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Judgment
S.S. Subramani, J.—Petitioner seeks issuance of Writ of Certiorarified Mandamus or any other appropriate writ calling for the records pertaining to the order passed by the first Respondent in his proceedings Rc. No. 26171/W.12/97, dated 29.4.1997 and quash the same and direct Respondents to reconsider the allegations levelled against the CorRespondent-cum-Secretary and enquire into the same and pass such orders and thus render Justice.
Petitioner is a member of Muslim Jamat Committee, which started a High School in 1944 in the name and style of Melapalayam Muslim High School. It is now upgraded as Higher Secondary School. It is managed by a Committee selected by the Jamat.
One T.S.M.O. Hayath was the CorRespondent of the School till 1993. Thereafter, one M.A.S. Mohammed Abu Bucker was elected by the School Committee. Till 1993, when Hayath was the CorRespondent, the School had very good reputation and earned very good name.
After Mohammed Abu Bucker constituted School Committee which consist of members who are all his relatives, the reputation of the School also got eroded. He had committed lot of irregularities in the management of the School. This necessitated filing of O.S.124 of 1993 on the file of Subordinate Judge, Tirunelveli and the suit is now pending. According to Petitioner, the institution of the suit infuriated the CorRespondent Mohammed Abu Bucker and be did not want others to interfere in his way of functioning. It is said that his close relatives are being appointed and amounts are being received from students and parents, not permitted under Law. Huge amounts are being collected but not accounted. In the suit, Petitioner also moved an application for appointment of receiver on which also no orders were passed. It is said due to mismanagement, the social organisations have done hunger strikes, which was also brought to the notice of the Educational authorities, but they have not taken any action. Petitioner also made representation to the Respondents for taking appropriate action as early as on 23.9.1995, followed by advocate notice as on 9.9.1996. No action has been taken so far on the ground that the institution is administered by minority community.
According to Petitioner, even though the institution, is minority institution, when receiving aid from the Government, it is bound to act properly and if there is any mismanagement, the authorities are bound to act immediately as per the Act. Petitioner was therefore compelled to make further representations of the illegal acts of the corRespondent, which had no reaction.
When Respondent remained silent, Petitioner on 23.9.1995 filed a Writ Petition in W.P.3032 of 1997 seeking direction against Respondents to consider and pass orders on the representation. Pursuant to the Court order, application of Petitioner was rejected as per the order dated 29.4.1997. The main reason for not taking any action is that the institute, in respect of which action was sought to be taken is a minority institution and therefore, the Government cannot take any action since some of the provisions of Tamil Nadu Recognised Private Schools (Regulation) Act are not applicable to minority institutions. It is also said that Section 115 of the Act which enabled the Government to take action has also been struck down by this Court. Being a minority institution, the authorities have also refused to withdraw the recognition granted to the School. It is also said that there is no complaint against Secretary of the School either by the managing body of the School or by the teachers. There is also no question of issuing orders for direct payment of salaries since there is no complaint from any source.
The said order is challenged on the ground that unless School gets a declaration of its minority status, it cannot enjoy the benefit of minority status. It is further said that the Honourable Supreme Court in various cases held that the decisions of Civil Court declaring institutions as minority institutions are not valid and they have to approach the Government for getting their status. If the institutes have not applied to the Government for getting their status, they cannot proclaim themselves as minority institutions. Therefore the rejection of representation on the ground that the School being a minority institution Respondents cannot act has no ground.
I heard the learned Counsel on both sides.
Learned Counsel for Petitioner submitted that unless and until declaration is obtained from the Government regarding minority status, the Institute cannot be declared as minority institute and therefore the rejection of representation by Respondents is not proper. Counsel also contended that the Honourable Supreme Court has even declared that the decree of Civil Courts will be treated as invalid unless and until they get declaration from the Government. I do not think that the submission of the counsel could be accepted.
