Judgment : 1. Good Shephered Out Reach Mission Evangelical and Educational Trust through its President has filed the above writ petition questioning the Order of the Government in G.O.Ms.No.858, Education, dated 17. 1989 and the consequential proceedings of the second respondent dated 8. 1997 in so far as guideline (3) of the said G.O.No.858, Education, dated 17. 1989 as amended by G.O.Ms.No.244, dated 5. 1997 and quash the same in so far as the demand to create an endowment for Rs.10 lakhs and for direction to the second respondent to treat the application of the petitioner society for the establishment of a religious minority college in the name of Good Shephered Out Reach Mission Evangelical and Educational Trust, Erode. .2. Thecase of the petitioner is briefly stated hereunder: The petitioner Trust is registered under the provisions of the Societies Registration Act, bearing Registration No.91/85 on the file of District Registrar, Erode. The petitioner society was formed by a set of dedicated persons who are all religious minorities in the State with the object of implementing several religious and charitable services as well as to implement social welfare scheme for the Christian community in particular and non-Christian who believe in Christianity. Though the petitioner society is a minority in character within the meaning of Art.30 of the Constitution of India, the educational authorities required them to get a declaration from the Civil Court as to the religious minority status as per the decisions of this Court dated 17. 1975 made in W.P.No.4478 of 1974 batch. Accordingly the petitioner society was declared as a religious minority within the meaning of Art.30 of the Constitution of India by a decree and judgment dated 33. 1992 made in O.S.No.9457 of 1988 on the file of the XVI Assistant Judge, City Civil Court, Chennai. In order to achieve the objects of the society, the petitioner society started educational institutions viz., Good Shephered Higher Secondary, Matriculation School at Erode established in the academic year 1977-78 and also started another school at Anthiyur, from the academic year 1979-80 and the same were duly recognised by the Director of School Education, as well as the Director of Government Examinations, Chennai since 1985-86 onwards. With the experience in the educational field, the petitioner proposed to start a self-finance Arts College at Erode from the academic year 1997-98. 3. With the experience in the educational field, the petitioner proposed to start a self-finance Arts College at Erode from the academic year 1997-98. 3. It is stated that the Government of Tamil Nadu in G.O.Ms.No.858, Education Department, dated 17. 1989 have issued guidelines for opening of the unaided Arts and Science Colleges by private educational agencies. As per the said guidelines, the application for permission to establish an unaided private college shall be submitted in the prescribed pro forma through the Director of Collegiate Education, so as to reach the Government in the Education Department not later than 30th September of the year preceding the academic year in which the college is proposed to be established. Apart from the other conditions, Clause (3) of the G.O., contemplates creation of an endowment of Rs.10 lakhs in the joint names of the Director of School Education and the Management. As per the said G.O., the educational agency shall hold 10 acres of land in the rural area or 5 acres of lands in the urban area. The library and laboratory shall be equipped as per the requirements stipulated by the concerned University. The qualifications and number of teaching staff shall also conform to the rules and regulations of the Government and also the University. 4. It is further stated that the petitioner in strict compliance of the conditions of the said G.O.Ms.No.858, dated 17. 1989 made an application seeking permission to start the said Good Shephered Arts College and submitted their application on 29. 1996. They also furnished details regarding the existing schools and the need for more Arts and Science Colleges. But, however, the second respondent in his proceedings, dated 11. 1996 required the petitioner society viz., the educational agency to create an endowment to the tune of Rs.10 lakhs and further stated that the said application could be considered only as per the guidelines prescribed in G.O.Ms.No.858, Education Department, dated 17. 1989 and therefore the application of the petitioner society cannot be considered for establishing a religious minority institution. The petitioners are aggrieved by the demand of the second respondent as per his proceedings dated 11. 1996 to create an endowment to the tune of Rs.10 lakhs and for refusing to treat the petitioner societys application to establish the religious minority college. The petitioners are aggrieved by the demand of the second respondent as per his proceedings dated 11. 1996 to create an endowment to the tune of Rs.10 lakhs and for refusing to treat the petitioner societys application to establish the religious minority college. It was brought to the notice of the second respondent that by subsequent various orders of the Government, particularly while framing guidelines for minority status to private educational institutions, it had been clarified by the Government that G.O.Ms.No.648, dated 8. 