@JUDGMENTTAG-ORDER
Janarthanam, J.@mdashThe Congregation of Nuns of the Immaculate Heart of Mary, Kanyakumari District, it is said is engaged in religious and
social work and has established educational institutions in several places in Tamil Nadu and Pondicherry. Schools run by the said Congregation
had been recognised as minority institutions entitled to the protection guaranteed under Article 30(1) of the Constitution of India, viz. the
fundamental right to religious minorities to establish and administer educational institutions of their choice. Sacred Heart Primary School,
Kadiapattanam, situate within the educational district of Thuckalay, was established by the said Congregation in 1928 and was granted affiliation
by the Director of Public Instructions in the same year. The said school is a full fledged primary school for girls having a strength of 639 students as
on 31.7.1985. The teacher-pupil ratio laid down in G.O.Ms. No. 250, Education Department, dated 29.2.1964 permits the appointment of one
teacher for the first 35 students and two teachers for a total of 60 students and one additional teacher for every 20 more students. The total
strength of 639 students requires the appointment of 19 teachers, 19 teachers having the requisite qualifications in fact have been appointed to man
the school, but nonetheless grant-in-aid in respect of six teachers are yet to be released, although there is no impediment for payment of the
teaching grant.
2. The said Congregation was also running a middle school, Sacred Heart Middle School, Kadiapattanam which was upgraded into a High School
during 1982-83. Standard IX had been opened on 16.6.1982 and Standard X on 20.6.1983. The third respondent in W.P. No. 5702 of 1986,
Joint Director of School Education (Secondary), Madras-6, in his proceedings dated 31.10.1983 accorded temporary recognition without aid
from the date of opening of the new Standards till 31.5.1984. As on 1.8.1985, the strength of the school was 595. The appointment of teaching
and non-teaching staff having the requisite qualifications had been made as per the rules. Even though six additional teachers in the middle school,
three additional school assistants, two additional special teachers and six non-teaching staff in the High School have been working, in anticipation
of allotment of posts for the past two years or more, the respondents have failed and neglected to grant aid in respect of them.
3. Repeated representations to the respondents for grant of aid in respect of the above staff members were in vain. The Schools, it is said, are non-
fee levying ones. The inordinate delay in releasing the teaching grant, as requested, is unjustified and causes undue hardship to the Management and
the teachers concerned. No uniform standards are adopted by the respondents in respect of the disbursement of teaching grant.
4. The first respondent, Government of Tamil Nadu, by G.O.Ms. No. 1244, Education Department, dated 16.10.1985, granted aid to about 85
schools totally, neglecting the petitioner schools. Further, in G.O.Ms. No. 1080, Education Department, dated 20.8.1984, the first respondent
granted aid by allotting minimum aided teachers'' posts to several private non-minority schools in Tamil Nadu. The action of the respondents in
neglecting the petitioner schools is discriminatory and violative of Articles 14 and 30(2) of the Constitution of India.
5. The present actions had been laid by the petitioner praying for issue of writs of mandamus to the respondents to release financial aid to the
petitioner schools.
6. The petitioner also filed W.M.P. Nos. 17357 and 17358 of 1987, seeking interim direction to the respondents to order for the release of the
grant to the petitioner schools and this Court, by order dated 10.12.1987 granted the interim directions as prayed for; in the following terms:
In these two petitions, it is not in dispute that the authorities concerned have granted recognition for running of the schools. However; necessary aid
was not granted. Therefore, the present writ petitions. In a similar matter, Sathiadev, J. in W.M.P. No. 12318 of 1985 has directed the authorities
to grant the aid on condition of the petitioner furnishing bank guarantee or immovable property as security for the aid to be received. Following
that, I direct the respondents to release the grant on the petitioner furnishing bank guarantee or immovable property as security for the amount of
aid to be received, these petitions are ordered accordingly. The authorities will release the grant within four weeks from the date of receipt of this
order.
It is said, the interim direction has been complied with and the petitioner schools had been receiving the grants.
7. Learned Counsel for the petitioner would press the following contentions into service:
(i) The first respondent/State is under a positive obligation to give equal treatment in the matter of aid to all educational institutions, including those
of the minorities, religious or linguistic, like the petitioner, and the refusal to release the grants in aid to the petitioner merely on the ground that the
petitioner Institution is a minority institution, is nothing but sheer practice of hostile discrimination, which is not permissible on the face of Article 30
of the Constitution of India.
