Madras High Court
The Roman Catholic Society Of The ... vs The Government Of Tamil Nadu, ... on 10 September, 1990
Equivalent citations: (1991)2MLJ440
ORDER Nainar Sundaram, J.
1. The petitioners in these writ petitions are Institutions. Their schools have recognition for the various educational courses in respect of which aid is being asked for. In view of the fact, broad contentions built on Article 30, and in particular Article 30(2) of the Constitution of India are being projected in support of the request for the grant of aid for the various educational courses run by the minority schools, we do not propose to go into the minute factual details with reference to each case. Suffice it to state that we are concerned with minority schools and their various educational courses with which we are concerned, have the benefit of recognition. Article 30(1) speaks about the right of all minorities, whether based on religion or language, to establish and administer educational institutions of their choice. Certain provisions of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 (Tamil Nadu Act 29 of 1974), hereinafter referred to as the Act, may have to be looked into while considering the contentions. It must be noted here that most of the provisions of the Act and the Rules framed thereunder bearing the nomenclature of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974, hereinafter referred to as the Rules, have been held to be not applicable to minority institutions by a pronouncement of this Court in W.P. No. 4478 of 1974 etc. (batch) dated 17.12.1975. We propose to refer to such of the provisions of the Act and the Rules which have escaped the scathe of the pronouncement of this Court, for dealing with the submissions made on behalf of the petitioners and the counter - submissions made on behalf of the petitioners and the counter - submissions put forth on behalf of the respondents. Section 2(6) of the Act defines a 'minority school' as meaning 'a private school of its choice established and administered by any such minority, whether based on religion or language as has the right to do so under Clause (1) of Article 30 of the Constitution.' For the establishment of minority school, no permission is necessary under the Act as in the case of any other private school. This is what has been set out in Section 9 of the Act.
9. Minority school to be established without permission: Any minority whether based on religion or language may establish and administer any private school without permission under Section 6.
But under Section 10 every minority school established and administered after the date of the commencement of the Act, with which alone we are concerned in the present cases is enjoined to send to the competent authority a statement containing particulars specified in Clause (c) of Sub-section (2) of Section 5 within such time as may be prescribed. Section 5(2)(c) speaks about certain particulars, such as,
(i) the name of the private school and the name and address of the educational agency;
(ii) the need for the private school in the locality;
(iii) the course for which such private school proposes to prepare, train or guide its pupils for appearing at any examination conducted by, or under the authority of, the Government;
(iii-a) the extent of the playground available to pupils and the adequacy of the playground with reference to the strength of the pupils in the school;
(iv) the amenities available to pupils 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 School;
(vii) the situation and the description of the buildings in which such private school is proposed to be established; and
(viii) such other particulars as may be prescribed.
Rule 8(2) of the Rules, which alone is relevant since we are dealing with the minority school established and administered after the date of the commencement of the Act, is supplementary to the above provision when it says that the statement shall be in Form V and it shall be sent within three months from the date of the opening of the school. Form V is expatiative and the particulars, if furnished as per the requirements of Form V will present a complete picture of the minority school on the relevant aspects. That the minority schools in the present cases have duly complied with these provisions is not in dispute.
2. The complaint in the present cases is that the minority schools have been discriminated against by the respondents on the question of grant of aid. Before we examine the factual aspects, it will be advisable to refer to the propositions from the legal angle as have come to be laid down by pronouncements of the highest Court in the land as well as High Courts. Venkatarama Aiyar, J., in his separate judgment while concurring, with the majority view on question numbers 1, 3 and 4, but differing on question number 2 in, In re., Kerala Education Bill, 1957 A.I.R. 1958 S.C. 956, observed:
The result of the constitutional provisions bearing on the question may thus be summed up;
(1) The State is under a positive obligation to give equal treatment in the matter of aid or recognition to all educational institutions including those of the minorities, religious or linguistic.
(2) The State is under a negative obligation as regards those institutions, not to prohibit their establishment or to interfere with their administration.
On the question of aid, the following observations of Das, C.J., who spoke for the majority require noting.