1994 would be applicable and be confined only to Engineering colleges to the exclusion of the other existing educational institutions. Hence the second respondent is not justified in relying on the impugned Government Order to consider its application for the establishment of Arts and Science College at Erode. In such circumstances, having no other effective remedy, the petitioner filed the above writ petition before this Court for necessary relief. .5. First respondent filed a counter affidavit disputing various averments made by the petitioner. It is stated therein that the very same petitioner had already filed Writ Petition No.113 of 1997 for the same reason and the same was subsequently withdrawn by the petitioner. Based on the observation of the Supreme Court of India, the Government issued orders in G.O.Ms.No.648, Education, Science and Technology Department, dated 8. 1994, according to which the Government is the competent authority to accord minority status to an educational institution. In view of the said order, the petitioner society has to apply for determining whether the educational institution is a minority or not. But, the petitioners society has not applied to the Government and therefore, in the absence of specific orders of the Government, the petitioner society cannot claim that status for the purpose of opening a new college. The Government have prescribed certain guidelines in G.O.Ms.No.858, Education, dated 17. 1989 to be followed by private educational agencies which propose to start unaided private Arts and Science Colleges and any proposed college should follow the guidelines prescribed by Government and should filfil the conditions prescribed therein. The application of the petitioner society was received by the second respondent and on its perusal, it was found that the petitioners society has not created the cash endowment of Rs.10 lakhs. The application of the petitioner society was received by the second respondent and on its perusal, it was found that the petitioners society has not created the cash endowment of Rs.10 lakhs. Hence the petitioner society was addressed to create the said cash endowment and to submit other documents as required in accordance with G.O.Ms.No.858, Education, dated 17. 1989. No educational agency can be exempted from payment of the cash endowment which is a prerequisite condition prescribed by Government. In view of the observation of the Supreme Court in W.P.No.598 of 1993 dated 18. 1983 and in accordance with G.O.Ms.No.648, Education, dated 8. 1994, the Government alone have to consider the various aspects before conferring minority status to any institution within the meaning of Art.30(1) or Art.26 of the Constitution of India. Inasmuch as the status of the petitioner society has to be decided by the Government and the petitioner has to follow the guidelines prescribed, there is no merit in the writ petition; accordingly prayed for dismissal of the same. 6. In the light of the above pleadings, I have heard the learned counsel for the petitioner as well as learned Government Advocate. 7. Ms.G.Thilakavathi, learned counsel for the petitioner, after taking me through the decree and judgment obtained by the petitioner society, holding that petitioner society is a minority religious institution as well as various judicial decisions of this Court and the Apex Court, contended that the impugned order of the second respondent dated 5. 1997 demanding creation of endowment to the tune of Rs.10 lakhs as per the guidelines prescribed in G.O.Ms.No.858, Education, 17. 1989 is contrary to law and violative of Art.30 of the Constitution of India. She further contended that inasmuch as the condition for demanding the endowment is not applicable to the religious minority institutions which are protected under Art.30 of the Constitution of India, the contrary action of the respondents cannot be sustained. The guidelines particularly Clause 3 infringes fundamental rights conferred under Art.30 of the Constitution of India. She also contended that the direction of the Hon’ble Supreme Court in T.M.A.Pai foundation case, is applicable to the said institution and in any event the Government of Tamil Nadu had subsequently amended G.O.Ms.No.567, dated 17. The guidelines particularly Clause 3 infringes fundamental rights conferred under Art.30 of the Constitution of India. She also contended that the direction of the Hon’ble Supreme Court in T.M.A.Pai foundation case, is applicable to the said institution and in any event the Government of Tamil Nadu had subsequently amended G.O.Ms.No.567, dated 17. 1995 whereby the existing Engineering College which claim minority status alone were required to apply to the Government for declaration of minority status, hence the second respondent failed to consider the above aspect before rejecting the request of the petitioner society. 8. On the other hand, learned Government Advocate by referring to the direction of the Hon’ble Supreme Court as well as various Government Orders and guidelines, would contend that petitioner has to get a declaration from the Government regarding their minority status and deposit endowment fee of Rs.10 lakhs as per the Government direction. He also contended that the said direction is for the benefit of teaching and non-teaching staff as well as Institution in general. The petitioner society has to fulfil the same in order to start a new college, accordingly he prayed for dismissal of the writ petition. 