Vattavilai Sri Bhadrakali Educational Society vs The State of Tamil Nadu

Petitioner in both the Writ Petition is Vattavilai Sri Bhadrakali Educational Society. The said society runs two schools. The object of educational

institution is to promote the interest of linguistic minorities of Kanyakumari District. The educational institutions are established by linguistic

minorities and are continuously administered by the members of the linguistic minorities only. The members of Managing Committee are the

members of the Governing Body and the members of the Governing Body of the schools are Malayalees.

The petitioner society filed O.S. No.5934/1997 before the VIII Assistant City Civil Court, Madras for declaration that the two schools run by

the educational society viz., Sri Devi Girls Higher Secondary School, Kollemcode, Kanyakumari District and sri Devi Primary School, Panavilai,

Kollemcode established and administered are minority educational institutions coming under the purview of Article 30(1) of the Constitution of

India and also for a consequential injunction restraining the State of Tamil Nadu and the Director of School Education from enforcing the

provisions of the the Tamil Nadu Recognised Private Schools (Regulation) Act (Act 29 of 1974) or imposing any other restrictions in the

administration of the schools. The said suit was decreed in favour of the plaintiff viz., the petitioner society herein.

Challenging the said judgment and decree, the State has preferred A.S. No.300/92 before the Vth Additional City Civil Court, Madras. By

judgment and decree dated 18.8.1993, the appeal was allowed and the suit was dismissed solely on the ground that Educational institutions

admitted Tamil students also and running not only Malayalam classes but also Tamil classes. Questioning the said judgment and decree, the

petitioner society has filed Second Appeal No. 1740/1993 before this Court and the same is pending. This Court has also granted interim

injunction against the State not to invoke certain provisions of the Act 29 of 1974 or imposing any other restrictions in the administration of the

schools.

While the matter is pending, the Government issued G.O. Ms. No.648 Education,Science and Technology Department dated 3.8.1994,

directing that the Government themselves will verify and determine as to whether the educational institution is a minority institution within the

meaning of Article 30(1) or Article 26 of the Constitution of India. The Government also ordered that the said Government Order will apply to all

educational institutions viz., schools, colleges, teacher training institutions and technical institutions both aided and unaided in the State of Tamil

Nadu. Similar question of issuance of decree passed by the Civil Court declaring certain educational institutions as minority institutions came up for

consideration before the Supreme Court in the matter of T.M.A. Pai Foundation and others. The Apex Court by order dated 17.10.1994 in I.A.

No.20 in W.P.(C) No.317/1993 passed the following order:

I.A. No.20:

We have heard learned counsel for the State of Tamil Nadu and the learned counsel appearing for some of the respondents. We issue the

following general directional orders in Respect of the Educational Institutions which have been impleaded as respondent in the above I.A.

i)We have been informed that some of the respondents institutions are operating as minority institutions on the strength of various orders/decrees

obtained from the Civil Courts. We pass hereby a general order staying the operation of all the decrees/orders which may have been given by any

Civil Court in respect of the minority status or in otherwise of any of the institutions which have been array of as respondents in this I.A. All the

respondents-institutions shall be treated as non-minority institutions till they comply with the direction given by us at Sl.No.2.

ii) The Educational Institutions claiming minority status should approach the State Government and till the State Government issues an order

declaring the Institute to be a minority institution,it cannot operate as such;

iii) We further direct the respondents-institutions to admit all the students who have been directed to be admitted in the said institutions by the State

Government. The direction shall be applicable to both in respect of free seats as well as the payment seats;

iv)We further make it clear that 10% seats permissible against the NRIs quota are to be counted against 50% payment quota and not in addition to

it;

v) We make it clear that the above directions are only clarificatory of the various orders which this Court has been passing from time to time.

These directions shall be applicable to all the admissions which have already taken place or likely to take place for the academic year1994-95;

vi) All the students who have been admitted in violation of the above directions of this Court, shall not be permitted by the concerned University to

take the University Examination. Construing the said order of the Supreme Court, the Government issued G.O. Ms. No.270 Higher Education (JI)

Department dated 17.6.1998 making the following directions:

..8. The Government issues the following guidelines to dispose of the pending applications claiming minority status and also applications which will

be received in future from Educational Institutions:-

(i) The object of the educational institutions should be for promoting the interests of the minority concerned and it should subserve the interests of

the minority community concerned.

(ii)Such educational institutions should have been established by the minority and should be continuously administered only by the members of that

minority.

(iii)An educational institution which was originally not established by a minority community cannot acquire such status or character subsequently

;under any circumstances.

(iv)All the Trustees or members of the Governing Body of the minority educational institutions shall belong only to the concerned minority.

(v)In the case of self-financing educational institutions imparting professional course of education established and administered by any minority they

shall admit students of that minority alone, not exceeding 50% of the sanctioned strength. If there is any vacancy not filled as above such vacancy in

that 50% shall be filled up only on the basis of merit and from common merit list prepared by the competent authority.