It is, however, well known that in modern times the demands and necessities of modern educational institutions to be properly and efficiently run require considerable expense which cannot be met fully by fees collected from the scholars and private endowments which are not adequate and, therefore, no educational institution can be maintained in a state of efficiency and usefulness without substantial aid from the State. Articles 29(3), 29(2) and 30(2) postulate educational institutions receiving aid out of State funds.
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We are thus faced with a problem of considerable complexity apparently difficult of solution. There is, on the one hand the minority rights under Article 30(1) to establish and administer educational institutions of their choice and the duty of the Government to promote education, there is, on the other side the obligation of the State under Article 45 to endeavour to introduce free and compulsory education. We have to reconcile between these two conflicting interests and to give effect to both if that is possible and bring about a synthesis between the two. The directive principles cannot ignore or override the fundamental rights but must, as we have said, subserve the fundamental rights. We have already observed that Article 30(1) gives two rights to the minorities. (1) to establish, and (2) to administer, educational institutions of their choice. The right to administer cannot obviously include the right to maladminister. The minority cannot surely ask for aid or recognition for an educational institution run by them in unhealthy surroundings, without any competent teachers possessing any semblance of qualification, and which does not maintain even a fair standard of teaching or which teaches matters subversive of the welfare of the scholars. It stands to reason, then, that the constitutional right to administer an educational institution of their choice does not necessarily militate against the claim of the state to insist that in order to grant aid the State may prescribe reasonable regulations to ensure the excellence of the institutions to be aided.
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No educational institution can in actual practice be carried on without aid from the State and if they will not get it unless they surrender their rights they will, by compulsion of financial necessities, be compelled to give up their rights under Article 30(1).
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The State legislature cannot, it is clear, disregard or override those provisions merely by employing indirect methods of achieving exactly the same result. Even the Legislature cannot do indirectly what it certainly cannot do directly.
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There can be no manner of doubt that our Constitution has guaranteed certain cherished rights of the minorities concerning their language, culture and religion. These concessions must have been made to them for good and valid reasons. Article 45, no doubt, requires the Slate to provide for free and compulsory education for all children, but there is nothing to prevent the State from discharging that solemn obligation through Government and aided schools and Article 45 does not require that obligation to be discharged at the expense of the minority communities. So long as the Constitution stands as it is and is not altered, it is, we conceive, the duty of this Court to uphold the fundamental rights and thereby honour our sacred obligation to the minority communities who are of our own. Throughout the ages endless inundations of men of diverse creeds, cultures and races-Aryans and non-Aryans, Dravidians and Chinese, Scythians, Huns, Pathans and Mughals - have come to this ancient land from distant regions and claims. India has welcomed them all. They have met and gathered, given and taken and got mingled, merged and lost in one body. India's tradition has thus been epitomized in the following noble lines:
None shall be turned away. From the shore of this vast sea of humanity. That is India. Indeed India has sent out the world her message of goodwill enshrined and proclaimed in our National Anthem:
Day and night, thy voice goes out from land to land, calling Hindus, Buddhists, Sikhs and Jains round thy throne and Parsees, Mussalmans and Christians Offerings are brought to thy shrine by the East and the West to the woven in a garland of love. Though bringest the hearts of all peoples into the harmony of one life, Thou Dispenser of India's destiny. Victory, Victory, Victory to thee.
It is thus that the genius of India has been able to find unity in diversity by assimilating the best of all creeds and cultures. Our Constitution accordingly recognises our sacred obligations to the minorities.
3. In Sidhrajbhai v. State of Gujarat A.I.R. 1963 S.C. 540 : 1962 K.L.T. 135, there was a reference to the earlier pronouncement in In re. Kerala Education Bill 1957 A.I.R. 1958 S.C. 956, in the following terms:
The constitutional right to administer an educational institution of their choice, it was observed, does not necessarily militate against the claim of the State to insist that in order to grant aid the State may prescribe reasonable regulations to ensure the excellence of institutions to be aided, but the State could not grant aid in such a manner as to take away fundamental right of the minority community under Article 30(1). It was pointed out that under the Directive Principles of State Policy, under Articles 41 to 48 it was the duty of the State to aid educational institutions and to promote the educational interests of minorities and weaker sections of the people. Again, in the circumstances prevailing in the country, no educational institution could, in actual practice, be maintained without aid from the State and if it could not get it unless it surrendered its rights....
