Madras High Court
The Government Of Tamil Nadu Rep. By Its ... vs Eswari Educational Trust Rep. By Its ... on 29 April, 2004
Author: D. Murugesan
Bench: N. Dhinakar, D. Murugesan
JUDGMENT D. Murugesan, J.
1. As the issues raised in the writ appeals and in the writ petitions are common, they are taken up together and are disposed of by this order.
2. The matters pertain to the application of the various institutions for grant of permission to establish the new Arts and Science Colleges. Before we deal with the merits of the individual request, certain provisions of The Tamil Nadu Private Colleges (Regulation) Act, 1976 are referable. The power to grant permission under the said Act is vested with the Government under Section 3, and the said provision reads as under:-
"New private college to obtain permission.--Save as otherwise expressly provided in this Act, no person shall, without the permission of the Government and except in accordance with the terms and conditions specified in such permission, establish, on or after the date of commencement of this Act, any private college:
Provided that it shall also be necessary to obtain affiliation of such college to a University."
Section 4 relates to the application for permission and sending of statement, which reads as under:-
"(1) The educational agency of every private college proposed to be established on or after the date of commencement of this Act shall make an application to the Government for permission to establish such college. (2) Every such application shall--
(a) be in the prescribed form;
(b) be accompanied by such fee not exceeding twenty thousand rupees as may be prescribed; and
(c) contain the following particulars, namely:-
(i) the name of the private college and the name and address of the educational agency;
(ii) the need for the private college in the locality;
(iii) the course for which such private college proposes to prepare, train or guide its students for appearing at any examination conducted by, or under the authority of a university;
(iv) the amenities available to students and teachers;
(v) the equipment, laboratory, library and other facilities for instruction;
(vi) the sources of income to ensure the financial stability of the private college;
(vii) the situation and the description of the buildings in which such private college is proposed to be established; and
(viii) such other particulars as may be prescribed.
(3) The educational agency of every private college in existence on the date of commencement of this Act, shall, within such period as may be prescribed, send to the Government a statement in the prescribed form containing--
(i) the particulars specified in clause (c) excluding sub-clause (ii) thereof of sub-section (2);
(ii) the names of the members of the teaching and non-teaching staff and the educational qualifications of each such member; and
(iii) the number of students and classes in the private college."
Section 5 relates to the grant of permission and the same reads as under:-
"(1) On receipt of an application under sub-section (1) of section 4, the Government--
(a) may, after considering the particulars contained in such application, grant or refuse to grant the permission; and
(b) shall communicate their decision to the applicant within such period as may be prescribed:
Provided that the permission shall not be refused under this section unless the applicant has been given an opportunity of making his representations: Provided further that in case of refusal of the permission, the applicant shall be entitled to the refund of one-half of the amount of the fee accompanying the application. (2) The decision of the Government under clause (a) of sub-section (1) shall be final. (3) No university shall grant affiliation to any private college unless permission has been granted by the Government under sub-section (1)."
3. The right to education of a citizen came up for consideration before the Apex Court in the case of "MRS. MOHINI JAIN v. STATE OF KARNATAKA AND OTHERS ". While considering Part-III of Articles 38 and 41 relating to right to education, the Apex Court held that the right to education is concomitant to fundamental rights. When this judgment came up for consideration before a Constitution Bench of the Apex Court in "UNNIKRISHNAN J.P. AND OTHERS v. STATE OF ANDHRA PRADESH AND OTHERS ", the Apex Court held that the right to education which is implicit in the right to life and personal liberty guaranteed under Article 21 must be construed in the light of the directive principles of State policy as contained in Part IV of the Constitution. In the context of Articles 41 and 45, the Apex Court held that right to free education of a child until he/she completes 14 years is a fundamental right and that after 14 years the right to education is circumscribed by the limits and economic capacity of the State and its development.
4. As per Article 41 of The Constitution of India, the State is obligated within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, etc. From the above, it is clear that it is the responsibility of the sovereign State to provide education to the needy students.
5. In recent days, due to financial constraints, the State is unable to provide education at the level of high schools and higher secondary schools as well at the college level. Therefore, individuals interested in imparting education come out with the request for starting of new Arts and Science colleges under the self-financing scheme without any financial commitment by the State. On the above background, we shall now consider the individual request of the institutions for setting up of Arts and Science colleges.
