Rt. Rev. G. Devakadashyam Bishop v. The Secretary to Government Education Department & Others
2009-10-24
P.JYOTHIMANI
body2009
DigiLaw.ai
Judgment :- The writ petitioner, the Bishop of Kanyakumari Diocese, C.S.I. (Church of South India), has filed these writ petitions challenging the clause in the approval process for Diploma Institutions issued by the All India Council for Technical Education (AICTE), New Delhi, stipulating that the application for establishment of new technical institutions can be made by a registered Societies and trusts, so far as it relates to the petitioner institutions which are religious minority institutions having protection under the Constitution of India, and also the order passed by the Director of Technical Education, Chennai-25 dated 8. 2009 by which the said second respondent rejected the claim of the petitioner to start a new polytechnic college as per the application dated 6. 2009 on the basis that the Church of South India Trust Association has been incorporated under the Indian Companies Act, 1913, as a Limited Company on 29. 1947, but as per AICTE approval process, the applicant should be either a Registered Society or a Trust or Central/State Government institution or Government Aided institution. 2. It is stated that C.S.I. Trust Association was registered as a company under section 25 of the Companies Act. It is stated that the Church of South India has 22 dioceses one of which is Kanyakumari Diocese to which the petitioner is the Bishop. All the properties of CSI have been vested with the CSI Trust Association. The petitioner on behalf of Kanyakumari Diocese of CSI has applied for permission to start a polytechnic college in the name and style of Vethamonikam Memorial CSI Polytechnic College, Viricode, Marthandam in Kanyakumari District. 2(a). The institute has purchased 5.05 acres of land and constructed building in more than 25000 sq.ft. and established the college as per the norms and standards of the respondents including AICTE. The third respondent in W.P.No.16188 of 2009 is the Southern Regional Council of AICTE, empowered to grant recognition and issue letter of intent and letter of approval. When an application was made along with necessary fees to the first respondent who has to issue no objection certificate, the second respondent, the Director of Technical Education after processing the application, by order dated 8.
When an application was made along with necessary fees to the first respondent who has to issue no objection certificate, the second respondent, the Director of Technical Education after processing the application, by order dated 8. 2009 which is impugned in W.P.No.16287 of 2009, refused to process the application on the basis that the petitioner is neither a Society, nor a Trust and is a Company registered under section 25 of the Companies Act and therefore, quoting the approval process for diploma institutions issued by the AICTE, the 4th respondent in W.P.No.16188 of 2009, the said refusal order came to be passed. 2(b). In those circumstances, the petitioner has filed the writ petitions, one challenging the said clause in the approval process for diploma institutions and another challenging the order of the second respondent, the Director of Technical Education refusing to process the application on the ground that the petitioner is neither a Society, nor a Trust and is a Company registered under section 25 of the Indian Companies Act. 3. The main ground on which the writ petitions are filed is that compelling the petitioner under the norms prescribed by the AICTE, in respect of minority institutions that it must be a Society or a Trust is against law and it is opposed to the Constitution of India, since any citizen is entitled to start an educational institution and that is also the power given to the minority citizen belonging to minority community as per Article 30 of the Constitution of India and also the said norms are against the judgment of the Apex Court in TMA Pai Foundation case [ 2002 (8) SCC 481 ]. 4. Even though the learned counsel for the AICTE has attempted to raise a factual issue that the petitioner has filed the writ petitions in individual capacity as Rt.Rev.G.Devakadashyam, stating that he is the Bishop of Kanyakumari Diocese, and there is no material to show that the petitioner belongs to Christian Minority and therefore, the writ petitions are not maintainable, a reference to the impugned order passed by the Director of Technical Education, Chennai, which is impugned in W.P.No.16287 of 2009 shows that the processing authority has not raised such factual aspect questioning the minority status of the petitioner.
In fact, the reason assigned by the Director of Technical Education in the impugned order in the said writ petition is that the Church of South India Trust Association has been incorporated under the Indian Companies Act and the application itself has been filed for starting a polytechnic college in the name, Vethamonikam Memorial CSI Polytechnic College, Viricode, Marthandam in Kanyakumari District and there is absolutely no suspicion raised by the State about the minority status of the petitioner either as an individual or as an institution which belongs to CSI. It is therefore not necessary to refer to the said aspect of the contention raised by the learned counsel for the AICTE. 5. The reason given by the Director of Technical Education, Chennai in the impugned order dated 8. 2009 for refusing to process the application for starting the institution is as follows: "The application submitted for establishing a new Polytechnic College in the name and style of Vethamonikam Memorial CSI Polytechnic College, Viricode, Marthandam, Kanyakumari District was scrutinized by this office and it was found that the aspirant body, "The Church of South India Trust Association" has been incorporated under the Indian Companies Act 1913 (ACT VII of 1913) as a Limited Company on 29. 1947. As per the AICTE Approval Process for Diploma Institutions wherein the clause 2.2 states that the (a) Registered Societies and Trusts/Self-Financing Private Institutions (b) Central/State Government Institutions (c) Government Aided Institutions only can submit proposals for the establishment of New Technical Institutions for conducting Technical Programmes. In this regard the Southern Regional Office, AICTE, Chennai has also clarified that, the Company registered under the Companies Act or an individual cannot start a Technical Institution." 6. The clause in the approval process for diploma institutions by AICTE, New Delhi for the year 2007-08 which is impugned 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 financing Private Institutions (b) Central / State Government Institution/Government Aided Institutions." 7.
The clause in the approval process for diploma institutions by AICTE, New Delhi for the year 2007-08 which is impugned 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 financing Private Institutions (b) Central / State Government Institution/Government Aided Institutions." 7. Before adverting to the legal issue involved as submitted by the counsel for the respective parties, viz., Mr.V.Selvaraj, learned counsel for the petitioner, Mr.N.Muralikumaran, learned counsel appearing for AICTE and Ms.Dhakshayani Reddy, learned Government appearing for the State and the Director of Technical Education, it is relevant to reiterate that the constitutional guarantee in the form of fundamental rights which is captioned as Cultural and Educational Rights, has been conferred under Articles 29 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 the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same. (2) No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them. Art.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. [(1-A) In making any law providing for the compulsory acquisition of any property of an 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." While the right conferred under Article 29 of the Constitution of India is in respect of a section of citizens to have their own distinct script and culture which can be either linguistic or religious in nature, Article 30 confers the right of minorities based on religion or language to establish and administer educational institutions of their own. 8.
