1. The petitioner is a society registered under the Karnataka Societies Registration Act, 1960. It is alleged that it was founded by people of Kerala who speak Malayalam as their mother-tongue and that all its members and office-bearers on the Board of Management of the Society belong to this linguistic group which constitutes a linguistic group which constitutes a linguistic minority in the City of Bangalore particularly, and generally in the rest of the State of Karnataka. The Society, according to the assertion made was founded in the month of March, 1978, with the sole object of serving the interest of the linguistic group, the main object being to promote the educational, cultural and other interests of the aforesaid group residing in the State of Karnataka, particularly in the City of Bangalore. In support of this assertion, the petitioner-society has produced the memorandum of association and bye-laws which has been certified by the Registrar of Societies in Karnataka on 17-3-1978 in proof of its due formation. The copy of the memorandum of association and bye-laws is annexed to the petition as Exhibit-B. The founders of the Society felt the need to start a Teachers Training Institute in order to serve the interest of their linguistic minority students who were poor, down-trodden and who could not get admitted to other Teachers Training Institutes in the City inasmuch as the said other Institutes would demand heavy capitation fees or donations for admission into those Institutes. The petitioner-Society, therefore, started what is styled as 'Maxmuller Teachers Training Institute' at a suitable, well equipped building at Neelakanta Mudaliar Road, Murphy town. Ulsoor, Bangalore City. The said building is stated to be taken on lease. It is further averred by the Society that they have equipped the aforementioned Institute with the laboratory at a huge cost. The said Training Institute is owned by the Society to serve the linguistic minority to which reference has already been made. It is further averred by the Society that the Teachers Course Higher Examination conducted by the Karnataka Secondary Education Examination Board is for a duration of two years consisting 1st and 2nd year courses. At the end of each year, a public examination is held by the 3rd respondent (hereinafter referred to as the Board). The successful candidates are issued certificates known as 'T. C. H.' certificates which make them eligible for appointment to the posts of primary school teachers.
2. It has been averred that on 25-6-1978 an application was given for recognition of the Teachers Training Institute to respondent-2 by the petitioner Society. In the said representation, the Society agreed to adhere to the standards prescribed by the Department under 'Uniform Grant-in-Aid Code' for primary school teachers training Institute in the State of Karnataka (hereinafter referred to as the Code). The Society further undertook to maintain strict discipline and to start the course to serve the linguistic minority, speaking Malayalam. It is further averred that 2nd respondent-Additional Director of Public Instruction, was convinced of the desire and needs of the Society and was of the view that the Society was competent to start the school when the matter was discussed with him. The petitioner-Society has further averred that, at that discussion, it was brought to the notice of the 2nd respondent that the Society was guaranteed its fundamental rights to start the institution under Article 30 of the Constitution of India. It is also averred that 2nd respondent assured that necessary recognition would be given and the course may be started. The application for recognition has been produced as Exhibit-C to the petition. On the oral assurance of 2nd respondent the Society received the applications from intending candidates and began to conduct classes in the Teachers Course Higher Examination (hereinafter referred to as the Course). The classes were commenced from 1-7-1978. In that behalf, highly qualified teachers to train the students were appointed. The rules contained in the Code for primary school teachers in the State of Karnataka were also observed. The Society has alleged that there has been no breach of any of the provisions of the Code aforementioned and the institution has maintained a high standard. The institution had 136 students in the first year course on its roll for the academic year 1978-79, of which, 134 students spoke Malayalam and two other students Tamil or Telugu as their mother-tongue.
