@JUDGMENTTAG-ORDER
S.S. Subramuni, J.@mdashIn W.P. 10074 of 1998, Petitioner seeks issuance of Certiorarified Mandamus or any other appropriate Writ, Order or direction, calling for the records of the Respondents relating to the order of the 1st Respondent in letter No. 11241/J1/98 dated 8.7.1998 and quash the same and direct the Respondents herein to treat Rajalakshmi Engineering College, Manappakkam, Kanchipuram District promoted by the Petitioner herein as a linguistic minority institution entitled to all the benefits as such and pass such further orders.
2. The said Writ Petition is filed by a Trust by name ''Rajalakshmi Educational Trust'' and the affidavit is sworn to by its Managing Trustee. The trust was originally founded by one K.S. Srinivasan on 21.11.1995 with his wife and sons as co-trustees. Since the original trustees could not attend to the affairs of the Trust, on 24.4.1996, they resolved to transfer the entire control, Management, administration and responsibility of the Trust to the deponent and his wife Thangam Meganathan with effect from 24.4.1996. A Supplemental Deed of Declaration of Trust was executed on the next day i.e., 25.4.1996 and from that date the deponent and his wife are administering the Trust.
3. The Trust got its approval to run and Engineering College under the name and style ''Rajalakshmi Engineering College''. The Government also gave no objection and University of Madras also gave its affiliation on 18.11.1997. The institution was established thereafter during the end of November, 1997. On 22.4.1998, the Petitioner applied to the first Respondent for declaring that Rajalakshmi Engineering College Promoted by them is a minority institution entitled to the benefits as such. In that application, it was declared that the deponent''s mother tongue is Malayalam and the mother tongue of his wife is Telugu. On the basis of prevailing guidelines, the Trust has satisfied the conditions laid down in G.O. Ms. No. 648 Education, Science and Technology, dated 3.8.1994. On the basis of the G.O. Ms. No. 648, the Petitioner is entitled to declare its minority status.
4. While so, on 22.6.1998, the second Respondent sent a telegram to the Petitioner asking for fresh proposal and wanted to make fresh application. A fresh application was also made on 23.6.1998. Along with the application, Petitioner produced Certificates from the Tahsildar, Nagarcoil, Revenue Divisional Officer and Sub-Divisional Magistrate, Nagarcoil to show that the deponent''s mother tongue is Malayalam. Likewise, he also produced necessary certificates to show that his wife''s mother tongue is Telugu. After producing all these documents, the Respondents have now sent a communication to the Petitioner rejecting the application claiming minority status. The impugned order of the Respondent reads thus,
I am directed to invite your attention to the reference cited, in which you have sent the application for declaration of minority status on linguistic basis to ''Rajalakshmi Engineering College'', Manapakkam, Chennai, sponsored by Rajalakshmi Educational Trust, Chennai.
I am to state that, the Government reject the request of the above Trust for declaration of minority status to the Rajalakshmi Engineering college, Manapakkam, on the following grounds:
(i) The Trust was originally founded by one Thiru K.S. Srinivasan and the Trust Deed were executed on 21.11.95. The other members of the Trust were Tmt. Rama Srinivasan and their two minor sons. Thereafter, Thiru. K.S. Srinivasan and his wife along with their minor sons left the Trust. Certificates relating to the community/mother tongue of the above Trustees have not been produced.
(ii) No records/evidence has been produced by the Trustees to the effect that the Trust/Institution was established by concerned minority and continuously administered only by the members of that minority.
The legality of the said order is challenged in the Writ Petition. It is said that the impugned order is unsustainable in Law. It is said that the two trustees from the very inception till date are husband and wife and their mother tongue is Malayalam and Telugu. Therefore, the institution of the Petitioner Trust is established and managed by Trustees belonging to linguistic minority. The bye-laws governing the institution makes it abundantly clear that the institution is established and maintained for the benefit of students belonging to linguistic minority, and all the guidelines prescribed in various Government Orders have been complied with. The rejection of application is arbitrary and illegal. It is said that the rejection is also vitiated by extraneous considerations. It is prayed for quashing of impugned order.
5. In W.P.12018 of 1998, the impugned order reads thus,
I am directed to invite attention to your letter second cited. I am to inform you that the Government examined the proposal of according minority status to Tamil Nadu College of Engineering, Karumathampatti, with reference to the guidelines issued in the G.O. 3rd cited, the dispose the pending applications claiming minority status.
