Asan Memorial Association,Cochin House,Anderson Road,Chennai – 8 v. The State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 18-8-2009CORAMTHE HONOURABLE MR. JUSTICE N. PAUL VASANTHAKUMARWRIT PETITION NO.13632 OF 2001Asan Memorial Association,Cochin House,Anderson Road,Chennai – 8,rep.by its General Secretary,A.K.Gopalan...PetitionerVs.1.The State of Tamil Nadu,rep.by the Secretary to the Government,Higher Education Department,Fort St.George,Chennai – 9.2.The Director of Technical Education,Guindy, Chennai – 25....RespondentsWrit Petition filed under Article 226 of the Constitution ofIndia praying for the issuance of a Writ of Prohibition,prohibiting the respondents from insisting that the petitionerseek a declaration of its minority character every year for theAsan Memorial Institute of Hotel Management and CateringTechnology.For Petitioner : Mr.Habibullah Basha,Senior Counsel,for Mr.K.Ilias AliFor Respondents: Mr.R.Balakrishnan,Addl. Government PleaderO R D E RThe prayer in this writ petition is to issue a writ ofprohibition, prohibiting the respondents from insisting that thepetitioner seek declaration of its minority character every yearfor the Asan Memorial Institute of Hotel Management and CateringTechnology. https://hcservices.ecourts.gov.in/hcservices/

2.The case of the petitioner association is that it is aSociety registered under the Societies Registration Act, and itwas formed in the year 1965 with the main object to promote theinterest in Malayalam literature among other linguistic groups andespecially to propagate the yeoman service rendered by lateMahakavi Kumaran Asan to Malayalam literature, to starteducational and cultural institutions in Chennai City and otherplaces in India to promote and subserve the interests ofMalayalees, etc. As per Clause 9(a) of the Memorandum of therules and regulations of the association, the membership isrestricted to Malayalees and as such the Society is a linguisticminority, coming within Article 30(1) of the Constitution ofIndia. The petitioner association has established and isadministering the following institutions:(a)Asan Memorial Matriculation Higher Secondary School(State Board)(b)Asan Memorial Senior Secondary School (CBSC)(c)The Asan Memorial Institute of Hotel Management andCatering Technology(d)The Asan Memorial College of Arts and Science(e)The Asan Memorial Institute of Management.The Society established and is administering Asan Memorial HotelManagement and Catering Technology in the year 1986 and the sameis approved by the AICTE and Directorate of Technical Education.3.In the year 1995, the Government of Tamil Nadu issuedG.O.Ms.No.371 Education, Science and Technology, dated 10.5.1995and ordered that the Government will verify and determine whetheran Educational Institution is a minority institution within themeaning of Article 30(1) of the Constitution of India. Thepetitioner applied on 2.6.1995 to the Government for getting itsminority status (linguistic minority) declared. The Governmentdid not pass any order and therefore the petitioner again appliedon 13.8.1996 to the Government and prayed for declaration of itsminority status. During pendency of the said application, theGovernment superceded G.O.Ms.No.371 dated 10.5.1995 by issuingG.O.Ms.No.270 Higher Education Department, dated 17.6.1998 bygiving certain guidelines for determining the minority status.4.The petitioner Society received a letter dated 19.4.1999from the Additional Director of Technical Education, directing allmanagements desiring to apply for declaration of minority statusto apply on or before 30.4.1999. The petitioner applied on26.4.1999 to the Director of Technical Education as per the format https://hcservices.ecourts.gov.in/hcservices/ mentioned in the above said Government Order. The firstrespondent failed to pass any order and again the petitionerapplied on 19.1.2000 to the first respondent through the secondrespondent. The second respondent by letter dated 16.2.2000sought for certain documents for verification viz, Trust Deed,Supplementary Trust Deed, Memorandum of Association, CommunityCertificate of its members, etc. Petitioner submitted the same on25.2.2000. Even thereafter no order having been passed, thepetitioner filed W.P.No.7943 of 2000 praying to issue a writ ofmandamus directing the first respondent to pass orders on theapplication of the petitioner Society seeking minority status forthe year 2000-2001. This Court by order dated 28.2.2000 directedto pass orders on or before 15.6.2000. On 14.6.2000 the firstrespondent granted minority status to the Asan Memorial Instituteof Hotel Management and Catering Technology. However, the saidorder is limited for the year 2000-2001 and therefore thepetitioner submitted representation for the grant of minoritystatus for the year 2001-2002 and no order was passed. Thereafter,W.P.No.12536 of 2001 was filed for issuing a writ of mandamusdirecting the respondents to pass orders. The said writ petitonwas admitted on 11.7.2001 and an interim injunction was grantedrestraining the respondents from interfering with the rights ofthe petitioner to fill up its 50% minority quota in Asan MemorialInstitute of