SK. MD. RAFIQUE versus MANAGING COMMITTEE, CONTAI RAHAMANIA HIGH MADRASAH AND OTHERS on 6 January 2020

[2020] 1 S.C.R. 185

SK. MD. RAFIQUE

v.

MANAGING COMMITTEE, CONTAI RAHAMANIA HIGHMADRASAH AND OTHERS

(Civil Appeal No. 5808 of 2017 etc.)

JANUARY 6, 2020

[ARUN MISHRA AND UDAY UMESH LALIT, JJ.]

Constitution of India:

Art. 30(1) – Aided ‘ Madrasah’ (a minority institution) –Process of appointment of teachers in – Taken over and entrustedto Commission constituted under West Bengal Madrasah ServiceCommission Act, 2008 – Validity of s. 8, 10, 11 and 12 of the Actchallenged, alleging that the same transgressed upon the rights ofa minority institution of choosing its own teachers – Single Judgeof the High Court held that ss. 8, 10, 11 and 12 of the Act were ultravires – The judgment was upheld by Division Bench of High Court– Appeal to Supreme Court – Held: The essence of Art. 30(1) is toensure equal treatment between majority and minority institutions –A regulation framed in the national interest must apply to allinstitutions regardless of they being minority or majority –Regulation, if seeks to ensure the standards of excellence of theinstitutions while preserving the right of the minorities, is permissible– The Act has been specially designed for Madrasahs and MadrasahEducation system in the State – Legislature has taken care thatcomposition of the Commission would ensure compatibility of theteachers who would be selected to impart education in Madrasaheducation system – The Act has also provided that ManagingCommittee of the Madrasah can point out error in appointment madeby the Commission and that the Madrasah has the right to refusethe appointment of a candidate recommended by the Commission –Thus the Act seeks to achieve ‘excellence’ in education and alsoseeks to promote interest of the minority institution – Therefore, theprovisions of the Act, cannot be said to be transgressing the rightsof the minority educational institutions – Sections 8, 10, 11 and 12of the Act are valid and constitutional – Hence, all the nominations A

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Aof the teachers made under the Act are valid and operative – WestBengal Madrasah Service Commission Act, 2008 – ss. 8, 10, 11and 12 – West Bengal Madrasah Service Commission Recruitment(Selection and Recommendation of Persons for Appointment andTransfer to the Posts of Teaching and Non-Teaching Staff) Rules,2010 – r. 8.B

Disposing of the appeal, the Court

HELD : 1. Out of five incidents which constitute “the rightto establish and administer” an educational institution as notedin *TMA Pai Foundation case, the right to admit students has notCbeen considered to be an absolute and an unqualified right. Thedecision in **P.A. Inamdar case shows that in professionaleducational institutions or those imparting higher education, meritbased selection has been taken to be in the interest of the nationand subserving and strengthening the national welfare. Selectionof meritorious students has been accepted to be in the nationalDinterest. A minority institution cannot in the name of right underArticle 30(1) of the Constitution, disregard merit or merit-basedselection of students as regards professional and highereducation. The right to take disciplinary action against the staffhas also not been accepted to be an unqualified right. *TMA PaiEFoundation case itself lays down that even in an unaided minorityeducational institution, a mechanism must be evolved andappropriate Tribunal must be constituted to consider thegrievances and till then the Tribunals could be presided over bya judicial officer of the rank of a District Judge. Going by thedecision *TMA Pai Foundation case so long as the principles laidFdown therein are satisfied, it is permissible if any regulationsseek to ensure the standard of excellence of the institutions whilepreserving the right of the minorities to establish and administertheir educational institutions. [Para 45] [300-D-H; 301-A]

2. When it comes to the right to appoint teachers, in termsGof law laid down in *TMA Pai Foundationcase, a regulation framedin the national interest must necessarily apply to all institutionsregardless whether they are run by majority or minority as theessence of Article 30(1) of the Constitution is to ensure equal H

treatment between the majority and minority institutions. Anobjection can certainly be raised if an unfavourable treatment ismeted out to an educational institution established andadministered by minority. But if ensuring of excellence ineducational institutions is the underlying principle behind aregulatory regime and the mechanism of selection of teachers isso designed to achieve excellence in institutions, the matter maystand on a completely different footing. [Para 46] [301-B-C]

3. The test accepted in *TMA Pai Foundation case, andthe balance between two objectives can well be considered inthe context of two categories of institutions; one impartingeducation which is directly aimed at or dealing with preservationand protection of the heritage, culture, script and specialcharacteristics of a religious or a linguistic minority; while thesecond category of institutions could be those which are impartingwhat is commonly known as secular education. When it comesto the institutions in the former category, the teachers who believein the religious ideology or in the special characteristics of theconcerned minority would alone be able to imbibe in the studentsadmitted in such educational institutions, what the minoritieswould like to preserve, profess and propagate. But, if the subjectsin the curriculum are purely secular in character, that, is to say,subjects like Arithmetic, Algebra, Physics, Chemistry orGeography, the intent must be to impart education availing thebest possible teachers. In the first category, maximum latitudemay be given to the managements of the concerned minorityinstitutions as they would normally be considered to be the bestjudges of what would help them in protecting and preserving theheritage, culture, script or such special features or characteristicsof the concerned minorities. However, when it comes to thesecond category of institutions, the governing criteria must be tosee to it that the most conducive atmosphere is put in place wherethe institution achieves excellence and imparts best possibleeducation. [Para 47] [301-D-H]

4. Regulations which will serve the interest of the studentsso also regulations which will serve the interest of the teachers AB

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Aare of paramount importance in good administration; thatregulations in the interest of efficiency of teachers are necessaryfor preserving harmony amongst the institutions; and that theappointment of teachers is an important part in educationalinstitutions. It is quite natural that qualitatively better teacherswill ensure imparting of education of the highest standard andBwill help in achieving excellence. The excellence of the instructionprovided by an institution would depend directly on the excellenceof the teaching staff and would in turn depend inter alia on thequality of teachers. [Para 48] [302-A-C]

Ahmedabad St. Xavier’s College Society and Another v.CState of Gujarat and Another (1974) 1 SCC 717 : [1975]1 SCR 173 ; Frank Anthony Public School Employees’Assoication v. Union of India and others (1986) 4 SCC707 : [1987] 1 SCR 238 – followed.

5. Thus, if the intent is to achieve excellence in education,Dwould it be enough if the concerned educational institutions wereto employ teachers with minimum requisite qualifications in thename of exercise of Right under Article 30 of the Constitution,while better qualified teachers are available to impart educationin the second category of institutions. For example, if theEqualifying percentile index for a teacher to be appointed in aneducational institution, considering his educational qualifications,experience and research, is required to be 50, and if teacherspossessing qualifications far greater and higher than this basicindex are available, will it be proper exercise for a minorityeducational institution to select teachers with lower indexFdisregarding those who are better qualified? Will that subservepursuit of excellence in education? One can understand if underthe regulatory regime candidates who are otherwise less qualifiedare being nominated in the minority educational institution andthe minority educational institution is forced to accept such lessGmeritorious candidates in preference to better qualifiedcandidates. In such cases, the minority educational institutioncan certainly be within its rights to agitate the issue and claim aright to choose better teachers. But if the candidates who are selected and nominated under the regulatory regime to imparteducation which is purely secular in character, are better qualified,would the minority institution be within its rights to reject suchnomination only in the name of exercise of a right of choice? Thechoice so exercised would not be in pursuit of excellence. Cansuch choice then be accepted? If the right u/Art. 30 is taken tobe absolute and unqualified, then certainly such choice must berecognised and accepted. But, if the right has not been acceptedto be absolute and unqualified and the national interest mustalways permeate and apply, the excellence and merit must be thegoverning criteria. Any departure from the concept of merit andexcellence would not make a minority educational institution aneffective vehicle to achieve what has been contemplated in variousdecisions of this Court. Further, if merit is not the sole andgoverning criteria, the minority institutions may lag behind thenon-minority institutions rather than keep in step with them.[Para 49] [302-D-H; 303-A-B]

6. If the minority institution has a better candidate availablethan the one nominated under a regulatory regime, the institutionwould certainly be within its rights to reject the nomination madeby the authorities but if the person nominated for impartingeducation is otherwise better qualified and suitable, any rejectionof such nomination by the minority institution would never helpsuch institution in achieving excellence and as such, any suchrejection would not be within the true scope of the Right protectedunder Article 30(1) of the Constitution. [Para 50] [303-E-F]

7. In terms of Section 4 of the West Bengal MadrasahService Commission Act, the Commission is to consist of aChairman and four Members. The Chairman of the Commissionhas to be an eminent educationist having profound knowledge inIslamic Culture and must be well versed in education withteaching experience inter alia as a teacher of a University or as aPrincipal of a college, for a period of not less than twelve years.It is true that the latter part of Section 4(ii) speaks of an officer ofthe State Government not below the rank of Joint Secretary whocould also be appointed as the Chairman of the Commission.Considering the nature of duties that the Chairman is to A

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Adischarge, even an officer of the State Government has to be aperson with profound knowledge in Islamic Culture. Apart fromthe Chairman, there are four Members who are to be appointedin terms of Section 4(iii) of the Commission Act. Out of thesefour Members, one has to be an eminent educationist havingprofound knowledge in Islamic Theology and Culture, while theBother two Members must have teaching experience inter alia asa teacher of a University, or a Principal of a College for a periodof not less than ten years. The fourth member could be a non-educationist, but he must have held the position of eminence inpublic life or in Legal or Administrative Service. PredominantCcomposition of the Commission is thus of educationists and twoof them have to be persons with profound knowledge in IslamicCulture and Islamic Theology. [Para 52] [303-G-H; 304-A-D]

8. The provisions of the Commission Act are thus speciallydesigned for Madrasahs and Madrasah Education System in theDState. Rule 8 of the West Bengal Madrasah Service CommissionRecruitment (Selection and Recommendation of Persons forAppointment and Transfer to the Posts of Teaching and Non-Teaching Staff) Rules, 2010 stipulates fair and transparent processof merit based selection and the statutory mechanism wouldensure that only those teachers would be selected who would beEbest suited to impart education in Madrasah Education System.The State Legislature has taken care to see that the compositionof the Commission would ensure compatability of the teacherswho would be selected to impart education in Madrasah EducationSystem, which is also emphasized in the Statement of Objects Fand Reasons. [Para 52] [304-D-F]

9. It is true that the recommendations or nominations ofteachers made by the Commission are otherwise binding on theManaging Committees of concerned Madrasahs, but, in terms ofsecond proviso to Section 10 of the Commission Act, if there beGany error, it is open to the Managing Committee of the concernedMadrasah to bring it to the notice of the Commission for removalof such error. The concept of ‘error’ as contemplated must alsoinclude cases where the concerned Madrasah could appoint a SK. MD. RAFIQUE v. MANAGING COMMITTEE, CONTAIRAHAMANIA HIGH MADRASAH

better qualified teacher than the one nominated by theCommission. If any such error is pointed out, the Commissionwill certainly have to rectify and remove the error. The furtherprotection is afforded by Section 12 of the Commission Act, underwhich the concerned Madrasah could be within its rights to refuseto issue appointment letter to the candidate recommended bythe Commission if any better qualified candidate is otherwiseavailable with the managing committee of the concernedMadrasah. Such refusal may also come within the expression‘any reasonable ground’ as contemplated in Section 12(i) of theAct. The legislature has thus taken due care that the interest ofa minority institution will always be taken care of by ensuringthat i) in normal circumstances, the best qualified and suitablecandidates will be nominated by the Commission; ii) and in casethere be any error on part of the Commission, the concernedManaging Committee could not only point out the error whichwould then be rectified by the Commission but the ManagingCommittee may also be within its rights in terms of Section 12(i)to refuse the nomination on a reasonable ground. [Para 53][304-F-H; 305-A-C]

10. The regime put in place by the State legislature thusensures that the Commission comprising of experts in the fieldwould screen the talent all across the State; will adopt a fairselection procedure and select the best available talent purelyon merit basis; and even while nominating, the interest of theminority institution will also be given due weightage and takencare of. The statutory provisions thus seek to achieve ‘excellence’in education and also seek to promote the interest of the minorityinstitutions. The provisions satisfy the test as culled out in thedecision of this Court in *TMA Pai Foundation case. [Para 54][305-D]

11. Going by the principles laid down in the decision in*TMA Pai Foundation case, the concerned provisions cannot,therefore, be said to be transgressing the rights of the minorityinstitutions. The selection of the teachers and their nominationby the Commission constituted under the provisions of theCommission Act would satisfy the national interest as well as theinterest of the minority educational institutions and said provisions AB

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192SUPREME COURT REPORTS

[2020] 1 S.C.R.

Aare not violative of the rights of the minority educationalinstitutions. Therefore, sections 8, 10, 11 and 12 of theCommission Act are valid and constitutional. [Paras 55 and 57][305-E-F; 306-E]

12. All nominations made by the Commission in pursuanceBof the provisions of the Commission Act are valid and operative.However, if after the disposal of the matters by the High Courtany appointments are made by the concerned Madarshas, suchappointments of teachers shall be deemed to be valid for allpurposes. But the Commission shall hereafter be competent toselect and nominate teachers to various Madarshas in accordanceCwith the provisions of the Commission Act and the Rules framedthereunder. [Para 58] [306-F-G]

*TMA Pai Foundation and others v. State of Karnatakaand others (2002) 8 SCC 481 : [2002] 3 Suppl. SCR 587 ; Re: The Kerala Education Bill 1957 [1959] SCRD995 ; Lily Kurian v. Sr. Lewina and Others (1979) 2SCC 124 : [1979] 1 SCR 820; St. Stephen’s College v.University of Delhi (1992) 1 SCC 558 : [1991] 3 Suppl.SCR 121;**P.A.Inamdar and others v. State ofMaharashtra and others (2005) 6 SCC 537 : [2005]E2 Suppl. SCR 603 – followed.

The Gandhi Faiz-e-am College, Shahjahanpur v.University of Agra and Another (1975) 2 SCC 283– relied on.

Sindhi Education Society and another v. Chief Secretary,FGovernment of NCT of Delhi and others (2010) 8 SCC49 : [2010] 8 SCR 81 ; Chandana Das (Malakar) v.State of West Bengal and others (2015) 12 SCC 140 ;Brahmo Samaj Education Society v. State of West Bengal(2004) 6 SCC 224 : [2204] 2 Suppl. SCR 214G– distinguished.

State of Kerala, etc v. Very Rev. Mother Provincial, etc(1970) 2 SCC 417 : [1971] 1 SCR 734 ; Secretary,Malankara Syrian Catholic v. T. Jose and others (2007)1 SCC 386 : [2006] 9 Suppl. SCR 644 ; Rev. SidhajbhaiSabhai and Others v. State of Bombay and Another H

SK. MD. RAFIQUE v. MANAGING COMMITTEE, CONTAIRAHAMANIA HIGH MADRASAH

[1963] 3 SCR 837 ; Rev. Father W. Proost and Others.v. the State of Bihar and Others AIR 1969 SC 465 ;[1969] 2 SCR 73 ; D.A.V. College, etc. v. State of Punjaband Others [1971] Suppl. SCR 688 ; All Saints HighSchool, Hyderabad and Others v. Government ofAndhra Pradesh and Others (1980) 2 SCC 478 : [1980]2 SCR 924 ; Bihar State Madarasa Education Board,Patna v. Madarasa Hanfia Arabic College, Jamalia andothers (1990) 1 SCC 428 : [1989] 2 Suppl. SCR 399 ;Board of Secondary Education and Teachers Trainingv. Jt. Director of Public Instructions, Sagar and others(1998) 8 SCC 555 ; N. Ammad v. Manager, Emjay HighSchool and others (1998) 6 SCC 674 : [1998] 1 Suppl.SCR 453 ; Kanya Junior High School, Bal VidyaMandir, Etah,U.P. v. U.P. Basic Shiksha Parishad,Allahabd, U.P. and others (2006) 11 SCC 92 : [2006]4 Suppl. SCR 813 – referred to.

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From the Judgment and Order dated 09.12.2015 of the High Courtat Calcutta in A.S.T. No. 192 of 2014.

DWith

Civil Appeal Nos. 6098, 5809, 5826, 5817, 5814 of 2017, ContemptPetition (C) Nos. 583, 846 of 2016, & Contempt Petition (C) Nos. 670,669, 828 of 2017 in S.L.P.(C) No. 6661 of 2016 and Contempt Petition(C) Nos. 1509, 1798 of 2017 & Contempt Petition (C) Nos. 937, 938,E1219, 1274, 1669, 1921-1922 of 2018 in C.A. No. 5808 of 2017, W.P.(C)No. 723 of 2016, W.P. (C) No. 629 of 2017.

Jayant Bhushan, Mohan Parasaran, Siddharth Luthra, Y. S. Narula,Salman Khurshid, Kalyan Bandopadhyay, Jaideep Gupta, Huzefa Ahmadi,Sr. Advs., Zoheb Hossain, Mrs. Adeeba Mujahid, Ashwin Kumar D.S.,Ms. Aditi Dani, Ketan Paul, Shahan Ulla, Vivek Gurnani, Ms. SonalFMashankar, Ali Choudhary, Azeem Kalebudde, Atarup Banerjee, AbuSohel, Ms. Azra Rahman, Arpit Shukla, Anindo Mukherjee, ChanchalKumar Ganguli, Mrs. Sarla Chandra, Khairul Alam, Rameshwar PrasadGoyal, Pijush K. Roy, Mrs. Kakali Roy, Rajan K. Chourasia, SiddharthDave, M. R. Shamshad, Aditya Samaddar, Ms. Sarah Haque, SubhashishGBhowmick, Adv. Ms. G. Goyal, Adv. Mr. Dipak Kumar Jena, Adv. Ms.Minakshi Ghosh, Jalabhar Das, Kumar Shourish, Abhijit Sengupta,Dibyadyuti Banerjee, Kumar Neeraj, B. P. Yadav, Ranjan Mukherjee,Kunal Chatterji, Ms. Anita Kanungo, Dipak Kumar Jena, Advs. for theappearing parties.

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SK. MD. RAFIQUE v. MANAGING COMMITTEE, CONTAIRAHAMANIA HIGH MADRASAH

The Judgment of the Court was delivered by UDAY UMESH LALIT, J.

1. These appeals arise out of the Judgment and Order dated09.12.2015 passed by the Division Bench of the High Court[1] dismissingA.S.T. No.192 of 2014 and other connected matters and thereby affirmingthe decision of the Single Judge of the High Court passed on 12.03.2014in Writ Petition No.20650 (W) of 2013 which in turn had found Sections8, 10, 11 and 12 of the West Bengal Madrasah Service Commission Act,2008 (“the Commission Act”, for short) to be ultra vires.

2. The aforementioned Writ Petition No.20650(W) of 2013 wasfiled by the Managing Committee of Contai Rahmania High Madrasahchallenging validity of Sections 8, 10, 11 and 12 of the Commission Actsubmitting, inter alia, that by virtue of the provisions of the CommissionAct, the process of appointment of teachers in an aided Madrasah, whichwas recognised as a minority institution, was taken over and entrustedto the Commission appointed under Section 4 of the Commission Act;and that the Commission was empowered under the provisions of theCommission Act to make recommendations which would be binding onthe Managing Committee of an aided Madrasah. It was submitted thatthe provisions of the Commission Act transgressed upon the rights of aminority institution of choosing its own teachers. The submission wasaccepted by the Single Judge of the High Court and the Writ Petitionwas allowed. Aggrieved, some of the candidates, including the Appellantherein, whose names were recommended by the Commission to beappointed as teachers in aided Madrasahs, filed appeal being A.S.T. No.192 of 2014 before the Division Bench of the High Court. C.A.N. No.3078 of 2014 was filed by the Secretary, West Bengal MadrasahService Commission while M.A.T. No. 473 of 2014 was filed by Stateof West Bengal challenging the very same decision of the Single Judge.All the appeals were dismissed by the Division Bench while affirmingthe view taken by the Single Judge.

