I. Ilangovan vs The Government of Tamil Nadu and Others

The petitioner, being the Head of the Department in the Subject of English at Voorhees College, Vellore, has filed this public interest litigation seeking to declare Rule 11(1-A) of the Tamilnadu Private Colleges (Regulation) At, 1976 insofar as exempting minority aided colleges from the Rule of reservation in appointments to SCs and STs is illegal and ultra vires of Art.16(4) and 46 of the Constitution, and consequently direct the respondent colleges R3 to R62 to appoint 19% of SC/ST Teachers and non-teaching staff against the total number of sanctioned posts.

The sum and substance of the petitioner''s case is that the Minority Colleges, which are receiving aid, cannot be given any exemption from Rule 11(1-A) of the Tamilnadu Private Colleges (Regulation) Act, 1976. Thus, the exemption granted to the Minority Aided Colleges qua communal reservation to Scheduled Castes and Scheduled Tribes is put into challenge in this writ petition.

The issue involved in the writ petition is no longer res integra. In T.M.A. Pai Foundation Vs. State of Karnataka, (2002) 8 SCC 481), the Supreme Court was pleased to hold qua the right to establish and administer educational institutions by minorities. The following paragraphs of the said decision are apposite:

''''50. The right to establish and administer broadly comprises the following rights:

(a) to admit students;

(b) to set up a reasonable fee structure;

(c) to constitute a governing body;

(d) to appoint staff (teaching and non-teaching); and

(e) to take action if there is dereliction of duty on the part of any employees.

......

The right to establish an educational institution can be regulated; but such regulatory measures must, in general, be to ensure the maintenance of proper academic standards, atmosphere and infrastructure (including qualified staff) and the prevention of maladministration by those in charge of management. The fixing of a rigid fee structure, dictating the formation and composition of a governing body, compulsory nomination of teachers and staff for appointment or nominating students for admissions would be unacceptable restrictions.

.....

The expression to establish means to set up on permanent basis. The expression to administer means to manage or to attend to the running of the affairs. A lucid connotation of this expression was given by Ray, C.J., in St. Xaviers case, 1974(1) SCC 717), as under: (SCC pp. 745- 46, para 19)

''''The right to administer is said to consist of four principal matters. First is the right to choose its managing or governing body. It is said that the founders of the minority institution have faith and confidence in their own committee or body consisting of persons elected by them. Second is the right to choose its teachers. It is said that minority institutions want teachers to have compatibility with the ideals, aims and aspirations of the institution. Third is the right not to be compelled to refuse admission to students. In other words, the minority institutions want to have the right to admit students of their choice subject to reasonable regulations about academic qualifications. Fourth is the right to use its properties and assets for the benefit of its own institution.''''

In none of the subsequent decisions of this Court, this exposition was departed from.

The said view was reiterated by the Supreme Court in Secretary, Malankara Syrian Catholic College v. T.Jose and others, (2007) 1 SCC 386 and Sindhi Education Society and another vs. Chief Secretary, Government of NCTG of Delhi and others, (2010) 8 SCC 49). The said decisions rendered by the Apex Court were also followed by a Division Bench of this Court in The Forum of Minority Institutions and Associations v. The State of Tamil Nadu, (2011(1) CTC 162.

In Federation of the Catholic Faithful Vs. Government of Tamil Nadu, 2014(4) CTC 432), while dealing with the challenge made to the guidelines issued by the State of Tamil Nadu imposing rule of reservation in aided and unaided minority institutions, a Division Bench of this Court was pleased to hold as follows:-

''''17. As per Section 4 of Tamil Nadu Act 45 of 1994, reservation of seats in educational institutions is provided and it included any College or other educational institution maintained by the State or receiving aid out of State funds or affiliated to any University established by law including a constituent College. After 93rd amendment which came into being with effect from 21.01.2006, Tamil Nadu Act 12 of 2006 came to be passed. As per Section 2(d), private educational institution is defined and it excludes Minority Educational Institutions referred to in Article 30(1) of the Constitution of India. Section 3 speaks about reservation of seats in private educational institutions. By virtue of Article 15(5) of the Constitution of India r/w. Section 2(d) of the Tamil Nadu Act 12 of 2006, the reservation of seats for Backward Classes, Scheduled Castes or Scheduled Tribes for admission to private educational institutions cannot be made applicable to the Minority Educational institutions referred to in Article 30(1) of the Constitution of India''''

The Apex Court in Pramati Educational and Cultural Trust (Registered) and others VS. Union of India and others, (2014) 8 SCC 1), considering the object of Article 15(5) of the Constitution of India, while holding that it is not an exception or proviso overriding Article 15, being an enabling provision to effectuate equality of opportunity has held in the following manner:

''''54........... Thus, the power under Article 21-A of the Constitution vesting in the State cannot extend to making any law which will abrogate the right of the minorities to establish and administer schools of their choice.

.....

55...... Therefore, the 2009 Act insofar it is made applicable to minority schools referred in clause (1) of Article 30 of the Constitution is ultra vires the Constitution. We are thus of the view that the majority judgment of this Court in Society for Unaided Private Schools of Rajasthan v. Union of India and Anr. (2012) 6 SCC 1) insofar as it holds that the 2009 Act is applicable to aided minority schools is not correct.''''

Accordingly, it was held that the Right to Education Act, 2009, insofar as it applies to minority institutions is ultra vires the Article 30(1) of the Constitution of India.

In the light of the aforesaid decisions, we do not find any unconstitutionality involved in the impugned Rule qua exemption granted to the private minority aided colleges from the Rule of reservation in appointments to Scheduled Castes and Scheduled Tribes.

Accordingly, the writ petition is dismissed. However, there is no order as to costs. Consequently the connected miscellaneous petition is also dismissed.