6. Writ Appeal Nos.2170 and 2231 of 2003 arise as against the orders made in W.P.Nos.24756 of 2001 and 32766 of 2002 on an application filed by one Eswari Educational Trust, Tirupattur. There is a little history in this case which requires a mention. For convenience, we refer the parties as arrayed in the writ petitions. The petitioner Eswari Educational Trust applied on 27.9.2000 for grant of permission to establish an Arts and Science College for Men in the name of Tirupattur Arts and Science College, Makkanoor Village in Tirupattur Taluk. Two inspections were made and the Inspection Committee submitted its report recommending the grant of permission. As no orders were passed on the recommendation, the petitioner earlier filed W.P.No.18949 of 2001 and this Court by an order dated 10.10.2001 directed the respondents to consider the recommendation and pass orders. Pursuant to the above, an order was passed which was again questioned by the petitioner in W.P.No.24756 of 2001 and this Court by an order dated 30.4.2002, accepting the plea of the petitioner to establish an Arts and Science College, directed the respondent State to consider the application and pass orders on merits. In spite of the above, the respondents rejected the request, which was again questioned by the petitioner in W.P.No.32766 of 2002 and the same was also allowed by the learned single Judge in order dated 28.4.2003. The State has filed W.A.No.2170 of 2003 as against the order in W.P.No.24756 of 2001 and W.A.No.2231 of 2003 as against the order in W.P.No.32766 of 2002.
7. The petitioner in W.P.No.2128 of 2003 is Sri Lakshmi Saraswathi Educational and Charitable Trust. It applied on 29.9.2000 for grant of permission to start an Arts and Science College exclusively for women in the name of Sri Lakshmi Saraswathi Arts and Science College for Women at Palur, Chenglepet Taluk. Here again, two inspections were made and the Inspection Committee recommended for grant of permission and there were earlier round of similar litigation and directions of this Court to the respondents to consider the application and pass orders. Pursuant to the directions, the Government rejected the application and hence the petitioner has filed this writ petition.
8. In W.P.No.4977 of 2003, the petitioner is Kanchi Kamatchi Amman Educational Development Trust. It applied on 28.9.2000 for grant of permission to start an Arts and Science College exclusively for women in the name of Kanchi Kamatchi Amman Arts and Science College for Women with Kanchipuram Taluk. Here again, two inspections were made and the Inspection Committee recommended for grant of permission. The request was finally rejected by the Government, which has been questioned in this writ petition.
9. The petitioner in W.P.No.7013 of 2003 is The Roman Catholic Diocese of Sivagangai, which made an application on 29.11.2000 for grant of permission to start four courses in Arts and Science discipline in the name of Ananda College of Arts and Science, Sirumarudhur, Devakottai Taluk, which was also rejected on 16.10.2002. The said order has been questioned by the petitioner in this writ petition.
10. In order to reject the request of each educational institution, the respondents have relied upon G.O.Ms.No.433, Higher Education (E1) Department dated 13.12.2000. The said Government Order reads as under:-
GOVERNMENT OF TAMIL NADU EXTRACT Self Financing Colleges - Starting of new Self financing Arts & Science Colleges during academic year 2001-2002 - Policy decision - Orders issued.
Higher Education (E1) Dept. G.O. Ms. No. 433 Dt. 13.12.2000 ORDERS:-
In Tamil Nadu 233 Self Financing Arts & Science Colleges are now functioning. Government have taken a Policy decision to give permission for starting new self financing Arts & Science Colleges during academic year 2001-2002 as per the following Norms and it is ordered accordingly:-
a. Preference will be given during 2001-2002 to Women Education and permission will be given for Colleges exclusively intended for women only. b. Further, applications of the Educational Agencies for establishing Arts and Science Colleges in a Taluk where no Arts & Science College is existing will be considered on priority basis. c. Preference will be given to the College if there is no other College within 20 KM radius. (BY ORDER OF THE GOVERNOR) E.V. Manivannan Secretary to Government
11. According to Mr. V.R. Rajasekaran, learned Special Government Pleader, the applications were considered with reference to those guidelines and as none of the institutions satisfied all the three conditions, their requests were rejected. It would be also proper to consider the said guidelines before considering the individual case. From the Government Order extracted above, it is seen that three guidelines are provided for considering the applications. At the outset, we would like to point out that the said Government Order prescribing three conditions are only guidelines for the Government while considering the applications and they do not have any statutory force. In all three conditions, the Government have directed that (i) preference will be given to establish women colleges only; (ii) preference will be given to a Taluk, where there is no college; and (iii) preference will be given to the college where there is no other college within 20 kms. radius. These are all the basic guidelines which could be taken into consideration only to prefer one application when there are more applications. Here again, we would like to point out that in all these cases, except one application for starting of Arts and Science College by an individual institution, no other institutions have applied for the same locality and it is not the case of the respondents also for rejecting the request of the individual petitioners. In terms of Section 4(2)(c)(ii), the need for the private college is in respect of the locality. The word "locality" means, the area in which the college is proposed to be established. The Government in G.O.Ms.No.433 dated 13.12.2000 have treated the Taluk as a locality. For the individual consideration, the number of colleges present in the locality alone shall be taken into consideration.