2. On perusal of the Trust deed executed on 1.2.84, it is seen that at the time of establishment of the Trust, the following five members were in the Trust:
i. Thiru T.N. Palanisamy
ii. Thiru P.V. Ravi
ii. Tmt. P. Rajamani
iv. Tmt. K. Prema Ravi
v. Thiru Kovai Thambi
Later Thiru Kovai Thambi has resigned from the Trust vide supplementary deed executed on 1.9.93. Of the above five Trust members, two persons are Kannada speaking and one is Malayalam speaking. The mother tongue of Tmt. K. Prema Ravi and Thiru Kovai Thambi are not known. No evidence has been furnished by the Trust that, all the five Trustees belong to linguistic minority. Moreover, in the supplementary deed of the Trust, the object of the Trust has not been clearly indicated, as to the interests of a particular minority. It has been indicated that "While safeguarding the interest of the linguistic minorities of Malayalam and Kannada, the Trust shall also promote the interest of other linguistic minorities irrespective of caste, creed and religion.
3. Therefore, the Trust does not satisfy the following guidelines issued in G.O. Ms. No. 270, Higher Education, dated 17.6.98.
(i) The object of the educational institutions should be for promoting the interests of the minority concerned and it should subserve the interests of the minority concerned.
(ii) Such educational institutions should have been established by the minority and should be continuously administered only by the members of that minority.
(ii) An educational institution which was originally not established by a minority community cannot acquire such status or character subsequently under any circumstances.
(iv) All the Trustees or members of the Governing Body of the minority educational institutions shall belong only to the concerned minority.
4. Therefore, the request of the Petitioner is rejected.
In that case also the Petitioner Trust was founded as per the Deed dated 1.2.1984. According to the deponent, the object of the Trust was to establish a College to impart Technical education and to safeguard the rights of their minorities guaranteed under Article 30 of the Constitution. The trust was established by the members belonging to the Devanga Chettiar Community with Kannada as their mother tongue, Nair with Malayalam as their mother tongue. According to the Petitioner, the Trust belong to a linguistic minority entitled to the rights guaranteed under Article 30 of the Constitution.
6. After the Deed of Trust dated 1.2.1984, a Supplementary Deed was also executed on 1.9.1993 wherein one of the Founder Trustee resigned and the object of the Trust was clarified and that the trust shall endeavor to promote the interest of other linguistic minorities also besides the interest of linguistic minorities of Malayalam and Kannada speaking pupils irrespective of caste, creed or religion. The Petitioner also in this case obtained a decree in Civil Court and got declaration as minority institution.
7. Pursuant to G.O. 371 dated 10.5.1995 Petitioner moved an application producing relevant materials to establish their claim as linguistic minority. By the proceedings dated 13.8.1997, the first Respondent has rejected the claim of two other colleges on the ground that they cannot be treated as minority. During the year 1998, the Government issued another G.O. M.S. No. 270 dated 17.6.1998 imposing fresh guidelines and withdrawing the earlier G.O. No. 371 dated 10.5.1995. On the basis of the new Government Order, the request of the Petitioner was rejected. It is prayed that the impugned order is liable to be quashed and it is said that the order is passed without giving opportunity to the Petitioner and the order is passed without due application of mind. It is therefore prayed for issuance of Writ of certirorified Mandamus and to quash the impugned order and to declare that the Petitioner-institution as a minority institution.
8. For both these Writ Petitions, the Respondents filed counter affidavit. In the Counter affidavit, the contentions are more or less similar though there is difference on facts. On the legal question common defence is taken in both the cases. It is said that only recently the Petitioner claim himself as Managing Trustee, sought minority status. The object of the Trust even now continues only as a Public Trust and there is no benefit given either to the linguistic minority or for the benefit of the language. It is also said that as per the present G.O. Ms. No. 270, dated 17.6.1998, both these Petitioners did not satisfy the requirements. On facts, in both the Counter affidavit, the claim of the Petitioners is disputed and it is said that there is only a smoke screen so as to defeat the Policies of the Government.
9. I firstly consider the legal requirements.
10. In AIR 1958 SC 956 (In Re the Kerala Education Bill, 1957), in Paragraph 23 of the judgment, their Lordships held,
What the article says and means is that the religious and the linguistic minorities should have the right to establish educational institutions of their choice. There is no limitation placed on the subjects to be taught in such Educational Institutions: As such minorities will ordinarily desire that their children should be brought up properly and efficiently and be eligible for higher university education and go out in the world fully equipped with such intellectual attainments as will make them fit for entering the public services, educational institutions of their choice will necessarily include institutions imparting general secular education also. In other words, the article leaves it to their choice to establish such educational institutions as will serve both purposes, namely, the purpose of conserving their religion, language or culture, and also the purpose of giving a thorough, good general education to their children. The next thing to note is that the article, in terms, gives all minorities, whether based on religion or language, two rights, namely, the right to establish and the right to administer Educational Institutions of their choice.
