Madrasdated High Court · 2009

second respondent, the Director of Technical Education afterprocessing the application, by order dated 6.8.2009 which isimpugned in W.P.No.16287 of 2009, refused to process theapplication on the basis that the petitioner is neither a Society,nor a Trust and is a Company registered under section 25 of theCompanies Act and therefore, quoting the approval process fordiploma institutions issued by the AICTE, the 4th respondent inW.P.No.16188 of 2009, the said refusal order came to be passed. 2(b). In those circumstances, the petitioner has filed thewrit petitions, one challenging the said clause in the approvalprocess for diploma institutions and another challenging the orderof the second respondent, the Director of Technical Educationrefusing to process the application on the ground that thepetitioner is neither a Society, nor a Trust and is a Companyregistered under section 25 of the Indian Companies Act. 3. The main ground on which the writ petitions are filed isthat compelling the petitioner under the norms prescribed by theAICTE, in respect of minority institutions that it must be aSociety or a Trust is against law and it is opposed to theConstitution of India, since any citizen is entitled to start aneducational institution and that is also the power given to theminority citizen belonging to minority community as per Article 30of the Constitution of India and also the said norms are againstthe judgement of the Apex Court in TMA Pai Foundation case [2002(8) SCC 481].4. Even though the learned counsel for the AICTE hasattempted to raise a factual issue that the petitioner has filedthe writ petitions in individual capacity asRt.Rev.G.Devakadashyam, stating that he is the Bishop ofKanyakumari Diocese, and there is no material to show that thepetitioner belongs to Christian Minority and therefore, the writpetitions are not maintainable, a reference to the impugned orderpassed by the Director of Technical Education, Chennai, which isimpugned in W.P.No.16287 of 2009 shows that the processingauthority has not raised such factual aspect questioning theminority status of the petitioner. In fact, the reason assignedby the Director of Technical Education in the impugned order inthe said writ petition is that the Church of South India TrustAssociation has been incorporated under the Indian Companies Actand the application itself has been filed for starting apolytechnic college in the name, Vethamonikam Memorial CSIPolytechnic College, Viricode, Marthandam in Kanyakumari Districtand there is absolutely no suspicion raised by the State about theminority status of the petitioner either as an individual or as aninstitution which belongs to CSI. It is therefore not necessary torefer to the said aspect of the contention raised by the learnedcounsel for the AICTE. https://hcservices.ecourts.gov.in/hcservices/

5. The reason given by the Director of Technical Education,Chennai in the impugned order dated 6.8.2009 for refusing toprocess the application for starting the institution is asfollows:"The application submitted for establishing a newPolytechnic College in the name and style ofVethamonikam Memorial CSI Polytechnic College, Viricode,Marthandam, Kanyakumari District was scrutinized by thisoffice and it was found that the aspirant body, "TheChurch of South India Trust Association" has beenincorporated under the Indian Companies Act 1913 (ACTVII of 1913) as a Limited Company on 26.9.1947.As per the AICTE Approval Process for DiplomaInstitutions wherein the clause 2.2 states that the(a) Registered Societies and Trusts/Self-FinancingPrivate Institutions(b) Central/State Government Institutions(c) Government Aided Institutionsonly can submit proposals for the establishment of NewTechnical Institutions for conducting TechnicalProgrammes.In this regard the Southern Regional Office, AICTE,Chennai has also clarified that, the Company registeredunder the Companies Act or an individual cannot start aTechnical Institution."6. The clause in the approval process for diplomainstitutions by AICTE, New Delhi for the year 2007-08 which isimpugned in W.P.No.16188 of 2009 is as follows:"2.2 THE APPLICATION FORM CAN BE SUBMITTED BY(a)Registered Societies and Trusts/Self financingPrivate Institutions(b)Central / State GovernmentInstitution/Government Aided Institutions."7. Before adverting to the legal issue involved as submittedby the counsel for the respective parties, viz., Mr.V.Selvaraj,learned counsel for the petitioner, Mr.N.Muralikumaran, learnedcounsel appearing for AICTE and Ms.Dhakshayani Reddy, learnedGovernment appearing for the State and the Director of TechnicalEducation, it is relevant to reiterate that the constitutionalguarantee in the form of fundamental rights which is captioned asCultural and Educational Rights, has been conferred under Articles29 and 30 of the Constitution of India which are as follows:"Art.29. Protection of interests of minorities.-(1) Any section of the citizens residing in theterritory of India or any part thereof having a distinctlanguage, script or culture of its own shall have theright to conserve the same. https://hcservices.ecourts.gov.in/hcservices/ (2) No citizen shall be denied admission into anyeducational institution maintained by the State orreceiving aid out of State funds on grounds only ofreligion, race, caste, language or any of them.Art.30. Right of minorities to establish andadminister educational institutions.- (1) All minorities, whether based on religion orlanguage, shall have the right to establish andadminister educational institutions of their choice.[(1-A) In making any law providing for thecompulsory acquisition of any property of an educationalinstitution established and administered by a minority,referred to in clause (1), the State shall ensure thatthe amount fixed by or determined under such law for theacquisition of such property is such as would notrestrict or abrogate the right guaranteed under thatclause.](2) The State shall not, in granting aid toeducational institutions, discriminate against anyeducational institution on the ground that it is underthe management of a minority, whether based on religionor language."While the right conferred under Article 29 of the Constitution ofIndia is in respect of a section of citizens to have their owndistinct script and culture which can be either linguistic orreligious in nature, Article 30 confers the right of minoritiesbased on religion or language to establish and administereducational institutions of their own.8. Law is well settled that the State can not impose anyrestriction on the rights of minorities to establish andadminister educational institutions so long as such institutionsare not aided by the State. However, the State can always, to alimited extent, impose regulations for the purpose of maintainingthe excellence in education etc. It is equally settled that incases of institutions which are recognised by the State andreceiving aids or even in respect of minority institutions, forthe purpose of recognition by the State Government, the State canimpose restrictions regarding the qualification of teachers, payof teachers, constituents of governing body, etc. It has alsobeen held that to establish and administer an educationalinstitution by minority is not to maladminister the institution,because even the minority status cannot be used as a camouflage tocommit mal-administration. Even though the term 'minority' usedin Article 30 of the Constitution of India has not been definedanywhere in the Constitution, it has been an established judicialpronouncement that the term, 'minority' means a non-dominantgroup, which has been explained by the Apex Court in TMA Pai https://hcservices.ecourts.gov.in/hcservices/ Foundation case as a relative term and referred to represent thesmaller of two members, sections or groups called, minority andsuch minority can be political minority, religious minority,linguistic minority, etc. 9. The crux of the issue involved in this case is that whenArticle 30 of the Constitution of India confers a fundamentalright on minorities, whether such right should be denied to asingle citizen of India who belongs to minority whether religiousor linguistic in respect of establishment and administration of aneducational institution, and such right should be given to alarger number of citizens of India belonging to that minoritygroup; if that is so, whether such group should only be either asociety registered under the Societies Registration Act or a Trustconstituted by way of creation of Trust and not otherwise. Theseare the crucial issues which are raised in these writ petitions.10. A reference to the impugned clause/order in these writpetitions including the stipulations made by the AICTE shows thatwhether an institution is a minority or majority, it cannot have aright to establish or administer an institution by a singleindividual and it must be by a Registered Society or by a Trust.The focus under the said requirement by AICTE in this case is inrelation to religious minority belonging to Christian religion.The petitioner, if he is taken as an individual, is a citizen ofIndia belonging to a minority religion viz., Christianity, and asa Bishop of Kanyakumari Diocese, C.S.I. Church which forms part ofCSI Trust created under section 25 of the Indian Companies Act,the petitioner is a group of individuals belonging to theChristian minority. 