Madras High Court
Association Of University Teachers ... vs Government Of Tamil Nadu Rep. By Its on 20 March, 2012
Author: N.Kirubakaran
Bench: N.Kirubakaran
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:20.3.2012 CORAM THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN W.P.No.22684 of 2009 Association of University Teachers Tamilnadu, (Regd.No.64/1971)C.B.M.College Unit, Represented by its Secretary, P.Shanmuga Sundaram, C.B.M.College,Kovaipudur, Coimbatore. ... Petitioner Versus 1.Government of Tamil Nadu rep. by its Secretary to the Government, Higher Education Department, Fort St.George, Chennai. 2.C.B.M.College, Represented by its Secretary, Kovaipudur, Coimbatore-641 042. 3.The Registrar, Bharathiyar University, Coimbatore. 4.Director of Collegiate Education, College Road, Chennai-600 006. 5.C.B.M.College TANSAC Unit rep. by its Secretary CBM. College, Coimbatore. R5 Impleaded vide order dt.3.3.2010 in M.P.No.1/2010 in W.P.No.22684/09 ... Respondents This writ petition is filed under Article 226 of the Constitution of India praying for the Writ of Certiorari to call for the records pertaining to the impugned order of the first respondent vide GO (Ms)No.355 dated 25.09.2009 and quash the same. For Petitioner : Mr.N.R.Chandran Senior counsel for Mr.R.Kannan For Respondent : Mr.R.Ravichandran AGP for RR 1 & 4 Mr.R.Muthukumarasamy Senior counsel for Mr.K.Selvaraj for R2 Mr.R.Subramanian for R5 ORDER
Petitioner-Teachers Association challenges the government order granting minority status to the second respondent institution.
2. The case of the petitioner is that, the second respondent college was started by a public charitable trust in the year 1974. During 1975-76 classes commenced. During 2009, the college was found to be not functioning properly and the petitioner's Association sent a memorandum to the second respondent management giving the details to that effect. There were complaints by students about the compulsory donation collected from them. On 14.2.2008, the Regional Joint Director of Collegiate Education inspected the college. Criminal proceedings were also registered under Section 385 of I.P.C. against some of the persons in the management. Again on 10.4.2008, the Director of Collegiate Education inspected the college. On 12.5.2008, he submitted a report to the government recommending action against the management and also recommended stoppage of admission for the year 2008-2009. Sensing problem, the management amended the trust-deed amending the object of the trust, incorporating clause(2)(b)(i) and 2(b)(ii) in the Trust-deed to serve the minority community. On 30.3.2009, the third respondent university passed a resolution suspending the admission of students in the second respondent college for the year 2009-2010. On 20.5.2009, the Regional Joint Director submitted a report to the fourth respondent-the Director of Collegiate Education, Chennai, recommending invocation of Section 14A of the Tamil Nadu Private Colleges Regulation Act 1976. Thereafter, on 10.8.2009, the management of the college applied for minority status and the first respondent granted minority status by virtue of G.O.Ms.No.355/2009 dated 25.9.2009. The said G.O. is challenged before this Court.
3. Mr.N.R.Chandran, learned Senior Counsel appearing for the petitioner, submitted the following:
a) The institution was functioning as a private institution and also as non-minority institution right from 1974 and there is no cause/necessity for the second respondent college to get minority status.
b) The Original Trust-deed which incorporated the object to serve general public, was deliberately amended on 29.2.2009 to serve the linguistic minority only and the same is to get over problems faced by them. The second respondent institution cannot be called as a minority institution as it was not established to serve minority community, and continues to be administered as minority institution.
c) Judgement of the Hon'ble Court in S.Azeez Basha and another vs. Union of India etc. reported in AIR 1968 SC 662, it has been held that the words "establish and administer" in Article 30 (1) must be read conjunctively and if so read, it clearly shows that the minority will have the right to administer educational institutions of their choice provided they have established them, but not otherwise.