4. In St. Xaviers College v. State of Gujarat , also, there was a reference to the earlier pronouncement in In re. Kerala Education Bill 1957 A.I.R. 1958 S.C. 956, and the following passages require noting:
Articles 29 and 30 confer four distinct rights. First is the right of any section of the resident citizens to conserve its own language, script or culture as mentioned in Article 29(1). Second is the right of all religions and linguistic minorities to establish and administer educational institutions of their choice as mentioned in Article 30(1). Third is the right of an educational institution not to be discriminated against in the matter of State aid on the ground that it is under the management of a religious or linguistic minority as mentioned in Article 30(2). Fourth is the right of the citizen not to be denied admission into any State maintained or State aided educational institution on the ground of religion, caste, race or language, as mentioned in Article 29(2).
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If the right of recognition is not a fundamental right the logical result of this postulate would be that the State need not recognise except on general terms open to all institutions. But if the recognition by a State is limited in so far as minority institutions are concerned, in that under the guise of exercising this power, the State cannot prescribe conditions which will make an inroad and take away the right guaranteed under Article 30(1), then there is no meaning in saying that the right to recognise vis-a-vis minority institutions is not a fundamental right. This is one conclusion that can possibly be derived from the above observations of Das, C.J., The second conclusion which is possible is that these observations will have to be confined to the provisions of law regarding the validity of which the opinion of the Court was sought. In that case, the Bill had provided for giving recognition to schools for preparing students for the examinations conducted by the Board, and in so providing it had imposed conditions which the Court construed as tantamount to the minority institutions being required to surrender or denying them the right under Article 30(1). The Court was not concerned with a law which did not deal with the question of affiliation or recognition at all or where the teaching was confined only to State managed and maintained schools. The observations of Das, C.J., cannot therefore, strictly speaking apply to this fact situation. When it is so read, they cannot be held to have laid down that the State must provide for giving recognition at least to the minority institutions or accord recognition subject to such conditions as would in truth and in effect not amount to an infringement of their right under Article 30(1). In other words, where the law does not provide for giving recognition or affiliation to any educational institution irrespective of whether it is a majority or a minority institution, can the minority institution claim recognition on the ground that without recognition or affiliation the educational institution established by them cannot fulfil the real objects of their choice and the minorities cannot effectively exercise their rights under Article 30(1)? If the logical answer flowing from the observations is that it cannot, then the question would arise as to what is the purpose which Clause (1) of Article 30 serves? The only purpose that the fundamental right under Article 30(1) would serve would in that case be that minorities may establish their institutions, lay down their own syllabi, provide instructions in the subjects of their choice, conduct examinations and award degrees or diplomas. Such institutions have the right to seek recognition to their degrees and diplomas and ask for aid where aid is given to other educational institutions giving a like education on the basis of the excellence achieved by them. The State is bound to give recognition to their qualifications and to the institutions and they cannot be discriminated except on the ground of want of excellence in their educational standards so far as recognition...of degrees or educational qualifications is concerned and want of efficient management so far as aid is concerned.
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Clause (2) of Article 30 prevents the State from making discrimination in the matter of grant of aid to any educational institution on the ground that the institution is under the management of a minority, whether based on religion or language.
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A liberal, generous and sympathetic approach is reflected in the Constitution in the matter of the preservation of the right Of minorities so far as their educational institutions are concerned. Although attempts have been made in the post to whittle down the rights of the minorities in this respect, the vigilant sections of the minorities have resisted such attempts. Disputes have consequently arisen and come up before this Court for determining whether the impugned measures violate the provisions of the Constitution embodied in Articles 29 and 30. This Court has consistently upheld the rights of the minorities embodied in those articles and has ensured that the ambit and scope of the minority rights is not narrowed down. The broad approach has been to see that nothing is done to impair the rights of the minorities in the matter of their educational institutions and that the width and scope of the provisions of the Constitution dealing with those rights are not circumscribed. The principle which can be discerned in the various decisions of this Court is that the catholic approach which led to the drafting of the provisions relating to minority rights should not be set at naught by narrow judicial interpretation. The minorities are as much children of the soil as the majority and the approach has been to ensure that nothing should be done as might deprive the minorities of a sense of belonging of a feeling of security, of a consciousness of equality and the awareness that the conservation of their religion, culture, language and script as also the protection of their educational institutions is a fundamental right enshrined in the Constitution. The same generous, liberal and sympathetic approach should weigh with the Courts in construing Articles 29 and 30 as marked the deliberations of the Constitution makers in drafting those articles and making them part of the fundamental rights. The safeguarding of the interest of the minorities amongst sections of population is as important as the protection of the interest amongst individuals of persons who are below the age of majority or are otherwise suffering from some kind of infirmity. The Constitution and the laws made by civilized nations, therefore, generally contain provision for the protection of those interests. It can, indeed, be said to be an index of the level of civilization and catholicity of a nation as to how far their minorities feel secure and are not subject to any discrimination or suppression.
