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Manonmaniam Sundaranar University And Others v. Kumaragurubara Swamigal Arts College And Others

Madras High Court

Jul 11, 1997

Judgment

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Structured Summary of the Opinion delivered by AR. Lakshmanan, J.

Factual and Procedural Background

This writ appeal arises from a dispute between Manonmaniam Sundaranar University (appellants: Registrar, Vice‑Chancellor and Controller of Examinations) and the 1st respondent college (affiliated to the University) concerning the college's admission practice for certain M.Sc. courses.

The University alleged that, following the Supreme Court's decision in Unni Krishnan, admissions in colleges receiving 100% government grant must be on the basis of merit (subject to statutory reservation). After receiving complaints, the University constituted Inspection Commissions to inquire into admissions at several colleges, including the 1st respondent. The Commission found that 50% of seats in M.Sc. Physics and Chemistry were not filled solely on merit: an interview for 25 marks testing knowledge of "Saiva Siddantha" was used alongside examination marks.

The University Syndicate resolved (25‑10‑1993) that allotting 25 marks for knowledge of Saiva Siddhanta was unacceptable and contrary to admission norms; it advised the college accordingly. The college challenged the University’s action by filing W.P. No. 19833/93.

The 1st respondent college was established by Sri Kasi Mutt and, in an earlier civil suit (O.S. No. 18/85 on the file of the Sub‑Judge, Kumbakonam), obtained a decree declaring it to be a religious denomination within the meaning of Art. 26 of the Constitution. That civil decree was later affirmed in A.S. No. 62/86 and no second appeal was pursued by the State.

Before the writ petition was finally decided, Bakthavatsalam, J. (High Court) by order dated 17‑11‑1993 granted interim relief directing the students to be permitted to write examinations; the University allowed them to sit without prejudice. On 19‑11‑1993 the learned single Judge held the 1st respondent College was entitled to rights under Art. 30 of the Constitution and that it was unnecessary to decide whether Saiva Siddhanta is a religion. The University appealed against that order; the present judgment is the disposal of that writ appeal.

Legal Issues Presented

Whether the 1st respondent college is entitled to the protections and privileges under Article 30 of the Constitution (minority educational institution rights) such that its admissions (up to 50%) can be made on community/denominational preferences rather than strictly on merit.
Whether the prior civil decree (O.S. No. 18/85) declaring the Sri Kasi Mutt / 1st respondent institution to be a religious denomination is valid and binding on the parties, or whether that decree is a nullity.
Whether the University was justified in treating the allotment of 25 marks in an admission interview (testing knowledge of Saiva Siddhanta) as illegal and in setting aside admissions made on that basis.
Whether decisions of the Supreme Court (including Bramchari, St. Stephen's, Unni Krishnan, Thapar, and Kashi Vishwanath cases) affect or invalidate the prior civil decree or otherwise govern the validity of the college's admission practice.

Arguments of the Parties

Appellants' (University) Arguments — Mr. K. Chandru

The declaration granted under Art. 26 (by the Sub‑Court) does not automatically entitle the institution to claim rights under Art. 30.
Institutions receiving 100% government aid must make admissions strictly on merit (subject to reservation), in line with Unni Krishnan and related cases; colleges cannot deviate from merit criteria.
The 1st respondent had no reliable method to identify students who genuinely belonged to "Saiva Siddhanta"; therefore admissions based on the interview were not limited to bona fide members of the denomination.
Allocating 25 marks for an interview assessing knowledge of Saiva Siddhanta was illegal and arbitrary and ran counter to the law in St. Stephen's College and other authorities.
The decree in O.S. No. 18/85 is a nullity (citing Kiran Singh and related authorities) and so cannot be relied upon now.
The writ appeal is not infructuous because the University (an institution) continues to challenge the judge's order, and the subject matter survives (students permitted to sit exams and later left college does not extinguish the cause of action).

Respondents' (1st Respondent College and its Counsel) Arguments — Mr. G. Subramaniam