3. No written orders were passed by the 2nd respondent on the application for recognition as per Exhibit-C to the petition. However, a notice was published in Deccan Herald bearing date 25-7-1978 stating that the Institute of the Society had not been recognised by the Department. On the said publication, a representation was given by the Society to 2nd respondent by registered post reiterating their earlier request for recognition, even though a similar representation was given bearing the date 24-7-1978 before publication of the notice by 2nd respondent. In the said representation, it was brought to the notice of the 2nd respondent that Two Training Institutes imparting instructions in the Course had been closed down and therefore recognition should be accorded to the petitioner-Society. However, even without reference to the letter of representation, but in response to the original request of the Society for recognition, by a letter dated 24-7-1978 a true copy of which is annexed to the petition as Exhibit-F, the 2nd respondent intimated that there were more number of Training Institutes in the State than required and therefore the policy of the Government was not to permit starting any more teachers training Institutes. The Society has averred that this was an irrelevant consideration for not according the recognition to its institution, overlooking its fundamental right to start the same and also the said policy of the Government was not true inasmuch as recognition was accorded on 31-8-1978 to one Venkatesha Education Society to start a teachers training Institute. A copy of that sanction or approval of the Government has been produced as Exhibit-G to the petition. Aggrieved by the refusal to grant recognition, as per Exhibit-F, on the ground that there was no further need for additional Teachers Training Institute in the State, the petitioner-Society has approached this Court under Art. 226(1)(b) and (c) of the Constitution for redressal, inter alia, contending that the aforementioned failure to give recognition was violative of the fundamental right of the petitioner-Society guaranteed under Article 30(1) of the Constitution and further that refusal of recognition was on irrelevant and non-existent grounds.
4. It is appropriate at this juncture to mention that the petition was filed on 27-12-1978 and the institution run by the Society was imparting instruction in the course to the students admitted for the academic year 1978-79 and by an interim order made by this court on 15-3-1979 the students so enrolled and instructed were permitted to take the examination for first year course for the academic year 1978-79. The said order was made by this Court on the undertaking given by the Government Pleader. It has been submitted from the Bar that the results of the students who took the course from this Society-Institution have been withheld.
5. As against these averments and contentions on behalf of the petitioner-Society, the respondents have filed their common statement of objections. It is contended for the respondents that the petitioner-Society is not a minority institution within the meaning of Article 30 of the Constitution of India. It is further contended that the petitioner has not demonstrated that the institution is founded for the purpose of conserving its distinctive language, script or culture. It is further stated that without prejudice to the above contentions the State has overall regulatory powers in the matter of giving aid or recognition to any educational institution in the State and the fundamental rights of the petitioner and the like of it is subject to such regulatory power.
6. It is further stated for the respondents that the petitioner's right to run the educational institution is not an absolute one and the State has the power to consider, inter alia, as to whether there is a need to establish a particular institution in a given case. It is averred for the respondents that the State is entitled to consider, in deciding the need, to establish the institution, an unhealthy competition that may result and bring about a dilution of the Teachers Training Institute Programme and therefore the respondents have reasserted that permission was not granted for starting the institution of the petitioner in order to prevent unhealthy competition amongst the various teachers training institutes in the State. It is further contended for the respondents that the petitioner not having followed the procedure prescribed in Rule 7 of the Code, the petitioner-Society was not entitled to either permission to start the institution or recognition of the same. It is asserted for the State that two newspaper publications were made, one on 21-7-1978 and another on 8-8-1978 to effect that the petitioner-Society was not permitted to start the Teachers Training Institute.
7. It is appropriate at this stage to notice one of the contentions of the petitioner-Society in so far as it relates to the contention that as a minority institution falling within the ambit of Articles 29 and 30 of the Constitution, the criteria of need prescribed as general conditions under Rule 9 of the Code had no application.
7-A. This contention, prima facie, is based on the proposition that statutory or executive provisions should yield place to the constitutional provisions. This aspect shall be considered in the course of this order a little later.
8. In substance, it has been averred by the respondents that the petitioner-Society started the institution without permission and began to function only by virtue of the Court's order and not with the previous permission of the Department and as such it is not entitled to the recognition which the petitioner-society claims under the Code. There is a prayer for vacating the interim order made by this Court and that does not survive for consideration as the students have taken the examination though the results have been withheld.
9. The respondents in their statement of objections have denied that the petitioner-Society was subjected to hostile discrimination.
10. It is in the light of these rival pleadings and contentions that this petition is required to be disposed of.
11. The 1st question is whether the petitioner-Society is one which can claim its fundamental right under Article 29 and 30 of the Constitution.