3. The decisions of the Single Judge and the Division Bench havegiven rise to the present set of Appeals wherein number of InterventionApplications have also been filed.

1 The High Court of Judicature at Calcutta A

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ASTATUTORY PROVISIONS

4. The West Bengal Board of Madrasah Education Act, 1994was enacted to establish a Board of Madrasah Education in West Bengaland to provide for matters connected therewith or incidental thereto.The expressions “Madrasah”, “Madrasah Education”, “ManagingBCommittee” and “Senior Madrasah” are defined in Sections 2(f), (g),(h) and (p) as under:-

“2(f) “Madrasah” means an educational institution impartinginstruction in Madrasah Education; (g) “Madrasah Education” means a system of education in whichCinstruction is imparted in Arabic, Islamic history and culture, andtheology, and includes-

(i) High Madrasah Education System which, in addition tocovering Arabic language and Islamic history and culture,imparts general education including primary education with aDview to qualifying students for admission to a certificate,diploma or degree course instituted by a University or by aGovernment or by any statutory authority, and includes suchother type of education as the State Government may, inconsultation with the Board, specify; E

(ii) Senior Madrasah Education System which impartsinstruction in Arabic language and literature, Islamic theology,history, culture and jurisprudence and some general educationwith a view to qualifying students for a certificate, diploma ordegree of the Board or a University or a Government or anyother statutory authority; F

(h) “Managing Committee” used in reference to an Institutionmeans the person or the body of persons for the time beingentrusted with the management of the affairs of the Institution; … … …

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(p) “Senior Madrasah” means a Madrasah where the SeniorMadrasah Education System is followed.”

4.1 Chapter 2 of the Act inter alia, deals with establishment andcomposition of the Board while Section 18 deals with constitution ofvarious Committees. Section 19 then deals with functions of theHCommittees as under:-

“19. Functions of Committee.-(1) It shall be the duty of theRecognition Committee to advise the Board on all mattersconcerning recognition of Institutions.

(2) It shall be the duty of the Syllabus Committee to advise theBoard on all matters relating to the syllabus, courses of studies tobe followed and the books to be studied in recognised Institutionsand for examinations instituted by the Board.

(3) It shall be the duty of the Examinations Committee to advisethe Board on –

(a) matters relating to selection of paper setters, moderators,tabulators, examiners, invigilators, supervisors and others tobe employed in connection with examinations instituted by theBoard and the rates of remuneration to be paid to them; (b) the fees to be paid by candidates for such examinations;and

(c) any other matter relating to such examinations which maybe referred to it by the Board for advice

(4) It shall be the duty of the Finance Committee to prepare thebudget of the Board and to advise the Board on such mattersrelating to finance as may be referred to it by the Board for advice.

(5) (a) All appeals by the members of the teaching and non-teaching staff against the decisions of the Managing Committeesof the recognised Institutions shall be heard and decided by theAppeal Committee.

(b) The decisions of the Appeal Committee under clause (a)shall be final and no suit or proceeding shall lie in any Civil orCriminal Court in respect of any matter which has been ormay be referred to, or has been decided by, the AppealCommittee.

(c) Any other Committee or Committees that may be constitutedunder clause (f) of sub-section (1) of section 18 shall havesuch powers or functions as the Board may confer or imposeon such Committee or Committees.”

4.2 Section 20 deals with functions of the Board as under:-

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20. Functions of the Board. – (1) It shall be the duty of theBoard to advise the State Government on all matters relating toMadrasah Education referred to it by the State Government.

(2) Subject to any general or special orders of the Stategovernment, the provisions of this Act and any rules madethereunder, the Board shall have generally the power to direct,supervise and control Madrasah Education and in particular, thepower- (a) to grant or refuse recognition to Madrasah and to withdrawsuch recognition if it thinks fit and necessary, after consideringthe recommendations of the Recognition Committee inaccordance with such regulations as might be made in thisbehalf :

(b) to maintain a register of recognized Madrasahs;

(c) to provide by regulations, after considering therecommendations of the Syllabus Committee, if any, thecurriculum, syllabus, courses or studies to be followed and booksto be studied in recognized Madrasahs for examinationsinstituted by the Board; (d) to undertake, if necessary, with the approval of the StateGovernment, the preparation, publication or sale of text-booksand other books for use in recognised Madrasahs; (e) to maintain and publish list of holidays for recognisedMadrasahs, list of books approved for use in recognizedMadrasahs and for examinations instituted by the Board andto remove the name of any such book from any such list; (ee) to maintain, print and issue from time to time, theRegistration Certificate, Admit Card, Marksheet, MigrationCertificate, Certificates and such other papers as it may thinksfit; (f) To institute various Madrasah Examinations and such othersimilar examinations as it may think fit and to make regulationsin this behalf; (g) to set down the conditions to be fulfilled by the candidatespresenting themselves for examinations instituted by the Board;

(h) to provide by regulations after considering therecommendations of the Examinations Committee, if any, therates of remuneration’ to be paid to the paper-setters,moderators, tabulators, examiners. invigilators, supervisors andothers employed in connection with the examinations institutedby the Board, and, the fees to be paid by candidates for suchexaminations with the approval of the State Government;

(i) to grant or refuse permission to candidates to appear atexaminations instituted by the Board and to withdraw suchpermission if it thinks fit in accordance with such regulationsas may be made in this behalf; (j) to provide by regulations the procedure for filling and disposalof appeals by the members of the teaching and non-teachingstaff against the decisions of the Managing Committees ofrecognized Madrasahs; (k) to administer the West Bengal Madrasah Education BoardFund;

(l) to institute and administer such Provident Funds as may beprescribed; (m) to make regulations relating to the conduct, discipline andappeal in respect of the members of the staff ; (mm) to make regulations relating to conduct and disciplinein respect of teachers and non-teaching staff of therecognised Institutions under the Board; (mmm) to make regulations determining the qualificationfor, and the method of, recruitment of teachers in class I toclass IV of the Senior Madrasah; (n) to perform such other functions as may be assigned to it bythe State Government.

(3) Subject to the provisions of sub-section (2). the Board shallhave power to make regulations in respect of any matter forthe proper exercise of its powers under this Act.

Provided that any decision or action taken or any order madeby the Board in the discharge of its functions under this Act A

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shall not be invalid merely on the ground that no regulation hasbeen made under this sub-section.

(4) No regulation shall be valid unless it is approved by theState Government and the State Government may, inaccordance with such approval, make such additions, alterationsor modifications therein as it thinks fit:

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Provided that before making any such addition, alteration ormodification, the State Government shall give the Board anopportunity to express its views thereon within such period,not exceeding one month, as may be specified by the StateGovernment.

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(5) All regulations approved by the State Government shall bepublished in the Official Gazette.”

5. The West Bengal Minorities’ Commission Act, 1996 was enactedto constitute a Minorities Commission to study and suggest additionalDsocial, economic, educational and cultural requirements of religious andlinguistic minorities of West Bengal with a view to equipping them topreserve secular traditions of West Bengal and to promote nationalintegration. Section 3 deals with Constitution of the West BengalMinorities’ Commission and sub Sections (1) and (3) of Section 4 are asunder:-E

“4. Functions of the Commission.– (1) The Commission shallperform the following functions:- (a) evaluate the progress of the development of minorities of WestBengal and review implementation of the policies and. programmeFof the State Government; (b) monitor the working of the safeguards provided in theConstitution and in laws enacted by Parliament or the StateLegislature;

(c) make recommendations for the effective enforcement andimplementation of safeguards for the protection of the interestsof minorities provided by the Central Government or the StateGovernment; G

(d) look into specific complaints regarding deprivation of social,economic, educational, cultural and linguistic rights and safeguards H

of the minorities and take up such matters with the-appropriateauthorities; (e) recommend to the State Government to accord minority statusto religious, linguistic and ethnic groups, provided such groups donot enjoy any constitutional or statutory benefits or status; (f) cause studies to be undertaken into problems arising out ofany discrimination against minorities and recommend measuresfor their removal; (g) conduct studies, research and analysis on the issues relatingto socio-economic and educational development of minorities; (h) make annual report to the State Government on any matterpertaining to any of the functions of the Commission under thissection.

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(3) The advice of the Commission and, especially, the findings ofthe Commission concerning deprivation of any right of the minorityor any infringement of any well-being of the minority by omissionor commission, shall ordinarily be binding upon the StateGovernment.”

6. The West Bengal School Service Commission Act, 1997 (“1997Act”, for short) was enacted to provide for the constitution of RegionalSchool Service Commissions and a Central School Service Commissionin the State and for matters connected therewith or incidental thereto.The definitions of “School” and “Teacher” in Section 2(n) and (p) are asunder:- “(n) “school” means a recognized non-Government aided –

(i) secondary school, or educational institution, or part ordepartment of such school or institution, imparting instruction in asecondary education or

(ii) higher Secondary school, or educational institution (other thana college), or part or department of such school or institution,imparting instruction in higher secondary education, or

and includes a sponsored school.

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AExplanation I –”Recognized” with its grammatical variations,used with reference to a school, shall mean –

(a) recognized or deemed to have been recognized under the WestBengal Board of Secondary Education Act, 1963 or (b) recognized under the West Bengal Council of Higher SecondaryBEducation Act, 1975, Explanation II – “Aided” with its grammatical variations, usedwith reference to a school, shall mean aided by the StateGovernment in the shape of financial assistance towards the basicpay of the teachers of that school.

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Explanation III – “Basic pay” shall mean the monthly pay of ateacher of a school which corresponds to a stage in the time-scale of pay of the post, held by the teacher in that school.

Explanation IV – “Secondary Education” shall have the sameDmeaning as in clause (1) of section 2 of the West Bengal Board ofSecondary Education Act, 1963.

Explanation V – “Higher Secondary Education” shall have thesame meaning as in clause (d) of section 2 of the West BengalCouncil of Higher Secondary Education Act, 1975.

EExplanation VI – “Sponsored School” shall mean a schooldeclared as a sponsored school by the State Government bynotification.

(p) “Teacher” means an Assistant Teacher or any other person,holding a teaching post of a school and recognized as such by theFBoard or the Council or the Board of Madrasah, as the case maybe, and includes the Headmaster or the Headmistress [2](but shallnot include the Assistant Headmaster or the Assistant Headmistressor the Teacher holding a post against short-term vacancy causedby deputation, leave or lien).”

G6.1 Section 3 deals with constitution of the Commission andRegional Commissions. Section 4(4) dealing with composition ofChairman is as under:

2 The words within brackets were inserted by the West Bengal School Service Commission (Second Amendment) Act, 2001.H

“(4) (a) The office of the Chairman shall be whole-time; the othermembers shall be honorary.

(b) The Chairman and other members shall hold office for a termof four years [3][but in the case of ex officio member such termshall be one year]:

(c) Subject to the foregoing provisions of this sub-section, theother terms and conditions of service of the Chairman and othermembers shall be such as may be prescribed.”

6.2 Sections 7 and 9 are as under:-

“7. Functions of Regional Commission. – Notwithstandinganything contained in any other law for the time being in force orin any contract, custom or usage to the contrary, it shall be theduty of the Regional Commission to recommend persons forappointment to the posts of Teachers or non-teaching staff in schoolwithin its territorial jurisdiction under he supervision and controlof the Central Commission on the basis of the result of the StateLevel Selection Test conducted by the Central Commission.

9. Effect of recommendation of Commission – (1)Notwithstanding anything contained in any other law for the timebeing in force or in any contract, custom or usage to the contrary,appointments to the posts of Teachers and non-teaching staff inschool shall be made by the Board or the ad-hoc committee orthe administrator of the Board on the recommendation of theRegional Commission having jurisdiction.

(2) Any appointment of a Teacher or a non-teaching staff madeon or after the commencement of this Act in contravention of theprovisions of this Act shall be invalid and shall have no effect andthe Teacher or the non-teaching staff so appointed shall not be aTeacher or a non-teaching staff within the meaning of clause (p)or clause (ia) of section 2, as the case may be.”

6.3 Sub-sections (a) and (b) of Section 15, however, stipulated asunder:

“15. Act not to apply in relation to certain schools:- The provisions of this Act shall not apply to- 3 Words ins. By W.B. Act 5 of 2001.

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A(a) a school established and administered by a minority, whetherbased on religion or language, or (b) a school under any trust, established and administered by aminority, whether based on religion or language, or … … … “

7. By notification issued on 12.10.2007, Government of WestBBengal, Minorities Development and Welfare and Madrasah EducationDepartment declared and granted to all recognised and aided Madrasahsunder the control of the Government the status of “Minority EducationalInstitutions”. The text of the Notification was as under:- “Government of West Bengal C

Minorities Development & Welfare & Madrasah EducationDepartment Writers’ Buildings, Kolkata – 700001

No.1465-MD/07 Dated: 12.10.07

D

NOTIFICATION

WHEREAS Muslim recognised as Minority Community in theState of West Bengal and minorities have the right under Article30 of the Constitution of India to establish and administereducational institution of their choice; E

AND WHEREAS the State Government is competent todeclare a particular institution as a minority institution and till suchtime the government issue an order declaring that it is a minorityinstitution they can not operate as Minority Institutions; AND WHEREAS the Supreme Court has held that theGovernment are the Competent Authority to verify and determinethe minority status of an Educational Institution for the purpose ofArticle 30(1) of the Constitution of India; F

AND WEHREAS the Govt. recognised Madrasahs includingHooghly Govt. Madrasah and the Calcutta Madrasah wereoriginally established by the Muslim minority and continuouslyadministered by the members of that minority to subserve andpromote the interests of the minority community concerned; G

AND WEHREAS the abovesaid Madrasahs were, in courseof times, recognised alongwith liabilities by the Government for H

promoting educational interests of the Muslim minority and onverification it has been ascertained that more than 90% studentsare pursuing their studies in these institutions and these Madrasahsare functioning under supervision of the W.B. Madrasah Boardconstituted with member representatives of the MinorityCommunity concerned.

AND WHEREAS the State Govt. having been satisfied aboutthe above antecedents of all the recognised Madrasahs whichare aided and guided by the Government prescribed guidelinesrelating to admissions, selections etc. and about their continuingand sustained functioning for promoting the interests of theconcerned minority have become satisfied that these institutionsare fit to enjoy minority status of an Educational Institution for thepurpose of Article 30(1) of the Constitution of India.

AND WHEREAS the Govt. in the State of West Bengal havealso considered expedients to declare these recognized and aidedMadrasahs and those which will be so recognised and aided assuch in future as Minority Educational Institution.

NOW, THEREFORE, in accordance with the aboveconsiderations and in pursuance of the Article 30 of the Constitutionof India the Government is pleased, hereby, to declare that all therecognised and aided Madrasahs under control of this Governmentand those Madrasahs which will be recognised on similar lines infuture, as Minority Educational Institutions. These institutions willalso be allowed, in consequence to have the following effects asagreed upon by the State Government.

i)They will continue to get financial assistance as before fromthe State Government

ii)Reservation policy for employment etc. shall not apply in caseof appointment of teachers and non-teaching staff in theseMadrasahs.

iii)Selection of teachers may continue to be done by West BengalSchool Service Commission through separate panel.

By order of the Governor

(Pawan Agawal)

Secretary to the Govt. of West Bengal”

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A8. Consequent to the aforesaid notification dated 12.10.2007conferring status of “Minority Educational Institutions” on all recognisedand Government aided Madrasahs, another notification was issued on28.12.2007 by the Government of West Bengal, Minorities’ Development& Welfare and Madrasah Education Department stating that after beingconferred such status “the matter of selection of teachers for recognisedBand aided Madrasahs of this State has gone out of the purview of theexisting West Bengal School Service Commission Act, 1997”.

9. The Commission Act was thereafter enacted to provide for theconstitution of Madrasah Service Commission in the State and for mattersconnected therewith or incidental thereto. Statement of Objects andCReasons in relation to the Commission Act was as under:- “With the declaration of recognised madrasahs as minorityeducational institutions by the State Government recently, the WestBengal School Service Commission cannot recommend panel ofteachers for recognised madrasahs as per provisions of SectionD15 of the West Bengal School Service Commission Act, 1997(West Bengal Act IV of 1997). Therefore, a need has arisen forsetting up of a separate body for recommending panel of teachersfor appointment in Recognised Non-Government AidedMadrasahs. In view of this, it has been decided to set up the WestEBegal Madrasah Service Commission.

2. The proposed Commission would ensure the preparation ofpanel of teachers by recruitment in free, fair and transparentmanner with a quality education for madrasahs.

3. The said Commission would also take into consideration theFspecial requirement of teachers in the madrasahs system in theState.

4. The Bill has been framed with the above objects in view.”

9.1 The expressions “Madrasah”, “Teacher” and “vacant post”are defined in Section 2(k), (s) and (t) respectively under the CommissionGAct as under:- “(k) “Madrasah” means a Recognised Non-Government AidedSenior Madrasah, Junior High Madrasah, High Madrasah or HigherSecondary Madrasah imparting instruction in-

(i) High Madrasah Education System within the meaning of subAclause (i)

(ii) Senior Madrasah Education System within the meaning ofsub-clause(ii), of clause (g) of Section 2 of the West BengalBoard of Madrasah Education Act, 1994; or B

(iii) Higher Secondary Education;

Explanation1. – “recognised” with its grammatical variations,used with reference to a Madrasah, shall mean- (a) Recognized or deemed to have been reconized underthe West Bengal Board of Madrasah Education Act, 1994,or C

(b) Recognized under the West Bengal Council of HigherSecondary Education Act, 1975

Explanation II. – “Aided” with its grammatical variations, usedwith reference to a Madrasah, shall mean aided by the StateGovernment in the shape of financial assistance towards basicpay of the teachers of Madrasah.

D

Explanation III. – “basic pay” shall mean the monthly pay of ateacher of a Madrasah which corresponds to a stage in thetimescale of pay of the post held by the teacher in that madrasah, E

Explanation IV.- “Madrasah Education” shall have the samemeaning as in clause (g) of section 2 of the West Bengal Board ofMadrasah Education Act, 1994; Explanation V.- “Higher Secondary Education” shall have the samemeaning as in clause (d) of section 2 of the West Bengal Councilof Higher Secondary Education Act, 1975.

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(s) “Teacher” means an Assistant Teacher, or any other personholding a teaching post of a madrasah recognised as such by theBoard or the Council, as the case may be, and shall include theheadmaster, the Headmistress or the Superintendent.

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(t) “vacant post” means a vacancy, caused by–

(i) creation of new post by the State Government, or A

(ii) retirement, death, resignation, removal or dismissal of anyperson from the post of teacher, the post having been sanctionedby the Competent authority or the State Government, but shall not include a short-term vacancy due to deputation, leaveor lien and that of a part time post or the post of AssistantHeadmaster or Assistant Headmistress.”B

9.2 Section 4 deals with composition of the Commission and is to the following effect:- “4. (i) The Commission shall consist of one Chairman and fourmembers.

C(ii) The Chairman shall be an eminent educationist having profoundknowledge in Islamic Culture and well-versed in education andteaching experience, either as a teacher of a university, or as aPrincipal of a college, for a period of not less than twelve years,or as a teacher, other than Principal of a college, for a period ofnot less than fifteen years, or an officer of the State GovernmentDnot below the rank of Joint Secretary.

(iii) Of the four members under sub-section (1), one shall be aperson who, not being an educationist, occupies or has occupied,in the opinion of the State Government, a position of eminence inpublic life or in Legal or Administrative service, one shall be anEeminent educationist having profound knowledge in IslamicTheology and Culture, and the others shall have teachingexperience, either as a teacher of a university, or as a Principal ofa college, for a period of not less than ten years, or as a teacher,other than Principal of a college, or as a Headmaster orHeadmistress or Superintendent of a Madrasah, for a period ofFnot less than fifteen years.”

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9.3 Sections 8, 10, 11, 12, 13 and 18 of the Commission Act are as under:- “8. Notwithstanding anything contained in any other law for thetime being in force or in any contract, custom or usage to thecontrary, it shall be the duty of the Commission to select andrecommend persons to be appointed to the vacant posts of teachersin accordance with the provisions of this Act and the rules madethereunder.