5. In The All Saints High School v. Government of Andhra Pradesh (1980) 2 S.C.J. 273, Chandrachud C.J., observed as follows:
In the case of institutions that receive State aid, it is the duty and obligation of the Government which grants aid to see that public funds are usefully and properly expended. If the expenditure incurred for paying the emoluments of the staff is subsidised or financed from out of State funds, it becomes the duty of the State to see that no one who does not possess the minimum qualifications is appointed on the staff, the pay and other emoluments of the staff are guaranteed and their service conditions secured. Minority Institutions which receive State aid cannot complain of conditions subject to which the aid is granted, so long as such conditions do not amount to discrimination against them on the ground of language or religion and so long as the aid is not made to depend upon the performance or observance of conditions which amount to deprivation of the right guaranteed by Article 30(1). There is also no doubt that minority institutions cannot be discriminated against in the matter of granting State aid.
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Article 30(1) confers a fundamental right on the minorities to establish and administer educational institutions of their choice. Article 30(2) enjoins on the State that in granting aid to the educational institutions it shall not discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language. Thus, it would appear that Article 30(2) extends the guarantee contained in Article 30(1) even in the matter of receiving aid by the educational institution established by the minority community.
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Articles 28(3) 29(2) and 30(2) deal with educational institutions receiving aid out of State funds. Certain restrictions are placed and obligations cast on institutions recognised by the State or receiving aid. Article 28(3) provides, no person attending any educational institution recognised by the State or receiving aid out of State funds shall be required to take part in any religious instructions that may be imparted in Such institutions or to attend any religious worship that may be conducted in such institution or in any premises attached thereto unless such person or if such person is a minor, his guardian has given his consent thereto. Under the Sub-article a person attending an institution recognised by the State or receiving aid cannot be compelled by the institution to take part in any religious instruction or to attend religious worship without his consent. Article 29(2) provides that no citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them. Under Article 29(2) in institutions receiving aid a citizen is entitled to seek admission and the institution is forbidden to deny admission to a citizen on grounds of religion, race, caste or language. While Articles 28(3) and 29(2) impose certain restrictions on institutions receiving aid, Article 30(2) forbids the State from discriminating against any educational institution in granting aid on the ground that it is under the management of a minority, whether based on religion or language. The Constitution does not confer any right on the institution to receive any aid. It however forbids the State in granting aid to educational institutions from discriminating an educational institution on the ground that it is under the management of a minority whether based on religion or language. This would imply that the State has a right to grant or not to grant aid. It may be that the State is not in a position to grant aid to educational institutions. In such circumstances nobody can force the State to grant aid. But if the State grants aid to educational institutions there should not be any discrimination. It is open to the State to prescribe relevant conditions and insist on their being fulfilled before any institution becomes entitled to aid. No institution which fails to conform to the requirements thus validly prescribed would be entitled to any aid. Educational institutions receiving aid whether they are managed and administered by minorities or not have to conform to the requirements prescribed by the State in order to enable the institutions to receive aid. The requirements prescribed shall not be discriminatory on the ground that it is under the management of a minority whether based on religion or language. The character of the minority institution should not also be destroyed. The right of the State to ensure that if funds are properly spent cannot be denied.