11. The requirement of a Registered Society or a Trust to beeligible to establish and administer an educational institutioncame to be introduced by the Apex Court in the scheme framed inUnnikrishnan,J.P. and others v. State of A.P. [(1993) 1 SCC 645],wherein a Five Judge Bench of the Supreme Court while dealing withvarious aspects of the Constitution of India, especially Article21, held that the right to education is implicit under the saidArticle which flows from the right to life and personal liberty.While dealing with Articles 19(1)(g), 30 and 29 of theConstitution of India, with reference to the institutions whichare required to be recognised by the State and the institutionswhich do not require such recognition, the Bench held in para-69of the judgement that the right conferred under Article 30 isdistinct from that of Article 19(1)(g) and both of them cannot beread together. The relevant portion is as follows:"69. It is not mere an establishment of educationalinstitution that is urged by the petitioners, but to runthe educational institution dependent on recognition bythe State. There is absolutely no fundamental right to https://hcservices.ecourts.gov.in/hcservices/ recognition in any citizen. The right to establishmentand run the educational institution with State'srecognition arises only on the State permitting,pursuant to a policy decision or on the fulfilment ofthe conditions of the Statute. Therefore where it isdependent on the permission under the Statute or theexercise of an executive power, it cannot qualify to bea fundamental right. Then again, the State policy maydictate a different course."12. It is relevant to point out that in Unnikrishnan case,the Apex Court has dealt with the admission in professionalcolleges. Holding that the right conferred under Article 30 onevery citizen of the country is a positive right, the SupremeCourt in the said judgement also in no uncertain terms held thatthe right to establish an educational institution does not carrywith it the right to recognition or right to affiliation which isheld to be essential for meaningful exercise of the right toestablish an educational institution. In this regard, it washeld as follows:"204. ...... The institution has to seek suchrecognition or affiliation from the appropriate agency.Grant of recognition and/or affiliation is not a matterof course nor is it a formality. Admission to theprivileges of a University is a power to be exercisedwith great care, keeping in view the interest of thegeneral public and the nation. It is a matter ofsubstantial significance – the very life-blood of aprivate educational institution. Ordinarily speaking,no educational institution can run or survive unless itis recognised by the Government or the appropriateauthority and/or is affiliated to one or the otherUniversities in the country. Unless it is recognisedand/or affiliated as stated above, it's certificateswill be of no use. No one would join such educationalinstitution. As a matter of fact, by virtue of theprovisions of the U.G.C.Act, noticed hereinabove, noeducational institution in this country except aUniversity is entitled to award degrees. It is for thisreason that all the private educational institutionsseek recognition and/or affiliation with a view toenable them to send the students trained by them toappear at the examinations conducted by theGovernment/University. The idea is that if suchstudents pass the said examination, theGovernment/University will award itsdegree/diploma/certificate to them. The educationalinstitutions follow the syllabus prescribed by theGovernment/University, have the same courses of study,follow the same method of teaching and training. They https://hcservices.ecourts.gov.in/hcservices/ do not award their own degrees/qualifications. Theyprepare their students for University/Government topermit examinations, request the University/Governmentto permit them to appear at the examinations conductedby them and to award the appropriate degrees to them.Clearly and indubitably, the recognised/affiliatedprivate educational institutions, supplement thefunction performed by the institutions of theState. ...."13. Ultimately, the Apex Court, in order to eliminatediscretion in the management in the matter of admission which isthe root of several evils complained of like, capitation fee,etc., in the light of prohibition on capitation fee in four Statesviz. State of Karnataka under the Karnataka EducationalInstitutions (Prohibition of Capitation Fee) Act, 1984, State ofAndhra Pradesh in Andhra Pradesh Educational Institutions(Regulation of Admission and Prohibition of Capitation Fee) Act,1983, State of Maharashtra in Maharashtra Educational Institutions(Prohibition of Capitation Fee) Act, 1987 and State of Tamil Naduin Tamil Nadu Educational Institutions (Prohibition ofCollection of Capitation Fee) Act, 1992 and also in the light ofUniversity Grants Commission Act, 1956, Medical Council Act, 1956and AICTE Act, 1987, framed a Scheme by giving out a statutoryshape virtually recommending that those rules given in the form ofScheme are desirable to be included in the above said enactments.While framing the Scheme, the Supreme Court observed as follows:"... Our attempt in evolving the following schemeprecisely is to give effect to the said legislativepolicy. It would be highly desirable if this scheme isgiven a statutory shape by incorporating it in the rulesthat may be framed under these enactments."14. It is, while framing the Scheme in para 206 and in para210(i) which is as follows:"(1) A professional college shall be permitted to beestablished and/or administered only by a Societyregistered under the Societies Registration Act,1860 (orthe corresponding Act, if any, in force in a giveState), or by a Public Trust, religious or charitable,registered under the Trusts Act, Wakfs Act (or thecorresponding legislation, if any, e.g., Tamil NaduReligious and Charitable Endowments Act and A.P.Religious and Charitable Endowments Act). Noindividual, firm, company or other body of individuals,by whatever appellation called – except those mentionedabove – will be permitted to establish and/or administera professional college. All the existing professionalcolleges which do not conform to the above norm shall be https://hcservices.ecourts.gov.in/hcservices/ directed to take appropriate steps to comply with thesame within a period of six months from today. Indefault whereof, recognition/affiliation accorded shallstand withdrawn. [In this connection reference may behad to Rule 86(2) of Maharastra Grant-in-aid Code(referred to in State of Maharashtra v. Lok ShikshanSanstha (1971) 2 SCC 410) which provided that schoolswhich are not registered under the SocietiesRegistration Act, shall not be eligible for grant, Grantof recognition and affiliation is of no lesssignificance.]"the Supreme Court in the matter of starting professional courses,has held that only a society registered under the SocietiesRegistration Act, 1860 or a public trust which is religious orcharitable under the Trust Act or Wakf Act should be permitted toestablish and administer imposing a clear bar to the effect thatno individual, firm or company or other body should be permittedto establish and administer a professional college. 15. That apart, the Supreme Court has given various otherguidelines also in the Scheme. It is by virtue of the said clausein the Scheme framed by the Hon'ble Supreme Court, theprofessional educational authorities in India including variousStates have been insisting the first requirement that only aRegistered Society or a Trust can start an educationalinstitution, whether it is a minority or non-minority institution.16. All India Council for Technical Education Act, 1987 hasnot prescribed the requirement that either a Society or a Trustcan start an educational institution, as a condition for approvalby AICTE. However, in the All India Council for TechnicalEducation (Grant of Approval for starting new TechnicalInstitutions, Introduction of Courses or Programmes and Approvalof intake capacity of seats for courses or programmes)Regulations, 1994 which came into effect from 11.4.1997 and framedby AICTE, Rule 4 deals with the requirements to grant approvalwhich is as follows:"4. Requirement of grant of approval.