8. Law is well settled that the State can not impose any restriction on the rights of minorities to establish and administer educational institutions so long as such institutions are not aided by the State. However, the State can always, to a limited extent, impose regulations for the purpose of maintaining the excellence in education etc. It is equally settled that in cases of institutions which are recognised by the State and receiving aids or even in respect of minority institutions, for the purpose of recognition by the State Government, the State can impose restrictions regarding the qualification of teachers, pay of teachers, constituents of governing body, etc. It has also been held that to establish and administer an educational institution by minority is not to maladminister the institution, because even the minority status cannot be used as a camouflage to commit mal-administration. Even though the term minority used in Article 30 of the Constitution of India has not been defined anywhere in the Constitution, it has been an established judicial pronouncement that the term, minority means a non-dominant group, which has been explained by the Apex Court in TMA Pai Foundation case as a relative term and referred to represent the smaller of two members, sections or groups called, minority and such minority can be political minority, religious minority, linguistic minority, etc. 9. The crux of the issue involved in this case is that when Article 30 of the Constitution of India confers a fundamental right on minorities, whether such right should be denied to a single citizen of India who belongs to minority whether religious or linguistic in respect of establishment and administration of an educational institution, and such right should be given to a larger number of citizens of India belonging to that minority group; if that is so, whether such group should only be either a society registered under the Societies Registration Act or a Trust constituted by way of creation of Trust and not otherwise. These are the crucial issues which are raised in these writ petitions. 10. A reference to the impugned clause/order in these writ petitions including the stipulations made by the AICTE shows that whether an institution is a minority or majority, it cannot have a right to establish or administer an institution by a single individual and it must be by a Registered Society or by a Trust.
10. A reference to the impugned clause/order in these writ petitions including the stipulations made by the AICTE shows that whether an institution is a minority or majority, it cannot have a right to establish or administer an institution by a single individual and it must be by a Registered Society or by a Trust. The focus under the said requirement by AICTE in this case is in relation to religious minority belonging to Christian religion. The petitioner, if he is taken as an individual, is a citizen of India belonging to a minority religion viz., Christianity, and as a Bishop of Kanyakumari Diocese, C.S.I. Church which forms part of CSI Trust created under section 25 of the Indian Companies Act, the petitioner is a group of individuals belonging to the Christian minority. 11. The requirement of a Registered Society or a Trust to be eligible to establish and administer an educational institution came to be introduced by the Apex Court in the scheme framed in Unnikrishnan,J.P. and others v. State of A.P. [ (1993) 1 SCC 645 ], wherein a Five Judge Bench of the Supreme Court while dealing with various aspects of the Constitution of India, especially Article 21, held that the right to education is implicit under the said Article which flows from the right to life and personal liberty. While dealing with Articles 19(1)(g), 30 and 29 of the Constitution of India, with reference to the institutions which are required to be recognised by the State and the institutions which do not require such recognition, the Bench held in para-69 of the judgment that the right conferred under Article 30 is distinct from that of Article 19(1)(g) and both of them cannot be read together. The relevant portion is as follows: "69. It is not mere an establishment of educational institution that is urged by the petitioners, but to run the educational institution dependent on recognition by the State. There is absolutely no fundamental right to recognition in any citizen. The right to establishment and run the educational institution with States recognition arises only on the State permitting, pursuant to a policy decision or on the fulfilment of the conditions of the Statute. Therefore where it is dependent on the permission under the Statute or the exercise of an executive power, it cannot qualify to be a fundamental right.
The right to establishment and run the educational institution with States recognition arises only on the State permitting, pursuant to a policy decision or on the fulfilment of the conditions of the Statute. Therefore where it is dependent on the permission under the Statute or the exercise of an executive power, it cannot qualify to be a fundamental right. Then again, the State policy may dictate a different course." 12. It is relevant to point out that in Unnikrishnan case, the Apex Court has dealt with the admission in professional colleges. Holding that the right conferred under Article 30 on every citizen of the country is a positive right, the Supreme Court in the said judgment also in no uncertain terms held that the right to establish an educational institution does not carry with it the right to recognition or right to affiliation which is held to be essential for meaningful exercise of the right to establish an educational institution. In this regard, it was held as follows: "204. ...... The institution has to seek such recognition or affiliation from the appropriate agency. Grant of recognition and/or affiliation is not a matter of course nor is it a formality. Admission to the privileges of a University is a power to be exercised with great care, keeping in view the interest of the general public and the nation. It is a matter of substantial significance - the very life-blood of a private educational institution. Ordinarily speaking, no educational institution can run or survive unless it is recognised by the Government or the appropriate authority and/or is affiliated to one or the other Universities in the country. Unless it is recognised and/or affiliated as stated above, its certificates will be of no use. No one would join such educational institution. As a matter of fact, by virtue of the provisions of the U.G.C.Act, noticed hereinabove, no educational institution in this country except a University is entitled to award degrees. It is for this reason that all the private educational institutions seek recognition and/or affiliation with a view to enable them to send the students trained by them to appear at the examinations conducted by the Government/University. The idea is that if such students pass the said examination, the Government/University will award its degree/diploma/certificate to them.
It is for this reason that all the private educational institutions seek recognition and/or affiliation with a view to enable them to send the students trained by them to appear at the examinations conducted by the Government/University. The idea is that if such students pass the said examination, the Government/University will award its degree/diploma/certificate to them. The educational institutions follow the syllabus prescribed by the Government/University, have the same courses of study, follow the same method of teaching and training. They do not award their own degrees/qualifications. They prepare their students for University/Government to permit examinations, request the University/Government to permit them to appear at the examinations conducted by them and to award the appropriate degrees to them. Clearly and indubitably, the recognised/affiliated private educational institutions, supplement the function performed by the institutions of the State. ...." 13. Ultimately, the Apex Court, in order to eliminate discretion in the management in the matter of admission which is the root of several evils complained of like, capitation fee, etc., in the light of prohibition on capitation fee in four States viz. State of Karnataka under the Karnataka Educational Institutions (Prohibition of Capitation Fee) Act, 1984, State of Andhra 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 Nadu in Tamil Nadu Educational Institutions (Prohibition of Collection of Capitation Fee) Act, 1992 and also in the light of University Grants Commission Act, 1956, Medical Council Act, 1956 and AICTE Act, 1987, framed a Scheme by giving out a statutory shape virtually recommending that those rules given in the form of Scheme 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 scheme precisely is to give effect to the said legislative policy. It would be highly desirable if this scheme is given a statutory shape by incorporating it in the rules that may be framed under these enactments." 14.
While framing the Scheme, the Supreme Court observed as follows: "... Our attempt in evolving the following scheme precisely is to give effect to the said legislative policy. It would be highly desirable if this scheme is given a statutory shape by incorporating it in the rules that may be framed under these enactments." 14. It is, while framing the Scheme in para 206 and in para 210(i) which is as follows: "(1) A professional college shall be permitted to be established and/or administered only by a Society registered under the Societies Registration Act, 1860 (or the corresponding Act, if any, in force in a give State), or by a Public Trust, religious or charitable, registered under the Trusts Act, Wakfs Act (or the corresponding legislation, if any, e.g., Tamil Nadu Religious and Charitable Endowments Act and A.P. Religious and Charitable Endowments Act). No individual, firm, company or other body of individuals, by whatever appellation called “except those mentioned above” will be permitted to establish and/or administer a professional college. All the existing professional colleges which do not conform to the above norm shall be directed to take appropriate steps to comply with the same within a period of six months from today. In default whereof, recognition/affiliation accorded shall stand withdrawn. [In this connection reference may be had to Rule 86(2) of Maharastra Grant-in-aid Code (referred to in State of Maharashtra v. Lok Shikshan Sanstha (1971) 2 SCC 410 ) which provided that schools which are not registered under the Societies Registration Act, shall not be eligible for grant, Grant of recognition and affiliation is of no less significance.]" the Supreme Court in the matter of starting professional courses, has held that only a society registered under the Societies Registration Act, 1860 or a public trust which is religious or charitable under the Trust Act or Wakf Act should be permitted to establish and administer imposing a clear bar to the effect that no individual, firm or company or other body should be permitted to establish and administer a professional college. 15. That apart, the Supreme Court has given various other guidelines also in the Scheme.