6. In Managing Board, of the Milli Tulimi Mission Bihar Ranchi v. The State of Bihar , while dealing with the question as to whether the minority institutions have a fundamental right to get aid from the Government or affiliation from the Universities as a matter of course, it was observed as follows:
The first question to be determined is whether the minority institutions have a fundamental right to get aid from the Government or affiliation from the Universities as a matter of course. In other words, the question posed is whether the right to affiliation or to obtain aid from the Government is a fundamental right or not so as to violate Article 30. Technically speaking the answer to this question is in the negative but it must be stressed that the refusal to give aid or affiliation by the statutory authorities without just and sufficient grounds amounts to violation of the fundamental freedoms enshrined in Article 30 of the Constitution. If the Government withholds giving aid or a university refuses to grant affiliation, the direct consequence would be to destroy the very existence of the Institution itself because there may be a number of minority institutions which may not exist without the Government aid and a large number of students admitted to these institutions, in the absence of affiliation, will be deprived of acquiring higher academic status which will not only be a loss to the institution but a loss to the nation itself. It is for this purpose that Article 30 was inserted in the Constitution.
7. In Frank Anthony P.S.E. Assocn v. Union of India , while considering the content and dimension of the rights of minority institution under Article 30(1), there was advertence to the relevant passages occurring In Re Kerla Education Bill A.I.R. 1958 S.C. 956.
8. In Church of South India v. The Government of Tamil Nadu 1988 Writ L.R. 130, a Bench of this Court dealt with the plea of financial constraints, put forth by the State in answer to the claim for aid after recognition has been accorded in the following terms:
As for financial liabilities, being fully aware of the protection conferred under Article 30(2) of the Constitution and being fully conscious that Minorities have the right to open schools and when such schools are being opened year after because of public demand and due to increase in population; there could not be any difficulty for the State to provide for contingency funds under the head of 'Education' in formulating the Budget. No less than rupees two hundred crores is spent for free education and hence a few more lakhs is not an unmanageable financial capabilities for this Welfare state. Therefore, it is not impossible of performance to comply with the Constitutional requirements. Directing the payment of aid to the appellant Institution, cannot therefore be opposed by State, when it is for public good.
This pronouncement of the Bench was followed by Bakthavatsalam, J. in T. Sekhara Pillai Manager Arumanai Higher Secondary School Arumanai, Kanyakumari District v. The State of Tamil Nadu rep. by its Commissioner and Secretary to Government, Education Department, Madras-9 and seven Ors. W.P. No. 4570 of 1987 order dated 27.9.1989, and the learned single Judge observed "It is highly surprising for the State to take the contention that they are not able to pay the grant, due to non-availability of finance. I do not understand the attitude of the department that after sanctioning the subject for the Higher Secondary School now the department expects the school to run the school without teachers. For that, the department should have taken steps to sanction the post. For imparting education the fundamental thing is to have teachers to coach the students properly, that too, trained teachers for the respective subjects. I think a duty is cast upon the State to see that the posts are sanctioned expeditiously, if they have sanctioned subjects or groups for the School. There is no point in sanctioning the groups lo the school and leave the matter at that. If the state feels that they will have financial strain, they ought not have sanctioned the groups." The order of the learned single Judge has been confirmed by t he Bench of this Court in The State of Tamil Nadu, represented by its Commissioner and Secretary to Government, Education Department, Madras-9 and two Ors. v. T. Sekhara Pillai and five Ors. W.A. No. 24 of 1990, Judgment dated 23.8.1990, except for a slight modification regarding unsanctioned course. There is also a pronouncement of the Bench of the High Court of Bombay in Manubhari Pragaji Vashi v. State . The Bench of the High Court of Bombay, while dealing with the allegation of discrimination in withholding the grants-in-aid to Government recognised non-Government Law Colleges, observed as follows:
We do not cavil that Government may well be having its own constraints in starting more law colleges than the solitary one it runs in the entire State, namely at Bombay. At the same time, if Government is unable to do so, it is its duty to assist the private law colleges that have filled in the breach. Government can do so not merely by granting recognition to them, and then leaving them to fend for themselves monitarywise, but by extending to such law colleges; as fulfil the criteria, the facility of grant-in-aid to them. To do otherwise would be discrimination between such law colleges from whom grants-in-aid are withheld, and other non-government colleges with faculties namely, arts, science, commerce, engineering and medicine, to whom grants-in-aid are given.
