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Judgment
Ar. Lakshmanan J.
This writ appeal is directed against the order of Bakthavatsalam, J. in W.P. No. 19833/93 dated 19-11-1993 holding that the 1st respondent
College is entitled to the rights under Art. 30 of the Constitution of India and that the question whether SaivaSiddhanta is a religion need not be
decided. This appeal is filed by the Registrar. Vice-Chancellor and the Controller of Examinations of Manonamaniam Sundaranar University,
Tirunelveli. The 1st respondent College, by virtue of Section 1 of the Manonmaniam Sundaranar University Act stands affiliated to the appellant-
University. The University has been concerned with the maintenance of the academic standards. According to the University, after the judgment of
the Supreme Court in Unnikrishnan''s case College receiving 100% grant from the Government, will have to make admissions on the basis of merit
subject to the rule of reservation alone. It is their case that several complaints were received by the University from various sections of public and
students and in respect of several colleges Inspection Commiossions were therefore, sent to enquire into the complaints. The 1st respondent
College was also one of the colleges in respect of which complaints were received and the Inspection Commission consisting of academicians was
set up to go into the complaints. The Inspection Commission gave the first respondent College adequate notice and also afforded the opportunity
of being heard. The Inspection Commission found that for 50% of the seats to M.Sc. Physics and Chemistry courses the admissions were not on
the basis of the merit. An interview was held for 25 marks to test the knowledge of Saiva Siddantha and admissions were given on the basis of
murks in the examination as well as interview. The report of the Commission was considered by the Syndicate on 25-10-1993 and it was resolved
that the admissions made on the basis of allotment of 25 marks for the knowledge of Saiva Siddantha was not acceptable to the University as it
was against the norms of admissions. The 1st respondent college was advised accordingly. Against this, the 1st respondent filed W.P. No.
19833/93.
The 1st respondent College was established by Sri Kasi Mult which was granted a declaration by the Couri of Sub-Judge, Kumbakonam that it
is a religious denomination within the meaning of Art. 26 of the Constitution of India. The 1st respondent College contended that the admissions to
the extent of 50% could be made on the basis of academic performance as well as the performance in the interview. The University filed a counter-
affidavit contending that the declaration obtained was only to the effect that the Tamilnadu Private Colleges (Regulation) Act, 1976 would not
apply. The provisions of the Manonmaniam Sundaranar University Act will apply to the 1st respondent College. The admissions made allotting 25
marks for the interview was clearly contrary to the rule of merit and there was nothing illegal in setting aside the admission. The Unviersity further
contedned that a declaration under Art. 26 would not enable the 1st respondent College to claim the privileges under Art. 30 of the Constitution of
India. Further even assuming without admitting that Saiva Siddantha constituted a minority, the Hon''ble Supreme Court in St. Stephen College''s
ease had already laid down that the reservation to the extent of 50% was available only to the students belonging to the minority community by
which the College had been established. The University contended that the Supreme Court in TMA Pai Foundation''s case had disagreed with the
view that the minority institution could adopt its own selection procedure and had referred the issue to a larger bench. The University was
concerned with academic standards and wanted to ensure that admissions were made only on the basis of merit.
Two students filed applications to implead themselves in the above writ petition. The Stale was also impleaded along with the students.
Bakthavatsalam, J. by order dated 17-11-1993 granted interim stay and directed the students to write the examinations. Without prejudice to its
rights, the University permitted the students to write the examinations. Thereafter, the order in the writ petition was pronounced. Aggrieved by the
same, the University has filed the Writ Appeal. According to the University, if the rule on merit is not followed while making admissions it is bound
to lead to fall in academic standards. If the students who were selected on the basis of marks in the examination as well as in interview were
allowed to pursue their course, then great prejudice will be caused to the University. The University therefore prayed that the order of the learned
Judge impugned in this writ appeal has to be set aside.
We have heard Mr. K. Chandru. counsel for the appellants, Mr. G. Subramaniam, Senior Counsel for the respondents 1 to 3 and Mr. K.P.M.
Thulasiraman, Special Government Pleader (F) of the 4th respondent.
