Madras High Court
C.B.M.College Tansac Unit vs Association Of University Teachers ... on 17 December, 2012
Author: A.Selvam
Bench: A.Selvam
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 18.7.2016
Delivered on : 10.08.2016
CORAM:
THE HON'BLE MR.JUSTICE A.SELVAM
AND
THE HON'BLE MR.JUSTICE P.KALAIYARASAN
Writ Appeal Nos.1111 and 1239 of 2012
& M.P.No.1 of 2013
W.A.No.1111 of 2012:
C.B.M.College TANSAC Unit
Rep.by its Secretary
C.B.M.College,
Coimbatore 641 042 .. Appellant
Vs.
1. Association of University Teachers Tamil Nadu
Regd.No.64/1971, C.B.M.College Unit
Rep.by its Secretary
R.Shanmuga Sudnaram
C.B.M.College, Kovaipudur
Coimbatore 641 042
2. Government of Tamil Nadu
rep.by its Secretary to the Government
Higher Education Department
Fort St.George,
Chennai
3. C.B.M.College
Rep.by its Secretary
Kovaipudur
Coimbatore 641 042
4. The Registrar
Bharathiayar University
Coimbatore
5. Director of Collegiate Education
College Road
Chennai 600 006 .. respondents
W.A.No.1239 of 2012:
1. Association of University Teachers Tamil Nadu
Regd.No.64/1971, C.B.M.College Unit
Rep.by its Secretary
P.Juswanth Mohana Sen
C.B.M.College, Kovaipudur
Coimbatore 641 042
.. Appellant
Vs.
1. Government of Tamil Nadu
rep.by its Secretary to the Government
Higher Education Department
Fort St.George,
Chennai
2. C.B.M.College
Rep.by its Secretary
Kovaipudur
Coimbatore 641 042
3. The Registrar
Bharathiayar University
Coimbatore
4. Director of Collegiate Education
College Road
Chennai 600 006
5. C.B.M.College TANSAC Unit
Rep.by its Secretary
C.B.M.College,
Coimbatore 641 042
6. E.Balaji
7. Dr.M.Mallika
8. Dr.M.S.Mutharasu
9. Dr.R.Mallika
10. Dr.V.G.Gnanasoundari
11. Dr.S.Santhanalakshmi
12. Dr.A.Kaboor
13. P.Sri Renganayaki
14. Dr.P.Vijay Bharathy
(respondents 6 to 14 were impleaded as
party respondents vide order of court
dated 17.12.2012 made in
M.P.No.5 of 2012 in W.A.No.1239 of 2012)
.. respondents
Prayer in both Writ Appeals: WRIT APPEALS filed under Clause 15 of Letters Patent against the order dated 20.3.2012 passed in W.P.No.22684 of 2009.
For Appellant : Mr.R.Subramaniam
in W.A.No.1111/12
& for 5th respondent
in W.A.No.1239 of 2012
For appellant : Mr.N.R.Chandran
in W.A.No.1239 of 2012 Senior Counsel
& for 1st respondent for Mr.R.Kannan
in W.A.No.1111/12
For 2 & 5th Respondents : Mr.N.Srinivasan
in W.A.No.1111 of 2012 Additional Government Pleader
& for 1st & 4th respondent
in W.A.No.1239/12
For 3rd respondent : Mr.R.Muthukumarasamy
in W.A.No.1111 of 2012 Senior Counsel
& for 2nd respondent for Mr.G.Sankaran
in W.A.No.1239/12
For 4th respondent : No appearance
in W.A.No.1111 of 2012
For 3rd respondent : No appearance
in W.A.No.1238/12
***
COMMON JUDGMENT
(Judgment of the Court was delivered by A.SELVAM, J) These Writ Appeals are directed against the order dated 20.3.2012 passed in W.P.No.22684 of 2009 by the learned Single Judge of this Court.
2. The appellant in W.A.No.1239 of 2012, as petitioner, has filed W.P.No.22684 of 2009 on the file of this Court under Article 226 of the Constitution of India, praying to issue a Writ of Certiorari, calling for the records relating to the impugned order of the first respondent in G.O.(Ms.) No.355 dated 25.9.2009 and quash the same.