The nullity of the civil decree in O.S. No. 18/85 was not an issue before the learned single Judge and was not raised in the University’s counter‑affidavit; the decree was granted after contested proceedings and was confirmed on appeal (A.S. No. 62/86) without further challenge.
Saiva Siddhanta constitutes a separate religious denomination for the purposes of Arts. 25, 26 and 30 (the college was established by Sri Kasi Mutt), and the institution has claimed Art. 26/30 rights in the civil suit and succeeded inter partes.
Supreme Court decisions cited by the University (including Bramchari and the Kashi Vishwanath case) have no retrospective effect that would annul a judgment already concluded by a competent civil court between the same parties; inter partes judgments bind the parties.
The interview system adopted by the college did not confer an unlimited discretion to pick candidates; the learned single Judge found nothing on record to show the interview was contrary to principles laid down in earlier decisions. No candidate denied a seat challenged the college's norms, suggesting absence of aggrievement.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court in this Case
Bramchari Sidheswar Shai v. State of West Bengal, (1995) 4 SCC 646; AIR 1995 SC 2089	The Supreme Court held that followers of Ramakrishna cannot be treated as a separate minority religion distinct from Hinduism for Art. 30(1); they can, however, be a religious denomination within Hinduism under Art. 26.	The High Court considered Bramchari but held it did not affect the finality of the civil court decree in O.S. 18/85; the court found the Bramchari ratio irrelevant to annulling concluded judgments between parties in this case.
Sri A.V.K.V. Temple v. State of U.P., 1997 (4) JT 124 (Kashi Vishwanath case)	The Supreme Court held devotees of Lord Vishwanath (Shaiva form) are part of Hindu religion and not a denominational sect for purposes of Art. 26 protection in matters of management; the Act impugned did not offend Arts. 25 and 26.	The Bench considered the decision, found it distinguishable on facts, and held it did not apply to the present matter; the court did not accept the University’s reliance on it to invalidate the civil decree or to resolve the present dispute.
Kiran Singh v. Chaman Paswan, AIR 1954 SC 340	Principle that a decree passed by a court without jurisdiction is a nullity and such a defect cannot be cured; a nullity can be set up whenever the decree is sought to be enforced.	The University invoked this authority to argue the Sub‑Court decree was a nullity. The High Court found the nullity point was not raised earlier, the decree had been affirmed on appeal, and thus the University could not now challenge the decree as a nullity at this stage; the contention was dismissed.
Little Flower Teacher Training Institutes for Men and Women etc. v. State of Tamil Nadu, 1993 Writ LR 534	Holds that when a civil court grants a decree, that decree (if a nullity in context of recognition) cannot be enforced; civil court should not have proceeded to grant recognition and such decrees may be ineffective.	The Court observed that Little Flower concerns civil courts granting recognition and thus is distinguishable; it concluded that those rulings did not apply to the present facts and therefore were not of assistance to the University.
St. John's Teachers Training Institute v. State of Tamil Nadu, (1993) 3 SCC 595; AIR 1994 SC 43	The State may impose conditions for recognition of minority teachers' training institutions; institutions granted temporary recognition must comply with rules for permanent recognition; such regulation is not violative of Arts. 14 and 30(1).	The Bench cited the case to indicate that the State may determine requirements and conditions; it considered this principle in assessing the University's concern for academic standards but ultimately found the particular challenge to the college's interview marks unsustainable in these proceedings.
Thapar Institution of Engineering and Technology v. State of Punjab, 1997 (2) SCC 65; AIR 1997 SC 793	Affirmed that aided institutions cannot deviate from merit criteria subject to reservation imposed by the State.	The University relied on this authority to support its strict‑merit argument. The High Court acknowledged the principle but, in the facts of this case (including the final civil decree and the manner in which admissions were conducted), found the University's challenge did not prevail.
Unni Krishnan J.P. v. State of A.P., (1993) 1 SCC 645; AIR 1993 SC 2178	No quota can be reserved for management/family; state authorities granting recognition/affiliation must impose conditions to ensure standards and fair admissions; obligation arises under Art. 14.	The Court acknowledged Unni Krishnan as the foundation for merit‑based admissions in aided institutions but applied it in context: while general principles support merit, the existence of a final civil decree and the factual record led the High Court to uphold the single Judge's order in favor of the college's admissions in this case.
St. Stephen's College v. University of Delhi, (1992) 1 SCC 558; AIR 1992 SC 1630	Minority aided educational institutions may prefer community candidates to maintain minority character, but such intake shall not exceed 50% and must conform to university standards.	The High Court relied on St. Stephen's to explain limits on preference for minority institutions; it found that the 1st respondent, in view of the civil decree declaring denominational status, had rights to admission up to 50% of its choice subject to compliance with standards, and no challenged candidate had come forward to dispute the norms in this case.
Mohanlal v. Benoy Krishna, AIR 1953 SC 65	A decision in a prior execution case between parties, even if erroneous, is binding inter partes; an erroneous judgment can operate as res judicata between the parties.	The Court invoked this principle to support the binding effect of the earlier civil decree and to hold that the University could not now avoid a decree that had become final between the parties.
P.S.E. Board, Patiala v. Ashok Kumar Sehgal, 1990 Lab IC 249	Principles of law culled out from a Supreme Court judgment are declaratory for the nation; the effective order of the Supreme Court is binding on the parties to that case.	The Bench referred to this principle when discussing the prospective or retrospective operation of Supreme Court decisions and the limited effect of a judgment's operative order (binding inter partes) versus its declaratory ratio; this supported the conclusion that the prior civil decree stood despite subsequent Supreme Court pronouncements.

Court's Reasoning and Analysis

The Court structured its analysis along these principal lines:

Finality and binding effect of the civil decree (O.S. No. 18/85 and A.S. No. 62/86): The Court emphasised that the Sub‑Court had, after contested proceedings with evidence from both sides, granted a decree declaring the Sri Kasi Mutt/1st respondent as a religious denomination and restraining the State from applying certain provisions of the Tamil Nadu Private Colleges (Regulation) Act, 1976. That decree had been affirmed by the Appellate Court in A.S. No. 62/86 and no second appeal was filed. The University did not challenge the decree's validity in its counter‑affidavit before the learned single Judge, and attempts by the University to be impleaded in the appeal were dismissed. On this basis the Court concluded the decree had become final and binding inter partes; the University could not, at this late stage, successfully contend the decree was a nullity.
Effect of subsequent Supreme Court authorities: The Court considered the judgments relied upon by the University (including Bramchari, the Kashi Vishwanath case, Thapar, Unni Krishnan and St. Stephen's). It analysed what each authority decided and whether those decisions could be applied to nullify or alter the already concluded civil litigation between the same parties. The Court observed that some of the Supreme Court decisions clarify constitutional principles (for instance, the limits on preference for minority institutions and the requirement of conformity with university standards), but held that those decisions did not have the effect of annulling a civil court decree which had become final between opposing parties who had contested the matter.
Jurisdiction/nullity point: The University’s contention that the Sub‑Court decree was a nullity was rejected for two principal reasons drawn from the record and law: (a) the University had not raised the point earlier before the single Judge; (b) the decree had been confirmed in the appellate court and no further statutory remedy had been pursued, so the point could not be entertained now. The Court relied on authorities establishing that a nullity point must be properly raised and that a decree which has attained finality by ordinary appellate processes is binding between the parties.
Admission procedure and the interview: On the merits of the University's complaint about the interview system, the Court accepted the learned single Judge's factual finding that there was nothing on record to indicate the interview was conducted contrary to legal principles cited by the single Judge. The Court remarked that while an interview system per se was not illegal, prescribing 25 marks specifically to test knowledge of "Saiva Siddantha" appeared arbitrary and against certain Supreme Court dicta. Nevertheless, the students admitted under that system had completed their courses and left the college. The Court declined to penalise those students for the alleged mistakes of the college.
Balancing of interests and relief: The Court balanced the University's interest in maintaining academic standards and the institutional finality of the civil decree and the rights claimed by the college. Because the civil decree was final, and in absence of a direct statutory or procedural violation shown by the University affecting the approvals or affiliation, the Court upheld the single Judge’s order setting aside the University's direction and confirmed the approval of admissions by the college.