Mr. K. Chandru, learend counsel for the appellants contended that the declaration granted to the 1st respondent under Art. 26 will not enable
the institution to claim the rights under Art. 30 of the Constitution. According to the counsel the admissions to courses in institutions receivng cent
per cent aid from the Government should be only on the basis of merit and that admitting students with inferior marks is violalive of the law laid
down in the case of Unnikrishnan and other cases- In other words, the colleges receiving the aid, cannot deviate from merit criteria subject to the
rule of reservation imposed by the State. It is alsourged that the 1 st respondent had no method of identifying the persons belonging to Saiva
Siddhanta religion and the admission made were not of students belonging to the religion. Hence, the admissions to the extent of 50% made not on
the basis of the merit was clearly contrary to the law laid down by the Supreme Court in the case of St. Stephen''s College. In any event, the
allotment of 25 marks in the inverview was clearly illegal. According to Mr. Chandru, the 1st respondent is not a minority institution and even if it is
a minority institution, the test is only testing the religious faith of the boy seeking admission to inter se merit among teh minorities. It is submitted that
the University authority can insist certain norms and that the University can question the admissions if it is not made in accordance with the merit. In
reply to the argument made by Mr. G. Subramaniam, Mr. Chandru said that the writ petition has not become infructuous since the students were
permitted to sit for the examination and they also left the college after completion of studies. According to him, subject matter of cause of action
still survives and it is an institution which challenges the order and not the students and therefore, the writ appellant can continuing the cause of
action. In conclusion, Mr. Chandru said that the decree passed by the learned Subordinate Judge, Kumbakonam in O.S. No. 18/85 declaring the
first respondent institution is a nullity.
Mr. Chandru invited our attention to the conditions of affiliation to be strictly followed by the colleges of Arts and Science and Education which
are affiliated with the University particularly a reference made to condition No. VII which reads thus:--
With reference to the admission of students in any college (except minority) the admission should be strictly on merit basis subject to the
reservations made for SC, ST., M.B.C., B.C. and Physically Handicapped students.
He also drew out attention to the letter dated 16-6-1993 of the Registrar of the University addressed to the Principals of P.G. Colleges and all
the Heads of Department of University requesting them to strictly adhere to the norms prescribed by the University while making admission to
various PG courses. Norms No. 1 runs as follows :--
For admission to M.Sc. degree course a candidate should have secured at least 55 % of marks in Part III of B.Sc. in the particular subject.
Hence admission should not be made for those who have secured less than 55% of marks in Part III of B.Sc. In the case of candidates belonging
to SC/ST minimum marks in Part III of B.Sc. degree in the concerned subject can be reduced from 55% to 45%.
Next he drew our attention to the Minutes of the meeting held on 20-7-1993. The admission committee consists of Mr. D. Ramalingam, Mr. V.
Ponnuthirumalai and Mr. K. Chinnathambi. They prescribed the following guidelines for admission to First M.Sc. Chemistry.
Attempt cases are not considered for admission.
Break of study for one year is permitted. Break of study for 2 or more years is not to be considered for admission.
Students of our college are to be provided with 5% of marks.
In support of his contentions Mr. Chandru cited the following rulings reported in Bramchari Sidheswar Shai and others etc. Vs. State of West
Bengal etc., ; Sri Adi Visheshwara of Kashi Vishwanath Temple, Varanasi and Others Vs. State of U.P. and Others, , Kiran Singh and Others Vs.
Chaman Paswan and Others, ; 1993 WLR534 Little Flower Teacher Training Institutes for Men and Women Etc. v. The State of Tamil Nadu and
three others; St. John''s Teacher Training Institute (for Women), Madurai, Vs. State of Tamil Nadu and others, etc. etc., .
Arguing contra, Mr. G . Subramaniam, Senior counsel submitted the following by way of reply:--
(a) Nullity of decree obtained in O.S. No. 18/ 85 on the file of sub-Court, Kumbakonam is not an issue before the learned single Judge in W.P.
(b) Saiva Siddantha is a separate religious denomination by itself.
(c) Judgment cited and reported in Bramchari Sidheswar Shai and others etc. Vs. State of West Bengal etc., and 1997 (4) Jt 124 have no
retrospective effect
(d) Judgment rendered inter paries that is between the 1st respondent herein and the Education Department of the State of Tamil Nadu in O.S.
18/95 is binding on both sides. Even a bad law is binding on inter partes.
In support of his contention Mr. G. Subramaniam cited the following judgments reported in Mohanlal Goenka Vs. Benoy Krishna Mukherjee
and Others, .
