w w w . L a w y e r S e r v i c e s . i n



The Institute of the Franciscan Missionaries of Mary represented by its President St.Thomas Convent Mylapore v/s The Government of Tamil Nadu represented by the Principal Secretary Department of School Education Fort St.George, Chennai & Others


Company & Directors' Information:- M G INSTITUTE OF EDUCATION PRIVATE LIMITED [Active] CIN = U80301DL2002PTC118047

Company & Directors' Information:- ST. THOMAS EDUCATION INDIA PRIVATE LIMITED [Active] CIN = U80301TN2011PTC081240

Company & Directors' Information:- M. S. INSTITUTE OF EDUCATION PVT. LTD. [Active] CIN = U80301DL2006PTC152100

Company & Directors' Information:- P R EDUCATION INSTITUTE PRIVATE LIMITED [Active] CIN = U80903DL2004PTC129195

Company & Directors' Information:- V C EDUCATION INSTITUTE PRIVATE LIMITED [Active] CIN = U80903DL2004PTC129201

Company & Directors' Information:- R V EDUCATION INSTITUTE PRIVATE LIMITED [Active] CIN = U80903DL2004PTC129311

    W.P.Nos. 23789, 25737, 25741, 25748, 25758, 25784, 25790, 25803, 25809, 25812, 25751, 26365, 26372, 26375, 26383, 26385, 26501, 26502, 26519, 26550, 26540, 26613, 26627, 26687, 26696, 26787, 26795, 27552, 27562, 27567, 27571, 27576, 27647, 27737, 27740, 27742, 27762, 27764, 27748, 27750, 27752, 27760, 27858, 27867, 27981, 27987, 27993, 28000, 28088, 28320, 28339, 28354, 28357, 28375, 28383, 28410, 28394, 28423, 28396, 28397, 28405, 28434, 28439, 28447, 28483, 28530, 28555, 28579, 28655, 28663, 2

    Decided On, 30 January 2019

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE T. RAJA

    For the Petitioners: Dr.Fr. A. Xavier Arulraj, Senior Counsel for M/s Father Xavier Associates, M. Joseph Thatheus Jerome, Advocates. For the Respondents: C. Munusamy, Special Government Pleader.



Judgment Text


(Prayer: Petition under Article 226 of the Constitution of India, praying for issuance of a Writ of Certiorari, calling for the records pertaining to the impugned G.O.(Ms.) No.65, School Education (MS) Department dated 05.04.2018 on the file of the first respondent, in respect of the member educational institutions of the petitioner society as mentioned in the Annexure in the above writ petition and quash the same.)

This batch of writ petitions has been filed questioning the correctness of the G.O.(Ms.)No.65, School Education (MS) Department dated 5.4.2018 issued by the Principal Secretary to Government, Department of School Education, the first respondent herein framing additional guidelines for grant of minority status to the educational institutions, stipulating that the educational agency of all educational institutions claiming minority status shall admit not less than 50% of the students belonging to the minority community in every academic year, while fixing the upper limit of 75% in respect of the aided institutions. The impugned Government Order also further stipulates that the educational agency of such minority educational institutions have to file their returns regarding the details of admissions and the percentage of minority students by the end of September every year, in order to retain their minority status.

2. Dr.Fr.A.Xavier Arulraj, learned Senior Counsel for the petitioners, critically analysing the reasons shown therein, has pleaded that the impugned Government Order is directly running contrary to the several judgments of the Apex Court and also this Court, more particularly, in T.M.A.Pai Foundation and others v. State of Karnataka and others, (2002) 8 SCC 481, which holds in paragraph-116 that the right of admission in the minority educational institution is one of the four cardinal rights of a minority educational institution that cannot be regulated at the level of school education and muchless in unaided institution. Therefore, the guidelines laid down in the impugned Government Order will be violative of the right of administration guaranteed under Article 30(1) of the Constitution of India. Referring to paragraph-122 of the judgment in T.M.A.Pai Foundation case, Dr.Fr.A.Xavier Arulraj explained further that any regulation pertaining to minority institution has to satisfy the dual test for its constitutionality i.e., (i) the test of reasonableness and (ii) the test that is regulative of the educational character of the particular institution. Therefore, the impugned Government Order cannot satisfy both the tests for the following reasons. In usual course, the school admits any child that approaches for admission, provided there is a vacancy for accommodation in the school and the child is eligible. While so, there is no quota system in the school either for minorities or for non-minorities, because the number of admissions can increase or decrease irrespective of their religion. Explaining further, the learned Senior Counsel submitted that for instance, if only 10 available minority students are admitted, in order to strike the ratio of 50:50, the school cannot restrict the total admission only to 20, when the non-minority children are going to outnumber the minority children, because it will militate against the minority population of Christians amounting to 6.1% in the State of Tamil Nadu. Again welcoming the higher number of admission of minority students in a minority school as a good and acceptable measure, Dr.Fr.A.Xavier Arul Raj would strive to contend that the said phenomenon cannot be linked to conferment or deprivation of minority status granted to any minority educational institution, since no institution becomes a minority or loses its minority status because of the number of children admitted therein every year. This is for the reason that if a Christian minority school admits more muslim children who are living nearby with all deserving criteria, that itself cannot make the Christian minority institution into a muslim minority school. Therefore, the implementation of the impugned Government Order will definitely result in losing the minority status of the institutions run by the petitioners, because, in any case, if the minority status is linked to the number of students from the minority community, it will be fluctuating every year. For instance, if any minority educational institution, as per the impugned Government Order, admits students hailing from the minority community and in the subsequent year, the same minority educational institution admits more number of non-minority students and again in the subsequent year, once again the same minority educational institution admits 50% of students belonging to minority religion and 75% in the case of aided institutions, as it is fluctuating every year, it is not contemplated either in the Constitution or in other law.