Holding and Implications

Holding:

APPEAL DISMISSED. The High Court confirmed the order of the learned single Judge (Bakthavatsalam, J.) that the 1st respondent college is entitled to rights under Article 30 of the Constitution (as applied in the case) and that it was unnecessary at that stage to decide whether Saiva Siddhanta is a religion. The single Judge’s order setting aside the University’s action and approving the admissions was confirmed. There was no order as to costs. W.M.P. No. 3088 of 1994 was dismissed.

Implications:

The immediate effect is that the University’s challenge to the 1st respondent's admissions (including the allotment of 25 marks for an interview on Saiva Siddhanta) was rejected in these proceedings; the single Judge's direction to approve the admissions stands.
The Court gave weight to the finality of the civil court decree (O.S. No. 18/85 affirmed in A.S. No. 62/86) declaring denominational status; because that decree was final between the parties, later Supreme Court rulings relied upon by the University did not invalidate the concluded judgment between the parties in this case.
The Court noted a tension between the general principle (as in Unni Krishnan and Thapar) that aided colleges should follow merit subject to reservations, and the special rights arising from a final inter partes civil decree recognizing denominational status; in this factual matrix the final civil decree controlled the outcome between these parties.
The Court expressly avoided deciding whether Saiva Siddhanta is a religion; it treated that question as unnecessary for the disposal of the appeal.
If no broader precedent was set beyond application of established principles of res judicata, finality and the limits of retrospective application of Supreme Court rulings, the judgment leaves intact the direct effect on these parties (the college's admissions were approved and the appeal was dismissed) and does not purport to create a new general rule beyond the application of settled principles to the facts.

If any specific piece of information (for example, procedural filings or detailed transcripts of evidence) is not referred to in the opinion text, it has not been included here in order to preserve fidelity to the source material.

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The Judgment of the Court was delivered by

AR. Lakshmanan, J.:— This writ appeal is directed against the order of Bakthavatsalam, J. in W.P No. 19833/93 dated 19-11-1993 holding that the 1st respondent College is entitled to the rights under Art. 30 of the Constitution of India and that the question whether Saiva Siddhanta is a religion need not be decided. This appeal is filed by the Registrar, Vice-Chancellor and the Controller of Examinations of Manonamaniam Sundaranar University, Tirunelveli. The 1st respondent College, by virtue of Section 1 of the Manonmaniam Sundaranar University Act stands affiliated to the appellant-University. The University has been concerned with the maintenance of the academic standards. According to the University, after the judgment of the Supreme Court in Unnikrishnan's case College receiving 100% grant from the Government, will have to make admissions on the basis of merit subject to the rule of reservation alone. It is their case that several complaints were received by the University from various sections of public and students and in respect of several colleges Inspection Commiossions were therefore, sent to enquire into the complaints. The 1st respondent College was also one of the colleges in respect of which complaints were received and the Inspection Commission consisting of academicians was set up to go into the complaints. The Inspection Commission gave the first respondent College adequate notice and also afforded the opportunity of being heard. The Inspection Commission found that for 50% of the seats to M.Sc Physics and Chemistry courses the admissions were not on the basis of the merit. An interview was held for 25 marks to test the knowledge of Saiva Siddantha and admissions were given on the basis of marks in the examination as well as interview. The report of the Commission was considered by the Syndicate on 25-10-1993 and it was resolved that the admissions made on the basis of allotment of 25 marks for the knowledge of Saiva Siddantha was not acceptable to the University as it was against the norms of admissions. The 1st respondent college was advised accordingly. Against this, the 1st respondent filed W.P No. 19833/93.

