Karnataka High Court
Tadikela Subbaiah Trust(R) vs The State Of Karnataka on 18 August, 2014
Equivalent citations: 2015 (1) AKR 41
Author: A.S.Bopanna
Bench: A S Bopanna
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
®
DATED THIS THE 18TH DAY OF AUGUST 2014
BEFORE
THE HON'BLE MR. JUSTICE A S BOPANNA
WRIT PETITION No.31024/2013 (EDN-REG-P)
BETWEEN:
TADIKELA SUBBAIAH TRUST ®
SUBBAIAH INSTITUTE OF
MEDICAL SCIENCES,
NEAR SUBBAIA HOSPITAL COMPLEX
JAIL ROAD, SHIMOGA,
KARNATAKA, REP.BY ITS DIRECTOR
(ADMISSIONS)
SRI C. MAHESH KUMAR.
... PETITIONER
(By Sri S VIJAYASHANKAR, SR.COUNSEL FOR
Sri M SHIVAPRAKASH)
AND:
1. THE STATE OF KARNATAKA
REP. BY ITS CHIEF SECRETARY
DEPARTMENT OF HEALTH AND
FAMILY WELFARE (MEDICAL EDUCATION)
STATE OF KARNATAKA,
VIDHANA SOUDHA,
BANGALORE-560 001.
2. THE PRINCIPAL SECRETARY TO THE
GOVERNMENT,
EDUCATION DEPARTMENT
(HIGHER EDUCATION)
STATE OF KARNATAKA,
VIDHANA SOUDHA,
BANGALORE-560 001.
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3. THE PRINCIPAL SECRETARY
DEPARTMENT OF HEALTH AND
FAMILY WELFARE (MEDICAL EDUCATION)
STATE OF KARNATAKA,
VIDHANA SOUDHA,
BANGALORE-560 001.
4. THE DEPUTY SECRETARY
DEPARTMENT OF HEALTH AND
FAMILY WELFARE (MEDICAL EDUCATION)
STATE OF KARNATAKA,
VIDHANA SOUDHA,
BANGALORE-560 001.
5. THE DIRECTOR (MEDICAL EDUCATION)
ANAND RAO CIRCLE,
BANGALORE-09.
6. THE REGISTRAR
RAJIV GANDHI UNIVERSITY OF
HEALTH SCIENCES
DR. B.R. AMBEDKAR VEEDHI,
HOSPITAL COMPLEX,
JAYANAGAR 4TH "T" BLOCK,
BANGALORE-560 041.
... RESPONDENTS
(By Sri A.G. SHIVANNA, AAG. FOR
Smt. PRAMODHINI KISHAN, HCGP. FOR R1-5
Sri N K RAMESH, ADV. FOR R6)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA, WITH A PRAYER TO CALL
FOR THE ENTIRE RECORDS FROM THE OFFICE OF
RESPONDENT AUTHORITIES IN THE MATTER OF REJECTION
OF CONFERMENT OF LINGUISTIC MINORITY STATUS TO THE
PETITIONER INSTITUTION AND ETC.
THIS WRIT PETITION HAVING BEEN RESERVED FOR
ORDERS, COMING ON FOR PRONOUNCEMENT THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING :
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ORDER
The petitioner is before this Court, in this writ petition seeking that the recommendation dated 08.07.2013 (Annexure-S) and the order dated 09.07.2013 (Annexure-T ) be quashed and consequently direct the first respondent to confer the Telugu Linguistic Minority Status on the petitioner institution.
2. The petitioner is a registered charitable Trust constituted and established in the year 2003 with the object of establishing among others, the educational institutions in Shimoga which would be open for the students of all caste, creed and community. Out of the five Trustees, four of them belong to the Balijiga Community and the other to the Schedule Tribe. Their mother tongue being Telugu, have established the educational institution so as to provide quality education to linguistic minority students in the State of Karnataka. The petitioner contends that it has accordingly complied with the requirement of law and on obtaining approval for the Medical Council of India 4 (MCI) has established a medical college known as 'Subbaiah Institute of Medical Sciences' at Shimoga with the annual intake of 150 students with effect from the academic year 2012-13.
