Madras High Court
The Government Of Tamil Nadu vs The Correspondent on 25 March, 2021
Author: M.M.Sundresh
Bench: M.M.Sundresh
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 12.03.2021
PRONOUNCED ON : 25.03.2021
CORAM:
THE HONOURABLE MR.JUSTICE M.M.SUNDRESH
AND
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
REV.APLC(MD)No.180 of 2018
1.The Government of Tamil Nadu,
Represented by its Secretary,
Department of School Education,
Fort St.George, Chennai-600 009.
2.The Director of Elementary Education,
College Road, Chennai-600 006.
3.The District Elementary Education,
Officer, Nagercoil, Kanyakumari District.
4.The Assistant Elementary Education Officer,
Munchirai, Pudukkottai Post,
Kanyakumari District. ...Petitioners/Appellants
Vs.
The Correspondent,
St.Joseph's Middle School,
Eraviputhanthurai,
Thoothoor Post,
Kanyakumari District. ..Respondent/Respondent
PRAYER: This Review Application has been filed under Order 47 Rules 1
and 2 of the Civil Procedure Code r/w Section 114 of the Civil Procedure
Code, against the order passed by this Court in W.A.(MD)No.928 of 2017
dated 30.08.2017.
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For Petitioner : Mr.S.Srimathy
Special Government Pleader
For Respondent : Mr.Godson
for M/s.Isaac Chambers
ORDER
[Order of the Court was made by N.SATHISH KUMAR, J.] This application has been filed to review the judgment of this Court made in the writ appeal.
2. The respondent School is a recognized Private Partly Aided Middle School. The school was upgraded as Middle School in the year 1990-91. As per the undertaken given by the Management of the Institution, that they will not claim any grant-in-aid for the Middle School Sections, the recognition was granted. Challenging the non grant of grant- in-aid, namely, teaching grant and maintenance grant to the upgraded Middle School Sections of the respondent's school as per Government Norms, the petitioner filed a writ petition and the same was allowed. The Review Petitioners herein had filed a writ appeal assailing the order passed in the writ petition. The writ appeal was dismissed. Aggrieved over the same, the review petitioners have filed this application seeking to review the judgment dated 30.08.2017.
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3. The learned Special Government Pleader appearing for the review petitioners submitted that the respondent School was granted recognition with a condition that the school should not claim any grant-in- aid. Now, the claim of the respondent is against the said recognition. She further submitted that as per Section 14-A of the Tamil Nadu Recognition of Private Schools Act, if any grant is not granted for the academic year 1991-1992, then the School is not eligible for grant-in-aid.
4. In support of her submissions, she has relied upon the following judgments:-
1.State of Odisha and another vs. Anup Kumar Senapati and another [Civil Appeal No.7295 of 2019]
5. The learned counsel appearing for the respondent submitted that the learned Single Judge has considered the scope of Section 14(A) of the Tamil Nadu Recognized Private Schools (Regulations) Act, 1973. He would further submit that in the case of G. Sahadevan Nair vs. The Government of Tamil Nadu, rep.by its Secretary [W.A.No.1329 of 1999], this Court has clearly held that if there is no provision for grant in aid to any institution, obviously there cannot be any discrimination because the minority institutions and the non-minority institutions are treated alike. Hence, prayed fro dismissal of this review application. 3/16 http://www.judis.nic.in
6. In support of his submissions, he has relied upon the following judgments:-
1.State of Uttar Pradesh and others vs. Pawan Kumar Divedi and others [(2014) 9 SCC 692]
2. State of Uttar Pradesh and others vs. Committee of Management and others [(2010) 1 SCC 639]
3. Chandigarh Administration and others vs. Rajni Vali (MRs) and others [(2002) 2 SCC 42]
7. Heard the learned Special Government Pleader appearing for the review petitioners and the learned counsel appearing for the respondent.
8. In the case relied upon by the learned counsel for the respondent in State of Uttar Pradesh and others vs. Pawan Kumar Divedi and others [(2014) 9 SCC 692], by considering the cases in Unni Krishnan J.P. vs. State of Andrapradesh (1993) 1 SCC 645 and T.M.A.Pai Foundation vs. State of Karnakata (2002) 8 SCC 481] the Hon'ble Supreme Court has observed that the primary education is fundamental right. In the case of State of Uttar Pradesh and others vs. Committee of Management, Mata Tapeshwari Saraswati Vidyamandi and others [(2010) 1 SCC 639], the Hon'ble Supreme Court held that the State deciding to discontinue grant-in- 4/16 http://www.judis.nic.in aid to educational institutions recognised after cut off dated 30.09.1984, but subsequently deciding vide notification dated 07.09.2006 to provide aid to those 1000 permanently recognized junior high schools which imparted education between sixth to eighth classes and discriminating against the respondent schools which were similarly situated was arbitrary and unconstitutional.