9. I have carefully considered the rival submissions. 10. It is the definite case of the petitioner that in view of the fact that the petitioner society was declared as a religious minority institution within the meaning of Art.30 of the Constitution of India by judgment and decree dated 33. 1992 made in O.S.No.9457 of 1988 on the file of XVI Assistant Judge, City Civil Court, Chennai, the present direction by the second respondent asking the petitioner to create an endowment of Rs.10 lakhs in the joint names of Director of School Education and the Management cannot be sustained. Equally it is the definite case of the respondents that in view of the directions of the Supreme Court in I.A.No.20 in W.P.(C).No.317 of 1993, dated 110. 1994, the Government of Tamil Nadu issued orders in G.O.Ms.No.648, Education, Science and Technology Department, dated 8. 1994, according to which, the Government alone is the competent authority to grant minority status to an educational institution. 1994, the Government of Tamil Nadu issued orders in G.O.Ms.No.648, Education, Science and Technology Department, dated 8. 1994, according to which, the Government alone is the competent authority to grant minority status to an educational institution. Since according to the respondents, the petitioner society has not applied to the Government for determination whether the educational institution is a minority or not and in the absence of any specific orders of the Government, the petitioner society cannot claim the status of minority for the purpose of opening a new college. In such a circumstance according to them, the Government is empowered to regulate the educational institution as per the Act and Rules framed thereunder and as per the directions issued. The Government have also prescribed certain guidelines in G.O.Ms.No.858, dated 17. 1989 to be followed by private educational agencies which propose to start unaided Arts and Science colleges and any proposed college should follow the guidelines prescribed by Government in the said orders and should fulfil the conditions prescribed therein. As per Sec.3 of the Tamil Nadu Private Colleges (Regulation) Act, 1976, no person shall, without the permission of the Government and except in accordance with the terms and conditions specified in such permission establish, on or after the date of commencement of the Act to start a new college. As per G.O.Ms.No.858, Education, dated 17. 1989, the society or institution or any one desires to start a new college, they have to create an endowment of Rs.10 lakhs in the joint names of the Director of Collegiate Education and the Management. By G.O.Ms.No.648, Education, Science and Technology Department, dated 8. 1994, the Government itself is to verify the minority status of the institution. Since the petitioner society did not apply to the Government for determination of the minority status, nor fulfil the other conditions, namely, endowment of Rs.10 lakhs, the second respondent has passed the impugned order rejecting the request of the petitioner to start new Arts and Science college. 11. NowI shall consider whether both the said Government Orders are applicable to the petitioner society. I have already referred to the fact that the petitioner society secured a decree in O.S.No.9457 of 1998 dated 33. 1992 on the file of XVI Assistant Judge, City Civil Court, Chennai, declaring that the petitioner society is a religious minority within the meaning of Art.30 of the Constitution of India. I have already referred to the fact that the petitioner society secured a decree in O.S.No.9457 of 1998 dated 33. 1992 on the file of XVI Assistant Judge, City Civil Court, Chennai, declaring that the petitioner society is a religious minority within the meaning of Art.30 of the Constitution of India. It is a contested decree and the defendants have not filed any appeal against the said decree. No doubt, the Hon’ble Supreme Court in I.A.No.20 in W.P. (C) No.317 of 1993, dated 110. 1994, passed a general order staying the operation of all the decrees/orders granted by Civil Courts in respect of minority status or otherwise. Based on the said direction, the State Government passed G.O.Ms.No.648, Education, dated 8. 1994 informing that Government alone is the competent authority to verify the minority status. Pursuant to the said order, the Government passed another order in G.O.Ms.No.371, Education, Science and Technology Department, dated 5. 1995 constituting a committee and framing certain guidelines to determine the minority status of an institution. Learned counsel for the petitioner strenuously contended that the direction of the Supreme Court is not applicable to the petitioner institution and in such circumstance, particularly in the light of the minority status as evidenced by the decree of the competent Civil Court, there is no need to go before the Government and there is no need to create any endowment as claimed. The very same question, namely, the interpretation of the order passed by the Hon’ble Supreme Court was considered by S.S.Subramani, J., in the case of St.Ignatius Higher Secondary School v. Director of School Education St.Ignatius Higher Secondary School v. Director of School Education St.Ignatius Higher Secondary School v. Director of School Education , (1999)1 C.T.C. 121 . After referring the order passed by their Lordships of the