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Paucity of finance which Government pleads can be no reason for discriminating.
9. The minority institutions can not only establish and administer educational institutions of their choice, but they can also claim along with other educational institutions, State aid, and in the matter of grant of State aid, there shall not be discrimination. It has been countenanced that in modern times, it is not possible to run an educational institution without State aid. It is true there could not be fundamental right given to a minority institution to get aid from the State. If the State really has no finance, certainly it cannot distribute aid. If, on the other hand, the State is seized of the requisite finance or could manage the requisite finance and in fact was managing the finance, then in the matter of grant of aid, the State shall not discriminate against minority institutions. The right of a minority to establish and administer educational institution of its choice indirectly carries with in the right to State aid; of course subject to terms, which ensures the excellence of the institution. While the minority has a right to insist for aid along with the other educational institutions, giving no room for discrimination in the matter of distribution of aid, that right will not include malad-ministration of the educational institutions. The State can certainly insist that in order to obtain aid, the minority educational institutions must adhere to reasonable prescriptions and regulations, ensuring the excellence of the institution getting the aid.
10. Keeping in mind the principles set down by pronouncements and briefly recapitulated by us as above, we shall proceed to examine what has happened in the present cases. As already noted, the minority institutions have come up as per the requirements of the Act and the Rules in the matter of establishment of such minority institutions. The Act and the Rules do not contemplate the obtaining of any prior permission. The minority institutions have also been successful in obtaining recognition for the various educational courses. But on the question of distribution of aid, they have been denied that. The grievance is that this has amounted to discrimination against them. The reasons as we could see from the counter-affidavits filed by the respondents in the present cases for withholding the aid for these minority institutions are by way of summing up,
(i) these institutions have come up without the prior permission of the authorities, and hence there is no scope for making provisions for accord of aid to them in the Budgets; and,
(ii) paucity of funds.
We can take the relevant averments in the counter-affidavit filed in W.P. No. 12364 of 1984, the other counter-affidavits practically running on the same lines as the counter-affidavit in the case referred to above. Here are the relevant extracts from the said counter-affidavit.
As in every year, various types of Educational Institutions are being permitted to be opened under Government Sector, Local Bodies, and Private Educational Agencies by the Government of Tamil Nadu taking into consideration various factors and Chief of them being availability of funds with reference to its budgetary provisions, the Educational needs of the area, infrastructure facilities available.
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These schools have not so far been admitted to aid for want of funds:
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For this purpose, the additional expenditure to Government would be around Rs. 33.16 lakhs per annum.
The prayer of the petitioner is to give directions to the respondents to grant aid to St. Joseph's High School, Athipet, towards the payment of salary to the teachers and other staff employed in Standards IX and X of the School. The petitioner's request alone cannot be taken up for consideration, since there are about 42 such minority High Schools which were opened during the years 1982-1983 and 1983-1984 under minority rights have not been admitted to aid so far. The requests of the similarly placed minority High Schools for grant of aid towards the payment of salary to the teachers and other staff employed in those schools have to be duly considered by Government for which funds in the State Budget for the year 1984-1985 as approved by the Legislature are not provided at present. Moreover the cases of Minority High Schools which were opened during the school year (1984-1985) have also to be considered for admitting to aid. It is submitted that provisions made under elementary, secondary and Higher Secondary Education to meet the approved items of expenditure under plan and non-plan schemes are being allotted for each year, after getting the approval of the Legislature. Separate funds are not allotted exclusively for the educational institutions established and administered by the minority educational agencies.
As far as the private schools are concerned, the following two types of educational institutions are being opened every year;
(i) Private Schools not belonging to Minorities (will be opened only after getting prior permission of the competent authority).
(ii) Private Schools opened by the Educational Agencies belonging to religious or linguistic minority without the permission of the school education Department.
Private schools under Item No. 1 above are being permitted to be opened by the competent Authorities under Section 6 of the Tamil Nadu Recognised Private Schools (Regulation) Act and Rule 6 of the Tamil Nadu Recognised private schools (Regulation) Rules. For getting recognition and aid of the School Education Department to such schools, it is obligatory on the party of the non-minority educational agencies to satisfy the statutory prerequisite conditions (including creation of each endowment of one lakh rupees in the name of the new school) as prescribed under Rule 9 of the Tamil Nadu Recognised Private Schools (Regulation) Rules.