3. As per the policy of the Government under the order dated 07.04.1999 there is provision for according Linguistic Minority Status to educational institutions in the State of Karnataka. The petitioner therefore submitted a Memorandum dated 02.05.2012 to the Government seeking for grant of Linguistic Minority Status to the petitioner educational institution. There was exchange of correspondence. At that stage, when there was allocation of seat matrix for the academic year 2012-13, 25% of the 150 seats i.e., 38 seats were notified as Government seats which was as per the allocation to a Linguistic Minority institution which according to the petitioner raised legitimate expectation that their request for according Linguistic Minority Status would be considered favorably. Two other similarly placed institutions namely Sapthagiri Institute 5 and Sri Venkateshwara Educational Institution were conferred such status much before the establishment and the petitioner claims that it was entitled to similar treatment.
4. Though that was the position the respondents by the communication dated 15.06.2013 conveyed that as the Linguistic Minority Status is yet to be accorded, the petitioner is to provide 82 seats to the government quota which was at 60 seats for 2013-14 and backlog of 22 seats of the year 2012-13 since only 38 seats were provided during that year by taking benefit of the status which was yet to be accorded. The petitioner therefore approached this Court at that stage in W.P.No.27822/2013. This Court, by its order directed the consideration of the application at the earliest and take an appropriate decision. Thereafter a meeting was held on 08.07.2013 and the petitioner contends that all the necessary particulars were furnished by them. The grievance is that despite the same the committee has arrived at the conclusion that the petitioner Institution 6 does not qualify to be considered as Linguistic Minority Institution. Based on such conclusion of the Committee the second respondent, by the communication dated 09.07.2013 has rejected the memorandum dated 02.05.2012 submitted by the petitioner. The petitioner Institution is therefore before this Court.
5. The respondents have filed their objection statement and have sought to justify their action. The petitioner having established the medical college is not in dispute. The process adopted on receipt of the memorandum dated 02.05.2012 and the reports secured from the concerned departments is adverted to. It is contended that though the Trustee members of the Trust belong to the Telugu Speaking Linguistic minority group, the Institute has not furnished the details of the students admitted as linguistic minority students studying in the Institution. Hence, by the letter dated 19.11.2012 the details were sought, in response to which the Trust through their letter dated 20.11.2012 gave the list of students along with the fee receipts and 7 indicated that the parents will submit the caste and language certificates. Hence a meeting to consider the according of the minority status was conducted on 29.12.2012 under the Chairmanship of the Principal Secretary, Higher Education Department. The decision taken therein has been enumerated, which essentially is to decline the request of the petitioner. Thereafter on 25.05.2013 a decision was taken to place the matter before the High Power Committee to take the decision.
6. The respondents further contend that on 16.07.2012, the petitioner Trust addressed a letter intimating that they are ready to give MBBS seats as the decision of Karnataka Religious and Linguistic Minority Association and assured that if they fail to get Minority Status, they would surrender the required number of seats in the following academic year. It is on such undertaking only 25% seats were taken by the Government for the academic year 2012-13. Hence the surrender was sought. After the direction to consider was issued by this Court in W.P.No.27822/2013 the 8 High Power Committee examined the matter on 08.07.2013 and while keeping in view the judgment of the Hon'ble Supreme Court in S.K.Patro-vs-State of Bihar (AIR 1970 SC 259) and on finding that the Trust deed does not reflect the objective of sub serving the minority community has arrived at the conclusion that the petitioner did not qualify. Accordingly the order declining to accord the status was passed.
7. The petitioner has filed its rejoinder in the form of counter to the objection statement. It is asserted that the petitioner Trust was established in the year 2003 with the object of serving the interest of the Telugu Linguistic Minority people in the state of Karnataka. The Trust deed, Supplementary and amended deed are relied on. The caste and the language confirmation certificates relating to the Trustees are also produced. The other contentions raised in the writ petition is reiterated.