Supreme Court in T.M.A.Pai Foundation and others v. State of Karnataka and others, I.A.No.20 in W.P.No.317 of 1993 the learned Judge has held that the order passed by the Supreme Court is applicable to institutions which have been arrayed as respondents in that Interlocutory Application. After reading the order of the Supreme Court, I am in favour of the view expressed by the learned Judge. After reading the order of the Supreme Court, I am in favour of the view expressed by the learned Judge. In the case of N.Ammad v. Manager, Emjay High School and others N.Ammad v. Manager, Emjay High School and others N.Ammad v. Manager, Emjay High School and others , (1998)6 S.C.C. 674 their Lordships have held as follows: “When the Government declared the School as a minority school, it has recognised a factual position that the school was established and is being administered by a minority and is being administered by a minority community the declaration is only an open acceptance of a legal character which should necessarily have existed antecedent to such declaration. Therefore, we are unable to agree with the contention that the School can claim protection only after the Government declared it as minority school on 8. 1994.” In the light of the factual and legal position referred to above, I am in agreement with the argument of the learned counsel for the petitioner and there cannot be any doubt as to the minority status of the petitioners society. 12. The further question that arises for consideration is whether the respondents were justified in demanding the creation of an endowment for a sum of Rs.10 lakhs. This point is already covered by various decisions of this Court. A Division Bench of this Court in W.P.No.4478 of 1974 etc., batch dated 17th December, 1975 has held that Rule 9 of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974 is inapplicable to minority institutions. One of the conditions imposed in Rule 9 is that educational agencies have to deposit a sum of Rs.25,000 for recognition of higher secondary courses. But the above Rule does not satisfy about the minority institution. The said decision of the Division Bench has been followed by another Division Bench in Madras English Baptist Church, Madras v. The State of Tamil Nadu Madras English Baptist Church, Madras v. The State of Tamil Nadu Madras English Baptist Church, Madras v. The State of Tamil Nadu , 1991 Writ L.R. 419. Another Division Bench in W.P.No.1079 of 1996 etc., batch, dated 12. Another Division Bench in W.P.No.1079 of 1996 etc., batch, dated 12. 1997, have held that: “….So far as the requirements to make a cash endowment of at least Rs.5 lakhs, we hold that the same cannot be enforced, in view of the Division Bench Judgment of this Court in Madras English Baptist Church Madras v. The State of Tamil Nadu Madras English Baptist Church Madras v. The State of Tamil Nadu Madras English Baptist Church Madras v. The State of Tamil Nadu , 1991 Writ L.R. 419. In this view of the matter only the said requirement is held to be illegal and ultra vires the rights of the minority institution…” In Managing Board, M.T.M. v. State of Bihar Managing Board, M.T.M. v. State of Bihar Managing Board, M.T.M. v. State of Bihar , A.I.R. 1984 S.C. 1757, their Lordships of the Supreme Court have held that: “8. Thus, all the authorities mentioned above clearly laid down that while affiliation itself may not be a fundamental right but refusal of affiliation on terms and conditions or situations which practically denies the progress and autonomy of the institution is impermissible as being violative of Art.30 of the Constitution….” Following all the above mentioned decisions, S.S.Subramani, J., in St.Ignatius Higher Secondary School v. Director of School Education St.Ignatius Higher Secondary School v. Director of School Education St.Ignatius Higher Secondary School v. Director of School Education , (1999)1 C.T.C. 121 allowed the writ petition holding that the direction to create an endowment of Rs.25,000 each, as pre-condition for recognition of Higher Secondary Course under Rule 9(2)(e)(i) is not valid and held that the respondents are not entitled to make such a demand as a pre-condition for grant of recognition, T.Meenakumari, J., in St.Josephs Higher Secondary School v. State St.Josephs Higher Secondary School v. State St.Josephs Higher Secondary School v. State , (2000)2 C.T.C. 238 has taken the same view. E.Padmanabhan, J., in W.P.No.17170 of 1998, dated 16. 1999 has also taken the same view. 13. Learned Government Advocate appearing for the respondents by relying on a decision of N.V.Balasubramanian, J., in W.P.No.6054 of 1992, dated 110. 1999, contended that the respondents are justified in asking the petitioners society to create an endowment. No doubt, the learned Judge has justified in insisting upon the creation of an endowment as a pre-condition for affiliation. 13. Learned Government Advocate appearing for the respondents by relying on a decision of N.V.Balasubramanian, J., in W.P.No.6054 of 1992, dated 110. 