IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:24.10.2009 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI WRIT PETITION Nos.16188 and 16287 of 2009 and connected Miscellaneous Petitions. .. Rt.Rev.G.Devakadashyam Bishop, Kanyakumari Diocese CSI Dennison Street Nagercoil Kanyakumari District .. Petitioner in both the Wps. vs. 1.The Secretary to Government Education Department Fort St.George Chennai 600 001. 2.The Director/Commissioner of Technical Education Department of Technical Education Guindy, Chennai 600 025. 3.The Regional Officer Southern Regional Office All India Council for Technical Education Sastri Bhavan, Chennai. .. R.1 to R.3 in both the Wps. 4.The All India council for Technical Education rep. By its Member Secretary Chandralok Building Janpat, New Delhi. .. R.4 in WP.16188/2009 Writ petitions filed under Article 226 of the Constitution of India praying for issuance of Writ of Certiorarified Mandamus as stated therein. For petitioner : Mr.V.Selvaraj for Mr.C.Robert Bruse https://hcservices.ecourts.gov.in/hcservices/ For respondents : Ms.Dhaskshayani Reddy 1 & 2 in both the Government Advocate Wps. For R.3 and R.4 in : Mr.N.Muralikumaran in WP.16188/09 & for R.3 in WP.16287 of 2009. .. COMMON ORDER The writ petitioner, the Bishop of Kanyakumari Diocese, C.S.I. (Church of South India), has filed these writ petitions challenging the clause in the approval process for Diploma Institutions issued by the All India Council for Technical Education (AICTE), New Delhi, stipulating that the application for establishment of new technical institutions can be made by a registered Societies and trusts, so far as it relates to the petitioner institutions which are religious minority institutions having protection under the Constitution of India, and also the order passed by the Director of Technical Education, Chennai-25 dated 6.8.2009 by which the said second respondent rejected the claim of the petitioner to start a new polytechnic college as per the application dated 8.6.2009 on the basis that the Church of South India Trust Association has been incorporated under the Indian Companies Act, 1913, as a Limited Company on 26.9.1947, but as per AICTE approval process, the applicant should be either a Registered Society or a Trust or Central/State Government institution or Government Aided institution. 2. It is stated that C.S.I. Trust Association was registered as a company under section 25 of the Companies Act. It is stated that the Church of South India has 22 dioceses one of which is Kanyakumari Diocese to which the petitioner is the Bishop. All the properties of CSI have been vested with the CSI Trust Association. The petitioner on behalf of Kanyakumari Diocese of CSI has applied for permission to start a polytechnic college in the name and style of Vethamonikam Memorial CSI Polytechnic College, Viricode, Marthandam in Kanyakumari District. 2(a). The institute has purchased 5.05 acres of land and constructed building in more than 25000 sq.ft. and established the college as per the norms and standards of the respondents including AICTE. The third respondent in W.P.No.16188 of 2009 is the Southern Regional Council of AICTE, empowered to grant recognition and issue letter of intent and letter of approval. When an application was made along with necessary fees to the first respondent who has to issue no objection certificate, the https://hcservices.ecourts.gov.in/hcservices/ second respondent, the Director of Technical Education after processing the application, by order dated 6.8.2009 which is impugned in W.P.No.16287 of 2009, refused to process the application on the basis that the petitioner is neither a Society, nor a Trust and is a Company registered under section 25 of the Companies Act and therefore, quoting the approval process for diploma institutions issued by the AICTE, the 4th respondent in W.P.No.16188 of 2009, the said refusal order came to be passed. 2(b). In those circumstances, the petitioner has filed the writ petitions, one challenging the said clause in the approval process for diploma institutions and another challenging the order of the second respondent, the Director of Technical Education refusing to process the application on the ground that the petitioner is neither a Society, nor a Trust and is a Company registered under section 25 of the Indian Companies Act. 3. The main ground on which the writ petitions are filed is that compelling the petitioner under the norms prescribed by the AICTE, in respect of minority institutions that it must be a Society or a Trust is against law and it is opposed to the Constitution of India, since any citizen is entitled to start an educational institution and that is also the power given to the minority citizen belonging to minority community as per Article 30 of the Constitution of India and also the said norms are against the judgement of the Apex Court in TMA Pai Foundation case [2002 (8) SCC 481]. 