We shall now advert to the decisions cited by Mr. K. Chandru, counsel for the appellants, reported in Bramchari Sidheswar Shai and others
etc. Vs. State of West Bengal etc., and 1997 (4) JT 124.
Bramchari Sidheswar Shai and others etc. Vs. State of West Bengal etc., :-- It was decided by the Supreme Court on 2nd July, 1995. The
question before the Supreme Court was the substainability of the common judgment of the Division Bench of the Calcutta High Court rendered in
appeals preferred against the dismissal of a writ petition by a learned single Judge of the same High Court by which the claim of the followers of
Ramakrishna that an educational institution established and administered by their Ramakrishna Mission receives protection under Art. 30(1) of the
Constitution of India being an educational institution established and administered in exercise of their fundamental right as a minority based on
religion and under Art. 26(a) of the Constitution of India being an educational institution established and maintained in exercise of their fundamental
rights as a religious denomination or a Section thereof, is upheld.
The above question arose for consideration in the appeals filed against the judgment. A learned single Judge of the High Court dismissed the
writ petition and quashed the notices issued by the Calcutta University to the Ramkrishna Mission for reconstituting the Governing Bodies of its
colleges, on the view that Ramakrishna Mission College and other colleges of Ramakrishna Mission since established and administered by
Ramakrishna Mission, comprised of the followers of Ramakrishna religion being protected under Art. 30(1) of the Constitution, the provisions-in
West Bengal Act of 1975 and West Bengal Act of 1978 did not apply. However, he did not accept the claim of the Ramakrishna Mission that
Art. 26(a) of the Constitution enabled the Mission to establish educational institutions as a religious denomination. Aggrieved against the order of
dismissal of their writ petition by the learned single Judge and of quashing of the notices for reconstitution the governing bodies of certain colleges
of the Ramakrishna Mission preferred a Writ Appeal against that order. The Slate of West Bengal and Calcutta University who also felt aggrived
by the said Order of the learned single Judge filed separate appeals questioning its correctness. A Division Bench of the High Court, clubbed those
writ appeals and heard them together dismissed all of them by a common judgment having expressed its agreement with the learned single Judge
that the Ramakrishna Mission comprised of followers of Ramakrishna, being a minority based on religion, was protected under Art. 30(1) of the
Constitulion and also its disargeement with the view that Art. 26(a) of the Constitution did not protect the Ramakrishna Mission from establishing
educational institutions as a religious denomination. The present appealsare those filed against the said judgment of the Division Bench by the
appellants in the Writ Appeals. The Supreme Court held that the citizens of India residing in the State of West Bengal, who are professing,
practising or propagating the religious doctrines and teachings of Ramakrishna and have become his followers, cannot claim to belong to a minority
based on Ramakrishna religion which was distinct and different from Hindu religion and as such, are not entitled to the fundamental right under An.
30(1) of the Constitution of India, of establishing and administering educational institutions of their choice through Ramakrishna Mission or its
branches in that State and answer Point No. 1 accordingly in the negative.
The Supreme Court also held that persons belonging to or owing their allegiance to Ramakrishna Mission or Ramakrishna Math belong to a
religious denomination within Hindu religion or a Section thereof as would entitle them to claim the fundamental rights conferred on either of them
under Art. 26 of the Constitution of India and answered Point No. 2 accordingly in the affirmative.
The Supreme Court held that the persons belonging to or owing allegiance to Ramakrishna Mission as followers of Ramakrishna have a
fundamental right of establishing and maintaining institutions for a charitable purpose under Art. 26(a) of the Constitution of India, subject, of
course, to public order, morality and health envisaged in that very article.
While considering the question as to whether the educational institution established by and maintained by Ramakrishna Mission be regarded as
an institution established and maintained for charitable purpose within the meaning of Art. 26(a) of the Constitution of India, the Supreme Court has
observed that there is no need to go into the question that there has been infringement by the Government of Ramakrishna Mission''s fundamental
rights to establish and maintain educational institutions under Art. 26(a) of the Constitution of India, inasmuch as such a question does not arise, in
view of the answer already given by them on Point No. 3 above. In the result, the Supreme Court dismissed all the appeals howeverby setting
aside the holding of the learned single Judge in the writ petition that Ramakrishna religion being a relegion distinct and separate from Hindu religion
was a minority in West Bengal based on religion, entitled to protect ion under Art. 30(1) of the Constitution of India as upheld by the Division
Bench of the High Court in its judgment deciding the appeals before it and also by setting aside the holding of the Division Bench of the High Court
Ramakrishna Mission as a religious denomination was entitled to establish and maintain institutions of general education under Art. 26(a) of the
Constitution of India as those established and maintained for a charitable purpose.