(Emphasis supplied).
Again in the same judgment in paragraph 32 Their Lordships further went on and said,
The right to establish Educational Institutions of their choice, must, therefore, mean the right to establish real institutions which will effectively serve the needs of their community and the scholars who resort to their educational institutions.
(Emphasis supplied).
11. In
Under Article 30(1), ''all minorities whether based on religion or language shall have the right to establish and administer educational institutions of their choice''. We shall proceed on the assumption in the present petitions that Muslims are a minority based on religion. What then is the scope or Article 30(1) and what exactly is the right conferred therein on the religious minorities? It is to our mind quite clear that Article 30(1) postulates that the religious community will have the right to establish and administer Educational Institutions of their choice meaning thereby that where a religious minority establishes an educational institution, it will have the right to administer that. An argument has been raised to the effect that even though the religious minority may not have established the educational institution. It will have the right to administer it, if by some process it had been administering the same before the (institution came into force. We are not prepared to accept this argument. The Article in our opinion clearly shows that the minority will have the right to administer educational institutions of their choice provided they have established them, but not otherwise. The Article cannot be read to mean that even if the Educational Institution has been established by somebody else, any religious minority would have the right to administer it because, for some reason or other, it might have been administering it before the Constitution came into force. The words ''establish and administer'' in the Article must be read conjunctively and so read it gives the right to the minority to administer an Educational Institution, provided it has been established by it. In this connection our attention was drawn to In re The Kerala Education Bill, 1957 1959 SCR 995: AIR 1958 SC 956 where, it is argued, this Court had held that the minority can administer an Educational Institution even though it might not have established it. In that case an argument was raised that under Article 30(1) protection was given only to Educational Institutions established after the Constitution came into force. That argument was turned down by this Court for the obvious reason that if the interpretation was given to Article 30(1) it would be robbed of much of its content. But that case in our opinion did not lay clown that the words ''establish and administer in Article 30(1) should be read distinctively, so that though a minority might not have established an Educational institution it had the right to administer ii. It is true that at p. 1062 (of SCR): (at p.982 of AIR) the Court spoke of Article 30(1) giving two rights to a minority i.e., (i) to establish and (ii) to administer. But that was said only in the context of meeting the argument that Educational Institutions established by minorities before the Constitution came into force did not have the protection of Article 30(1). We are of opinion that nothing in that case justifies the contention raised on behalf of the Petitioners that the minorities would have the right to administer an Educational Institution even though the institution may not have been established by them. The two words in Article 30(1) must be read together and so read the Article gives the right to the minority to administer institutions established by it. If the Educational Institutions has not been established by a minority it cannot claim the right to administer it under Article 30(1).
We have therefore, to consider whether the Aligarh University was established by the Muslim minority; and if it was so established, the minority would certainly have the right to administer it.
(Emphasis supplied).
What is meant by establishment of College or Institution was considered in the said judgment and finally Their Lordships concluded, thus,
What does the word ''established'' in Article 30(1) mean? In Bouvier''s Law Dictionary, third edition, Vol.1, it has been said that the word ''establish'' occurs frequently in the Constitution of the United States and it is there used in different meanings; and five such meanings have been given, namely - (1) to settle firmly, to fix unalterably, as to establish justice; (2) to make or form; as to establish a uniform rule of naturalization; (3) to found, to create, to regulate; as, Congress shall have power to establish post offices; (4) to found, recognize, confirm or admit; as, Congress shall make no law respecting an establishment of religion; (5) to create, to ratify, or confirm, as We, the people, etc. do ordain and establish this Constitution. Thus it cannot be said that the only meaning of the word ''establish'' is to be found in the sense in which an eleemosynary institution is founded and we shall have to see in what sense the word has been used in our Constitution in this Article. In Shorter Oxford English Dictionary, Third Edition, the word ''establish'' has a number of meanings i.e., to ratify, confirm, settle, to found, to create. Here again founding is not the only meaning of the word ''establish'' and it includes creation also. In Webster''s Third New International Dictionary, the word ''establish'' has been given a number of meanings, namely, to found or base squarely, to make firm or stable, to bring into existence, create, make, start, originate. It will be seen that here also founding is not the only meaning; and the word also means ''to bring into existence''. We are of opinion that for the purpose of Article 30(1) the word means ''to bring into existence'', and so the right given by Article 30(1) to the minority is to bring into existence an educational institution, and if they do so, to administer it.
(Emphasis supplied).