d) When the Tamilnadu Private Colleges Regulation Act 1976 came into force, as per Section 9 of the Act, the Minority College should inform the concerned authority about its minority status, whereas, in the case on hand, no statement was sent stating about its minority status as per Section 9 of the Act and as per rule 6 and that itself proves that the second respondent never claimed itself as minority institution.
e) When the administration of the college is governed by the provisions of the Tamilnadu Private Colleges Regulation Act 1976 and the employees' rights are governed by the Act, the same cannot be interfered with or taken away by the conferment of the status of minority institution to the second respondent.
f) When the rights of the employees are protected as per Sections 11, 19 and 24(3) of the Act, without notice to the employees, the said right cannot be taken away by the impugned order. Therefore, the said G.O. is bad for violation of principles of natural justice.
g) The object of the trust was amended without invocation of Section 92 of CPC by getting permission from the competent civil court.
h) There is lack of bonafide on the part of the second respondent to claim minority status as there were adverse orders against the said college. There is no proof that the beneficiaries of the institution are of Telegu men.
i) Even the impugned order does not satisfy the guidelines conferring minority status, as stated in G.O.Ms.No.270 Higher Education dated 17.6.1998.
j) Judgement in Vattavila Sree Bhadrakali Kollam Code, Kanyakumari District Educational Society rep. by its President and another vs. The State of Tamilnadu rep. by the Secretary to Government, Education Department and others reported in 2005 (2) TLNJ 161, declares that the persons having obtained permission to establish a school only as private school, would not be entitled to convert the same as minority school by estoppel. Therefore, he seeks for setting aside the said G.O.
4. Mr.R.Subramanian, learned counsel appearing for the 5th respondent, non-teaching staff association, submitted that the second respondent institution committed various misdeeds and therefore, the Director of Collegiate Education, submitted an adverse report against the second respondent. By virtue of minority status, rights conferred on the non-teaching staff as per Sections 11, 14, 19, 20, 21 and 22 of the Tamil Nadu Private Colleges Regulations Act, are violated. Once the rights of fifth respondent are taken away by the impugned Government Order, the fifth respondent should have been heard before conferring the minority status.
5. He relied upon the judgements in reported in 1993 (3) SCC 259 which declares that reasonable opportunity has to be given, when the impugned itself has civil consequences and in reported in 1970 2 SC 417, which declares that for establishment of minority institution, it must be for the benefit of minority community or by a member of that community. He also prays for quashing of the impugned government order.
6. On the other hand, Mr.R.Muthukumarasamy, learned senior counsel for the second respondent, submitted the following:
i) Rights of the minority to establish and administer the educational institutions are protected by 30 of the Constitution of India.
ii) The Trust was found by a Telugu Minority man. The intention to establish the second respondent institution is to protect the minority community and it is being administered only by the family members of the founder belonging to Telugu minority people.
iii) As the institution was established and is being administered by minority community, there is no necessity that the beneficiaries should also be the minorities. As per Stephen's case, minority institution cannot admit more than 50% of minority students and that there are no requirements that 50% of the student admitted, must be necessarily from the minority community. He relied upon the following judgements of the Hon'ble Supreme Court:
1) Rev. Father W. Proost and others vs. State of Bihar and others reported in AIR 1969 SC 465. Paragraphs 11 and 12.
2) N.Ammad vs. Manager Emjay High School and others reported in (1998) 6 SC 674. Paragrphs 12 and 13.
3) Nar Singh Pal vs. Union of India and others reported in (2000) 3 SCC 588. Paragraph 13.
4) The Correspondent, St.Ignatius Higher Secondary School, Kurumbanai and others vs. Director of School Education, Chennai and others reported in 1999 (1) CTC 121 Para-6, which declares that declaration of minority status is only an acceptance of legal character which existed anterior to such declaration.
5) Indulal Hiralal Shah and others vs. S.S.Salgaonkar and others reported in AIR 1983 Bombay 192- Paragraphs 6,10 and 11.