3. As per the decision taken in Buckley Primary School case by National Commission for Minority Educational Institutions, no institution can become a minority or non-minority because of the number of children admitted therein. This is for the precise reason that the constitution of the governing body exclusively by the members of a particular community and the objects of the educational agency will decide the minority character of the institution, as clearly laid down by the Apex Court in Dayanand Anglo Vedic (DAV) College Trust case, (2013) 4 SCC 14 holding abundantly clear that in order to claim minority or linguistic status by an institution in any State, the authorities must be satisfied firstly that the institution has been established by the persons who are minority in such State; and secondly, the right of administration of the said minority lingustic institution is also vested on those persons who are minority in such State. A similar issue was also decided by the Apex Court in Thirumuruga Kirupananda Variyar Thavathiru Sundara Swamigal Medical, Educational and Charitable Trust case, (2001) 3 MLJ 433 going to the root of the minority educational institution, wherein it is held that once it is known that the institution has been established and administered by a linguistic minority, that itself is sufficient to claim the rights under Article 30(1) of the Constitution of India. Hence, if a minority status is conferred, that cannot be for a temporary period or renewed periodically like a driving licence. Therefore, it is not open for the State Government to renew its earlier order conferring linguistic minority status, unless it is shown that the petitioners institutions had suppressed any material fact while passing the earlier order granting minority status or there is a fundamental change of circumstance warranting cancellation of the earlier order. In the present cases also, when there is no proof of suppression of any material fact by the petitioners or any fundamental change in circumstances, the impugned Government Order altering the criteria that the minority educational institution should admit 50% of minority students and 75% in the case of aided minority educational institutions, is not only running contrary to the ratio laid down by the Division Bench of this Court, but also against the ratio laid down by the Apex Court in Dayanand Anglo Vedic (DAV) College Trust case, (2013) 4 SCC 14 and in Thirumuruga Kirupananda Variyar Thavathiru Sundara Swamigal Medical, Educational and Charitable Trust case, (2001) 3 MLJ 433.

4. Again taking the Court to the point of authority so as to decide the minority status, Dr.Fr.A.Xavier Arulraj argued that the National Commission for Minority Educational Institutions, by virtue of Section 2(g) of the National Commission for Minority Educational Institutions Act, 2004, alone can decide the status and character of minority educational institutions. Therefore, when the National Commission for Minority Educational Institutions is the only authority to decide all questions relating to the status of the institution as minority institution under Section 11(f) of the National Commission for Minority Educational Institutions Act, 2004, the first respondent cannot issue the impugned Government Order. Taking support from the judgment of the Apex Court in Sisters of St.Joseph of Cluny case, (2018) 6 SCC 772, Dr.Fr.A.Xavier Arulraj pleaded that when it is the ruling of the Apex Court that all applications for the establishment of the minority educational institutions after the amendment Act of 2006 to go only to the competent authority viz., the National Commission for Minority Educational Institutions as per Section 11(f) of the National Commission for Minority Educational Institutions Act, it is for the said authority to declare its status as a minority educational institution at any stage post establishment, so that the institution can avail all the rights guaranteed under Article 30(1) of the Constitution. When P.A.Inamdhar's case holds that both the unaided private institutions of minority and non-minority cannot be forced to submit to the seat sharing and reservation of the policy of the State, after the judgment in P.A.Inamdhar's case, the Parliament introduced Article 15(5) amending the Constitution with effect from 21.6.2006 in order to provide reservation for SC/ST/OBC in private institutions, both aided and unaided in higher education. While doing so, thought it fit to exclude the minority institutions, both aided and unaided. Accordingly, amendment was made under Article 15(5) and that was also challenged in Ashoka Kumar Thakur case (2008) 6 SCC 1, wherein the Constitution Bench, it is pleaded, has abundantly made it clear that the minority institutions form a different class of institutions and therefore the Government cannot tamper with the admission process, as a result the ratio laid down in T.M.A.Pai Foundation case in paragraph-161 (Question No.4) and the ratio in P.A.Inamdhar's case in paragraphs-127, 128 and 133 regarding the reservation even in aided minority institutions became bad in law. Again the Central Government introduced the Central Education Institutions (Reservation in Admission) Act, 2006 providing for reservation of seats in all the private aided colleges, in order to implement Article 15(5), Section 4(c) of the Act completely excluded the minority educational institutions. Similarly, in the State of Tamil Nadu, seats for SC/ST/BC were sought to be reserved in the private educational institutions. In the objects and reasons of the Act, the State has made it clear that Article 15(5) totally excludes the minority educational institutions from the provisions of the Act.