12. In
Article 30(1) has been construed before by this Court. Without referring to those cases it is sufficient to say that the Clause contemplates two rights which are separated in point of time. The first right is the initial right to establish institutions of the minorities choice. Establishment here means bringing into being of an institution and it must be by a minority community. It matters not if a single Philanthropic individual with his own means, founds the institution or the community at large contributes the funds. The position in law is the same and the intention in either case must be found an institution for the benefit of a minority community by a member of that community. It is equally relevant that in addition to the minority community others from other minority communities are even from the majority community can take advantage of these institutions. Such other communities bring in income and they do not have to be turned away to enjoy the protection.
(Emphasis applied)
13. In
It was seriously contended before us that any minority, even a single individual belonging to a minority, could found a minority institution and had the right so to do under the Constitution and neither the Government nor the University could deny that society''s right to establish a minority institution at the very threshold as it were, howsoever they may impose regulatory measures in the interests of uniformity efficiency and excellence of education The fallacy of the argument in so far as the instant case is concerned lies in thinking that neither the Government nor the University has the right to go behind the claim that the institution is a minority institution and to investigate and satisfy itself whether the claim is well founded or ill founded. The Government, the University and ultimately the Court have the undoubted right to pierce the minority veil with due apologies to the Corporate Lawyers and discover whether there is lurking behind it no minority at all and in any case, no minority institution. The object of Article 30(1) is not to allow bogies to be raised by pretenders but to give the minorities a sense of security and a feeling of confidence not merely by guaranteeing the right to profess, practice and propagate religion to religious minorities and the right to conserve their language, script and culture to linguistic minorities, but also to enable all minorities to establish and administer Educational Institutions of their choice. These institutions must be Educational Institutions of the minorities in truth and reality and not mere masked phantoms. They may be institutions intended to give the children of the minorities the best general and professional education, to make them complete men and women of the country and to enable them to go out into the world fully prepared and equipped. They may be institutions where special provision is made to the advantage and for the advancement of the minority children. They may be institutions where the parents of the children of the minority community may expect the education in accordance with the basic tenets of their religion would be imparted by or under the guidance of teachers, learned and steeped in the faith. They may be institutions where the parents expect their children to grow in a pervasive atmosphere which is in harmony with their religion or conducive to the pursuit of it. What is important and what is imperative is that there must exist some real positive index to enable the institution to be identified, as Educational Institution of the minorities we have already said that in a present case, apart from the half a dozen words as a Christian minorities institution occurring in one of the objects recited in the memorandum of association, there is nothing whatever in the memorandum of the articles of association or in the actions of the society to indicate that the institution was intended to be a minority educational institution. As already found by us. These half a dozen words were introduced merely to found a claim on Article 30(1). They were a smoke-screen.
(Emphasis supplied).
14. Finally, in
There is by now, fairly abundant case law on the questions as to ''minority'', the minority''s right to ''establish'', and their right to ''administer'' Educational Institutions. These questions have arisen in regard to a variety of institutions all over the country. They have arisen in regard to Christians, Muslims, and in regard to certain sects of Hindus and linguistic groups. The Courts in certain cases have accepted without much scrutiny the version of the claimant that the institution in question was founded by a minority community while in cases the Courts have examined very minutely the proof of the establishment of the institution. It should be borne in mind that the words ''establish'' and ''administer'' used in Article 30(1) are to be read conjunctival. The right claimed by a minority community to administer the educational institution depends upon the proof of establishment of the Constitution. The proof of establishment of the institution is thus a condition precedent for claiming the right to administer the institution. Prior to the commencement of the Constitution of India, there was no settled concept of Indian Citizenship. This Court, however, did reiterate that the minority competent to claim the protection of Article 30(1) of the Constitution and on that account, the privilege of establishing and maintaining Educational Institutions of its choice, must be minority of persons residing in India. They must have formed a well defined religious or linguistic minority. It does not envisage the rights of the foreign missionary or institution, however, laudable their objects might be. After the Constitution, the minority under Article 30 must necessarily mean those who form a distinct and identifiable group of citizens of India. Whether it is ''old stuff'' or ''new product'', the object of the institute should be genuine, and not devious or dubious. There should be nexus between the means employed and the ends desired as pointed out in A.P. Christian Ideational Society Case, there must exist some positive index to enable the Educational Institution to be identified with religious or linguistic minorities. Article 30(1) is a protective measure only for the benefits of religious and linguistic minorities and it is essential to make it absolutely clear that no ill- fit or camouflaged institution should get away with the constitutional protection.
(Emphasis supplied).
15. From the above decisions, it is clear that the person claiming minority status of an Institution claiming minority status must be established and administered by a linguistic or religious minority and is intended to serve the needs of their community or language and scholars who belong to their Educational Institutions. It is further seen that the crux of the protection to a minority given by Article 29(1) and 30(1) is the prevention of a majority from imposing its language and the right of the minority from imposing its language and the right of the minority not to be interfered with in its own choice of medium of instruction which must be and is part of the right to establish and administer its own Educational Institutions.