7. He repelled the contention of the petitioner as well as the fifth respondent that they should be given notice before conferring minority status by submitting that there is no necessity for such notice as the conferment is consequent to the fundamental rights guaranteed under Article 30 of the Constitution of India. The provisions of the Act cannot be employed against the fundamental rights of the minority community. The rights of the petitioner as well as the 5th respondent are sufficiently safeguarded even after the institution is declared as minority institution. The petitioners and the fifth respondent have no locus standi to question the minority status declared by the Government.
8. Heard the parties and perused the records. It is seen from the Trust Deed that Mr.C.P.Muthusamy Chettiar established the Public Charitable Trust and its object as incorporated in paragraph 2, reads as follows:
"2. The objects of the Trust are as under:-
(a) to establish, take over or acquire and maintain and manage hospitals, clinics, laboratories, dispensaries and medical research centres and to provide free to the poor, medicines, medical and surgical advice and aid,
(b) to establish, take over or acquire and maintain and manage schools, colleges and other educational institutions, hostels or libraries for imparting general, chemical and scientific knowledge including in particular knowledge in medicine including surgery and also ayurveda.
(c) to award scholarships or stipend in India to students to enable them to prosecute their studies in India or in foreign countries and to award prizes to students for proficiency in any subject or language.
(d) to render financial assistance to any existing hospitals and educational institutions or libraries and to prove books for libraries;
(e) to give food and clothing or alms to the poor;
(f) to encourage the study of Philosophy, Civilisations, Cultures and Sanskrit and other languages;
(g) to hold conferences and meetings, discussions in respect of above subjects;
(h) to acquire, construct and maintain buildings to advance the objects mentioned above;
(i) to do all such other lawful things as are incidental or conducive to the attainment of the above objects."
The aforesaid trust deed would reveal that the object is for general public and it is not meant for any particular section of the society. However, an amendment was made by rectification deed dated 27.2.2009, by which the object of the trust was modified by introducing Clause (2) (b)(i) and 2(b)(ii) as under.
"NEW SUB CLAUSES INSERTED IN THE HEAD IN ITEM 2(b) OF OBJECTS CLAUSE TO READ AS UNDER:
2(b) (i) To establish take over or acquire and maintain and manage schools, colleges and other educational institutions, hostels or libraries for imparting general, chemical and scientific knowledge including in particular knowledge in medicine including surgery and also ayurveda which shall primarily and principally cater to the students who belong to the linguistic minority community having Telugu as their mother tongue.(emphasis supplied) 2(b)(ii) Upon fulfilling principally or if circumstances so admit/so require, or if the circumstances so require substantially, the aforesaid object referred in sub clause (i) above to the maximum extent possible, the trust shall endeavour to impart establish take over or acquire and maintain and manage schools, colleges and other educational institutions, hostels or libraries for imparting general, chemical and scientific knowledge including in particular knowledge in medicine including surgery and also ayurveda, to all the other sections of the society."
9. By incorporating the amendment dated 27.2.2009, the trust is meant for only for the benefit of Telegu linguistic community. Though it has been contended by the petitioner as well as the fifth respondent that the amendment to the trust deed requires permission from the Court under Section 92 CPC, this Court is of the view that there is no necessity to get permission from the Court under Section 92 of the C.P.C. as long as the trust board has got power to modify/amend the trust-deed as per clauses 16 and 17 of the original trust deed. Therefore, the trustees are well within their power to amend the object of the trust and the contention of the petitioner in this regard is rejected.