2. The 1st respondent Coliege was established by Sri Kasi Mutt which was granted a declaration by the Court of Sub-Judge, Kumbakonam that it is a religious denomination within the meaning of Art. 26 of the Constitution of India. The 1st respondent College contended that the admissions to the extent of 50% could be made on the basis of academic performance as well as the performance in the interview. The University filed a counter-affidavit contending that the declaration obtained was only to the effect that the Tamilnadu Private Colleges (Regulation) Act, 1976 would not apply. The provisions of the Manonmaniam Sundaranar University Act will apply to the 1st respondent College. The admissions made allotting 25 marks for the interview was clearly contrary to the rule of merit and there was nothing illegal in setting aside the admission. The University further contended that a declaration under Art. 26 would not enable the 1st respondent College to claim the privileges under Art. 30 of the Constitution of India. Further even assuming without admitting that Saiva Siddantha constituted a minority, the Hon'ble Supreme Court in St. Stephen College's case had already laid down that the reservation to the extent of 50% was available only to the students belonging to the minority community by which the College had been established. The University contended that the Supreme Court in TMA Pai Foundation's case had disagreed with the view that the minority institution could adopt its own selection procedure and had referred the issue to a larger bench. The University was concerned with academic standards and wanted to ensure that admissions were made only on the basis of merit. Two students filed applications to implead themselves in the above writ petition. The State was also impleaded along with the students. Bakthavatsalam, J. by order dated 17-11-1993 granted interim stay and directed the students to write the examinations. Without prejudice to its rights, the University permitted the students to write the examinations. Thereafter, the order in the writ petition was pronounced. Aggrieved by the same, the University has filed the Writ Appeal. According to the University, if the rule on merit is not followed while making admissions it is bound to lead to fall in academic standards. If the students who were selected on the basis of marks in the examination as well as in interview were allowed to pursue their course, then great prejudice will be caused to the University. The University therefore prayed that the order of the learned Judge impugned in this writ appeal has to be set aside.

3. We have heard Mr. K. Chandru, counsel for the appellants, Mr. G. Subramaniam, Senior Counsel for the respondents 1 to 3 and Mr. K.P.M Thulasiraman, Special Government Pleader (E) of the 4th respondent.

4. Mr. K. Chandru, learned counsel for the appellants contended that the declaration granted to the 1st respondent under Art. 26 will not enable the institution to claim the rights under Art. 30 of the Constitution. According to the counsel the admissions to courses in institutions receiving cent per cent aid from the Government should be only on the basis of merit and that admitting students with inferior marks is violative of the law laid down in the case of Unnikrishnan and other cases. In other words, the colleges receiving the aid, cannot deviate from merit criteria subject to the rule of reservation imposed by the State. It is also urged that the 1st respondent had no method of identifying the persons belonging to Saiva Siddhanta religion and the admission made were not of students belonging to the religion. Hence, the admissions to the extent of 50% made not on the basis of the merit was clearly contrary to the law laid down by the Supreme Court in the case of St. Stephen's College. In any event, the allotment of 25 marks in the inverview was clearly illegal. According to Mr. Chandru, the 1st respondent is not a minority institution and even if it is a minority institution, the test is only testing the religious faith of the boy seeking admission to inter se merit among teh minorities. It is submitted that the University authority can insist certain norms and that the University can question the admissions if it is not made in accordance with the merit. In reply to the argument made by Mr. G. Subramaniam, Mr. Chandru said that the writ petition has not become infructuous since the students were permitted to sit for the examination and they also left the college after completion of studies. According to him, subject matter of cause of action still survives and it is an institution which challenges the order and not the students and therefore, the writ appellant can continuing the cause of action. In conclusion, Mr. Chandru said that the decree passed by the learned Subordinate Judge. Kumbakonam in O.S No. 18/85 declaring the first respondent institution is a nullity.

5. Mr. Chandru invited our attention to the conditions of affiliation to be strictly followed by the colleges of Arts and Science and Education which are affiliated with the University particularly a reference made to condition No. VII which reads thus:—

“With reference to the admission of students in any college (except minority) the admission should be strictly on merit basis subject to the reservations made for SC, ST., M.B.C, B.C and Physically Handicapped students.”

6. He also drew out attention to the letter dated 16-6-1993 of the Registrar of the University addressed to the Principals of P.G Colleges and all the Heads of Department of University requesting them to strictly adhere to the norms prescribed by the University while making admission to various PG courses. Norms No. 1 runs as follows:—

“For admission to M.Sc degree course a candidate should have secured at least 55 % of marks in Part III of B.Sc in the particular subject. Hence admission should not be made for those who have secured less than 55% of marks in Part III of B.Sc In the case of candidates belonging to SC/ST minimum marks in Part III of B.Sc degree in the concerned subject can be reduced from 55% to 45%.”

7. Next he drew our attention to the Minutes of the meeting held on 20-7-1993. The admission committee consists of Mr. D. Ramalingam, Mr. V. Ponnuthirumalai and Mr. K. Chinnathambi. They prescribed the following guidelines for admission to First M.Sc Chemistry.

“1. Attempt cases are not considered for admission.

2. Break of study for one year is permitted. Break of study for 2 or more years is not to be considered for admission.

3. Students of our college are to be provided with 5% of marks.”

8. In support of his contentions Mr. Chandru cited the following rulings reported in (1995) 4 SCC 646 : (AIR 1995 SC 2089) Bramchari Sideswar Shai v. State of West Bengal; JT 1997 (4) SC 124, Sri A.V.K.V Temple v. The State of U.P, 1992 (2) LLJ 31 (sic) AIR 1954 SC 340 : (1954 All LJ 551), Kiran Singh v. Chaman Paswan; 1993 Writ LR 534 Little Flower Teacher Training Institutes for Men and Women Etc. v. The State of Tamil Nadu; (1993) 3 SCC 595 : (AIR 1995 SC 43) St. John's Teachers Training Institute v. State of Tamil Nadu.