(ii) Refusal to release the grants-in-aid on the ground that no previous permission had been obtained by the petitioner for the upgrading of the
Middle School into High School is altogether untenable, in as much as no previous permission is required for any minority institution to establish
and administer any private school as per the provision of Section 9 of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 (for
short, ''the Act'') and what is required after the establishment of such an institution is to send to the competent authority, u/s 10, a statement
containing particulars specified in Section 5(2)(c) of the Act within a period of three months from the date of opening of the school as prescribed
under Rule 8(2) of the Rules framed under the Act.
8. Learned Counsel for the respondents would, however, repel such submissions and what he would contend is that at the time of recognition to
the various educational courses in the petitioner schools, the position had been made clear to them no aid is possible and the petitioner did not
demur over this and accepted recognition and consequently they cannot now claim aid, and they will be debarred from putting forth such a claim.
9. It is not as if the rival submissions, as now put forth, did not arise for consideration before the Apex Court and other High Courts of this country
and the plain fact is that such questions came to be considered on innumerable occasions. Worthwhile it is to refer to the proposition of law laid
down by the Apex Court as well as the High Court and such a ritualistic exercise, if undertaken, will solve the tangle posed in this case with ease
and grace.
10. In In re Kerala Education Bill, 1957 AIR 1968 S. C. 956, Venkatarama Aiyar, J., while concurring with the majority view, stated in his
separate judgment as follows:
The result of the constitutional provisions bearing on the question may thus be summed up:
(1) The State is under a positive obligation to give equal treatment in the matter of aid or recognition to all educational institutions, including those of
the minorities religious or linguistic.
(2) The State is under a negative obligation as regards those institutions, not to prohibit their establishment or to interfere with their administrative.
11. In the same judgment of the Supreme Court, Das, C. J., who spoke of the majority, made certain observations on the question of aid to
educational institutions and they are reproduced hereunder:
It is, however, well known that in modern times the demands and necessities of modern educational institutions to be properly and efficiently run
require considerable expense which cannot be met fully by fees collected from the scholars and private endowment which are not adequate and,
therefore, no educational institutions can be maintained in a State of efficiency and usefulness without substantial aid from the State. Articles 28(3),
29(2) and 30(2) postulate educational institutions receiving aid out of State funds.
We are thus faced with the problem of considerable complexity apparently difficult of solution. There is, on the one hand the minority rights under
Article 30(1) to establish and administer educational institutions of their choice and the duty of the Government promote education, there is on the
other side the obligation of the State under Article 45 to endower to introduce free and compulsory education, we have to reconcile between these
two conflicting interest and to give effect to both if that is possible and bring about a synthesis between the two. The directive principles cannot
ignore or override the fundamental rights but must, as we have state, subserve the fundamental rights, we have already observed that Article 30(1)
gives two rights to the minorities. (1) To establish, and (2) to administer, educational institutions of their choice. The right to administer cannot
obviously include the right to maladminister. The minority cannot surely ask for aid or recognition for an educational institution run by them in
unhealthy surroundings, without any competent teachers possessing any semblance of qualification, and which does not maintain even a fair
standard of teaching or which teachers matters subversive of the welfare of the scholars. It stands to reason, then, that the constitutional right to
administer an educational institution of their choice does not necessarily militate against the claim of the State to insist that in order to grant aid the
State may prescribe reasonable regulations to ensure the excellence of the institutions to be aided.
No educational institution can in actual practice be carried without aid from the State and if they will not get it unless they surrender their rights they
will, by compulsion of financial necessities, be compelled to give up their rights under Article 30(1).
The State Legislature cannot, it is clear, disregard or override those provisions merely by employing indirect methods of achieving exactly the
same result. Even the Legislature cannot do indirectly what is certainly cannot do directly.
There can be no manner of doubt that our Constitution has guaranteed certain cherished rights of the minorities concerning their language, culture
and religion. These concessions must have been made to them for good and valid reasons. Article 45, no doubt, recovers the State to provide for
free and compulsory education for all children, but there is nothing to prevent the State from discharging that solemn obligation through
Government and aided schools and Article 45 does not require that obligation to be discharged at the expense of the minority communities. So
long as the Constitution stands as it is and is not altered, it is, we conceive, the duty of this Court to uphold the fundamental rights and thereby
honour our sacred obligation to the minority communities who are of our own. Throughout the ages endless inundations of and diverse creeds,
cultures and races - Aryans and non-Aryans, Dravidians and Chinese, Scythians, Huns, Pathans and Mughals- have come to this ancient land from
distant regions and claimes. India has welcomed them all. They have met and gathered given and taken and got mingled, merged and lost in one
body. India''s tradition has thus been epitomised in the following noble lines,
None shall be turned away from the shore of this vast sea of humanity.
