.gov.in/hcservices/ Government by referring to an application filed by the petitionerinstitution dated 11.4.2002 and based on the subsequent enquirystated to have been conducted has decided that as per the Governmentorder in existence, it is the Government who has to confer the statusof minority to have the benefit under Article 30 (1) of theConstitution of India. 3. The petitioner school was started in the year 1940 by thefather of the petitioner, Late Abdul Kareem. It was established as aminority institution and according to the petitioner more than 90% ofthe population belonging to the Muslim community and it was startedto promote educational requirement. The said institution wasrecognised by the Department and aids are also been granted. Afterthe death of the petitioner's father, the petitioner being thecorrespondent is continued to maintain and administer the institutionas minority institution. It is stated that he has made variousrepresentations to the authorities to recognise it as a minorityinstitution, which was not considered. 4. In those circumstances, the petitioner filed a suit inO.S.No.1324 of 1994 on the file of the Additional District Munis –II, Kallakurichi, Villupuram District for declaration of thepetitioner school as a minority institution entitled for protectionunder Article 30 of the Constitution of India. It is based on thedecree passed by the competent Civil Court, the petitioner has mademany representations including the one on 11.4.2002 to therespondents to declare the institution as minority institution. Thepetitioner has also filed W.P.No.23478 of 2002 for a direction to therespondents to dispose of the representation and this Court by orderdated 02.7.2002 has directed the second and third respondents todispose of the representation dated 11.4.2002 in accordance with law.It was thereafter, the petitioner was called to appear by the secondrespondent on 26.9.2007 and the petitioner has produced all thedocuments and given his version in writing and it was thereafter, theimpugned order came to be passed rejecting the claim. 5. Mr.K.Elango, learned counsel appearing for the petitionerwould submit that the competent Civil Court has decided everyone ofthe requirements for the purpose of considering the institution asminority institution and in the said judgment, in which theGovernment of Tamil Nadu and Director of School Education areparties. In such circumstances, when the said judgment of the CivilCourt between the petitioner and the respondents have become final,the respondents are bound by the Civil Court decree and they ought tohave declared the petitioner institution as minority institution. 6. On the other hand, Mrs.K.Dhakshayani Reddy, learnedGovernment Advocate appearing for the respondents would rely upon thevarious Government orders including G.O.(Ms).No.270 Higher Education(J1) Department dated 17.6.1998 to substantiate her contention that https://hcservices.ecourts.gov.in/hcservices/ to declare the minority status of any institution lies with theGovernment and in fact the Government has formulated variousprinciples in the form of guidelines for the purpose of declaring aninstitution a minority institution. According to her, the decisiontaken by the impugned order by which the Government has retained itspower to declare the institution as a minority institution to conferthe benefit under Article 30 of the Constitution of India is wellwithin the jurisdiction of the first respondent Government. She hasproduced the entire records.7. At the outset, it is clear that the petitioner institutionis established and run by a minority religion, namely, Muslims. Thefact that the petitioner's father in the year 1940 has started theinstitution in the area which is predominantly covered by Muslimcommunity 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 ofthe Additional District Munsif Court No.II, Kallakurichi by makingthe Government of Tamil Nadu and Director of School Education, whoare respondents herein, as defendants. It was after hearing both theparties, after contest, a detailed judgment has been passed by theCivil court in the judgment dated 20.11.1996. While deciding aboutthe status of minority, there has been a specific finding given bythe Civil Court stating to the effect that the institution as per therecord was started in the year 1940 by Abdul Kareen and that wasstarted for the benefit of Muslim community in that area. Thatdecision was arrived at on examination of the said witness. Thepetitioner has taken charge after the death of his father asCorrespondent and the records have been produced before the CivilCourt that the petitioner belong to Mohammedan community, in fact theCivil Court has referred to the voters list, marked as Ex.A.4 andarrived at a factual conclusion that the entire area is covered byMuslim predominantly. The Court has also relied on Ex.A.5, which isa monthly register of the school and has come to the conclusion thatthe persons who are benefited under the petitioner school are Muslimsin large number and the school has been recognised and functioningfor the past 50 years and it was taking all the facts andcircumstances on record, the Civil Court passed a detailed judgmentin which the respondents are parties holding that the petitionerinstitution is a minority institution covered for the protectionunder 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 Readerand 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 withthe minority status of an institution in the context of a Civil Courtdecree held that if the Civil Court has granted minority status toany institution that has to be taken note of for the purpose ofdeciding the minority status of the institution. In fact, the https://hcservices.ecourts.gov.in/hcservices/ Division Bench has also taken note of the interim order passed by theHonourable 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 1993dated 17.10.1994 wherein by way of interim direction the SupremeCourt has directed the minority institution to approach theGovernment for the purpose of necessary declaration. Whileconsidering that aspect of the interim order passed by the ApexCourt, the Divison Bench has held that the interim direction granteddoes 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 learnedcounsel for the respondent by producing the copy of the G.O., wasalso brought to the notice of the Division Bench and the DivisionBench has considered. The operative portion of the judgment is asfollows:"3. The appellant in W.A.No.2387 of 2001 has beengranted a minority status by a declaration granted by adecree dated 19.2.1988 by the Court of the Principal DistrictJudge, Madras, in A.S.No.275 of 1987. It is not disputedthat the said decree had become final. As on date, the saiddecree has not been nullified. But Mr.P.Jyothimani, learnedcounsel for the first respondent, submits that in view ofG.O.