5. Even when the Central Government brought in the Right of Children to Free and Compulsory Education Act, 2009, it was questioned in Pramati Educational and Cultural Trust and others case, (2014) 4 MLJ 486, as it is violating Article 30(1), the Constitution Bench of the Apex Court, while dealing with the validity of clause (5) of Article 15 of the Constitution, finally held that the members of communities other than the minority community which has established the school cannot be forced upon a minority institution because that may destroy the minority character of the school, therefore, if the 2009 Act is made applicable to minority schools, either aided or unaided, the right of minorities under Article 30(1) of the Constitution would be abrogated. Therefore, it has been held that the Right of Children to Free and Compulsory Education Act, 2009 insofar as it applies to minority schools, aided or unaided, covered under clause (1) of Article 30 of the Constitution is ultra vires the Constitution. Accordingly, reservation of 25% students under Section 12(1)(c) of the 2009 Act in the minority institutions was held ultra vires. Therefore, when the interference by the Government in any manner with regard to the seat sharing ratio in the minority educational institutions has become unconstitutional and this position also has been confirmed by a Division Bench of this Court in the judgment dated 7.1.2014 passed in W.P.No.14734 of 2012, the impugned Government Order is liable to be set aside.

6. Concluding his arguments, Dr.Fr.A.Xavier Arulraj stated that when the State Government, in paragraph-9 of the counter affidavit, has admitted the settled legal position agreeing with the petitioners that the percentage of 50% is not rigid and in case of non-availability of minority students, the minority status shall not be withdrawn on the ground of non-achievement of 50% target for new admissions and moreover, when the admission to a minority student is denied within the 50% limit, only then action may be initiated against the institution for withdrawal of the minority status on the ground of not promoting the interests of minority students. That authority also is not available to the respondents, in the light of the ratio laid down by the Apex Court in Sisters of St.Joseph of Cluny case, (2018) 6 SCC 772 holding that the only authority to decide all the questions relating to the status of minority educational institution is the National Commission for Minority Educational Institutions, by virtue of Section 11(f) of the National Commission for Minority Educational Institutions Act, 2004. Therefore, the impugned Government Order has to go. The learned Senior Counsel also fairly submitted that if any student belonging to minority community approaches any minority institution, either aided or unaided, for admission, he/she will not be denied admission, if there is a vacancy and he/she is eligible. On this basis, he prayed for allowing the writ petitions.

7. A detailed counter affidavit has been filed by the respondents. Mr.C.Munusamy, learned Special Government Pleader for the respondents, indicating the averment made by the petitioners that in G.O.(Ms.)No.214, School Education Department dated 3.11.2008 that the admission in teaching training institute under management quota was restricted to 50% and the introduction of quota in admission is a phenomenon in higher education, more specifically in professional colleges and that the question of quota in admission at the school level was not considered either by the Government or by the Court at any point of time, stated that once the minority status is granted to the institutions run by the petitioners on fulfillment of guidelines prescribed in G.O.(Ms.) No.375, School Education Department dated 12.10.98 and G.O.(Ms.)No.214, School Education Department dated 3.11.2008, such institutions are entitled to all the privileges and special rights guaranteed under Article 30(1) of the Constitution. Since the object can be achieved only if a minimum percentage is fixed belonging to the students of that particular community, in the decision in C.Stephenson Roobasingh v. State of Tamil Nadu, 1993 WLR 544, it was held that the institution must be an educational institution of the minorities in truth and reality and not mere masked phantoms (something existing in appearance only). When the G.O.(Ms.)No.214, School Education Department dated 3.11.2008 has inter alia provided the additional norms that in respect of privately managed Teacher Training Institutes under the control of the Director of Teacher Education, Research and Training, the management should admit not less than 50% of the students belonging to their community, it cannot be denied that the above norms of 50% for admission of minority students in professional institutions are not applicable to minority schools also. Therefore, all the minority schools in the State are also bound to follow the guidelines issued in the impugned Government Order.