3. The material averments made in the Writ Petition No.22684 of 2009 can be stated like thus:-
The second respondent has been started by a public charitable Trust in the year 1974. During the year 1975-76, classes have been commenced. In the year 2009, it is found that the second respondent has not been functioning properly. The petitioner has sent a memorandum to the second respondent with regard to compulsory donation. On 14.2.2008, the Regional Joint Director of Collegiate Education inspected the College and subsequently various criminal proceedings have been initiated. On 10.4.2008, the Director of Collegiate Education has also inspected the College. On 12.5.2008, he submitted a report to the Government, whereby recommended to take action against the management and also recommended stoppage of admission for the year 2009-2010. On 30.3.2009, the third respondent has passed a resolution and thereby suspended admission of students in the second respondent College for the year 2009-2010. On 20.5.2009, the Regional Joint Director has submitted a report to the fourth respondent, Director of Collegiate Education, Chennai and thereby recommended invocation of Section 14A of the Tamil Nadu Private Colleges Regulation Act,1976. On 10.8.2009, the management of the College applied for minority status and the first respondent has granted minority status by virtue of G.O.(Ms.) No.355 dated 25.9.2009 and the same is liable to be quashed.
4. The learned Single Judge, after considering the divergent submissions made on either side, has disposed of the Writ Petition No.22684 of 2009 by way of deducing the following observations:
i.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 ii.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.
iii.Second respondent satisfied the guidelines prescribed in G.O.Ms.No.270, Education (J1) Department, dated 17.6.1998 for conferment of minority status iv.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 v.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 vi.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."
Against the order passed by the learned Single Judge, the writ petitioner has filed Writ Appeal No.1239 of 2012. The fifth respondent, as appellant, has filed Writ Appeal No.1111 of 2012. Since common questions of law and facts are involved, common judgment is pronounced.
5. The learned senior counsel appearing for the appellant in W.A.No.1239 of 2012 and the learned counsel appearing for the appellant in W.A.No.1111 of 2012 have sparingly and uniformly contended that the second respondent, viz., C.B.M.College has been established by a public Trust and the said Trust has not been created nor intended for a particular community and further the said Trust has not been created for uplifting any minority community and on the basis of the said Trust, the second respondent has been established and the first respondent without considering the nature as well as purpose of Trust has erroneously passed G.O.(Ms.) No.355 dated 25.9.2009, whereby, the second respondent has been conferred linguistic minority status for a period of five years from 2009-2010 to 2013-2014. The approach made by the first respondent is totally erroneous. Under such circumstances, Writ Petition No.22684 of 2009 has been filed and even though the learned Single Judge has observed to the effect that minority status has been obtained for oblique purpose, has erroneously disposed of the same by way of giving certain observations. Under such circumstances, these Writ Appeals have been filed and therefore, the order passed by the learned Single Judge in Writ Petition No.22684 of 2009 is liable to be set aside.
6. Per contra, the learned senior counsel appearing for the contesting respondent, has also equally contended that even though the second respondent has been established by a Trust, which has come into existence in the year 1974 and subsequently supplemental Trust Deed has come into existence on 27.2.2009, wherein it has been explicitly stated to the effect that the second respondent College is nothing but a linguistic minority institution and the first respondent, after getting proper reports from the concerned authorities, has rightly passed G.O.(Ms.) No.355 dated 25.9.2009. The learned Single Judge, after considering the circumstances available in the present case, has rightly disposed of the Writ Petition by giving certain observations and therefore, the order passed by the learned Single Judge does not call for any interference.
7. For considering the rival submissions made on either side, the Court has to look into the following documents:
It is an admitted fact that the second respondent has been established in pursuance of a Trust created in the year 1970. In the said Trust Deed, it is mentioned as follows:
NAME OF THE TRUST
1. The Trust hereby declared and constituted is a public charitable Trust and shall be designated "C.B.M.Sakunthala Memorial Trust.
OBJECT OF THE TRUST
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 particular knowledge in medicines including surgery and also ayurveda
(c)to award scholarships or stipends 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 provide books for libraries
(e)to give food and clothing or alms to the poor
(f)to encourage the study of Philosophy, civilizations, 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."
8. A plain reading of the Trust Deed would go to show that the Trust in question is nothing but a public Trust and its main object is to establish hospitals, clinics, laboratories, schools, colleges etc.
9. At this juncture, the Court has to analyze the real meaning of a public Trust.
"It is a settled principle of law that those charities in which public are interested, the endowment must be for a public purpose of a charitable nature and the beneficial interest must be vested for the public in general or considerable consequences thereof."
10. In the instant case, the Trust itself is narrated as public Trust and its main objects are to establish hospitals and promote educations by way of establishing Schools and Colleges. In fact, this Court has perused the entire objects of the Trust and ultimately found that the Trust in question has been established for the benefits of general public and not for the benefits of particular community, especially linquistic minority.
11. It is an admitted fact that on the basis of the said Trust Deed, various Institutions have been established and especially, the second respondent has been established. After a lapse of 39 years, a supplemental Trust Deed has come into existence, wherein it is mentioned that "Whereas the Telegu speaking persons are in a minority in the whole of the State of Tamil Nadu and in particular in Coimbatore District".