16. In AIR 1962 Gujarat 88 (Shri Krishna v. Gujarat University (FB)) a Full Bench of the Gujarat High Court held in paragraph 53 thus,
A religious or linguistic minority may choose a particular language for its Educational Institution for conserving and promoting its own culture or language and/or for giving a thorough and adequate general education to their children. Members of such a minority might well regard it essential that education of their children should be in accordance with the tenets of their religion and they might bona fide and quite honestly hold that such education cannot be obtained in ordinary Schools and Colleges designed for the members of the majority but can only be ensured in institutions conducted under the guidance of people wellversed in the tenets of their religion and the traditions of their culture. They might also honestly hold that education should be imparted to their children in an atmosphere congenial to the growth of their culture. The members of a minority whether linguistic or religious might well regard it essential that such education should be imparted in a language of their choice for conserving or promoting their culture or language and/or for equipping their children adequately for future destiny.
17. In ILR 1972 (II) Kerala 542 (Rajershi Memorial Basic Training School v. State of Kerala), in para 3 of the judgment in order to claim the minority status, Justice Balakrishna Eradi held thus,
The mere fact that the School was founded by a person belonging to a particular religious persuation is not at all conclusive on this matter. The institution must be shown to be one established and administered by one or on behalf of the particular minority community.
18. In ILR 1976 (II) Kerala 532 (Haneefa v. Manager, M.A.S.M. High School, Venmanad) a Division Bench of the Kerala High Court reiterated the same position.
19. A Division Bench of Patna High Court in AIR 1982 Patna 142 (Sudhindra Chandra Mallik v. State), in paragraph 14, after following the decision in Azeez Basha v. Union of India case cited supra held that", the Petitioner who claims minority status is to prove both the ingredients i.e., establishing the institution and administering the institution by the minority".
20. In AIR 1982 Andhra Pradesh 64 (Samuel v. Dist Educational Officer), Justice Jeevan Reddy (as he then was) has given a detailed picture and the scope of Article 29 and 30 of the Constitution. The entire paragraph 5 of the judgment is relevant for our purpose, which reads thus,
For answering these questions, it is necessary to reiterate that the right guaranteed by Article 30 of the Constitution is the right given to the minority as such and not to an individual member or individual member of the minority and that the right is meant to benefit the minority by protecting and promoting its interests. Where an Educational Institution is established and maintained exclusively or predominantly for teaching or promoting the religious tenets of a given religious minority or for promoting and developing the language and literature of a given linguistic minority, there can be little doubt that it is an Educational Institution serving and promoting the interests of such minority, and hence a minority institution. But, where an Educational Institution is established and maintained for imparting general secular education, where admission is not restricted to the members of that minority alone, the question arises whether, merely because the person or persons who establish it belong to a minority community (whether or not they form into a Committee or a Society registered under the Societies Registration Act), can the institution itself be treated as a ''minority institution''? On this aspect, it should be remembered that it is not necessary that the minority community as such should establish the institution; it is open even to a single member of a minority community to establish and maintain an educational institution see:
(Emphasis supplied).
21. Our High Court also had occasion to consider a similar question in S.A.679 of 1982 and His Lordship Justice M. Srinivasan, following the decision in A.P. Christians Medical Educational Society v. Government of Andhra Pradesh 1982 (2) SCC 667 held that the Court is entitled to remove the smoke-screen and what is its real colour. The judgment is dated 12.9.1986.
22. In 1983 K.L.T. 121, Justice Bhaskaran in the decision Unnimoyin Kutty v. Asst. Educational Officer held thus,
In deciding whether an institution is a minority institution or not, all the attending circumstances concerning its establishment and also of its administration have to be considered. Merely for the reason that the institution was established by an individual of the community, not by a community as a whole as a representative body, it would not necessarily mean that it is not a minority institution. The real test is whether the institution is established and administered for the benefit of the minority irrespective of the fact that it is started by an individual of the community or by an organisation representing the community or the School comes under a Corporate Management or Individual Management.
(Emphasis supplied).
23. In AIR 1988 Allahabad 244 (Shri Gujarati Samaj (Regd.), Kanpur v. State), a Division Bench held thus,
Before an institution can be granted the status of a minority institution it has got to be established, as a matter of fact, that the institution has been established and has all through been administered by the minority alone.