8. Again replying to the submission made by the learned Senior Counsel for the petitioners that the ratio laid down in T.M.A.Pai Foundation case, (2002) 8 SCC 481 has been controverted by the impugned G.O.(Ms.)No.65, School Education (MS) Department dated 5.4.2018, Mr.Munusamy argued that in P.A.Inamdhar's case, (2005) 6 SCC 537, the Apex Court has held that an aided minority educational institution would be entitled to have the right of admission of students belonging to that minority group and at the same time, would be required to admit a reasonable extent of non-minority students. Paragraph-132 of P.A.Inamdhar's case holds that minority institutions are free to admit students of their own choice including students of non-minority community as also members of their own community from other States, both to a limited extent only and not in a manner that their minority educational institution status is lost. P.A.Inamdhar's case also holds that if they do so, they lose the protection of Article 30(1). That is what has been restated in the impugned Government Order, he pleaded, keeping in mind that they should not unnecessarily run the educational institutions only for making money, as a result the interest of the minority should not be put to risk. Coming back to the ratio laid down in T.M.A.Pai Foundation case, Mr.Munusamy submitted that even the Apex Court in the said judgment has held that the minority educational institution will have to admit students of the non-minority group to a reasonable extent so that the character and the status of the minority institution is not lost and at the same time, the rights of the citizen enshrined under Article 29(2) are also not subverted. Therefore, the State Government can prescribe percentage of minority community to be admitted in a minority educational institution taking into account the population of the minority community and the needs of the area in which the institution is located. Keeping that in mind, the impugned Government Order has been issued to strike a balance to be maintained between two objectives viz., preserving the right of the minorities to admit students of their own community and that of admitting sprinkling of outsiders in their institution, subject to the condition that the manner and number of such admission should not be violative of the minority character of the institution. Being aware of the ratio laid down by the Apex Court both in T.M.A.Pai Foundation and P.A.Inamdhar cases, the first respondent has issued the impugned Government Order providing that all aided educational institutions including the Teacher Training Institutes claiming minority status shall admit not more than 75% of the students belonging to the minority community, leaving 25% for admission of non-minority students. Moreover, as blown out of proportion by the petitioners, the percentage of 50% is not rigid, as even in case of non-availability of minority students, the minority status shall not be withdrawn for non-achievement of the target for new admissions and it is only when a minority student is denied admission, the first respondent will take action against the institution for withdrawal of its minority status on the ground of not promoting the interests of minority students.

9. Replying to the contention made by the petitioners that once the minority status is granted to the minority educational institution, it cannot be renewed periodically like a driving licence, the learned Special Government Pleader submitted that in an effort to ensure the ceiling of upto 50% on new admissions, the present Government Order has been issued emphasising that the admission of minority students should be given top priority. It is only when admission to a minority student is rejected on some extraneous reason, its status will be in question. Only to retain the minority character, a minority educational institution is not only required to serve its religion or language, but also should give good general education to the children belonging to such minority community. Since most of the minority educational institutions have not attached due priority to subserve the interest of the students belonging to their community, in order to secure the object, the impugned Government Order has been issued fixing the percentage as not less than 50%, so that admissions are not denied on grounds of economic status, screening test, academic performance etc. When the impugned Government Order has been passed by the Government directing the minority educational institutions to give top priority for admission of students of minority community to the extent of 75% in aided minority institution and 50% in unaided minority educational institution, it supports their minority status. Therefore, when no prejudice is caused to the petitioners institutions, the writ petitions should be rejected, he pleaded.

10. The learned counsel for the petitioner in W.P.No.27647 of 2018 also adopted the arguments of the learned Senior Counsel.