Hotel Management and Catering Technology. This writpetition is filed for the permanent relief and pending disposal ofthis writ petition interim injunction was granted on 27.7.2001,which was made absolute by order dated 11.9.2003.5.Pending this writ petition, petitioner filed anapplication for interim direction to send the revised list of 20free seats and 20 payment seats to students of Government quotaand the said direction petition having been dismissed, petitionerfiled W.A.No.1483 of 2001 and this Court by order dated 21.8.2001ordered that the petitoiner (appellant institution) was treated asminority institution for the year 2000-2001 and therefore we donot find any reason as to why a different stand has been adoptedfor the present year 2001-2002. The Division Bench directed therespondents to treat the appellant/petitioner institution asminority institution and allot seats accordingly for the year2001-2002. Thus, during pendency of the writ petition all theseyears, Asan Memorial Institute of Hotel Management and CateringTechnology is being treated as minority institution.6.In this writ petition the main contention raised is thatonce the character of the institution is verified and declared aslinguistic minority institution, there is no purpose inrestricting the period and G.O.Ms.No.270 Higher EducationDepartment, dated 17.6.1998 do not contemplate seeking applicationfor minority declaration every year and by virtue of the procedureadopted by the respondents in insisting the managements to seek https://hcservices.ecourts.gov.in/hcservices/ declaration of minority status every year, undue hardship is facedby the educational institutions, particularly with regard to theadmission of students.7.The respondents have filed counter affidavit by statingthat G.O.Ms.No.270 Higher Education Department dated 17.6.1998contains certain guidelines for the grant of minority status. Thesaid Government Order was issued superceding G.O.Ms.NO.371Education, dated 10.5.1995 and the Asan Memorial Institute ofHotel Management and Catering Technology, run by the petitionerassociaiton was granted minority status by G.O.Ms.No.221 HigherEducation Department, dated 14.6.2000 for the academic year 2000-2001. The Government is issuing minority status for each andevery academic year and therefore the petitioner has to apply forevery year for the grant of minority status.8.The learned Senior Counsel appearing for the petitionersubmitted that the Government having verified the object of theassociation and after satisfaction granted minority status for theyear 2000-2001 through G.O.Ms.No.221 Higher Education Department,dated 14.6.2000, it has no jurisdiction to restrict the saiddeclaration for that academic year, particularly when theGovernment Order nowhere states that minority status has to bedeclard by the Government every year. The learned Senior Counselalso submitted that a Division Bench of this Court in the decisionreported in (2001) 3 MLJ 433 (Thirumuruga Kirupananda VariyarThavathiru Sundara Swamigal Medical Educational and CharitableTrust, Salem v. State of Tamil Nadu) held that the minority statusonce granted need not be renewed periodically like a drivinglicence and once the Government, after satisfaction granteddeclaration, the same will hold good permanently. The learnedSenior Counsel further submitted that if there is any change inthe Constitution of the educational agency or the bye-laws areamended and by virtue of the same the minority status conferred isnot entitled to be continuously enjoyable by the management, it isopen to the Government to issue notice, call for objections andthereafter fresh orders can be passed.9.The learned Additional Government Pleader appearing forthe respondents submitted that in practice, the Government isconsidering the minority status of the institutions every year andthe Government is entitled to consider the same every year asthere is likelihood of change in the constitution/composition ofthe educational agency and the management may not adhere to theobject of the Society/Association, for which it was formed.10.I have considered the rival submissions of the learnedcounsel for the petitioner as well as respondents. https://hcservices.ecourts.gov.in/hcservices/

11.Admittedly, the petitioner Association, which is formedand registered under the Societies Registration Act has got amemorandum of association. The main object of the association isto promote the interest in Malayalam literature among otherlinguistic groups and especially to propagate the yeoman servicerendered by late Mahakavi Kumaran Asan to Malayalam literature, tostart educational and cultural institutions in Chennai City andother places in India to promote and subserve the interests ofMalayalees, etc. The Government, in terms of G.O.Ms.No.270Higher Education Department, dated 17.9.1998 processed theapplication filed by the petitioner and after verifying the factthat all its members are Malayalees, admittedly granted minoritystatus (linguistic) to the Asan Memorial Institute of HotelManagement and Catering Technology, established and administeredby the petitioner society through G.O.Ms.NO.221 Higher EducationDepartment, dated 