As far as the minority schools referred to under item 2 above are concerned, the minority educational agencies whether based on religion or language can establish and administer any private school without permission of the school Education Department under Section 9 of the said Act.
In this connection, it is submitted that the expenditure involved towards payment of grant to the minority schools opened without permission under Section 9 of the said Act cannot be reasonably foreseen, since such schools are being opened every year without the knowledge of the school education Department.
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Srinivasa High School, Adi-Annamalai referred to by the petitioner has been granted recognition and admitted to aid since it was opened with the prior permission of the competent authority. In respect of non-minority High Schools, generally Government make provision for certain number of schools. Within this limit new private high schools are being permitted to be opened every year and admitted to aid after satisfying the following conditions specified in Rule 6 of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974.
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I submit that granting number of posts are also decided in advance taking into account the number of schools for which recognition would be accorded in the subsequent year and also additional requirements for the existing schools. But so far as minority schools are concerned, they have to be granted recognition only subject to the Tamil Nadu Minority Schools Recognition and Payment of Grant Rules, 1977. Hence as in the case of non-minority schools, it is not possible of advance assessment and capable of being provided in the budget in advance. I submit that in view of this necessity for Budget provision not only in the case of the applicant school, but also in the case of the remaining 41 schools, allotment of Teachers has not been possible of contingency might arise.
11. With regard to the explanation offered by the respondents that because the minority schools came up without the permission of the Authorises, there is no scope for making provision in the Budgets for the grant of aid to the minority schools, is must be stated that it is absolutely far-fetched and unsustainable. The very Act enables the establishment of a minority school without prior permission vide Section 9 of the Act. But there is a provision in the Act-vide Section 10, which obliges the minority schools to send the requisite particulars of their establishments within the prescribed time is not claimed that such prescriptions were not adhered to in the present cases. Hence the State cannot plead ignorance of coming up or the establishment of the minority schools. In the said circumstances, it is not possible to put forth a case that for want of knowledge of coming up or establishment of minority schools, no provision in the Budgets could be made for grant of aid to them. There is also the principle, which is a well-settled one that the State must respect and adhere to the statutory prescriptions, which it itself laid down. While the State can and should insist for adherence by the citizen with the statutory prescriptions, the State must also conform to them. The adherence to the prescriptions must be held to be mutual both by the State and as well as by the citizen. The State cannot make a complaint against the citizen for adherence to the statutory prescriptions and deny and legitimate right due to the citizen for the sin of adhering to the statutory prescriptions. In one voice to say that you follow a particular statutory prescription, and in another voice to say because you followed that particular statutory prescription, you are disabled from getting the aid will be an incogruous and a very unreasonable voice to be heard and that too from the State. Even in the matter of distribution of aid or grant, the State must act fairly and reasonably. It cannot act unreasonably and arbitrarily, it would be the plainest duty under the Constitution to invalidate the Government Action. This is one of the most important functions of the court and also one of the most essential for preservation of the rule of law. This is the view of the highest court in the land with regard to how the Governmental action should satisfy the test of reasonableness.
12. The ground that since no provision was made in the Budget, the State could not distribute aid to the minority schools is also demonstrably not tenable. Instance after instance is being quoted and exposed before us to show that even without making provision in the budgets, there have been distributions of the aid to the other institutions, non-minority and in some cases, minority.
G.O.Ms. No. 2675 Education Department 29.12.1977 G.O.Ms. No. 1216 .do. 4.7.1978 G.O.Ms. No. 2380 .do. 20.12.1979 G.O.Ms. No. 1080 .do. 20.8.1984 Letter from Government of Tamil Nadu 19.11.1984 G.O.Ms. No. 1244 Education Department 16.10.1985 G.O.Ms. No. 987 .do. 7.6.1988 G.O.Ms. No. 989 .do. 7.6.1988 G.O.Ms. No. 1167 .do. 21.8.1988 G.O.Ms. No. 1221 .do. 7.7.1988 G.O.Ms. No. 1330 .do. 20.7.1987 G.O.Ms. No. 1182 .do. 1.9.1989 G.O.Ms. No. 1643 .do. 18.11.1989
The State has possibly found the way in the above cases for distribution of aid and the non-making of provision in the Budgets never stood in the way of making provisions for distribution of aid to the educational institutions.
