St. Stephen Middle School vs The State of Tamil Nadu

P. Shanmugam, J.—These batch of writ petitions filed by minority educational institutions raise a common question relating to the grant of

aid.

All these institutions were established in and around the year 1990 and recognitions were granted by the Education Department on their

undertaking that they will not seek aid, while some of the existing institutions are seeking approval for the additional posts with aid in these

petitions.

The main plea raised by the Learned Counsel for the Petitioners is that they have got a fundamental right to provide elementary education and

that their right cannot be parted away by obtaining undertaking and therefore, they contend that the writ petitions are maintainable to enforce the

payment of aid.

The other contentions raised by the Learned Counsel for the Petitioners, in additional, are as follows:

The provision relating to payment of grant as per the recognised private schools Regulation Act, 1973, here in after referred to as the Act, will not

apply to the minority schools in as much as these provisions were struck down by a Division Bench of the court and therefore, those provisions

cannot be invoked to deny the grant. The undertakings were obtained by the Education Department under threat of refusal to grant recognition and

the same cannot be invoked against them. The plea of the department that they are suffering from paucity of funds cannot be a ground as against

their entitlement to get grant. Learned Counsel for the Petitioners also pleaded discrimination in the grant of aid. According to them, many

institutions were granted aid inspite of the undertaking and therefore they are also entitled to be treated similarly. Article 30(2) of the Constitution

of India enables them to establish and maintain an educational institution of their choice, and the said right cannot be defeated indirectly by denying

their grants-in-aid. They have placed strong reliance on a judgment of the Division Bench of this Court reported in Roman Catholic Society v.

Govt, of Tamil Nadu (1991 W.L.R.130) and the various decisions of the Honourable Supreme Court in support of the above contentions.

In W.P. No. 6198/95, the prayer in the main writ petition is to grant aid to the Petitioner school as per G.O.MS. No. 50 dated 20.1.95. The

Government, in their counter affidavit, have stated the circumstances under which the order came to be passed. According to them, the Petitioner

in that case applied for recognition during 1991 and recognition was granted subject to getting declaration to the effect that they will not claim aid

forever. The said order was challenged before this Court in W.P. No. 17736/91. This Court quashed the said order and directed the Petitioner to

give an undertaking that they will not insist aid for a period of three years and hence, recognition was granted without aid with effect from 1.4.93.

Hence, they are not entitled to get the benefit of G.O.MS. No. 50 dated 20.1.95. In W.P. No. 14019/97 etc., the prayer is to quash the G.O.Ms.

No. 317 dated 25.7.97 wherein, aid was ordered to be assessed for schools opened upto 1.4.92. The case of the Petitioners in these batch of

cases is that the Petitioner-schools were opened after 1992, and therefore, they are denied of the aid. However, in this case also, recognition was

granted with a condition that no aid will be given to the school forever. In a few cases, the challenge is with regard to the norms prescribed for

grant of aid in G.O.MS. No. 525 dated 29.12.97 by the non minority institutions.

The learned Additional Advocate General, arguing on behalf of the State, submitted as follows:

(i) Almost all the Petitioners are established and existing educational institutions who are familiar with the procedure of running and maintaining

educational institutions and that, knowing fully that the department will not be able to provide aid, voluntarily gave undertaking and obtained

recognition on that basis. Therefore, their present claim made after several years of recognition is not only belated, but also are estopped from

making such a claim. Their undertaking is binding.

(ii) The Petitioners have no constitutional or statutory right to claim aid.

(iii) The basis of their claim, i.e., the judgment of the Division Bench in Roman Catholic Society''s case cited supra has been stayed by the Supreme

Court and therefore, their claim cannot be sustained.

(iv) All the Petitioners have claimed that they wanted to serve the noble cause of providing free education to the downtrodden and the poor at the

time of grant of recognition. They have also pleaded that they were charitable institution with sufficient funds and on that basis, sought for

recognition and obtained the same. It is not open to them to go back at this stage.

(v) Learned Additional Advocate General has Categorically stated that about 203 institutions have been granted recognition in 1991/92 and they

have not granted aid to any of the institutions after the academic year 1991-92. He strongly denies discrimination in the granting of aid.

(vi) According to him, the Government has taken a policy decision to permit opening of new schools and new classes without aid and in order to

give statutory protection to the said policy, a bill to amend Section 14 of the Act and to insert Section 14A has been passed by the Legislative

Assembly, and is awaiting the assent of the President of India.

I have heard the counsel on behalf of the Petitioners and the learned Additional Advocate General in extenso.

