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Judgment
AR. Lakshmanan, J.—The State is the appellant in this appeal. Aggrieved by the order passed by Janardhanam, J., dated 17.3.1994 in
W.P. No. 3494 of 1992, this writ appeal has been filed by the State.
Para. 7 of the Order impugned in this appeal reads thus:
Various questions now posed for consideration in the present action relatable to sanction of teaching and nonteaching staff, financial aid and rec-
ognition relatable to minority institutions came up for consideration before me in the case of Rev. Sr. Margaret Mary, Correspondent, Sacred
Heart High School and Another Vs. The Government of Tamil Nadu and Others, . Applying the ratio laid down in the aforesaid decision, it goes
without saying that this writ petition will have to be allowed and the same is accordingly allowed as prayed for. there shall, however, be no order as
to costs, in the circumstances of the case.
In this case, there is no dispute that the respondent sangam which is a registered society is a minority institution. The said sangam is running a Girls''
High School at Tirunelveli and they applied for grant of recognition and approval for standards 6 to 9 to the Joint Director of School Education,
Madras, who in turn in his proceedings dated 21.8.1990, granted temporary recognition and approval for standards 6 to 8 from 1.6.1988 to
31.10.1990 with aid and for 9th standard without aid. The school also applied for recog-nition for 10th standard and the second respondent in its
proceedings dated 12.12.1990, granted recog-nition and approval for the same without aid for the period from 1.6.1989 to 31.10.1991.
However, on a scrutiny of the records, it is found that by mistake, recognition with aid for standards 6 to 8 was granted and by the proceedings of
the 2nd respondent dated 5.2.1992, the mistake was rectified by issuing an erratum to the earlier proceedings of the Joint Director of School
Education (Secondary Education) D. Dis. No. 36196/G2/90, dated 21.8.1990 to the effect that standards VI to VIII is also granted recognition
without aid in addition to recognition without aid for standard IX. Aggrieved by the said order, the school filed the present action praying for issue
of a writ of certiorarified mandamus to quash the same and consequently to direct the respondents to sanction teaching and nonteaching staff and
also finan-cial aid for the period from 1.6.1988 for the standards 6 to 9 and from 1.6.1989 for Standard 10 and sanction recognition for 6 to 9th
standard for the period from 1.11.90 to 31.10.1991. During the pendency of the writ petition, the management filed certain W.M. Ps. for issuance
of a direction to sanction teaching and nonteaching staff and also for financial aid for the period in question. this Court passed certain orders
granting aid and later modified the said order when clarification was sought for by the school.
Counter-affidavit was filed on behalf of the State contending that as a policy decision, recognition had been given to schools both minority and
non-minority without aid, due to financial constraints the Government had been facing, that somehow or other, due to inadvertence, recognition had
been granted to the petitioner-school with aid to standards VI to VIII by order dated 21.8.1990, that such mistake having been found out
subsequently, had been rectified by issuance of an erratum dated 5.2.1992. In such circumstances, the writ petition deserves to be dismissed.
Janardhanam, J., following his own judgment reported in Rev. Sr. Margaret Mary, Correspondent, Sacred Heart High School and Another Vs.
The Government of Tamil Nadu and Others, allowed the writ petition as prayed for.
On 19.7.1996, the writ appeal was admitted by the First Bench of this Court. When the writ appeal was taken up for disposal, Mr.
Tulasiraman, learned Special Government Pleader (Education) raised the following four points:
The learned single Judge has not followed provisions of Section 14 (I) and (II) of the Tamil Nadu Recognised Private Schools Regulation Act.
It is for the Government to decide, subject to the availability of the funds in the norms to grant aid to the schools.
The granting of aid is not automatic and it has to depend upon the Government order in G.O. Ms. No. 340/Education/dated 1.4.1992.
There are about 141 schools including elementary, middle, high and higher secondary schools both minority and non-minority which were given
permission/recognition without aid during 1988-89 and 1989-90 and so far the Government has not sanctioned grant to any of the schools which
are given permission/recognition without aid during the year 1988-89 and 1989-90.
He also refers to G.O. Ms. No. 340 Education dated 1.4.1992 which is under consideration of the Government for quite some time. Mr.
Selvaraju, learned Counsel for the respondent/management placed strong reliance on the judgment of Bakathavatchalam, J., reported in T. Sekara
Pillai v. State of Tamil Nadu, W.P. No. 4570 of 87 dated 27.9.1989 a Division Bench Judgment of this Court reported in Church of South India
v. The Government of Tamil Nadu 1988 W.L.R. 130 and also of the judgment reported in St. Stephen''s College v. University of Delhi (1992) 1
S.C.C. 588 and submitted that it is highly surprising for the State to take the contention that they are not able to pay the grant due to non-
availability of fi-nance and it is the attitude of the department that after sanctioning the subject for the schools to run the school without teachers.
The department should have taken steps to sanction the post. He further submitted that for imparting education, the fundamental thing is to have
teachers to coach the students properly, that too, trained teachers for the respective subjects. Therefore, the appellant Government has failed in its
duty to see that the posts are sanctioned expeditiously and if the state feels that they will have financial strain, they ought not have sanctioned the
groups. A Division Bench of this Court consisting of Nainar Sundaram, J., (as he then was) and Somasundaram, J., in Roman Catholic Society v.