4. Even though the learned counsel for the AICTE has attempted to raise a factual issue that the petitioner has filed the writ petitions in individual capacity as Rt.Rev.G.Devakadashyam, stating that he is the Bishop of Kanyakumari Diocese, and there is no material to show that the petitioner belongs to Christian Minority and therefore, the writ petitions are not maintainable, a reference to the impugned order passed by the Director of Technical Education, Chennai, which is impugned in W.P.No.16287 of 2009 shows that the processing authority has not raised such factual aspect questioning the minority status of the petitioner. In fact, the reason assigned by the Director of Technical Education in the impugned order in the said writ petition is that the Church of South India Trust Association has been incorporated under the Indian Companies Act and the application itself has been filed for starting a polytechnic college in the name, Vethamonikam Memorial CSI Polytechnic College, Viricode, Marthandam in Kanyakumari District and there is absolutely no suspicion raised by the State about the minority status of the petitioner either as an individual or as an institution which belongs to CSI. It is therefore not necessary to refer to the said aspect of the contention raised by the learned counsel for the AICTE. https://hcservices.ecourts.gov.in/hcservices/ 5. The reason given by the Director of Technical Education, Chennai in the impugned order dated 6.8.2009 for refusing to process the application for starting the institution is as follows: " The application submitted for establishing a new Polytechnic College in the name and style of Vethamonikam Memorial CSI Polytechnic College, Viricode, Marthandam, Kanyakumari District was scrutinized by this office and it was found that the aspirant body, "The Church of South India Trust Association" has been incorporated under the Indian Companies Act 1913 (ACT VII of 1913) as a Limited Company on 26.9.1947. As per the AICTE Approval Process for Diploma Institutions wherein the clause 2.2 states that the (a) Registered Societies and Trusts/Self-Financing Private Institutions (b) Central/State Government Institutions (c) Government Aided Institutions only can submit proposals for the establishment of New Technical Institutions for conducting Technical Programmes. In this regard the Southern Regional Office, AICTE, Chennai has also clarified that, the Company registered under the Companies Act or an individual cannot start a Technical Institution." 6. The clause in the approval process for diploma institutions by AICTE, New Delhi for the year 2007-08 which is impugned in W.P.No.16188 of 2009 is as follows: "2.2 THE APPLICATION FORM CAN BE SUBMITTED BY (a)Registered Societies and Trusts/Self financing Private Institutions (b)Central / State Government Institution/Government Aided Institutions." 7. Before adverting to the legal issue involved as submitted by the counsel for the respective parties, viz., Mr.V.Selvaraj, learned counsel for the petitioner, Mr.N.Muralikumaran, learned counsel appearing for AICTE and Ms.Dhakshayani Reddy, learned Government appearing for the State and the Director of Technical Education, it is relevant to reiterate that the constitutional guarantee in the form of fundamental rights which is captioned as Cultural and Educational Rights, has been conferred under Articles 29 and 30 of the Constitution of India which are as follows: " Art.29. Protection of interests of minorities.- (1) Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same. https://hcservices.ecourts.gov.in/hcservices/ (2) No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them. Art.30. Right of minorities to establish and administer educational institutions.- (1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice. [(1-A) In making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority, referred to in clause (1), the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause.] (2) The State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language." While the right conferred under Article 29 of the Constitution of India is in respect of a section of citizens to have their own distinct script and culture which can be either linguistic or religious in nature, Article 30 confers the right of minorities based on religion or language to establish and administer educational institutions of their own. 8. Law is well settled that the State can not impose any restriction on the rights of minorities to establish and administer educational institutions so long as such institutions are not aided by the State. However, the State can always, to a limited extent, impose regulations for the purpose of maintaining the excellence in education etc. It is equally settled that in cases of institutions which are recognised by the State and receiving aids or even in respect of minority institutions, for the purpose of recognition by the State Government, the State can impose restrictions regarding the qualification of