Madras High Court
The Congregation Of vs The Government Of Tamil Nadu Rep. By on 2 November, 2010
Author: M.Sathyanarayanan
Bench: M.Sathyanarayanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 2.11.2010
Coram:
The Honble Mr.Justice M.SATHYANARAYANAN
Writ Petition No.3299 of 2005
The Congregation of
The Regular Tertiary Franciscans Sisters
Of Our Lady of Bonsecours rep. by its
President Rev.Sr.Fatima Rani,
Superior General, Madha Church Road,
Chennai 600 028. Petitioner
Versus
1. The Government of Tamil Nadu rep. by
The Secretary, Education Department,
Fort St. George, Chennai-9.
2. The Director of Elementary Education,
DPI Campus, College Road,
Chennai.
3. The District Elementary Educational Officer,
Madurai-1.
4. The Assistant Elementary Educational Officer,
Madurai (North), Madurai. Respondents
Petition filed under Article 226 of the Constitution of India, praying to issue a writ of Certiorarified Mandamus to call for the records of the 1st respondent pertaining to the G.O.Ms.No.140, School Education (B2) Department, dated 21.10.2004, quash the same and consequently direct the 1st respondent to grant minority status to St. John De Bhritto Middle School, Bharathi Nagar, Madurai-18, managed by the petitioner educational agency within a time frame.
For Petitioner .. Fr.A.Xavier Arulraj,
For Respondents .. Mr. S.Gopinathan, AGP.
O R D E R
The petitioner aggrieved by the order dated 21.10.2004, passed by the first respondent under which, their request for grant of minority status to St. John De Bhritto Middle School, Bharathi Nagar, Madurai-18, came to be rejected, had filed this writ petition to quash the said order and for appropriate direction directing the first respondent to grant minority status.
2. The facts necessary for the disposal of this writ petition are as follows:-
The deponent to the affidavit is the President of the petitioner society and Superior General of the Religious Congregation of The Regular Tertiary Franciscans Sisters Of Our Lady of Bonsecours. The petitioner is a registered society registered under the Societies Registration Act and it is a Religious, charitable Educational Society. The society is running number of educational institutions throughout India and all the institutions are minority institutions in terms of Article 30(1) of the Constitution of India. The petitioner Educational Agency is running 7 Primary Schools, 12 Middle Schools, 5 High Schools, 11 Higher Secondary Schools and 2 Teacher Training Institutions and also a Women College. All the institutions run by the petitioner agency are declared as minority institutions by a judgment of this Court dated 24.9.1976 in W.P.No.626 of 1975. The Director of School Education vide his proceedings in R.C.No.24541-G3/76 dated 20.11.1976 has approved the Congregation of The Regular Tertiary Franciscans Sisters of Our Ladu of Bonsecours which run the schools as minority institutions.
3. The educational agency took over the administration of the school by name Ebenezar Middle School, Bharathi Nagar, Madurai-18 from the Manager of the school namely Mr.Deva Irakkam on 21.5.1997. The school was established by Thiru.A.S.Sathiyanathan who is a Christian by birth and after his demise, his son Thiru.A.S.Dharmaraj took over as the Manager and Correspondent of the said school on 25.3.1961 and thereafter Mr.Deva Irakkam took over as Manager and Correspondent of the said school on 20.8.1977 and he continued in that position till 20.5.1997 and on that day, the petitioner took over the said school. Mr.A.S.Sathiyanathan, his son Mr.A.S.Dharmaraj and Mr.Deva Irakkam are Christians by birth and practiced Christianity till their death.
4. The community status of the above said persons as Christians, were certified by Tahsildar, Madurai South Taluk in his certificate dated 30.6.2000.
5. After the management and administration of the school was taken over by the petitioner's society, the third respondent had approved the said transfer vide his proceedings dated 19.3.1998 with effect from 25.1.1997 under Rule 2(b) of the Tamil Nadu Recognition of Private Schools Regulation Act and in the same proceedings, the said official has granted approval of Sister Saroja as the Correspondent with effect from 21.5.1997 and Sister Saroja is the member of the petitioner educational agency.
6. The above said school is managed by the petitioner educational agency and it is also receiving Grant-in-Aid from the Government of Tamil Nadu and it is a recognized school.