Legal Provisions: 8. Section 14 of the Act deals with the payment of grant to the private schools. Sub-section 1 of Section 14, in unambiguous

terms, starts with the non abstractive clause, which is as follows:

Notwithstanding anything contained in this Act or in any other law for the time being in force or in any decree, order or direction of any court or

authority:

I. No private school, only on the ground of having been granted recognition under this Act, be entitled to any grant or other financial assistance

from the Government:

This provision, read with Rule 11 of the private schools Regulation Rules, has put the institutions on notice that conferring of recognition is not a

ground for seeking financial assistance. In other words, granting of recognition cannot be linked with or raised as a condition for seeking financial

assistance. In the subsequent clauses, the legislature had made it clear that aid will be granted only subject to the availability of funds and on

following the norms etc. Of course, this, among other provisions of the Act which was challenged by the various minority institutions, was struck

down by Division Bench of this Court. The matter is pending appeal before the Supreme Court and a I must state that much water has flown from

the date of the judgment and there were several pronouncements of judgments of the Supreme Court touching on the point of the right of the

minority institutions as to the claim of the grant.

As on date, the aid to the existing minority institutions are governed by the Administrative Rules namely the Tamil Nadu Minority Schools

(Recognition and Payment of Grant) Rules, 1977. In lieu of the non operation of the statutory Act and the Rules, the rules framed are governing the

field. A Division Bench of mis court, in Stephenson Roobasingh v. State of Tamil Nadu 1993 W.L.R. 544, upheld the administrative instructions in

the absence of the statutory provisions which were held to be ultra vires. Therefore, the Petitioners are governed by the 1977 Rules Rule 6 of the

Rule states that minority school may be paid grant subject to the orders and instructions issued by the Government from time to time. The minority

institutions are not to be provided with aid as a matter of right, but subject to orders of the Government.

Case Laws:- 10. The judgment in Roman Catholic Society''s case cited supra had been stayed by the Supreme Court in civil Appeal Nos. 4695 to

4746/93 dated 6.9.93. The Division Bench allowed the writ petitions for the grant of aid principally based on the ground of discrimination.

However, the Division Bench has categorically held that 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 on the ground of minority. According to the Division Bench ""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 enforce the state to grant aid. But, if the state grants aid to educational institutions, there should not, be any

discrimination.

(emphasis added)

In Reverend Sister Margaret Mary v. Govt. of Tamil Nadu 1993 (2) M.L.H. 303, a learned Judge of this Court allowed the writ petitions

granting aid. In this case, the learned judge''s attention was not drawn to the provisions viz., Section 14(1) of the Act read with Rule 11 of the

Rules and the enforceability under 1977 Rules. Besides, there was no such undertaking by these institutions stating that they will not claim any aid.

The reference in the judgment St. Stephen College v. University of Delhi to the effect that it is not possible to have educational institutions without

the state aid is an observation out of context so far as the cases in this case. The Supreme Court was dealing with the right of selection and others

as set out in para 18 of the judgment. The right to aid as such was not an issue especially in the light of the undertaking and the rules governing the

aid. as it is found in this case. The decision in N. Ammad Vs. The Manager, Emjay High School and Others, relates the management''s right of

appointment of Head Master and will not apply to the facts of this case.

In State of H.P. Vs. H.P. State Recognised and Aided Schools Managing Committees and Others, , the Supreme Court was dealing with the

question as to whether the teachers employed in recognised aided private schools are entitled to parity of pay scales, while answering the question

in affirmative, the Supreme Court held that the state Government is bound to provide free education and as such bound to meet the total

expenditure of the school to that extent. In mat case, the limit prescribed by the state Government for the disbursement of grant-in-aid to the aided

schools was held to be arbitrary and unjustified. In Unni Krishnan, J.P. and others Vs. State of Andhra Pradesh and others etc. etc., , the Supreme

Court held that a citizen of mis country may have a right to establish an educational institution, but no citizen, person or institution has a right, much

less a fundamental right to affiliation or recognition or to grant aid from the state. Their Lordships'' observations which is relevant for this case is as

follows (Paras 175,176):

Be that as it may, we hold mat a child (citizen) has a fundamental right to free education up to me age of 14 years. This does not, however, mean

that this obligation can be performed only through the state schools. It can be done by permitting, recognising and aiding voluntary non-

Government organisations who are prepared to impart free education to children."" (emphasis added). Their lordships further observed, ""we do

realise that ultimately, it is a question of resources and resource-wise, this country is not in a happy position."" The Petitioner institution came

forward voluntarily to impart free education and obtained the recognition from the government. Hence now they cannot legally compel me