teachers, pay of teachers, constituents of governing body, etc. It has also been held that to establish and administer an educational institution by minority is not to maladminister the institution, because even the minority status cannot be used as a camouflage to commit mal-administration. Even though the term 'minority' used in Article 30 of the Constitution of India has not been defined anywhere in the Constitution, it has been an established judicial pronouncement that the term, 'minority' means a non-dominant group, which has been explained by the Apex Court in TMA Pai https://hcservices.ecourts.gov.in/hcservices/ Foundation case as a relative term and referred to represent the smaller of two members, sections or groups called, minority and such minority can be political minority, religious minority, linguistic minority, etc. 9. The crux of the issue involved in this case is that when Article 30 of the Constitution of India confers a fundamental right on minorities, whether such right should be denied to a single citizen of India who belongs to minority whether religious or linguistic in respect of establishment and administration of an educational institution, and such right should be given to a larger number of citizens of India belonging to that minority group; if that is so, whether such group should only be either a society registered under the Societies Registration Act or a Trust constituted by way of creation of Trust and not otherwise. These are the crucial issues which are raised in these writ petitions. 10. A reference to the impugned clause/order in these writ petitions including the stipulations made by the AICTE shows that whether an institution is a minority or majority, it cannot have a right to establish or administer an institution by a single individual and it must be by a Registered Society or by a Trust. The focus under the said requirement by AICTE in this case is in relation to religious minority belonging to Christian religion. The petitioner, if he is taken as an individual, is a citizen of India belonging to a minority religion viz., Christianity, and as a Bishop of Kanyakumari Diocese, C.S.I. Church which forms part of CSI Trust created under section 25 of the Indian Companies Act, the petitioner is a group of individuals belonging to the Christian minority. 11. The requirement of a Registered Society or a Trust to be eligible to establish and administer an educational institution came to be introduced by the Apex Court in the scheme framed in Unnikrishnan,J.P. and others v. State of A.P. [(1993) 1 SCC 645], wherein a Five Judge Bench of the Supreme Court while dealing with various aspects of the Constitution of India, especially Article 21, held that the right to education is implicit under the said Article which flows from the right to life and personal liberty. While dealing with Articles 19(1)(g), 30 and 29 of the Constitution of India, with reference to the institutions which are required to be recognised by the State and the institutions which do not require such recognition, the Bench held in para-69 of the judgement that the right conferred under Article 30 is distinct from that of Article 19(1)(g) and both of them cannot be read together. The relevant portion is as follows: " 69. It is not mere an establishment of educational institution that is urged by the petitioners, but to run the educational institution dependent on recognition by the State. There is absolutely no fundamental right to https://hcservices.ecourts.gov.in/hcservices/ recognition in any citizen. The right to establishment and run the educational institution with State's recognition arises only on the State permitting, pursuant to a policy decision or on the fulfilment of the conditions of the Statute. Therefore where it is dependent on the permission under the Statute or the exercise of an executive power, it cannot qualify to be a fundamental right. Then again, the State policy may dictate a different course." 12. It is relevant to point out that in Unnikrishnan case, the Apex Court has dealt with the admission in professional colleges. Holding that the right conferred under Article 30 on every citizen of the country is a positive right, the Supreme Court in the said judgement also in no uncertain terms held that the right to establish an educational institution does not carry with it the right to recognition or right to affiliation which is held to be essential for meaningful exercise of the right to establish an educational institution. In this regard, it was held as follows: " 204. ...... The institution has to seek such recognition or affiliation from the appropriate agency. Grant of recognition and/or affiliation is not a matter of course nor is it a formality. Admission to the privileges of a University is a power to be exercised with great care, keeping in view the interest of the general public and the nation. It is a matter of substantial significance – the very life-blood of a private