(vi)To decide whether an applicant is a minority or not based on religion or language, the total population of that minority in the State of Tamil

Nadu shall be taken into consideration and not the population of that minority in any particular region where the educational institution is situated.

(vii)In so far as Tamil Nadu State is concerned, any person whose mother tongue is any language other than Tamil shall be considered as linguistic

minority in the State and in respect of religious minority, any person whose religion is other than Hinduism shall be considered as a religious

minority in the State.

Minorities have a right to establish and administer educational institutions of their choice subject to the broad policy guidelines of the

Government such as the course to be started, the total number of institutions to be permitted in a particular year, the locality and the approval of

the agencies concerned such as All India Council for Technical Education ( AICTE) in the case of Engineering Colleges and Polytechnics and

Medical Council of India in the case of Medical Colleges.

The above guidelines relating to the conferment of minority status will be applicable to all Educational/Professional Institutions. The admission

procedure prescribed by Government in their order fourth read above, will however be applicable only to self financing educational/Professional

institutions imparting professional education.

The petitioner has questioned the said Government Order in W.P.No.4688/2000. Thereafter the Government came up with the Government

order in G.O ( Nilai) No.375 School Education (X1) Department dated 12.10.1998. Hence the petitioner has again questioned the said

Government Order in W.P.No.5922/2000.

The petitioner has questioned the Government Orders on the ground that the order of the Supreme Court in T.M.A. Pai Foundation and Others

is not a judgment in rem as it would be applicable only to educational institutions which are parties before the Supreme Court and the Supreme

Court has not laid down the law to all educational institutions claiming minority status, the Government alone should be approached. Further, it is

the stand of the petitioner that having denied the claim of the petitioner for minority status, the respondent/State is bound by the judgment and

decree of the Civil Court and cannot make the impugned orders applicable to the petitioner society.

Mr. K.Sreekumaran Nair, learned counsel appearing for the petitioner would reiterate the above in his submissions and would also rely upon the

judgment of a Division Bench reported in THE SECRETARY, D.G. VAISHNAV COLLEGE VS DR. T. VENKATARAMAN 2001(4) CTC

641 in support his submission that the judgment of the Supreme Court in T.M.A. Pai Foundation case is not a judgment in rem and it would be

applicable only to the institutions which are parties to the said order. He would also rely upon the judgment of a learned single Judge of this Court

reported in The Correspondent, St. Ignatius Higher Secondary School, Kurumbanai-629 251, Kanyakumari District and others Vs. Director of

School Education, College Road, Chennai 6 and others, .

Mr. K. Sreekumaran Nair learned counsel appearing for the petitioner would also submit that in any case, the right conferred on the Civil Court

to decide the disputes cannot be taken away by the Government Orders and such right is preserved as could be seen from the judgment of the

Apex Court reported in Dhulabhai and Others Vs. The State of Madhya Pradesh and Another, . He would also submit that since the new CPC

has come into force, more particularly, Section 9, a right conferred on the Civil Court to go into the question like one in issue cannot be taken

away. To support this submission, he would rely upon the judgment of the Supreme Court reported in DHRUV GREEN FIELD LIMITED VS

HUKAM SINGH 20029 (6) SC 416.

Inspite of sufficient time given to the learned Government Advocate to file counter, no counter has been filed so far. However, Mrs.

M.E.Raniselvam, learned Government Advocate submitted that the Government Orders have been issued only on the orders of the Supreme

Court declaring the law by directing all those institutions seeking for minority status to make their application only to the State Government. Such

orders cannot be found fault with. The learned Government Advocate also submitted that when the petitioner filed the suit there were no

Government Orders. The Government orders were issued only after the orders passed by the Supreme Court in the year 1998 and therefore, the

judgment and decree obtained by the petitioner society cannot be taken as advantage for minority status.

The question as to whether the judgment of the Supreme Court is a judgment in rem or not, came up for consideration before a Division Bench

of this Court in the judgment reported in THE SECRETARY, D.G. VAISHNAV COLLEGE VS Dr. T. VENKATARAMAN ( 2001(4) CTC

The relevant paragraph of the said judgment reads as under:

The appellant in W.A. No.2387 of 2001 has been granted a minority status by a declaration granted by a decree dated 19.2.1988 by the Court

of the Principal District Judge, Madras in A.S.No.275 of 1987. It is not disputed that the said decree had become final. As on date, the said

decree has not been nullified. But Mr. P. Jothimani, learned counsel for the first respondent submits that in view of G.O.(Ms.)No.270 dated

17.6.1998 the decree, which has been granted on 19.2.1988, had become inoperative. Prima facie, we are unable to agree with the said

submission as the Government has been a party and suffered a decree on 19.2.1988 and the said decree having become final, the Government is

bound by the same unless there is a specific legislation that too, if it is not an affront to the above decree granted by the judicial authority. Then Mr.