9. In the case of Chandigarh Administration and others vs. Rajni Vali (MRs) and others [(2000) 2 SCC 42], the Hon'ble Supreme Court has held that the State administration cannot shirk from its responsibility of ensuring proper education in schools and colleges on the plea of lack of resources and it is for the authorities running the Administration to find out the ways and means of securing funds for the purpose. In the case reported in (1995) 4 SCC 507 [State of H.P. vs. H.P.State Recognised and Aided Schools managing committees and others], the Hon'ble Supreme Court has held that right to education being a fundamental right, the State of Himachal Pradesh is under a constitutional obligation to provide free education to children till they complete the age of 14 years.
10. In the case of G.Sahaevan Nair vs. Government of Tamil Nadu, rep. by its Secretary [(2008) 4 MLJ 289], this Court has held follows:-
"15. In view of several decisions of the Supreme Court, there can be no longer any doubt that even though there is a 5/16 http://www.judis.nic.in fundamental right to establish a minority institution by a religious or linguistic minority, such minority institution cannot claim grant in aid either as a fundamental right or even as a statutory right, in the absence of any specific provision to that extent. However, under Article 30(2) of the Constitution, it has the protection of not being discriminated against. If there is no provision for grant in aid to any institution, obviously there cannot be any discrimination because the minority institutions and the non-minority institutions are treated alike. It is in the above context, the validity of Section 14-A of the Tamil Nadu Recognised Private Schools (Regulations) Act, 1973 incorporated by way of amending Act 11 of 1999 has been upheld by the Division Bench [(2006) 5 CTC 193]. However, in the present case, we are not called upon to determine the rights of the parties on that footing. In the present case, the questions are confined to the institutions which had been in existence before the cut-off date. Some of the institutions were receiving aid and the question relating to those institutions is regarding their right to claim aid in respect of additional posts. In respect of other institutions, the question is whether they were entitled to claim grant-in-aid. If any minority institution was entitled to receive such aid, but was denied such aid on account of any erroneous order, such order is obviously to be corrected and such institution established before the cut-off date can have the continued right of receiving such aid and the amended provision contained in Section 14-A cannot be put against such right merely on account of the fact that such institution had not received aid before the cut-off date."6/16
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11. The writ petition has been filed challenging the order dated 12.06.2012 rejecting the claim of grant-in-aid. The contention of the review petitioner was that at the time of recognition, the respondent has given an undertaking that they will not claim grant-in-aid from the Government. Apart from that, as per the amended provision under Section 14-A of the Tamil Nadu Private Schools Regulation Act, 1973, the respondent school was not eligible to receive grant-in-aid from the academic year 1991-1992. However, the learned Single Judge allowed the writ petition. Challenging the same, the Government has filed writ appeal. Since the similarly placed other persons referred under G.O.Ms.No.13, School Education Department, dated 29.01.1998, were granted grant-in-aid, to avoid any discrimination, we did not interfere with the order of the learned Single Judge by holding that even though the principle on the right of the institution claimed grant- in-aid, not withstanding the condition imposed, may not be legally correct.
12. The proceedings of the Director of Elementary Education in K.Dis.No.72567/EE J1/90, dated 24.12.1992, indicates that recognition was granted for the year 1991 on condition that grant-in-aid shall not be given at any point of time. This fact was not considered by us, while disposing of the writ appeal.
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13. The Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 and the Rules made thereunder govern the aided Primary, Middle, High and Higher Secondary Schools in the State of Tamil Nadu. Grant of aid to such Schools is governed by the Grant-in-Aid Code. The minority schools are covered by the Tamil Nadu Minority Schools (Recognition and Payment of Grant) Rules, 1977. Under the Rules, no special status is conferred on minority schools in respect of payment of grant, and Rule 6 categorically states that minority schools may be paid grant subject to the orders and instructions issued by the Government from time to time.