educational institution. Ordinarily speaking, no educational institution can run or survive unless it is recognised by the Government or the appropriate authority and/or is affiliated to one or the other Universities in the country. Unless it is recognised and/or affiliated as stated above, it's certificates will be of no use. No one would join such educational institution. As a matter of fact, by virtue of the provisions of the U.G.C.Act, noticed hereinabove, no educational institution in this country except a University is entitled to award degrees. It is for this reason that all the private educational institutions seek recognition and/or affiliation with a view to enable them to send the students trained by them to appear at the examinations conducted by the Government/University. The idea is that if such students pass the said examination, the Government/University will award its degree/diploma/certificate to them. The educational institutions follow the syllabus prescribed by the Government/University, have the same courses of study, follow the same method of teaching and training. They https://hcservices.ecourts.gov.in/hcservices/ do not award their own degrees/qualifications. They prepare their students for University/Government to permit examinations, request the University/Government to permit them to appear at the examinations conducted by them and to award the appropriate degrees to them. Clearly and indubitably, the recognised/affiliated private educational institutions, supplement the function performed by the institutions of the State. ...." 13. Ultimately, the Apex Court, in order to eliminate discretion in the management in the matter of admission which is the root of several evils complained of like, capitation fee, etc., in the light of prohibition on capitation fee in four States viz. State of Karnataka under the Karnataka Educational Institutions (Prohibition of Capitation Fee) Act, 1984, State of Andhra Pradesh in Andhra Pradesh Educational Institutions (Regulation of Admission and Prohibition of Capitation Fee) Act, 1983, State of Maharashtra in Maharashtra Educational Institutions (Prohibition of Capitation Fee) Act, 1987 and State of Tamil Nadu in Tamil Nadu Educational Institutions (Prohibition of Collection of Capitation Fee) Act, 1992 and also in the light of University Grants Commission Act, 1956, Medical Council Act, 1956 and AICTE Act, 1987, framed a Scheme by giving out a statutory shape virtually recommending that those rules given in the form of Scheme are desirable to be included in the above said enactments. While framing the Scheme, the Supreme Court observed as follows: "... Our attempt in evolving the following scheme precisely is to give effect to the said legislative policy. It would be highly desirable if this scheme is given a statutory shape by incorporating it in the rules that may be framed under these enactments." 14. It is, while framing the Scheme in para 206 and in para 210(i) which is as follows: "(1) A professional college shall be permitted to be established and/or administered only by a Society registered under the Societies Registration Act,1860 (or the corresponding Act, if any, in force in a give State), or by a Public Trust, religious or charitable, registered under the Trusts Act, Wakfs Act (or the corresponding legislation, if any, e.g., Tamil Nadu Religious and Charitable Endowments Act and A.P. Religious and Charitable Endowments Act). No individual, firm, company or other body of individuals, by whatever appellation called – except those mentioned above – will be permitted to establish and/or administer a professional college. All the existing professional colleges which do not conform to the above norm shall be https://hcservices.ecourts.gov.in/hcservices/ directed to take appropriate steps to comply with the same within a period of six months from today. In default whereof, recognition/affiliation accorded shall stand withdrawn. [In this connection reference may be had to Rule 86(2) of Maharastra Grant-in-aid Code (referred to in State of Maharashtra v. Lok Shikshan Sanstha (1971) 2 SCC 410) which provided that schools which are not registered under the Societies Registration Act, shall not be eligible for grant, Grant of recognition and affiliation is of no less significance.]" the Supreme Court in the matter of starting professional courses, has held that only a society registered under the Societies Registration Act, 1860 or a public trust which is religious or charitable under the Trust Act or Wakf Act should be permitted to establish and administer imposing a clear bar to the effect that no individual, firm or company or other body should be permitted to establish and administer a professional college. 15. That apart, the Supreme Court has given various other guidelines also in the Scheme. It is by virtue of the said clause in the Scheme framed by the Hon'ble Supreme Court, the professional educational authorities in India including various States have been insisting the first requirement that only a Registered Society or a Trust can start an educational institution, whether it is a minority or non-minority institution. 