24. In AIR 1988 Andhra Pradesh 256 (Andhra Kesari Educational Society v. State) at Para 12, Their Lordships held thus,
The above dicta emphasize the connection between the institution and the community as such. The institution must be for the benefit of the minority community; it must serve the interests of that community. Otherwise, there would be no basis, reason or rationale for calling it a ''minority institution''; it would be an institution established and maintained by a member or a few members of the minority community and both are not the same. These observations, it may be reiterated, are made in the context of an Educational Institution imparting general secular education, and not those institutions which impart education in the language/medium of instruction of the linguistic minority or impart religious instruction relevant to the particular religious minority. We are therefore, of the opinion that where an Educational Institution imparts general secular education, it cannot claim the status of a minority Educational Institution, unless it serves the socio-economic interests of that minority in some definite, positive manner. The community must have a say in the administration of the institution, though it may be that it is founded by a single individual. In other words, the institution must be for the benefit of the minority community, and must serve the interest of that community in some definite manner. Merely because it is established and/or administered by a person, group of persons, or by a society composed of the members of minority, is not sufficient to clothe the institution with the character of a minority Educational Institution.
(Emphasis supplied).
25. In AIR 1988 Gauhati 8 (Jugalkishore v. State of Assam) in paragraph 9 of the judgment Their Lordships held thus,
What are the tests of determining a minority? As we have seen, one of the tests is the language spoken by the community. This test has to be satisfied because the rights conferred by Article 30 are based on the same underlying notions as in Article 29. Under Article 29(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. Under Article 30(1), all minorities, whether based on religion or language, shall have the right to establish and administer Educational Institutions of their choice. The question is whether the linguistic minority has to be determined only on the basis of the language spoken by the minority or in respect of any other language. If, for example, a group of persons belonging to Muslim minority establishes an English medium School, will it be regarded as minority School? If a group of people belonging to Bengali minority establishes a Hindi Medium School, can it be classified as a minority school? The answer is obviously in the negative, the reason being that the right is for conservation of their distinct language and culture. The very basis of the minority being a religion or language, the right to establish and administer educational Institution of their choice has necessarily to be understood in that context and not outside. Otherwise it will not result in the protection of any cultural or educational right. That the community wants to impart general or secular education is, of course, a different matter.
26. In AIR 1989 Patna 248 (Managing Committee, M.A.K.A.P.T. Education College v. State) in paragraph 7 of the judgment, Their Lordships held as under:
The question shall be examined on the basis of the different judgments of the Supreme Court where it has been pointed out that sponsors of such institutions have to establish that the institution in question have been established by the minority community. In that connection it has also to be examined as to whether such institution is a minority institution in spirit and form or is just a commercial venture.
27. On these settled legal position, let us consider whether the impugned order requires interference. Before going into the said question, it is only proper to take into consideration the G.O. Ms. No. 270 dated 17.6.1998 issued by the Respondent for conferring the minority status. The relevant portion of the Government Order is in Clause 8, which read thus,
The Government issue the following guidelines to dispose of the pending applications claiming minority status and also applications which will be received in future from Educational Institutions:
(i) The object of the educational institutions should be for promoting the interests of the minority concerned and it should subserve the interests of the minority community concerned.
(ii) Such Educational Institutions should have been established by the minority and should be continuously administered only by the members of that minority.
(iii) An Educational Institution which was originally not established by a minority community cannot require such status or character subsequently under any circumstances.
(iv) All the Trustees or members of the Governing Body of the minority Educational Institutions shall belong only to the concerned minority.
(v) In the case of self-financing Educational Institutions imparting professional courses of education established and administered by any minority they shall admit students of that minority alone, not exceeding 50% of the sanctioned strength. If there is any vacancy not filled as above such vacancy in that 50% shall be filled up only on the basis of merit and from common merit list prepared by the competent authority.
(vi) To decide whether an applicant is a minority or not based on religion or language, the total population of that minority in the state of Tamil Nadu shall be taken into consideration and not the population of that minority in any particular region where the Educational Institution is situated.
(vii) In so far as Tamil Nadu State is concerned, any person whose mother tongue is any language other than Tamil shall be considered as linguistic minority in the State and in respect of religious minority, any person whose religion is other than Hinduism shall be considered as a religious minority in the State.
28. I first take into consideration W.P.10074 of 1998. The Trust on the basis of the Deed claim minority status. It may be noted that only a supplementary Deed of Trust alone has been filed before the authorities and before this Court. The point to be considered is whether on the basis of those two Trust deeds minority status could be conferred taking into consideration G.O. Ms. No. 270. The object of the Trust, both as per the original Trust Deed as well as Supplementary Trust Deed is,
(i) To start an Engineering College (for boys and girls) for providing technical education to poor students at Madurai, Madras, Chengai Anna Dist. etc. and maintain it regularly;
(ii) To start Schools, Colleges and Polytechnics or similar Educational Institution in any place in India and to maintain them regularly.