12. Coming to the facts of this case, the petitioner in W.P.Nos.24756 of 2001 and 32766 of 2002 is one and the same. It applied for grant of permission to establish an Arts and Science College in Tirupattur Taluk. According to the respondents, there are three colleges within the same Taluk of which, two are for men and one for women. The learned Special Government Pleader submitted that as against the total strength in all the three colleges, the full strength is not filled up at least for the last three academic years leaving the vacancy position at 11.1% during the academic year 2002-2003. Hence, the Government was of the opinion that there is no need for a new college. What is the meaning of the words "need of the locality" for establishing a new college is a matter to be considered. Of course, number of existing colleges may also be one of the relevant factors to be considered by the State Government before granting permission for further colleges to be established in the same Taluk. The Government shall also keep in mind the number of schools at the level of high and higher secondary located in the said Taluk and the number of students passing successfully in the H.S.C. (+2) examination each year, thereby eligible to apply for Arts and Science disciplines. Learned counsel for the petitioners was right in contending that when large number of students are coming out successfully in the H.S.C. Examination every year, the strength of those students should be the relevant factor while considering the application for grant of permission to start a new college coupled with the fact as to the existing colleges. He would submit that as against the total number of 2950 students in higher secondary schools and 13 in matriculation higher secondary schools, only 450 intake in the college is available, leaving the rest of the students to seek admission in the colleges located in other places. Similarly, in W.P.No.2128 of 2003, the request is for establishment of a women college. From the details furnished by the learned Special Government Pleader as to the colleges functioning in the Taluk, we find that there is only one Government College, that too as Co-Ed. There is no aided college or self financing college in that Taluk, more specifically, there is not even a single college exclusively for women. In that view of the matter, we are of the considered view that the petitioner is entitled to the grant of permission for establishing an Arts and Science College exclusively for women. Further, it is to be seen that as against the total of 1615 girl students coming out successfully in the H.S.C. examination, only one college that too as Co-Ed., run by the Government is available.
13. So far as the petitioner in W.P.No.4977 of 2003 is concerned, the application is again to start a women college in the Kanchipuram District. Though it is the case of the respondents that there are as many as 30 colleges in Kanchipuram District, so far as the Kanchipuram Taluk is concerned, there are two aided colleges, one for men and one for women, and seven self financing colleges, two for women and five as Co-Ed., we find from the statement given by the learned counsel for petitioners that the total number of girl students coming out successful in the H.S.C. examination is 4,622. For those students the total intake available within the Taluk is only 599. From the above facts, it is seen that the petitioner is justified in seeking permission for establishment of a college exclusively for women. The petitioner in W.P.No.7013 of 2003 has applied for permission to establish a college for men in Devakottai Taluk. From the details furnished by the learned Special Government Pleader, it is seen that there is not even a single college for men in the said Taluk. It is also to be noted that there is only one college for women that too, as aided, in the said Taluk. In that view of the matter, the petitioner is entitled to the grant of permission to establish an Arts and Science College for men within the said Taluk.
14. The two grounds which were urged by the learned Special Government Pleader are (i) that the total number of intake in the colleges which were already established are not filled up and seats fall vacant and (ii) that there are colleges situated within 20 kms. radius and, therefore, the petitioners are not entitled to grant of permission. We are not inclined to accept both the contentions. So far as the first contention is concerned, for assessing the necessity to grant permission to establish a college, the seats that fall vacant in the colleges located in the same locality shall not be the relevant thing. The proper thing to assess the necessity would be the total number of students coming out successfully in the H.S.C. examination within that Taluk each year and the total number of seats available in the colleges situated in the same locality and whether in that locality any college exclusively for women is available or not when the application is filed for permission to start an Arts and Science College for women or vice-versa. Except the two reasons, there cannot be any other reason for rejecting the application for permission to establish an Arts and Science College.
15. From the facts narrated above and in view of our finding as to the requirement of the college, we find that the petitioners in all the writ petitions are entitled to grant of permission to establish the new Arts and Science Colleges as per their applications. Our attention is also drawn to a similar order passed by the respondents rejecting the request for establishing an Arts and Science College within the Mettur Taluk. The rejection was successfully challenged before the learned single Judge and, thereafter, in W.A.Nos.1894 and 2169 of 2003 dated 28.8.2003 and even before the Apex Court in S.L.P (Civil) Nos.19846 and 19847 of 2003 dated 22.3.2004. Pursuant to the order of the Apex Court, the said college has also been granted permission.
16. In view of the above reasons, we dismiss the writ appeals filed by the State and allow all the writ petitions filed by the individuals. The respondents are directed to permit each of the writ petitioners to set up a college as per the application on such grounds as may be imposed on similarly situated institutions in accordance with the rules and this exercise shall be made by the respondents within a period of four weeks from the date of receipt of a copy of this order, within which time the writ petitioners should get necessary affiliation from the concerned University. No costs. Consequently, W.P.M.P.Nos.2664, 6320, 6321, 9041 and 22291 of 2003 are closed.