The Government of Tamil Nadu (1991) WL.R. 130 held that paucity of finances could not be a valid ground for denying aid to minority schools,
and observed as follows:
On behalf of the respondents, it is contended that at the time of grant of recognition to the various educational courses in the minority schools, the
position has been made clear to them that no State aid is possible and the minority schools did not demur over this and accepted recognition and
hence they cannot now claim aid and they will be debarred from putting forth such claim. We could not appreciate and accept this stand put forth
on behalf of the respondents. What Article 30 enshrines as a fundamental right, cannot be bartered away or surrendered by any voluntary act and
it cannot be waived. While there may not be a fundamental right to aid, yet if in the matter of grant of aid the State chooses to discriminate the
voice of protest in this behalf by the aggrieved minority cannot be stifled on any principle of waiver. The do-cility with which the minority schools
accepted the recognition with any tail annexed that aid is not possible will not estop them for voicing forth a grievance of discrimination coming
within the ambit of Article 30(2) of the Constitution. Thus the grounds put forth for not granting aid to the mi-nority schools in the present cases
cannot stand scrutiny of judicial review and they are totally unreasonable and arbitrary and they brought about the discrimination against the
minority schools in the matter of grant of aid and that discrimination comes within the scathe of Article 30(2) of the Constitution.
A Constitution Bench of the Supreme Court, while dealing with aid to educational institutions, observed in para. 89 thus:
The educational institutions are not business houses. They do not generate wealth. They cannot survive without public funds or private aid. It is said
that there is also restraint on collection of fees, the minorities cannot be saddled with the burden of maintaining educational institutions without
grant-in-aid. They do not have economic advantage over others. It is not possible to have educational institutions without State aid. This was also
the view expressed by Das, C.J., In re Kerala Education Bill A.I.R 1957 S.C. 956. The minorities cannot therefore, be asked to maintain
educational institutions on their own.
Therefore, we are of the view that none of the points raised by the learned Counsel for appellants (Special Government Pleader (Education) merit
acceptance. Section 14 of the Act deals with the payment of grant. Sub-Section (ii) of Section 14 says that the Government may, subject to (a) the
availability of funds and (b) subject to the norms and conditions specified in the Grant-in-aid Code of Tamil Nadu Education Department and (c)
subject to other conditions, may sanction grant and aid to the schools. We are also unable to counte-nance the arguments of the learned Special
Government Pleader that paucity of funds could be a valid ground for denying aid to a minority school. In this context, we have already referred to
the judgment reported in Roman Catholic Society case 1991 W.L.R. 130. As already seen, the Supreme Court has categorically observed that the
educational institutions cannot survive without public funds or private aid, and that the minorities cannot be saddled with the burden of maintaining
the educational institutions without grant-in-aid, as they do not have economic advantage over others. It is not possible to have edu-cational
institutions without State aid. This was also the view expressed by Das C.J., Ningawwa Vs. Byrappa and Others, We are, therefore of the view
that the minorities cannot be asked to maintain the educational institutions on their own. The citizens of the country have a fundamental right to
education which right flows from Article 21. This right is, however, not an absolute right. In other words, every child/citizen of this country has a
right to free education until he completes the age of fourteen years. Thereafter, his right to education is subject to the lim-its of economic capacity
and development of the State. The learned Special Government Pleader then relied on G.O. Ms. No. 340 dated 1.4.1992 underwhich the
Government after careful consideration, sanctioned teaching and nonteaching posts to the schools as indicated in the Annexures I,II,III to this order
for assessment of salary grant with effect from 1.6.1994. In the instant case, the Government having granted temporary recognition and approval
for standards 6 to 8 from 1.6.88 to 31.10.1990 with aid and for 9th standard without aid, ought not to have modified the same by issuing an
erratum to the earlier proceedings dated 21.8.1990 to the effect that standards 6 to 8 is also granted recognition without aid in addition to the
recognition without aid for standard 9. 7. We are in entire agreement with the views expressed by Janarthananm, J., in the judgment reported in
Rev. Rev. Sr. Margaret Mary, Correspondent, Sacred Heart High School and Another Vs. The Government of Tamil Nadu and Others, and
applying the ratio laid down in the said judgment and also following the other judgment relied on by the learned single Judge and reported in
Church of South India v. The Government of Tamil Nadu 1988 Writ 130; (1) St. Stephen''s College v. University of Delhi (1992) 1 S.C.C. 588
and Ningawwa Vs. Byrappa and Others, , and in the facts and circumstances of the case, we dismiss the Writ Appeal and accordingly confirm the
order of the learned single Judge passed in W.P. No. 3494 of 1992 dated 17.3.1994. However, there will be no order as to costs. Consequently,
C.M.P. No. 9341 of 1996 also is dismissed. Further we make it abundantly clear that the judgment rendered by us in this writ Appeal is confined
only to the respondent minority institution in the peculiar facts and circumstances of this case.