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8. In the background of the rival contentions, I have heard Sri. S.Vijayashankar, learned Senior Counsel on behalf of Sri. M.Shivaprakash, learned counsel for the petitioner and Sri. A.G.Shivanna, learned Additional Advocate General along with Ms.Promodhini Kishan, learned Government Counsel and perused the petition papers.
9. The learned Senior Counsel for the petitioner on referring to Article 30(1) of the Constitution, which guarantees the right of the minorities to establish and administer educational institutions of their choice has relied upon the decisions wherein the scope and ambit of such right to establish minority institutions has been considered. Hence it would be appropriate to refer to the cited decisions so as to assimilate the legal position on that aspect. The decisions are;
(i) The case In re Kerala Education Bill, 1957. Special Ref. No. 1 of 1958 (AIR 1958 SC 956) wherein it is held that Article 30(1) gives right not only 10 to religious minorities but also to linguistic minorities and such right is to establish educational institutions of their choice. Such minorities will ordinarily desire that their children should be brought up properly and efficiently to go to the world fully equipped. The Article leaves it to the choice of the minority to establish such educational institutions as will conserve their religion, language or culture and also the purpose of giving a thorough, good and general education to their children. The right given is to establish and to administer educational institution of their choice. They can be classified into three categories (a) those which do not seek aid or recognition, (b) those which want aid and (c) those which want only recognition but not aid. In so far as the recognition, it is held that without recognition such institutions cannot fulfill the real objects of their choice and the rights under Article 30(1) cannot be effectively exercised. The right to establish educational institutions of their choice must mean the right to establish real institutions which will effectively serve the needs of their community and the scholars who resort 11 to their institution. There is no such thing as fundamental right to recognition by the State but to deny recognition to the educational institutions except upon terms tantamount to surrender of their constitutional right of administration of the educational institutions of their choice is in truth and in effect to deprive them of their right under Article 30(1).
(ii) The case of The Managing Board of Milli Talimi Mission, Bihar, Ranchi and others -Vs- The State of Bihar and others (AIR 1984 SC 1757) wherein, on reference to the earlier cases, the position was summarized as hereunder;
"7. On a careful and detailed review of the cases cited above, the following position emerges:-
1) That while Art.30 undoubtedly seeks to preserve the religious freedom, autonomy and its individuality; there is no fundamental right under which an institution can claim either aid or affiliation as a matter of right. It is permissible for the State or the University, 12 as the case may be, to lay down reasonable conditions to maintain the excellence of standard of education but in the garb of doing so, refusal to grant affiliation cannot be made a ruse or pretext for destroying the individuality and personality of the said institution. If this is done, then apart from being wholly arbitrary and unreasonable it would amount to a clear infraction of the provisions of Art.30 because what cannot be done directly is done indirectly.
2) While the State or a University has got absolute right to insist on certain courses of study to be followed by institutions before they could be considered for affiliation but these conditions should not in any way take away the freedom of management or administration of the institution so as to reduce it to a satellite of the University or the State. This is wholly impermissible because such a course of action directly violates Art.
30 of the Constitution.
3) While imposing conditions before granting affiliation, as indicated above, the State or the university cannot kill or annihilate the individuality or personality of 13 the institution in question by insisting on following a particular kind of syllabus or a course of study which may be directly opposed to the aims, objects and ideals sought to be achieved by the institutions.
4) There is a very thin line of distinction between withholding of affiliation for a particular purpose on extraneous grounds so as to subject the institution to rigorous orders, edicts or resolutions which may run counter to the dominant purpose for which the institution has been founded, and insisting on genuine and reasonable conditions to be imposed in the larger interest of education.
8. Thus, all the authorities mentioned above clearly laid down that while affiliation itself may not be a fundamental right but refusal of affiliation on terms and conditions or situations which practically denies the progress and autonomy of the institution is impermissible as being violative of Art. 30 of the Constitution. It is not necessary for us to dwell on the other aspects of the matter because we are not concerned with them in this particular case."