Government to pay the grants-in-aid. The Government has taken a policy decision considering their financial position. Hence, it is reasonable and

valid. In All Bihar Christian Schools Association and Another Vs. State of Bihar and Others, , the Supreme Court has taken me view mat

guarantee of freedom to minority institutions under Article 31 of the Constitution does not permit me minority institution to act contrary to law and

order, law of contract, Industrial law or other general laws which are enacted for the welfare of the State. If the minorities claim immunity from me

law of me land and if it is upheld, mat will be unreasonable and against me interests of the minority institutions memselves. The minority institutions

cannot claim exemption from the commitment made and the general order mat is made applicable to all me institutions from the year 1991-92. In

Kumari Regina Vs. St. Aloysius Higher Elementary School and Another, , me Supreme Court recognised me power of me state Government to

issue administrative instructions containing rules relating to grant of recognition and aid. According to me Supreme Court, the state Government has

got the power to lay down conditions under which aid could be granted. A Division Bench of mis court, in Stephenson Roobasingh v. State of

Tamil Nadu cited supra, headed by Srinivasan, J.(as he men was), on the analysis of the case laws, held ""There is no fundamental right to

recognition and any institution seeking recognition, should abide by the regulations prescribed by me state as conditions therefor.

In the light of me principle laid down in the above decisions by the Honourable Supreme Court and mis court, it is clear that the Petitioner

institutions have no constitutional or fundamental right to as a matter of right to claim,, the grant of aid. The Petitioners have bound themselves

voluntarily not to claim for the aid from the Government having obtained a recognition on that basis. It is not open to the Petitioner-institutions to go

back and insist for aid. In so far as the minority educational institutions are concerned, in the light of the provisions relating to the grant of

recognition, they need not obtain prior permission for starting of their institutions. However, they have to fulfil other conditions for the recognition

like infrastructure facility and qualifications of teachers. Having obtained approval for the recognition after establishment on condition that they will

not claim aid, it will be inequitable and unjust on the part of the Management to seek aid. Their plea that there is a constitutional mandate under

Article 45 that the state shall endeavour to provide for free and compulsory education for all children until they complete the age of 14 years and

therefore, they are discharging the obligation of the state and hence, they must be provided aid, cannot be accepted. The right of free education is

not denied by the state in the sense that no Government schools or aided Government schools have denied the right of free education to the

children. There is no allegation to the effect that the Government is refusing to admit or provide education for the children below 14 years. On the

contrary, it is the Petitioners who want to voluntarily open new schools in the area, which according to them, are backward and they want to

provide free education without the necessity of aid. The Government, considering their request, had granted the recognition. After this, the right of

primary education of children is projected as though to advance the cause of the children. But, in effect, the Management wants to maintain their

schools, create posts additional classes and appoint their own teachers for the purpose of administering their schools. Therefore in my view, this is

only an indirect method of compelling aid for their institutions after having obtained permission to run them without the necessary aid.

In State of Bihar v. Syed Azad Raza 1997 (4) Sup 588, the Honourable Supreme Court held that on the establishment of educational

institution by the minority the competent authority is bound to sanction grant-in-aid. But, this direction was in reference to the Bihar State University

Act, which enables the right of minority institutions to claim aid as a matter of right. Hence, this judgment will not apply to the facts of the present

case. In State of Tamil Nadu and Others Vs. The Melapalayam Muslim Magalir Kalvi Sangam, a registered Society, running Melapalayam Muslim

Girls High School of Melapalayam Tirunelveli, , a Division Bench of this Court confirmed order of the learned single Judge directing the grant of

aid. In that case, the grant of recognition without aid was sought to be quashed. The Division Bench made it clear that the judgment was confined

only to the facts of that particular case, and it would not apply as a precedent. In North Koorg Higher Education Society v. State AIR 1996 Kar

301, a learned single Judge of the Karnataka High Court has taken the view that the grant could not be refused on the ground that the institution

had given undertaking that it will never claim any grant at the time when it was started, because such an undertaking is said to be an undertaking

against the rules. This judgment also, in my view, will not apply to the facts of this case, since the Karnataka High Court was concerned with Rule

13 of Grants-In Aid Code, which empowers the recognition as a matter of course. Therefore, I am unable to agree with the view expressed by the

learned single Judge of the Karnataka High Court.