12. Only on the basis of the supplemental Trust Deed, coupled with the reports of the Director and Joint Director of Collegiate Education, the Government of Tamil Nadu have passed G.O.(Ms.) No.355 dated 25.9.2009.
13. It has already been pointed out that even from a plain reading of a Trust Deed, one can easily discern that the Trust in question is nothing but a public Trust and its main aims are to promote education, establish hospitals, etc., for the benefit of general public and not for the benefit of particular community, especially Telugu speaking people. Therefore, it is quite clear that for the purpose of bringing the second respondent within the contour of minority institution, the supplemental Trust Deed has come into existence on 27.2.2009.
14. The Government of Tamil Nadu, even without considering the fact that in the original Trust Deed, it is being mentioned as a public Trust and also without considering the main purpose of the Trust, simply on the basis of supplemental Trust Deed coupled with recommendations of officials, have erroneously passed G.O.(Ms.) No.355 dated 25.9.2009. Therefore, it is quite clear that the approach made by the Government of Tamil Nadu, viz., the first respondent is totally against the objects and purposes mentioned in the Trust Deed.
15. The learned senior counsel appearing for the appellants have uniformly contended to the effect that since the Trust in question is a public Trust, virtually Section 92 of Code of Civil Procedure, 1908 has to be invoked for each and every purpose. The learned Single Judge, after accepting G.O.(Ms.) No.355 dated 25.9.2009, has observed in one place that Section 92 of Code of Civil Procedure, 1908 would not apply to the Trust in question.
16. On the basis of the discussions made earlier, this Court is of the considered view that the Trust in question is nothing but a public Trust. Therefore, for each and every purpose, Section 92 of Code of Civil Procedure, 1908 has to be invoked. Under the said circumstances, the observation made by the learned Single Judge in respect of applicability of Section 92 of Code of Civil Procedure, 1908 is erroneous.
17. On the side of the appellants, the following decisions are relied upon:
(A) In AIR 1970 SC 2079 (State of Kerala v. Very Rev.Mother Provincial, etc.), the Hon'ble Supreme Court had an occasion to analyze Article 30 of the Constitution of India and ultimately observed as follows:
" 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.
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."
Even from a cursory look of the judgment referred to supra, it is made clear that for considering an Institution as minority institution, the same has to be established by the persons, belonging to that community and especially, for the sake of upliftment of the said community people, otherwise, the particular institution cannot be called as a minority institution.
(B) In 1996 (II) CTC 409 (Elkay Higher Secondary School and Elkay Primary School and others vs. State of Tamil Nadu through District Collector, Tirunelveli), in paragraph No.17, this Court has observed as follows:
"17. The claim of the plaintiffs/appellants in the above appeals may now be considered in the context of the various principles repeatedly laid down in the decisions referred to supra. In my view, the factual materials produced by the plaintiffs in these cases do not go to show that the respective institutions have been established and are administered by a minority community or any member of such minority community for the benefit of and for promoting the interest of the particular minority community. On the other hand, the materials on record would go to show that it is administered and run like any other private educational institution established and run or administered by a person or group of persons or an Association belonging to a non-minority community. The mere fact that the founder of the school happens to be a Muslim, by itself is no sufficient or conclusive proof of the fact that the educational institution can claim to be one established and administered by a minority community or as a minority institution. If such a generalised view is to be taken and every institution so established and run by any individual person belonging to a community, which community may indisputably be a minority community has to be impressed with the character of a minority institution, it will only amount to allowing an abuse of the constitutional safeguards and extending underservedly protection to what the Apex Court was pleased to identify as 'masked phantoms' who are in truth and reality not minority institutions."
18. From the decisions referred to supra, it is made clear that if an institution has been created and administered for upliftment of a particular community, the said Institution can be branded as minority Institution.
19. On the side of the contesting respondent, the following decisions are relied upon:
(A) In AIR 1969 SC 465 (Rev. father W.Proost and others v. The State of Bihar and others), the Hon'ble Supreme Court has observed as follows:
"7. The learned Attorney General seeks to read into the protection granted by Art. 30(1) a corrollary taken from Art. 29(1). He concedes that the Jesuits community is a minority community based on religion and that, therefore, it has a right to establish and administer educational institutions of its choice. But he contends that as the protection to minorities in Art. 29 (1 ) is only a right to conserve a distinct language, script or culture of its own, the college does not qualify for the protection 'of Art. 30(1) because it is not rounded to conserve them. The question, therefore, is whether the college can only claim protection of s. 48-B of the Act read with Art. 30(1) of the Constitution if it proves that the college is furthering the rights mentioned in Art. 29 (1 ).