9. Arguing contra, Mr. G. Subramaniam, Senior counsel submitted the following by way of reply:—

(a) Nullity of decree obtained in O.S No. 18/85 on the file of sub-Court, Kumbakonam is not an issue before the learned single Judge in W.P

(b) Saiva Siddantha is a separate religious denomination by itself.

(c) Judgment cited and reported in 1995 (4) SCC 646 : (AIR 1995 SC 2089) and 1997 (4) Jt 124 have no retrospective effect

(d) Judgment rendered inter partes that is between the 1st respondent herein and the Education Department of the State of Tamil Nadu in O.S 18/95 is binding on both sides. Even a bad law is binding on inter partes.

10. In support of his contention Mr. G. Subramaniam cited the following judgments reported in AIR 1952 Mad 613 : AIR 1954 SC 282 : AIR 1953 SC 65 : (1986) 2 SCC 709 : AIR 1986 SC 1440 : (1986 Cri LJ 1074) : 1996 (1) CTC 313 (sic) and 1990 LIC 249.

11. We shall now advert to the decisions cited by Mr. K. Chandru, counsel for the appellants, reported in 1995 (4) SCC 646 and 1997 (4) JT 124.

12. 1995 (4) SCC 646 : (AIR 1995 SC 2089) Bramchari Sidheswar Shai v. State of West Bengal:— It was decided by the Supreme Court on 2nd July, 1995. The question before the Supreme Court was the substainability of the common judgment of the Division Bench of the Calcutta High Court rendered in appeals preferred against the dismissal of a writ petition by a learned single Judge of the same High Court by which the claim of the followers of Ramakrishna that an educational institution established and administered by their Ramakrishna Mission receives protection under Art. 30(1) of the Constitution of India being an educational institution established and administered in exercise of their fundamental right as a minority based on religion and under Art. 26(a) of the Constitution of India being an educational institution established and maintained in exercise of their fundamental rights as a religious denomination or a Section thereof, is upheld.

13. The above question arose for consideration in the appeals filed against the judgment. A learned single Judge of the High Court dismissed the writ petition and quashed the notices issued by the Calcutta University to the Ramkrishna Mission for reconstituting the Governing Bodies of its colleges, on the view that Ramakrishna Mission College and other colleges of Ramakrishna Mission since established and administered by Ramakrishna Mission, comprised of the followers of Ramakrishna religion being protected under Art. 30(1) of the Constitution, the provisions in West Bengal Act of 1975 and West Bengal Act of 1978 did not apply. However, he did not accept the claim of the Ramakrishna Mission that Art. 26(a) of the Constitution enabled the Mission to establish educational institutions as a religious denomination. Aggrieved against the order of dismissal of their writ petition by the learned single Judge and of quashing of the notices for reconstitution the governing bodies of certain colleges of the Ramakrishna Mission preferred a Writ Appeal against that order. The State of West Bengal and Calcutta University who also fell aggrived by the said Order of the learned single Judge filed separate appeals questioning its correctness. A Division Bench of the High Court, clubbed those writ appeals and heard them together dismissed all of them by a common judgment having expressed its agreement with the learned single Judge that the Ramakrishna Mission comprised of followers of Ramakrishna, being a minority based on religion, was protected under Art. 30(1) of the Constitution and also its disargeement with the view that Art. 26(a) of the Constitution did not protect the Ramakrishna Mission from establishing educational institutions as a religious denomination. The present appeals are those filed against the said judgment of the Division Bench by the appellants in the Writ Appeals. The Supreme Court held that the citizens of India residing in the State of West Bengal, who are professing, practising or propagating the religious doctrines and teachings of Ramakrishna and have become his followers, cannot claim to belong to a minority based on Ramakrishna religion which was distinct and different from Hindu religion and as such, are not entitled to the fundamental right under Art. 30(1) of the Constitution of India, of establishing and administering educational institutions of their choice through Ramakrishna Mission or its branches in that State and answer Point No. 1 accordingly in the negative.

14. The Supreme Court also held that persons belonging to or owing their allegiance to Ramakrishna Mission or Ramakrishna Math belong to a religious denomination within Hindu religion or a Section thereof as would entitle them to claim the fundamental rights conferred on either of them under Art. 26 of the Constitution of India and answered Point No. 2 accordingly in the affirmative.

15. The Supreme Court held that the persons belonging to or owing allegiance to Ramakrishna Mission as followers of Ramakrishna have a fundamental right of establishing and maintaining institutions for a charitable purpose under Art. 26(a) of the Constitution of India, subject, of course, to public order, morality and health envisaged in that very article.

16. While considering the question as to whether the educational institution established by and maintained by Ramakrishna Mission be regarded as an institution established and maintained for charitable purpose within the meaning of Art. 26(a) of the Constitution of India, the Supreme Court has observed that there is no need to go to the question that there has been infringement by the Government of Ramakrishna Mission's fundamental rights to establish and maintain educational institutions under Art. 26(a) of the Constitution of India, inasmuch as such a question does not arise, in view of the answer already given by them on Point No. 3 above. In the result, the Supreme Court dismissed all the appeals however by setting aside the holding of the learned single Judge in the writ petition that Ramakrishna religion being a relegion distinct and separate from Hindu religion was a minority in West Bengal based on religion, entitled to protection under Art. 30(1) of the Constitution of India as upheld by the Division Bench of the High Court in its judgment deciding the appeals before it and also by setting aside the holding of the Division Bench of the High Court Ramakrishna Mission as a religious denomination was entitled to establish and maintain institutions of general education under Art. 26(a) of the Constitution of India as those established and maintained for a charitable purpose.