12. The learned Government Pleader appearing for the respondents has strongly urged that this Court under Art 226 of the Constitution cannot embark upon an investigation of facts such as finding out whether or not the petitioner-Society is a society formed by a linguistic minority in the State. This contention must be noticed only to be rejected. There is no bar known to law which prevents this Court while exercising its jurisdiction under Article 226 of the Constitution to investigate facts, if necessary. The well settled principle is that if complicated questions of facts are to be decided, it will relegate the parties to have such facts investigated and decided before appropriate forum or have the same investigated by the appropriate authority or forum on the direction of the High Court itself. Particularly when the matter relates to enforcement of fundamental rights, this Court's jurisdiction under Article 226 is unfettered. What the petitioner-Society in this proceeding is seeking by way of relief is to enforce its fundamental right. Once the petitioner-Society has produced its memorandum of association and certificate of incorporation under the relevant statute of the State, it will not be open to the respondents to contend that there is any further burden cast on the petitioner to prove that it is a minority institution. In Article 2 of the Memorandum of Association of the Society, it is stated as follows :
'2. The main objects of the Society. (A) To promote educational, cultural, welfare, industrial, technical or other interests of the society including all charitable and benevolent work of the Society and in particular to establish such institutions for Malayalies in the State of Karnataka.'
The term 'Malayalies' occurring in the said Article extracted above, has reference only to the linguistic minority whose mother-tongue is Malayalam. Therefore, the burden of proving that the Society is not a minority institution or the institution which was started by it cannot be regarded as institution for promotion and welfare of the linguistic minority, is shifted to the respondents. Apart from mere assertion in the statement of objections there is no evidence placed before this Court to prove such assertion. Hence, this contention of the learned Government Pleader is rejected and I hold that the petitioner-Society is a Society established for the promotion of education, particularly with reference to the welfare of those who speak Malayalam as their mother-tongue and therefore, the petitioner is a Society established for the promotion and welfare of persons belonging to that linguistic minority.
13. The next question that arises for consideration is whether by the action of the respondents, the petitioner's right to commence a Teachers' Training Institute in the city of Bangalore is violative of Article 30(1) of the Constitution. Article 30(1) reads as follows :
'30(1). All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.'
Both Articles 29 and 30, as well as Article 26 are special features of the Indian Constitution which have found place in the Part containing the fundamental rights of citizens to reflect the oft expressed and emphasised secular character of the Republic of the Union of India.
14. Articles 29 and 30 have been the subject matter of several decisions of the Supreme Court to which I will refer hereinafter chronologically.
15. In the case of State of Bombay v. Bombay Education Society : 1SCR568 , the Supreme Court was considering the ambit of power of the State to prescribe the medium of instructions in the schools in the then State of Bombay. In the said case, the Supreme Court has held:
'Where a minority, like the Anglo-Indian Community, which is based, inter alia. On religion and language, has the fundamental right to conserve its language, script and culture under Article 29(1) and has the right to establish and administer educational institutions of their choice under Article 30(1), surely then there must be implicit in such fundamental right, the right to impart instruction in their own institutions to the children of their own community in their own language. To hold otherwise will be to deprive Article 29(1) and Article 30(1) of the greater parts of their contents. Such being the fundamental right, the police power of the State to determine the medium of instruction must yield to this fundamental right to the extent it is necessary to give effect to it and cannot be permitted to run counter to it.'
16. When the Kerala Education Bill 1957 was referred for opinion of the Supreme Court under Article 143 of the Constitution by the President of the Union of India AIR 1958 SC 956, the Supreme Court per majority held while determining the constitutional validity of clauses 14 and 15 of the said Bill in question as follows :
'But it is impossible to support cls. 14 and 15 of the said Bill as mere regulations. The provisions of those clauses may be totally destructive of the rights under Article 30(1). It is true that the right to aid is not implicit in Art. 30(1) but the provisions of those clauses, if submitted to on account of their factual compulsion as condition of aid, may easily be violative of Article 30(1) of the Constitution.'