1997 (4) JT 124 Sri A.V.K.V. Temple v. State of U.P. This case was decided on 14-3-1997 by the Hon''ble Supreme Court. The question
before the Supreme Court was whether Sri Kashi Vishwanath Temple is a denominational temple and whether the Act interferes with freedom of
conscience and the right to profess, practice and to propagate religion of one''s choice and whether the devotees of Lord Viswanath are members
of religions denomination and shall have the fundamental right to manage its affairs in the mailer of religion guaranteed under Arts. 25 and 26 of the
Constitution or to administer the properties of the temple in accordance with law. The Act has merely changed the management from Pandas to the
Board. The Court held that the entrustment of management cannot be said to constitute acquisition of the property or extinguishment of right to
properly. The Supreme Court held as the question relates to only administration of properties belonging to the religious group or institution, and
that they are not matters of religion to which Art. 25 or 26 gets attracted. Art. 26 does not protect the right to management and they are not
entitled to the management.
Thus, it could be seen that every Hindu whether a believer of Shaiva form of worship or of pancharatna form of worship, has a right of entry into
the Hindu temple and worship the Deity. Therefore, the Hindu believers of Shaiva form of worship are not denominational worshippers. They are
part of the Hindu religious form of worship. The Act protects the right to perform worship, rituals or ceremonies in accordance with established
custom and practices. Every Hindu has right to enter the Temple, touch Linga of Lord Sri Vishwanath and himself . perform the worship. The State
is required under the Act to protect the religious practices of Hindu form of worship of Lord Vishwanath, be it in any form, in accordance with
Hindu Sastras, the custom or usage obtained in the temple. It is not restricted to any particular denomination or sect. Believers of Shaiva form of
worship are not a denominational sect or section of Hindus but they are Hindus as such. They are entitled to the protection under Arts. 25 and 26
of the Constitution. However, they are not entitled to the protection, in particular of clauses (b) and (d) of Art. 26 as a religious denomination in the
matter of management, adminsitration and governance of temples under the Act. The Act, therefore, is not ultra vires Arts. 25 and 26 of the
Constitution.
Kiran Singh and Others Vs. Chaman Paswan and Others, :-- In support of his contention that the judgment of the Subordinate Judge,
Kumbakonam in O.S. 18/85 is nullity. Mr. Chandru cited the abovesaid decision to the effect that the decree passed by a Court without
jurisdiction is a nullity and that its validity could be set up whenever and whereunder it is sought to be enforced or relied upon at the stage of
execution and even in collateral proceedings, and that the defect of jurisdiction whether it is pecuniary or territorial or whether it is in respect of the
subject-matter of action, stikes at the very authority of the Court to pass any decree and such a defect cannot be cured even by consent of parties.
1993 WLR 534. Little Flower Teacher Training Institutes for Men and Women etc. v. Stale of Tamil Nadu and three others, was cited by the
learned counsel for the appellants to the effect that when once the decree of a Civil Court as such is a nullity, the Civil Court has no jurisdiction to
decide the question of grant of recognition. The Division Bench said that the Civil Court should have stopped with considering status of the
petitioner-institution and giving a declaration to that effect and should not have proceeded to consider the question of granting recognition since it is
for the autuhorities to decide the same. If at all the civil court could only have issued a mandatory injunction directing the authorities to consider the
question and pass appropriate orders on the application of the petitioner for recognition. As the decree of the civil court is a nullity, it cannot be
enforced in any forum. The respondents are entitled to set up the nullity of the decree at any stage and in any proceedings. In our view, the above
two rulings will have no application to the facts of the case on hand. The above two are cases of civil court granting a decree. The court has set
aside the decree as nullity on the ground that the Civil Court has no jurisdiction to decide the question of granting recognition. The case on hand
stands enlitrely on adifferent footing. We shall advert to at the appropriate stage at the later part of this order. This apart, it is also pertinent to
notice before the sub-Court. Kumbakonam, there was no issues relating to jurisdiction. A reading of the judgment would only show that the suit
was hotly contested by the State and that finally the sub-Court granted a decree as prayed for.