17. 1997 (4) JT 124 Sri A.V.K.V Temple v. State of U.P This case was decided on 14-3-1997 by the Hon'ble Supreme Court. The question before the Supreme Court was whether Sri Kashi Vishwanath Temple is a denominational temple and whether the Act interferes with freedom of conscience and the right to profess, practice and to propagate religion of one's choice and whether the devotees of Lord Viswanath are members of religious denomination and shall have the fundamental right to manage its affairs in the matter of religion guaranteed under Arts. 25 and 26 of the Constitution or to administer the properties of the temple in accordance with law. The Act has merely changed the management from Pandas to the Board. The Court held that the entrustment of management cannot be said to constitute acquisition of the property or extinguishment of right to property. The Supreme Court held as the question relates to only administration of properties belonging to the religious group or institution, and that they are not matters of religion to which Art. 25 or 26 gets attracted. Art. 26 does not protect the right to management and they are not entitled to the management.

“Thus, it could be seen that every Hindu whether a believer of Shaiva form of worship or of pancharatna form of worship, has a right of entry into the Hindu temple and worship the Deity. Therefore, the Hindu believers of Shaiva form of worship are not denominational worshippers. They are part of the Hindu religious form of worship. The Act protects the right to perform worship, rituals or ceremonies in accordance with established custom and practices. Every Hindu has right to enter the Temple, touch Linga of Lord Sri Vishwanath and himself perform the worship. The State is required under the Act to protect the religious practices of Hindu form of worship of Lord Vishwanath, be it in any form, in accordance with Hindu Sastras, the custom or usage obtained in the temple. It is not restricted to any particular denomination or sect. Believers of Shaiva form of worship are not a denominational sect or section of Hindus but they are Hindus as such. They are entitled to the protection under Arts. 25 and 26 of the Constitution. However, they are not entitled to the protection, in particular of clauses (b) and (d) of Art. 26 as a religious denomination in the matter of management, adminsitration and governance of temples under the Act. The Act, therefore, is not ultra vires Arts. 25 and 26 of the Constitution.”

18. AIR 1954 SC 340 : (1954 All LJ 551) Kiran Singh v. Chaman Paswan:— In support of his contention that the judgment of the Subordinate Judge, Kumbakonam in O.S 18/85 is nullity, Mr. Chandru cited the abovesaid decision to the effect that the decree passed by a Court without jurisdiction is a nullity and that its validity could be set up whenever and whereunder it is sought to be enforced or relied upon at the stage of execution and even in collateral proceedings, and that the defect of jurisdiction whether it is pecuniary or territorial or whether it is in respect of the subject-matter of action, stikes at the very authority of the Court to pass any decree and such a defect cannot be cured even by consent of parties.

19. 1993 Writ LR 534. Little Flower Teacher Training Institutes for Men and Women etc. v. State of Tamil Nadu, was cited by the learned counsel for the appellants to the effect that when once the decree of a Civil Court as such is a nullity, the Civil Court has no jurisdiction to decide the question of grant of recognition. The Division Bench said that the Civil Court should have stopped with considering status of the petitioner-institution and giving a declaration to that effect and should not have proceeded to consider the question of granting recognition since it is for the authorities to decide the same. If at all the civil court could only have issued a mandatory injunction directing the authorities to consider the question and pass appropriate orders on the application of the petitioner for recognition. As the decree of the civil court is a nullity, it cannot be enforced in any forum. The respondents are entitled to set up the nullity of the decree at any stage and in any proceedings. In our view, the above two rulings will have no application to the facts of the case on hand. The above two are cases of civil court granting a decree. The court has set aside the decree as nullity on the ground that the Civil Court has no jurisdiction to decide the question of granting recognition. The case on hand stands entitrely on a different footing. We shall advert to at the appropriate stage at the later part of this order. This apart, it is also pertinent to notice before the sub-Court, Kumbakonam, there was no issues relating to jurisdiction. A reading of the judgment would only show that the suit was hotly contested by the State and that finally the sub-Court granted a decree as prayed for.

20. 1993 (3) SCC 595 : (AIR 1994 SC 43) St. John's Teachers Training Institute v. State of Tamil Nadu is a case imposing conditions for recognition of minority Teachers' Training Institutions laid down under Tamil Nadu Minority Schools (Recognition and Payment of Grants) Rules, 1977. The Supreme Court held that it is for the State and not for the Court to determine the requirements of the institutions and Institutions which had been granted temporary recognition before commencement of the Rules also bound to comply with the conditions so as to be entitled for permanent recognition. The Court held that it is not violative of Arts. 14 and 30(1) of the Constitution.

21. 1997 (2) SCC 65 : (AIR 1997 SC 793) Thapar Institution of Engineering and Technology v. State of Punjab was relied on for the purpose that the 1st respondent college, receiving the aid cannot deviate from the merit criteria subject to the rule of reservation imposed by the State.

22. 1993 (1) SCC 645 : (AIR 1993 SC 2178). Unni Krishnan J.P v. State of A.P was also relied on to show that no quota can be reserved for the management or for any family, caste or community which may have established the college. The Supreme Court also laid down that no private educational institution can survive or subsist without recognition and/or affiliation are the authorities of the State. In such a situation, it is obligatory, in the interest of general public upon the authority granting recognition or affiliation to insist upon such conditions as are appropriate to ensure not only education of requisite standard but also fairness and equal treatment in the matter of admission of students. Since the recognising affiliating authority is the State, it is under an obligation to impose such conditions as part of its duty enjoined upon it by Art. 14 of the Constitution.