14. As a matter of policy, the Government of Tamil Nadu issued G.O. (4D) No. 4, Education (R1) Department, dated 25.11.1991 dispensing with the payment of grant to new schools on and from the academic year 1991-92. In respect of minority schools, while applying for recognition to start new schools, it was made clear that no grant will be given to schools applying for recognition on and from 25.11.1991. Aggrieved by the government order, several minority schools filed W.P. No. 6781 of 1993, etc. batch before this Court. By an order dated 22.03.1999, the validity of the said Government Order was upheld in respect of minority schools as well. Thereafter, Section 14-A was introduced by Act 11 of 1999 in Tamil Nadu Recognised Private Schools (Regulation) Amendment Act, 1998, which prohibits the payment of grant to new schools started from the academic 8/16 http://www.judis.nic.in year 1991-92 and certain other categories of Schools. The object of Section 14-A can be granted from the statement of objects and reasons which runs as under:
“STATEMENT OF OBJECTS AND REASONS The Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 (Tamil Nadu Act 29 of 1974) provides for the regulation of the private schools in the State. At present the policy of the Government is to continue to pay grant to the private schools receiving grant from the Government before the date of the commencement of the academic year 1991-1992 and not to pay the grant to new private schools established and new class and course of instructions opened in any existing private schools after the commencement of the said academic year. It is proposed to give statutory protection to the above policy of the Government. It is also proposed to enable the Government to exempt any person or class of persons from possessing the qualification relating to age and experience for appointment as teacher subject to certain conditions. The Bill seeks to give effect to the above decision.”
15. While upholding Section 14-A of the Act, the Hon'ble Division Bench of this Court in Maria Grace Rural Middle School vs. The Gvoernment of Tamil Nadu [(2007) 2 MLJ 497], has also held that grant-in- aid is not a neither fundamental right. Therefore, once it is held that grant- in-aid is the not a fundamental right, obviously no mandamus would lie to compel the Government to grant such aid, when the statute so prohibits. 9/16 http://www.judis.nic.in
16. In the case in The State of Bihar v. Sachindra Narayan, [(2019) 3 SCC 803[, the Hon'ble Supreme Court took note of the discretionary nature of a grant and observed as under:-
“The release of grant is in discretion of the grantor and cannot be forced by the grantee.”
17. Similarly, the Hon'ble Supreme Court in State of W.B. v. Subhas Kumar Chatterjee, [(2010) 11 SCC 694], has observed thus:
“No court can issue mandamus directing the authorities to act in contravention of the rules as it would amount to compelling the authorities to violate law. Such directions may result in destruction of rule of law.”
18. When the validity of the amended Act itself was upheld by the Courts, this Court is of the view that the Courts cannot issue a mandamus contrary to the provisions of the Act. In the case of State of Odisha and another vs. Anup Kumar Senapati and another [Civil Appeal No.7295 of 2019], in paragraph No.8, the Hon'ble Supreme Court had held that that grant-in-aid cannot be claimed as a matter of right merely on completion of the prescribed period and it is dependent upon fulfilment of various conditions. In this case, recognition itself was granted to the respondent on the undertaken not to claim any grant-in-aid. Besides, Section 14-A of the Act, totally prohibits such grant. Therefore, we are of the view that merely 10/16 http://www.judis.nic.in because grant-in-aid has been granted to some schools in contravention of the provisions of Section 14-A of the Act, no validity can be sought for others as that tantamount to claim equality on the basis of illegality. In the case of Indore Development Authority [(2006) 2 SCC 604], the Hon'ble Supreme Court has held that merely because some persons have been granted benefit illegally or by mistake, it does not create right upon the appellants to claim equality. In Rajasthan State Industrial Development and Investement Corporation vs. Subhash Sindhi Cooperative Housing Society, and others [(2013) 5 SCC 427], this Court has held as follows:-
"19.Even if the lands of other similarly situated persons have been released, the Society must satisfy the Court that it is similarly situated in all respects, and has an independent right to get the land released. Article 14 of the Constitution does no envisage negative equality, and it cannot be used to perpetuate any illegality."
19. In the case of State of Orissa and antoher vs. Mamata Mohanty, [(2011) 3 SCC 436], this Court has observed as follows:-
"56.It is a settled legal proposition that Article 14 is not meant to perpetuate illegality and it does not envisage negative equality. Thus, even if some other similarly situated persons have been granted some benefit inadvertently or by mistake, such order does not confer any legal right on the petitioner to get the same relief. (Vide Chandigarh Administration & Anr v. Jagjit Singh & Anr., AIR 1995 SC 705; Yogesh Kumar & Ors. v. Government of 11/16 http://www.judis.nic.in NCT Delhi & Ors., AIR 2003 SC 1241; M/s Anand Buttons Ltd. etc. v. State of Haryana & Ors., AIR 2005 SC 565; K.K. Bhalla v. State of M.P. & Ors., AIR 2006 SC 898; Maharaj Krishan Bhatt & Anr. v.
State of Jammu & Kashmir & Ors., (2008) 9 SCC 24; Upendra Narayan Singh, (2009) 5 SCC 65 and Union of India vs. Kartick Chandra Mondal [(2010) 2 SCC 422]."