20.1 St. John''s Teacher Training Institute (for Women), Madurai, Vs. State of Tamil Nadu and others, etc. etc., is a case imposing conditions for
recognition of minority Teachers'' Training Institutions laid down under Tamil Nadu Minority Schools (Recognition and Payment of Grants) Rules.
1977. The Supreme Court held that it is for the State and not for the Court to determine the requirements of the institutions and Institutions which
had been granted temporary recognition before commencement of the Rules also bound to comply with the conditions so as to be entitled for
permanent recognition. The Court held that it is not violative of Arts. 14 and 30(1) of the Constitution.
Thapar Institute of Engineering and Technology and Others Vs. State of Punjab and Another, was relied on for the purpose that the 1st
respondent college, receiving the aid cannot deviate from the merit criteria subject to the rule of reservation imposed by the State.
Unni Krishnan, J.P. and others Vs. State of Andhra Pradesh and others etc. etc., was also relied on to show that no quota can be reserved for
the management or for any family, caste or community which may have established the college. The Supreme Court also laid down that no private
educational institution can survive or subsist without recognition and/or affiliation are the authorities of the State. In such a situation, it is obligatory,
in the interest of general public upon the authority granting recognition or affiliation to insist upon such conditions as are appropriate to ensure not
only education of requisite standard but also fairness and equal treatment in the matter of admission of students. Since the recognising affiliating
authority is the State, it is under an obligation to impose such conditions as part of its duly enjoined upon it by Art. 14 of the Constitution.
As rightly pointed out by Mr. G. Subramaniam the question of jurisdiction was not an issue before the Sub-Court, Kumbakonam. This point
was also not raised in the counter-affidavit filed by the University in the writ petition. It is contended in the suit that Kasi Mutt being a religious
denomination has a fundamental right guaranteed under Art. 26 of the Constitution to establish and maintain institutions for religious, and charitable
purposes and it has been held that these rights include the right to establish maintain and administer educational institutions. The cumulative effect of
these and other provisions of the Act is to take away the management and administration from the hands of the Kasi Mutt in violation of Arts. 25,
26 and 30 of the Constitution. The Madras High Court held that the provisions of the Tamil Nadu Recognised Private School (Regulation) Act,
1974 are not applicable (o more enforceable against the schools maintained and administered by religious denominations whose character as such
religious denomination is admitted or established. As the interference by the educational authorities constitutes serious invasion of the fundamental
rights guaranteed under the Constitution, the suit has been filed. The suit was filed for declaration, perpetual injunction and for recovery of Rs.
12,133.55.
The Slate has filed the written statement opposing the plaintiffs claim, challenging the Tamil Nadu Private Colleges (Regulation) Act, 1976.
Certain minority institutions filed writ petitions stating that certain provisions of the Act do not apply to minority colleges. Since the colleges run by
the 1st respondent, are being treated as non-minority institutions, all the provisions of the Act apply to these institutions. Some of the private
colleges run by religious minorities such as Charistians and Muslims have filed writ petitions challenging certain provisions of the Act and succeeded
in some respect. The Government treated the 1st respondent institution as a non-minority institution. According to the department, the
appointments were made without following the rules and regulations and therefore, it cannot be approved. This Court has observed as follows:--
In our opinion whether the School is a minority school within the meaning of Art. 30, or a denominational institution within the meaning of Art. 26
will unless admitted have to be decided in the light of proper evidence to be recorded, and as such, a suit will be a more satisfactory remedy for
that purpose.
While disposing of the writ petitions, the Division Bench of this High Court directed the non-minority institutions to approach the civil court and file
suit for declaration of religious denomination and that the provisions of Tamil Nadu Private Colleges (Regulation) Act, 1976 are not applicable to
them. Accordingly, the 1st respondent institution filed O.S. 18/85 on the file of Sub-Court Kumbakonam, contending that the said institution is a
religious denomination. In support of its claim, the 1st respondent institution filed Exs.Al to A.10 and examined two witnesses on their side. On the
side of the State Exs.B.1 and B.2 were marked and one witness was examined on the side of the defence. The sub-Court, Kumbakonam by its
order dated 12-8-1995. On a detailed discussion held that the cumulative effect of the provisions of the Act is to take away the management and
administration from the hands of the 1st respondent/plaintiff in violation of Arts. 25, 26 and 30 of the Constitution and therefore, the State has to be
restrained from applying the provisions of the Act. On the side of the 1st respondent Institution, the Manager of the Mutt was examined as PW 2.