That is India
Indeed India has sent out to the world her message of good will enshrined and proclaimed in our National Anthem;
Day and night, the voice goes out from land to land,
calling Hindus, Buddhists, Sikhs and Jains roundthy throne
and Parsees Mussalmans and Christians Offerings are brought to thy shrine by the East and the West to the woven in a gar land of love. Though
bringest the hearts of all people into the harmony of one life, Thou Dispenser of India''s destiny, Victory, Victory, Victory to thee
It is thus that the genius of India has been able to find unity in diversity by assimilating the best of all creeds and cultures. Our Constitution
accordingly recognises our sacred obligations to the minorities.
12. In The All Saints High School v. Government of A.P. (1980) 2 S.C.J. 273, Chandrachud, C,J., commenting on the question of granting aid to
educational institutions, observed as follows:
In the case of institutions that receive State aid it is the duty and obligation of the Government which grants aid to see that public funds are usefully
and properly expended. If the expenditure incurred for paying the emoluments of the State is subsided or financed from out of State funds, it
becomes the duty of the State to see that no one who does not possess the minimum qualifications is appointed on the staff the pay and other
emoluments of the staff are guaranteed and their service conditions secured. Minority institutions which receive State aid cannot complain of
conditions subject to which the aid is granted, so long as such conditions do not amount to discrimination against them on the ground of language or
religion and so long as the aid is not made to depend upon the performance or observance of conditions which amount to deprivation of the right
guaranteed by Article 30(1). There is also no doubt that minority institutions cannot be discriminated against in the matter Of granting State aid.
Articles 30(1) confers a fundamental right on the minorities to establish and administer educational institutions of their choice. Article 30(2)
enjoins on the State that in granting aid to the educational institutions it shall not discriminate against any educational institution on the ground that it
is under the management of a minority. Whether based on religion or language. Thus, it would appear that Article 30(1) even in the matter of
receiving aid by the educational institution established by the minority community.
Articles 28(3), 29(2) and 30(2) deal with educational institutions receiving aid out of State funds. Certain restrictions are placed and obligations
cast on institutions recognised by the State or receiving aid. Article 28(3) provides, no person attending any educational institution recognised by
the State or receiving aid out of State funds shall be required to take part in any religious instructions that maybe imparted in such institutions Or to
attend any religious worship that may be conducted in such institution or in any premises attached thereto unless such person or if such person is a
minor, his guardian has given his consent thereto. Under the sub article a person attending an institution recognised by the State or receiving aid
cannot be compelled by the institution to take part in any religious instruction or to attend religious worship without his consent. Article 29(2)
provides that 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. Under Article 29(2) in institutions receiving aid a citizen is entitled to seek admission
and the institution is forbidden to deny admission to a citizen on grounds of religion, race, caste or language. While Articles 28(3) and 29(2)
impose certain restrictions on institutions receiving aid. Article 30(2) forbids the State from discriminating against any educational institution in
granting aid on the ground that it is under the management of a minority, whether based on religion or language. 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 an
educational institution on the ground that it is under the management of a minority whether based on religion or language. 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 force the State to grant aid. But if the State grants aid to educational institutions, there should not be any discrimination.
It is open to the State to prescribe relevant conditions and insist on their being fulfilled before any institution becomes entitled to aid. No institution
which fails to conform to the requirements thus validly prescribed would be entitled to any aid. Educational institutions receiving aid whether they
are managed and administered by minorities or not have to conform to the requirements prescribed by the State in order to enable the institutions
to receive aid. The requirements prescribed shall not be discriminatory on the ground that it is under the management of a minority whether based
on religion or language. The character of the minority institution should not also be destroyed. The right of the State to ensure that its funds are
properly spent cannot be denied.
13. In Church of South India v. The Government of Tamil Nadu, 1988 Writ L.R. 130, a Bench of this Court, dealing with the plea of financial
constraints, put forth by the State in answer to the claim for aid after recognition, observed,
As for financial liabilities, being fully aware of the protection conferred under Article 30(2) of the Constitution and being fully conscious that
minorities have the right to open schools and when such schools are being opened year after because of public demand and due to increase in
population; There could not be any difficulty for the State to provide for contingency funds under the head of ''education in formulating the Budget.
Not less than rupees two hundred crores is spent for free education and hence a few more lakhs is not an unmanageable financial capabilities for
this welfare State. Therefore, it is not impossible of performance to comply with the constitutional requirements. Directing the payment of aid to the
appellant Institution cannot therefore be opposed by State, when it is for public good.