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10. Notwithstanding anything contained in any other law for thetime being in force or any contract, custom or usage to the contrary,the Managing Committee, the ad hoc Committee or theAdministrator, as the case may be, shall be bound to appoint thecandidate recommended by the Commission to the post of teacherin the Madrasah concerned as per vacancy report.

Provided that in the absence of the Managing Committee, ad hocCommittee or the Administrator, the Head Master or theHeadmistress or the Teacher-In-charge is empowered to issueappointment letter to the candidate recommended by theCommission. Such matter should be ratified at the next availablemeeting of the Managing Committee, ad hoc Committee or by theAdministrator, as the case may be:

Provided further that the Managing Committee, ad hoc Committee,the Administrator or the Headmaster or the Headmistress or theTeacher-in-charge as the case may be, shall, if any error isdetected in the recommendation, immediately bring it to the noticeof the Commission for removal of such error.

11. Any appointment of a teacher made on or after thecommencement of this Act in contravention of the provision ofthis Act shall be invalid and shall have no effect and teacher soappointed shall not be a teacher within the meaning of clause (s)of Section 2.

12. (i) If the Managing Committee, the ad hoc Committee or theAdministrator of a Madrasah, as the case may be, refuses, failsor delays to issue appointment letter to the candidate recommendedby the Commission within the period stipulated in the letter ofrecommendation by the Commission, without any reasonableground, the State Government may direct the Board to dissolvethe Managing Committee or the ad hoc Committee, or dischargethe Administrator, as the case may be, or stop all financial assistanceto such Madrasah recording reasons thereof and may also issuedirection upon the Board or Council, as the case be, to withdrawrecognition or affiliation of such Madrasah.

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(ii) In case of failure to issue appointment letter to the candidaterecommended by the Commission is on the part of theSuperintendent, the Headmaster, the Headmistress or the Teacher-in-charge of a Madrasah, he shall be subject to such disciplinaryproceedings as may be prescribed.

13. Notwithstanding anything contained elsewhere in this Act, theterms and conditions of service of teachers in the employment ofa Madrasah immediately before the commencement of this Act,shall not be varied to the disadvantage of such teachers in so faras such terms and conditions relate to the appointment of suchteachers to the posts held by them immediately before thecommencement of this Act.

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18. (1) The State Government may, by notification, make rulesfor carrying out the purposes of this Act.

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(2) In particular, and without prejudice to the generality of theforegoing power, such rules may provide for all or any of thefollowing matters:- (a)the terms and conditions of service of the Chairman andother members under section 5; E

(b) the manner in which an inquiry is to be made for removalof the Chairman or any member under section 6;

(c) the terms and conditions of service of the Secretary undersection 7; (d)the manner and scope of selection of persons forappointment to the posts of teachers under section 9; F

(e) any other matter which may be, or is required to be,prescribed.

(3) Every rule made by the State Government under thisGAct shall be laid, as soon as may be after it is made, before theState Legislature.”

10. The West Bengal Madrasah Service Commission(Amendment) Act, 2010 made certain amendments in the CommissionAct. Section 2 of the Amendment Act is to the following effect:- H

“2. In section 8 of the West Bengal Madrasah Service CommissionAct, 2008 (hereinafter referred to as the principal Act), after thewords “or the Non-teaching staff’, the words “and also torecommend the transfer including mutual transfer of the teachersof the Non-teaching staff’ shall be inserted.”

11. In exercise of power conferred by the provisions of theCommission Act, the West Bengal Madrasah Service CommissionRecruitment (selection and recommendation of persons for appointmentand transfer to the posts of teaching and non-teaching staff) Rules, 2010(“2010 Rules”, for short) were promulgated. Chapter-III of 2010 Rulesdeals with subject “Scope, Method and Manner of Selection” and Rule8 is to the following effect:- “8. Manner of selection –

(1) Selection to any post shall be made on the basis of results ofthe State/Region/Area Level Selection Test, as may be decidedby the Commission, which may comprise any, some or all ofthe following (as the case may be) –

a) Written Examination

b) Evaluation of Qualification

c) Personality Test

d) Aptitude Test

of the candidates, as the case may be, in the manner asspecified in Schedule III

(2) The Commission may, in its discretion, fix the minimumqualifying marks to be scored/obtained by the candidates inwritten examination or in aggregate or in both and relax thequalifying marks on reasonable ground(s) to be recorded inwriting ….”

RIVAL SUBMISSIONS:

12. In accordance with the provisions of the Commission Act and2010 Rules, the Madrasah Service Commission kept makingrecommendations against vacant posts which had arisen from time totime. Various candidates were appointed as teachers. However, achallenge was raised by the Respondent No.1 by filing Writ Petition A

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ANo.20650(W) of 2013 as stated hereinabove. It was submitted that interms of Section 10 of the Commission Act, the Managing Committee orthe Administrator would be bound to appoint the candidates recommendedby the Madrasah Service Commission and the consequence of notfollowing such recommendation would visit penalty as provided for inSection 12; and that if the Writ Petitioner, as a minority institution, wasBentitled to administer institution of its choice, it would have a correspondingright to select teachers on its own and that any deprivation of such rightwould be violative of the Right conferred by Article 30 of the Constitution.

On the other hand, it was submitted on behalf of the State thatunder the provisions of the Commission Act, the Commission would merelyCselect and recommend teachers and non-teaching staff of Madrasahsbut the appointment would be given by the concerned institution and theoverall control of the Managing Committees of the concerned institutesin respect of such staff was not taken away by the Respondents and theday-to-day administration of the Madrasahs was not interfered with. ItDwas further submitted that the number of Madrasahs in the State was614 and the Madrashs imparted education in accordance with the syllabusprescribed by the competent authority in respect of all subjects, exceptArabic and Urdu; that most of the Madrasahs were located in the remoteareas of the State and the student population taking education in theseMadrasahs was about 5,00,000. The submission was that the State wasErendering necessary aid and help to the Managing Committees in findinggood quality teachers as per qualifications prescribed by the NationalCouncil for Teacher Education for imparting quality education to thestudents and the whole purpose behind the legislation was to provide thestudents with good quality teaching. The submission was paraphrasedFby the Single Judge as under:- “For the respondents there are primarily two grounds justifyingthe relevant provisions of such a legislation. First, the concernedMadrasah is fully aided for its financial requirements which isfulfilled by the State Government. Therefore, it is bound to followGrecruitment procedures for fair and comparative selection ofteachers. Secondly, in terms of the provisions of the impugnedAct the Commission merely selects and recommends a teacherbut overall control of such staff lies with the Managing Committeewhere the government does not interfere. Thus the role of theCommission is that of a mere recommendatory body appointedHby the government.”

DECISIONS OF THE HIGH COURT IN THE PRESENTAPPEALS

13. Relying on the decisions of this Court in State of Kerala, etcvs. Very Rev. Mother Provincial, etc[4] and Ahmedabad St. Xavier’sCollege Society and Another vs. State of Gujarat and Another[5] theSingle Judge observed:- “The Supreme Court has also held that the right to administer aninstitution is primarily to consist of four principal aspects. First,the right to chose its managing or governing body. It is said thatthe founders of the minority institution have faith and confidencein their committee or body consisting of persons selected by them.Secondly, the right to choose its teachers having compatibility withtheir ideals, aims and aspirations. Third is the right not to becompelled to refuse admission to the students. Fourthly, the rightto use its properties and assets for the benefit of its institution.This judgment thus unambiguously recognizes that the right toselect its teachers is a part of the right to administer an institutionwhich Article 30 has conferred on it. The reasons for that hasalso been very clearly explained in the judgment … … …”

13.1 The Single Judge relied upon the decisions of this Court inSecretary, Malankara Syrian Catholic vs. T. Jose and others[6] andSindhi Education Society and another vs. Chief Secretary,Government of NCT of Delhi and others[7] and posed followingquestion:- “That regulatory measures are permissible to a limited extent hasbeen judicially accepted. But does the provision impugned in thislegislation qualify for being passed as a regulatory measure? Inview of the well defined parameters of the regulatory measurescan it be said that taking away the right of selection of teachersfrom the jurisdiction of the petitioners is also an act to regulate theaffairs of the Madrasah and not to interfere with its administration?Answers to these queries are essentially related to a resolution ofthe present dispute.”

4 (1970) 2 SCC 417

5 (1974) 1 SCC 717

6 (2007) 1 SCC 386

7 (2010) 8 SCC 49

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4 (1970) 2 SCC 417

5 (1974) 1 SCC 717

6 (2007) 1 SCC 386

7 (2010) 8 SCC 49

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A13.2 Further, after referring to the decision in Ahmedabad St.Xavier’s College[5]the Single Judge observed:- “… …The State can prescribe regulations to ensure the excellenceof the institution. Prescription of standards for educationalinstitutions does not militate against the right of the minority toadminister the institutions. Regulations made in the true interestof efficiency of instructions, discipline, health, sanitation, morality,public order and the like may undoubtedly be imposed. It hasbeen specifically laid down hat such regulations are not restrictionson the subsistence of the right which is guaranteed. On the otherhand, they secure the proper functioning of the institution in mattersof education. The minority institutions cannot be allowed to fallbelow the standards of excellence expected of an educationalinstitution or under the guise of exclusive right of management todecline to follow the general patern.”

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13.3. The Single Judge then concluded:-

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“Thus, I find that the impugned provisions of the Act tend to takeaway the protected right conferred upon the minorities to administerinstitutions according to their choice. The right of the Commissionto select and recommend teachers for these institutions in a verymajor way interferes with the right to administer those institutionsrendering a constitutional mandate virtually ineffective. Theperception of a prevailing social reality cannot circuitouslycircumvent a constitutional protection.

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The impugned provisions of the Act are thus not only not inconsonance with the protection guaranteed by the Constitutionbut are definitely in derogation thereof. Section 8 of the Act cannotbe read in isolation. Read with the subsequent provisions there isan element of compulsion in the effect of the recommendationmade by the Commission which is really against the freedomguaranteed in Article 30 of the Constitution of India. Section 8 ofthe said Act is hereby declared ultra vires the Constitution. Inview of what has been discussed before the prayer of the petitioneris moulded and Sections 10, 11 and 12 of the act are also declaredultra vires the Constitution.”

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14. The challenge raised by the Commission, by the State as wellas by the teachers who were recommended under the provisions of the H

Commission Act was rejected by the Division Bench of the High Court,while accepting the view taken by the Single Judge. The Division Benchobserved:-

“The present enactment is sought to be defended by the State onthe ground of funding the institutions and opinion that it is onlyrecommendatory process and not interference with the overalladministration of the institutions. We are afraid whatever by thenature of recommendations it would definitely touch upon theadministrative authority or control to be exercised by the minorityinstitutions while administering their institutions in every aspectand respect since institutions would not have the option to chooseindividuals beyond the recommendations so made. Hence, thescheme of the Act instead of being regulatory, prohibits the freedomof minority institutions in selecting its own personnel. It is onething to regulate the process of appointment by providing guidelinesetc. it is however entirely different to clog the right of choice ofthe minority institution by prohibiting them to choose any candidateotherwise eligible except from those recommended by theCommission. Since appointment of teachers etc. is very relevantso far as the quality of education is concerned, if there are anymala fides statutory infirmities brought to the notice of the StateGovernment as it is completely funded by the State Government,it is open to the State Government to withdraw financial support ifmala fides/illegalities are found in such process of selection ofteaching staff etc. Such right is always with the State Governmentirrespective of minority institutions or other institutions.

So far as the present enactment is concerned, we cannotdeviate from the opinion of the learned Single Judge that such actis nothing but violation of the Fundamental Rights guaranteed bythe Constitution in terms of Article 29 and 30 of the Constitutionof India. Therefore, we decline to interfere with the opinionexpressed by the learned Single Judge and accordingly appealsdeserve to be dismissed.

We have also heard the submissions made by the learnedCounsel who are appearing for some of the teachers who arealready appointed and are in service for the last five years orwaiting for the appointment of teachers as empanelled in the list.

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ASince the Act of 2008, according to us is nothing but violationof the Fundamental Rights guaranteed by the Constitution to theminority institutions, it is exclusively left to the concernedMadrasahs either to accept contention of such teachers, who arealready in service and permit them to continue in service and/orto provide appointment to the candidates who are empanelled byBthe Commission awaiting such appointment.

With these observations, the appeals are disposed of alongwith the connection applications.”

15. We heard Mr. Mohan Parasaran, Mr. Kalyan Banerjee, Mr.CHuzefa Ahmadi, Mr. Jayant Bhushan, Mr. Jaideep Gupta, Mr. SalmanKhursheed and Mr. P.S. Patwalia, learned Senior Advocates appearingfor various parties and other learned Advocates who took us through therelevant decisions holding the field and also invited our attention to variousstatutory provisions. Since the submissions, to a certain extent, wereover lapping, we are not dealing with the submissions advanced by theDlearned Counsel individually.

16. The basic issues which arise for consideration are whetherthe provisions, namely, Sections 8, 10, 11 and 12 of the Commission Actare ultra vires as held by the High Court and whether these provisionstransgress the right of minority institutions guaranteed under theEConstitution of India. Before we deal with the basic issues raised inthese appeals, the various decisions touching upon the extent of rights ofminority institutions as guaranteed by the Constitution, need to be advertedto. Since the decision of this Court in TMA Pai Foundation and othersvs. State of Karnataka and others[8] was rendered by a Bench of ElevenFJudges, we have divided the discussion under three headings coveringrelevant decisions:-

A) Decisions upto TMA Pai Foundation;

B) Decision in TMA Pai Foundation; and

C) Decisions after TMA Pai Foundation.G

A) Decisions upto TMA Pai Foundation

17. In Re: The Kerala Education Bill, 1957[9], a seven JudgeBench of this Court dealt with a reference made by the President of 8 (2002) 8 SCC 481H9 (1959) SCR 995

India under Article 143(1) of the Constitution in respect of the KeralaEducation Bill, 1957. Some of the salient features of the Bill wereparaphrased in the majority opinion delivered by S.R. Das, C.J. andinsofar as the present case is concerned, the relevant discussion was:- “Clause 9 makes it obligatory on the Government to pay the salaryof all teachers in aided schools direct or through the headmasterof the school and also to pay the salary of the non-teaching staffof the aided schools. It gives power to the Government to prescribethe number of persons to be appointed in the non-teachingestablishment of aided schools, their salaries, qualifications andother conditions of service. The Government is authorised, undersub-clause (3), to pay to the manager a maintenance grant atsuch rates as may be prescribed and under sub-clause (4) to makegrants-in-aid for the purchase, improvement and repairs of anyland, building or equipment of an aided school. Clause 10 requiresGovernment to prescribe the qualifications to be possessed bypersons for appointment as teachers in Government schools andin private schools which, by the definition, means aided orrecognised schools. The State Public Service Commission isempowered to select candidates for appointment as teachers inGovernment and aided schools according to the procedure laiddown in clause 11. Shortly put, the procedure is that before the31st May of each year the Public Service Commission shall selectfor each district separately candidates with due regard to theprobable number of vacancies of teachers that may arise in thecourse of the year, that the list of candidates so selected shall bepublished in the Gazette and that the manager shall appoint teachersof aided schools only from the candidates so selected for the districtin which the school is located subject to the proviso that themanager may, for sufficient reason, with the permission of theCommission, appoint teachers selected for any other district.Appointment of teachers in Government schools are also to bemade from the list of candidates so published. In selectingcandidates the Commission is to have regard to the provisionsmade by the Government under clause (4) of Art. 16 of theConstitution, that is to say, give representation in the educationalservice to persons belonging to the Scheduled Castes or Tribes–aprovision which has been severely criticised by learned counsel A

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SUPREME COURT REPORTS

appearing for the Anglo-Indian and Muslim communities.”

(Emphasis supplied)

17. 1 The grievance as raised was set out as under:- “Their grievances are thus stated : The gist of the right ofadministration of a school is the power of appointment, controland dismissal of teachers and other staff. But under the said Billsuch power of management is practically taken away. Thus themanager must submit annual statements (cl. 5). The fixed assetsof the aided schools are frozen and cannot be dealt with exceptwith the permission of the authorised officer (cl. 6). No educationalagency of an aided school can appoint a manager of its choiceand the manager is completely under the control of the authorisedofficer, for he must keep accounts in the manner he is told to doand give periodical inspection of them, and on the closure of theschool the accounts must be made over to the authorised officer(cl. 7). All fees etc. collected will have to be made over to theGovernment (cl. 8(3)). Government will take up the task of payingthe teachers and the non-teaching staff (clause 9). Governmentwill prescribe the qualification of teachers (clause 10). The schoolauthorities cannot appoint a single teacher of their choice, butmust appoint persons out of the panel settled by the Public ServiceCommission (clause 11). The school authorities must provideamenities to teachers and cannot dismiss, remove, reduce or evensuspend a teacher without the previous sanction of the authorisedofficer (clause 12).

(Emphasis supplied)

17. 2 The majority opinion observed:-

“We are thus faced with a problem of considerable complexityapparently difficult of solution. There is, on the one hand the minorityrights under Art. 30(1) to establish and administer educationalinstitutions of their choice and the duty of the Government topromote education, there is, on the other side the obligation of theState under Art. 45 to endeavour to introduce free and compulsoryeducation. We have to reconcile between these two conflictinginterests and to give effect to both if that is possible and bringabout a synthesis between the two. The directive principles cannotignore or override the fundamental rights but must, as we have said, subserve the fundamental rights.We have already observedthat Art. 30(1) gives two rights to the minorities, (1) to establishand (2) to administer, educational institutions of their choice. Theright to administer cannot obviously include the right to mal-administer. The minority cannot surely ask for aid or recognitionfor an educational institution run by them in unhealthy surroundings,without any competent teachers, possessing any semblance ofqualification, and which does not maintain even a fair standard ofteaching or which teaches matters subversive of the welfare ofthe scholars. It stands to reason, then, that the constitutional rightto administer an educational institution of their choice does notnecessarily militate against the claim of the State to insist that inorder to grant aid the State may prescribe reasonable regulationsto ensure the excellence of the institutions to be aided.LearnedAttorney-General concedes that reasonable regulations maycertainly be imposed by the State as a condition for aid or evenfor recognition….”

“…..Clauses 6, 7, 9, 10, 11, 12, 14, 15 and 20 relate to themanagement of aided schools. Some of these provisions, e.g., 7,10, 11(1), 12(1)(2)(3) and (5) may easily be regarded as reasonableregulations or conditions for the grant of aid.Clauses 9, 11(2) and12(4) are, however, objected to as going much beyond thepermissible limit. It is said that by taking over the collections offees, etc., and by undertaking to pay the salaries of the teachersand other staff the Government is in reality confiscating the schoolfund and taking away the prestige of the school, for none willcare for the school authority. Likewise clause 11 takes away anobvious item of management, for the manager cannot appoint anyteacher at all except out of the panel to be prepared by the PublicService Commission, which, apart from the question of its powerof taking up such duties, may not be qualified at all to selectteachers who will be acceptable to religious denominations and in-particular subclause (2) of that clause is objectionable for it thrustsupon educational institutions of religious minorities teachers ofScheduled Castes who may have no knowledge of the tenets oftheir religion and may be otherwise weak educationally.Power ofdismissal, removal, reduction in rank or suspension is an index ofthe right of management and that is taken away by clause 12(4).