15. That apart, the Supreme Court has given various other guidelines also in the Scheme. It is by virtue of the said clause in the Scheme framed by the Honble Supreme Court, the professional educational authorities in India including various States have been insisting the first requirement that only a Registered Society or a Trust can start an educational institution, whether it is a minority or non-minority institution. 16. All India Council for Technical Education Act, 1987 has not prescribed the requirement that either a Society or a Trust can start an educational institution, as a condition for approval by AICTE. However, in the All India Council for Technical Education (Grant of Approval for starting new Technical Institutions, Introduction of Courses or Programmes and Approval of intake capacity of seats for courses or programmes) Regulations, 1994 which came into effect from 14. 1997 and framed by AICTE, Rule 4 deals with the requirements to grant approval which is as follows: "4. Requirement of grant of approval.- (1) After the commencement of these regulations.- (a) no new technical institution or University Technical Department, shall be started; or (b) no course or programme shall be introduced by any technical institutions, University including a deemed University or University Department or College; or (c) no technical institutions, Universities or deemed Universities or University Departments or Colleges shall continue in admit students for Degree or Diploma course or programmes; (d) no approved intake capacity of seats shall be increased or varied; except with the approval of 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 aided institutions, deemed Universities and University Departments or Colleges; (ii) registered societies/trusts." The said rule stipulates that the application shall be made by a registered Society or a Trust. 17. Again, in the approval process of AICTE to start recognised courses, which came into effect from the academic year 2003-04, while explaining about the documents to be verified by the Regional Office of AICTE, the requirement of documents regarding registration as Society including the list of members and previous records of Society/Trust is also being insisted. 18. In respect of medical colleges, the Indian Medical Council Act, 1956, section 10A which was inserted by Act 31/93 with effect from 27.
18. In respect of medical colleges, the Indian Medical Council Act, 1956, section 10A which was inserted by Act 31/93 with effect from 27. 1982 contemplates that previous permission must be obtained from the Central Government for establishment of a new medical college, a new course of study, etc. and that the proposal must be given in the form of a Scheme. 19. While the Establishment of New Medical Colleges, Opening of Higher Course of Study and Increase of Admission Capacity in Medical Colleges Regulations, 1993 framed by the Medical Council of India, explains about the Scheme to be presented to the Central Government for establishment of a new medical college, in the Instructions the following four are stated as eligible criteria: "1. Universities and State Governments/Union Territories. 2. Autonomous Bodies promoted by Central and State Governments. 3. Societies registered under Societies Registration Act, 1860 or corresponding Acts in States. 4. Public Trusts religious or chrairtable registered under Indian Trust Act, 1882, Wakfs Act, etc." 20. It is the case of the AICTE as it is seen in the common counter affidavit filed by the Regional Director for All India Council for Technical Education that the restrictions or eligibility criteria to the effect that only a Society or a Trust should establish or administer an educational institution are reasonable, as held by the Supreme Court in Unnikrishnan case, as elicited above. However, it is the further case of AICTE that for having Trust or Society, there should be a group of individuals, which is a reasonable restriction and it does not violate the right conferred under Article 30(1) of the Constitution of India. 21. In TMA Pai Foundation and Others v. State of Karnataka and others [ (2002) 8 SCC 481 ], an eleven Judge Bench of the Supreme Court decided about the minority status under Article 30(1) and Article 29 (2) the Constitution of India. It is significant to note that the said judgment which predominantly relates to the minority rights, has dealt with the law relating to all educational institutions whether private, aided or unaided establishment by minority or non-minority, without restricting to professional colleges, which is evident from the very beginning of the judgment in para-2, which is as follows: "1. Is there a fundamental right to set up educational institutions and if so, under which provision? 2.
Is there a fundamental right to set up educational institutions and if so, under which provision? 2. Does Unni Krishnan case, (1993) 4 SCC 111 require reconsideration. 3. In case of private institutions (unaided and aided), can there be government regulations and, if so,to what extent? 4. In order to determine the existence of a religious or linguistic minority in relation to Article 30, what is to be the unit, the State or the country as a whole? 5. To what extent can the rights of aided private minority institutions to administer be regulated?" 22. Again, while dealing with the implication of the Scheme framed in Unnikrishnan case and the contention on behalf of the institutions that the conditions imposed in the Scheme framed in Unnikrishnan case for the grant of affiliation and recognition are restrictive of the right to establish and administer, the Apex Court held that the Scheme framed in Unnikrishnan case enables the State Governments to legislate that the private institutions are same as Government institutions and it curtails the institutional autonomy. On the other hand, the Supreme Court has also recognised that the Unnikrishnan case created certain problems. The relevant portions of the judgment of the Supreme Court are as follows: "36. The private unaided educational institutions impart education, and that cannot be the reason to take away their choice in matters, inter alia, of selection of students and fixation of fees. Affiliation and recognition has to be available to every institution that fulfils the conditions for grant of such affiliation and recognition. The private institutions are right in submitting that it is not open to the Court to insist that statutory authorities should impose the terms of the scheme as a condition for grant of affiliation or recognition; this completely destroys the institutional autonomy and the very objective of establishment of the institution. 37. Unni Krishnan judgment has created certain problems, and raised thorny issues. In its anxiety to check the commercialisation of education, a scheme of "free" and "payment" seats was evolved on the assumption that the economic capacity of the first 50% of admitted students would be greater than the remaining 50%, whereas the converse has proved to be reality. In this scheme, the "payment seat" student would not only pay for his own seat, but also finance the cost of a "free seat" classmate.