11. Heard the learned counsel for the parties.

12. The writ petitions have been filed by different educational agencies of the Catholic Church, either as part of a Catholic Diocese or a Catholic Religious Congregation and the respective schools under them are mostly managed by the priests and nuns. It is their claim that these educational agencies have the object of working for the welfare of the Christian minority community, apart from serving the wider society irrespective of caste, religion, race or sex. When most of the schools were established by the catholic educational agencies prior to the coming into force of the Indian Constitution, in the post-constitutional era, when constitutional protection was introduced to the petitioners institutions run by the religious or linguistic minorities, all the minority educational institutions came to be governed by Article 30(1) of the Constitution of India. In the State of Tamil Nadu, when the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 was introduced trying to regulate their administration, some of the educational agencies including the petitioners challenged certain provisions of the same. By order dated 17.12.75 passed in a batch of writ petitions viz., W.P.Nos.4478 of 1974, this Court has held that the educational agencies are held to be minority institutions. The said order was re-confirmed by another order dated 10.10.2012 passed in W.P.Nos.4478 of 1974 after the remand was made by the Supreme Court. Now the prime contention made by the petitioners' side shows that after the introduction of the National Commission for Minority Educational Institutions Act, 2004, some of the minority educational agencies running mostly matriculation schools had approached the National Commission for Minority Educational Institutions, being the authority to deal with the minority status, under Section 11(f) of the National Commission for Minority Educational Institutions Act and they have also obtained the minority status. Thus, they have satisfied the conditions laid down in G.O.(Ms.)No.375, School Education (XI) Department dated 12.10.98 for the purpose of enjoying minority status linked with Article 30(1) of the Constitution of India. Therefore, when it is admitted that their minority status has been established and the institutions are administered by the minority educational agencies, these educational agencies are classified as religious minority institutions and protected under Article 30(1) of the Constitution of India. In this context, it is necessary to extract Article 30 of the Constitution of India, as follows:-

“30. Right of minorities to establish and administer educational institutions:

(1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.

[(1A) In making any law providing for the compulsory acquisition of any property of any educational institution established and administered by a minority, referred to in clause (1), the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause.]

(2) The State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language.”

13. While dealing with the rights guaranteed under Article 30(1) of the Constitution of India on the minority institutions, the Apex Court in the decision in Dayanand Anglo Vedic (DAV) College Trust and Management Society v. State of Maharashtra and another, (2013) 4 SCC 14, referring to the decision rendered in Kerala Education Bill, In re, AIR 1958 SC 956 giving twin objectives viz., (i) to enable such minority to conserve its religion and language, and (ii) to give a thorough, good, general education to the children belonging to such minority and also clarifying that so long as the institution retains its minority character by achieving and continuing to achieve the two objectives, the institution would remain as the minority educational institution, held as follows:-

“18. Their Lordships further observed referring the decision of this Court in Kerala Education Bill, 1957, In re as under: (P.A.Inamdhar's case, SCC pp.591-92, paras 97-98)

“97.....Thus, the twin objects sought to be achieved by Article 30(1) in the interest of minorities are : (i) to enable such minority to conserve its religion and language, and (ii) to give a thorough, good, general education to children belonging to such minority. So long as the institution retains its minority character by achieving and continuing to achieve the abovesaid two objectives, the institution would remain a minority institution.

98. The learned Judges in Kerala Education Bill were posed with the issue projected by Article 29(2). What will happen if the institution was receiving aid out of State funds? The apparent conflict was resolved by the Judges employing a beautiful expression. They said, Articles 29(2) and 30(1), read together, clearly contemplate a minority institution with a 'sprinkling of outsiders' admitted in it. By admitting a member of non-minority into the minority institution, it does not shed its character and cease to be a minority institution. The learned Judges went on to observe that such 'sprinkling' would enable the distinct language, script and culture of a minority being propagated amongst non-members of a particular minority community and that would indeed better serve the object of conserving the language, religion and culture of that minority.”

14. Finally, the Apex Court in Dayanand Anglo Vedic (DAV) College Trust and Management Society case (2013) 4 SCC 14, in paragraphs 30 & 34, held as follows:-

“30. In A.P. Christians Medical Educational Society vs. Government of Andhra Pradesh, (1986) 2 SCC 667, this Court elaborately discussed the rights guaranteed under Article 30 and held as under: (SCC pp 676-77, para 8)