10. There are certain allegations regarding functions of the institution. There were complaints from the fifth respondent and students to the University and other authorities. Based on the complaints, the Regional Joint Director of Collegiate Education visited the college on 14.2.2008, and also there were visits by the Director of Collegiate Education on 10.4.2008. The Director of Collegiate Education by communication dated 12.5.2008 recommended the suspension of admission of students for the year 2008-2009. The relevant portion of the said report reads as follows:
VERNACULAR (TAMIL) PORTION DELETED From the above, it is clear that the original complaint about the functioning of the College, from the petitioner's association was made as early as on 16.11.2007. On the basis of students' memorandum dated 13.2.2008, the Regional Joint Director made a visit on 14.2.2008. Only after these developments, the second respondent management amended the trust deed dated 27.2.2009. Subsequently, on 20.5.2009, the Regional Director, based on the surprise visit made on 18.3.2009 submitted a report to the Director of Collegiate Education and recommended to invoke Section 14A of the Tamilnadu Private Colleges and Regulation Act, and the concluding paragraph of the report reads as follows:
" The above said violations of the provisions of TNPC(R) Act 1976, University Regulations, the Government orders and proceedings and the various agreements have resulted in campus disturbance ultimately affecting the interest of the students and the staff. Immediate action is warranted against the management of the CBM College in order to bring back normalcy that would ensure correct and proper functioning the college. Hence it is recommended that the Government may be pleased to invoke Section 14A of the TNPC(R) Act 1976 to streamline the administration of the college. The Government interventions is urgently warranted in order to make the admission for the year 2009-2010 that have been suspended by the Bharathiar University through its Syndicate Resolution dated 30.03.2009. If this impasse continues, the admission of nearly 500 students belonging to the backward class, SC and ST would be in question. Hence RJDCE, Coimbatore earnestly seeks the immediate intervention of the Government of Tamilnadu by invoking the provisions of TNPC(R) Act."
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Hence it is evident that all were not well with the second respondent institution when it sought for minority status. Only to over come the problems faced by it, the second respondent took "Minority Status" which status it did not claim for more than 3 decades i.e. From 1975 to 2009, even though it is entitled.
11) When the institution which was established as a private institution by a minority, not claiming minority status, whether it could later made claim minority status? At this juncture it is useful to refer Article 30 of the Constitution of India which reads as follows:
" 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.
((1A) 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."
It is clear that all the minorities have the rights to establish and administer educational institution of their choice.
12) With regard to legal position, the following judgements have to be considered. It has been held in S.Azeez Basha and another vs. The Union of India etc. reported in AIR 1968 SC 662 that the minority will have a right to administer educational institutions of their choice provided they have established them, but not otherwise. Paragraph 19 reads as follows:
"19. Under Article 30(1), "all minorities whether based on religion or language shall have the right to establish and administer educational institutions of their choice. " We shall proceed on the assumption in the present petitions that Muslims are a minority based on religion. What then is the scope of Article 30 (1) and what exactly is the right conferred therein on the religious minorities? It is to our mind quite clear that Article 30(1) postulates that the religious community will have the right to establish and administer educational institutions of their choice meaning thereby that where a religious minority establishes an educational institution, it will have the right to administer that. An argument has been raised to the effect that even though the religious minority may not have established the educational institution, it will have the right to administer it, if by some process it had been administering the same before the Constitution came into force. We are not prepared to accept this argument. The Article in our opinion clearly shows that the minority will have the right to administer educational instituitons of their choice provided they have established them, but not otherwise. The Article cannot be read to mean that even if the educational institution has been established by somebody else, any religious minority would have the right to administer it because, for some reason or other, it might have been administering it before the Constitution came into force. The words "establish and administer" in the Article must be read conjunctively and so read it gives the right to the minority to administer an educational institution provided it has been established by it. In this connection our attention was drawn to in re; The Kerala Education Bill, 1957, 1959 SCR 995: (AIR 1958 SC 956) where, is is argued, this Court had held that the minority can administer an educational institution even though it might not have established it. In that case an argument was raised that under Article 30 (1) protection was given only to educational institutions established after the Constitution came into force. That argument was turned down by this Court for the obvious reason that if that interpretation was given to Article 30 (1) it would be robbed of much of its content. But that case in our opinion did not not lay down that the words "establish and administer" in Article 30(1) should be read disjunctively so that though a minority might not have established an educational institution it had the right to administer it. It is true that at p. 1062 (of SCR): at p. 982 of AIR) the Court spoke of Article 30(1) giving two rights to a minority i.e. (i) to establish and (ii) to administer. But that was said only in the context of meeting, the argument that educational institutions established by minorities before the Constitution came into force did not have the protection of Article 30 (1). We are of opinion that nothing in that case justifies the contention raised on behalf of the petitioners that the minorities would have the right to administer an educational institution even though the institution may not have been established by them. The two words in Article 30(1) must be read together and so read the Article gives the right to the minority to administer institutions established by it. If the educational institution has not been established by a minority it cannot claim the right to administer it under Article 30(1). We have therefore to consider whether the Aligarh University was established by the Muslim minority; and if it was so established, the minority would certainly have the right to administer it." (Emphasis supplied) In State of Kerala etc. v. Very Rev.Mother Provincial, reported in AIR (1970) 2 SCC 417 the Constitution Bench, while considering the constitutional validity of some of the provisions of Kerala University Act recognised the rights of minorities to establish and administer institutions and paragraphs 8 & 9 read as follows:
" 8. Article 30(1) has been construed before by this Court. Without referring to those cases it is sufficient to say that the clause contemplates two rights which are separated in point of time. The first right is the initial right to establish institutions of the minority's choice. Establishment here means the bringing into being of an institution and it must be by a minority community. It matters not if a single philanthropic individual with his own means, founds the institution or the community at large contributes the funds. The position in law is the same and the intention in either case must be to found an institution for the benefit of a minority community by a member of that community. It is equally irrelevant that in addition to the minority community others from other minority communities or even from the majority community can take advantage of these institutions. Such other communities bring in income and they do not have to be turned away to enjoy the protection.
9. The next part of the right relates to the administration of such institutions. Administration means management of the affairs of the institution. This management must be free of control so that the founders or their nominees can mould the institution as they think fit, and in accordance with their ideas of how the interests of the community in general and the institution in particular will be best served. No part of this management can be taken away and vested in another body without an encroachment upon the guaranteed right."
From the above judgement it is clear that if the institution is established by a minority community, it would certainly have the right to administer it. The above judgement is squarely applicable to the facts of the case, as the second respondent was established by a telugu minority and is being administered by his descendants and the second respondent is entitled to the protection of Article 30(1) of the Constitution of India.
In St Stephen's College etc vs. The University of Delhi reported in AIR 1992 SC 1630 the Apex Court held that the words "establish" and "administer" used in Article 30(1) are to be read conjunctively and that the right claimed by a minority community to administer educational institution depends upon the proof of establishment of the institution.
In Rev. Father W.Proost and others v. The State of Bihar and others reported in AIR 1969 SC 465, it has been held that the width of Article 30(1) cannot be cut down by introducing in it considerations on which Article 29 is based. Paragraphs 8 and 12 are useful and they are extracted below:
"8. In our opinion the width of Article 30(1) cannot be cut down by introducing in it considerations on which Article 29(1) is based. The latter article is a general protection which is given to minorities to conserve their language, script or culture and the choice is not taken away if the minority community having established an educational institution of its choice also admits members of other communities. That is a circumstance irrelevant for the application of Article 30(1) since no such limitation is expressed and none can be implied. The two articles create two separate rights, although it is possible that they may meet in a given case.
9...........
10..........
11-12. In our judgement the language of Art 30(1) is wide and must receive full meaning. We are dealing with protection of minorities and attempts to whittle down the protection cannot be allowed. We need not enlarge the protection but we may not reduce a protection naturally flowing from the words. Here the protection clearly flows from the words and there is nothing on the basis of which aid can be sought from Article 29(1)." (Emphasis supplied) In N.Ammad vs. Manager, Emjay High School and others reported in (1998) 6 SCC 674, it has been held that a school which is otherwise a minority school, would continue to be so whether the government declared it as such or not. When the Government declared the school as a minority school, it has recognised a factual position that the School was established and is being administered by a minority community. Paragraphs 12 and 13 of the judgement read as follows:
"12. Counsel for both sides conceded that there is no provision in the Act which enables the Government to declare a school as a minority school, if so, a school which is otherwise a minority school would continue to be so whether the Government declared it as such or not. Declaration by the Government is best only a recognition of an existing fact. Article 3o(1) of the Constitution reads thus:
"30 (1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice"
13. When the Government declared the School as a minority school it has recognised a factual position that the school was established and is being administered by a minority community. The declaration is only an open acceptance of a legal character which should necessarily have existed antecedent to such declaration. Therefore, we are unable to agree with the contention that the School can claim protection only after the Government declared it as a minority school on 2.8.1994." (Emphasis supplied) In this case all the trustees are descendants of founder who was a linguistic minority. The above judgements would make it clear that if the institution has got the character of the minority, namely established and being administered by the minority, the second respondent remains as minority one. Even in the absence of anything in the object of the trust or even non-filing of statement as per Section 9 of the Tamilnadu Private School Regulation Act and Rule 6 of the Tamilnadu Private Colleges Rules, the second respondent remains as minority institution. In recognition of the minority character only,the Government declared the institution as minority institution.