7. The school is continuously managed by the people professing Christian faith and it is for the welfare of the Christian minority community. At present, the students strength is more than 1,000 students and out of which, 50% are Christian minority students.
8. The petitioner agency applied to the concerned authorities for a declaration that the above said school is a minority institution and the third respondent vide his proceedings dated 23.4.1998, has forwarded a proposal to the second respondent. The second respondent vide his reply dated 13.5.1998, has stated that the proposals are under consideration and the Government Order is awaited.
9. The guidelines for obtaining minority status for educational institutions have been issued in G.O.Ms.No.375, School Education (XI) Department, dated 12.10.1998. As per the guidelines, if the institution is established by the members of minority community and if it is being administered by the members of minority community, then the institution is eligible for minority status. The said G.O. also clarifies that it is applicable retrospectively also to the schools which had been established and already transferred.
10. The first respondent has called for the details with regard to the above said school from the third respondent who in turn, directed the fourth respondent who forwarded proposals in a proper format. Accordingly, the third respondent has forwarded a proposal to the second respondent on 13.08.1999 and 10.11.1999 respectively. The second respondent after receipt of the same, has submitted his proposal to the first respondent vide his proceedings dated 06.01.2000 and made a positive recommendation to pass an order declaring that the above said school as minority institution. Subsequently, queries were raised and all the queries were promptly answered by the petitioner and it has complied with all the formalities required to declare the said institution as a minority institution.
11. On 7.5.2003, the second respondent also accorded approval for changing the name of the school (Ebenezar School) to St. John De Bhritto Middle School.
12. Since no orders have been passed with regard to the proposals submitted for declaring the above said institution as a minority institution, the petitioner filed W.P.No.9521 of 2004 praying for the issuance of writ of mandamus directing the first respondent to pass orders on the proposal dated 6.1.2000, forwarded by the second respondent.
13. This Court vide order dated 8.4.2004, has directed the concerned authorities to pass orders on the proposal within a period of 12 weeks from the date of receipt of copy of the order.
14. In spite of the said order, the first respondent has not chosen to pass orders and therefore, the petitioner was left with no other option except to initiate contempt proceedings and prior to the institution of the contempt, a notice was sent on 16.09.2004.
15. The first respondent in order to avoid the contempt, has passed the impugned G.O. dated 21.10.2004 stating that the school was established and administered by a non-minority community. It is further stated in the Government Order that the said conclusion is based on the report of the second respondent. Challenging the vires of the said order, the present writ petition is filed.
16. The third respondent has filed a counter for himself and on behalf of the second and 4th respondents. It is stated among other things in the counter that the group of 25 teachers including eight retired teachers with Thiru.P.Deva Irakkam, H.M. as the Head of Team, could not come forward with the proposal to get the approval from the third respondent for having taken over the possession of the school from the outgoing educational agency, as the team of teachers had not been considered as one unit and conditions prescribed for the transfer of educational agency were not fulfilled by them. The third respondent has also raised a query as to whether the order of the first respondent can be challenged before this Court and whether this Court has jurisdiction to entertain the writ petition and pass orders. The third respondent would further contend that the school in question was established only by a non- minority people and therefore, it is not entitled to any relief.
17. Heard the submissions of Fr.A.Xavier Arulraj, learned counsel appearing for the petitioner and Mr. S.Gopinathan, learned Additional Government Pleader. This Court has also perused the materials available on record in the form of typed set of documents and the counter affidavit filed by the third respondent on his behalf and also on behalf of the second and fourth respondents.