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(iii) The case of N. Ammad -vs- Manager, Emjay High School and others [(1998) 6 SCC 674] wherein it is held that a school which is a minority school would continue to remain so whether the Government declared as such or not. When the Government declared such school as a minority school it would recognize the 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 have necessarily existed antecedent to such declaration. The right of the management of such institution to choose a qualified person as the Headmaster of the school is well insulated by the protective cover under Article 30(1) of the Constitution and it cannot be chiseled out through any legislative act or executive rule except for fixing up the qualifications and conditions of service for the post.
(iv) The case of T.M.A. Pai Foundation and others -vs- State of Karnataka and others [(2002) 8 SCC 481] wherein it is held that the Government 15 cannot be prevented from framing regulations that are in the national interest and any regulation framed in the national interest must necessarily apply to all educational institutions, whether run by the majority or the minority. Such limitation must necessarily be read into Article 30. The right under Article 30(1) cannot be such as to override the national interest or to prevent the Government from framing regulations in that behalf. The Government regulations cannot however destroy the minority character of the institution or make the right to establish and administer a mere illusion, but the right under Article 30 is not so absolute as to be above the law. It has been noticed that the right to administer does not include the right to mal administer. Right to administer is not absolute, but must be subject to reasonable regulations for the benefit of the institutions as the vehicle of education, consistent with national interest. Like any other private unaided institutions, similar unaided educational institutions administered by linguistic or religious minorities are assured maximum autonomy in relation to method of 16 recruitment of teachers, charging of fees and admission of students. They will have to comply with the conditions of recognition, which cannot be such as to whittle down the right under Article 30. With regard to the percentage of students of the community to be admitted in the case of the aided minority institution, it is held that it is appropriate that depending upon the level of the institution, whether it be a primary or secondary or high school or college, professional or otherwise and on the population and the educational needs of the area in which the institution is located, the State should balance the interest of all by providing for such a percentage of students of the minority community to be admitted, so as to adequately serve the interest of the community for which the institution was established.
(v) The case of Father Thomas Shingare and others -vs- State of Maharashtra and others [(2002) 1 SCC 758] wherein it is held that the State cannot impose any restriction on the right of the minorities to 17 administer educational institutions so long as such institutions are unaided by the State, except to the limited extent that regulations can be made for ensuring excellence in education.
(vi) The case of Dayanand Anglo Vedic (DAV) College Trust and Management Society -vs- State of Maharashtra and another [(2013) 4 SCC 14] with reference to the conclusion therein that the satisfaction of the authorities is only to the extent that the institution has been established by the persons who are minority in such State and that the right of administration of the minority linguistic institution is also vested in those persons who are minority in such State.
10. The learned Additional Advocate General has also relied on the last of the above decisions with regard to the consideration made therein with reference to the earlier decisions of the Hon'ble Supreme Court. As such it is necessary to refer to those aspects which led to the 18 conclusion. In that regard, it is seen that the understanding of the T.M.A.Pai Foundation case as enumerated in the case of P.A.Inamdar -vs- State of Maharashtra [(2005) 6 SCC 537] has been referred in detail. It is observed therein that Article 30(1) is intended to instill confidence in minorities against any executive or legislative encroachment on their right to establish and administer educational institution of their choice. Article 30 (1) though styled as a right, is more in the nature of protection for minorities. But for Article 30, an educational institution, even though based on religion or language, could have been controlled or regulated by law enacted under clause (c) of Article 19, and so, Article 30 was enacted as a guarantee to the minorities that so far as the religious or linguistic minorities are concerned, educational institutions of their choice will enjoy protection from such legislation. However, such institutions cannot be discriminated against by the State solely on account of being minority institutions. The minorities being numerically less qua non minorities, may not be able to protect their religion 19 or language and such cultural values and their educational institutions will be protected under Article 30 at the stage of law making. However, merely because Article 30(1) has been enacted, minority educational institutions do not become immune from the operation of regulatory measures because the right to administer does not include the right to mal administer. To what extent the State regulation can go, is the issue. The real purpose sought to be achieved by Article 30 is to give minorities some additional protection. The minority status whether by reference to language or by reference to religion, shall have to be determined by treating the State as a unit. The principle would remain the same whether it is a Central legislation or a State legislation while dealing with linguistic or religious minority. It is held therein that the law laid down in Pai Foundation is that to establish a minority institution, the institution must primarily cater to the requirements of that minority of that State, else its character of minority institution is lost. However a sprinkling of that minority from the other State on the same footing as a non 20 minority students, would be permissible and would not deprive the institution of its essential character of being a minority institution determined by reference to that State as a unit.