23. As rightly pointed out by Mr. G. Subramaniam the question of jurisdiction was not an issue before the Sub-Court, Kumbakonam. This point was also not raised in the counter-affidavit filed by the University in the writ petition. It is contended in the suit that Kasi Mutt being a religious denomination has a fundamental right guaranteed under Art. 26 of the Constitution to establish and maintain institutions for religious and charitable purposes and it has been held that these rights include the right to establish maintain and administer educational institutions. The cumulative effect of these and other provisions of the Act is to take away the management and administration from the hands of the Kasi Mutt in violation of Arts. 25, 26 and 30 of the Constitution. The Madras High Court held that the provisions of the Tamil Nadu Recognised Private School (Regulation) Act, 1974 are not applicable to more enforceable against the schools maintained and administered by religious denominations whose character as such religious denomination is admitted or established. As the interference by the educational authorities constitutes serious invasion of the fundamental rights guaranteed under the Constitution, the suit has been filed. The suit was filed for declaration, perpetual injunction and for recovery of Rs. 12,133.55.

24. The State has filed the written statement opposing the plaintiffs claim, challenging the Tamil Nadu Private Colleges (Regulation) Act, 1976. Certain minority institutions filed writ petitions stating that certain provisions of the Act do not apply to minority colleges. Since the colleges run by the 1st respondent, are being treated as non-minority institutions, all the provisions of the Act apply to these institutions. Some of the private colleges run by religious minorities such as Charistians and Muslims have filed writ petitions challenging certain provisions of the Act and succeeded in some respect. The Government treated the 1st respondent institution as a non-minority institution. According to the department, the appointments were made without following the rules and regulations and therefore, it cannot be approved. This Court has observed as follows:—

“In our opinion whether the School is a minority school within the meaning of Art. 30, or a denominational institution within the meaning of Art. 26 will unless admitted have to be decided in the light of proper evidence to be recorded, and as such, a suit will be a more satisfactory remedy for that purpose.”

25. While disposing of the writ petitions, the Division Bench of this High Court directed the non-minority institutions to approach the civil court and file suit for declaration of religious denomination and that the provisions of Tamil Nadu Private Colleges (Regulation) Act, 1976 are not applicable to them. Accordingly, the 1st respondent institution filed O.S 18/85 on the file of Sub-Court Kumbakonam, contending that the said institution is a religious denomination. In support of its claim, the 1st respondent institution filed Exs. A1 to A. 10 and examined two witnesses on their side. On the side of the State Exs. B. 1 and B. 2 were marked and one witness was examined on the side of the defence. The sub-Court, Kumbakonam by its order dated 12-8-1995. On a detailed discussion held that the cumulative effect of the provisions of the Act is to take away the management and administration from the hands of the 1st respondent/plaintiff in violation of Arts. 25, 26and 30 of the Constitution and therefore, the State has to be restrained from applying the provisions of the Act. On the side of the 1st respondent Institution, the Manager of the Mutt was examined as PW 2. Documents were marked through him. In the result, the sub-Court granted a decree for declaration and perpetual injunction in favour of the 1st respondent institution. The suit was decreed on 12-8-1985. Against which the State preferred an appeal in A.S No. 62 of 1986 which was also dismissed by the Appellate Court. The State did not prefer any Second Appeal in this Court. As rightly contended by Mr. G. Subramaniam learned Senior Counsel appearing for the 1st respondent, the judgment rendered inter partes viz., 1st respondent University and the State of Tamil Nadu are binding on inter partes.

26. In AIR 1953 SC 65, Mohanlal v. Benoy Krishna the Supreme Court held that a decision in the previous execution case between the parties that the matter was not within the competence of the executing court even though erroneous is binding on the parties. There is ample authority for the proposition that even an erroneous decision on a question of law operates as ‘res judicata’ between the parties to it. The correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as ‘res judicata’.

27. As already noticed, the decree granted by the sub-Court, Kumbakonam in O.S 18/85 is a nullity is not challenged in the counter non argued before the learned single Judge. Therefore, we are of the view that the appellant University cannot now be permitted to raise the question of nullity of a Civil Court decree at this distance of time. This apart, Civil Court's decree dated 12-8-1985 was confirmed in A.S No. 62/86 by the Appellate Court and no second appeal has been filed aginst the said Appellates Court's order. In fact, the application filed by University to implead itself as a party in A.S 62/86 was also dismissed by the Appellate Court and further revision to this court was also dismissed. Therefore, we hold that the decree of declaration granted by the competent sub-Court at Kumbakonam dated 12-8-1985 is valid in law and not a nullity and that the said decree is not a nullity as contended by the appellant-University. The said contention therefore fails and is dismissed.