14. K.S. Bakthavatsalam, J., following the pronouncement of the Bench of this Court observed, in T. Sekara Pillai, Manager, Arumanai Higher
Secondary School, Arumanai v. State of Tamil Nadu, W.P. No. 4570 of 1987 dated 21.9.1989, as follows:
It is highly surprising for the State to take the contention that they are not able to pay the grant due to non-availability of finance. I do not
understand the attitude of the department that after sanctioning the subject for the Higher Secondary School to run the school without teachers. For
that, the department should have taken steps to sanction the post. For imparting education the fundamental thing is to have teachers to coach the
students properly, that too, trained teachers for the respective subjects. I think a duty is cast upon the State to see that the posts are sanctioned
expeditiously, if they have sanctioned subjects or groups for the school. There is no point in sanctioning the groups to the school and leave the
matter at that. If the State feels that they will have financial strain, they ought not have sanctioned the groups.
15. The above order of the learned single Judge has been confirmed in appeal by a Bench of this Court in WA. No. 24 of 1990 dated 23.8.1990,
except for a slight modification regarding unsanctioned courses.
16. A Division Bench of this Court, consisting of Nainar Sundaram, J., as he then was, and Somasundaram, J., in Roman Catholic Society v. The
Government of Tamil Nadu, 1991 Writ L.R. 130, held that paucity of finances could not be a valid ground for denying aid to minority schools, and
observed,
On behalf of the respondents, it is contended that at the time of grant of recognition to the various educational courses in the minority schools, the
position has been made clear to them that no State aid is possible and the minority schools did not demur over this and accepted recognition and
hence they cannot now claim aid and they will be debarred from putting forth such claim. We could not appreciate and accept this stand put forth
on behalf of the respondents. What Article 30 enshrines as a fundamental right, cannot be bartered away or surrendered by any voluntary act and
it cannot be waived. While there may not be a fundamental right to aid, yet if in the matter of grant of aid the State chooses to discriminate the
voice of protest in this behalf by the aggrieved minority cannot be stifled on any principle of waiver. The docility with which the minority schools
accepted the recognition with any tail annexed that aid is not possible will not estop them for voicing forth a grievance of discrimination coming
within the ambit of Article 30(2) of the Constitution.
Thus the grounds put forth for not granting aid to the minority schools in the present cases cannot stand scrutiny of judicial review and they are
totally unreasonable and arbitrary and they brought about the discrimination against the minority schools in the matter of grant of aid and that
discrimination comes within the scathe of Article 30(2) of the Constitution.
17. In St. Stephen''s College v. University of Delhi (1992) 1 S.C.C. 588, a Constitution Bench of the Supreme Court, while dealing with aid to
educational institutions, pictures squely expressed in paragraph 89 thus,
The educational institutions are not business houses. They do not generate wealth. They cannot survive without public funds or private aid. It is said
that there is also restraint on collection of students fees. With the restraint on collection of fees, the minorities cannot be saddled with the burden of
maintaining educational institutions without grant-in-aid. They do not have economic advantage over others. It is not possible to have educational
institutions without State aid. This was also the view expressed by Das, C.J., Ningawwa Vs. Byrappa and Others, . The minorities cannot
therefore, be asked to maintain educational institutions on their own.
18. In the epoch making judgment by another Constitution Bench of the Supreme Court in Unnikrishnan, J.P. v. State of A.P. (1993) 1 J.T. 474,
dealing with the fundamental right to education, the Supreme Court observed in a scintillating fashion in paragraph 134 thus:
1. The citizens of this country have a fundamental right to education. The said right flows from Article 21. This right is, however, not an absolute
right. Its content and para-meters have to be determined in the light of Articles 45 and 41. In other words every child/citizen of this country has a
right to free education until he completes the age of fourteen years. Thereafter his right to education is subject to the limits of economic capacity
and development of the State.
19. In the backdrop and setting of the principles of law as evolved by the various decisions referred to above, let me endeavour to give a legal
fitment to the factual situation emerging from the present actions. There is no pale of controversy that the schools are minority institutions or
institutions established and administered by the minority. Yet another fact about which there cannot be any dispute, is that a minority institution like
the petitioner can very well be, established and administered without seeking the prior permission from the concerned authorities and what is
required is, as stated earlier, a statement has to be furnished to the authorities concerned u/s 10, as per the salient features adumbrated u/s 5(2)(c)
read with Rule 8(2) within three months of the opening of the Standards. There is also no denial of the fact that the teachers appointed in the
institutions of the petitioner are all qualified teachers and the teaching as well as non-teaching staff had been appointed within the para-meters fixed
by the concerned Government Orders. Further, the grants-in-aid sought for by the petitioner schools for teaching and non-teaching staff, according
to the eligible criteria, are only upto Standard X viz. to impart education to students under 14 years of age.
20. Considering the facts and circumstances of the case and the judgments referred to above, these writ petitions will have to be allowed and they
are, accordingly allowed. The rule nisi issued in each case is made absolute. There will be no order as to costs.
