State of Tamil Nadu and others, Appellants v. The Melapalayam Muslim Magalir Kalvi Sangam, Respondent.
AR. LAKSHMANAN AND S.M. SIDICKK, JJ.
Constitution of India, Article 30(2) – Minority institution - State aid - Minorities cannot be asked to maintain their educational institutions without state aid.
... There is no dispute that the respondent sangam which is a registered society is a minority institution. The said sangam is running a Girls' High School at Tirunelveli and they applied for grant of recognition and approval for standards 6 to 9 to the Joint Director of School Education, Madras, who in turn in his proceedings dated 21.8.1990, granted temporary recognition and approval for standards 6 to 8 from 1.6.1998 to 31.10.1990 with aid and for 9th standard without aid. The school also applied for recognition for 10th standard and the second respondent in its proceedings dated 12.12.1990, granted recognition and approval for the same without aid for the period from 1.6.1989 to 31.10.1991. However, on a scrutiny of the records, it is found that by mistake, recognition with aid for standards 6 to 8 was granted and ... the mistake was rectified by issuing an erratum to the earlier proceedings ... Aggrieved by the said order, the school filed the present action praying for issue of a writ of certiorarif mandamus to quash the same and consequently to direct the respondent to sanction teaching and non-teaching staff and also financial aid for the period from 1 6.1988 for the standards 6 to 9 and from 1.6.1989 for standard 10.
Counter affidavit was filed on behalf of the state contending that as a policy decision, recognition has been given to schools both minority and non-minority without aid, due to financial constraints ..
Janardhanam, J. following his own judgement reported in Rev. Sr. Margaret Mary v. Government of Tamil Nadu (1993) 2 Mad LJ 303, allowed the writ petition as prayed for.
On 19.7.1996, the Writ Appeal was admitted by the First Bench of this Court ... Special Government Pleader (Education) raised the following four points:
1. The learned single Judge has not followed provisions of section 14(I) and (II of the Tamil Nadu Recognised Private Schools Regulation Act.
2. It is for the Government to decide, subject to the availability of the funds in the norms to grant aid to the schools.
3. The granting of aid is not automatic and it has to depend upon the Government order in G.O. Ms. No. 340/Education/dated 1.4.1992.
4. There are about 141 schools including elementary, middle, high and higher secondary schools both minority and non-minority which were given permission/recognition without aid during 1988-89 and 1989-90 and so far the Government has not sanctioned grant to any of the schools which are given permission/recognition without aid during the year 1988-89 and 1989-90.
... A division bench of this court consisting of Nainar Sundaram J., (as he then was) and Somasundaram J., in Roman Catholic Society v. the Government of Tamil Nadu, 1991 Writ LR 130 held that paucity of finance could not be valid ground for denying aid to minority schools and observed as follows.
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 brought about the discrimination against the minority schools in the matter of grant of aid and that discrimination comes within the ambit of Article 30(2) of the Constitution.
A constitution Bench of the Supreme Court, while dealing with aid to educational institutions, observed in para 89 thus:
"The Educational institutions are not business houses. They do not generate wealth. They cannot survive without public funds or private aid. It is said that there is also restraint on collection of fees, the minorities cannot be saddled with the burden of maintaining educational institutions without grant-in-aid. They do not have economic advantage over others. It is not possible to have educational institutions without State aid. This was also the view expressed by Das, C.J. In re Kerala Education Bill, 1957, AIR 1958 SC 956. The minorities cannot therefore, be asked to maintain educational institutions on their own.
Therefore, we are of the view that none of the points raised by the learned counsel for appellants ... merit acceptance ... We are, therefore of the view that the minorities cannot be asked to maintain the educational institutions on their own. The citizens of the country have a fundamental right to education which right flows from Article 21. This right is, however, not an absolute right. In other words, every child/citizen of this country has a right to free education until he completes the age of fourteen years. Thereafter, his right to education is subject to the limits of economic capacity and development of the State ...
We are in entire agreement with the views expressed by Janarthanam, J., in the judgement reported in (1993) 2 Mad LJ 303, and applying the ratio laid down in the said judgement and also following the other judgements relied on by the learned single Judge ... We dismiss the Writ Appeal and accordingly confirm the order of the learned single Judge. (Source: AIR 1998 Madras 91)