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AThese are, no doubt, serious inroads on the right of administrationand appear perilously near violating that right. But consideringthat those provisions are applicable to all educational institutionsand that the impugned parts of cls. 9, 11 and 12 are designed togive protection and security to the ill paid teachers who are engagedin rendering service to the nation and protect the backward classes,Bwe are prepared, as at present advised, to treat these clauses 9,11(2) and 12(4) as permissible regulations which the State mayimpose on the minorities as a condition for granting aid to theireducational institutions.We, however, find it impossible to supportcls. 14 and 15 of the said Bill as mere regulations. The provisionsCof those clauses may be totally destructive of the rights underArt. 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 oftheir factual compulsion as condition of aid, may easily be violativeof Art. 30(1) of the Constitution. Learned counsel for the State ofKerala recognizes that cls. 14 and 15 of the Bill may annihilateDthe minority communities’ right to manage educational institutionsof their choice but submits that the validity of those clauses is notthe subject-matter of question 2. But, as already explained, allnewly established schools seeking aid or recognition are, by clause3(5), made subject to all the provisions of the Act. Therefore, in aEdiscussion as to the constitution validity of clause 3(5) a discussionof the validity of the other clauses of the Bill becomes relevant,not as and by way of a separate item but in determining the validityof the provisions of clause 3(5). In our opinion, sub-clause 3 ofclause 8 and cls. 9, 10, 11, 12 and 13 being merely regulatory donot offend Art. 30(1), but the provisions of sub-clause (5) of clauseF3 by making the aided educational institutions subject to cls. 14and 15 as conditions for the grant of aid do offend against Art.30(1) of the Constitution.”

(Emphasis supplied)

G18. In Rev. Sidhajbhai Sabhai and Others v. State of Bombayand Another[10], a Bench of six Judges of this Court was called upon todecide following controversy:- “The petitioners moved this Court for a writ in the nature ofmandamus or other writ directing the State of Bombay and the H10 (1963) 3 SCR 837

Director of Education not to compel the society and the petitionersto reserve 80% or any seats in the training, College for “theGovernment nominated teacher” nor to compel the society andthe petitioners to comply with the provisions of Rules 5(2), 11, 12and 14 and not to withdraw recognition of the College or withholdgrant-in-aid under Rule 14 or otherwise.”

18.1 The petitioners, members of a religious denomination andconstituting a religious minority were running a Training College forteachers and 80% of the seats in all non-Government Training Collegeswere directed to be reserved for “the government nominated teachers”so that such trained teachers could then be absorbed in Primary andBasic Schools in the State run by District School or Municipal Boards.

18.2 It was submitted on behalf of the State that since the Schoolrun by the Petitioners was receiving grant from the State, the State waswithin its rights to direct reservation of seats as above. After referringto the decision of this Court in Re: The Kerala Education Bill case[9], itwas observed by this Court as under:- “Article 30(1) provides that all minorities have the right to establishand administer educational institutions of their choice, and Art.30(2) enjoins the State, in granting aid to educational institutionsnot to discriminate against any educational institution on the groundthat it is under the management of a minority, whether based onreligion or language. Clause (2) is only a phase of the non-discrimination clause of the Constitution and does not derogatefrom the provisions made in clause (1). The clause is moulded interms negative : the State is thereby enjoined not to discriminatein granting aid to educational institutions on the ground that themanagement of the institution is in the hands of a minority, religiousor linguistic, but the form is not susceptible of the inference thatthe State is competent otherwise to discriminate so as to imposerestrictions upon the substance of the right to establish andadminister educational institutions by minorities, religious orlinguistic. Unlike Art. 19, the fundamental freedom under clause(1) of Art. 30, is absolute in terms; it is not made subject to anyreasonable restrictions of the nature the fundamental freedomsenunciated in Art. 19 may be subjected to.All minorities, linguistic A

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or religious have by Art. 30(1) an absolute right to establish andadminister educational institutions of their choice; and any law orexecutive direction which seeks to infringe the substance of thatright 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 regulationsupon the exercise of this right. The fundamental freedom is toestablish and to administer educational institutions : it is a right toestablish and administer what are in truth educational institutions,institutions which cater to the educational needs of the citizens, orsections thereof. Regulation made in the true interests of efficiencyof instruction, discipline, health, sanitation, morality, public orderand the like may undoubtedly be imposed. Such regulations arenot restrictions on the substance of the right which is guaranteed: they secure the proper functioning of the institution, in matterseducational.

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18.3 The effect of the opinion in Re: The Kerala EducationBill[9] was considered as under:-

It was therefore held that notwithstanding the absolute terms inwhich the fundamental freedom under Art. 30(1) was guaranteed,it was open to the state by legislation or by executive direction toEimpose reasonable regulation. The Court did not, however, laydown any test of reasonableness of the regulation. The Court didnot decide that public or national interest was the sole measure ortest of reasonableness: it also did not decide that a regulationwould be deemed unreasonable only if it was totally destructiveFof the right of the minority to administer educational institution.No general principle on which reasonableness or otherwise of aregulation may be tested was sought to be laid down by the Court.The Kerala Education Bill case[9], therefore, is not an authority forthe proposition submitted by the Additional Solicitor General thatall regulative measures which are not destructive or annihilativeGof the character of the institution established by the minority,provided the regulations are in the national or public interest, arevalid.”

The right established by Art. 30(1) is a fundamental right declaredin terms absolute. Unlike the fundamental freedoms guaranteedby Art. 19, it is not subject to reasonable restrictions. It is intended H

to be a real right for the protection of the minorities in the matterof setting up of educational institutions of their own choice. Theright is intended to be effective and is not to be whittled down byso called regulative measures conceived in the interest not of theminority educational institution, but of the public or the nation as awhole. If every order which while maintaining the formal characterof a minority institution destroys the power of administration isheld justifiable because it is in the public or national interest, thoughnot in its interest as an educational institution, the right guaranteedby Art. 30(1) will be but a “teasing illusion”, a promise of unreality.Regulations which may lawfully be imposed either by legislativeor executive action as a condition of receiving grant or ofrecognition must be directed to making the institution while retainingits character as a minority institution effective as an educationalinstitution. Such regulation must satisfy a dual test - the test ofreasonableness, and the test that it is regulative of the educationalcharacter of the institution and is conducive to making the institutionan effective vehicle of education for the minority community orother persons who resort to it.”

(Emphasis supplied)

18.4 Finally, it was held,

“We are, therefore, of the view that the Rule 5(2) of the Rules forPrimary Training Colleges, and Rules 11 and 14 for recognition ofPrivate Training institutions, insofar as they relate to reservationof seats therein under orders of Government, and directions givenpursuant thereto regarding reservation of 80% of the seats andthe threat to withhold grant-in-aid and recognition of the college,infringe the fundamental freedom guaranteed to the petitionersunder Art. 30(1).”

19. In Rev. Father W. Proost and Others. vs. the State of Biharand Others[11], a Bench of five Judges of this Court was called upon toconsider the validity of certain provisions including Section 48-A of theBihar State Universities Act, 1960. In terms of said Section 48-A, noappointments, dismissals, removals and termination of service or reductionin rank of teachers could be made by the governing body of any collegewithout the recommendations of the University Service Commission.

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ABy virtue of Section 48A(6), the Commission was empowered torecommend to the governing body of a college for appointment to everypost of teacher, names of two persons arranged in order of preferencewhich were considered by the Commission to be the best qualified forsuch posts. While the challenge was pending in this Court, Section 48-B was introduced which stated inter alia that notwithstanding anythingBcontained in certain provisions including in sub-Section (6) of 48-A, thegoverning body of an affiliated College established by a minority wouldbe entitled to make appointments, dismissals, removals, termination ofservice or reduction in rank of teachers or other disciplinary measuressubject only to the approval of the Commission and the Syndicate of theCUniversity. Thus, instead of the Commission making the recommendationsunder the unamended provisions, now the governing body established bya minority could make appointments which were however subject to theapproval by the Commission and the Syndicate of the University. Whileallowing the petition this Court observed :- D“The learned Attorney General seeks to read into the protectiongranted by Art. 30(1) a corollary taken from Art. 29(1). Heconcedes that the Jesuits community is a minority community basedon religion and that, therefore, it has a right to establish andadminister educational institutions of its choice. But he contendsthat as the protection to minorities in Art. 29(1) is only a right toEconserve a distinct language, script or culture of its own, the collegedoes not qualify for the protection of Art. 30(1) because it is notfounded to conserve them. The question, therefore, is whetherthe college can only claim protection of s. 48-B of the Act readwith Art. 30(1) of the Constitution if it proves that the college isFfurthering the rights mentioned in Art. 29(1).

In our opinion, the width of Article 30(1) cannot be cut down byintroducing in it considerations on which Article 29(1) is based.The latter article is a general protection which is given to minoritiesto conserve their language, script or culture. The former is aGspecial right to minorities to establish educational institutions oftheir choice. This choice is not limited to institution seeking toconserve language, script or culture and the choice is not takenaway if the minority community having established an educationalinstitution of its choice also admits members of other communities.That is a circumstance irrelevant for the application of Article H

30(1) since no such limitation is expressed and none can be implied.The two articles create two separate rights, although it is possiblethat they may meet in a given case.

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In our judgment the language of Art. 30(1) is wide and must receivefull meaning. We are dealing with protection of minorities andattempts to whittle down the protection cannot be allowed. Weneed not enlarge the protection but we may not reduce a protectionnaturally flowing from the words. Here the protection clearlyflows from the words and there is nothing on the basis of whichaid can be sought from Art. 29(1).”

20. In State of Kerala, etc vs. Very Rev. Mother Provincial,etc[4], a Bench of six Judges of this Court considered challenge to certainprovisions of the Kerala University Act, 1969. The ambit of theconcerned provisions was set out by this Court as under:-

“16. Section 53, Sub-sections (1), (2) and (3) confer on theSyndicate of the University the power to veto even the action ofthe governing body or the managing council in the selection of theprincipal. Similarly, Sub-section (4) takes away from the educationalagency or the corporate management the right to select theteachers. The insistence on merit in Sub-section (4) or on seniority-cum-fitness in Sub-section (1) does not save the situation. Thepower is exercised not by the educational agency or the corporatemanagement but by a distinct and autonomous body under thecontrol of the Syndicate of the University. Indeed Sub-section (9)gives a right of appeal to the Syndicate to any person aggrievedby the action of governing body or the managing council thusmaking the Syndicate the final and absolute authority in thesematters. Coupled with this is the power of Vice-Chancellor andthe Syndicate in Sub-sections (2) and (4) of Section 56.”

20.1 Thereafter, this Court extracted the relevant provisions whichtook away the power to take disciplinary action from the governing bodyand the managing council and conferred it upon the University. Thedecision of the High Court which had found said provisions to be ultravires was affirmed by this Court as under:- A

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A“19. The result of the above analysis of the provisions which havebeen successfully challenged discloses that that High Court wasright in its appreciation of the true position in the light of theConstitution. We agree with the High Court that Sub-Sections (2)and (4) of Sections 48 and 49 are ultra vires Article 30(1). Indeedwe think that Sub-Sections (6) of these two sections are also ultraBvires. They offend more than the other two of which they are apart and parcel. We also agree that Sub-sections (1), (2), (3) and(9) of Section 53, Sub-Sections (2) and (4) of Section 56 are ultravires as they fail with Sections 48 and 49. We express no opinionregarding these sub-sections vis-a-vis Article 30(1). We also agreeCthat Section 58 (in so far as it removes disqualification which thefounders may not like to agree to) and Section 63 are ultra viresArticles 30(1) in respect of the minority institutions. The HighCourt has held that the provisions (Except Section 63) are alsooffensive to Article 19(1)(f) in so far as the petitioners are citizensof India both in respect of majority as well as minority institutions.DThis was at first debated at least in so far as majority institutionswere concerned. The majority institutions invoked Article 14 andcomplained of discrimination. However, at a later stage ofproceedings Mr. Mohan Kumaramangalam stated that he hadinstructions to say that any provision held inapplicable to minorityEinstitutions would not be enforced against the majority institutionsalso. Hence it relieves us of the task of considering the matterunder Article 19(1)(f) not only in respect of minority institutionsbut in respect of majority institutions also. The provisions of Section63 affect both kinds of institutions alike and must be declaredultra vires in respect of both.”

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21. In D.A.V. College, etc.. vs. State of Punjab and Others[11], aBench of five Judges of this Court considered the challenge to certainprovisions of the Guru Nanak University, Amritsar, Act, 1969 andnotifications issued pursuant thereto. Under Section 2(1)(a) of the Act,a College applying for admission to the privileges of the University wasGobliged to have a regularly constituted governing body consisting of notmore than 20 persons approved by the Senate which body must alsoinclude two representatives of the University. Section 17 required thatthe staff initially appointed must be approved by the Vice Chancellorand any subsequent changes be reported to the University for Vice- H

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Chancellor’s approval. These Sections were struck down by this Courtas affecting the fundamental rights of the petitioners. During the courseof its discussion this Court stated as under:- “36. We have already seen that in Rev. Father W. Proost andOrs. v. the State of Bihar and Ors.[11], the provisions of Section48(A) which required the selection of the teachers of all affiliatedColleges including the Colleges established by the minorities, tobe made by the University Service Commission, was held tointerfere with the rights of the petitioners in that case. In thatcase, while the petition was pending in the Court, Section 48 (B)was added to the Bihar State University Act wherebynotwithstanding the provisions of Section 48 (A) exemption wasgiven to the minority institutions to make appointments with theapproval of the Commission and the Syndicate, the petitionersclaimed exemption under Section 48(B) and submitted that as anaffiliated College established by a minority based on religion orlanguage they are exempted from Section 48 (A) and that if thispetition was accepted they will withdraw the petition which hadbecome superfluous. Even this prayer was not acceded to by theState and consequently it was held that they were entitled to theexemption claimed. This decision is not therefore an authority forthe proposition that even the requirement that the staff of a minorityeducational institution be appointed, dismissed or removed onlywith the approval of the University or the State does not infringethe right to administer the institution guaranteed under Article 30(1).

37. In our view there is no possible justification for the provisionscontained in Clauses 2(1)(a) and 17 of Chapter V of the statuteswhich decidedly interfere with the rights of management of thepetitioners colleges. These provisions cannot therefore be madeas conditions of affiliation, the non-compliance of which wouldinvolve disaffiliation and consequently they will have to be struckdown as offending Article 30(1).

38. Clause 18 however in our view does not suffer from the samevice as Clause 17 because that provision in so far as it is applicableto the minority institutions empowers the University to prescribeby regulations governing the service and conduct of teachers whichis enacted in the larger interests of the Institutions to ensure theirefficiency and excellence. It may for instance issue an ordinance A

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Ain respect of age of superannuation or prescribe minimumqualifications for teachers to be employed by such Institutionseither generally or in particular subjects. Uniformity in theconditions of service and conduct of teachers in all non-GovernmentColleges would make for harmony and avoid frustration. Of coursewhile the power to make ordinances in respect of the mattersBreferred to is unexceptional the nature of the infringement of theright, if any, under Article 30(1) will depend on the actual purposeand import of the ordinance when made and the manner in whichit is likely to affect the administration of the educational institution,about which it is not possible now to predicate.”C

22. In Ahmedabad St. Xavier’s College Society and Anothervs. State of Gujarat and Another[5] the applicability of some of theprovisions of the Gujarat University Act, 1949 to a college run by aminority was in issue before a Bench of nine Judges of this Court. Threesets of provisions were impeached as being violative of Article 30, viz.D(i) Sections 40 and 41 in terms of which all colleges within the Universityarea would be governed by the statutes of the University which mayprovide for minimum educational qualifications for teachers and tutorialstaff and the University may approve the appointments of teachers andmay coordinate and regulate the facilities provided and expenditureincurred by such colleges for teaching and research; (ii) SectionsE33A(1)(a) and 33A(1)(b) under which the management of a governingbody of every college must include amongst others, a representative ofthe University nominated by the Vice-Chancellor and threerepresentatives of the teachers of the college and at least onerepresentative each of the members of the non-teaching staff and theFstudents of the college. Further, under Section 33A(1)(b), for the purposesof recruitment of the principal and members of the teaching staff, therewould be a selection committee, which, in the case of recruitment of theprincipal, must include a representative of the University nominated bythe Vice-Chancellor and in case of recruitment of a member of teaching staff, a representative of the University nominated by the Vice-ChancellorGand the Head of the Department concerned with the subject taught bysuch teacher; (iii) Sections 51A and 52A in terms of which no memberof teaching and non-teaching staff of any affiliated college could bedismissed or removed from service or reduced in rank, except after aninquiry; no termination of service of any such member would be validH

unless such termination was approved by the Vice-Chancellor; and anydispute between the governing body of the college and any member ofthe teaching or non-teaching staff must be referred to a Tribunal ofArbitration consisting of one member nominated by the governing bodyof the college, one member nominated by the concerned member andan Umpire to be nominated by the Vice-Chancellor.

22.1. In the leading Judgment authored by Ray, C.J., for himselfand Palekar, J., the extent of “right to administer” under Article 30 of theConstitution and the effect of regulatory measures upon the width ofsaid right was summed up as under:- “19. … … The right to administer is said to consist of four principalmatters. First is the right to choose its managing or governingbody. It is said that the founders of the minority institution havefaith and confidence in their own committee or body consisting ofpersons elected by them. Second is the right to choose its teachers.It is said that minority institutions want teachers to havecompatibility with the ideals, aims and aspirations of the institution.Third is the right not to be compelled to refuse admission to students.In other words, the minority institutions want to have the right toadmit students of their choice subject to reasonable regulationsabout academic qualifications. Fourth is the right to use itsproperties and assets for the benefit of its own institution.

20. The right conferred on the religious and linguistic minorities toadminister educational institutions of their choice is not an absoluteright. This right is not free from regulation. Just as regulatorymeasures are necessary for maintaining the educational characterand content of minority institutions similarly regulatory measuresare necessary for ensuring orderly, efficient and soundadministration. Das, C.J., in the Kerala Education Bill casesummed up in one sentence the true meaning of the right toadminister by saying that the right to administer is not the right tomal-administer.

22.1.1 While considering the importance of teachers in aneducational institution, Ray, C.J., stated:-

“30. Educational institutions are temples of learning. The virtuesof human intelligence are mastered and harmonised by education.Where there is complete harmony between the teacher and the A

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taught, where the teacher imparts and the student receives, wherethere is complete dedication of the teacher and the taught inlearning, where there is discipline between the teacher and thetaught, where both are worshippers of learning, no discord orchallenge will arise. An educational institution runs smoothly whenthe teacher and the taught are engaged in the common ideal ofpursuit of knowledge. It is, therefore, manifest that the appointmentof teachers is an important part in educational institutions. Thequalifications and the character of the teachers are reallyimportant. The minority institutions have the right to administerinstitutions. This right implies the obligation and duty of the minorityinstitutions to render the very best to the students. In the right ofadministration, checks and balances in the shape of regulatorymeasures are required to ensure the appointment of good teachersand their conditions of service.The right to administer is to betempered with regulatory measures to facilitate smoothadministration. The best administration will reveal no trace or colourof minority. A minority institution should shine in exemplaryeclectism in the administration of the institution. The bestcompliment that can be paid to a minority institution is that it doesnot rest on or proclaim its minority character.

31. Regulations which will serve the interests of the students,regulations which will serve the interests of the teachers are ofparamount importance in good administration. Regulations in theinterest of efficiency of teachers, discipline and fairness inadministration are necessary for preserving harmony amongaffiliated institutions.

32. Education should be a great cohesive force in developingintegrity of the nation. Education develops the ethos of the nation.Regulations are, therefore, necessary to see that there are nodivisive or disintegrating forces in administration.”

(Emphasis supplied)

22.1.2 The conclusion arrived at by the learned Chief Justice was:- “45. For these reasons the provisions contained in Sections 40,41, 33-A(1)(a), 33-A(1)(b), 51-A and 52-A cannot be applied tominority institutions. These provisions violate the fundamental rightsof the minority institutions.

46. The ultimate goal of a minority institution too imparting generalsecular education is advancement of learning. This Court hasconsistently held that it is not only permissible but also desirable toregulate everything in educational and academic matters forachieving excellence and uniformity in standards of education.

47. In the field of administration it is not reasonable to claim thatminority institutions will have complete autonomy. Checks on theadministration may be necessary in order to ensure that theadministration is efficient and sound and will serve the academicneeds of the institution. The right of a minority to administer itseducational institution involves, as part of it, a correlative duty ofgood administration.