13. Merely because the second respondent was functioning as a private institution without claiming minority status, there is no bar for the said institution to claim minority status subsequently. At this juncture, this court has to appreciate and respect the founder of the institution for his magnanimous, philatharapic and service oriented approach to the general public by founding the Trust for the benefit of general public uninfluenced by linguistic considerations. As the second respondent institution was found and is being administered by linguistic minority, whose rights are safeguarded under Article 30 of the Constitution of India, by declaration of minority status, new rights are not created and are only recognised. As rightly contended by R.Muthukumarasamy, the learned senior counsel for the second respondent, the existing rights have only been recognised and no new rights are created. As long as the institution is established and administered by the minority community, the minorities have right, at any point of time, to claim minority status.
14. This Court readily agrees with the submission of Mr.R.Muthukumarasamy that there can not be any waiver of fundamental rights. The Apex Court in a Constitution Bench Judgement in Basheshar Nath vs. Commissioner of Income Tax reported in AIR 1959 SC 149 held that there can be no waiver of fundamental right. In Nar Sing Paul vs. Union of India and others reported in (2000) 3 SCC 588, the Apex Court held that fundamental rights under the constitution cannot be parted away and cannot be compromised, nor there can be any estoppel against the exercise of fundamental rights available under the Constitution. The second respondent institution, though founded and being administered by linguistic minority cannot be said to have waived its fundamental rights guaranteed under Article 30 of the Constitution of India, merely because it did not seek declaration of minority status earlier.
15. Paragraph-3 of the counter affidavit filed by the respondents 1 and 4 refers G.O.Ms.No.270 Education (J1) Department dated 17.6.1998, which prescribes certain guidelines for conferring minority status. Paragraph 3 of the counter affidavit reads as follows:
" 3. It is submitted that since the Apex Court in the above decision has held that, the Government is the competent authority to verify and determine the minority status of the Education Institution for the purpose of Article 30(1) of the Constitution of India, the Government of Tamil Nadu in G.O.Ms.No.270 Education (J1) Department, dated 17.6.1998 have issued the following guidelines for conferring minority status to the Educational Institutions:-
(i) The object of the educational institutions should be for promoting the interests of the minority concerned and it should sub-serve the interests of the minority community concerned.
(ii) Such educational institution should have been established by the minority and should be continuously administered 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 members of the Governing Body of the minority educational institutions shall belong only to the concerned minority. In the case of self-financing educational institutions imparting professional courses 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;
(v) To decide whether an application 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.
(vi) In so far as Tamil Nadu State is concerned, any persons 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."
The second respondent institute satisfies all the guidelines of the aforesaid G.O., except condition No.1. This court already held that the trustees has got power to amend the object that the trust is for minority community. After amendment of the Trust deed, all the conditions contained in G.O.Ms.No.270, have been rightly complied with by the second respondent. When the guidelines were complied with, the first respondent rightly passed the impugned G.O. and it cannot be interfered with.
