Madras High Court: In a writ petition filed against the orders dated 20-11-2021 and 17-06-1998, passed by the Principal Secretary, Higher Education, Government of Tamil Nadu, rejecting extension of religious minority status to the Justice Basheer Ahmed Sayeed for Women College (‘College’) and also consequently imposing the condition of restricting admission of minority students up to 50 percent ,the division bench of Sanjay V. Gangapurwala*,C.J. and P.D. Audikesavalu, J. while setting aside the impugned order dated 20-11-2021, has held the following:
- The Minority status is not a tenure status, ergo is not for a limited period.
- The Competent Authority may adopt regulatory measures and supervisory measures, such as periodical calling for the list of members of the Governing Board of the College and the Memorandum and Bye laws, to monitor that the Institution is manned by the Members of the Minority.
- Social reservations need not be maintained by the Educational Institution, administered and managed by the Minorities.
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The State Government would be within its right to impose the threshold cap of admitting students from the minority community to 50%. However, in the remaining 50% seats filled on merit from the General Category, the students of the Minority Community can also compete and be admitted on merit and the same would not be counted in the 50% threshold cap meant for the Minority students.
Issues:
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Whether the Minority Status can be granted only for a limited period?
The Court noted that the College is affiliated to the University of Madras. The College became fully autonomous in the year 2006. It functions in two sessions, such as, forenoon session and afternoon session. According to the College, the forenoon session of the College receives grant-in-aid from the Government. The impugned Government order dated 17-06-1998 provides that in case of self-financing educational institutions imparting Professional Courses of Education, established and administered by any Minority, shall admit students of that Minority alone in the existing 50% of the sanctioned strength.
The Court said that the right of the minorities to establish and administer educational institutions flows from Article 30 of the Constitution of India.
Further, after taking note of the National Commission for Minority Educational Institutions Act, 2004 (‘Act 2004’), the Court said that it creates the right of a minority educational institution to seek recognition as an affiliated College to a Scheduled University. The scheme of the Act of 2004 no way envisages the grant of minority status for a temporary period or for a restricted period. The grant of minority status is not for a particular tenure. The minority status of an Institution, accorded by the Competent Authority or the Commission, would subsist until the Commission cancels the same, as provided under Section 12-C of the Act of 2004.
Further, after placing reliance on State of T.N. v. Secretary, 2017 SCC OnLine Mad 25147 and State of T.N. v. Syed Ammal Engineering College, 2020 SCC OnLine Mad 13411, the Court held that the Minority status, once granted to an educational institution, would continue until the same is cancelled.
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Whether Social Reservation has to be maintained by the Institutions administered and managed by Linguistic Minorities?
The Court said that the Article 15(5) to the Constitution of India, empowers the state to make special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the scheduled castes or the scheduled tribes relating to their admission to educational institutions. The State enacted the Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribes (Reservation of Seats in Private Educational Institutions) Act, 2006, (‘the Act of 2006’) to provide for reservation of seats in private educational institutions in the State for the backward classes of citizens and for the persons belonging to the scheduled castes and the scheduled tribes.
After taking note of the definition of private educational institutions, the Court said that a minority educational institution referred in Clause (1) of Article 30 of the Constitution of India is excluded. The State would not have any authority to make any special provision, providing for the reservation to the Scheduled Castes, the Scheduled Tribes or the Backward Classes of citizens for admission in a Minority Educational Institution. Thus, the Act of 2006 excluded from its fold the minority educational institution.
The Court also took note of Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1, wherein it was held that the exclusion of minority educational institution from Article 15(5) of the Constitution of India is not violative of Article 14 of the Constitution of India, as the minority educational institution, by themselves, are a separate class and the rights are brought by other constitutional provisions.
Therefore, the Court held that the concept of communal reservation or reservation for scheduled castes, scheduled tribes and other backward classes of citizens would not apply to minority institutions.
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Can the State Government impose a threshold cap of not admitting students from the minority community concerned beyond 50 percent?
The Court took note of St. Stephen’s College v. University of Delhi, (1992) 1 SCC 558 wherein it was held that the State may regulate the intake of admission of students in respect of the minority community, but in no case, such intake shall exceed 50% of the annual admission. The balance admission shall be made available to the members of the other communities. However, in T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481, wherein the Court observed that the Right to admit students is not to be considered as an abstract and unqualified right and it also held that the rigid percentage of 50%, with respect to intake of minority students stipulated in St. Stephen’s College case (supra), is not correct. It has to be left to the authorities to prescribe a reasonable percentage, having regard to the type of Institution and the educational needs of the Minorities.
Further, the Court noted that in P.A. Inamdar v. State of Maharashtra, (2005) 6 SCC 537, it was observed that minority educational institution cannot, in the name of Right under Article 30(1) of the Constitution of India, degrade merit or merit-based selection of students regarding Professional and Higher Education.
The Court noted that under the Government Order dated 17-06-1998, the threshold cap of 50% was imposed. The State Government Order provided that in the case of self-financing institutions, imparting professional courses of education, established and administered by the minority, they shall admit students of that minority alone, not exceeding 50% of the sanctioned strength. The Court said that the Government Order is issued under Article 162 of the Constitution of India. The policy does not appear to be arbitrary or unreasonable or against the provisions of any Statute, Rules or Regulations in force.
Therefore, it was held that the petitioner college, being a minority educational institution, has to abide by the said Government Order and admit students from the minority community, not exceeding 50%. However, while calculating the 50% of the minority students, those students who are admitted on merit in the remaining 50%, belonging to the minority community, has to be excluded, because they have been admitted on their own merit competing with the others and not as students of minority community.
The Court further noted that while issuing the impugned Government Order dated 20-11-2021, the Government rejected the extension of Religious (Muslim) Minority status to the college on the sole ground that the college admitted more than 50% of the Muslim minority students.
The Court said that the right to cancel the recognition as a minority educational institution vest only with the Commission, established under the Act of 2004. Admitting more students than the sanctioned 50% threshold would not ipso facto permit the cancellation of Minority status of the Educational Institution. Moreover, it is not clear from the impugned order as to whether some of the students belonging to the Minorities are admitted based on their own merit, while competing with the 50% students of non-Minorities.
The Court said that when the threshold cap of 50% is placed, that would mean that the 50% seats are exclusively meant for the minority students and the remaining 50% admission would be open to all other non-minorities, and in the same, even the students of the said minority community can compete. The impugned order does not clarify the same. Thus, the Court set aside the impugned order dated 20-11-2021, that was refusing the extension of religious (Muslim) minority status to the College.
[Justice Basheer Ahmed Sayeed College for Women v State of TN, W.A.No.2353 of 2022 in W.P.No.10973 of 2022, decided on 29-09-2023]
Advocates who appeared in this case :
For the Petitioner: Senior Counsel Vijay Narayan
For the Respondents: Advocate General R. Shunmugasundaram, State Government Pleader P. Muthukumar , Advocate A.S.Vijaya Raghavan
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