17. Next, in the case of Sidhrajbhai v. State of Gujarat (AIR 1963 SC 540) the Supreme Court unanimously held:
'Unlike Article 19, the fundamental to establish and administer educational institutions by minorities guaranteed under clause (1) of Article 30, is absolute in terms: It is not made subject to any reasonable restrictions of the nature the fundamental freedoms enunciated in Article 19 may be subjected to. All minorities, linguistic or religious have by Article 30(1) an absolute right to establish and administer educational institutions of their choice; and any law of executive direction which seeks to infringe the substance of that right under Art. 30(1) would to that extent be void. This, however, is not to say that it is not open to the State to impose regulations upon the exercise of that right. The fundamental freedom is to establish and to administer educational institutions; it is a right to establish and administer what are in truth educational institutions-institutions which cater to the educational needs of the citizens, or sections thereof. Regulations made in the true interests of efficiency of institutions, discipline, health, sanitation, morality, public order and the like may undoubtedly be imposed. Such regulations are not restrictions on the substance of the right which is guaranteed; they secure the proper functioning of the institutions, in matters educational.'
18. More recently in the case of Ahmedabad St. Xaviers College Society v. State of Gujarat : 1SCR173 , the Supreme Court considered the constitutional validity of several sections of the Gujarat University Act (50 of 1959) Chief Justice A. N. Ray (as he then was) along with P. Jaganmohan Reddy, D. G. Palekar, H. R. Khanna, K. K. Mathew, M. H. Beg, S. N. Dwivedi, Y. V. Chandrachud and A. Alagiriswami, JJ., (as they were then) held:
'Article 30(1) covers institutions imparting general secular education. The object of Article 30 is to enable children of minorities to go out in the world fully equipped. It will be wrong to read Article 30(1) as restricting the right of minorities to establish and administer educational institutions of their choice only to cases where such institutions are concerned with language, script or culture of the minorities. Arts. 29 and 30 create two separate rights though it is possible that the rights might meet in a gives case.'
(Underlining is mine)
Contrary view expressed by Venkataramiyer, J., in an earlier case was the minority view.
19. In the case of Lilly Kurian v. Sr. Lewina : 1SCR820 while considering the Kerala University Act (14 of 1957) the Supreme Court has reiterated the ratio decidendi of the earlier cited decisions in the following terms:
'Unlike Article 19(1) of the Constitution the fundamental freedom under Article 30(1) is absolute in terms; it is not made subject to any reasonable restrictions of the nature the fundamental freedoms enunciated in Article 19 may be subjected to. All minorities, linguistic or religious, have by Article 30(1) an absolute right to establish and administer educational institutions of their choice; and any law or executive direction which seeks to infringe the substance of that right under Article 30(1) would to that extent be void.'
(Underlining is mine)
20. In the case of Mark Netto v. Government of Kerala : 1SCR609 a again the Supreme Court while dealing with the Kerala Educational Rules, 1959, has held as follows:
'where the Manager of the Schools belonging to the Roman Catholic Diocese of Trivandrum, applied to the Education Authorities in Kerala for permission to admit girl students in their High School in which, as a matter of fact, only boy students were admitted for the last more than 25 years, although there was already in existence a facility for the education of the girls in the locality (Muslim Girls High School), as the Christian community in the locality wanted their girls also to receive their education in the school of their community, permission cannot be refused under Chapter VI rule 12 (iii), Kerala Education Rules, 1959, as the Rule must be interpreted narrowly and is inapplicable to a minority educational institution.'
(Underlining is mine)
21. From the above enunciation of the law by the Supreme Court, it is crystal clear that neither the State Legislation nor the Rules, executive or legislative, can in any manner curtail the fundamental right of freedom assured to religious or linguistic minority institutions under Articles 29 and 30 of the Constitution. In the instant case, the only case put forward by the respondents is that the petitioner-Institution commenced its Teachers Training Institute without requisite permission in terms of Rule 7 of the Code. Rule 7 of the Code reads as follows :
'7. Procedure for starting and recognition;
(i) Applications for starting a Teachers' Training Institution shall be made in Form No. 1 to the Director of Public Instruction through the Joint Director of Public Instruction of the Division before December of the year previous to that in which the institution is proposed to be started.