(Ms.)No.270, dated 17.6.1998, the decree, which has beengranted on 19.2.1988, had become inoperative. Prima facie,we are unable to agree with the said submission as theGovernment has been a party and suffered a decree on19.2.1988 and the said decree having become final, theGovernment is bound by the same unless there is a specificlegislation that too, if it is not an affront to the abovedecree granted by the judicial authority. Then Mr.Jyothimanitakes us to the order of the Supreme Court in T.M.A.PaiFoundation and ors. V. State of Karnataka and others,L.A.No.20 in WP(C) No.317 of 1993 dated 17.10.1994. It isnot disputed that the said writ petition is still pending onthe file of the Supreme Court. In the interim order passedon the above date, the Civil Court's decree granting minoritystatus to the respondents, who have been parties therein,that is respondents 2 to 6, has not been taken cognisance ofParticular reference has been made to the said respondentsand the said order does not operate in rem. In fact thatposition has been clarified by a learned single Judge of thisCourt in The Correspondent, St.Ignatius Higher SecondarySchool, Kurumbanai – 629 251, Kanyakumari District and othersv. Director of School Education, College Road, Chennai 6 andothers, 1999 (1) CTC 121. It is not brought to our noticethat this judgment of the learned single Judge has beenoverruled. As such, we find a prima facie case in favour ofthe appellant in W.A.No.2387 of 2001 that it still enjoysminority status as on date." https://hcservices.ecourts.gov.in/hcservices/

9. Now it is informed that T.M.A.Pai Foundation case has beenfinally disposed of by the Supreme Court reported in AIR 2003 SC355 : (2002) 8 SCC 481. While rendering judgment in the said case,it is seen that the Honourable Apex Court has not decided about theauthority competent to decide about the minority status. 10. In such circumstances, the decision of the Division Benchas cited supra observing that the interim order passed by theHonourable Apex Court does not operate in rem comes to be true. Nowby a reference to G.O.(Ms) No.270 dated 17.6.1998, it is seen thatthe Government has issued following guidelines in the said G.O. forthe purpose of declaring the claim of any institution as a minorityinstitution for conferring minority status. "(i) The object of the educational institutions shouldbe for noting the interests of the minority concerned and itshould subserve the interests of the minority communityconcerned.(ii) Such educational institutions should have beenestablished by the minority and should be continuouslyadministered only by the members of that minority.(iii) An educational institution which was originallynot established by a minority community cannot acquire suchstatus or character subsequently under any circumstances.(iv) All the Trustees or members of the Governing Bodyof the minority educational institutions shall belong onlyto the concerned minority. In the case of self-financingeducational institutions imparting professional courses ofeducation established and administered by any minority theyshall admit students of that minority alone, not exceeding50% of the sanctioned strength, if there is any vacancy notfilled as above such vacancy in that 50% shall be filled uponly on the basis of merit and from common merit listprepared by the competent authority.(v) To decide whether an applicant is a minority or notbased on religion or language, the total population of thatminority in the State of Tamil Nadu shall be taken intoconsideration and not the population of that minority in anyparticular region where the educational institution issituated.(vi) In so far as Tamil Nadu State is concerned, anyperson whose mother tongue is any language other than Tamilshall be considered as linguistic minority, in the State and https://hcservices.ecourts.gov.in/hcservices/ in respect of religious minority, any person whose religionis other than Hinduism shall be considered as a religiousminority in the State."11. A reference to the said requirements contemplated as amatter of guidelines in the above G.O along with Civil Courtjudgment, which has been referred to, which relates to the petitionerinstitution, shows that in fact everyone of the requirements ascontemplated in the form of guidelines has been dealt with by theCivil Court between the same parties. In fact, it is found on recordby the competent Civil court that the institution has beenestablished by the father of the petitioner 40 years before and thearea in which the institution is started is predominantly Muslims andthat the majority of the students studying there are Muslims.12. In such view of the matter, the requirements ascontemplated in the guidelines of the Government are on the face ofit have been fulfilled. Therefore, in such view of the matter, theimpugned G.O.(ID)No.293 dated 12.09.2000, which is admitted to havebeen passed in respect of the petitioner institution alone and LetterNo.33970/X.2/2002-9 dated 08.10.2007 are set aside with a directionto the first respondent to consider the case of the petitioner afreshin the light of the guidelines as well as the factual position statedabove and pass appropriate orders regarding grant of minority statusof the petitioner expeditiously, in any event, within a period of 16weeks from the date of receipt of a copy of this order. 13. It is needless to state that in the event of the firstrespondent granting such minority status, the petitioner shallmaintain all the stipulations required for the purpose of retainingthe minority status and in the absence of following any one of thestipulation, it is always open to the Government to take action inaccordance with law.14. Accordingly, this Writ Petition is allowed. No costs.Consequently, M.P.Nos.1 and 3 of 2009 are closed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarslTo1. The Secretary to Government, The State of Tamil Nadu, Department of School Education, Fort St. George, Chennai – 9. https://hcservices.ecourts.gov.in/hcservices/

2. The Director of School Education, Egmore, Chennai – 6.+ 1 c.c. to Mr. K. Elango, Advocate. S.R.No.40949.+ 1 c.c. to The Government Pleader. S.R.No.41057.Writ Petition No.11896 of 2009& M.P.Nos.1 and 3 of 2009KU (CO)GSK 07.09.2009.