Documents were marked through him. in the result, the sub-Court granted a decree for declaration and perpectual injunction in favour of the 1st
respondent institution. The suit was decreed on 12-8-1985. Against which the State preferred an appeal in A.S. No. 62 of 1986 which was also
dismissed by the Appellate Court. The State did not prefer any Second Appeal in this Court. As rightly contended by Mr. G. Subramaniam
learned Senior Counsel appearing for the 1st respondent, the judgment rendered inter partes viz., 1st respondent University and the State of Tamil
Nadu are binding on inter paries.
In Mohanlal Goenka Vs. Benoy Krishna Mukherjee and Others, the Supreme Court held that a decision in the previousexecutioncase between
the parties that the matter was not within the competence of the executing court even though erroneous is binding on the parties. There is ample
authority for the proposition that even an erroneous decision on a question of law operates as ''res judicata'' between the parties to it. The
correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as ''res judicala.
As already noticed, the decree granted by the sub-Court, Kumbakonam in O.S. 18/85 is a nullity is not challenged in the counter non argued
before the learned single Judge. Therefore, we are of the view that the appellant University cannot now be permitted to raise the question of nullity
of a Civil Court decree at this distance of lime. This apart, Civil Court''s decree dated 12-8-1985 was confirmed in A.S. No. 62/86 by the
Appellate Court and no second appeal has been filed aginst the said Appellates Court''s order. In fact, the application filed by University to
implead itself as a party in A.S. 62/86 was also dismissed by the Appellate Court and further revision to this court was also dismissed. Therefore,
we hold that the decree of declaration granted by the competent sub-Court at Kumbakonam dated 12-8-1985 is valid in law and not a nullity and
that the said decree is not a nullity as conlendcd by the appellant-University. The said contention therefore fails and is dismissed.
While advening to the judgment cited by Mr. Chandru reported in Bramchari Sidheswar Shai and others etc. Vs. State of West Bengal etc.,
and 1997 (4) JT 124. Mr. G. Subramaniam, contended that the counsel for the appellants wants this Court to decide the academic question. In the
Kashi Vishwanath''s case the Supreme Court has considered the constitutional validity of U.P. Sri Kashi Vishwanath Temple Act, 1983. It was
contended that Lord Kashi Vishwanath Temple is a denominational temple of Saivites of which the appellant before the Supreme Court arc the
members. They have their exclusive right to manage its affairs including the right to receive offerings given by the pilgrims to Lord Shiva to perform
pooja (rituals) and ceremonies in accordance with the prevailing customs and usage in the temple handed down from centuries, and that the Act
interdicts to exercise that right and interfere with those rights which are part of their religion. The Act prevents them from managing the Temple and
its properties which (interferes with their right to profess and practise any religious belief offending Arts. 25 and 26 of the Constitution. The
Supreme Court held that the Act protects the right to perform worship, rituals or cerremonies in accordance with the established custom and
practices. They are entitled to protection under Arts. 25 and 26 of the Constitution. However, they are not entitled to protection in particular of
clauses (b) and (d) of Art. 26 as a religious denomination in the matter of management, administration and governance of the temple under the Act.
The Act, therefore, is not ultra vires Arts. 25 and 26 of the Constitution. This decision in our opinion does not apply to the facts and circumstances
of this case and is distinguishable on facts and circumstances. Likewise, the decision reported in Bramchari Sidheswar Shai and others etc. Vs.
State of West Bengal etc., has no relevance for the purpose of this case, as already discussed supra. The law declared by the Supreme Court in
Bramchari Sidheswar Shai and others etc. Vs. State of West Bengal etc., and 1997 (4) JT 124 in our humble view, has no effect of annulling the
judgments which have already become concluded and adjudicated by the court of competent jurisdiction and in particular the judgment of the sub-
Court Kumbakonam in O.S. 18/85 dated 12-8-1985.
