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Judgment
The Honourable Mr. Justice Vinod K. Sharma
The Petitioner prays for issuance of a Writ in the nature of Mandamus, directing the Respondents to release the Fixed Deposit of Rs. 10 lakhs
compulsorily obtained from the Petitioner and deposited with the third Respondent Corporation vide Deposit Receipt No. RAA 093612, dated
23.03.2005 at the time of giving ''No objection Certificate'' for establishing the Petitioner''s college of Education.
The Petitioner was directed to deposit a sum of Rs. 10 lakhs as a pre- condition to grant ''No Objection Certificate'' for setting up of Teachers
Education College. It is not in dispute that the Petitioner is a minority institution. The Honourable Division Bench of this Court in the case of
Madras English Baptist Church Vs. The State of Tamil Nadu and Others, was pleased to lay down that the minority institution cannot be directed
to create an endowment fund as envisaged under Government Orders. The operative portion of the judgment reads as under:
Therefore, what could not be justified as a statutory provision, cannot be got over by relying upon an executive order as found in G.O. Ms. No.
587, Education Department, dated 22.03.1978.
10.** * *
Yet another contention taken by learned Government Pleader is that, when a provision is made for creating an endowment by instalment, it
would not be an unreasonable restriction. Once it has been held that a precondition of this nature is violative of Article 30(1) of the Constitution of
India, to facilitate the Management to create an endowment by instalment is no justification for imposing that pre- conditions.
Therefore, the Writ Appeal is allowed. The endowment created during the pendency of the writ petition was without prejudice to the
contentions of the Appellant, and therefore, the Respondents are hereby directed to return the concerned documents regarding the creation of the
endowment to the Appellant within eight weeks of the receipt of the steno-copy of this judgment. As the Appellant has succeeded on both the
points, it is entitled to costs. Counsel fee Rs. 500/-
Again the Honourable Division Bench of this Court in the case of Lords and Angels Teacher Training Institute etc and Ors. v. The State of Tamil
Nadu and Ors. reported in 1997 I L.W 787 held that the Government order directing the creation of endowment fund was not applicable to
minority institutions. The operative portion of the judgment reads as under:
In W.P. No. 2165 to 2167 of 1996, the Petitioner not only challenges Regulations 5(e) and 5(f), but also challenges the norms and standards
for Teacher Education Institutions with reference to elementary schools under clause. Clause 2.2 says as follows:
In addition, institutions under private management should have an endowment fund of at least Rs. 5,00 lakhs and a reserve fund to cover three
months salary of all staff(1.5 lakhs)
In the above clause the challenge is made only to the endowment fund of Rs. 5 lakhs. Learned Counsel for the Petitioners says that he is not
attacking the requirement for are serve fund to cover three months salary of the staff to the extent of Rs. 1.5 lakhs. In support of his contentions,
Learned Counsel relies on the decision reported in Madras English Baptist Church Madras v. The State of Tamil Nadu 1991 W.L.R 419. A
Division bench of this Court dealing with G.O. Ms. No. 587(Education) dated 23.3.1978, requiring such institutions to create a cash endowment
of Rs. 25,000/- as a pre-condition for a minority institution t seek recognition, held that the requirement was violative of Article 30(1) of the
constitution of India. I doing so, the Division Bench relied on an earlier judgment in W.P. No. 4478 of 1974, dated 17.12.1975,which judgement
is pending consideration in the Supreme Court of India. As on date, the above decisions hold the field Mr. Joseph Thatheus Jerome, Learned
Counsel appearing for the petitioner in W.P. No. 3987 of 1996 argued that the Act in question being a central Act, the consideration for
recognition should originate from ""The Central Policy"". The State Government is developing a State policy for rejecting applications for no
objection certificate, whenever, an institution applies for the same under Regulation 5 (e) of the Regulations. Therefore, he argues that in essence
the question of recognition is regulated to the State Authority, which is improper. We are of the opinion that he validity of an order by the State
Government, while considering an application under Regulation 5 (e) of the Regulations is totally a different mater and as and when such a question
arises, it will be time enough to consider the validity of the order of the State Government. We have already indicated that if the orders of the State
Government are found to be illegal or in violation of the rights guaranteed under the Constitution of India, it could always be challenged by the
parties aggrieved. That stage has not yet arisen.
We therefore do not find any substance in any of the points raised by the Petitioners to invalidate Regulations 5(e) and 5(f) of the Regulations.
We therefore uphold the validity of Regulations 5(e) and 5 (f). So far as the requirements to make a cash endowment of at least Rs. 5 lakhs, we
hold that the same cannot be enforced, in view of the Division Bench judgement of this Court in Madras English Baptist Church Madras v. The
State of Tamil Nadu (1991 WLR 419). In this view of the matter only the said requirement is held to be illegal and ultra vires the rights of the
minority institution. Relief is therefore granted only to this extent in Writ Petition No. 2165 to 2167 of 1996. In all other respects, all the above writ
Petitions are dismissed reserving liberty to the Petitioners to challenge individual orders of the State Government, granting or refusing the No
Objection Certificate. However, there will be no order as to costs.
this Court in the case of Good Shephered Out Reach Mission Evangelical and Educational Trust (Go Meet India Trust) represented by its
President, Erode. v. The Government of Tamil nadu and Anr. reported in (2000) 3 MLJ 244 reiterated the same view holding that the Government
order directing the creating of endowment fund as precondition to grant of No Objection Certificate for establishment of institution was not
applicable to the minority institutions. The operative portion of the judgement reads as under:
In the light of what is stated above, I am in agreement with the contentions raised by the Learned Counsel for the Petitioner and I hold that the
direction to create an endowment for Rs. 10 lakhs as pre condition for considering the applicable of the Petitioner society for the establishment of
religious minority college in the name of Good Shephered Out Reach Mission Evangelical and Educational Trust, Erode is illegal and I further hold
that the Respondents are not entitled to make such a demand as a pre condition for considering the application of the petitioner society.
Accordingly, the impugned order is quashed and the writ petition is allowed. No costs. In the light of quashing the impugned order, the
Respondents are directed to consider the claim of the Petitioner and pass appropriate orders within a period of eight weeks from the date of
receipt of a copy of this order. Consequently, W.M.P. No. 29638 of 1997 is closed.
There is thus no justification with the Government to have directed the Petitioner to create endowment fund of Rs. 10 lakhs.
However, this Writ Petition suffers from legal lacunae as before approaching this Court for issuance of a Writ in the nature of Mandamus, the
Petitioner has not chosen to file any writ of demand, to enable the Respondent to consider the claim, and pass appropriate orders. It is now settled
that the Writ of Mandamus can be issued on satisfaction of these conditions i.e., the legal right of the Petitioner and corresponding legal obligation
of Respondent to address the grievance, and showing that a Writ of demand was filed, which is not answered.
Consequently, while dismissing the Writ Petition,the Petitioner is given liberty to file a demand notice with the Respondent. It is hoped, that in
view of settled law, the demand of Petitioner would be met, to avoid unnecessary litigation, in future.
No costs.