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Judgment
Sathiadev, J.—Petitioner in W.P. No. 1176 of 1981 is the appellant herein and the two respondents therein are the respondents herein. The
writ petition was filed for issue of a writ of mandamus directing the respondents herein to grant permission to the petitioner School for upgradation
without insisting on the creation of an endowment. (Ranking of parties as in writ petition).
Petitioner''s Church is a Society registered under the Societies Registration Act, XXI of 1860. It is a religious minority institution, and it started
an English Medium School and it became a Matriculation School recognised by University of Madras, and in 1978, Registrar of the University
addressed the Director of School Education to include the name of the petitioner''s school in the list of Matriculation Schools Under the
Government. On 26.11.1977, petitioner had addressed the Director of Higher Secondary Education stating that the School authorities proposed
to conduct plus two stage of higher Secondary Education but there was no response. On 24.4.1980, the Chief Educational Officer, Madras
forwarded the prescribed pro forma for upgrading the school into a Higher Secondary School, and it was duly filled up and handed over to him.
On 2.6.1980, the second respondent-Director was informed that Commerce Group in Part III in the First Year of plus two Course had been
started. On 22.10.1980, second respondent wrote that, as the petitioner had not expressed its willingness to create a cash endowment of Rs.
25,000 for starting a Higher Secondary Course, the proposal has not been recommended to Government during the current year. It is consequent
to this insistence of complying with the pre-condition for recognition to start the course, the writ petition had come to be filed.
In the counter-affidavit, respondents took up the stand that petitioner cannot rely upon the decision of the Division Bench of this Court in W.P.
Nos. 4478 of 1974, 294 of. 1975, etc., because the provisions of Tamil Nadu Act 29 of 1974 are not applicable for the course involved in the
writ petition, and that by virtue of G.O.Ms. No. 587, Education, dated 22.3.1978 creation of a cash endowment being a pre-condition to start the
Higher Secondary Course, it in no way offends Articles 19 (1) (f) and 30 of the Constitution of India.
During the pendency of the writ petition, without prejudice to the contentions raised in the writ petition, petitioner had created a cash
endowment as required, so as to enable the affected students to appear for the examination.
The learned Judge dismissed the writ petition by holding that Article 30 is hedged in by Several exceptions carved out by the Supreme Court in
more than one decision, and that the Division Bench in W.P. No. 4478 of 1974 batch held that except clauses (e) and (k) of Sub-rule (2) in Rule 9
other clauses are invalid because stringent conditions had been incorporated therein; whereas under the impugned G.O., a sum of Rs. 25,000
having been imposed, and it being not an unwholesome condition but a well-meant regulation, it is a valid condition. On the plea of discrimination
claimed that no such endowment had been created relating to Don Bosco Matriculation Higher Secondary School which is similarly placed, except
to take note of the fact that the Government had repeatedly asked the said School to create necessary, endowment, no definitive finding had been
rendered.
Mr. A.S. Chandrasekaran, learned Counsel for the petitioner would first submit that on the plea of discrimination as raised, respondents have
been evasive in their counter-affidavit, and they have not furnished any particulars as to the date on which Don Bosco Matriculation Higher
Secondary School, Madras had ever furnished such an endowment till date. Even to-day no particulars has been placed before Court, to show
that the said minority Institution which, admittedly conducts Plus Two Course had ever created the, endowment till date. The only feeble defence
put forth, is to rely upon the same G.O. as relied upon by the learned Judge, it being G.O.Ms. No. 608, Education Department, dated 27.3.1978
which states that no exception could be granted in respect of any Higher Secondary School from the stipulated payment of public
contribution/Endowment of Rs. 25,000 for each Higher Secondary School. Issuing of the said G.O. does not mean that G.O.Ms. No. 587,
Education Department, dated 22.3.1978 had been ever enforced against Don Bosco Matriculation Higher Secondary School. On failure to place
materials on the plea of discrimination, the petitioner is entitled to succeed by relying upon Article 14 of the Constitution of India.
That apart, on the substantial point taken that the pre-condition to create endowment is an unreasonable restriction against a minority institution,
it is supported by the decision of the Division Bench in W.P. No. 4478 of 1974 batch dated 17.12.1975, because on an identical stipulation
incorporated in Rule 9 (2) (c) of the Rules framed under Tamil Nadu Act 29 of 1974, it was held that such a pre-condition is ""an inroad into the
minorities right to administer the institution"". A careful reading of the judgment would disclose that it was observed as stringent because in respect
of one of the cooperate institution involved, the endowment to be created was Rs. 1,00,000 for each school. But, in considering the scope of the
rule as framed, the Division Bench came to the conclusion:
...This, we think, is not a valid condition as it placed a serious restriction on the freedom of the minority institution to make admissions from the
stand point of conserving and promoting the interests of the minority concerned....
In dealing with Chapter III of the Act and Rules 9 to 11, after referring, to Article 30 (1) for the reasons stated therein, it was reiterated:
...Nor do we find any necessity by way of regulation to call upon the minority institution to deposit a sum equivalent to a minimum of one month''s
salary of the staff employed in such school to serve as a working capital of that school...
It is in the concluding portion of the judgment in respect of the petitioner involved in W.P. No. 294 of 1975, it was observed that to create a fund
of Rs. 1,00,000 for each school by the Management having several schools, it will be a stringent condition.
The Rule which had been struck down when looked into discloses that the endowment required varied from Rs. 10,000 to Rs. 1,00,000
depending upon the nature of the school. Therefore, whether it is Rs. 10,000 or Rs. 1,00,000 a precondition of this nature was considered as an
unreasonable restriction, and hence, the approach made by the learned Judge that the condition to create an endowment of Rs. 25,000 is not a
stringent condition, is not correct. Any pre-condition for creating an endowment, be it for Rs. 10,000 or Rs. 1,00,000 was treated as a strain on
the financial position of a minority school and the relevant rule, was struck down by the Division Bench of this Court. Learned counsel for the
appellant is well fortified in his submission that the Division Bench did not approach the aspect of pre-condition taking into account the quantum
fixed under the Rules, but it considered that any pre-condition for recognition in the nature conceived under the said rule, is violative of Article 30
(1) of the Constitution.
Therefore, what could not be justified as a statutory provision, cannot be got over by relying upon an executive order as found in G.O.Ms. No.
587, Education Department, dated 22.3.1978.
It is the contention of the respondents that in respect of the course involved, the provisions of Tamil Nadu Act 29 of 1974 would not apply.
When what are contained in a statutory rule could not be justified in the context of Article 30 of the Constitution of India, the same condition in an
executive order cannot be made applicable in respect of a minority institution, which seeks recognition to start a course.
Yet another contention taken by learned Government Pleader is that, when a provision is made for creating an endowment by instalment, it
would not be an unreasonable restriction. Once it has been held that a precondition of this nature is violative of Article 30 (1) of the Constitution of
India, to facilitate the Management to create an endowment by instalment is no justification for imposing that pre-condition.
Therefore, the writ appeal is allowed. The endowment created during the pendency of the writ petition was without prejudice to the
contentions of the appellant, and therefore, the respondents are hereby directed to return the concerned documents regarding the creation of the
endowment to the appellant within eight weeks of the receipt of the steno-copy of this judgment. As the appellant has succeeded on both the
points, it is entitled to costs. Counsel fee Rs. 500.