As contended by the Mr. G. Subramaniam, the Supreme Court in St. Stephen''s College etc., etc. Vs. The University of Delhi Etc., Etc., held
that in view of the importance which the Constitution attaches to protective measures to minorities under Art. 30(1) the minority aided educational
institutions are entitled to prefer their community candidates to maintain the minority character of the institutions subject of course in conformity with
the University standard. The State may regulate the intake in this category with due regard to the need of the community in the area which the
institution intended to serve but in no case such intake shall exceed fifty per cent of the annual admission. While deciding the case the Supreme
Court did not say that it will have retrosepctive effect. Mr. Chandru argued that the law declared by the Supreme Court would in view of Art. 141
be binding upon all the petitioners before the High Court and not merely to a particular petitioner as against whom the State had preferred the
appeal. The Surpeme Court held in the case of P.S.E. Board, Patiala v. Ashok Kumar Sehgal 1990 LIC 249 that it is the principles of law culled
out from a judgment of the Supreme Court which alone are declaratory for the nation, and the effective order of the Supreme Court whereunder
justice was done to the parties is binding on the Parties. Thus while following the ratio of a decision of the Supreme Court, it is not obligatory for
the lower courts to regulate reliefs always on the lines of the Supreme Court decision which is being followed. As already seen the decree passed
by the Civil Court viz., Sub-Court, Kumbakonam in O.S. No. 18/85 in favour of the 1st respondent college had become final and in fact, in the
said matter, it appears that Teacher''s association in Madurai Kamraj University wanted to implead itself as a party and it was rejected. It was also
rejected by this Court in revision. In so far as the decree of the civil Court declaring Sri Kasi Mutt as a religious denomination minority stands, the
1st respondent college has got the rights of admission for 50% of its own choice. As rightly contended by Mr. G. Subramaniam, no candidate who
has been denied seat, challenges the admission, when there were about 100 applicants for the courses, and that itself shows that non-selected
candidates have not been aggrieved, that they have not questioned the norms prescribed by the college as such the impugned order cannot stand.
We are of the view that it cannot also be disputed by the University mat the provisions of the Tamil Nadu Private Colleges (Regulation) Act,
1976 are not applicable to the 1st respondent College in so far as the judgment of the 1st appellate court in A.S. 62/86 is concerned, which has
become final. It is also not in dispute that the State has not preferred any Second Appeal against the judgment of the District Court, West
Thanjavur in A.S. 62 of 1986. A reading of me judgment of the 1st appellate Court in A.S. No. 62/86 clearly shows that a right has been claimed
by the head of the Sri Kasi Muti both under Art. 26 and under Art. 30 of the Constitution of India and it has been considered by both the learned
District Munsif, Kumbakonam, and also by the learned District Judge, West Thanjavur. In our opinion, whether Saiva Siddanta can be said to be a
religion or not is a question which need not be decided at this stage nor germane for the question at issue. The learned Judge for the reasons
recorded in his order has thought it unnecessary for him to decide the issue at this stage. The learned Judge as a fact held that there is nothing on
record to suggest that the interview conducted by the Selection Committee was contrary to the principles laid down by this Court in various
decisions referred by the learned single Judge himself in his order. In fact, the interview confers no wide discretion to the Selection Committee to
pick and choose any candidate of their choice. Considering the totality of the circumstances of the case, we are of the view that though the
interview system adopted by the college cannot be said to be illegal, yet prescribing 25 marks for interview to assess the knowledge of the
candidates in ""Saiva Siddantha"" seems to be arbitrary and against law laid down by the Supreme Court in various cases. In fact, the students who
were admitted have completed the courses and have left the college. The students who got admission cannot be blamed as we do not sec any
reason to penalise the students for the mistakes committed by the 1st respondent. It is not the case of the University that no other statute or
regulation of the University is contravened. As such, the order passed by the learned single Judge in the writ petition setting aside the order of the
University impugned in the writ petition and allowing writ petition shall stand. The further direction given by the learned single Judge to approve the
admission made by the College is also confirmed. The question now raised by Mr. Chundru, learned counsel for the appellants has now become a
question of academic importance. Therefore, the writ appeal fails and is dismissed. However, there will be no order as to costs. Consequently.
W.M.P. No. 3088 of 1994 is also dismissed.
Appeal dismissed.