-(1) After the commencement of these regulations.-(a) no new technical institution orUniversity Technical Department, shall be started; or(b) no course or programme shall beintroduced by any technical institutions, Universityincluding a deemed University or University Departmentor College; or(c) no technical institutions, Universitiesor deemed Universities or University Departments orColleges shall continue in admit students for Degree orDiploma course or programmes; https://hcservices.ecourts.gov.in/hcservices/ (d) no approved intake capacity of seatsshall be increased or varied; except with the approvalof the Council.(2) applications for grant of approval under sub-regulation (1) shall be made by any of the following,namely:-(i)Government institutions, Government aidedinstitutions, deemed Universities andUniversity Departments or Colleges;(ii)registered societies/trusts."The said rule stipulates that the application shall be made by aregistered Society or a Trust. 17. Again, in the the approval process of AICTE to startrecognised courses, which came into effect from the academic year2003-04, while explaining about the documents to be verified bythe Regional Office of AICTE, the requirement of documentsregarding registration as Society including the list of membersand previous records of Society/Trust is also being insisted.18. In respect of medical colleges, the Indian MedicalCouncil Act, 1956, section 10A which was inserted by Act 31/93with effect from 21.7.1982 contemplates that previous permissionmust be obtained from the Central Government for establishment ofa new medical college, a new course of study, etc. and that theproposal must be given in the form of a Scheme.19. While the Establishment of New Medical Colleges, Openingof Higher Course of Study and Increase of Admission Capacity inMedical Colleges Regulations, 1993 framed by the Medical Councilof India, explains about the Scheme to be presented to the CentralGovernment for establishment of a new medical college, in theInstructions the following four are stated as eligible criteria:"1.Universities and State Governments/UnionTerritories.2. Autonomous Bodies promoted by Central and StateGovernments.3. Societies registered under SocietiesRegistration Act,1860 or corresponding Acts in States.4. Public Trusts religious or chrairtableregistered under Indian Trust Act,1882, Wakfs Act,etc."20. It is the case of the AICTE as it is seen in the commoncounter affidavit filed by the Regional Director for All IndiaCouncil for Technical Education that the restrictions oreligibility criteria to the effect that only a Society or a Trustshould establish or administer an educational institution arereasonable, as held by the Supreme Court in Unnikrishnan case, as https://hcservices.ecourts.gov.in/hcservices/ elicited above. However, it is the further case of AICTE that forhaving Trust or Society, there should be a group of individuals,which is a reasonable restriction and it does not violate theright conferred under Article 30(1) of the Constitution of India.21. In TMA Pai Foundation and Others v. State of Karnatakaand others [(2002) 8 SCC 481], an eleven Judge Bench of theSupreme Court decided about the minority status under Article 30(1) and Article 29 (2) the Constitution of India. It issignificant to note that the said judgement which predominantlyrelates to the minority rights, has dealt with the law relating toall educational institutions whether private, aided or unaidedestablishment by minority or non-minority, without restricting toprofessional colleges, which is evident from the very beginning ofthe judgement in para-2, which is as follows:"1. Is there a fundamental right to set up educationalinstitutions and if so, under which provision?2.Does Unni Krishnan case, (1993) 4 SCC 111 requirereconsideration.3.In case of private institutions (unaided and aided),can there be government regulations and, if so,to whatextent?4.In order to determine the existence of a religious orlinguistic minority in relation to Article 30, what isto be the unit, the State or the country as a whole?5.To what extent can the rights of aided privateminority institutions to administer be regulated?"22. Again, while dealing with the implication of the Schemeframed in Unnikrishnan case and the contention on behalf of theinstitutions that the conditions imposed in the Scheme framed inUnnikrishnan case for the grant of affiliation and recognition arerestrictive of the right to establish and administer, the ApexCourt held that the Scheme framed in Unnikrishnan case enables theState Governments to legislate that the private institutions aresame as Government institutions and it curtails the institutionalautonomy. On the other hand, the Supreme Court has alsorecognised that the Unnikrishnan case created certain problems.The relevant portions of the judgement of the Supreme Court are asfollows:"36. The private unaided educational institutionsimpart education, and that cannot be the reason to takeaway their choice in matters, inter alia, of selectionof students and fixation of fees. Affiliation andrecognition has to be available to every institutionthat fulfils the conditions for grant of suchaffiliation and recognition. The private institutionsare right in submitting that it is not open to the Court https://hcservices.ecourts.gov.in/hcservices/ to insist that statutory authorities should impose theterms of the scheme as a condition for grant ofaffiliation or recognition; this completely destroys theinstitutional autonomy and the very objective ofestablishment of the institution.37. Unni Krishnan judgement has created certainproblems, and raised thorny issues. In its anxiety tocheck the commercialisation of education, a scheme of"free" and "payment" seats was evolved on the assumptionthat the economic capacity of the first 50% of admittedstudents would be greater than the remaining 50%,whereas the converse has proved to be reality. In thisscheme, the "payment seat" student would not only payfor his own seat, but also finance the cost of a "freeseat" classmate. When one considers the ConstitutionBench's earlier statement that higher education is not afundamental right, it seems reasonable to compel acitizen to pay for the education of another, more so inthe unrealistic world of competitive examinations whichassess the merit for the purpose of admission solely onthe basis of the marks obtained, where the urbanstudents always have an edge over the rural students.In practice, it has been the case of the marginally lessmerited rural or poor student bearing the burden of arich and well-exposed urban student.38. The scheme in Unni Krishnan case has the effectof nationalising education in respect of importantfeatures viz., the right of a private unaidedinstitution to give admission and to fix the fee. Byframing this scheme, which has led to the StateGovernments legislating in conformity with the scheme,the private institutions are indistinguishable from thegovernment institutions; curtailing all the essentialfeatures of the right of administration of a privateunaided educational institution can neither be calledfair nor reasonable. Even in the decision in UnniKrishnan case it has been observed by Jeevan Reddy,J. Atp.749, para 194, as follows:"194. The hard reality that emerges isthat private educational institutions are anecessity in the present-day context. It isnot possible to do without them because thegovernments are in no position to meet thedemand – particularly in the sector of medicaland technical education which call forsubstantial outlays. While education is oneof the most important functions of the IndianState it has no monopoly therein. Privateeducational institutions – including minorityeducational institutions – too have a role to https://hcservices.ecourts.gov.in/hcservices/ play."39. That private educational institutions are anecessity becomes evident from the fact that the numberof government-maintained professional colleges has moreor less remained stationary, while more privateinstitutions have been established. For example, in theState of Karnataka there are 19 medical colleges out ofwhich there are only 4 government-maintained medicalcolleges. Similarly, out of 14 dental colleges inKarnataka, only one has been established by theGovernment, while in the same State, out of 51engineering colleges, only 12 have been established bythe Government. The aforesaid figures clearly indicatethe important role played by private unaided educationalinstitutions, both minority and non-minority, whichcater to the needs of students seeking professionaleducation." 