Case Note & Summary
The writ petition was filed under Article 226 of the Constitution of India seeking a writ of certiorari to quash G.O.(Ms)No.65, School Education (MS) Department, dated 05.04.2018, insofar as it concerned the petitioner school, Esther Santham Higher Secondary School. The petitioner was a Christian minority educational institution established by a trust named International Youth Fellowship in Christ. The school was established after obtaining necessary certificates, but another minority institution in the same area objected. The third respondent passed an order dated 30.08.2012 directing closure of the school on the ground that it was functioning without prior permission. The petitioner challenged that order in W.P.(MD)No.12577 of 2012, and the High Court by order dated 07.01.2013 set aside the closure and directed authorities to forward the application for recognition and minority status. The Government filed W.A.(MD)No.306 of 2013 and rejected the recognition request treating the school as non-minority. The petitioner filed W.P.(MD)No.9260 of 2013. The Division Bench disposed of the appeal directing the petitioner to apply separately for minority status. The petitioner applied, and when no order was passed, filed W.P.(MD)No.36010 of 2013, in which the court directed the respondents to pass orders within two months. The State Minority Commission recommended minority status by no objection letter dated 19.12.2013. When no order was passed, the petitioner filed Cont.P.No.951 of 2014, and respondents then denied minority status by letter dated 11.04.2014. The petitioner challenged this in W.P.(MD)No.7392 of 2014. The High Court by order dated 10.04.2017 allowed W.P.(MD)No.9260 of 2013 and W.P.(MD)No.7392 of 2014, holding that a minority institution can be started without prior permission and declaration of minority status is not a precondition. Despite this, the fourth respondent issued the impugned G.O.Ms.No.65 dated 05.04.2018, leading to the present writ petition. The petitioner argued through Senior Counsel that there cannot be a rigid minimum or maximum cap on minority students in a minority educational institution; the right from the Kerala Education Bill case held that a sprinkling of outsiders is enough. In St. Stephen's College v. University of Delhi, a 50% quota was imposed, but T.M.A. Pai Foundation held such rigid percentage was unconstitutional. The recent judgment in Secretary, Mar Chrysostom College of Education v. State of Tamil Nadu held that minority status depends on the religion of the founders and management, not on the religion of students. Therefore, fixing a minimum or maximum cap was argued to be unconstitutional. The learned Government Advocate began submissions based on the counter affidavit. The extracted judgment text ends during the arguments, and the final decision of the court is not available in the provided portion.
Headnote
A) Constitutional Law - Minority Educational Institutions - Right to Establish Without Prior Permission - Constitution of India, 1950, Article 226 - The petitioner school, established by a Christian minority trust, challenged closure order and subsequent government orders; earlier orders of the High Court held that a minority institution can be started without prior permission and declaration of minority status is not a precondition, though recognition is required; the impugned G.O.Ms.No.65 dated 05.04.2018 was issued despite these findings, and the present court is considering whether to quash it (Paras 2-6). B) Constitutional Law - Minority Educational Institutions - Admission Quota and Student Composition - Constitution of India, 1950, Article 226 - The petitioner contended that there cannot be a rigid minimum or maximum percentage of minority students in a minority educational institution; reliance was placed on Kerala Education Bill case, St. Stephen's College v. University of Delhi, T.M.A. Pai Foundation, and Secretary, Mar Chrysostom College of Education; it was argued that minority status depends on the religion of founders and management, not students, and that a rigid quota is unconstitutional (Paras 7-9). C) Administrative Law - Judicial Review - Binding Effect of Prior Judgments - Constitution of India, 1950, Article 226 - The petitioner argued that the respondents issued the impugned G.O. contrary to categorical findings in prior writ petitions; the court is examining whether the government order can stand in light of those findings (Paras 6-10).
Issue of Consideration
Whether G.O.(Ms)No.65, School Education (MS) Department, dated 05.04.2018, insofar as it concerns the petitioner school, is liable to be quashed; whether a minority educational institution can be subjected to a minimum or maximum admission cap for minority students; whether prior permission and minority status declaration are preconditions for establishing a minority educational institution
Law Points
- A minority educational institution established by a religious minority trust can be started without prior permission
- declaration of minority status is not a precondition for starting a minority school
- recognition is required but can be obtained after starting
- no rigid minimum or maximum cap on admission of minority community students in a minority educational institution
- minority status depends on the religion of founders and management
- not on the religion of students
- a sprinkling of outsiders in minority institutions is sufficient
- rigid percentage quotas for minority students are unconstitutional
- the State cannot fix a minimum or maximum cap for admission of students in a minority institution