In this scheme, the "payment seat" student would not only pay for his own seat, but also finance the cost of a "free seat" classmate. When one considers the Constitution Benchs earlier statement that higher education is not a fundamental right, it seems reasonable to compel a citizen to pay for the education of another, more so in the unrealistic world of competitive examinations which assess the merit for the purpose of admission solely on the basis of the marks obtained, where the urban students always have an edge over the rural students. In practice, it has been the case of the marginally less merited rural or poor student bearing the burden of a rich and well-exposed urban student. 38. The scheme in Unni Krishnan case has the effect of nationalising education in respect of important features viz., the right of a private unaided institution to give admission and to fix the fee. By framing this scheme, which has led to the State Governments legislating in conformity with the scheme, the private institutions are indistinguishable from the government institutions; curtailing all the essential features of the right of administration of a private unaided educational institution can neither be called fair nor reasonable. Even in the decision in Unni Krishnan case it has been observed by Jeevan Reddy,J. At p.749, para 194, as follows: "194. The hard reality that emerges is that private educational institutions are a necessity in the present-day context. It is not possible to do without them because the governments are in no position to meet the demand “particularly in the sector of medical and technical education which call for substantial outlays. While education is one of the most important functions of the Indian State it has no monopoly therein. Private educational institutions” including minority educational institutions “too have a role to play." 39. That private educational institutions are a necessity becomes evident from the fact that the number of government-maintained professional colleges has more or less remained stationary, while more private institutions have been established. For example, in the State of Karnataka there are 19 medical colleges out of which there are only 4 government-maintained medical colleges. Similarly, out of 14 dental colleges in Karnataka, only one has been established by the Government, while in the same State, out of 51 engineering colleges, only 12 have been established by the Government.
For example, in the State of Karnataka there are 19 medical colleges out of which there are only 4 government-maintained medical colleges. Similarly, out of 14 dental colleges in Karnataka, only one has been established by the Government, while in the same State, out of 51 engineering colleges, only 12 have been established by the Government. The aforesaid figures clearly indicate the important role played by private unaided educational institutions, both minority and non-minority, which cater to the needs of students seeking professional education." 23. The Supreme Court has further considered that the surrendering of total process of selection to the State as laid down in the scheme in Unnikrishnan case is unreasonable. It has also considered the judgment of the Supreme Court in St.John case [ (1992) 1 SCC 558 ] wherein while recognising the right of minority aided institution to have a rational admission procedure of its own, it was ultimately held as under: "45. In view of the discussion hereinabove, we hold that the decision in Unni Krishnan case insofar as it framed the scheme relating to the grant of admission and the fixing of the fee, was not correct, and to that extent, the said decision and the consequent directions given to UGC, AICTE, the Medical Council of India, the Central and State Governments etc. are overruled." 24. While considering the right of private unaided colleges in the context of Articles 19 and 26(a) of the Constitution of India, it was held that the Government can prescribe qualifications necessary for admission and the private unaided institutions 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 any event, the private institutions will have the right to constitute its own governing body, for which qualifications may be prescribed by the State or the University concerned. In that regard, it was held that any nomination by the State to such governing body will be an inhibiting factor upon the occupation of establishing and administering educational institutions. That is also the view regarding interference in the nomination of teachers by the committee or through the Service Commission as an unreasonable inroad. Ultimately, in respect of unaided non-minority educational institutions, the Supreme Court held as under: "54.
That is also the view regarding interference in the nomination of teachers by the committee or through the Service Commission as an unreasonable inroad. Ultimately, in respect of unaided non-minority educational institutions, the Supreme Court held as under: "54. The right to establish an educational institution can be regulated, but such regulatory measures must, in general, be to ensure the maintenance of proper academic standards, atmosphere and infrastructure (including qualified staff) and the prevention of maladministration by those in charge of management. The fixing of a rigid fee structure, dictating the formation and composition of a governing body, compulsory nomination of teachers and staff for appointment or nominating students for admission would be unacceptable restrictions." 25. While dealing with the right to establish an educational institution whether it is an individual or religious denomination or linguistic minority if financially aid is not sought, it is comparable to a private unaided institution as in such cases either the State or the University concerned can lay down conditions to maintain the excellence of education by indicating quality of teachers, by prescribing minimum qualifications, course of study and curricula. The Supreme Court has distinguished a private unaided institution from the Government aided institution as follows: "55. ....... But the essence of a private educational institution is the autonomy that the institution must have in its management and administration. There, necessarily, has to be a difference in the administration of private unaided institution and the government-aided institutions. Whereas in the latter case, the Government will have greater say in the administration, including admission and fixing of fees, in the case of private unaided institutions, maximum autonomy in the day-to-day administration has to be with the private unaided institutions. ....." 26. The Supreme Court in various paragraphs, in detail, discussed about the maximum autonomy of private schools, unaided private colleges apart from maintenance of excellence of education, quality of faculty and other facilities. The Supreme Court also discussed about the rationality of fixation of fees, etc. While dealing with the private aided professional institutions, it was held that it would be permissible for the authority giving aid to prescribe rules and regulations including the stipulation of conditions on the basis of which admission will be granted to different colleges by merit coupled with the reservation policy of the State.
While dealing with the private aided professional institutions, it was held that it would be permissible for the authority giving aid to prescribe rules and regulations including the stipulation of conditions on the basis of which admission will be granted to different colleges by merit coupled with the reservation policy of the State. Therefore, in respect of professional educational institutions once aid is granted, the Government can put fetters on the freedom in the matter of administration and management of institutions. 27. While deciding about the religious and linguistic minority under Article 30 of the Constitution of India, in respect of identifying the unit whether State or the country, it was held that if the State was regarded as a unit for linguistic minority, the religious minority was also held to be on the same footing and the State should be taken as a unit. The relevant portion of the judgment is as under: "75. Article 30(1) deals with religious minorities and linguistic minorities. The opening words of Article 30(1) make it clear that religious and linguistic minorities have been put on a par, insofar as that article is concerned. Therefore, whatever the unit “whether a State or the whole of India” for determining a linguistic minority, it would be the same in relation to a religious minority. India is divided into different linguistic States. The States have been carved out on the basis of the language of the majority of persons of that region. For example, Andhra Pradesh was established on the basis of the language of that region viz. Telugu. "Linguistic minority" can, therefore, logically only be in relation to a particular State. If the determination of "linguistic minority" for the purpose of Article 30 is to be in relation to the whole of India, then within the State of Andhra Pradesh, Telugu speakers will have to be regarded as a "linguistic minority". This will clearly be contrary to the concept of linguistic States." "76. If, therefore, the State has to be regarded as the unit for determining "linguistic minority" vis-a-vis Article 30, then with "religious minority" being on the same footing, it is the State in relation to which the majority or minority status will have to be determined." 28.