18. The purport of Article 30(1) of the Constitution of India was considered by the Honble Supreme Court of India in T.M.A. Pai Foundation v. State of Karnataka reported in 2002 (8) SCC page 481 : AIR 2003 SC page 355. In paragraph 114 it has been held as follows:
114. Elaborating on the meaning and intent of Article 30, the learned Chief Justice further observed as follows: (SCC p. 744, para 12) 12. The real reason embodied in Article 30(1) of the Constitution is the conscience of the nation that the minorities, religious as well as linguistic, are not prohibited from establishing and administering educational institutions of their choice for the purpose of giving their children the best general education to make them complete men and women of the country. The minorities are given this protection under Article 30 in order to preserve and strengthen the integrity and unity of the country. The sphere of general secular education is intended to develop the commonness of boys and girls of our country. This is in the true spirit of liberty, equality and fraternity through the medium of education. If religious or linguistic minorities are not given protection under Article 30 to establish and administer educational institutions of their choice, they will feel isolated and separate. General secular education will open doors of perception and act as the natural light of mind for our countrymen to live in the whole. Keeping the said decision in mind, this Court has carefully analysed the materials available on record in the form of typed set of documents.
19. The Director of Elementary Education who is arrayed as second respondent vide letter Na.Ka.No.15624/EJ3/98 dated 6.1.2000, addressed to the first respondent, after taking into consideration the entire materials placed before him, has made a firm and positive recommendation that the school is continuously run by the people belonging to minority community and therefore the institution can be termed as religious minority institution and therefore requested the first respondent to pass orders. The Additional Secretary of the first respondent department in his letter dated 7.2.2000 addressed to the second respondent, has sought for certain clarification especially with regard to the Mother Tongue, Religion and address of the Administrative Member and for what reason the school was taken over by the petitioner and the number of minority students studying in the said institution. Therefore, further clarification was sought for from the petitioner and all the details were furnished to the second respondent. The Assistant Educational Officer, who is arrayed as the fourth respondent, has also addressed a letter to the District Elementary Educational Officer on 9.11.2000 stating that the persons who run the management and administration of the school namely Mr.A.S.Sathiyanathan, Mr.A.S.Dharmaraj and Mr.P.Deva Irakkam are belonged to minority community and also enclosed the certificate issued by the Tahsildar, Madurai South Taluk and that the institution run by the petitioner educational society is also a minority institution and therefore, made recommendations for granting minority status.
20. In spite of such positive recommendations made by the fourth respondent as well as by the second respondent to grant minority status to the school run by the petitioner, no orders were passed by the first respondent and hence the petitioner filed W.P.No.9521 of 2004 for conferment of minority status on the school and this Court vide order dated 8.4.2004, has directed the respondents to consider and pass orders on the request made by the petitioner. The respondents in spite of receipt of the order passed by this Court, were keeping quite and hence on behalf of the petitioner a legal notice dated 16.9.2004 were sent to them inviting their attention to the orders passed in the above said writ petition and also put them on notice that in the event of non-compliance of the order, proceedings under Contempt Act will be initiated and first respondent on receipt of the said notice, within a short span of time, has passed the impugned Government Order on 21.10.2004, rejecting the request made by the petitioner.
21. It is relevant to extract paragraph 4 of the impugned Government Order which is the subject matter of challenge in this writ petition.
4. The Government has examined the representation of the Secretary, Ebenezar Middle School, now St.John De Britto Middle School, Bharathi Nagar, Madurai based on the report of the Director of Elementary Education and relevant copies of documents sent by the Director of Elementary Education with reference to the guidelines issued in G.O.Ms.No.375, School Education Department, dt.12.10.98. Under Article 30(1) of the Constitution, the right to administer an educational institution depends upon the proof of establishment. The proof of establishment of the institution is a condition precedent for claiming the right to administer the institution. Unless the minority had established the institution, it cannot claim a right to administer under Article 30(1) of the Constitution. The Ebenezar Middle School, now St. Johns De Britto Middle School, Bharathi Nagar, Madurai was established administered by a non-minority, which subsequently made to be composed of a body belonging to a minority, which presently administers the institution. Hence, Ebenezar Middle School, now St. John De Britto Middle School, Bharathi Nagar, Madurai which was not originally established by religious Minorities, cannot be treated as Minority Institution under Article 30(1) of the Constitution. Accordingly, the request of the Secretary, Ebenezar Middle School, now St. John De.Britto Middle School, Bharathi Nagar, Madurai-18 for Conferment of Minority Status is rejected.