20. In Union of India v. International Trading Co., [(2003) 5 SCC 437], the Supreme Court observed as under:
“13. What remains now to be considered, is the effect of permission granted to the thirty two vessels. As highlighted by learned counsel for the appellants, even if it is accepted that there was any improper permission, that may render such permissions vulnerable so far as the thirty two vessels are concerned, but it cannot come to the aid of the respondents. It is not necessary to deal with that aspect because two wrongs do not make one right. A party cannot claim that since something wrong has been done in another case direction should be given for doing another wrong. It would not be setting a wrong right, but would be perpetuating another wrong. In such matters there is no discrimination involved. The concept of equal treatment on the logic of Article 14 of the Constitution of India (in short “the Constitution”) cannot be pressed into service in such cases. What the concept of equal treatment presupposes is existence of similar legal foothold. It does not countenance repetition of a wrong action to bring both wrongs on a par. Even if hypothetically it is accepted that a wrong has been committed in some other cases by introducing a concept of negative equality the respondents cannot strengthen their case.12/16
http://www.judis.nic.in They have to establish strength of their case on some other basis and not by claiming negative equality.”
21. Similarly in Vishal Properties (P) Ltd. v. State of U.P., [(2007) 11 SCC 172], the Supreme Court observed as follows:-
“13. Even otherwise, Article 14 is not meant to perpetuate an illegality. It provides for positive equality and not negative equality. Therefore, we are not bound to direct any authority to repeat the wrong action done by it earlier.”
22. These principles were reiterated in a recent decision of the Supreme Court in RWMWI Borgoyary v. Union of India, [(2020) 15 SCC 546], wherein it was observed:
“13.The learned counsel for the appellants contended that non-consideration of the appellants for appointment as TEO is vitiated by hostile discrimination as two other persons who were similarly situated were appointed as TEOs and are continuing. It is trite law that the right to equality cannot be claimed in a case where a benefit has been given to a person contrary to law. If a mistake has been committed by the authorities in appointing few persons who were not eligible, a claim cannot be made by other ineligible persons seeking a direction to the authorities to appoint them in violation of the instructions. After referring to several judgments, this Court in State of Odisha v. Anup Kumar Senapati 13/16 http://www.judis.nic.in [State of Odisha v. Anup Kumar Senapati, (2019) 19 SCC 626] held that there is no concept of negative equality under Article 14 of the Constitution of India. The appellants cannot, as a matter of right, claim appointment on the basis of two ineligible persons being given the benefit and no direction can be given to the respondents to perpetuate illegality.”
23. Having regard to the above settled position of law, merely on the basis that some similarly placed institutions were already granted grant-
in-aid illegally or by mistake, as held by the Hon'ble Apex Court, no one can claim equality. Admittedly, in this case, recognition itself was granted on the condition that no grant will be paid. Besides, the validity of Section 14-A is upheld. The said facts were not taken by us into consideration and the learned Single Judge. Merely because in the earlier round of litigation the respondent succeeded in making the petitioners to consider the request for grant-in-aid not withstanding the voluntary undertaking given acknowledging the non-entitlement of grant-in-aid, the rigor of Section 14-A cannot be overlooked. The said provision does not facilitate such a benefit. It also takes its sweep, those cases, where orders were obtained from the Court. It is trite that Act can be retrospective. In any case, the respondent does not have the vested right, which is sought to be taken away. No doubt, the Hon'ble Apex Court in the case of State of Uttar Pradesh and others vs. Pawan Kumar Divedi and others [(2014) 9 SCC 692], had dealt that whether the State Government is liable for for payment of salaries of Teachers and 14/16 http://www.judis.nic.in other employees. The said judgment may not be applicable to the facts of the present case, particularly grant of grant-in-aid was included as a condition by the Government while granting recognition. The amendment prohibits such grant after certain period.
24. Such view of the matter, we are of the view that the judgment, made in the writ appeal by us without considering the scope of Section 14-A of the Act and the condition, on which recognition was granted, is liable to reviewed. Accordingly, the review petition is ordered and the judgment of the learned Single Judge is hereby set aside. No costs.
[M.M.S.J.,] [N.S.K.J.,] .03.2021 Index : Yes/No Internet : Yes/No ta To
1.The Government of Tamil Nadu, Represented by its Secretary, Department of School Education, Fort St.George, Chennai-600 009.
2.The Director of Elementary Education, College Road, Chennai-600 006.
3.The District Elementary Education, Officer, Nagercoil, Kanyakumari District.
4.The Assistant Elementary Education Officer, Munchirai, Pudukkottai Post, Kanyakumari District.
15/16 http://www.judis.nic.in M.M.SUNDRESH, J.
AND N.SATHISH KUMAR, J.
ta Judgment made in REV.APLC(MD)No.180 of 2018 .03.2021 16/16 http://www.judis.nic.in