28. While adverting to the judgment cited by Mr. Chandru reported in 1995 (4) SCC 646 : (AIR 1995 SC 2089) and 1997 (4) JT 124. Mr. G. Subramaniam, contended that the counsel for the appellants wants this Court to decide the academic question. In the Kashi Vishwanath's case the Supreme Court has considered the constitutional validity of U.P Sri Kashi Vishwanath Temple Act, 1983. It was contended that Lord Kashi Vishwanath Temple is a denominational temple of Saivites of which the appellant before the Supreme Court are the members. They have their exclusive right to manage its affairs including the right to receive offerings given by the pilgrims to Lord Shiva to perform pooja (rituals) and ceremonies in accordance with the prevailing customs and usage in the temple handed down from centuries, and that the Act interdicts to exercise that right and interfere with those rights which are part of their religion. The Act prevents them from managing the Temple and its properties which (interferes with their right to profess and practise any religious belief offending Arts. 25 and 26 of the Constitution. The Supreme Court held that the Act protects the right to perform worship, rituals or cerremonies in accordance with the established custom and practices. They are entitled to protection under Arts. 25 and 26 of the Constitution. However, they are not entitled to protection in particular of clauses (b) and (d) of Art. 26 as a religious denomination in the matter of management, administration and governance of the temple under the Act. The Act therefore, is not ultra vires Arts. 25 and 26 of the Constitution. This decision in our opinion does not apply to the facts and circumstances of this case and is distinguishable on facts and circumstances. Likewise, the decision reported in 1995 (4) SCC 646 : (AIR 1995 SC 2089) has no relevance for the purpose of this case, as already discussed supra. The law declared by the Supreme Court in 1995 (4) SCC 646 : (AIR 1995 SC 2089) and 1997 (4) JT 124 in our humble view, has no effect of annulling the judgments which have already become concluded and adjudicated by the court of competent jurisdiction and in particular the judgment of the sub-Court, Kumbakonam in O.S 18/85 dated 12-8-1985.

29. As contended by the Mr. G. Subramaniam, the Supreme Court in St. Stephen'S College v. University Of Delhi, (1992) 1 SCC 558 : AIR 1992 SC 1630 : (1992 AIR SCW 1792) held that in view of the importance which the Constitution attaches to protective measures to minorities under Art. 30(1) the minority aided educational institutions are entitled to prefer their community candidates to maintain the minority character of the institutions subject of course in conformity with the University standard. The State may regulate the intake in this category with due regard to the need of the community in the area which the institution intended to serve but in no case such intake shall exceed fifty per cent of the annual admission. While deciding the case the Supreme Court did not say that it will have retrosepctive effect. Mr. Chandru argued that the law declared by the Supreme Court would in view of Art. 141 be binding upon all the petitioners before the High Court and not merely to a particular petitioner as against whom the State had preferred the appeal. The Supreme Court held in the case of P.S.E Board, Patiala v. Ashok Kumar Sehgal, 1990 Lab IC 249 that it is the principles of law culled out from a judgment of the Supreme Court which alone are declaratory for the nation, and the effective order of the Supreme Court whereunder justice was done to the parties is binding on the parties. Thus while following the ratio of a decision of the Supreme Court, it is not obligatory for the lower courts to regulate reliefs always on the lines of the Supreme Court decision which is being followed. As already seen the decree passed by the Civil Court viz., Sub-Court. Kumbakonam in O.S No. 18/85 in favour of the 1st respondent college had become final and in fact, in the said matter, it appears that Teacher's association in Madurai Kamraj University wanted to implead itself as a party and it was rejected. It was also rejected by this Court in revision. In so far as the decree of the civil Court declaring Sri Kasi Mutt as a religious denomination minority stands, the 1st respondent college has got the rights of admission for 50% of its own choice. As rightly contended by Mr. G. Subramaniam, no candidate who has been denied seat, challenges the admission, when there were about 100 applicants for the courses, and that itself shows that non-selected candidates have not been aggrieved, that they have not questioned the norms prescribed by the college as such the impugned order cannot stand.

30. We are of the view that it cannot also be disputed by the University that the provisions of the Tamil Nadu Private Colleges (Regulation) Act, 1976 are not applicable to the 1st respondent College in so far as the judgment of the 1st appellate court in A.S 62/86 is concerned, which has become final. It is also not in dispute that the State has not preferred any Second Appeal against the judgment of the District Court, West Thanjavur in A.S 62 of 1986. A reading of the judgment of the 1st appellate Court in A.S No. 62/86 clearly shows that a right has been claimed by the head of the Sri Kasi Mutt both under Art. 26 and under Art 30 of the Constitution of India and it has been considered by both the learned District Munsif, Kumbakonam, and also by the learned District Judge, West Thanjavur. In our opinion, whether Saiva Siddanta can be said to be a religion or not is a question which need not be decided at this stage nor germane for the question at issue. The learned Judge for the reasons recorded in his order has thought it unnecessary for him to decide the issue at this stage. The learned Judge as a fact held that there is nothing on record to suggest that the interview conducted by the Selection Committee was contrary to the principles laid down by this Court in various decisions referred by the learned single Judge himself in his order. In fact, the interview confers no wide discretion to the Selection Committee to pick and choose any candidate of their choice. Considering the totality of the circumstances of the case, we are of the view that though the interview system adopted by the college cannot be said to be illegal, yet prescribing 25 marks for interview to assess the knowledge of the candidates in “Saiva Siddantha” seems to be arbitrary and against law laid down by the Supreme Court in various cases. In fact, the students who were admitted have completed the courses and have left the college. The students who got admission cannot be blamed as we do not see any reason to penalise the students for the mistakes committed by the 1st respondent. It is not the case of the University that no other statute or regulation of the University is contravened. As such, the order passed by the learned single Judge in the writ petition setting aside the order of the University impugned in the writ petition and allowing writ petition shall stand. The further direction given by the learned single Judge to approve the admission made by the College is also confirmed.

31. The question now raised by Mr. Chandru, learned counsel for the appellants has now become a question of academic importance. Therefore, the writ appeal fails and is dismissed. However, there will be no order as to costs. Consequently, W.M.P No. 3088 of 1994 is also dismissed.

32. Appeal dismissed.