(iii) To spread knowledge and to promote and advance the cause of education and the Indian culture by running Schools, classes, libraries, hostels, and similar institutions and such other media for the benefit of the public to conduct classes on the various aspects of Indian culture.
(iv) To establish and develop research centres and academics for the pursuit of knowledge particularly of Indian culture, to assist deserving and poor students and scholars in pursuit of knowledge of education in Indian Culture and fine arts.
(v) To institute and award scholarships, grant aids to Indian Citizens for study and research in the fields of education, Indian culture and Fine arts to make contribution for relief of poor, aged and handicapped artists or students in the fields of Education, Indian Culture and fine Arts and of other things that maybe conductive to or necessary for advancing knowledge and carrying out the above objectives and purposes of the Trust.
29. In this connection, it may be noted that the original deed of trust was formed by one K.S. Srinivasan as founder and the Trustees were the Founder, his wife and two minor children. It further provided that K.S. Srinivasan will hold office for life and Founder trustees shall have the right to appoint as hereditary trustee one of their successors in the interest to succeed him or her as hereditary trustee. The hereditary trustees will hold office for life, and each hereditary trustees will have the right to appoint any one of his successors in the interest to succeed him or her as hereditary trustee.
30. From a reading of Original Trust Deed, the learned Counsel for the Petitioner was not in a position to pinpoint as to whether there is any nexus for the advancement of the language or religion and how far the minorities will be benefited by the Public trust, when the same is founded for the benefit of every citizen without taking into consideration caste, creed or religion. How far the founder trustees can assign all their rights of their family when they themselves have defined a line of succession is a debatable point. Thereafter, Meganathan and his wife have taken over the rights of the Public Trust. It is said that there was a resolution passed by the previous trustees and pursuant to the same Meganathan and his wife got right of the Public Trust. Even in the Supplementary Deed of trust, the object is the same. There also the beneficiaries are Indian Citizens in general and the field of activity is also the same as prescribed in the original deed of Trust. There also I do not find whether the Trust was created for the benefit of the minority or at least a special consideration for the minority community or language.
31. After getting hold of the Public Trust, an Engineering College was established on 18.11.1997. Affiliation was also obtained and thereafter application was filed claiming minority status on 22.4.1998. The institution which they have raised must serve the benefit of minority community in some manner either by promoting the language in the case of linguistic minority or by teaching the minority or culture of the minority community in the case of linguistic minority or by serving educational needs of the community in some positive manner. The benefit of the community from such Educational Institution must be definite and real.
32. As in the case in Andhra Kesari Educational Society v. State reported in AIR 1988 Andhra Pradesh 256, at the time when they wanted to establish College of Engineering it never claimed to be a minority Educational Institution. Only after obtaining the permission, and when the question of admission of students to the institution arose, it claimed the status for the first time with a view to enable them to admit the students of its own choice. The idea was to deprive the State of the right to allot students in accordance with the statutory rules governing such admissions and to admit students of its own choice and on its own terms, under the guise and cover of a minority Educational Institution. In the said case, Their Lordships further went on to say that,
We are inclined lo believe that the persons who have formed the said society are merely seeking to reap unfair advantage over other similar Educational Institutions by claiming fraudulently the status of a minority Educational Institution, and also to exploit the students, teachers and the staff.
As in that case, there is not even one piece of evidence to show that the Malayalam speaking community or the Telugu speaking community is going to be benefited by the establishment of Engineering College by these two deeds Regarding, what way the language is promoted and in what way it is going to serve the minority, there is absolutely no evidence.
33. An argument was taken by the learned Advocate General that the husband is a Malayalam speaking individual and the wife claims to be Telugu speaking minority and both of them wanted lo establish a minority institution. The learned Counsel submitted that the word used is ''a minority'' under the Constitution. It is also brought to my notice that under the bye-laws of the Trust, the object is different from the Trust deed. In the bye-law of the Trust, it is said that the Trust shall be a Public charitable and Education Trust catering to the linguistic minorities of Telugu and Malayalam languages and it shall cater to the educational and charitable needs of the linguistic minorities of Telugu and Malayalam languages. But at the same time while considering the co-option of trustees, it is not limited to the linguistic minorities. The Managing Trustee shall have the power to fill any casual vacancy in the office of trustee caused by resignation, removal or death of a trustee, and got power to co-opt any person of Indian Nationality. When the main Trust Deed and Bye-laws of the Trust are inconsistent and the Managing Trustee also can co-opt any Indian personality, naturally it follows that the trustee will never be a person belonging to linguistic minority. And again, the bye-laws are intended only for the day-to-day management of the Trust. In the original Trust Deed, the Management consisting of board of trustees which consisted of Managing Trustee, founder trustees, hereditory trustees and nominated trustees. Likewise, in the supplementary deed of trust also, there is a similar provision in Clause 7. If the management of trust can be with co-opted or nominated trustees irrespective of religion, the claim that the trust is formed for the benefit of the linguistic minorities is only an eye-wash or smoke-screen, is the contention of the learned Advocate General. I find force in the said contention.