This will clearly be contrary to the concept of linguistic States." "76. If, therefore, the State has to be regarded as the unit for determining "linguistic minority" vis-a-vis Article 30, then with "religious minority" being on the same footing, it is the State in relation to which the majority or minority status will have to be determined." 28. In respect of aided private minority institutions, the Supreme Court has also discussed about Article 25(1) and (2) of the Constitution of India wherein the State can make any law restricting or regulating the political or economical or secular activity which may be related to religious practice as distinguished between Articles 29 and 30 holding that Article 29 relates to language, script or culture and not religion. While distinguishing Articles 29 and 30 of the Constitution, the Supreme Court examined various case-laws on the subject particularly, State of Madras v. Champakam Dorairajan ( AIR 1951 SC 226 ), Kerala Education Bill,1957, In Re. ( AIR 1958 SC 956 ), Rev.Sidhajbhai Sabhai vs. State of Bombay ( AIR 1963 SC 540 ), D.A.V.College vs. 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 SCC 691 ], wherein it was held that providing remedy against unfair dismissal would not infringe Article 30 of the Constitution. In Frank Anthony Public School Employees Assn. vs. Union of India [ (1986) 4 SCC 707 ], it was held that the regulation providing for prior approval for dismissal was valid and not violative of Article 30. In St.Stephens College vs. University of Delhi [ (1992) 1 SCC 558 ], which is also relating to minority institutions such as admission of students wherein the Supreme Court has held as follows: "107. The aforesaid decision does indicate that the right under Article 30(1) is not so absolute as to prevent the Government from making any regulation whatsoever. As already noted hereinabove, in Sidhajbhai Sabhai case it was laid down that regulations made in the true interests of efficiency of instruction, discipline, health, sanitation, morality and public order could be imposed. If this is so, it is difficult to appreciate how the Government can be prevented from framing regulations that are in the national interest, as it seems to be indicated in the passage quoted hereinabove.
If this is so, it is difficult to appreciate how the Government can be prevented from framing regulations that are in the national interest, as it seems to be indicated in the passage quoted hereinabove. Any regulation framed in the national interest must necessarily apply to all educational institutions, whether run by the majority or the minority. Such a limitation must necessarily be read into Article 30. The right under Article 30(1) cannot be such as to override the national interest or to prevent the Government from framing regulations in that behalf. It is, of course, true that government regulations cannot destroy the minority character of the institution or make the right to establish and administer a mere illusion; but the right under Article 30 is not so absolute as to be above the law. It will further be seen that in Sidhajbhai Sabhai case no reference was made to Article 29(2) of the Constitution. This decision, therefore, cannot be an authority for the proposition canvassed before us." 29. After referring to the above case-laws, the Supreme Court has ultimately held in T.M.A. Pai Foundation case that the right conferred under Article 30(1) is not absolute and there can be regulation regarding welfare of students, teachers, etc., even though Article 30(1) does not contain the regulatory clause as found in Article 19(1) of the Constitution. By holding so, while dealing with the right of minority whether linguistic or religious, to establish and administer educational institutions of its choice, it was held that the intention is to preserve secularism of the country with the principle of equality. At the same time, it was held that no law can be framed that will discriminate against such minority with regard to establishing and maintaining educational institutions. The relevant portion of the judgment is as follows: "137. It follows from the aforesaid decisions that even though the words of Article 30(1) are unqualified, this Court has held that at least certain other laws of the land pertaining to health, morality and standards of education apply. The right under Article 30(1) has, therefore, not been held to be absolute or above other provisions of the law, and we reiterate the same.
The right under Article 30(1) has, therefore, not been held to be absolute or above other provisions of the law, and we reiterate the same. By the same analogy, there is no reason why regulations or conditions concerning, generally, the welfare of students and teachers should not be made applicable in order to provide a proper academic atmosphere, as such provisions do not in any way interfere with the right of administration or management under Article 30(1)." "138. As we look at it, Article 30(1) is a sort of guarantee or assurance to the linguistic and religious minority institutions of their right to establish and administer educational institutions of their choice. Secularism and equality being two of the basic features of the Constitution, Article 30(1) ensures protection to the linguistic and religious minorities, thereby preserving the secularism of the country. Furthermore, the principles of equality must necessarily apply to the enjoyment of such rights. No law can be framed that will discriminate against such minorities with regard to the establishment and administration of educational institution vis-a-vis other educational institutions. Any law or rule or regulation that would put the educational institutions run by the minorities at a disadvantage when compared to the institutions run by the others will have to be struck down. At the same time, there also cannot be any reverse discrimination. It was observed in St.Xaviers College case at SCR p.192 that: (SCC p.743, para 9) "The whole object of conferring the right on minorities under Article 30 is to ensure that there will be equality between the majority and the minority. If the minorities do not have such special protection they will be denied equality." In other words, the essence of Article 30(1) is to ensure equal treatment between the majority and the minority institutions. No one type or category of institution should be disfavoured or, for that matter, receive more favourable treatment than another. Laws of the land, including rules and regulations, must apply equally to the majority institutions as well as to the minority institutions. The minority institutions must be allowed to do what the non-minority institutions are permitted to do." (Emphasis supplied) 30. In T.M.A.Pai Foundation Case the Supreme Court has predominantly dealt with the right of minorities in respect of admission of students, the appointment of teachers, etc.
The minority institutions must be allowed to do what the non-minority institutions are permitted to do." (Emphasis supplied) 30. In T.M.A.Pai Foundation Case the Supreme Court has predominantly dealt with the right of minorities in respect of admission of students, the appointment of teachers, etc. The right of minorities to establish and administer the educational institutions is explained in paragraph 138 wherein the constitutional goal regarding the minority has been reiterated to the effect that the regulation which can be imposed in respect of minority institutions for maintaining academic excellence would not put such minorities in a disadvantageous position, when compared to the institutions run by others. Ultimately, the Supreme Court has framed 11 questions and answered the same. One such question is question No.9 which is as follows: "Q9. Whether the decisions of this Court in Unni Krishnan,J.P. vs. State of A.P. (except where it holds that primary education is a fundamental right) and the scheme framed thereunder require reconsideration/modification and if yes, what? A. The scheme framed by this Court in Unni Krishnan case and the direction to impose the same, except where it holds that primary education is a fundamental right, is unconstitutional. However, the principle that there should not be capitation fee or profiteering is correct. Reasonable surplus to meet cost of expansion and argumentation of facilities does not, however, amount to profiteering." 31. The other relevant questions are question Nos.10 and 11 which are as follows: "Q.10. Whether the non-minorities have the right to establish and administer educational institution under Articles 21 and 29(1) read with Articles 14 and 15(1), in the same manner and to the same extent as minority institutions? And Q.11. What is the meaning of the expressions "education" and "educational institutions" in various provisions of the Constitution? Is the right to establish and administer educational institutions guaranteed under the Constitution? A. The expression "education" in the articles of the Constitution means and includes education at all levels from the primary school level up to the postgraduate level. It includes professional education. The expression "educational institutions" means institutions that impart education, where "education" is as understood hereinabove. The right to establish and administer educational institutions is guaranteed under the Constitution to all citizens under Articles 19(1)(g) and 26, and to minorities specifically under Article 30.