“8. It was seriously contended before us that any minority, even a single individual belonging to a minority, could find a minority institution and had the right so to do under the Constitution and neither the Government nor the University could deny the society’s right to establish a minority institution, at the very threshold as it were, howsoever, they may impose regulatory measures in the interests of uniformity, efficiency and excellence of education. The fallacy of the argument in so far as the instant case is concerned lies in thinking that neither the Government nor the University has the right to go behind the claim that the institution is a minority institution and to investigate and satisfy itself whether the claim is well founded or ill-founded. The Government, the University and ultimately the court have the undoubted right to pierce the `minority veil’ -- with due apologies to the corporate lawyers and discover whether there is lurking behind it no minority at all and in any case, no minority institution. The object of Art. 30(1) is not to allow bogies to be raised by pretenders but to give the minorities `a sense of security and a feeling of confidence’ not merely by guaranteeing the right to profess, practise and propagate religion to religious minorities and the right to conserve their language, script and culture to linguistic minorities, but also to enable all minorities, religious or linguistic, to establish and administer educational institutions of their choice. These institutions must be educational institutions of the minorities in truth and reality and not mere masked phantoms. They may be institutions intended to give the children of the minorities the best general and professional education, to make them complete men and women of the country and to enable them to go out into the world fully prepared and equipped. They may be institutions where special provision is made to the advantage and for the advancement of the minority children. They may be institutions where the parents of the children of the minority community may expect that education in accordance with the basic tenets of their religion would be imparted by or under the guidance of teachers, learned and steeped in the faith. They may be institutions where the parents expect their children to grow in a pervasive atmosphere which is in harmony with their religion or conducive to the pursuit of it. What is important and what is imperative is that there must exist some real positive index to enable the institution to be identified as an educational institution of the minorities. We have already said that in the present case apart from the half a dozen words `as a Christian minorities institution’ occurring in one of the objects recited in the memorandum of association, there is nothing whatever, in the memorandum or the articles of association or in the actions of the society to indicate that the institution was intended to be a minority educational institution. As already found by us these half a dozen words were introduced merely to found a claim on Art. 30(1). They were a smoke-screen.”

34. After giving our anxious consideration to the matter and in the light of the law settled by this Court, we have no hesitation in holding that in order to claim minority/linguistic status for an institution in any State, the authorities must be satisfied firstly that the institution has been established by the persons who are minority in such State; and, secondly, the right of administration of the said minority linguistic institution is also vested in those persons who are minority in such State. The right conferred by Article 30 of the Constitution cannot be interpreted as if irrespective of the persons who established the institution in the State for the benefit of persons who are minority, any person, be it non-minority in other place, can administer and run such institution.”

15. A careful reading of the above excerpts would clearly show that in order to claim minority status for an institution in any State, the authorities must be satisfied firstly that the institution has been established by the persons who are minority in such State and secondly, the right of administration of the said minority linguistic institution is also vested in those persons who are minority in such State. It goes without saying that the constitutional vision under Article 30(1) abundantly speaks that even a single minority child is entitled for a thorough and good education in a minority educational institution and in a locality with dominant minority population, a particular government school or non-minority school can always have the majority of minority students. Therefore, the admission of more number of minority students, whatever be the ratio, in a government or non-minority educational institution, cannot confer a minority status to such school and hence the 'number test' to verify whether the particular school will subserve the minority community to retain its minority status, will be unacceptable, for the simple reason that the number of minority children admitted in a minority school cannot change the character of government or non-minority school. Similarly, it cannot also change, dilute or add to the already existing character of a minority institution, because once a minority institution is conferred with minority status, there cannot be a change in its status. A minority educational institution established in a particular area can admit any child approaching for admission subject to the vacancy to accommodate such child in the school and with a further rider that if the child is eligible, admission will be granted, because in a school established by minorities or non-minorities, it is difficult to maintain the quota system as the number of admissions can always increase or decrease irrespective of the religion or caste. For instance, if only 10 available minority students are admitted, in order to strike the ratio of 50:50, the school cannot restrict the total admission only to 20, when the non-minority children would outnumber the minority children. Similarly, a minority institution cannot become a non-minority because of the number of children admitted therein. Again for instance, if a Christian minority school admits more number of muslim children, we cannot presume that it has become a muslim minority school and lose its Christian minority status. Therefore, as stipulated in the impugned G.O.(Ms.) No.65, if the minority status is linked to the number of students from the minority community which will be fluctuating year to year, the same is not contemplated either in the Constitution or any law.

16. The issue as to the status of a minority institution in terms of fundamental right under Article 30 of the Constitution of India has also been dealt with by the Apex Court in Sisters of St.Joseph of Cluny v. State of West Bengal and others, (2018) 6 SCC 772, holding that the National Commission for Minority Educational Institutions is the authority to decide all questions relating to the status of an institution as a minority educational institution and to declare its status as such, as per Section 11(f) of the National Commission for Minority Educational Institutions Act, 2004. Finally, holding that the status of minority institution in terms of fundamental right under Article 30 cannot be waived, the Apex Court held as follows:-

“23. Secondly, Section 11(f) is a very wide provision which empowers the NCMEI to decide all questions relating to the status of an institution as a minority educational institution and to declare its status as such. The expression “all questions” as well as the expression “relating to”, which are words of wide import, clothe NCMEI with the power to decide any question that may arise, which may relate directly or indirectly, with respect to the status of an institution as a minority education institution. Looked at by itself, Section 11(f) would include the declaration of the status of an institution as a minority educational institution at all stages. Article 30 of the Constitution of India grants a fundamental right to all minorities, whether based on religion or language, to establish and administer educational institutions of their choice. The power under Section 11(f), read by itself, would clothe NCMEI with the power to decide any question that may arise with regard to the right to establish and/or administer educational institutions by a minority. The power does not stop there. It also includes the power to declare such institution as a minority educational institution, which is established and administered as such, so that it can avail of the fundamental right guaranteed under Article 30 of the Constitution.