11. From the cumulative consideration of the view expressed by the Hon'ble Supreme Court in the different decisions noticed supra, the position is clear that the minorities, including linguistic minority groups can establish institutions which would include for educational purpose and such institutions would have the protection provided under Article 30(1) against interference. However if recognition is sought, the requirements of establishment by the persons belonging to the minority community by taking the State as a unit is to be satisfied. As per my understanding, since emphasis has been laid on the fact that the object of establishment of minority institution and the protection provided under Article 30 (1) is to enable such minority to conserve its religion, language and to give thorough, good, general education to children belonging to such 21 minority, the need to see that such institution provides admissions to such minority students atleast to a certain extent should be a requirement to be insisted upon by the State. Such requirement if imposed does not tantamount to surrender of their Constitutional right nor will it destroy the minority character of the institution or whittle down the right under Article 30(1), rather it aids in enhancing the minority character. State should balance the interest of all concerned by providing for such percentage of students of minority. This would ensure that the institution retains its minority character by achieving and continuing to achieve the objective. As otherwise, if only the requirement of the persons establishing and administering the institution of the concerned linguistic minority is taken into consideration as the satisfaction of the requirement while according recognition, the benefit derived from such recognition would be squandered as a business proposition without fretters and the object would not be achieved. Therefore, notwithstanding the protection to establish and 22 administer the institution, regulatory measure to the limited extent as enunciated by the Hon'ble Supreme Court is also permissible for grant of recognition in an uniform manner without discrimination and as such it is within the competence of the State. Such regulatory measure cannot be construed as an encroachment of the protection since it would neither prevent establishment of the institution of their choice nor would it interfere with the right to administer the institution of their choice. On the other hand it would aid in achieving the object.
12. In the above background, in the instant facts it is seen that the petitioner institution in any event is not challenging any regulatory procedure imposed by the State though the learned Senior Counsel has contended that the requirement of minimum number of students of the minority community being admitted cannot be insisted as long as the persons establishing the institution are belonging to that community. I have already noticed above that even such requirement can 23 be insisted as a condition to accord the recognition so that it would also achieve the object for which such protection is granted. The petitioner institution has itself made the application/memorandum seeking recognition. The question therefore is, even if the above position is kept in perspective, whether the manner of consideration made by the committee which resulted in the rejection of the request is sustainable?
13. The proceedings dated 08.07.2013 which lead to the adverse recommendation is at Annexure-S. The learned Senior Counsel for the petitioner has attacked every aspect of the consideration made therein including the questions that were raised for consideration. However, in my opinion what is necessary to be adverted to is the ultimate reason which influenced the adverse recommendation. It is recorded that the petitioner's representative has not furnished information regarding the details of the students who had been admitted. Next, it has been observed that the Trust deed does not reflect the objective of sub serving 24 the interests of the minority community. Thirdly, reliance has been placed on the decision in the case of S.K.Patro -vs- State of Bihar (AIR 1970 SC 259) without referring as to how the principle therein is applicable to the instant facts as per the understanding of the Committee which would entail rejection.
14. Learned Senior Counsel for the petitioner has therefore referred to the case of S.K.Patro (supra) to demonstrate that the same has been erroneously applied to deny the benefit. On perusal, I find that the said case was dealing with a circumstance relating to the protection under Article 30(1) to the pre-constitution and post-constitution institutions provided they are continued to be administered by minorities either based on religion or language. The issue therein was about the right of foreigners, not residents in India to set up educational institutions of their choice which certainly is not relevant to the present circumstance. Hence, it is clear that the adverse recommendation of the Committee is predicated on the position of law which 25 was not applicable to the present facts and therefore not sustainable.