23.The Supreme Court has further considered that thesurrendering of total process of selection to the State as laiddown in the scheme in Unnikrishnan case is unreasonable. It hasalso considered the judgment of the Supreme Court in St.John case[(1992) 1 SCC 558] wherein while recognising the right of minorityaided institution to have a rational admission procedure of itsown, it was ultimately held as under:"45. In view of the discussion hereinabove, we holdthat the decision in Unni Krishnan case insofar as itframed the scheme relating to the grant of admission andthe fixing of the fee, was not correct, and to thatextent, the said decision and the consequent directionsgiven to UGC, AICTE, the Medical Council of India, theCentral and State Governments etc. are overruled."24. While considering the right of private unaided collegesin the context of Articles 19 and 26(a) of the Constitution ofIndia, it was held that the Government can prescribequalifications necessary for admission and the private unaidedinstitutions have no right to admit the students of their choice,but subject to rational procedure of selection and by fixing reasonable fee structure. In that regard, it was held that in anyevent, the private institutions will have the right to constituteits own governing body, for which qualifications may be prescribedby the State or the University concerned. In that regard, it washeld that any nomination by the State to such governing body willbe an inhibiting factor upon the occupation of establishing andadministering educational institutions. That is also the viewregarding interference in the nomination of teachers by thecommittee or through the Service Commission as an unreasonable https://hcservices.ecourts.gov.in/hcservices/ inroad. Ultimately, in respect of unaided non-minorityeducational institutions, the Supreme Court held as under:"54. The right to establish an educationalinstitution can be regulated, but such regulatorymeasures must, in general, be to ensure the maintenanceof proper academic standards, atmosphere andinfrastructure (including qualified staff) and theprevention of maladministration by those in charge ofmanagement. The fixing of a rigid fee structure,dictating the formation and composition of a governingbody, compulsory nomination of teachers and staff forappointment or nominating students for admission would beunacceptable restrictions." 25. While dealing with the right to establish an educationalinstitution whether it is an individual or religious denominationor linguistic minority if financially aid is not sought, it iscomparable to a private unaided institution as in such caseseither the State or the University concerned can lay downconditions to maintain the excellence of education by indicatingquality of teachers, by prescribing minimum qualifications, courseof study and curricula. The Supreme Court has distinguished aprivate unaided institution from the Government aided institutionas follows:"55. ....... But the essence of a privateeducational institution is the autonomy that theinstitution must have in its management andadministration. There, necessarily, has to be adifference in the administration of private unaidedinstitution and the government-aided institutions.Whereas in the latter case, the Government will havegreater say in the administration, including admissionand fixing of fees, in the case of private unaidedinstitutions, maximum autonomy in the day-to-dayadministration has to be with the private unaidedinstitutions. ....." 26. The Supreme Court in various paragraphs, in detail,discussed about the maximum autonomy of private schools, unaidedprivate colleges apart from maintenance of excellence ofeducation, quality of faculty and other facilities. The SupremeCourt also discussed about the rationality of fixation of fees,etc. While dealing with the private aided professionalinstitutions, it was held that it would be permissible for theauthority giving aid to prescribe rules and regulations includingthe stipulation of conditions on the basis of which admission willbe granted to different colleges by merit coupled with thereservation policy of the State. Therefore, in respect ofprofessional educational institutions once aid is granted, the https://hcservices.ecourts.gov.in/hcservices/ Government can put fetters on the freedom in the matter ofadministration and management of institutions. 27. While deciding about the religious and linguisticminority under Article 30 of the Constitution of India, in respectof identifying the unit whether State or the country, it was heldthat if the State was regarded as a unit for linguistic minority,the religious minority was also held to be on the same footingand the State should be taken as a unit. The relevant portion ofthe judgment is as under:"75. Article 30(1) deals with religious minoritiesand linguistic minorities. The opening words of Article30(1) make it clear that religious and linguisticminorities have been put on a par, insofar as thatarticle is concerned. Therefore, whatever the unit –whether a State or the whole of India – for determining alinguistic minority, it would be the same in relation toa religious minority. India is divided into differentlinguistic States. The States have been carved out onthe basis of the language of the majority of persons ofthat region. For example, Andhra Pradesh was establishedon the basis of the language of that region viz. Telugu."Linguistic minority" can, therefore, logically only bein relation to a particular State. If the determinationof "linguistic minority" for the purpose of Article 30 isto be in relation to the whole of India, then within theState of Andhra Pradesh, Telugu speakers will have to beregarded as a "linguistic minority". This will clearlybe contrary to the concept of linguistic States.""76. If, therefore, the State has to be regarded asthe unit for determining "linguistic minority" vis-a-visArticle 30, then with "religious minority" being on thesame footing, it is the State in relation to which themajority or minority status will have to be determined." 28. In respect of aided private minority institutions, theSupreme Court has also discussed about Article 25(1) and (2) ofthe Constitution of India wherein the State can make any lawrestricting or regulating the political or economical or secularactivity which may be related to religious practice asdistinguished between Articles 29 and 30 holding that Article 29relates to language, script or culture and not religion. Whiledistinguishing Articles 29 and 30 of the Constitution, the SupremeCourt examined various case-laws on the subject particularly,State of Madras v. Champakam Dorairajan (AIR 1951 SC 226), KeralaEducation Bill,1957, In Re. (AIR 1958 SC 956), Rev.SidhajbhaiSabhai vs. State of Bombay (AIR 1963 SC 540), D.A.V.College vs. https://hcservices.ecourts.gov.in/hcservices/ State of Punjab [(1971) 2 SCC 269],Lily Kurian vs. Sr.Lewina[(1979) 2 SCC 124] Christian Medical College Hospital Employees'Union vs. Christian Medical College Vellore Assn. [(1987) 4 SCC691], wherein it was held that providing remedy against unfairdismissal would not infringe Article 30 of the Constitution. InFrank Anthony Public School Employees' Assn. vs. Union of India[(1986) 4 SCC 707], it was held that the regulation providing forprior approval for dismissal was valid and not violative ofArticle 30. In St.Stephen's College vs. University of Delhi[(1992) 1 SCC 558], which is also relating to minorityinstitutions such as admission of students wherein the SupremeCourt has held as follows:"107. The aforesaid decision does indicate that theright under Article 30(1) is not so absolute as toprevent the Government from making any regulationwhatsoever. As already noted hereinabove, in SidhajbhaiSabhai case it was laid down that regulations made in thetrue interests of efficiency of instruction, discipline,health, sanitation, morality and public order could beimposed. If this is so, it is difficult to appreciatehow the Government can be prevented from framingregulations that are in the national interest, as itseems to be indicated in the passage quoted hereinabove.Any regulation framed in the national interest