48. The teachers and the taught form a world of their own whereeverybody is a votary of learning. They should not be made toknow any distinction. Their harmony rests on dedicated anddisciplined pursuit of learning. The areas of administration ofminorities should be adjusted to concentrate on making learningmost excellent. That is possible only when all institutions followthe motto that the institutions are places for worship of learningby the students and the teachers together irrespective of anydenomination and distinction.”

(Emphasis supplied)

(Emphasis supplied)

22.2 While agreeing with the view taken by the learned ChiefJustice with respect to aforestated provisions, Jaganmohan Reddy J.,speaking for himself and Alagiriswami J., also juxtaposed provisions invarious statutes which had come up for consideration before this Courtfrom time to time. As regards the opinion in Re: The Kerala EducationBill, 1957[9], it was observed:- “The scope and ambit of the rights under Articles 29(1) and 30(1)were first considered and analysed by this Court while giving itsadvice on the Presidential Reference under Article 143 of theConstitution in Re the Kerala Education Bill, 1957. The reportwhich was made to the President in that Reference, it is true, isnot binding on this Court in any subsequent matter wherein in aconcrete case the in fringement of the rights under any analogousprovision may be called in question, though it is entitled to greatweight. Under Article 143 this Court expresses its opinion if it so A

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Achooses and in some cases it might even decline to express itsopinion, vide In Re Levy of Estate Duty[12] cited with approval byDas, C.J. in In re The Kerala Education Bill, 1957. In somecases the opinion may be based on certain stated contingenciesor on some assumed or hypothetical situations whereas in aconcrete case coming before this Court by way of an appeal underBArticle 133, or by special leave under Article 136 or by a petitionunder Article 32, the law declared by it by virtue of Article 141 isbinding on all courts within the territory of India. Nonetheless theexposition of the various facets of the rights under Article 29(1)and Article 30(1) by Das, C.J. speaking for the majority, with theCutmost clarity, great perspicuity and wisdom has been the textfrom which this Court has drawn its sustenance in its subsequentdecisions. To the extent that this Court has applied these principlesto concrete cases there can be no question of there being anyconflict with what has been observed by Das, C.J. The decisionsrendered on analogous provisions as those that are under challengeDin this case would prima facie govern these cases, unless thislarger Bench chooses to differ from them.”

22.3 Khanna, J. in his concurring opinion, considered the extent towhich regulations could be prescribed, as under:- E“90. We may now deal with the scope and ambit of the rightguaranteed by clause (1) of Article 30. The clause confers a righton all minorities, whether they are based on religion or language,to establish and administer educational instructions of their choice.The right conferred by the clause is in absolute terms and is notsubject to restrictions, as in the case of rights conferred by ArticleF19 of the Constitution. The right of the minorities to administereducational institutions does not, however, prevent the making ofreasonable regulations in respect of those institutions. Theregulations have necessarily to be made in the interest of theinstitution as a minority educational institution. They have to be soGdesigned as to make it an effective vehicle for imparting education.The right to administer educational institutions can plainly notinclude the right to maladminister. Regulations can be made toprevent the housing of an educational institution in unhealthy

surroundings as also to prevent the setting up or continuation ofan educational institution without qualified teachers. The Statecan prescribe regulations to ensure the excellence of the institution.Prescription of standards for educational institutions does notmilitate against the right of the minority to administer the institutions.Regulations made in the true interests of efficiency of instruction,discipline, health, sanitation, morality, public order and the like mayundoubtedly be imposed.Such regulations are not restrictions onthe substance of the right which is guaranteed: they secure theproper functioning of the institution, in matters educational [seeobservations of Shah, J. in Rev. Sidhajbhai Sabhai[10] p. 850].Further as observed by Hidyatullah, C.J. in the case of Very Rev.Mother Provincial[4] the standards concern the body politic andare dictated by considerations of the advancement of the countryand its people. Therefore, if universities establish syllabi forexaminations they must be followed, subject, however, to specialsubjects which the institutions may seek to teach, and to a certainextent the State may also regulate the conditions of employmentof teachers and the health and hygiene of students. Such regulationsdo not bear directly upon management as such although they mayindirectly affect it. Yet the right of the State to regulate education,educational standards and allied matters cannot be denied. Theminority institutions cannot be allowed to fall below the standardsof excellence expected of educational institutions, or under theguise of exclusive right of management, to decline to follow thegeneral pattern. While the management must be left to them, theymay be compelled to keep in step with others.

91. It is, in my opinion, permissible to make regulations for ensuringthe regular payment of salaries before a particular date of themonth. Regulations may well provide that the funds of the institutionshould be spent for the purposes of education or for the bettermentof the institution and not for extraneous purposes. Regulationsmay also contain provisions to prevent the diversion of funds ofinstitutions to the pockets of those incharge of management ortheir embezzlement in any other manner. Provisions for audit ofthe accounts of the institution would be permissible regulation.Likewise, regulations may provide that no anti-national activitywould be permitted in the educational institutions and that thoseemployed as members of the staff should not have been guilty of AB

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any activities against the national interest. Minorities are as muchpart of the nation as the majority, and anything that impinges uponnational interest must necessarily in its ultimate operation affectthe interests of all those who inhabit this vast land irrespective ofthe fact whether they belong to the majority or minority sectionsof the population.It is, therefore, as much in the interest ofminorities as that of the majority to ensure that the protectionafforded to minority institutions is not used as a cloak for doingsomething which is subversive of national interests. Regulationsto prevent anti-national activities in educational institutions can,therefore, be considered to be reasonable.

92. A regulation which is designed to prevent maladministrationof an educational institution cannot be said to offend clause (1) ofArticle 30. At the sametime it has to be ensured that under thepower of making regulations nothing is done as would detractfrom the character of the institution as a minority educationalinstitution or which would impinge upon the rights of the minoritiesto establish and administer educational institutions of their choice.The right conferred by Article 30(1) is intended to be real andeffective and not a mere pious and abstract sentiment; it is apromise of reality and not a teasing illusion. Such a right cannotbe allowed to be whittled down by any measure masquerading as

a regulation. As observed by this Court in the case of Rev.Sidhajbhai Sabhai, regulations which may lawfully be imposedeither by legislative or executive action as a condition of receivinggrant or of recognition must be directed to making the institutionwhile retaining its character as minority institution effective as aneducational institution. Such regulation must satisfy a dual test —the test of reasonableness, and the test that it is regulative of theeducational character of the institution and is conducive to makingthe institution an effective vehicle of education for the minoritycommunity or other persons who resort to it.

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94. If a request is made for the affiliation or recognition of aneducational institution, it is implicit in the request that the educationalinstitution would abide by the regulations which are made by theauthority granting affiliation or recognition. The said authority canalways prescribe regulations and insist that they should be complied with before it would grant affiliation or recognition to an educationalinstitution. To deny the power of making regulations to the authorityconcerned would result in robbing the concept of affiliation orrecognition of its real essence. No institution can claim affiliationor recognition until it conforms to a certain standard. The factthat the institution is of the prescribed standard indeed inheres inthe very concept of affiliation or recognition. It is, therefore,permissible for the authority concerned to prescribe regulationswhich must be complied with before an institution can seek andretain affiliation and recognition. Question then arises whetherthere is any limitation on the prescription of regulations for minorityeducational institutions. So far as this aspect is concerned, theauthority prescribing the regulations must bear in mind that theConstitution has guaranteed a fundamental right to the minoritiesfor establishing and administering their educational institutions.Regulations made by the authority concerned should not impingeupon that right. Balance has, therefore, to be kept between thetwo objectives, that of ensuring the standard of excellence of theinstitution and that of preserving the right of the minorities toestablish and administer their educational institutions. Regulationswhich embrace and reconcile the two objectives can be consideredto be reasonable.

103. Another conclusion which follows from what has beendiscussed above is that a law which interferes with a minority’schoice of qualified teachers or its disciplinary control over teachersand other members of the staff of the institution is void as beingviolative of Article 30(1). It is, of course, permissible for the Stateand its educational authorities to prescribe the qualifications ofteachers, but once the teachers possessing the requisitequalifications are selected by the minorities for their educationalinstitutions, the State would have no right to veto the selection ofthose teachers. The selection and appointment of teachers for aneducational institution is one of the essential ingredients of theright to manage an educational institution and the minorities canplainly be not denied such right of selection and appointmentwithout infringing Article 30(1). In the case of Rev. Father W.Proost[11] this Court while dealing with Section 48-A of the Bihar A

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Universities Act observed that the said provision completely tookaway the autonomy of the governing body of the college andvirtually vested the control of the college in the University ServiceCommission. The petitioners in that case were, therefore, heldentitled to the protection of Article 30(1) of the Constitution. Theprovisions of that section have been referred to earlier. Accordingto the section, subject to the approval of University appointment,dismissals, removals, termination of service or reduction in rankof teachers of an affiliated college not belonging to the StateGovernment would have to be made by the governing body of thecollege on the recommendation of the University ServiceCommission. The section further provided that the said Commissionwould be consulted by the governing body of a college in alldisciplinary matters affecting teachers of the college and no actionwould be taken against or any punishment imposed upon a teacherof a college otherwise than in conformity with the findings of theCommission.

104. In the case of D.A.V. College which was affiliated to theGuru Nanak University, Statute 17 framed under the Guru NanakUniversity (Amritsar) Act inter alia provided that the staff initiallyappointed shall be approved by the Vice-Chancellor and that allsubsequent changes shall be reported to the University for Vice-Chancellor’s approval. This Court held that Statute 17 interferedwith the right of management of the petitioner colleges and, assuch, offended Article 30(1).

105. Although disciplinary control over the teachers of a minorityeducational institution would be with the governing council,regulations, in my opinion, can be made for ensuring properconditions of service of the teachers and for securing a fairprocedure in the matter of disciplinary action against the teachers.Such provisions which are calculated to safeguard the interest ofteachers would result in security of tenure and thus inevitablyattract competent persons for the posts of teachers.Such aprovision would also eliminate a potential cause of frustrationamongst the teachers. Regulations made for this purpose shouldbe considered to be in the interest of minority educationalinstitutions and as such they would not violate Article 30(1).”

(Emphasis supplied)

22.4 In his concurring view, Mathew, J. speaking for himself andChandrachud, J. (as the learned Chief Justice, then was) also dealt withthe extent to which the regulations could be prescribed, as under:- “174. We find it impossible to subscribe to the proposition thatState necessity is the criterion for deciding whether a regulationimposed on an educational institution takes away or abridges theright under Article 30(1). If a legislature can impose any regulationwhich it thinks necessary to protect what in its view is in theinterest of the State or society, the right under Article 30(1) willcease to be a fundamental right. It sounds paradoxical that a rightwhich the Constitution makers wanted to be absolute can besubjected to regulations which need only satisfy the nebulous andelastic test of State necessity. The very purpose of incorporatingthis right in Part III of the Constitution in absolute terms in markedcontrast with the other fundamental rights was to withdraw itfrom the reach of the majority. To subject the right today toregulations dictated by the protean concept of State necessity asconceived by the majority would be to subvert the very purposefor which the right was given.

175. What then are the additional regulations which can legitimatelybe imposed upon an educational institution established andadministered by a religious or linguistic minority which impartsgeneral secular education and seeks recognition or affiliation?

176. Recognition or affiliation is granted on the basis of theexcellence of an educational institution, namely, that it has reachedthe educational standard set up by the university. Recognition oraffiliation is sought for the purpose of enabling the students in aneducational institution to sit for an examination to be conductedby the university and to obtain a degree conferred by the university.For that purpose, the students should have to be coached in sucha manner so as to attain the standard of education prescribed bythe university. Recognition or affiliation creates an interest in theuniversity to ensure that the educational institution is maintainedfor the purpose intended and any regulation which will subserveor advance that purpose will be reasonable and no educationalinstitution established and administered by a religious or linguisticminority can claim recognition or affiliation without submitting tothose regulations. That is the price of recognition or affiliation: but

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this does not mean that it should submit to a regulation stipulatingfor surrender of a right or freedom guaranteed by the Constitution,which is unrelated to the purpose of recognition or affiliation. Inother words, recognition or affiliation is a facility which theuniversity grants to an educational institution, for the purpose ofenabling the students there to sit for an examination to be conductedby the university in the prescribed subjects and to obtain the degreeconferred by the university, and therefore, it stands to reason tohold that no regulation which is unrelated to the purpose can beimposed. If, besides recognition or affiliation, an educationalinstitution conducted by a religious minority is granted aid, furtherregulations for ensuring that the aid is utilized for the purpose forwhich it is granted will be permissible. The heart of the matter isthat no educational institution established by a religious or linguisticminority can claim total immunity from regulations by the legislatureor the university if it wants affiliation or recognition; but thecharacter of the permissible regulations must depend upon theirpurpose. As we said, such regulations will be permissible if theyare relevant to the purpose of securing or promoting the object ofrecognition or affiliation. There will be border line cases where itis difficult to decide whether a regulation really subserves thepurpose of recognition or affiliation. But that does not affect thequestion of principle. In every case, when the reasonableness ofa regulation comes up for consideration before the Court, thequestion to be asked and answered is whether the regulation iscalculated to subserve or will in effect subserve the purpose ofrecognition or affiliation, namely, the excellence of the institutionas a vehicle for general secular education to the minoritycommunity and to other persons who resort to it. The questionwhether a regulation is in the general interest of the public has norelevance, if it does not advance the excellence of the institutionas a vehicle for general secular education as, exhypothesi, theonly permissible regulations are those which secure theeffectiveness of the purpose of the facility, namely, the excellenceof the educational institutions in respect of their educationalstandards. This is the reason why this Court has time and againsaid that the question whether a particular regulation is calculatedto advance the general public interest is of no consequence if it is not conducive to the interests of the minority community and thosepersons who resort to it.

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182. It is upon the principal and teachers of a college that the toneand temper of an educational institution depend. On them woulddepend its reputation, the maintenance of discipline and itsefficiency in teaching. The right to choose the principal and tohave the teaching conducted by teachers appointed by themanagement after an overall assessment of their outlook andphilosophy is perhaps the most important facet of the right toadminister an educational institution. We can perceive no reasonwhy a representative of the University nominated by the Vice-Chancellor should be on the Selection Committee for recruitingthe Principal or for the insistence of head of the department besidesthe representative of the University being on the SelectionCommittee for recruiting the members of the teaching staff. Solong as the persons chosen have the qualifications prescribed bythe University, the choice must be left to the management. That ispart of the fundamental right of the minorities to administer theeducational institution established by them.”

(Emphasis supplied)

22.5 In his concurring opinion, Beg, J. (as the learned Chief Justicethen was) however struck a slightly different chord. At the outset hestated:-

197. … … I would, however, like to point out that, as rights andduties are correlative, it follows, from the extent of this widerright of a minority under Article 30(1) to impart even general ornon-denominational secular education to those who may not followits culture or subscribe to its beliefs, that, when a minority Institutiondecides to enter this wider educational sphere of national education,it, by reason of this free choice itself, could be deemed to opt toadhere to the needs of the general pattern of such education inthe country, at least whenever that choice is made in accordancewith statutory provisions. Its choice to impart an education intendedto give a secular orientation or character to its educationnecessarily entails its assent to the imperative needs of the choicemade by the State about the kind of “secular” education which A

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promotes national integration or the elevating objectives set out inthe preamble to our Constitution, and the best way of giving it. Ifit is part of a minority’s rights to make such a choice it should alsobe part of its obligations, which necessarily follow from the choice,to adhere to the general pattern. The logical basis of such a choiceis that the particular minority Institution, which chooses to impartsuch general secular education, prefers that higher range offreedom where, according to the poet Rabindranath Tagore, “thenarrow domestic walls” which constitute barriers between varioussections of the nation will crumble and fall. … …”

22.5.1 In his view, third set of provisions namely Sections 51Aand 52A did not constitute any unreasonable encroachment on the essenceof the rights under Article 30(1) of the Constitution. It was observed:-

“212. Section 51-A of the Act appears to me to lay down generalconditions for the dismissal, removal, reduction in rank andtermination of services of members of the staff of all colleges towhich it applies. Again, we have not to consider here either thewisdom or unwisdom of such a provision or the validity of anypart of Section 51-A of the Act on the ground that it violates anyfundamental right other than the ones conferred by Article 30(1)of the Constitution. If, as I have indicated above, a greater degreeof interference with the right to administer or manage an institutioncan be held to be permissible as a logical consequence of theexercise of an option of a minority for an institution governed by astatute, with all its benefits as well as disadvantages, it seems tome that provisions of Section 51-A do not constitute anunreasonable encroachment on the essence of rights of a minorityinstitution protected by Article 30(1) of the Constitution whichconsists of freedom of choice. For similar reasons, I do not thinkthat Section 52-A of the Act constitutes an infringement of thespecial minority rights under Article 30(1) of the Constitution whenthe institution opts for a statutory right which necessarily involvesstatutory restrictions. Of course, if these provisions could be heldto be invalid on any grounds as against all affiliated colleges,whether they are administered by minorities or majorities in aState, they could be held to be invalid against the petitioning Collegetoo on those grounds. But, as I have already said, we are notconcerned here with such grounds or questions at all.”

22.5.2 Beg, J., then considered all previous decisions of this Courtand made following observations:-

“221. Evidently, what was meant was that the right to exclusivemanagement of the institution is separable from the right todetermine the character of education and its standards. This mayexplain why “standards” of education were spoken as “not partof management” at all. It meant that the right to manage, havingbeen conferred in absolute terms, could not be interfered with atall although the object of that management could be determinedby a general pattern to be laid down by the State which couldprescribe the syllabi and standards of education. Speaking formyself, I find it very difficult to separate the objects and standardsof teaching from a right to determine who should teach and whattheir qualifications should be. Moreover, if the “standards ofeducation” are not part of management, it is difficult to see howthey are exceptions to the principle of freedom of managementfrom control. Again, if what is aimed at directly is to be distinguishedfrom an indirect effect of it, the security of tenure of teachers andprovisions intended to ensure fair and equitable treatment for themby the management of an institution would also not be directlyaimed at interference with its management. They could moreproperly be viewed as designed to improve and ensure theexcellence of teachers available at the institution, and, therefore,to raise the general standard of education. I think that it is enoughfor us to distinguish this case on the ground that the provisions tobe interpreted by us are different, although, speaking for myself, Ifeel bound to say, with great respect, that I am unable to acceptevery proposition found stated there as correct. In that case, theprovisions of the Kerala University Act 9 of 1969, consideredthere were inescapable for the minority institutions which claimedthe right to be free from their operation. As I have alreadyobserved, in the case before us, Section 38-B of the Act providesthe petitioning College before us with a practically certain modeof escape from the compulsiveness of provisions other thanSections 5, 40 and 41 of the Act if claims made on its behalf arecorrect.

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229. It may be that Article 30(1) of the Constitution is a naturalresult of the feeling of insecurity entertained by the minoritieswhich had to be dispelled by a guarantee which could not bereduced to a “teasing illusion”. But, is it anything more than anillusion to view the choice of a minority as to what it does with itseducational institution as a matter of unconcern and indifferenceto the whole organised society which the State represents?”

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232. Even if Article 30(1) of the Constitution is held to conferabsolute and unfettered rights of management upon minorityinstitutions, subject only to absolutely minimal and negative controlsin the interests of health and law and order, it could not be meantto exclude a greater degree of regulation and control when aminority institution enters the wider sphere of general secular andnon-denominational education, largely employs teachers who arenot members of the particular minority concerned, and when itderives large parts of its income from the fees paid by those whoare not members of the particular minority in question. Such greaterdegree of control could be justified by the need to secure theinterests of those who are affected by the management of theminority institution and the education it imparts but who are notmembers of the minority in management. In other words, thedegree of reasonably permissible control must vary from situationto situation. For the reasons already given above, I think that,apart from Sections 5, 40 and 41 of the Act, which directly andunreasonably impinge upon the rights of the petitioning minoritymanaged college, protected by Article 30(1) of the Constitution, Ido not think that the other provisions have that effect. On thesituation under consideration before us, the minority institutionaffected by the enactment has, upon the claims put forward on itsbehalf, a means of escape from the impugned provisions otherthan Sections 5, 40 and 41 of the Act by resorting to Section 38-Bof the Act.”