13. It is not pleaded that the rules governing the grant of aid are not satisfied and hence there would not be distribution of aid. But we are not expressing any opinion on this question because it should be a matter for the State to examine each one of the cases to find out whether the request for accord of aid satisfied the prescriptions of the Rules.
14. Coming to the explanation of paucity of finance, even here we are not satisfied that this plea is a plausible and an acceptable one. The averments in the counter-affidavit are highly vague and do not give the data for making any comparative study. The respondents have deemed fit to gloss over the aspect of the finance by baldly saying "Want of funds". It was been countenanced by pronouncements of the highest court in the land, that in the circumstances prevailing in the country, no educational institution could, in actual practice, be maintained without aid from the State. We have not categorically found and we could not categorically find as per the averments in the counter-affidavit, a case, of total lack of or paucity of funds to disable the State from managing the grant of aid. State has in fact found the finance to distribute aid, even when there has been no provision made in Budgets. The minority schools in the present cases cannot be discriminated against in the matter of granting State aid. If there is a refusal to give aid without just, genuine and convincing reasons, it would amount to violation of the fundamental right enshrined in Article 30 of the Constitution of India. As countenanced by the highest court in the land in Managing Board M.T.M. v. State of Bihar A.I.R. 1984 S.C. 1757, if the State withholds giving aid to the minority schools, the direct consequence would be to destroy the very existence of them, for they cannot exist without State aid to serve a considerable section of the nation in the field of education. On the question of financial liabilities, we, with respect, adopt what has been expressed by the Bench of this Court in Church of South India v. The Government of Tamil Nadu 1988 Writ L.R. 130, as per extract already made above. On the materials placed before us, we are not convinced that paucity of finances could be a valid ground for denying aid to the minority schools and to do so, in our view, would amount to discrimination against them.
15. On behalf of the respondents, it is contended that at the time of grant of recognition to the various educational courses in the minority schools, the position has been made clear to them that no State aid is possible and the minority schools did not demur over this and accepted recognition and hence they cannot now claim aid and they will be debarred from putting forth such claim. We could not appreciate and accept this stand put forth on behalf of the respondents. What Article 30 enshrines as a fundamental right, cannot be bartered away or surrendered by any voluntary act and it cannot be waived. While there may not be a fundamental right to aid, yet if in the matter of grant of aid the State chooses to discriminate the voice of protest in this behalf by the aggrieved minority cannot be stifled on any principle of waiver. The docility with which the minority schools accepted the recognition with any tail annexed that aid is not possible will not estop them from voicing forth a grievance of discrimination coming within the ambit of Article 30(2) of the Constitution.
16. Thus the grounds put forth for not granting aid to the minority schools in the present cases cannot stand scrutiny of judicial review and they are totally unreasonable and arbitrary and they have brought about the discrimination against the minority schools in the matter of grant of aid and that discrimination comes within the scathe of Article 30(2) of the Constitution.
17. Under the above circumstances, we are obliged to give the following directions:
(1) The State of Tamil Nadu and its Authority or Authorities concerned shall consider the request of each one of the minority schools in the present cases for the grant of aid to the various educational courses run by them for which they are coveting aid.
(2) If these minority institutions have already made applications for grant of aid, they shall be considered. If specific applications have not come forth, the minority schools shall present such applications to the Authority or Authorities concerned within a period of four weeks from today.
(3) The State and its Authority or Authorities concerned shall consider the requests or the applications of the minority schools in the present cases tot aid without reference to the factors put forth by them, which we have eschewed as totally untenable.
(4) The State and its Authority or Authorities concerned shall dispose of the requests or the applications of the minority schools in the present cases for the grant of aid within a period of twelve weeks from today.
(5) The State and its Authority or Authorities concerned shall communicate the decisions on the requests or the applications of the minority schools in the present cases for grant of aid within a period of two weeks from the date of taking the decisions. Institutions receiving aid pursuant to orders of Court shall continue to get it until decisions are taken one way or the other.
The writ petitions are ordered accordingly. There will be no order as to costs.