34. As was held in AIR 1982 Andhra Pradesh 64 (cited supra), if an institution serves the public in general, without making any distinction between them, it would be a public institution, but not a minority institution. A leading of the original Trust Deed as well as the supplementary deed would only show that it is only a public Trust and no benefit is going to the minority either linguistic or religious. From a reading of both these trust deeds, I also find that any institution that is to be founded or found is not meant to preserve and promote the religion or language of the minority and it is intended for their own private benefit and to promote their own interest. There is no restriction as to the admission of students and it only says ''Indian Citizen''. Majority students also do not belong to the minority community and as to what is the connection between the institution and minority community, absolutely there is no evidence.
35. Under the same Trust Deed, how two persons can promote two different languages and claim as a minority institution, was an argument put forward by the learned Additional Advocate General. Similar argument was taken in the decision reported in AIR 1988 Gauhati 8, in the case between Jugalkishore v. State of Assam (cited supra--see para 9).
36. The learned senior counsel for the Petitioner submitted that if there is any defect in the Trust Deed or in the Bye law, that is only a matter of correction and they are prepared to correct the same. It is not the preparedness of the Petitioner to correct the Trust Deed. The question is whether the Petitioner is entitled to the benefit of minority status. G.O. Ms. No. 270 has given certain guidelines. None of those guidelines have been satisfied in this case. So naturally, W.P. 10074 of 1998 is only to be dismissed.
37. The learned senior counsel also contended that before rejecting the application they were not heard and hence Principles of Natural Justice is violated. I do not think such a question will arise. Petitioner relies on Trust Deed and documents based on which they claim minority status. Petitioner does not have a case that some more materials are available to prove the minority status. The Respondents have only interpreted the documents and have rightly come to the conclusion that they are not entitled to the same.
38. As was held in
39. Now, I come to the Writ Petition No. 12018 of 1998. In this case, the first deed is dated 1.2.1984 and the supplementary deed was executed on 1.9.1993. It is true that in the I preamble of the Trust Deed of 1984, it is said that some of the founders are having their mother tongue as Malayalam and some of them are having their mother tongue as Kannada. That means, two individuals wanted to form a Trust. But what are the object of the Trust? That is to establish a college to impart technical education to offer assistance to all students especially to students of minority linguistic group. A reading of entire trust deed is clear, that is a public trust. Except for Clause 2 and Clause 4, there is not even a mention about the benefit of linguistic community. Merely because in one or two places it is stated as linguistic minority or they are entitled to the benefit of Article 226 by itself may not be sufficient. Most of the objects of the Trust are for the benefit of the Public only. Even regarding management, it is not confined to a particular community or religion. The Board of Trustees have power to co-opt any time person who can also become Trustee for life. In this case also I find that all the defects, which I have stated earlier in the other petition also could be seen.
40. In fact, if the institution had the intention of claiming a minority status earlier, what prevented them from claiming the same even at the time when college was established? We must understand that the Supplementary Deed was executed pending Civil suit for declaration. The Civil Courts Decrees were nullified by the Honourable Supreme Court as of no use. That is also intended to create additional evidence.
41. An argument was taken before me that on earlier occasion, i.e., on 5.8.1997, an order was passed by the Respondents giving the Petitioner minority status. I have read the order which is produced along with the typed set of papers. I do not think that the submission could be accepted. The application was pending for consideration and no decision was taken. The Respondent informed the Petitioner with regard to admission of students, Petitioner is entitled to admit 50% of students of their choice. It was never decided that minority status was declared earlier.
42. For the reasons which are fully applicable to the both the petition and on the basis of legal position which I have already discussed, I do not think that the Petitioners in these cases are entitled to any right.
43. As was held in Unnimoyin Kutty v. Asst. Educational Officer case reported in 1983 K.L.T. 121, while considering the position of minority status, all the attending circumstances concerning its establishment and also of its administration have to be considered. The real test is whether the institution is established or administered for the benefit of the minority. In both these cases, I do not find that the Trust deed was executed or the institution was established, for the benefit of the minorities whether it be linguistic or religious.
44. In the result, both the Writ Petitions are dismissed. No costs. Consequently, the connected W.M. Ps. are closed.