24. However, Section 10(1), which was introduced at the same time as Section 11(f) by the Amendment Act of 2006, carves out one facet of the aforesaid power contained in Section 11(f), namely, the grant of a no-objection certificate to a minority educational institution at its inception. Thus, any person who desires to establish a minority educational institution after the Amendment Act of 2006 came into force, must apply only to the competent authority for the grant of a no-objection certificate for the said purpose. It is a little difficult to subscribe to Shri Hegde’s argument that the said powers are concurrent. Harmoniously read, all applications for the establishment of a minority educational institution after the Amendment Act of 2006 must go only to the competent authority set up under the statute. On the other hand, for the declaration of its status as a minority educational institution at any stage post establishment, the NCMEI would have the power to decide the question and declare such institution’s minority status.

28. This judgment unequivocally holds that, insofar as existing minority institutions are concerned, Section 11(f) clearly confers jurisdiction on NCMEI to issue a certificate regarding the status of the minority educational institution. We respectfully concur with the aforesaid view.”

17. Since Section 11(f) of the National Commission for Minority Educational Institutions Act, 2004 confers jurisdiction on the NCMEI to issue a certificate regarding the status of the minority educational institution, the first respondent cannot seek to decide the minority status of the petitioners institutions, in the event of not securing admission of not less than 50% of students in the unaided minority institutions and 75% of students in the aided minority institutions every academic year from the minority community.

18. Secondly, after the judgment in P.A.Inamdhar's case holding that minority institutions are free to admit students of their own choice including students of non-minority community as also members of their own community from other States, both to a limited extent only and not in a manner and to such extent that their minority educational institution status is lost, because if they do so, they lose the protection of Article 30(1), the Parliament introduced Article 15(5) amending the Constitution with effect from 21.1.2006 providing reservation for SC/ST/OBC in private institutions, both aided and unaided, in higher education, although it has safely excluded the minority educational institutions, both aided and unaided. But the said amendment was also questioned in Ashoka Kumar Thakur v. Union of India and others, (2008) 6 SCC 1. Again the Constitution Bench of the Hon'ble Supreme Court, repelling the challenge, has held that the minority institutions form a different class of institutions and therefore the Government cannot tamper with the admission process, consequently the ratio laid down in T.M.A.Pai Foundation in paragraph-161 relating to Question No.4 and the ratio laid down in P.A.Inamdhar's case in paragraphs 127, 128 and 133 regarding the rule of reservation even in aided minority institutions, were held bad in law. (emphasis supplied)

19. In addition thereto, when the Government Educational Institutions (Reservation in Admission) Act, 2006 was introduced to provide for reservation in the admission of students belonging to the Scheduled Caste/Scheduled Tribe and Other Backward Class of citizens to certain central educational institutions established, maintained or aided by the Central Government, Section 4(c) was introduced excluding minority educational institutions from the applicability of the Act. More importantly, thereafter, when the Right of Children to Free and Compulsory Education Act, 2009 was introduced, while discussing the validity of clause (5) of Article 15 of the Constitution, the Constitution Bench of the Apex Court has held in Pramati Educational and Cultural Trust and others v. Union of India and others, (2014) 4 MLJ 486 that the 2009 Act insofar as it applies to minority schools, aided or unaided, covered under clause (1) of Article 30 of the Constitution is ultra vires of the Constitution. It is pertinent to extract the ratio laid down by the Apex Court in the said judgment as follows:-