22.6 In his dissenting view, Dwivedi, J. expressed with regard tothe extent of regulatory power as under:- “266. The extent of regulatory power of the State would varyaccording to various types of educational institutions established by religious and linguistic minorities. Educational institutions maybe classified in several ways: (1) According to the nature ofinstruction which is being imparted by the minorities. It may bereligious, cultural and linguistic instruction or secular generaleducation or mixed; (2) According to grant of aid and recognitionby the State. Some institutions may receive aid; the others maynot. Similarly, some institutions may receive recognition; the othersmay not. There may be some others which may receive both aidand recognition; some others may receive neither aid norrecognition. (3) According to the standard of secular generaleducation which is being imparted in the institutions — primary,secondary and higher. (4) According to the nature of educationsuch as military academy, marine engineering in which the Stateis vitally interested for various reasons.

267. The extent of regulatory power may vary from class to classas well as within a class. For instance, institutions receiving aidand recognition may be subject to greater regulation than thosewhich receive neither. Similarly, institutions imparting seculargeneral education may be subject to greater regulation than thosewhich are imparting religious, cultural and linguistic instructionsolely.

268. An educational institution would consist of: (1) the managingbody of the institution, (2) teaching staff, (3) non-teaching staff,(4) students; and (5) property of various kinds. Here again, theextent of the regulatory power may vary from one constituent toanother. For instance, the teaching staff and property may besubject to greater regulation than the composition of the managingbody. Plainly, no minority educational institution can be singled outfor treatment different from one meted out to the majorityeducational institution. A regulation meeting out such adiscriminatory treatment will be obnoxious to Article 30(1).”

22.7 The operative part of the Order passed by this Court was:-“304. By majority Sections 33-A, 40, 41, 51-A(1)(b), 51-A(2)(b)and 52-A of the Gujarat University Act, 1949 as amended do notapply to institutions established and administered by linguistic andreligious minorities. … … …”

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23. In The Gandhi Faiz-e-am College, Shahjahanpur v.University of Agra and Another[13], a Bench of three Judges of thisCourt considered whether Statute 14A framed by University of Agrainfringed fundamental rights of the minority community under Article 30of the Constitution. The facts as set out in para 3 were as under:- “3. The appellant is a registered society formed by the membersof the Muslim community at Shahjahanpur. Indubitably, thecommunity ranks as a minority in the country and the educationalinstitution run by it has been found to be what may loosely becalled a “minority institution”, within the constitutional compassof Article 30. The earlier history of the institution need not detainus and a rapid glance at its evolution is enough. The A.V. MiddleSchool was the offspring of the effort of the Muslim minorityresident in Shahjahanpur district. It, later became a high schooland afterwards attained the status of an Intermediate college.Eventually it blossomed into a degree college affiliated to theUniversity of Agra. In 1948, on the assassination of the Father ofthe Nation, this college was commemoratively renamed as GandhiFaiz-e-am College. In August 1964, an application was made onbehalf of the college management to the University for permissionto start teaching in courses of study including Sociology, Sanskrit,Arabic, Military Studies, Drawing and Painting. The Universityentertained the thought that a new organisational discipline mustbe brought into the institution and insisted, as a condition ofrecognition of these additional subjects as course of study, on certainmutations in the administrative body of the college. The bone ofcontention before us, as was before the High Court, is that thisprescription by the University, in tune with Statute 14A framed byit, is an invasion of the fundamental right guaranteed to the minoritycommunity under Article 30 of the Constitution of India. The HighCourt has negatived the plea of the management and the appealissues from that decision.”

23.1 Statute 14A as quoted in para 6 was to the following effect:- “14A. Each college, already affiliated or when affiliated, which isnot maintained exclusively by Government must be under theManagement of a regular constituted Governing body (which term includes Managing Committee) on which the staff of the collegeshall be represented by the Principal of the college and at leastone representative of the teachers of the college to be appointedby rotation in order of seniority determined by length of service inthe college, who shall hold office for one academic year.”

23.2 Krishna Iyer, J. speaking for himself and Gupta, J. found theprovision calculated to promote excellence of the Institution and thereforerejected the challenge. The relevant observations were:- “16. The discussion throws us back to a closer study of Statute14A to see if it cuts into the flesh of the management’s right ormerely tones up its health and habits. The two requirements theUniversity asks for are that the managing body (whatever its name)must take in (a) the Principal of the College; (b) its seniormostteacher. Is this desideratum dismissible as biting into the autonomyof management or tenable as ensuring the excellence of theinstitution without injuring the essence of the right? On a carefulreflection and conscious of the constitutional dilemma, we areinclined to the view that this case falls on the valid side of thedelicate line. Regulation which restricts is bad; but regulation whichfacilitates is good. Where does this fine distinction lie? No rigidformula is possible but a flexible test is feasible. Where the objectand effect is to improve the tone and temper of the administrationwithout forcing on it a stranger, however superb his virtues be,where the directive is not to restructure the governing body but tobetter its performance by a marginal catalytic induction, whereno external authority’s fiat or approval or outside nominee is madecompulsory to validate the Management Board but inclusion ofan internal key functionary appointed by the autonomousmanagement alone is asked for, the provision is salutary and saved,being not a diktat eroding the freedom of the freedom.

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24. In all these cases administrative autonomy is imperilledtransgressing purely regulatory limits. In our case autonomy isvirtually left intact and refurbishing, not restructuring, is prescribed.The core of the right is not gouged out at all and the regulation isat once reasonable and calculated to promote excellence of theinstitution — a text book instance of constitutional conditions.”

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A23.3. Mathew, J. authored a dissenting opinion. Relying uponvarious views expressed in Ahmedabad St. Xavier’s College[5 ] includingone rendered by the learned Judge himself, it was observed :- “41. The determination of the composition of the body to administerthe educational institution established by a religious minority mustBbe left to the minority as that is the core of the right to administer.Regulations to prevent maladministration by that body arepermissible. As the right to determine the composition of the bodywhich will administer the educational institution is the very essenceof the right to administer guaranteed to the religious or linguisticminority under Article 30(1), any interference in that area by anCoutside authority cannot be anything but an abridgment of thatright. The religious or linguistic minority must be given the freedomto constitute the agency through which it proposes to administerthe educational institution established by it as that is what Article30(1) guarantees. The right to shape its creation is one thing: theDright to regulate the manner in which it would function after it hascome into being is another. Regulations are permissible to preventmaladministration but they can only relate to the manner ofadministration after the body which is to administer has come intobeing.

E42. The provisions of Statute 14A are in pari materia with thoseof Section 33-A(1)(a) of the Act which fell for consideration inAhmedabad St. Xavier’s College case (supra) except that onlythe principal and the seniormost member of the staff alone arerequired to be included in the managing committee of the collegein question here. But, in principle, that makes no difference. TheFprinciple, as I said, is that the minority community has the exclusiveright to vest the administration of the college in a body of its ownchoice, and any compulsion from an outside authority to includeany other person in that body is an abridgment of its fundamentalright to administer the educational institution.”

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G23.4 In terms of the decision of the majority, the challenge wasnegated and Statute 14A was not found to be vulnerable or void.

24. In Lily Kurian v. Sr. Lewina and Others[14], a Bench of fiveJudges of this Court was called upon to consider whether the appellate H14 (1979) 2 SCC 124

power conferred upon the Vice Chancellor of the University[15] wouldencroach upon the rights of a minority institution to enforce and ensurediscipline over its teachers.

The matter was considered by this Court as under:- “51. An analysis of the judgments in St. Xaviers College caseclearly shows that seven out of nine judges held that the provisionscontained in clause (b) of sub-sections (1) and (2) of Section 51-A of the Act were not applicable to an educational institutionestablished and managed by religious or linguistic minority as theyinterfere with the disciplinary control of the management over thestaff of its educational institutions. The reasons given by themajority were that the power of the management to terminate theservices of any member of the teaching or other academic andnon-academic staff was based on the relationship between anemployer and his employees and no encroachment could be madeon this right to dispense with their services under the contract ofemployment, which was an integral part of the right to administer,and that these provisions conferred on the Vice-Chancellor orany other officer of the University authorised by him, uncanalised,unguided and unlimited power to veto the actions of themanagement. According to the majority view, the conferral ofsuch blanket power on the Vice-Chancellor and his nominee wasan infringement of the right of administration guaranteed underArticle 30(1) to the minority institutions, religious and linguistic.The majority was accordingly of the view that the provisionscontained in clause (b) of sub-sections (1) and (2) of Section 51-A of the Act had the effect of destroying the minority institution’sdisciplinary control over the teaching and non-teaching staff ofthe college as no punishment could be inflicted by the managementon a member of the staff unless it gets approval from an outsideauthority like the Vice-Chancellor or an officer of the Universityauthorised by him. On the contrary, the two dissenting Judgeswere of the view that these provisions were permissive regulatorymeasures.

52. The power of appeal conferred on the Vice-Chancellor underOrdinance 33(4) is not only a grave encroachment on the 15 By Ordinance 33 against any order passed by the Management taking disciplinary action against a teacher.

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Ainstitution’s right to enforce and ensure discipline in itsadministrative affairs but it is uncanalised and unguided in thesense that no restrictions are placed on the exercise of the power.The extent of the appellate power of the Vice-Chancellor is notdefined, and, indeed, his powers are unlimited. The grounds onwhich the Vice-Chancellor can interfere in such appeals are alsoBnot defined. He may not only set aside an order of dismissal of ateacher and order his reinstatement, but may also interfere withany of the punishments enumerated in Items (ii) to (v) of Ordinance33(2), that is to say, he can even interfere against the infliction ofminor punishments. In the absence of any guide-lines, it cannotCbe held that the power of the Vice-Chancellor under Ordinance33(4) was merely a check on maladministration.

53. As laid down by the majority in St. Xaviers College case,such a blanket power directly interferes with the disciplinary controlof the managing body of a minority educational institution over itsteachers. The majority decision in St. Xaviers College casesquarely applies to the facts of the present case and accordinglyit must be held that the impugned Ordinance 33(4) of the Universityof Kerala is violative of Article 30(1) of the Constitution. If theconferral of such power on an outside authority like the Vice-Chancellor, which while maintaining the formal character of aminority institution destroys the power of administration, that is,its disciplinary control, is held justifiable because it is in the publicand national interest, though not in its interest as an educationalinstitution, the right guaranteed by Article 30(1) will be, to use thewell-known expression, a “teasing illusion”, a “promise ofunreality”.

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25. In All Saints High School, Hyderabad and Others v.Government of Andhra Pradesh and Others[16], the question that arosefor consideration before a Bench of three Judges of this Court, waswhether certain provisions of Andhra Pradesh Recognised PrivateGEducational Institutions (Control) Act, 1975 offended fundamental rightsconferred on minorities by Article 30(1). In terms of Sections 3(1) and3(2), no teacher employed in any private educational institution could bedismissed or removed or reduced in rank except with the prior approvalof the competent authority; and in terms of Section 3(2) such approval could be granted if the competent authority was satisfied that therewere adequate and reasonable grounds. Section 3(3)(a) provided thatno teacher could be placed under suspension except when an enquiryinto the gross misconduct of such teacher was contemplated and as perterms of Section 3(3)(b), no suspension could remain in force for morethan two months if the enquiry was not completed within that period.

25.1. Chandrachud, C.J. agreed with Fazal Ali, J. that Sections3(1) and 3(2) would offend Article 30(1) and as such could not be appliedto minority institutions. The learned Chief Justice however did not agreewith Faizal Ali, J. insofar as Sections 3(3)(a) and 3(3)(b) but agreed withKailasam, J. to hold that those provisions did not offend Article 30(1).Faizal Ali, J. had found all the provisions to be invalid while Kailasam, J.had found the concerned provisions to be valid and not violative of Article30(1) of the Constitution.

26. In Frank Anthony Public School Employees’ Assoicationv. Union of India and others[17] validity of Section 12 of Delhi SchoolEducation Act on the strength of which certain provisions of said Actwould not apply to an unaided minority school, was under challenge. Itwas submitted by the petitioners that the teachers and other employeesworking in an unaided school were entitled to same pay-scale, allowancesand benefits as were enjoyed by persons employed in schools governedby the provisions of said Act and to the extent Section 12 excludedapplicability of some of the provisions of the Act, said Section was hit byArticle 14 of the Constitution. The argument raised on behalf of theinstitution was :- “14. … …the right to appoint members of staff being an undoubtedright of the management and the right to stipulate their salariesand allowances etc. being part of their right to appoint, such rightcould not be taken away from the management of a minorityinstitution.”

26.1 While allowing the petition this Court observed:

“16. The excellence of the instruction provided by an institutionwould depend directly on the excellence of the teaching staff, andin turn, that would depend on the quality and the contentment ofthe teachers.Conditions of service pertaining to minimumqualifications of teachers, their salaries, allowances and other A

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conditions of service which ensure security, contentment anddecent living standards to teachers and which will consequentlyenable them to render better service to the institution and thepupils cannot surely be said to be violative of the fundamentalright guaranteed by Article 30(1) of the Constitution. Themanagement of a minority Educational Institution cannot bepermitted under the guise of the fundamental right guaranteed byArticle 30(1) of the Constitution, to oppress or exploit its employeesany more than any other private employee. Oppression orexploitation of the teaching staff of an educational institution isbound to lead, inevitably, to discontent and deterioration of thestandard of instruction imparted in the institution affecting adverselythe object of making the institution an effective vehicle of educationfor the minority community or other persons who resort to it. Themanagement of minority institution cannot complain of invasionof the fundamental right to administer the institution when it deniesthe members of its staff the opportunity to achieve the very objectof Article 30(1) which is to make the institution an effective vehicleof education.

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23. We must refer to the submissions of Mr Frank Anthonyregarding the excellence of the institution and the fear that theinstitution may have to close down if they have to pay higherscales of salary and allowances to the members of the staff. Aswe said earlier the excellence of the institution is largely dependenton the excellence of the teachers and it is no answer to the demandof the teachers for higher salaries to say that in view of the highreputation enjoyed by the institution for its excellence, it isunnecessary to seek to apply provisions like Section 10 of theDelhi School Education Act to the Frank Anthony Public School.On the other hand, we should think that the very contribution madeby the teachers to earn for the institution the high reputation thatit enjoys should spur the management to adopt at least the samescales of pay as the other institutions to which Section 10 applies.Regarding the fear expressed by Shri Frank Anthony that theinstitution may have to close down we can only hope that themanagement will do nothing to the nose to spite the face, merely to “put the teachers in their proper place”. The fear expressed bythe management here has the same ring as the fear expressedinvariably by the management of every industry that disastrousresults would follow which may even lead to the closing down ofthe industry if wage scales are revised.”

27. In Bihar State Madarasa Education Board, Patna v.Madarasa Hanfia Arabic College, Jamalia and others[18] thedeclaration by the High Court that Section 7(2)(n) was unconstitutionalas it conferred power on the Board to dissolve the Managing Committeeof a Madarasa, was under challenge. The decision was upheld by thisCourt observing as under:

“6. The question which arises for consideration is whether Section7(2)(n) which confers power on the Board to dissolve theManaging Committee of an aided and recognised Madarasainstitution violates the minorities constitutional right to administerits educational institution according to their choice. This Courthas all along held that though the minorities have right to establishand administer educational institution of their own choice but theyhave no right to maladminister and the State has power to regulatemanagement and administration of such institutions in the interestof educational need and discipline of the institution. Such regulationmay have indirect effect on the absolute right of minorities butthat would not violate Article 30(1) of the Constitution as it is theduty of the State to ensure efficiency in educational institutions.The State has, however, no power to completely take over themanagement of a minority institution. Under the guise of regulatingthe educational standards to secure efficiency in institution, theState is not entitled to frame rules or regulations compelling themanagement to surrender its right of administration. In State ofKerala v. Very Rev. Mother Provincial, Section 63(1) of theKerala University Act, 1969 which conferred power on thegovernment to take over the management of a minority institutionon its default in carrying out the directions of the State Governmentwas declared ultra vires on the ground that the provisions interferedwith the constitutional right of a minority to administer its institution.Minority institutions cannot be allowed to fall below the standardof excellence on the pretext of their exclusive right of management A

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Abut at the same time their constitutional right to administer theirinstitutions cannot be completely taken away by superseding ordissolving Managing Committee or by appointing ad hoccommittees in place thereof. In the instant case Section 7(2)(n) isclearly violative of constitutional right of minorities under Article30(1) of the Constitution insofar as it provides for dissolution ofBManaging Committee of a Madarasa. We agree with the viewtaken by the High Court.”

28. In St. Stephen’s College vs. University of Delhi[19] a Benchof five Judges of this Court had an occasion to consider the admissionprocess adopted by two aided minority institutions viz. St. Stephen’sCCollege at Delhi and Allahabad Agricultural Institute at Naini. The factualcontext as summed-up in the majority judgment authored by Shetty, J.,was as under:- “68. It is not in dispute that St. Stephen’s College and AllahabadAgricultural Institute are receiving grant-in-aid from theDgovernment. St. Stephen’s College gives preference to Christianstudents. The Allahabad Agricultural Institute reserves 50 per centof the seats for Christian students. The Christian students admittedby preference or against the quota reserved are having less meritin the qualifying examination than the other candidates. The otherEcandidsates with more merit are denied admission on the groundthat they are not Christians.

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69. It was argued for the University and the Students Union thatsince both the institutions are receiving State aid, the institutionalpreference for admission based on religion is violative of ArticleF29(2) of the Constitution. The institutions shall not prefer or denyadmission to candidates on ground of religion. For institutions, onthe other hand, it was claimed that any preference given to thereligious minority candidates in their own institutions cannot be adiscrimination falling under Article 29(2). The institutions areestablished for the benefit of their community and if they areGprevented from admitting their community candidates, the purposeof establishing the institutions would be defeated. The minoritiesare entitled to admit their candidates by preference or byreservation. They are also entitled to admit them to the exclusion of all others and that right flows from the right to establish andadminister educational institutions guaranteed under Article 30(1).”

28.1 The majority judgment dealt with the submissions raised bythe institution as under:- “80. Equally, it would be difficult to accept the second submissionthat the minorities are entitled to establish and administereducational institutions for their exclusive benefit. The choice ofinstitution provided in Article 30(1) does not mean that theminorities could establish educational institution for the benefit oftheir own community people. Indeed, they cannot. It was pointedout in Re, Kerala Education Bill that the minorities cannotestablish educational institution only for the benefit of theircommunity. If such was the aim, Article 30(1) would have beendifferently worded and it would have contained the words “fortheir own community”. In the absence of such words it is legallyimpermissible to construe the article as conferring the right on theminorities to establish educational institution for their own benefit.

81. Even in practice, such claims are likely to be met withconsiderable hostility. It may not be conducive to have a relativelyhomogeneous society. It may lead to religious bigotry which is thebane of mankind. In the nation building with secular charactersectarian schools or colleges, segregated faculties or universitiesfor imparting general secular education are undesirable and theymay undermine secular democracy. They would be inconsistentwith the central concept of secularism and equality embedded inthe Constitution. Every educational institution irrespective ofcommunity to which it belongs is a ‘melting pot’ in our nationallife. The students and teachers are the critical ingredients. It isthere they develop respect for, and tolerance of, the cultures andbeliefs of others. It is essential therefore, that there should beproper mix of students of different communities in all educationalinstitutions.”

28.2 The relaxation given by St. Stephen’s College to Christianstudents was dealt with as under:- “50. To Christian students, relaxation up to 10 per cent is given.The Scheduled Castes/Scheduled Tribes candidates who are havinga minimum of 50 per cent of marks are called for interview for A

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selection to Honours courses. For B.A. pass course, a furtherconcession to them is granted and the qualifying marks are reducedeven below 50 per cent. As far as sportsmen and sportswomenare concerned, national or State level players are given concessionnormally up to 10 per cent and in exceptional cases up to 15 percent or even more. However, a Christian student, who is belowthe cut-off percentage by more than 10 per cent is never calledfor interview.