15. To assail the observation made by the Committee that the Trust deed does not contain the relevant object clause, the learned Senior Counsel has relied on the decision of the Hon'ble Division Bench of the Madras High Court in the case of T.K.V.T.S.S. Medical, Educational & Charitable Trust -vs- State of T.N. (AIR 2002 Mad.42) wherein such contention raised on behalf the respondents therein had been rejected. In addition it is contended that even otherwise such observation is factually incorrect since the Trust deed at Annexure-V-1 along with the rejoinder, as also at Annexure-A shows that the object is to establish educational institution of their choice. On this aspect I am of the view that if the Trust deed contains in its object clause itself in specific terms about the object for which the Trust is created, it becomes explicit. But, even if it is not specifically mentioned, it would still be open for consideration about the linguistic minority 26 status based on the other materials that would be relied on by the institution which is to be assessed for the satisfaction of the authorities that the institution in fact has been established to benefit the minorities. This aspect would therefore require reconsideration based on the additional documents that may be relied on by the petitioner.
16. The reasons as assigned by the Committee has been taken into consideration by the first respondent to issue the communication dated 09.07.2013 (Annexure-T) to reject the representation/memorandum dated 02.05.2012 submitted by the petitioner and to reject the request for according the Telugu Linguistic Minority Status. In addition it is also stated therein that it is also rejected for the reason that there are already two other Telugu Minority Institutions in the State. The petitioner apart from assailing such conclusion has also contended that two other institutions viz., Sapthagiri Medical College, Bangalore and Srinivasa Medical College, Mangalore, 27 who are similarly situated have been accorded linguistic minority status at the inception, whereas in the case of the petitioner in the meeting held on 29.11.2012 in the chambers of the Principal Secretary to the Government (Higher Education) it has been observed that it should wait for at least two years which on the face of it is discriminatory.
17. The learned Additional Advocate General, has made available a statement indicating details of the Linguistic Minority Professional Colleges and that the Status accorded earlier being withdrawn in respect of all the institutions for violating the conditions and the same pending before this Court. Though that is the position, the fact that the case of the two institutions referred to by the petitioner had been considered at the first instance on 12.05.2011 and 12.07.2011 is evident. Since I have already observed that the matter will require reconsideration at the hands of the respondents and further since the learned Additional Advocate General has also indicated that since the petitioner has 28 relied upon additional documents along with the rejoinder, the respondents are not averse to reconsider the matter in accordance with law, those aspects which are raised in this petition will also have to be kept in perspective when the reconsideration is made by the respondents.
18. Since, all the factual aspects will have to be taken into consideration during the process of reconsideration in the background of the legal position noticed above, the positive prayer seeking that the first respondent be directed to confer Telugu Linguistic Minority Status cannot be granted at this stage. However, to enable reconsideration, the orders impugned will in any event have to be quashed so as to leave it open for reconsideration. As such I do not deem it necessary to advert to the decisions relied upon by the learned Senior counsel for the petitioner relating to the contention of legal malice, bias vitiating the order and good faith to be demonstrated in administrative 29 decisions. The issue raised relating to the legitimate expectation also need not be adverted to.
19. For all the aforestated reasons, I pass the following:
ORDER
i) The recommendation dated 08.07.2013 (Annexure-S) and the order dated 09.07.2013 (Annexure-T) stand quashed.
ii) The matter is remanded to the respondents to reconsider the representation/ memorandum of the petitioner dated 02.05.2012 and the additional material if any, in accordance with law after affording opportunity to the petitioner.
iii) The process be completed and the decision be taken by the first respondent in an expeditious manner, but not later than three weeks from the date of furnishing a copy of this order.
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iv) The petition is allowed in part in the above terms with no order as to costs.
Sd/-
JUDGE LRS/bms