Jothimani, takes us to the order of the Supreme Court in T.M.A. Pai Foundation and others vs state of Karnataka and Others, I.A.No.20 in

WP(C)No. 317 of 1993 dated 17.10.1994.It is not disputed that the said Writ Petition is still pending on the file of the Supreme Court In the

interim order passed on the above date, Civil Court''s decree granting minority status to the respondents, who have been parties therein, that is

respondents 2 to 6, has not been taken cognisance of particular reference has been made to the said respondents and the said order does not

operate in rem. In fact that position has been clarified by a learned single Judge of this Court in The Correspondent, St. Ignatius Higher Secondary

School, Kurumbanai-629 251, Kanyakumari District and others Vs. Director of School Education, College Road, Chennai 6 and others, . It is not

brought to our notice that this Judgment of the learned single Judge has been overruled. As such, we find a prima facie case in favour of the

appellant in W.A. No. 2387 of 2001 that it still enjoys minority status as on date

The Division Bench in fact has specifically held that the order of the Supreme Court does not operate in rem. A perusal of the order of the

Supreme Court also shows that it refers to the application to be made by the respondents -Educational institutions, who are parties to the

proceedings before the Supreme Court.

A careful reading of the said judgment does not indicate that the Supreme Court has laid down any law in declaring that applications seeking

for minority status should be made only to the State. Infact, the very issue as to the challenge to the Government Order came up for consideration

before this Court in the judgment reported in The Correspondent, St. Ignatius Higher Secondary School, Kurumbanai-629 251, Kanyakumari

District and others Vs. Director of School Education, College Road, Chennai 6 and others, . The learned single Judge has also held that it is not a

judgment in rem and the orders of the Supreme Court shall be applicable only to the institutions which were parties before the Supreme Court.

This judgment of the learned Single Judge has been quoted by the Division Bench in the above judgment with approval. Hence, it cannot now be

contended that the orders of the Supreme Court in T.M.A.PAI FOUNDATION AND OTHERS VS STATE OF KARNATAKA AND

OTHERS is applicable to all educational institutions which seek minority status should only apply to the State Government.

That apart, the facts of this case are also very much in favour of the petitioner society. The judgment and decree of the Civil Court is not one

between the petitioner and some third parties. The respondent/State is a party to the suit. The suit is one for declaration of the minority status and

for consequential injunction restraining the State of Tamil Nadu and the Director of School Education from enforcing the provisions of the 29 of

1974 or imposing any other restrictions in the administration of the schools. Though initially the suit was decreed as prayed for, the said suit was

dismissed by the appellate Court only on the ground that the petitioner educational society has admitted not only Tamil students but also conducting

Tamil classes. Though the petitioner has questioned the rejection on the ground that it is opposed to the provisions of Article 29(1) of the

Constitution of India which reads as under:

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

In view of the above, I am not inclined to consider this question as admittedly, the said question is now the subject matter of the Second

Appeal which is pending before this Court and both the petitioner and the respondent State shall be at liberty to canvass their respective

contentions only in the Second Appeal. In the first appeal, the suit was dismissed. The Second Appeal filed at the instance of the petitioner society

has been admitted by this Court and this Court has also granted injunction restraining the State of Tamil Nadu and the Director of School

Education from interfering with the functioning of the petitioner educational society as a linguistic minority till the disposal of the Second Appeal. In

view of the above, I am of the considered view that the parties governed by the judgment and decree of the Courts below and for that matter, the

interim injunction has been granted by this Court pending the Second Appeal. The power of the Civil Court in deciding the question as to the

disputed questions, useful reference can be made to the judgment reported in Dhruv Green Field Ltd. Vs. Hukam Singh and Others, In para 6 of

the judgment the Supreme Court has held as follows:

The jurisdiction of the Courts to try all suits of civil nature is very expansive as is evident from the plain language of Section 9 of the Code of Civil

Procedure. This is because of the principle ubi jus ibi remedium. It is only where cognizance of a specified type of suit is barred by statute either

expressly or impliedly that the jurisdiction of the civil Court would be ousted to entertain such a suit. The general principle is that a statute excluding

the jurisdiction of civil Courts should be construed strictly

On the facts of the given case, I am of the considered view that I need not go into the attack on the impugned Government Orders as the

parties are governed by the judgment and decree of this Court to be made in the Second Appeal. Having depended the suit and being party to the

same, the respondent/State is bound by the judgment and decree. In view of the above, the Writ Petitions are disposed of with a direction that the

parties shall be governed by the orders to be passed in the Second Appeal as to the minority status of the petitioner educational society and the

respondent State is not entitled to interfere with the management of the petitioner educational society on the strength of the impugned Government

Orders. Moreover, in view of the interim injunction already granted by this Court in favour of the petitioner society restraining the respondent/State

from interfering with the petitioner''s functioning as minority institution, the same shall be in force till the disposal of the Second Appeal. No costs.