51. The actual working of the concession given by the Collegeand the result achieved thereon in several years are set out inAnnexure I to Writ Petition No. 1868 of 1980. The Christianstudents who get concession up to 10 per cent and thereby getpreferential admission are only 6 per cent to 10 per cent. Theyare also admitted in accordance with the standard prescribed bythe University and none who falls below the standard has everbeen admitted to the College.”

28.3 The majority Judgment, then, considered the matter from theperspective of “Rights of Minorities and Balancing Interest” andobserved:- “101. Laws carving out the rights of minorities in Article 30(1)however, must not be arbitrary, invidious or unjustified; they musthave a reasonable relation between the aim and the meansemployed. The individual rights will necessarily have to be balancedwith competing minority interests. In Sidhajbhai case[10] thegovernment order directing the minority run college to reserve 80per cent of seats for government nominees and permitting only 20per cent of seats for the management with a threat to withholdthe grant-in-aid and recognition was struck down by the Court asinfringing the fundamental freedom guaranteed by Article 30(1).Attention may also be drawn to Article 337 of the Constitutionwhich provided a special concession to Anglo-Indian communityfor ten years from the commencement of the Constitution. UnlikeArticle 30(2) it conferred a positive right on the Anglo-Indiancommunity to get grants from the government for their educationalinstitutions, but subject to the condition that at least 40 per cent ofannual admission were made available to members of othercommunities.

102. In the light of all these principles and factors, and in view ofthe importance which the Constitution attaches to protectivemeasures to minorities under Article 30(1), the minority aidededucational institutions are entitled to prefer their communitycandidates to maintain the minority character of the institutionssubject of course to conformity with the University standard. TheState may regulate the intake in this category with due regard tothe need of the community in the area which the institution isintended to serve. But in no case such intake shall exceed 50 percent of the annual admission. The minority institutions shall makeavailable at least 50 per cent of the annual admission to membersof communities other than the minority community. The admissionof other community candidates shall be done purely on the basisof merit.”

28.4 It was also observed that regulations which serve the interestof students and teachers and preserve the uniformity in standards ofeducation amongst the affiliated institutions could validly be made. Therelevant discussion in para 59 was as under:-

“59. The need for a detailed study on this aspect is indeed notnecessary. The right to minorities whether religious or linguistic,to administer educational institutions and the power of the Stateto regulate academic matters and management is now fairly wellsettled. The right to administer does not include the right tomaladminister. The State being the controlling authority has rightand duty to regulate all academic matters. Regulations which willserve the interests of students and teachers, and to preserve theuniformity in standards of education among the affiliated institutionscould be made.The minority institutions cannot claim immunityagainst such general pattern and standard or against general lawssuch as laws relating to law and order, health, hygiene, labourrelations, social welfare legislations, contracts, torts etc. whichare applicable to all communities. So long as the basic right ofminorities to manage educational institution is not taken away, theState is competent to make regulatory legislation. Regulations,however, shall not have the effect of depriving the right ofminorities to educate their children in their own institution.That isa privilege which is implied in the right conferred by Article 30(1)”.

(Emphasis supplied)

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A28.5 The dissenting opinion of Kasliwal, J. quoted a passage fromthe Constituent Assembly Debates (CAD) touching upon the matter inissue as under :- “137. These were Articles 23(1) on the one hand and 23(3)(a)and 23(3)(b) on the other hand in the Draft Constitution. Firstly,BDr B.R. Ambedkar said in relation to draft Article 23(2)corresponding to the present Article 28 of the Constitution thateven in relation to Articles 30 and 29 the State was completelyfree to give or not to give aid to the educational institutions of thereligious or linguistic minorities. He said[20]:

C“Now, with regard to the second clause I think it has not beensufficiently well understood. We have tried to reconcile theclaim of a community which has started educational institutionsfor the advancement of its own children either in education orin cultural matters, to permit to give religious instruction in suchinstitutions; notwithstanding the fact that it receives certain aidDfrom the State. The State, of course, is free to give aid, is freenot to give aid; the only limitation we have placed is this, thatthe State shall not debar the institution from claiming aid underits grant-in-aid code merely on the ground that it is run andmaintained by a community and not maintained by a publicEbody. We have there provided also a further qualification, thatwhile it is free to give religious instruction in the institution andthe grant made by the State shall not be a bar to the giving ofsuch instruction, it shall not give instruction to, or make itcompulsory upon, the children belonging to other communitiesunless and until they obtain the consent of the parents of theseFchildren. That, I think, is a salutary provision. It performs twofunctions…

Shri H.V. Kamath: On a point of clarification what aboutinstitutions and schools run by a community or a minority for itsown pupils — not a school where all communities are mixed but aGschool run by the community for its own pupils?

The Hon’ble Dr B.R. Ambedkar: If my friend, Mr Kamath willread the other article he will see that once an institution, whethermaintained by the community or not, gets a grant, the condition is H20 VII CAD 884

that it shall keep the school open to all communities. That provisionhe has not read.”

138. He reaffirmed the freedom of the State to give or not to giveaid to these schools when directly referring to draft Article 23which is the precursor of the present Articles 29 and 30 asfollows[21]:

“I think another thing which has to be borne in reading Article23 is that it does not impose any obligation or burden upon theState. It does not say that, when for instance the Madras peoplecome to Bombay, the Bombay Government shall be requiredby law to finance any project of giving education either in Tamillanguage or in Andhra language or any other language. Thereis no burden cast upon the State. The only limitation that isimposed by Article 23 is that if there is a cultural minority whichwants to preserve its language, its script and its culture, theState shall not by law impose upon it any other culture whichmay be either local or otherwise.”

And, went on to observe that once an institution was receivingaid, “it must abide by the rigor of Article 29(2) in the matter of admissionof students in the college” and “as already held by me, St. Stephen’sCollege and Allahabad Agricultural Institute are not entitled to claim anypreferential right or reservation in favour of students of Christiancommunity as they are getting grant-in-aid and as such I do not considerit necessary to labour any more on the question of deciding as to whatpercentage can be considered as reasonable”

29. We must also refer to two decisions of this Court after thedecision in Ahmedabad St. Xaviers College[5] where the appointment ofPrincipal of a minority educational institution was in question.

29.1 In Board of Secondary Education and Teachers Trainingv. Jt. Director of Public Instructions, Sagar and others[22], a Bench oftwo Judges of this Court observed:

“3. The decisions of this Court make it clear that in the matter ofappointment of the Principal, the management of a minorityeducational institution has a choice. It has been held that one of 21 VII CAD 923

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Athe incidents of the right to administer a minority educationalinstitution is the selection of the Principal.Any rules which takeaway this right of the management have been held to be interferingwith the right guaranteed by Article 30 of the Constitution. In thiscase, both Julius Prasad selected by the management and thethird respondent are qualified and eligible for appointment asBPrincipal according to rules. The question is whether themanagement is not entitled to select a person of their choice. Thedecisions of this Court including the decision in State of Kerala v.Very Rev. Mother Provincial and Ahmedabad St. Xavier’sCollege Society v. State of Gujarat make it clear that this rightCof the minority educational institution cannot be taken away byany rules or regulations or by any enactment made by the State.We are, therefore, of the opinion that the High Court was notright in holding otherwise. The State has undoubtedly the powerto regulate the affairs of the minority educational institutions alsoin the interest of discipline and excellence. But in that process,Dthe aforesaid right of the management cannot be taken away,even if the Government is giving hundred per cent grant. We neednot go into any other question in this appeal.”

(Emphasis supplied)

E29.2 In N. Ammad v. Manager, Emjay High School and others[23]a Bench of two Judges of this Court, while dealing with the issue “whetherthe management of a minority school was free to choose and appointany qualified person as Headmaster” observed as under:

“18. Selection and appointment of Headmaster in a school (orFPrincipal of a college) are of prime importance in administrationof that educational institution. The Headmaster is the key post inthe running of the school. He is the hub on which all the spokes ofthe school are set around whom they rotate to generate result.Aschool is personified through its Headmaster and he is the focalpoint on which outsiders look at the school. A bad HeadmasterGcan spoil the entire institution, an efficient and honest Headmastercan improve it by leaps and bounds. The functional efficacy of aschool very much depends upon the efficiency and dedication ofits Headmaster. This pristine precept remains unchanged despite many changes taking place in the structural patterns of educationover the years.

19. How important is the post of Headmaster of a school hasbeen pithily stated by a Full Bench of the Kerala High Court inAldo Maria Patroni v. E.C. Kesavan. Chief Justice M.S. Menonhas, in a style which is inimitable, stated thus:

“The post of the headmaster is of pivotal importance in the lifeof a school. Around him wheels the tone and temper of theinstitution; on him depends the continuity of its traditions, themaintenance of discipline and the efficiency of its teaching.The right to choose the headmaster is perhaps the mostimportant facet of the right to administer a school, and wemust hold that the imposition of any trammel thereon — exceptto the extent of prescribing the requisite qualifications andexperience — cannot but be considered as a violation of theright guaranteed by Article 30(1) of the Constitution. To holdotherwise will be to make the right ‘a teasing illusion, a promiseof unreality’.”

20. The importance of the key role which a Headmaster plays inthe school cannot be better delineated than that. The nine-JudgeBench in the Ahmedabad St. Xavier’s College Society hashighlighted the importance of the role of the Principal of a college.In support of majority view in that decision K.K. Mathew, J. hasobserved thus: (SCC pp. 815-16, para 182)

“182. It is upon the principal and teachers of a college that thetone and temper of an educational institution depend. On themwould depend its reputation, the maintenance of discipline andits efficiency in teaching. The right to choose the principal andto have the teaching conducted by teachers appointed by themanagement after an overall assessment of their outlook andphilosophy is perhaps the most important facet of the right toadminister an educational institution.”

21. H.R. Khanna, J. has adopted a still broader view that evenselection of teachers is of great importance in the right to managea school. Learned Judge has stated thus: (SCC p. 789, para 103)

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“The selection and appointment of teachers for an educationalinstitution is one of the essential ingredients of the right tomanage an educational institution and the minorities can plainlybe not denied such right of selection and appointment withoutinfringing Article 30(1).”

22. Krishna Iyer, J. who dissented from the majority view inGandhi Faiz-E-Am College v. University of Agra has,nevertheless, emphasised the importance of the post of the Principalin the following words: (SCC p. 293, para 21)

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“21. An activist principal is an asset in discharging these dutiesCwhich are inextricably interlaced with academic functions.Theprincipal is an invaluable insider — the Management’s ownchoice — not an outsider answerable to the Vice-Chancellor.He brings into the work of the Managing Committee thatintimate acquaintance with educational operations and thatnecessary expression of student-teacher aspirations andDcomplaints which are so essential for the minority institution toachieve a happy marriage between individuality andexcellence.”

23. Whatever is said about the importance of the post of Principalof a college vis-à-vis the administration of the institution would inpari materia apply to the Headmaster of a school with equal force.

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24. If management of the school is not given very wide freedomto choose the personnel for holding such a key post, subject ofcourse to the restrictions regarding qualifications to be prescribedby the State, the right to administer the school would get muchdiminished.”

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(Emphasis supplied)

B) Decision in TMA Pai Foundation

30. A Bench of Eleven Judges was constituted to considerquestions touching upon the rights of Minority Educational Institutionsunder Articles 29 and 30 of the Constitution. The reasons why theBench of that strength was constituted were set out in brief in paragraphNo.3 of the leading Judgment authored by Kirpal, C.J. as under:

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“3. The hearing of these cases has had a chequered history. WritPetition No. 350 of 1993 filed by the Islamic Academy of Educationand connected petitions were placed before a Bench of five Judges.As the Bench was prima facie of the opinion that Article 30 didnot clothe a minority educational institution with the power to adoptits own method of selection and the correctness of the decision ofthis Court in St. Stephen’s College v. University of Delhi wasdoubted, it was directed that the questions that arose should beauthoritatively answered by a larger Bench. These cases werethen placed before a Bench of seven Judges. The questions framedwere recast and on 6-2-1997, the Court directed that the matterbe placed before a Bench of at least eleven Judges, as it was feltthat in view of the Forty-second Amendment to the Constitution,whereby “education” had been included in Entry 25 of List III ofSeventh Schedule, the question of who would be regarded as a“minority” was required to be considered because the earlier case-law related to the pre-amendment era, when education was onlyin the State List. When the cases came up for hearing before aneleven-Judge Bench, during the course of hearing on 19-3-1997,the following order was passed:

“Since a doubt has arisen during the course of our argumentsas to whether this Bench would feel itself bound by the ratiopropounded in — Kerala Education Bill, 1957, In Re andAhmedabad St. Xavier’s College Society v. State of Gujaratit is clarified that this sized Bench would not feel itself inhibitedby the views expressed in those cases since the presentendeavour is to discern the true scope and interpretation ofArticle 30(1) of the Constitution, which being the dominantquestion would require examination in its pristine purity. Thefactum is recorded.”

31. The Bench framed 11 questions. For the present discussionwe are principally concerned with discussion relevant to question Nos.4and 5. Under heading- “3. In case private institutions can begovernmental regulations and if so, to what extent?”, the discussionwas under various sub-headings. The first sub-heading was “privateunaided non-minority educational institutions”. Under this sub-headingpara 50 of the leading Judgment enumerated what “the right to establishand administer” comprises of, as under:

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A“50. The right to establish and administer broadly comprisesthe following rights:

(a) to admit students;

(b) to set up a reasonable fee structure; B(c) to constitute a governing body; (d) to appoint staff (teaching and non-teaching); and (e) to take action if there is dereliction of duty on the part ofany employees.”

The other sub-headings were “private unaided professionalCcolleges”, “private aided professional institutions (non-minority)” and“other aided institutions”. Since the discussion under these sub-headingsas well as the next heading does not strictly deal with the matter in thecontext of minority educational institutions, we may turn to the nextheading “5. To what extent can the rights of aided private minorityDinstitutions to administer be regulated?”

31.1. After discussing about the extent of right under Article 30 ofthe Constitution, the leading Judgment considered all the relevant caseson the point. The following paragraphs are noteworthy:

“90. In the exercise of this right to conserve the language, scriptEor culture, that section of the society can set up educationalinstitutions. The right to establish and maintain educationalinstitutions of its choice is a necessary concomitant to the rightconferred by Article 30. The right under Article 30 is not absolute.Article 29(2) provides that, where any educational institution isFmaintained by the State or receives aid out of State funds, nocitizen shall be denied admission on the grounds only of religion,race, caste, language or any of them. The use of the expression“any educational institution” in Article 29(2) would (sic not) referto any educational institution established by anyone, but which ismaintained by the State or receives aid out of State funds. InGother words, on a plain reading, State-maintained or aidededucational institutions, whether established by the Governmentor the majority or a minority community cannot deny admission toa citizen on the grounds only of religion, race, caste or language.

93. Can Article 30(1) be so read as to mean that it contains anabsolute right of the minorities, whether based on religion orlanguage, to establish and administer educational institutions inany manner they desire, and without being obliged to comply withthe provisions of any law? Does Article 30(1) give the religious orlinguistic minorities a right to establish an educational institutionthat propagates religious or racial bigotry or ill will amongst thepeople? Can the right under Article 30(1) be so exercised that it isopposed to public morality or health? In the exercise of its right,would the minority while establishing educational institutions notbe bound by town planning rules and regulations? Can theyconstruct and maintain buildings in any manner they desire withoutcomplying with the provisions of the building bye-laws or healthregulations?

105. In Rev. Sidhajbhai Sabhai v. State of Bombay this Courthad to consider the validity of an order issued by the Governmentof Bombay whereby from the academic year 1955-56, 80% ofthe seats in the training colleges for teachers in non-governmenttraining colleges were to be reserved for the teachers nominatedby the Government. The petitioners, who belonged to the minoritycommunity, were, inter alia, running a training college for teachers,as also primary schools. The said primary schools and collegewere conducted for the benefit of the religious denomination ofthe United Church of Northern India and Indian Christiansgenerally, though admission was not denied to students belongingto other communities. The petitioners challenged the governmentorder requiring 80% of the seats to be filled by nominees of theGovernment, inter alia, on the ground that the petitioners weremembers of a religious denomination and that they constituted areligious minority, and that the educational institutions had beenestablished primarily for the benefit of the Christian community.It was the case of the petitioners that the decision of theGovernment violated their fundamental rights guaranteed byArticles 30(1), 26(a), (b), (c) and (d), and 19(1)(f) and (g). Whileinterpreting Article 30, it was observed by this Court at SCR pp.849-50 as under:

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“All minorities, linguistic or religious have by Article 30(1) anabsolute right to establish and administer educational institutionsof their choice; and any law or executive direction which seeksto infringe the substance of that right under Article 30(1) wouldto that extent be void. This, however, is not to say that it is notopen to the State to impose regulations upon the exercise ofthis right. The fundamental freedom is to establish and toadminister educational institutions: it is a right to establish andadminister what are in truth educational institutions, institutionswhich cater to the educational needs of the citizens, or sectionsthereof. Regulation made in the true interests of efficiency ofinstruction, discipline, health, sanitation, morality, public orderand the like may undoubtedly be imposed. Such regulationsare not restrictions on the substance of the right which isguaranteed: they secure the proper functioning of the institution,in matters educational.”

106. While coming to the conclusion that the right of the privatetraining colleges to admit students of their choice was severelyrestricted, this Court referred to the opinion in Kerala EducationBill, 1957 case but distinguished it by observing that the Courtdid not, in that case, lay down any test of reasonableness of theregulation. No general principle on which the reasonableness of aregulation may be tested was sought to be laid down in KeralaEducation Bill, 1957 case and, therefore, it was held inSidhajbhai Sabhai case that the opinion in that case was not anauthority for the proposition that all regulative measures, whichwere not destructive or annihilative of the character of the institutionestablished by the minority, provided the regulations were in thenational or public interest, were valid. In this connection it wasfurther held at SCR pp. 856-57, as follows:

“The right established by Article 30(1) is a fundamental rightdeclared in terms absolute. Unlike the fundamental freedomsguaranteed by Article 19, it is not subject to reasonablerestrictions. It is intended to be a real right for the protection ofthe minorities in the matter of setting up of educationalinstitutions of their own choice. The right is intended to be-effective and is not to be whittled down by socalled regulativemeasures conceived in the interest not of the minority

educational institution, but of the public or the nation as a whole.If every order which while maintaining the formal characterof a minority institution destroys the power of administration isheld justifiable because it is in the public or national interest,though not in its interest as an educational institution, the rightguaranteed by Article 30(1) will be but a ‘teasing illusion’, apromise of unreality. Regulations which may lawfully beimposed either by legislative or executive action as a conditionof receiving grant or of recognition must be directed to makingthe institution while retaining its character as a minority institutioneffective as an educational institution. Such regulation mustsatisfy a dual test — the test of reasonableness, and the testthat it is regulative of the educational character of the institutionand is conducive to making the institution an effective vehicleof education for the minority community or other persons whoresort to it.”

107. The aforesaid decision does indicate that the right underArticle 30(1) is not so absolute as to prevent the Governmentfrom making any regulation whatsoever. As already notedhereinabove, in Sidhajbhai Sabhai case it was laid down thatregulations made in the true interests of efficiency of instruction,discipline, health, sanitation, morality and public order could beimposed. If this is so, it is difficult to appreciate how theGovernment can be prevented from framing regulations that arein the national interest, as it seems to be indicated in the passagequoted hereinabove. Any regulation framed in the national interestmust necessarily apply to all educational institutions, whether runby the majority or the minority. Such a limitation must necessarilybe read into Article 30. The right under Article 30(1) cannot besuch as to override the national interest or to prevent theGovernment from framing regulations in that behalf. It is, of course,true that government regulations cannot destroy the minoritycharacter of the institution or make the right to establish andadminister a mere illusion; but the right under Article 30 is not soabsolute as to be above the law.It will further be seen that inSidhajbhai Sabhai case no reference was made to Article 29(2)of the Constitution. This decision, therefore, cannot be an authorityfor the proposition canvassed before us.”