16. All India Council for Technical Education Act, 1987 has not prescribed the requirement that either a Society or a Trust can start an educational institution, as a condition for approval by AICTE. However, in the All India Council for Technical Education (Grant of Approval for starting new Technical Institutions, Introduction of Courses or Programmes and Approval of intake capacity of seats for courses or programmes) Regulations, 1994 which came into effect from 11.4.1997 and framed by AICTE, Rule 4 deals with the requirements to grant approval which is as follows: " 4. Requirement of grant of approval.- (1) After the commencement of these regulations.- (a) no new technical institution or University Technical Department, shall be started; or (b) no course or programme shall be introduced by any technical institutions, University including a deemed University or University Department or College; or (c) no technical institutions, Universities or deemed Universities or University Departments or Colleges shall continue in admit students for Degree or Diploma course or programmes; https://hcservices.ecourts.gov.in/hcservices/ (d) no approved intake capacity of seats shall be increased or varied; except with the approval of the Council. (2) applications for grant of approval under sub- regulation (1) shall be made by any of the following, namely:- (i)Government institutions, Government aided institutions, deemed Universities and University Departments or Colleges; (ii)registered societies/trusts." The said rule stipulates that the application shall be made by a registered Society or a Trust. 17. Again, in the the approval process of AICTE to start recognised courses, which came into effect from the academic year 2003-04, while explaining about the documents to be verified by the Regional Office of AICTE, the requirement of documents regarding registration as Society including the list of members and previous records of Society/Trust is also being insisted. 18. In respect of medical colleges, the Indian Medical Council Act, 1956, section 10A which was inserted by Act 31/93 with effect from 21.7.1982 contemplates that previous permission must be obtained from the Central Government for establishment of a new medical college, a new course of study, etc. and that the proposal must be given in the form of a Scheme. 19. While the Establishment of New Medical Colleges, Opening of Higher Course of Study and Increase of Admission Capacity in Medical Colleges Regulations, 1993 framed by the Medical Council of India, explains about the Scheme to be presented to the Central Government for establishment of a new medical college, in the Instructions the following four are stated as eligible criteria: " 1.Universities and State Governments/Union Territories. 2. Autonomous Bodies promoted by Central and State Governments. 3. Societies registered under Societies Registration Act,1860 or corresponding Acts in States. 4. Public Trusts religious or chrairtable registered under Indian Trust Act,1882, Wakfs Act, etc." 20. It is the case of the AICTE as it is seen in the common counter affidavit filed by the Regional Director for All India Council for Technical Education that the restrictions or eligibility criteria to the effect that only a Society or a Trust should establish or administer an educational institution are reasonable, as held by the Supreme Court in Unnikrishnan case, as https://hcservices.ecourts.gov.in/hcservices/ elicited above. However, it is the further case of AICTE that for having Trust or Society, there should be a group of individuals, which is a reasonable restriction and it does not violate the right conferred under Article 30(1) of the Constitution of India. 21. In TMA Pai Foundation and Others v. State of Karnataka and others [(2002) 8 SCC 481], an eleven Judge Bench of the Supreme Court decided about the minority status under Article 30 (1) and Article 29 (2) the Constitution of India. It is significant to note that the said judgement which predominantly relates to the minority rights, has dealt with the law relating to all educational institutions whether private, aided or unaided establishment by minority or non-minority, without restricting to professional colleges, which is evident from the very beginning of the judgement in para-2, which is as follows: "1. Is there a fundamental right to set up educational institutions and if so, under which provision? 2.Does Unni Krishnan case, (1993) 4 SCC 111 require reconsideration. 3.In case of private institutions (unaided and aided), can there be government regulations and, if so,to what extent? 4.In order to determine the existence of a religious or linguistic minority in relation to Article 30, what is to be the unit, the State or the country as a whole? 5.To what extent can