16. There is no dispute with regard to linguistic status of the founder of the trust. His mother tongue was Telugu. The trust is being managed only by the descendants of the founder whose mother tongue is Telugu. Telugu people are linguistic minority in the State of Tamilnadu. It is a fact that the trust was found for the benefit of the general public and subsequently, it was amended by the trustees to serve the minority community. As already found, they are entitled to amend the trust-deed. The second respondent institution was established as a private institution and continued to be private institution till it was declared as minority institution by the impugned order dated 25.9.2009. Therefore, there is no illegality in passing the impugned order.
17. It is contended by the petitioner as well as the 5th respondent that there is violation of principles of natural justice and the impugned order has to be set aside as their rights protected under the provisions of the Tamilnadu Private Collegiate Regulation Act are taken away. However, there is no necessity to hear the petitioner before conferment of minority status, as the pre-existing right alone was recognised by the impugned order. Even if the petitioners were heard, they cannot oppose the protection available to the second respondent under Article 30 of the Constitution of India. In that event, hearing the petitioner would be an empty formality and it serves no purpose. Therefore, the said contention of the petitioner in this regard is rejected. Merely because the second respondent has no minority status earlier, it does not prohibit them from claiming the same at a later point of time.
18. Though the circumstance under which the minority status is claimed, is a suspicious one, the said circumstance cannot be employed against the second respondent. In view of Article 30, it is only a pre existing right. The Act gives protection to the staff by enabling them to participate in the management. The service conditions of both teaching and non-teaching staff are governed by Sections 18 to 22. However, some of them are not applicable to the minority institution as per Section 24(3) of the Act. There is a private agreement between the management and the staff as per Form 7A of the Tamil Nadu Private Colleges Rules and Regulations. Hence conferring minority status would appear to have taken away their rights. No doubt, certain rights of the second respondent staff are being taken away. Therefore, this court has to strike a fine balance between the rights of both the parties. Though the fundamental rights of the second respondent is more precious and valuable, by any stretch of imagination, the statutory rights of the petitioner as well as the 5th respondent are of lesser value. Rights of the petitioner as well as the 5th respondent are governed by the provisions of the Tamil Nadu Private Colleges Regulation Act. Statutory rights of the staff cannot be very lightly interfered with by subsequent acquisition of minority status by the second respondent. Therefore, this court holds that rights of the petitioner as well as the 5th respondent continue to be protected by the provisions of the Tamilnadu Private Colleges Regulation Act. The members of the petitioners and 5th respondent who joined the service of the second respondent before the acquisition of minority status by the second respondent would be governed by the provisions of Tamil Nadu Private Colleges Act and Rules as a Private Institution.
19. In fine, this court holds that:
1) The Trustees have power to amend the object of the trust and there is no necessity to seek permission from the Civil Court under Section 92 of C.P.C.
2)Second respondent institution was founded by a Linguistic Minority and it is being administered by the descendants of the founder who was a Linguistic Minority.
3)Second respondent satisfied the guidelines prescribed in G.O.Ms.No.270 Education (J1) Department dated 17.6.1998 for conferment of minority status.
4) Even though the second respondent institution was established as a private institution, as it has been continuously being administered by the Linguistic Minority they are entitled to protection under Article 30 of the Constitution of India.
5) The conferment of Minority status is only recognition of pre-existing minority status of the second respondent institution. Therefore, the declaration of the minority status of the second respondent by the impugned order is valid.
6) However, the rights of the teaching and non-teaching and staff employees, who joined the service of second respondent before conferment of minority status by the impugned order would continue to be governed by the provisions of the Tamil Nadu Private Colleges and Regulation Act and Rules etc. as a private institution.
19. With the above, the writ petition is disposed. No costs. Consequently the connected M.P.Nos.1 and 2 of 2009 are closed.
vk To
1.Government of Tamil Nadu rep. by its Secretary to the Government, Higher Education Department, Fort St.George, Chennai.
2.C.B.M.College, Represented by its Secretary, Kovaipudur, Coimbatore-641 042.
3.The Registrar, Bharathiyar University, Coimbatore.
4.Director of Collegiate Education, College Road, Chennai-600 006.
5.C.B.M.College TANSAC Unit rep. by its Secretary CBM. College, Coimbatore