It includes professional education. The expression "educational institutions" means institutions that impart education, where "education" is as understood hereinabove. The right to establish and administer educational institutions is guaranteed under the Constitution to all citizens under Articles 19(1)(g) and 26, and to minorities specifically under Article 30. All citizens have a right to establish and administer educational institutions under Articles 19(1)(g) and 26, but this right is subject to the provisions of Articles 19(6) and 26(a). However, minority institutions will have a right to admit students belonging to the minority group, in the manner as discussed in this judgment." 32. V.N.Khare,J. concurring with the majority, has observed with regard to the admission in minority institutions of students of minority as well as other communities, as follows: "230. Article 337 of the Constitution provides that grants or government aid has to be given to the Anglo-Indian institution provided they admit 40% of members from other community. Taking the clue from Article 337 and the spirit behind Article 30(1) it appears appropriate that minority educational institutions be given preferential rights in the matter of admission of children of their community in their own institutions while admitting students of non-minorities which, advisedly, may be up to 50% based on inter se merits of such students. However, it would be subject to assessment of the actual requirement of minorities, the types of the institutions and the courses of education for which admission is being sought for and other relevant factors." Therefore, irrespective of the questions raised by the Eleven Judge Bench of the Supreme Court and the answers issued, the overall reading of the entire judgment shows that while the scheme framed in Unnikrishnan case has been held as unconstitutional which was of course predominantly relating to the administration of educational institutions of minorities as well as non-minorities, the right of minorities under Article 30(1) of the Constitution of India to establish educational institutions as guaranteed under the Constitution remains in tact except of course, to the extent of regulatory powers of the Government as well as the University concerned etc. which generally relate to the maintenance of academic standards, welfare of the students and teachers to maintain proper academic atmosphere pertaining to the administrative aspect.
which generally relate to the maintenance of academic standards, welfare of the students and teachers to maintain proper academic atmosphere pertaining to the administrative aspect. The judgment has also reiterated the established law that like all citizens who have the right to establish and administer educational institutions under Article 19(1)(g) and Article 26 of the Constitution of India, such right is available to the minorities under Article 30(1) of the Constitution. However, the right to admit students belonging to minority group was subject to the above mentioned observations made by the Supreme Court. 33. Mr.Muralikumaran, learned counsel appearing for AICTE has relied upon the subsequent judgment of Five Judge Bench of the Supreme Court in Islamic Academy of Education vs. State of Karnataka ( AIR 2003 SC 3724 ) to contend that the questions and answers given in T.M.A.Pai Foundation case cannot be termed as ratio decidendi and therefore, according to him, the answers given by the Eleven Judge Bench of the Supreme Court in T.M.A.Pai Foundation case holding that the scheme framed in Unnikrishnan case is unconstitutional, in so far as it relates to the stipulation made to the effect that to establish educational institutions there must be a Society or a Trust cannot be said to be applicable and therefore in that regard the Scheme of the judgment in Unni Krishnans 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 of the Supreme Court in Islamic Academy of Education case stated supra. Their Lordships in the opening paragraph itself have made out their intention as follows: "2. Most of the petitioners/applicants before us are unaided professional educational institutions (both minority and non-minority). On behalf of the petitioners/applicants it was submitted that the answers given to the questions, as set out at the end of the majority Judgment, lay down the true ratio of the Judgment. It was submitted that any observation made in the body of the judgment had to be read in the context of the answers given. We are unable to accept this submission. The answers to the questions, in the majority Judgment in Pais case, are merely a brief summation of the ratio laid down in the Judgment.
It was submitted that any observation made in the body of the judgment had to be read in the context of the answers given. We are unable to accept this submission. The answers to the questions, in the majority Judgment in Pais case, are merely a brief summation of the ratio laid down in the Judgment. The ratio decidendi of a Judgment has to be found out only on reading the entire judgment. In fact, the ratio of the judgment is what is set out in the judgment itself. The answer to the question would necessarily have to be read in the context of what is set out in the Judgment and not in isolation. In case of any doubt as regards any observations, reasons and principles, the other part of the Judgment has to be looked into. By reading a line here and there from the Judgment, one cannot find out of the entire ratio decidendi of the judgment. We, therefore, while giving our clarifications, are deposed to look into other parts of the Judgment other than those portions which may be relied upon." 35. The observation of the Supreme Court in Islamic Academy case is not as if the above said eleven questions and answers are directed to be rejected, but the answers were held to be the brief summation of the ratio laid down in the judgment and one has to go through the entire judgment and therefore, it is not correct to construe the said observation of the Supreme Court that the Supreme Court has totally brushed aside the questions and answers given by the Eleven Judge Bench in T.M.A.Pai Foundation case. 36. In a significant explanation to the judgment in T.M.A.Pai Foundation case particularly in respect of paragraphs 138 and 139, the Supreme Court has made it clear that the non-minority educational institutions do not have protection of Article 30. The relevant portion of the judgment is as follows: "8. ..... Undoubtedly at first blush it does appear that these paragraphs equate both types of educational institutions. However on a careful reading of these paragraphs it is evident that the essence of what has been laid down is that the minority educational institutions have a guarantee or assurance to establish and administer educational institutions of their choice.
..... Undoubtedly at first blush it does appear that these paragraphs equate both types of educational institutions. However on a careful reading of these paragraphs it is evident that the essence of what has been laid down is that the minority educational institutions have a guarantee or assurance to establish and administer educational institutions of their choice. These paragraphs merely provide that laws, rules and regulations cannot be such that they favour majority institutions over minority institutions. We do not read these paragraphs to mean that non minority educational institutions would have the same rights as those conferred on minority educational institutions by Article 30 of the Constitution of India. Non minority educational institutions do not have the protection of Article 30. Thus, in certain matters they cannot and do not stand on similar footing as minority educational institutions. Even though the principle behind Article 30 is to ensure that the minorities are protected and are given an equal treatment yet the special right given under Article 30 does give them certain advantages. Just to take a few examples, the Government may decide the nationalise education. In that case it may be enacted that private educational institutions will not be permitted. Non minority educational institutions may become bound by such an enactment. However, the right given under Article 30 to minorities cannot be done away with and the minorities will still have a fundamental right to establish and administer educational institutions of their choice. Similarly even though the government may have a right to take over management of a non minority educational institution the management of a minority educational institution cannot be taken over because of the protection given under Article 30. Of course we must not be understood to mean that even in national interest a minority institute cannot be closed down. Further minority educational institutions have preferential right to admit students of their own community/language. No such rights exist so far as non minority educational institutions are concerned." (Emphasis supplied) 37.
Of course we must not be understood to mean that even in national interest a minority institute cannot be closed down. Further minority educational institutions have preferential right to admit students of their own community/language. No such rights exist so far as non minority educational institutions are concerned." (Emphasis supplied) 37. When a question arose as to whether there has been any discrepancy between T.M.A.Pai Foundation case and Islamic Academy case, the Seven Judge Bench of the Supreme Court in P.A.Inamdar vs. State of Maharastra ( AIR 2005 SC 3226 ) while holding the constitutional propriety of binding precedents of the Eleven Judge Bench judgment in T.M.A.Pai Foundation case, has held that in cases where any clarification given in Islamic Academy case runs counter to T.M.A.Pai Foundation case, the same could be discussed. The relevant paragraph of the judgment is as follows: "20. Before we embark upon dealing with the issues posed before us for resolution, we would like to make a few preliminary observations as a preface to our judgment inasmuch as that would outline the scope of the controversy with which we are actually dealing here. At the very outset, we may state that our task is not to pronounce our own independent opinion on the several issues which arose for consideration in Pai Foundation. Even if we are inclined to disagree with any of the findings amounting to declaration of law by the majority in Pai Foundation, we cannot; that being a pronouncement by 11 Judge Bench, we are bound by it. We cannot express a dissent or disagreement howsoever we may be inclined to do so on any of the issues. The real task before us is to cull out the ratio decidendi of Pai Foundation and to examine if the explanation or clarification given in Islamic Academy runs counter to Pai Foundation and if so, to what extent. If we find anything said or held in Islamic Academy in conflict with Pai Foundation, we shall say so as being a departure from the law laid down by Pai Foundation and on the principle of binding efficacy of precedents, overrule to that extent the opinion of the Constitution Bench in Islamic Academy." (Emphasis supplied) 38.