14.6.2000.12.Insofar as the restriction of the order for one year, asrightly contended by the learned Senior Counsel for thepetitioner, there is no provision to grant minority status for oneyear or for a limited period. The above said Government Orderclearly states the guidelines for conferring minority status andthe Government is the competent authority to verify and determinethe minority status of the educational institution for the purposeof Article 30(1) of the Constitution of India. The guidelines arethat the object of the institution should be for promoting theinterest of the minority concerned and the institution should havebeen established by the minority and should continuouslyadministered only by the minorities and for deciding thelinguistic minority status in Tamil Nadu, any person, whose mothertongue is other than Tamil, will be treated as linguisticminority. Thus, it is evident that the said guidelines issued bythe Government do not contemplate granting minority status for alimited period.13.Similar issue was decided by the Supreme Court in thedecision reported in (1998) 6 SCC 674 (N.Ammad v. Manager, EmjayHigh School and Others) wherein it is held that 'a School which isotherwise a minority school would continue to be so whether theGovernment declare it as such or not. When the Government declarea school as minority school, it has recognised the factualposition that the school was established and is being administeredby a minority community. The declaration is the open acceptanceof the legal character, which should necessarily have existedantecedent to such declaration.' As per the above judgment of theSupreme Court, the declaration of the minority status will relateback to the establishment of the institution. https://hcservices.ecourts.gov.in/hcservices/

14.A Division Bench of this Court in the decision reportedin (2001) 3 MLJ 433 (Thirumuruga Kirupananda Variyar ThavathiruSundara Swamigal Medical Educational and Charitable Trust, Salemv. State of Tamil Nadu) took a view that there is no provision forthe Government to insist on renewal of minority status every year.When once the institution has been granted minority status, unlessthere is any change in the constitution of the agency or anyadverse information is received by the Government, there isabsolutely no need or necessity for the Government to expect suchperiodical renewal. SLP filed against the said Judgment was alsodismissed by the Honourable Supreme Court. The said DivisionBench decision was followed by this Court subsequently in thedecision reported in 2004 WLR 202 (C.S.I. Institute of Technology,Thovalai v. The Government of Tamil Nadu & another) and this Courtheld that requiring renewal of minority status every year willunnecessarily lead to delay and red-tapism, which is totallyuncalled for. By requiring such declaration every year, theadministration of the institution and the plight of the studentswill be kept under unreasonable suspense and doubt whichis totallyunwarranted. This Court held that it is totally unreasonable toexpect all the minority institutions in the State be knocking atthe doors of the Government every year and the authorities passorders only after some years.15.Article 30(1) is a fundamental right guaranteed underthe Constitution and it is a right which confers certainprivileges to minority institutions. The Government is bound torecognise the said right and imposing condition to get minoritystatus every year is an unreasonable restriction and the samecannot be permitted. If the procedure now followed by theGovernment is permitted, i.e, no order is passed by the Governmenteven after the beginning of the academic year, the fundamentalright guaranteed to minority institutions would be a promise ofunreality.16.Applying the said principles to the facts of this caseand having regard to the fact that there is no dispute with regardto the membership of the Society and the costitution of theeducational agency and its objects, and the Government havinggranted linguistic minority status to the petitioner institute,viz., Asan Memorial Institute of Hotel Management and CateringTechnology, a writ of prohibition is issued prohibiting therespondents from demanding minority status every year. It is alsodeclared that the minority status already granted by theGovernment to the Asan Memorial Institute of Hotel Management andCatering Technology, established and adminsitered by thepetitioner Society for the year 2000-2001, shall hold good withoutany restriction. It is further observed that if there is anychange in the educational agency or if the institution is run https://hcservices.ecourts.gov.in/hcservices/ contrary to the memorandum of association, it is open to theGovernment to issue notice and pass fresh orders in accordancewith law.The writ petition is allowed with the above observations. Nocosts. VrSd/-Asst. Registrar//True Copy//Sub Asst. RegistrarTo1.The Secretary to the Government,Higher Education Department, Fort St.George,Chennai – 9.2.The Director of Technical Education,Guindy, Chennai – 25.•1 cc to Mr. K. Illias Ali, Advocate SR No.39263NSM(CO)SR/26.8.2009 ORDER INW.P.No.13632 of 2001