(ii) Such application shall be disposed of by the Joint Director if Public Instruction and the Director together within 3 months from the date of receipt of the application and a communication shall be sent to the management intimating whether the permission to start the institution has been granted or otherwise. In the event of refusal of permission to start the institution, reasons for refusal shall be communicated to the management.
(iii) In no case shall an institution be stated without the previous permission of the Department. Recognition and aid shall not be granted to an institution, which has been started without previous permission.'
The Society was given oral permission to start the institution by the 2nd respondent at the discussion the petitioner had with him with reference to Exhibit-C. This has been denied in the statement of objections filed on behalf of the respondents. Even as evidence by the letter of the 2nd respondent dated 24-7-1978 (Exhibit-F), the only reason given for not according the permission is that the Government did not want too many teachers training Institutions as a matter of policy. Strangely enough, whatever be the circumstances, as evidenced by Exhibit-G, Venkatesha Educational Society, Bangalore, was given permission to start a Teachers Training Institute, in the very same year in which the petitioner-Society applied for permission to start its Teachers Training Institute. Though this has been specifically averred by the petitioner-Society in its pleadings, the respondents have not chosen to meet this glaring unequal treatment meted out to the petitioner's institution not only similarly situated but being an institution run by linguistic minority group except by a feeble statement, that no such discrimination has been made. This is sufficient proof that the respondents have not followed any revised policy and perhaps no such policy exists. No material has been placed before this Court from which a different conclusion can be drawn. This Court cannot therefore reasonably infer that the Government at the appropriate level had taken a policy decision in this behalf i.e., not to permit any more Teachers Training Institutes in the State of Karnataka. This really has no relevance when viewed in the light of the settled questions of law applicable to minority institutions. Rule 7 is a mere formality where such institutions are concerned and the rule has to be read down to yield place to constitutional guarantee.
22. In a society in which the population increases at an alarming rate and the need for educating children at primary school level is ever on the increase, it is impossible to believe that State would come in the way of Teachers Training Institute, training personnel to impart primary education of its children.
23. For the above reasons, it is clear that the code which is but mere administrative instructions cannot be so read and so strictly that the right of the petitioner-Society and the like, guaranteed fundamental rights under Articles 29 and 30 of the Constitution would get whittled-down to mean nothing. As already noticed in the decided cases of the Supreme Court even reasonable restrictions cannot be imposed on a minority institution except to the extent of maintaining general educational standards, health and hygiene of the students, much less deny them the right to start the school or the institution itself.
24. In this view of the matter, the petitioner-Society is entitled to succeed and in the result the letter of respondent-2 Exhibit-F, dated 24-7-1978, is quashed by a writ of certiorari, as one being without the authority of law, without jurisdiction and as opposed to Article 30(1) of the Constitution of India.
25. Further a writ of mandamus will issue to accord recognition to the petitioner-Society to run Teachers Training Institute in terms of Rr. 7 and 9 of the Code and all other consequential benefits that may flow from such recognition. It is further directed as a logical consequence, that the results now withheld for first year examination in respect of the students of this institution for the academic year 1978-79 shall forthwith, be announced.
26. However, in view of the relief granted by this court, there is no need to consider the petitioner's prayer to strike down Rule 9(1) of the code which ought to be read down in order to ensure that the fundamental rights guaranteed under Article 30(1) of the Constitution, should prevail. In any event, Rule 9(1) of the Code is a mere administrative direction having no statutory force. This Court under Article 226 of the Constitution need not strike it down, as no right or disability accrues to the petitioner by the said rule.
27. In the circumstances of the case, the petitioner-Society is entitled to its costs. Advocate's fee Rs. 250/-. It is accordingly ordered.
28. Order accordingly.