“46. When we look at the 2009 Act, we find that Section 12(1)(b) read with Section 2(n)(iii) provides that an aided school receiving aid and grants, whole or part, of its expenses from the appropriate Government or the local authority has to provide free and compulsory education to such proportion of children admitted therein as its annual recurring aid or grants so received bears to its annual recurring expenses, subject to a minimum of twenty-five per cent. Thus, a minority aided school is put under a legal obligation to provide free and compulsory elementary education to children who need not be children of members of the minority community which has established the school. We also find that under Section 12(1)(c) read with Section 2(n)(iv), an unaided school has to admit into twenty-five per cent of the strength of class I children belonging to weaker sections and disadvantaged groups in the neighbourhood. Hence, unaided minority schools will have a legal obligation to admit children belonging to weaker sections and disadvantaged groups in the neighbourhood who need not be children of the members of the minority community which has established the school. While discussing the validity of clause (5) of Article 15 of the Constitution, we have held that members of communities other than the minority community which has established the school cannot be forced upon a minority institution because that may destroy the minority character of the school. In our view, if the 2009 Act is made applicable to minority schools, aided or unaided, the right of the minorities under Article 30(1) of the Constitution will be abrogated. Therefore, the 2009 Act insofar it is made applicable to minority schools referred in clause (1) of Article 30 of the Constitution is ultra vires the Constitution. We are thus of the view that the majority judgment of this Court in Society for Unaided Private Schools of Rajasthan v. Union of India &

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amp; Anr. (supra) insofar as it holds that the 2009 Act is applicable to aided minority schools is not correct. 47. In the result, we hold that the Constitution (Ninety- third Amendment) Act, 2005 inserting clause (5) of Article 15 of the Constitution and the Constitution (Eighty-Sixth Amendment) Act, 2002 inserting Article 21A of the Constitution do not alter the basic structure or framework of the Constitution and are constitutionally valid. We also hold that the 2009 Act is not ultra vires Article 19(1)(g) of the Constitution. We, however, hold that the 2009 Act insofar as it applies to minority schools, aided or unaided, covered under clause (1) of Article 30 of the Constitution is ultra vires the Constitution. Accordingly, Writ Petition (C) No.1081 of 2013 filed on behalf of Muslim Minority Schools Managers' Association is allowed and Writ Petition (C) Nos.416 of 2012, 152 of 2013, 60 of 2014, 95 of 2014, 106 of 2014, 128 of 2014, 144 of 2014, 145 of 2014, 160 of 2014 and 136 of 2014 filed on behalf of non-minority private unaided educational institutions are dismissed. All I.As. stand disposed of. The parties, however, shall bear their own costs.” 20. Therefore, it is made clear that the interference by the Government in any manner regarding the seat sharing in minority educational institutions, both aided and unaided, is unjustified, unlawful and unconstitutional. This position also has been restated by the Division Bench of this Court in the judgment dated 7.1.2014 passed in W.P.No.14734 of 2012 (The Federation of the Catholic Faithful repesented by its General Secretary, Chennai v. The Government of Tamil Nadu represented by its Secretary, Higher Education Department and others). 21. Finally, Dr.Fr.A.Xavier Arulraj also stated that all the petitioners institutions have also filed affidavits of undertaking to the effect that all the minority educational institutions shall not deny admission to the eligible candidates of the minority community, subject to the eligibility of the students and availability of accommodation in the schools. This also goes together with the stand taken by the respondents in paragraph-9 of the counter affidavit, which is given as under:- “9. Moreover, the percentage of 50% is not rigid as averred by the petitioner. It is submitted that in case of non-availability of minority students, the minority status shall not be withdrawn on the grounds of non-achievement of 50% target for new admissions. It is only when admission to a minority student is denied within 50% limit, action may be initiated against the institute for withdrawal of minority status on grounds of not promoting the interests of minority students.” 22. Since the first respondent has also taken a stand that the percentage of 50% is not rigid and in case of non-availability of minority students, the minority status will not be withdrawn on the ground of non-achievement of 50% target for new admissions and it is only when admission to minority student is denied within 50% limit, action will be taken against the institution for withdrawal of minority status on grounds of not promoting the interests of minority students, the writ petitions deserve to be allowed recording the undertaking given by the petitioners institutions that they will not deny admission to the minority students, subject to their fulfilling the eligibility criteria and also the availability of vacancies. 23. For all the foregoing reasons, in the light of the ratio laid down by the Apex Court in Pramathi Educational and Cultural Trust, Asoka Kumar Thakur and in Sisters of St.Joseph of Cluny cases, the impugned G.O.(Ms.) No.65, School Education (MS) Department dated 5.4.2018 is set aside, recording the undertaking given by the petitioners institutions that all the minority educational institutions shall not deny admission to the eligible candidates of the minority community, subject to the eligibility of the students and availability of accommodation in the schools. However, it is made clear that if any complaint is given that a minority candidate of any sex is denied admission by a minority educational institution in spite of establishing the eligibility and the availability of seats, it is open to the respondents to ventilate the grievance before the National Commission for Minority Educational Institutions under Section 11(f) of the National Commission for Minority Educational Institutions Act, 2004. With this observation, all the writ petitions are allowed. Consequently, all the connected writ miscellaneous petitions are closed. There is no order as to costs.
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