If we find anything said or held in Islamic Academy in conflict with Pai Foundation, we shall say so as being a departure from the law laid down by Pai Foundation and on the principle of binding efficacy of precedents, overrule to that extent the opinion of the Constitution Bench in Islamic Academy." (Emphasis supplied) 38. While explaining the term “minority” which term has not been admittedly defined anywhere in the Constitution of India, it was held that the status of linguistic minority is determinable only by reference to demography State and not by taking the total population of the country as a whole. It was held as follows: "98. The term minority is not defined in the Constitution. Chief Justice Kirpal, speaking for the majority in Pai Foundation, took clue from the provisions of the State Reorganization Act and held that in view of India having been divided into different linguistic States, carved out on the basis of the language of the majority of persons of that region, it is the State, and not the whole of India, that shall have to be taken as the unit for determining linguistic minority viz-a-viz Article 30. Insmuch as Article 30(1) places on par religions and languages, he held that the minority status, whether by reference to language or by reference to religion, shall have to be determined by treating the State as unit. The principle would remain the same whether it is a Central legislation or a State legislation dealing with linguistic or religious minority. Khare,J. (as His Lordship then was), Quadri,J. and Variava & Bhan,JJ. in their separate concurring opinions agreed with Kirpal, CJ. According to Khare,J., take the population of any State as a unit, find out its demography and calculate if the persons speaking a particular language or following a particular religion are less than 50% of the population, then give them the status of linguistic or religious minority. The population of the entire country is irrelevant for the 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, she refused to take the State as a unit for the purpose of determining minority status as, in her opinion, the question of minority status must be determined with reference to the country as a whole.
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, she refused to take the State as a unit for the purpose of determining minority status as, in her opinion, the question of minority status must be determined with reference to the country as a whole. She assigned reasons for the purpose. Needless to say, her opinion is a lone voice. Thus, with the dictum of Pai Foundation, it cannot be doubted that minority, whether linguistic or religious, is determinable only by reference to the demography of a State and not by taking into consideration the population of the country as a whole." 39. Regarding establishment of educational institutions, it was held that in respect of granting recognition to a minority institution, there are two overriding instructions in respect of minority viz., (i) the recognition is not denied solely on the ground of educational institutions belonging to minorities and (ii) the regulation is neither aimed at, nor the effect of depriving of its minority status. The relevant portion of the judgment is as follows: "106. To establish an educational institution is a Fundamental Right. Several educational institutions have come up. In Kerala Education Bill, minority educational institutions came to be classified into three categories, namely, (i) those which do not seek either aid or recognition from the State; (ii) those which want aid; and (iii) those which want only recognition but not aid. It was held that the first category protected by Article 30(1) can "exercise that right to their hearts content" unhampered by restrictions. The second category is most significant. Most of the educational institutions would fall in that category as no educational institution can, in modern times, afford to subsist and efficiently function without some State aid. So is with the third category. An educational institution may survive without aid but would still stand in need of recognition because in the absence of recognition, education imparted therein may not really serve the purpose as for want of recognition the students passing out from such educational institutions may not be entitled to admission in other educational institutions for higher studies and may also not be eligible for securing jobs.
Once an educational institution is granted aid or aspires for recognition, the State may grant aid or recognition accompanied by certain restrictions or conditions which must be followed as essential to the grant of such aid or recognition. This Court clarified in Kerala Education Bill that the right to establish and administer educational institutions conferred by Article 30(1) does not include the right to maladminister, and that is very obvious. Merely because an educational institution belongs to minority it cannot ask for aid or recognition though running in unhealthy surroundings, without any competent teachers and which does not maintain even a fair standard of teaching or which teaches matters subversive to the welfare of the scholars. Therefore, the State may prescribe reasonable regulations to ensure the excellence of the educational institutions to be granted aid or to be recognised. To wit, it is open to the State to lay down conditions for recognition such as, an institution must have a particular amount of funds or properties or number of students or standard of education and so on. The dividing line is that in the name of laying down conditions for aid or recognition the State cannot directly or indirectly defeat the very protection conferred by Article 30(1) on the minority to establish and administer educational institutions. Dealing with the third category of institutions, which seek only recognition but not aid, their Lordships held that the right to establish and administer educational institutions of their choice must mean the right to establish real institutions which will effectively serve the needs of the community and scholars who resort to these educational institutions. The dividing line between how far the regulation would remain within the constitutional limits and when the regulations would cross the limits and be vulnerable is fine yet perceptible and has been demonstrated in several judicial pronouncements which can be cited as illustrations. They have been dealt with meticulous precision coupled with brevity by S.B.Sinha,J. in his opinion in Islamic Academy. The considerations for granting recognition to a minority educational institution and casting accompanying regulation would be similar as applicable to a non-minority institution subject to two overriding considerations:(i) the recognition is not denied solely on the ground of the educational institution being one belonging to minority, and (ii) the regulation is neither aimed at nor has the effect of depriving the institution of its minority status." 40.
While dealing with the minority institutions in admitting students of minority communities as well as non-minority communities the Supreme Court held as follows: "129. Our answer to the first question is that neither the policy of reservation can be enforced by the State nor any quota or percentage of admissions can be carved out to be appropriated by the State in a minority or non-minority unaided educational institution. 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 an extent that their minority educational institution status is lost. If they do so, they lose the protection of Article 30(1)." 41. The Supreme Court has also explained about the fee structure and regulations therefor in the context of Article 30(1) of the Constitution holding that every institution is free to decide its own fee structure subject to the limitation that there can be no profiteering and no capitation fee can be charged directly or indirectly or in any form. Therefore, in the said latest judgment also, the Supreme Court has discussed about the right of minorities, of course with other educational institutions to administer taking into consideration the main idea of maintaining excellence in the standards, prescribing fee structure, imposing restrictions regarding qualifications for teaching staff, etc. and not relating the manner of establishing an educational institution by minorities which was in fact touched upon by the Supreme Court in T.M.A.Pai Foundation Case in para-138 cited supra, holding that the regulations which may place a minority institution in disadvantageous position will have to be struck down. 42.