mustnecessarily apply to all educational institutions,whether run by the majority or the minority. Such alimitation must necessarily be read into Article 30. Theright under Article 30(1) cannot be such as to overridethe national interest or to prevent the Government fromframing regulations in that behalf. It is, of course,true that government regulations cannot destroy theminority character of the institution or make the rightto establish and administer a mere illusion; but theright under Article 30 is not so absolute as to be abovethe law. It will further be seen that in SidhajbhaiSabhai case no reference was made to Article 29(2) of theConstitution. This decision, therefore, cannot be anauthority for the proposition canvassed before us."29. After referring to the above case-laws, the Supreme Courthas ultimately held in T.M.A. Pai Foundation case that the rightconferred under Article 30(1) is not absolute and there can beregulation regarding welfare of students, teachers, etc., eventhough Article 30(1) does not contain the regulatory clause asfound in Article 19(1) of the Constitution. By holding so, whiledealing with the right of minority whether linguistic orreligious, to establish and administer educational institutions ofits choice, it was held that the intention is to preservesecularism of the country with the principle of equality. At the https://hcservices.ecourts.gov.in/hcservices/ same time, it was held that no law can be framed that willdiscriminate against such minority with regard to establishing andmaintaining educational institutions. The relevant portion of thejudgment is as follows:"137. It follows from the aforesaid decisions thateven though the words of Article 30(1) are unqualified,this Court has held that at least certain other laws ofthe land pertaining to health, morality and standards ofeducation apply. The right under Article 30(1) has,therefore, not been held to be absolute or above otherprovisions of the law, and we reiterate the same. By thesame analogy, there is no reason why regulations orconditions concerning, generally, the welfare of studentsand teachers should not be made applicable in order toprovide a proper academic atmosphere, as such provisionsdo not in any way interfere with the right ofadministration or management under Article 30(1).""138. As we look at it, Article 30(1) is a sort ofguarantee or assurance to the linguistic and religiousminority institutions of their right to establish andadminister educational institutions of their choice.Secularism and equality being two of the basic featuresof the Constitution, Article 30(1) ensures protection tothe linguistic and religious minorities, therebypreserving the secularism of the country. Furthermore,the principles of equality must necessarily apply to theenjoyment of such rights. No law can be framed that willdiscriminate against such minorities with regard to theestablishment and administration of educationalinstitution vis-a-vis other educational institutions.Any law or rule or regulation that would put theeducational institutions run by the minorities at adisadvantage when compared to the institutions run by theothers will have to be struck down. At the same time,there also cannot be any reverse discrimination. It wasobserved in St.Xavier's College case at SCR p.192 that:(SCC p.743, para 9)"The whole object of conferring the right onminorities under Article 30 is to ensure thatthere will be equality between the majority andthe minority. If the minorities do not havesuch special protection they will be deniedequality."In other words, the essence of Article 30(1) is to ensureequal treatment between the majority and the minorityinstitutions. No one type or category of institutionshould be disfavoured or, for that matter, receive more https://hcservices.ecourts.gov.in/hcservices/ favourable treatment than another. Laws of the land,including rules and regulations, must apply equally tothe majority institutions as well as to the minorityinstitutions. The minority institutions must be allowedto do what the non-minority institutions are permitted todo."(Emphasis supplied) 30. In T.M.A.Pai Foundation Case the Supreme Court haspredominantly dealt with the right of minorities in respect ofadmission of students, the appointment of teachers, etc. Theright of minorities to establish and administer the educationalinstitutions is explained in paragraph 138 wherein theconstitutional goal regarding the minority has been reiterated tothe effect that the regulation which can be imposed in respect ofminority institutions for maintaining academic excellence wouldnot put such minorities in a disadvantageous position, whencompared to the institutions run by others. Ultimately, theSupreme Court has framed 11 questions and answered the same. Onesuch question is question No.9 which is as follows: "Q9. Whether the decisions of this Court in UnniKrishnan,J.P. vs. State of A.P. (except where it holdsthat primary education is a fundamental right) and thescheme framed thereunder requirereconsideration/modification and if yes, what?A. The scheme framed by this Court in Unni Krishnancase and the direction to impose the same, except whereit holds that primary education is a fundamental right,is unconstitutional. However, the principle that thereshould not be capitation fee or profiteering is correct.Reasonable surplus to meet cost of expansion andagumentation of facilities does not, however, amount toprofiteering."31. The other relevant questions are question Nos.10 and 11which are as follows:"Q.10. Whether the non-minorities have the right toestablish and administer educational institution underArticles 21 and 29(1) read with Articles 14 and 15(1),in the same manner and to the same extent as minorityinstitutions?AndQ.11. What is the meaning of the expressions"education" and "educational institutions" in variousprovisions of the Constitution? Is the right toestablish and administer educational institutionsguaranteed under the Constitution? https://hcservices.ecourts.gov.in/hcservices/ A. The expression "education" in the articles ofthe Constitution means and includes education at alllevels from the primary school level up to thepostgraduate level. It includes professional education.The expression "educational institutions" meansinstitutions that impart education, where "education" isas understood hereinabove.The right to establish and administer educationalinstitutions is guaranteed under the Constitution to allcitizens under Articles 19(1)(g) and 26, and tominorities specifically under Article 30. All citizens have a right to establish andadminister educational institutions under Articles 19(1)(g) and 26, but this right is subject to the provisionsof Articles 19(6) and 26(a). However, minorityinstitutions will have a right to admit studentsbelonging to the minority group, in the manner asdiscussed in this judgment." 32. V.N.Khare,J. concurring with the majority, has observedwith regard to the admission in minority institutions of studentsof minority as well as other communities, as follows:"230. Article 337 of the Constitution provides thatgrants or government aid has to be given to the Anglo-Indian institution provided they admit 40% of membersfrom other community. Taking the clue from Article 337and the spirit behind Article 30(1) it appearsappropriate that minority educational institutions begiven preferential rights in the matter of admission ofchildren of their community in their own institutionswhile admitting students of non-minorities which,advisedly, may be up to 50% based on inter se merits ofsuch students. However, it would be subject toassessment of the actual requirement of minorities, thetypes of the institutions and the courses of educationfor which admission is being sought for and otherrelevant factors."Therefore, irrespective of the questions raised by the ElevenJudge Bench of the Supreme Court and the answers issued, theoverall reading of the entire judgment shows that while the schemeframed in Unnikrishnan case has been held as unconstitutionalwhich was of course predominantly relating to the administrationof educational institutions of minorities as well as non-minorities, the right of minorities under Article 30(1) of theConstitution of India to establish educational institutions asguaranteed under the Constitution remains in tact except ofcourse, to the extent of regulatory powers of the Government as https://hcservices.ecourts.gov.in/hcservices/ well as the University concerned etc. which generally relate tothe maintenance of academic standards, welfare of the studentsand teachers to maintain proper academic atmosphere pertaining tothe administrative aspect. The judgment has also reiterated theestablished law that like all citizens who have the right toestablish and administer educational institutions under Article 19(1)(g) and Article 26 of the Constitution of India, such right isavailable to the minorities under Article 30(1) of theConstitution. However, the right to admit students belonging tominority group was subject to the above mentioned observationsmade by the Supreme Court. 