8. In our opinion, the width of Article 30(1) cannot be out down by introducing in it considerations on which Art. 29 (1 ) is based. The latter article is a general protection which is given to minorities to conserve their language, script or culture. The former is a special right to minorities to establish educational institutions of their choice. This choice is not limited to institution seeking to conserve 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 Art. 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.
(B) In (1998) 6 SCC 674 (N.Ahmad v. Manager, Emjay High School and others), the Hon'ble Supreme Court has observed 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. The declaration is only an open acceptance of a legal character which should necessarily have existed antecedent to such declaration."
20. In the decisions referred to on the side of the contesting respondent, it has been clearly established to the effect that the institutions in question are established and managed by a minority community. Under the said circumstances, the Hon'ble Supreme Court, by virtue of Article 30 of the Constitution of India, has categorically held that those Institutions are entitled to get protection available under the said Article.
21. As adverted to in many places, the position in the present case is totally inverse. Even at the risk of repetition, this Court would like to point out that the Trust in question has not at all been established with a view to promote linquistic minority community, especially Telugu speaking people. As taunted earlier, only for getting minority status, the supplemental Trust Deed has come into existence on 27.2.2009. Further, it is seen from the records that the second respondent and other institutions have been established even during 1974. After a lapse of 35 years, the present attempt has been made for getting minority status. The Government of Tamil Nadu, as noted down earlier, without considering the purpose for which the Trust in question has been established and also without considering that the Trust itself is a public Trust, have erroneously passed the impugned G.O.(Ms.) No.355 dated 25.9.2009. The said Government Order reads as follows:
"In its judgment second read above, in W.P.(Civil) No.317/1993 in T.M.A.Paid Foundation and others vs. State of Karnataka and others, the 11 Judges Constitution Bench of the Supreme Court of India, has laid down certain laws relating to aided/unaided minority/non-minority Educational Institutions. However, with regard to the framing of Indicia for treating an educational institution as Minority institution, the Supreme Court has held that it will be dealt with by a Regular Bench.
2. The Government have examined the proposal of the Director of Collegiate Education sent in his letters fourth read above for conferment of Linguistic Minority Status to C.B.M.College, Coimbatore based on the orders issued in the G.Os.1st and 3rd read above, in detail and decided to accept the same subject to certain conditions.
3. Accordingly, they direct C.B.M.College, Coimbatore, run by the C.B.M.Sakunthala Memorial Trust be conferred Linquistic Minority Status for a period of five years from 2009-2010 to 2013-2014 subject to the ultimate guidelines that are to be laid down in Indicia to be framed by the Regular Bench of Supreme Court of India for treating an educational institution as a Minority Institution and subject to the following conditions stipulated in the G.O. third read above:-
i.The Director of Collegiate Education (or) Regional Joint Director of Collegiate Education concerned should conduct annual inspection of the institution.
ii.If the minority institution by commission or omission of any action does anything against the minority status, the Head of the Department shall bring it to the notice of the Government for withdrawal of the minority status and the Government may take further necessary action for withdrawal of the minority status after giving an opportunity to the institution concerned."
22. Even from a mere reading of the G.O.in question, it is made clear that the Government of Tamil Nadu have conferred linguistic minority status for the period mentioned therein only on the basis of the report submitted by the Director of Collegiate Education. In many places, it is stated to the effect that the G.O.in question has been passed totally in violation of the object of the Trust. Since G.O in question is nothing but a total violation of objects of the Trust in question, this Court is of the view that the same is liable to be quashed. Further, the approach made by the learned Single Judge is also against the purposes/objects of the Trust and altogether, these Writ Appeals are liable to be allowed.
In fine, these Writ Appeals are allowed without cost. The order dated 20.3.2012 passed in Writ Petition No.22684 of 2009 by the learned Single Judge is set aside and W.P.No.22684 of 2009 is allowed without cost and G.O.(Ms.) No.355 dated 25.9.2009 is quashed. Consequently, connected Miscellaneous Petition is closed.
(A.S.,J.) (P.K.,J)
10.08.2016.
Index:Yes/No
ajr
To
1. The Secretary to the Government
Government of Tamil Nadu
Higher Education Department
Fort St.George,
Chennai
2. The Registrar
Bharathiayar University
Coimbatore
3. Director of Collegiate Education
College Road
Chennai 600 006
A.SELVAM,J.
AND
P.KALAIYARASAN,J.
ajr
Judgment in
W.A. Nos.1111 and 1239 of 2012
10.08.2016