and not relating the manner of establishing an educational institution by minorities which was in fact touched upon by the Supreme Court in T.M.A.Pai Foundation Case in para-138 cited supra, holding that the regulations which may place a minority institution in disadvantageous position will have to be struck down. 42. Even though the above said judgments of the Hon’ble Supreme Court have been dealing with the administration and maintenance of educational institutions, an overall reading of the judgments make it very clear that the subsequent judgment in Islamic Academy case as well as P.A.Inamdar case have only attempted to clarify and explain a few instances where certain questions were posed relating to the judgment of Eleven Judge Bench of the Supreme Court in T.M.A.Pai Foundation case and held by following the principles of judicial precedents that the Eleven Judge Bench judgment of the Supreme Court is binding and the clarification in the subsequent judgments are relating to administration and maintenance of standards of education by minority 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.Pai Foundation case that the scheme framed in Unnikrishnan case is unconstitutional has not been touched upon either by way of clarification or otherwise. In such circumstances, it has to be understood that the scheme framed in Unnikrishnan case has to go except of course relating to exceptions regarding maintenance of standards, etc. Even otherwise, as per the said judgment, the Scheme is applicable only for professional courses. Therefore, the first part of the scheme which makes it mandatory that professional colleges should be established only by a registered Society or by a Trust registered under the Trust Act and not by any firm or any individual or company or any other body of individuals and the requirement relating to the establishment and administration of minority institutions under Article 30 goes. 44. As laid down in the above said judgments, just as the right to any citizen is available to establish and administer educational institutions under Article 19(1)(g) of the Constitution of India, the same right is available to a minority who must essentially be a citizen as per part II of the Constitution of India.
44. As laid down in the above said judgments, just as the right to any citizen is available to establish and administer educational institutions under Article 19(1)(g) of the Constitution of India, the same right is available to a minority who must essentially be a citizen as per part II of the Constitution of India. When the law is settled that Article 19 (1)(g) to protect any profession or to carry on any occupation, trade or business is distinguished from Article 30(1) of the Constitution of India, both the rights should be held available to a citizen of India. While in the former case, it is any citizen of India under Article 19 and in the latter case, it is a citizen of India who belongs to a minority whether religious or linguistic. In the context of the present case, the petitioner even if he is taken as a minority as a Reverend Father, belongs to Christian community and as a citizen of India he has a right under Article 30(1) of the Constitution of India to establish and administer an educational institution of his choice. When the right under Article 30 as laid down in the judicial precedents can be restricted only by way of regulation for the purpose of maintenance of academic standards, fee structure, qualifications of teaching staff, etc., the restriction in respect of minorities to have a right to establish an educational institution only if they are in the form of a Society or a Trust or Wakf, etc. the same cannot be held to be in the nature of either in the interest of nation or maintaining standard of education as permissible restriction stated above. 45. The question is whether such condition constitute infringement to the said right of a minority citizen in establishing and administering an educational institution of his choice. In the present case, C.S.I.Trust which has been constituted as a charitable institution was registered under section 25 of the Companies Act. The question is by imposing restriction that the constituent of minority must be in a particular form, either as a Society or as a Trust, it would interfere with the right of minority to establish and administer an educational institution.
The question is by imposing restriction that the constituent of minority must be in a particular form, either as a Society or as a Trust, it would interfere with the right of minority to establish and administer an educational institution. It is no doubt true that in Unnikrishnan case the Supreme Court has held that other than a Society or Trust no other individual or firm or company or body of individuals can establish and administer a professional college. 46. In the light of the subsequent judgment of the Supreme Court in T.M.A.Pai Foundation case holding that the scheme is unconstitutional and especially in the light of the right of minority to establish and administer educational institutions, such restriction which is not admittedly in the interest of maintaining the standards of education, in the students welfare or for the benefit of teaching community or even in the national interest, is certainly making inroad into the right of minority to establish and administer an educational institution of its choice as conferred as Fundamental Right under Article 30(1) of the Constitution of India. In the absence of any such restriction under the Constitution of India and in the absence of any other provision of law made by the Parliament or State legislature which has not been brought to the notice of this Court and in the circumstances as it is seen in the counter affidavit filed by the respondent that the said condition is imposed based on the judgment of the Supreme Court in Unnikrishnan case and in the light of the judgment in T.M.A.Pai Foundation case holding that the scheme framed in Unnikrishnan case is unconstitutional, I am of the considered view that imposing such restriction in so far as it relates to minority whether linguistic or religious in nature is not permissible under the Constitution as it is in violation of Article 30 of the Constitution of India. 47. Similarly, the contention of the learned counsel for the AICTE that on the facts and circumstances of the present case as the petitioner called as Reverend Father, even though representing C.S.I.Trust, being an individual has no right to establish and administer an educational institution of his choice under Article 30(1) of the Constitution of India is also not sustainable. The fact remains otherwise. The State Government has not raised any such objection.
The fact remains otherwise. The State Government has not raised any such objection. The State Government has rejected the application only on the ground that the petitioner is registered as a charitable company under section 25 of the Companies Act, as it is against the regulations of the AICTE. 48. The contention of the learned counsel for AICTE that the Trust which was constituted in the interest of maintaining the properties of the Trust would be in the best interest of education has no meaning. Whether it is a Trust or Society, it is always open to the Government or the affiliating agencies to impose restrictions in the form of regulations as stated above in the national interest or in the interest of maintaining the standards of education as held by the Supreme Court. In the name of imposing regulation any interference with the minorities to establish educational institutions of their own is violative of Article 30(1) of the Constitution. There may be a case where an individual person belonging to a linguistic or religious minority may intend to start an educational institution of course subject to various conditions imposed by the Supreme Court and he may not be able to form a Society or a Trust and in such case, compelling him to make a Society or Trust along with somebody else in the minority community would certainly be making inroad in the right of a minority citizen to establish and administer an educational institution of his choice. The compulsion in the form of registered Society or a Trust is certainly not in the interest of maintaining the academic standards or in the national interest. 49. Even in the case of a minority who wants to establish and administer an educational institution restrictions can be imposed in the interest of educational institutions or in the national interest. But, imposing the condition that he must form a society or trust would be an impediment on the person belonging to minority to establish and administer an educational institution of his own choice.
But, imposing the condition that he must form a society or trust would be an impediment on the person belonging to minority to establish and administer an educational institution of his own choice. The right of minority being a right given to citizens, it is not possible to accept the stand taken by the respondents in the impugned order that the petitioner institution which is prima facie a minority institution on the basis of religion should be a Society or Trust to start educational institution of its own and that it was a company constituted under section 25 of the Companies Act as a charitable company should be treated as commercial group and not for the purpose of promoting education. Therefore, rejecting the claim of the petitioner only on the ground that the petitioner is a company incorporated under section 25 of the Companies Act is an antithesis to Article 30(1) of the Constitution of India, particularly when the petitioner is a religious minority belonging to Christian community. The impugned order is therefore liable to be set aside and accordingly, it is set aside. The writ petition stands allowed with direction to the respondents to consider the application of the petitioner for establishment of educational institution and pass orders on merits and in accordance with law. No costs.