1999, contended that the respondents are justified in asking the petitioners society to create an endowment. No doubt, the learned Judge has justified in insisting upon the creation of an endowment as a pre-condition for affiliation. After going through the judgment of the learned Judge and in the light of the specific condition viz., creation of an endowment is a pre-condition for affiliation in the Manonmaniam Sundaranar University Act, I am of the view that the said decision is distinguishable and not helpful to the respondents’ case. 14. Apart from the above legal and factual position and in view of the subsequent orders passed by the Government clarifying their stand, I am of the view that the respondents are not justified in insisting upon the petitioner society to create an endowment. I have already observed that the direction of the Hon’ble Supreme Court as explained by S.S.Subramani, J., in St.Ignatius Higher Secondary School v. Director of School Education St.Ignatius Higher Secondary School v. Director of School Education St.Ignatius Higher Secondary School v. Director of School Education , (1999)1 C.T.C. 121 is applicable only to the institutions which have been arrayed as respondents before the Supreme Court. I have also stated that pursuant to the interim direction, the Government have passed various orders empowering them to verify and determine the question regarding the minority status and also constituted a committee prescribing guidelines regarding the same. Even if it is accepted that the direction of the Hon’ble Supreme Court is applicable to all the institutions and the subsequent decisions and guidelines framed by the State Government are valid, in G.O.Ms.No.567, Education, dated 17. 1995 the Government itself had clarified that the said conditions are applicable only to Engineering Colleges and not for Arts and Science Colleges. This is clear from the following Government Order: “Education, Science and Technology Department G.O.Ms.No.567, Dated: 17. 1995. Read: 1. x x x 2. x x x Order: In the Government letter second read above Government have clarified that the orders issued in G.O.Ms.No.371, Education, Science and Technology Department, dated 5. 1995 relating to grant of minority status to Educational Institutions shall be applicable only to Professional Colleges/Technical Institutions which apply to Government, claiming minority Status. 1995. Read: 1. x x x 2. x x x Order: In the Government letter second read above Government have clarified that the orders issued in G.O.Ms.No.371, Education, Science and Technology Department, dated 5. 1995 relating to grant of minority status to Educational Institutions shall be applicable only to Professional Colleges/Technical Institutions which apply to Government, claiming minority Status. In modification of the above letter the Government have now decided to amend the said G.O., so as to apply the guidelines in the said G.O. to Engineering Colleges only. 2. The following amendment is issued to G.O.Ms.No.371, Education, Science and Technology, dated 5. 1995. Amendments: In the said G.O., .(1) In paragraph5, .(a) for the words” it is being registered “ the words” it is being declared “ shall be substituted; .(b) for clause (1) the following clause shall be substituted, namely:” (1) Any Engineering College claiming minority Status shall apply to Government for declaration of Minority Status. Based on the application, orders will be passed by the Government on merit and according to Law.“ .(c) in clause (8), the expression” as far as Professional Colleges are concerned. “ shall be omitted; .(2) for paragraph 7, the following paragraph shall be substituted, namely: ”7. The Director of Technical Education is requested to give publicity about the conditions mentioned in paragraph 5 above, so that the institutions can apply to Government for declaring them as minority Institutions.“ xx xx Jayanthi, Secretary to Government.” It is clear from the above referred Government Order that the guidelines prescribed by the Government for granting minority status in G.O.Ms.No.371, Education Science and Technology Department dated 5. 1995 are applicable only to Engineering colleges. Here, in our case, the petitioner has applied for permission to start an Arts and Science College i.e., Good Shephered Arts and Science College. In such a circumstance, in the light of the clarification made by the Government, the impugned proceedings of the second respondent cannot be sustained. 15. 1995 are applicable only to Engineering colleges. Here, in our case, the petitioner has applied for permission to start an Arts and Science College i.e., Good Shephered Arts and Science College. In such a circumstance, in the light of the clarification made by the Government, the impugned proceedings of the second respondent cannot be sustained. 15. In the light of what is stated above, I am in agreement with the contentions raised by the learned counsel for the petitioner and I hold that the direction to create an endowment for Rs.10 lakhs as pre-condition for considering the applicable of the petitioner society for the establishment of religious minority college in the name of Good Shephered Out Reach Mission Evangelical and Educational Trust, Erode is illegal and I further hold that the respondents are not entitled to make such a demand as a pre-condition for considering the application of the petitioner society. Accordingly, the impugned order is quashed and the writ petition is allowed. No costs. In the light of quashing the impugned order, the respondents are directed to consider the claim of the petitioner and pass appropriate orders within a period of eight weeks from the date of receipt of a copy of this order. Consequently W.M.P.No.29638 of 1997 is closed.