33. Mr.Muralikumaran, learned counsel appearing for AICTEhas relied upon the subsequent judgment of Five Judge Bench of theSupreme Court in Islamic Academy of Education vs. State ofKarnataka (AIR 2003 SC 3724) to contend that the questions andanswers given in T.M.A.Pai Foundation case cannot be termed asratio decidendi and therefore, according to him, the answers givenby the Eleven Judge Bench of the Supreme Court in T.M.A.PaiFoundation case holding that the scheme framed in Unnikrishnancase is unconstitutional, in so far as it relates to thestipulation made to the effect that to establish educationalinstitutions there must be a Society or a Trust cannot be said tobe applicable and therefore in that regard the Scheme of thejudgment in Unni Krishnan's case hold good even as of today. 34. Before going into the correctness of the said argument,it is relevant to refer to the judgment of the Five Judge Bench ofthe Supreme Court in Islamic Academy of Education case statedsupra. Their Lordships in the opening paragraph itself have madeout their intention as follows:"2. Most of the petitioners/applicants before us areunaided professional educational institutions (bothminority and non-minority). On behalf of thepetitioners/applicants it was submitted that the answersgiven to the questions, as set out at the end of themajority Judgment, lay down the true ratio of theJudgment. It was submitted that any observation made inthe body of the judgment had to be read in the context ofthe answers given. We are unable to accept thissubmission. The answers to the questions, in themajority Judgement in Pai's case, are merely a briefsummation of the ratio laid down in the Judgement. Theratio decidendi of a Judgment has to be found out only onreading the entire judgment. In fact, the ratio of thejudgment is what is set out in the judgment itself. Theanswer to the question would necessarily have to be readin the context of what is set out in the Judgment and notin isolation. In case of any doubt as regards any https://hcservices.ecourts.gov.in/hcservices/ observations, reasons and principles, the other part ofthe Judgemnt has to be looked into. By reading a linehere and there from the Judgment, one cannot find out ofthe entire ratio decidendi of the judgment. We,therefore, while giving our clarifications, are deposedto look into other parts of the Judgement other thanthose portions which may be relied upon." 35. The observation of the Supreme Court in Islamic Academycase is not as if the above said eleven questions and answers aredirected to be rejected, but the answers were held to be the briefsummation of the ratio laid down in the judgment and one has to gothrough the entire judgment and therefore, it is not correct toconstrue the said observation of the Supreme Court that theSupreme Court has totally brushed aside the questions and answersgiven by the Eleven Judge Bench in T.M.A.Pai Foundation case. 36. In a significant explanation to the judgment in T.M.A.PaiFoundation case particularly in respect of paragraphs 138 and 139,the Supreme Court has made it clear that the non-minorityeducational institutions do not have protection of Article 30. The relevant portion of the judgment is as follows:"8. ..... Undoubtedly at first blush it does appearthat these paragraphs equate both types of educationalinstitutions. However on a careful reading of theseparagraphs it is evident that the essence of what hasbeen laid down is that the minority educationalinstitutions have a guarantee or assurance to establishand administer educational institutions of their choice.These paragraphs merely provide that laws, rules andregulations cannot be such that they favour majorityinstitutions over minority institutions. We do not readthese paragraphs to mean that non minority educationalinstitutions would have the same rights as thoseconferred on minority educational institutions by Article30 of the Constitution of India. Non minorityeducational institutions do not have the protection ofArticle 30. Thus, in certain matters they cannot and donot stand on similar footing as minority educationalinstitutions. Even though the principle behind Article30 is to ensure that the minorities are protected and aregiven an equal treatment yet the special right givenunder Article 30 does give them certain advantages. Justto take a few examples, the Government may decide thenationalise education. In that case it may be enactedthat private educational institutions will not bepermitted. Non minority educational institutions maybecome bound by such an enactment. However, the rightgiven under Article 30 to minorities cannot be done awaywith and the minorities will still have a fundamental https://hcservices.ecourts.gov.in/hcservices/ right to establish and administer educationalinstitutions of their choice. Similarly even though thegovernment may have a right to take over management of anon minority educational institution the management of aminority educational institution cannot be taken overbecause of the protection given under Article 30. Ofcourse we must not be understood to mean that even innational interest a minority institute cannot be closeddown. Further minority educational institutions havepreferential right to admit students of their owncommunity/language. No such rights exist so far as nonminority educational institutions are concerned." (Emphasis supplied) 37. When a question arose as to whether there has been anydiscrepancy between T.M.A.Pai Foundation case and Islamic Academycase, the Seven Judge Bench of the Supreme Court in P.A.Inamdarvs. State of Maharastra (AIR 2005 SC 3226) while holding theconstitutional propriety of binding precedents of the ElevenJudge Bench judgment in T.M.A.Pai Foundation case, has held thatin cases where any clarification given in Islamic Academy caseruns counter to T.M.A.Pai Foundaction case, the same could bediscussed. The relevant paragraph of the judgment is as follows:"20. Before we embark upon dealing with the issuesposed before us for resolution, we would like to make afew preliminary observations as a preface to ourjudgment inasmuch as that would outline the scope of thecontroversy with which we are actually dealing here. Atthe very outset, we may state that our task is not topronounce our own independent opinion on the severalissues which arose for consideration in Pai Foundation.Even if we are inclined to disagree with any of thefindings amounting to declaration of law by the majorityin Pai Foundation, we cannot; that being a pronouncementby 11 Judge Bench, we are bound by it. We cannotexpress a dissent or disagreement howsoever we may beinclined to do so on any of the issues. The real taskbefore us is to cull out the ratio decidendi of PaiFoundation and to examine if the explanation orclarification given in Islamic Academy runs counter toPai Foundation and if so, to what extent. If we findanything said or held in Islamic Academy in conflictwith Pai Foundation, we shall say so as being adeparture from the law laid down by Pai Foundation andon the principle of binding efficacy of precedents,overrule to that extent the opinion of the ConstitutionBench in Islamic Academy." (Emphasis supplied) https://hcservices.ecourts.gov.in/hcservices/