22. A perusal of paragraph 4 of the impugned order would disclose that the report of the Director of Elementary Education and the relevant documents sent by him, were considered with reference to G.O.Ms.No.375, School Education Department dated 12.10.1998. The first respondent after taking into consideration the said material, has arrived at the conclusion that the school run by the petitioner was established and administered by a non-minority and subsequently transferred to a body belonging to the minority namely the petitioner which presently administered the institution. It has been further held by the first respondent that the school in question was not originally established by the religious minority and consequently, cannot be treated as minority institution.
23. In the considered opinion of the Court, the reasons stated by the first respondent for rejecting the prayer made by the petitioner to declare Ebenezar Middle School, now St. John De.Britto Middle School, Bharathi Nagar, Madurai-18, as non-minority institution on the face of it, is unsustainable.
24. A perusal of paragraph No.4 of the impugned order would disclose that except the report and documents forwarded by the second respondent, no other materials were available before the first respondent or placed before him to arrive at such a decision that it was not originally established by religious minorities and that it was established and administered by non-minority religious.
25. It is pertinent to point out at this juncture that the second respondent vide his proposal in Na.Ka.No.15624/EJ3/98 dated 6.1.2000, has clearly indicated that the said school was run by the people belonging to minority community from 1955 onwards and continued to be administered by them and at present it is under the control and management of the petitioner and it continues to be administered by minority hence minority status can be given to the said institution. Further clarification was sought by the first respondent vide his letter dated 7.2.2000 and all the required particulars were furnished.
26. The Tahsildar, Madurai South Taluk vide his certificate dated 30.6.2000, has clearly indicated that Thiru.A.S.Sathiyanathan, who started the institution and by Mr.A.S.Dharmaraj son of Mr.A.S.Sathiyanathan who subsequently administered the institution and so also Mr.P.Deva Irakkam, who administered the institution till it was taken over and transferred to the petitioner, are Catholic Christians and are belonged to minority community and the school in question is being run by the people belonging to minority community.
27. In the teeth of the above said proposals submitted by the second respondent and the unimpeachable documents which had clearly disclosed that the institution was started and administered by the people belonging to the minority community and the petitioner who took over the institution is also consisting of people belonging to minority community viz., the Christians, the reasons stated by the first respondent in paragraph No.4 of the impugned order on the face of it, are unsustainable.
28. A perusal of the counter affidavit filed by the third respondent on his behalf and on behalf of the respondents 2 and 4 would disclose that a new stand has been taken that the team of teachers had not been considered as one unit and the conditions prescribed for transfer of educational agency were not fulfilled by them. However, the said stand taken in the counter affidavit was not cited as a reason by the first respondent to reject the request made by the petitioner.
29. In Mohinder Singh Gill v. Chief Election Commissioner, New Delhi-(1978) 1 SCC 405 : AIR 1978 SC page 851, it has been held as follows:-
8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in Commissioner. of Police, Bombay v. Gordhandas Bhanji, AIR 1952 SC 16 Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. Orders are not like old wine becoming better as they grow older. As per the ratio laid down in the above said decision, it is not open to the respondents to take a new plea or cite new reasons which are not found in the impugned order.
30. This Court after carefully considering the submissions made by the respective counsel appearing for the parties and proper consideration of the materials available on record, is of the considered view that the petitioner institution has substantiated their case for granting minority status to St. John De Bhritto Middle School, Bharathi Nagar, Madurai-18, beyond all probabilities and hence they are entitled to succeed in this writ petition.
31. In the result, this writ petition is allowed and the G.O.Ms.No.140, School Education (B2) Department, dated 21.10.2004, passed by the first respondent is quashed. The first respondent is directed to grant minority status to the St. John De Bhritto Middle School, Bharathi Nagar, Madurai-18, administered by the petitioner educational agency, within a period of four weeks from the date of receipt of copy of this order. However, in the circumstances, there will be no order as to costs.
2.11.2010 Index:Yes/No Internet:Yes/No gr.
To
1. The Secretary, Education Department, Fort St. George, Chennai-9.
2. The Director of Elementary Education, DPI Campus, College Road, Chennai.
3. The District Elementary Educational Officer, Madurai-1.
4. The Assistant Elementary Educational Officer, Madurai (North), Madurai.
M.SATHYANARAYANAN, J gr.
PRE DELIVERY ORDER IN W.P.NO.3299 of 2005 2.11.2010