Learned Counsel for the Petitioners have referred to an unreported judgment of learned single Judges of this Court in W.P. No. 1479/94 and

W.P. Nos. 3680 and 3681 /98. In the first judgment the learned Judge (as he then was ) was pleased to allow the writ petition to quash the

proceedings and for the consequential direction to grant recognition and aid on the ground that the Petitioner in that case was not prepared to give

up the right to aid and in the absence of any counter affidavit on behalf of the Education Department, the learned Judge proceeded on the footing

that the submissions made in the affidavit do stand unchallenged. This judgment was taken up on appeal in W.A. No. 73/94 and by a judgment

dated 14.2.95, the Division Bench allowed the appeal and set aside the direction issued by the learned single Judge. The Division Bench directed

the Department to consider the request afresh. Therefore, on facts, this judgment is not applicable to the facts of this case. The latter judgment in

W.P. Nos. 3680 and 3681/98 appears to have been passed at the admission stage without any counter or arguments on the side of the

government and further, there was only a direction to consider the case of the Petitioner in the light of the observations contained in that judgment.

The Government has got another important point as to the minority status of the Petitioner-institutions in their counter referring to an order

passed by the Supreme Court in I.A. No. 20 in W.P.(c) No. 317/93 dated 17.10.94 staying operation of all the decrees and orders which have

been given by any Civil Court in respect of the minority status to the institutions concerned and directed that institutions claiming minority status

shall approach the Government for a declaration that they are minority institutions and till such time the government issues an order declaring that it

is a minority institution, they cannot operate as minority institutions.

In the above circumstances, all the Petitioner-institutions which claim to be minority institutions have to obtain orders, notwithstanding any

decrees obtained by them before the Civil Court, and therefore as such their claim of aid will not arise until then. Again, the Hon''ble Supreme

Court, in Civil Appeal Nos. 3383 to 3497/89 dated 8.8.89, observed that the High Court has committed error in issuing direction for payment of

grant before deciding the cases on merits. In those cases, even the question of the minority status had not been decided, and that their claim of

grant has to be decided only on the basis of merits subject to, of course, whether there was any waiver for the said claim. It is rightly contended

that the decisions were obtained by some of the Petitioners relying on the judgment of the Division Bench of this Court while the said judgment had

already been stayed by the Hon''ble Supreme Court.

The Petitioners have raised the ground of discrimination, but the same is categorically refuted by the learned Additional Advocate General. The

fact that the Government has not granted any aid after 1991 was also not seriously disputed. The Government has almost taken as a policy

decision not to grant aid to private educational institutions after 1991. No materials have been placed before this Court in support of the allegation

of discrimination. The Director of Elementary Education, in his additional counter in W.P. No. 8907/98 dated 15.3.99. has set out the details of

the schools for which recognition alone, without aid, were granted and the financial commitment, if aid were to be given, which is as follows:

It is submitted that as per the policy decision of the Government, number of schools have been granted recognition with the condition that aid will

not be given to them for ever. A statement showing the year, No. of Schools, the post required by them and total amount likely to be involved if

aid is allowed is furnished below:

Year No. of Posts required byper year Amount

schools Management

1991-92 32 203 1920 X 12 46,77,120

1992-93 29 384 2052 X 12 94,55,616

1993-94 7 437 2364 X 12 1,23,96,816

1994-95 44 711 2448 X 12 2,08,86,336

1995-96 38 964 2700 X 12 3,12,33,600

1996-97 27 1132 4680 X 12 6,35,73,120

1997-98 26 1319 5085 X 12 8,04,85, 380

1998-99 6 1358 5490 X 12 8,94,65,040

Total 31,21,73,028

The amount involved in granting aid to these schools is heavy and the present financial position does not permit to incur such recurring

expenditure."" Posing the question whether right to education means that every citizen of this country can call upon the state to provide education of

his choice, the Honourable Supreme Court, in Unikrishnan''s case referred above, observed at para 171 as follows ""Mohini Jain (1992 (3) G.C.C.

666) seems to say yes. With respect, we cannot agree with such broad proposition."" Article 41 of the Constitution speaks of securing the right to

education within the limits if economic capacity and development. The state has not denied this right, but only says its inability to provide financial

assistance to private schools in view of the present financial position.

The claim by the non-minority institutions for aid, additional classes and posts are unsustainable in the light of Section 14 read with Rule 11 of

the Rules. The reasons stated above would equally apply to them also.

Some of the Petitioners have challenged the Government order of the year 1992, wherein the Government had granted permission without aid.

The Petitioners have not chosen to challenge these orders all these years. On this count also, the writ petitions are liable to be dismissed. However,

since the similar matters were considered on the same point, the arguments raised on behalf of the Petitioners were considered and held as above.

For the above reasons, I do not find any grounds warranting to grant the relief sought for. The Petitioner institutions are not entitled for the

grant of any aid, or the upgradation of posts and salary for the teachers appointed. Hence, all these writ petitions are dismissed. Consequently, all

the related W.M.P.S are dismissed.