38. While explaining the term ‘minority’ which term hasnot been admittedly defined anywhere in the Constitution ofIndia, it was held that the status of linguistic minority isdeterminable only by reference to demography State and not bytaking the total population of the country as a whole. It washeld as follows:"98. The term 'minority' is not defined in theConstitution. Chief Justice Kirpal, speaking for themajority in Pai Foundation, took clue from theprovisions of the State Reorganisation Act and held thatin view of India having been divided into differentlinguistic States, carved out on the basis of thelanguage of the majority of persons of that region, itis the State, and not the whole of India, that shallhave to be taken as the unit for determining linguisticminority viz-a-viz Article 30. Insmuch as Article 30(1)places on par religions and languages, he held that theminority status, whether by reference to language or byreference to religion, shall have to be determined bytreating the State as unit. The principle would remainthe same whether it is a Central legislation or a Statelegislation dealing with linguistic or religiousminority. Khare,J. (as His Lordship then was),Quadri,J. and Variava & Bhan,JJ. in their separateconcurring opinions agreed with Kirpal, CJ. Accordingto Khare,J., take the population of any State as a unit,find out its demography and calculate if the personsspeaking a particular language or following a particularreligion are less than 50% of the population, then givethem the status of linguistic or religious minority.The population of the entire country is irrelevant forthe purpose of determining such status. Quadri,J.opined that the word 'minority' literally means 'a non-dominant' group. Ruma Pal, J. defined the word'minority' to mean 'numerically less'. However, sherefused to take the State as a unit for the purpose ofdetermining minority status as, in her opinion, thequestion of minority status must be determined withreference to the country as a whole. She assignedreasons for the purpose. Needless to say, her opinionis a lone voice. Thus, with the dictum of PaiFoundation, it cannot be doubted that minority, whetherlinguistic or religious, is determinable only byreference to the demography of a State and not by takinginto consideration the population of the country as awhole." https://hcservices.ecourts.gov.in/hcservices/

39. Regarding establishment of educational institutions, itwas held that in respect of granting recognition to a minorityinstitution, there are two overriding instructions in respect ofminority viz., (i) the recognition is not denied solely on theground of educational institutions belonging to minorities and(ii) the regulation is neither aimed at, nor the effect ofdepriving of its minority status. The relevant portion of thejudgment is as follows:"106. To establish an educational institution is aFundamental Right. Several educational institutionshave come up. In Kerala Education Bill, 'minorityeducational institutions' came to be classified intothree categories, namely, (i) those which do not seekeither aid or recognition from the State; (ii) thosewhich want aid; and (iii) those which want onlyrecognition but not aid. It was held that the firstcategory protected by Article 30(1) can "exercise thatright to their hearts' content" unhampered byrestrictions. The second category is most significant.Most of the educational institutions would fall in thatcategory as no educational institution can, in moderntimes, afford to subsist and efficiently functionwithout some State aid. So is with the third category.An educational institution may survive without aid butwould still stand in need of recognition because in theabsence of recognition, education imparted therein maynot really serve the purpose as for want of recognitionthe students passing out from such educationalinstitutions may not be entitled to admission in othereducational institutions for higher studies and may alsonot be eligible for securing jobs. Once an educationalinstitution is granted aid or aspires for recognition,the State may grant aid or recognition accompanied bycertain restrictions or conditions which must befollowed as essential to the grant of such aid orrecognition. This Court clarified in Kerala EducationBill that 'the right to establish and administereducational institutions' conferred by Article 30(1)does not include the right to maladminister, and that isvery obvious. Merely because an educational institutionbelongs to minority it cannot ask for aid or recognitionthough running in unhealthy surroundings, without anycompetent teachers and which does not maintain even afair standard of teaching or which teaches matterssubversive to the welfare of the scholars. Therefore,the State may prescribe reasonable regulations to ensurethe excellence of the educational institutions to begranted aid or to be recognised. To wit, it is open to https://hcservices.ecourts.gov.in/hcservices/ the State to lay down conditions for recognition suchas, an institution must have a particular amount offunds or properties or number of students or standard ofeducation and so on. The dividing line is that in thename of laying down conditions for aid or recognitionthe State cannot directly or indirectly defeat the veryprotection conferred by Article 30(1) on the minority toestablish and administer educational institutions.Dealing with the third category of institutions, whichseek only recognition but not aid, their Lordships heldthat 'the right to establish and administer educationalinstitutions of their choice' must mean the right toestablish real institutions which will effectively servethe needs of the community and scholars who resort tothese educational institutions. The dividing linebetween how far the regulation would remain within theconstitutional limits and when the regulations wouldcross the limits and be vulnerable is fine yetperceptible and has been demonstrated in severaljudicial pronouncements which can be cited asillustrations. They have been dealt with meticulousprecision coupled with brevity by S.B.Sinha,J. in hisopinion in Islamic Academy. The considerations forgranting recognition to a minority educationalinstitution and casting accompanying regulation would besimilar as applicable to a non-minority institutionsubject to two overriding considerations:(i) therecognition is not denied solely on the ground of theeducational institution being one belonging to minority,and (ii) the regulation is neither aimed at nor has theeffect of depriving the institution of its minoritystatus." 40. While dealing with the minority institutions inadmitting students of minority communities as well as non-minoritycommunities the Supreme Court held as follows:"129. Our answer to the first question is thatneither the policy of reservation can be enforced by theState nor any quota or percentage of admissions can becarved out to be appropriated by the State in a minorityor non-minority unaided educational institution.Minority institutions are free to admit students oftheir own choice including students of non-minoritycommunity as also members of their own community fromother States, both to a limited extent only and not in amanner and to such an extent that their minorityeducational institution status is lost. If they do so,they lose the protection of Article 30(1)." https://hcservices.ecourts.gov.in/hcservices/

41. The Supreme Court has also explained about the feestructure and regulations therefor in the context of Article 30(1)of the Constitution holding that every institution is free todecide its own fee structure subject to the limitation that therecan be no profiteering and no capitation fee can be chargeddirectly or indirectly or in any form. Therefore, in the saidlatest judgment also, the Supreme Court has discussed about theright of minorities, of course with other educational institutionsto administer taking into consideration the main idea ofmaintaining excellence in the standards, prescribing feestructure, imposing restrictions regarding qualifications forteaching staff, etc. and not relating the manner of establishingan educational institution by minorities which was in fact touchedupon by the Supreme Court in T.M.A.Pai Foundation Case in para-138cited supra, holding that the regulations which may place aminority institution in disadvantageous position will have to bestruck down. 42. Even though the above said judgments of the Hon’bleSupreme Court have been dealing with the administration andmaintenance of educational institutions, an overall reading of thejudgments make it very clear that the subsequent judgment inIslamic Academy case as well as P.A.Inamdar case have onlyattempted to clarify and explain a few instances where certainquestions were posed relating to the judgment of Eleven JudgeBench of the Supreme Court in T.M.A.Pai Foundation case and heldby following the principles of judicial precedents that the ElevenJudge Bench judgment of the Supreme Court is binding and theclarification in the subsequent judgments are relating toadministration and maintenance of standards of education byminority or non-minority institutions under Article 30(1), 19(1)(g) or 26(a) of the Constitution of India. 43. The categorical finding of the Supreme Court in T.M.A.PaiFoundation case that the scheme framed in Unnikrishnan case isunconstitutional has not been touched upon either by way ofclarification or otherwise. In such circumstances, it has to beunderstood that the scheme framed in Unnikrishnan case has to goexcept of course relating to exceptions regarding maintenance ofstandards, etc. Even otherwise, as per the said judgment, theScheme is applicable only for professional courses. Therefore,the first part of the scheme which makes it mandatory thatprofessional colleges should be established only by a registeredSociety or by a Trust registered under the Trust Act and not byany firm or any individual or company or any other body ofindividuals and the requirement relating to the establishment andadministration of minority institutions under Article 30 goes. https://hcservices.ecourts.gov.in/hcservices/