In T.M.A. Pai Foundation and Ors. v. State of Karnataka and Ors. Honourable Supreme Court on 17.10.1994 passed an order in I.A.20 in WP(C) No. 317 of 1993. On a reading of the order of the Supreme Court dated 17.10.1994, I do not think that there is a blanket order as now represented by tha learned Counsel for the Petitioner. Honourable Supreme Court has only held that the institutes which were before Honourable Supreme Court will have to be treated as non-minority institutions till they obtain a declaration from the State Government as to its minority character. It was in that context, Honourable Supreme Court said that,
...the decree/orders which may have been given by any Civil Court in respect of the minority status or otherwise of any of the institutions which have been arrayed as Respondents in this I.A....
In the recent decision of the Honourable Supreme Court reported in N. Ammad Vs. The Manager, Emjay High School and Others, , their Lordships considered the scope of Rule 44 and 44(a) of the Kerala Education Rules framed under Kerala Education Act. A similar argument was taken before the Honourable Supreme Court also that till there is a declaration of minority status by the Government, the institute cannot assume by itself as a minority institution and even if such an order is passed, it is prospective.
Rejecting the contention in paragraphs 12 and 13 of the judgment, Honourable Supreme Court held thus,
Counsel for both sides conceded that there is no provision in the Act which enables the Government to declare a School as a minority School. If so, a School which is otherwise a minority School would continue to be so whether the Government declared it as such or not. Declaration by the Government is at best only a recognition of an existing fact. Article 30(1) of the Constitution reads thus:
30(1). All minorities, whether based on religion or language, shall have the right to establish and administer Educational Institutions of their choice.
When the Government declared the School as a minority School it has recognised a factual position that the School was established and is being administered by a minority community. The declaration is only an open acceptance of a legal character which should necessarily have existed antecedent to such declaration. Therefore, we are unable to agree with the contention that the School can claim protection only after the Government declared it as a minority School on 2.8.1994.
In Tamil Nadu Act also, there is no provision for the Government to declare an institution as minority institutions. Certain provisions under Tamil Nadu Private Schools (Regulations) Act are not applicable to the minority institutions. That means, Government is also recognising certain institutions as minority institutions. Section 2(6) of the Private Schools Act only defines Minority Schools. It means, a Private School of its choice established and administered by any such minority whether based on religion or language and has the right to do so under Clause (1) of Article 30 of the Constitution. On a reading of the said decision, even if there is no declaration minority status is already there and the result of the declaration is only the existing status of that institution.
Learned Counsel for the Petitioner submitted that various Government Orders have been issued by the Government as to how to confer minority status of the institution. If the institutions are claiming benefit on the basis of those Government orders and claim minority status, probably a declaration may be required. So far as present School is concerned, it is not claiming any benefit under any of the recent Government Orders.
According to me the impugned order itself is sufficient to reject the case of the Petitioner. In the order itself it is said that being a minority institution, it cannot take action or evoke recognition. That means, the Government recognised the status of the institution as Minority School. Such a declaration was given on 29.4.1997 long before Government Orders were issued. None of the Government Orders either G.O. Ms. No. 270 or any subsequent Orders invalidates or cancels the minority status which is already in existence. As was held by the Honourable Supreme Court, the fate of recognition only recognises antecedent status. When the impugned order says that cannot take action or revoke recognition in view of the minority status of the School, it only shows that the institute was all along minority institution and the Government recognised the same. There is no question of declaration in such cases.
Even on merits and on factual basis, there is nothing in the petition. The last paragraph of the impugned order shows so far as the Government is concerned, there is no complaint as against the Secretary or none of the teachers also made a complaint so as to warrant issuance of order of direct payment. Government is the authority, paying grant. The affected person will be the Government. The Government has no complaint against the institution nor against the Secretary. The staff of the School also have no complaint. I do not find any grounds to quash the impugned order.
The Petitioner himself admitted in the Writ Petition the Civil Suit is pending and he also made an application for appointment of receiver. When the Civil Suit is pending, what was the necessity for filing such a Writ Petition is also not made clear. It is more or less in the nature of parallel remedy, which every Court has to deprecate.
In the result, there is no merit in the Writ Petition and hence the same is dismissed. No costs. Consequently, W.M.P. No. 19383 of 1998 is also closed.