44. As laid down in the above said judgments, just as theright to any citizen is available to establish and administereducational institutions under Article 19(1)(g) of theConstitution of India, the same right is available to a minoritywho must essentially be a citizen as per part II of theConstitution of India. When the law is settled that Article 19(1)(g) to protect any profession or to carry on any occupation, tradeor business is distinguished from Article 30(1) of theConstitution of India, both the rights should be held available toa citizen of India. While in the former case, it is any citizenof India under Article 19 and in the latter case, it is a citizenof India who belongs to a minority whether religious orlinguistic. In the context of the present case, the petitionereven if he is taken as a minority as a Reverend Father, belongs toChristian community and as a citizen of India he has a right underArticle 30(1) of the Constitution of India to establish andadminister an educational institution of his choice. When theright under Article 30 as laid down in the judicial precedents canbe restricted only by way of regulation for the purpose ofmaintenance of academic standards, fee structure, qualificationsof teaching staff, etc., the restriction in respect of minoritiesto have a right to establish an educational institution only ifthey are in the form of a Society or a Trust or Wakf, etc. thesame cannot be held to be in the nature of either in the interestof nation or maintaining standard of education as permissiblerestriction stated above.45. The question is whether such condition constituteinfringement to the said right of a minority citizen inestablishing and administering an educational institution of hischoice. In the present case, C.S.I.Trust which has beenconstituted as a charitable institution was registered undersection 25 of the Companies Act. The question is by imposingrestriction that the constituent of minority must be in aparticular form, either as a Society or as a Trust, it wouldinterfere with the right of minority to establish and administeran educational institution. It is no doubt true that inUnnikrishnan case the Supreme Court has held that other than aSociety or Trust no other individual or firm or company or body ofindividuals can establish and administer a professional college. 46. In the light of the subsequent judgment of the SupremeCourt in T.M.A.Pai Foundation case holding that the scheme isunconstitutional and especially in the light of the right ofminority to establish and administer educational institutions,such restriction which is not admittedly in the interest ofmaintaining the standards of education, in the students welfare orfor the benefit of teaching community or even in the nationalinterest, is certainly making inroad into the right of minority toestablish and administer an educational institution of its choiceas conferred as Fundamental Right under Article 30(1) of the https://hcservices.ecourts.gov.in/hcservices/ Constitution of India. In the absence of any such restrictionunder the Constitution of India and in the absence of any otherprovision of law made by the Parliament or State legislature whichhas not been brought to the notice of this Court and in thecircumstances as it is seen in the counter affidavit filed by therespondent that the said condition is imposed based on thejudgment of the Supreme Court in Unnikrishnan case and in thelight of the judgment in T.M.A.Pai Foundation case holding thatthe scheme framed in Unnikrishnan case is unconstitutional, I amof the considered view that imposing such restriction in so far asit relates to minority whether linguistic or religious in natureis not permissible under the Constitution as it is in violation ofArticle 30 of the Constitution of India. 47. Similarly, the contention of the learned counsel for theAICTE that on the facts and circumstances of the present case asthe petitioner called as Reverend Father, even though representingC.S.I.Trust, being an individual has no right to establish andadminister an educational institution of his choice under Article30(1) of the Constitution of India is also not sustainable. Thefact remains otherwise. The State Government has not raised anysuch objection. The State Government has rejected the applicationonly on the ground that the petitioner is registered as acharitable company under section 25 of the Companies Act, as it isagainst the regulations of the AICTE. 48. The contention of the learned counsel for AICTE that theTrust which was constituted in the interest of maintaining theproperties of the Trust would be in the best interest ofeducation has no meaning. Whether it is a Trust or Society, itis always open to the Government or the affiliating agencies toimpose restrictions in the form of regulations as stated above inthe national interest or in the interest of maintaining thestandards of education as held by the Supreme Court. In the nameof imposing regulation any interference with the minorities toestablish educational institutions of their own is violative ofArticle 30(1) of the Constitution. There may be a case where anindividual person belonging to a linguistic or religious minoritymay intend to start an educational institution of course subjectto various conditions imposed by the Supreme Court and he may notbe able to form a Society or a Trust and in such case, compellinghim to make a Society or Trust along with somebody else in theminority community would certainly be making inroad in the rightof a minority citizen to establish and administer an educationalinstitution of his choice. The compulsion in the form ofregistered Society or a Trust is certainly not in the interest ofmaintaining the academic standards or in the national interest. 49. Even in the case of a minority who wants to establish andadminister an educational institution restrictions can be imposedin the interest of educational institutions or in the nationalinterest. But, imposing the condition that he must form a society https://hcservices.ecourts.gov.in/hcservices/ or trust would be an impediment on the person belonging tominority to establish and administer an educational institution ofhis own choice. The right of minority being a right given tocitizens, it is not possible to accept the stand taken by therespondents in the impugned order that the petitioner institutionwhich is prima facie a minority institution on the basis ofreligion should be a Society or Trust to start educationalinstitution of its own and that it was a company constitutedunder section 25 of the Companies Act as a charitable companyshould be treated as commercial group and not for the purpose ofpromoting education. Therefore, rejecting the claim of thepetitioner only on the ground that the petitioner is a companyincorporated under section 25 of the Companies Act is anantithesis to Article 30(1) of the Constitution of India,particularly when the petitioner is a religious minority belongingto Christian community. The impugned order is therefore liable tobe set aside and accordingly, it is set aside.The writ petition stands allowed with direction to therespondents to consider the application of the petitioner forestablishment of educational institution and pass orders on meritsand in accordance with law. No costs.KhSd/-Asst. Registrar//True Copy//Sub Asst. RegistrarTo1.The Secretary to Government Education Department Fort St.George Chennai 600 001.2.The Director/Commissioner of Technical Education Department of Technical Education Guindy, Chennai 600 025.3.The Regional Officer Southern Regional Office All India Council for Technical Education Sastri Bhavan, Chennai. https://hcservices.ecourts.gov.in/hcservices/

4.The Member Secretary All India Council for Technical Education Chandralok Building Janpat, New Delhi.+ 1 cc to Government Pleader, SR No.56403+ 1 cc to Mr.N.Muralikumaran, Advocate SR No.56172+ 1 cc to Mr.C.Robert Bruce, Advocate SR No.56214PA(CO)SR/28.10.2009Common Order inW.P.Nos.16188 & 16287 of 2009