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A31.2. The leading Judgment thereafter considered the decisionof this Court in Ahmedabad St. Xavier’s College[5], and while quotingcertain passages therefrom, it was observed:

“119. In a concurrent judgment, while noting (at SCC p. 770,para 73) that “clause (2) of Article 29 forbids the denial ofadmission to citizens into any educational institutionmaintained by the State or receiving aid out of State funds ongrounds only of religion, race, caste, language or any ofthem”, Khanna, J. then examined Article 30, and observed at SCRp. 222, as follows: (SCC p. 770, para 74)

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C“74. Clause (1) of Article 30 gives right to all minorities, whetherbased on religion or language, to establish and administereducational institutions of their choice. Analysing that clause itwould follow that the right which has been conferred by theclause is on two types of minorities. Those minorities may bebased either on religion or on language. The right conferredDupon the said minorities is to establish and administer educationalinstitutions of their choice. The word ‘establish’ indicates theright to bring into existence, while the right to administer aninstitution means the right to effectively manage and conductthe affairs of the institution. Administration connotesEmanagement of the affairs of the institution. The managementmust be free of control so that the founders or their nomineescan mould the institution as they think fit and in accordancewith their ideas of how the interest of the community in generaland the institution in particular will be best served. The words‘of their choice’ qualify the educational institutions and showFthat the educational institutions established and administeredby the minorities need not be of some particular class; theminorities have the right and freedom to establish and administersuch educational institutions as they choose. Clause (2) ofArticle 30 prevents the State from making discrimination inGthe matter of grant of aid to any educational institution on theground that the institution is under the management of a minority,whether based on religion or language.”

120. Explaining the rationale behind Article 30, it was observed atSCR p. 224, as follows: (SCC p. 772, para 77)

“77. The idea of giving some special rights to the minorities isnot to have a kind of a privileged or pampered section of thepopulation but to give to the minorities a sense of security anda feeling of confidence. The great leaders of India since timeimmemorial had preached the doctrine of tolerance andcatholicity of outlook. Those noble ideas were enshrined in theConstitution. Special rights for minorities were designed not tocreate inequality. Their real effect was to bring about equalityby ensuring the preservation of the minority institutions and byguaranteeing to the minorities autonomy in the matter of theadministration of those institutions. The differential treatmentfor the minorities by giving them special rights is intended tobring about an equilibrium, so that the ideal of equality may notbe reduced to a mere abstract idea but should become a livingreality and result in true, genuine equality, an equality not merelyin theory but also in fact.”

121. While advocating that provisions of the Constitution shouldbe construed according to the liberal, generous and sympatheticapproach, and after considering the principles which could bediscerned by him from the earlier decisions of this Court, Khanna,J., observed at SCR p. 234, as follows: (SCC p. 781, para 89)

“The minorities are as much children of the soil as the majorityand the approach has been to ensure that nothing should bedone as might deprive the minorities of a sense of belonging,of a feeling of security, of a consciousness of equality and ofthe awareness that the conservation of their religion, culture,language and script as also the protection of their educationalinstitutions is a fundamental right enshrined in the Constitution.The same generous, liberal and sympathetic approach shouldweigh with the courts in construing Articles 29 and 30 asmarked the deliberations of the Constitution-makers in draftingthose articles and making them part of the fundamental rights.The safeguarding of the interest of the minorities amongstsections of population is as important as the protection of theinterest amongst individuals of persons who are below the ageof majority or are otherwise suffering from some kind ofinfirmity. The Constitution and the laws made by civilizednations, therefore, generally contain provisions for the protection ABC

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of those interests. It can, indeed, be said to be an index of thelevel of civilization and catholicity of a nation as to how fartheir minorities feel secure and are not subject to anydiscrimination or suppression.”

122. The learned Judge then observed that the right of the minoritiesto administer educational institutions did not prevent the makingof reasonable regulations in respect of these institutions.Recognizing that the right to administer educational institutionscould not include the right to maladminister, it was held thatregulations could be lawfully imposed, for the receiving of grantsand recognition, while permitting the institution to retain itscharacter as a minority institution. The regulation “must satisfy adual test — the test of reasonableness, and the test that it isregulative of the educational character of the institution andis conducive to making the institution an effective vehicle ofeducation for the minority community or other persons whoresort to it”. (SCC p. 783, para 92) It was permissible for theauthorities to prescribe regulations, which must be complied with,before a minority institution could seek or retain affiliation andrecognition. But it was also stated that the regulations made bythe authority should not impinge upon the minority character ofthe institution. Therefore, a balance has to be kept between the —two objectives that of ensuring the standard of excellence ofthe institution, and that of preserving the right of the minorities toestablish and administer their educational institutions. Regulationsthat embraced and reconciled the two objectives could beconsidered to be reasonable. This, in our view, is the correctapproach to the problem.

123. After referring to the earlier cases in relation to theappointment of teachers, it was noted by Khanna, J., that theconclusion which followed was that a law which interfered with aminority’s choice of qualified teachers, or its disciplinary controlover teachers and other members of the staff of the institution,was void, as it was violative of Article 30(1). While it waspermissible for the State and its educational authorities to prescribethe qualifications of teachers, it was held that once the teacherspossessing the requisite qualifications were selected by theminorities for their educational institutions, the State would haveno right to veto the selection of those teachers. The selection and

appointment of teachers for an educational institution was regardedas one of the essential ingredients under Article 30(1). The Court’sattention was drawn to the fact that in Kerala Education Bill,1957 case this Court had opined that clauses 11 and 12 made itobligatory for all aided schools to select teachers from a panelselected from each district by the Public Service Commission andthat no teacher of an aided school could be dismissed, removed orreduced in rank without the previous sanction of the authorizedofficer. At SCC p. 792, Khanna, J., observed that in casessubsequent to the opinion in Kerala Education Bill, 1957 case[9]this Court had held similar provisions as clause 11 and clause 12to be violative of Article 30(1) (sic in the case) of the minorityinstitutions. He then observed as follows: (SCC p. 792, para 109)

“The opinion expressed by this Court in Re Kerala EducationBill, 1957 was of an advisory character and though greatweight should be attached to it because of its persuasive value,the said opinion cannot override the opinion subsequentlyexpressed by this Court in contested cases. It is the law declaredby this Court in the subsequent contested cases which wouldhave a binding effect. The words ‘as at present advised’ aswell as the preceding sentence indicate that the view expressedby this Court in Re Kerala Education Bill, 1957 in this respectwas hesitant and tentative and not a final view in the matter.”

(Emphasis supplied)

31.3. After considering all the decisions, the matter wassummed up as under:

“135. We agree with the contention of the learned Solicitor-Generalthat the Constitution in Part III does not contain or give any absoluteright. All rights conferred in Part III of the Constitution are subjectto at least other provisions of the said Part. It is difficult tocomprehend that the framers of the Constitution would have givensuch an absolute right to the religious or linguistic minorities, whichwould enable them to establish and administer educationalinstitutions in a manner so as to be in conflict with the other Partsof the Constitution.We find it difficult to accept that in theestablishment and administration of educational institutions by thereligious and linguistic minorities, no law of the land, even theConstitution, is to apply to them.

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137. It follows from the aforesaid decisions that even though thewords of Article 30(1) are unqualified, this Court has held that atleast certain other laws of the land pertaining to health, moralityand standards of education apply. The right under Article 30(1)has, therefore, not been held to be absolute or above otherprovisions of the law, and we reiterate the same. By the sameanalogy, there is no reason why regulations or conditionsconcerning, generally, the welfare of students and teachers shouldnot be made applicable in order to provide a proper academicatmosphere, as such provisions do not in any way interfere withthe right of administration or management under Article 30(1).

138. As we look at it, Article 30(1) is a sort of guarantee orassurance to the linguistic and religious minority institutions oftheir right to establish and administer educational institutions oftheir choice. Secularism and equality being two of the basic featuresof the Constitution, Article 30(1) ensures protection to the linguisticand religious minorities, thereby preserving the secularism of thecountry. Furthermore, the principles of equality must necessarilyapply to the enjoyment of such rights.No law can be framed thatwill discriminate against such minorities with regard to theestablishment and administration of educational institutions vis-à-vis other educational institutions. Any law or rule or regulationthat would put the educational institutions run by the minorities ata disadvantage when compared to the institutions run by the otherswill have to be struck down. At the same time, there also cannotbe any reverse discrimination.It was observed in St. Xavier’sCollege case[5] at SCR p. 192 that : (SCC p. 743, para 9)

“The whole object of conferring the right on minoritiesunder Article 30 is to ensure that there will be equalitybetween the majority and the minority. If the minorities donot have such special protection they will be deniedequality.”

In other words, the essence of Article 30(1) is to ensure equaltreatment between the majority and the minority institutions. Noone type or category of institution should be disfavoured or, forthat matter, receive more favourable treatment than another. Lawsof the land, including rules and regulations, must apply equally tothe majority institutions as well as to the minority institutions.The minority institutions must be allowed to do what the non-minorityinstitutions are permitted to do.

139. Like any other private unaided institutions, similar unaidededucational institutions administered by linguistic or religiousminorities are assured maximum autonomy in relation thereto; e.g.method of recruitment of teachers, charging of fees and admissionof students. They will have to comply with the conditions ofrecognition, which cannot be such as to whittle down the rightunder Article 30.”

(Emphasis supplied)

31.4. The matter was then considered in the context where aidwas being received by the concerned minority institution and to whatextent its autonomy in administration, could be curtailed or regulated. Itwas observed:

“144. It cannot be argued that no conditions can be imposed whilegiving aid to a minority institution. Whether it is an institution runby the majority or the minority, all conditions that have relevanceto the proper utilization of the grant-in-aid by an educationalinstitution can be imposed.All that Article 30(2) states is that onthe ground that an institution is under the management of a minority,whether based on religion or language, grant of aid to thateducational institution cannot be discriminated against, if othereducational institutions are entitled to receive aid. The conditionsfor grant or non-grant of aid to educational institutions have to beuniformly applied, whether it is a majority-run institution or aminority-run institution. As in the case of a majority-run institution,the moment a minority institution obtains a grant of aid, Article 28of the Constitution comes into play. When an educational institutionis maintained out of State funds, no religious instruction can beprovided therein.Article 28(1) does not state that it applies only toeducational institutions that are not established or maintained byreligious or linguistic minorities. Furthermore, upon the receipt ofaid, the provisions of Article 28(3) would apply to all educationalinstitutions whether run by the minorities or the non-minorities.Article 28(3) is the right of a person studying in a State-recognizedinstitution or in an educational institution receiving aid from Statefunds, not to take part in any religious instruction, if imparted by AB

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such institution, without his/her consent (or his/her guardian’sconsent if such a person is a minor). Just as Articles 28(1) and (3)become applicable the moment any educational institution takesaid, likewise, Article 29(2) would also be attracted and becomeapplicable to an educational institution maintained by the State orreceiving aid out of State funds. It was strenuously contendedthat the right to give admission is one of the essential ingredientsof the right to administer conferred on the religious or linguisticminority, and that this right should not be curtailed in any manner.It is difficult to accept this contention.If Articles 28(1) and (3)apply to a minority institution that receives aid out of State funds,there is nothing in the language of Article 30 that would make theprovisions of Article 29(2) inapplicable. Like Article 28(1) andArticle 28(3), Article 29(2) refers to “any educational institutionmaintained by the State or receiving aid out of State funds”.A minority institution would fall within the ambit of Article 29(2)in the same manner in which Article 28(1) and Article 28(3) wouldbe applicable to an aided minority institution. It is true that one ofthe rights to administer an educational institution is to grantadmission to the students. As long as an educational institution,whether belonging to the minority or the majority community, doesnot receive aid, it would, in our opinion, be its right and discretionto grant admission to such students as it chooses or selects subjectto what has been clarified before. Out of the various rights thatthe minority institution has in the administration of the institution,Article 29(2) curtails the right to grant admission to a certain extent.By virtue of Article 29(2), no citizen can be denied admission byan aided minority institution on the grounds only of religion, race,caste, language or any of them. It is no doubt true that Article29(2) does curtail one of the powers of the minority institution, buton receiving aid, some of the rights that an unaided minorityinstitution has, are also curtailed by Articles 28(1) and 28(3). Aminority educational institution has a right to impart religiousinstruction — this right is taken away by Article 28(1), if thatminority institution is maintained wholly out of State funds. Similarlyon receiving aid out of State funds or on being recognized by theState, the absolute right of a minority institution requiring a studentto attend religious instruction is curtailed by Article 28(3). If thecurtailment of the right to administer a minority institution on receiving aid or being wholly maintained out of State funds asprovided by Article 28 is valid, there is no reason why Article29(2) should not be held to be applicable. There is nothing in thelanguage of Articles 28(1) and (3), Article 29(2) and Article 30 tosuggest that, on receiving aid, Articles 28(1) and (3) will apply, butArticle 29(2) will not. Therefore, the contention that the institutionscovered by Article 30 are outside the injunction of Article 29(2)cannot be accepted.

151. The right of the aided minority institution to preferably admitstudents of its community, when Article 29(2) was applicable, hasbeen clarified by this Court over a decade ago in St. Stephen’sCollege case. While upholding the procedure for admittingstudents, this Court also held that aided minority educationalinstitutions were entitled to preferably admit their communitycandidates so as to maintain the minority character of the institution,and that the State may regulate the intake in this category withdue regard to the area that the institution was intended to serve,but that this intake should not be more than 50% in any case.Thus, St. Stephen’s endeavoured to strike a balance between thetwo articles. Though we accept the ratio of St. Stephen’s whichhas held the field for over a decade, we have compellingreservations in accepting the rigid percentage stipulated therein.As Article 29 and Article 30 apply not only to institutions of highereducation but also to schools, a ceiling of 50% would not be proper.It will be more appropriate that, depending upon the level of theinstitution, whether it be a primary or secondary or high school ora college, professional or otherwise, and on the population andeducational needs of the area in which the institution is to belocated, the State properly balances the interests of all by providingfor such a percentage of students of the minority community tobe admitted, so as to adequately serve the interest of the communityfor which the institution was established.

152. At the same time, the admissions to aided institutions, whetherawarded to minority or non-minority students, cannot be at theabsolute sweet will and pleasure of the management of minorityeducational institutions. As the regulations to promote academicexcellence and standards do not encroach upon the guaranteed AB

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rights under Article 30, the aided minority educational institutionscan be required to observe inter se merit amongst the eligibleminority applicants and passage of common entrance test by thecandidates, where there is one, with regard to admissions inprofessional and non-professional colleges. If there is no suchtest, a rational method of assessing comparative merit has to beevolved. As regards the non-minority segment, admission may beon the basis of the common entrance test and counselling by aState agency. In the courses for which such a test and counsellingare not in vogue, admission can be on the basis of relevant criteriafor the determination of merit. It would be open to the Stateauthorities to insist on allocating a certain percentage of seats tothose belonging to weaker sections of society, from amongst thenon-minority seats.”

(Emphasis supplied)

31.5. Finally, as regards Question No.5(c), the leading judgmentgave its answer as under:- “Q. 5. (c) Whether the statutory provisions which regulate thefacets of administration like control over educational agencies,control over governing bodies, conditions of affiliation includingrecognition/withdrawal thereof, and appointment of staff,employees, teachers and principals including their service conditionsand regulation of fees, etc. would interfere with the right ofadministration of minorities?

A. So far as the statutory provisions regulating the facets ofadministration are concerned, in case of an unaided minorityeducational institution, the regulatory measure of control shouldbe minimal and the conditions of recognition as well as theconditions of affiliation to a university or board have to be compliedwith, but in the matter of day-to-day management, like theappointment of staff, teaching and non-teaching, and administrativecontrol over them, the management should have the freedom andthere should not be any external controlling agency. However, arational procedure for the selection of teaching staff and for takingdisciplinary action has to be evolved by the management itself.

For redressing the grievances of employees of aided and unaidedinstitutions who are subjected to punishment or termination from service, a mechanism will have to be evolved, and in our opinion,appropriate tribunals could be constituted, and till then, suchtribunals could be presided over by a judicial officer of the rank ofDistrict Judge.

The State or other controlling authorities, however, can alwaysprescribe the minimum qualification, experience and otherconditions bearing on the merit of an individual for being appointedas a teacher or a principal of any educational institution.

“Regulations can be framed governing service conditions forteaching and other staff for whom aid is provided by the State,without interfering with the overall administrative control of themanagement over the staff.

Fees to be charged by unaided institutions cannot be regulatedbut no institution should charge capitation fee.”

C) Decisions after TMA Pai Foundation

32. In Brahmo Samaj Education Society vs. State of WestBengal[24], a Bench of two Judges dealt with the issue that arose asunder:- “5. The main question for consideration is, whether the appointmentof teachers through the selection of the College ServiceCommission is permissible or not, in other words, to decipher therole of the State in the matter of appointment of teachers. Toestablish and administer an educational institution is held to be aright coming under Article 19(1)(g) of the Constitution asenunciated in T.M.A. Pai Foundation v. State of Karnataka[8].According to Article 19(6) of the Constitution, the right to establishand maintain an educational institution is subject to the reasonablerestrictions imposed by the State in the interest of general public.At the same time, subject to public order, morality and health,every religious denomination or any section thereof can establishand maintain educational institutions under Article 26(a) of theConstitution. Reading Article 19(1)(g) and Article 26(a) of theConstitution together, the petitioners have a right to establish andmaintain educational institutions and hence we do not think it isne7cessary to decide the issue of minority/denominational status A

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of Brahmo Samaj to decide the issue in hand. In our view, thisissue does not arise in the context of the present case.

6. The question now before us is to decide whether the appointmentof teachers in an aided institution by the College ServiceCommission by restricting the petitioners’ right to appointment isa reasonable restriction in the interest of general public or not.The petitioners have a right to establish and administer educationalinstitution. Merely because the petitioners are receiving aid, theirautonomy of administration cannot be totally restricted andinstitutions cannot be treated as a government-owned one. Ofcourse the State can impose such conditions as are necessary forthe proper maintenance of standards of education and to checkmaladministration. It is stated in T.M.A. Pai[8] that:

“71. While giving aid to professional institutions, it would bepermissible for the authority giving aid to prescribe by rules orregulations, the conditions on the basis of which admission willbe granted to different aided colleges by virtue of merit, coupledwith the reservation policy of the State. The merit may bedetermined either through a common entrance test conductedby the university or the Government followed by counselling,or on the basis of an entrance test conducted by individualinstitutions — the method to be followed is for the universityor the Government to decide. The authority may also deviseother means to ensure that admission is granted to an aidedprofessional institution on the basis of merit. In the case ofsuch institutions, it will be permissible for the Government orthe university to provide that consideration should be shown tothe weaker sections of the society. (SCC at p. 550, para 71)

72. Once aid is granted to a private professional educationalinstitution, the Government or the State agency, as a conditionof the grant of aid, can put fetters on the freedom in the matterof administration and management of the institution. The State,which gives aid to an educational institution, can impose suchconditions as are necessary for the proper maintenance of thehigh standards of education as the financial burden is sharedby the State. The State would also be under an obligation toprotect the interest of the teaching and non-teaching staff. Inmany States, there are various statutory provisions to regulate

the functioning of such educational institutions where the Statesgive, as a grant or aid, a substantial proportion of the revenueexpenditure including salary, pay and allowances of teachingand non-teaching staff. It would be its responsibility to ensurethat the teachers working in those institutions are governed byproper service conditions. The State, in the case of such aidedinstitutions, has ample power to regulate the method of selectionand appointment of teachers after prescribing requisitequalifications for the same. Ever since in Kerala EducationBill, 1957, Re[9] this Court has upheld, in the case of aidedinstitutions, those regulations that served the interests of studentsand teachers. Checks on the administration may be necessaryin order to ensure that the administration is efficient and soundand will serve the academic needs of the institutions. In otherwords, rules and regulations that promote good administrationand prevent maladministration can be formulated so as topromote the efficiency of teachers, discipline and fairness inadministration and to preserve harmony among affiliatedinstitutions. At the same time it has to be ensured that even anaided institution does not become a government-owned andcontrolled institution. Normally, the aid that is granted is relatableto the pay and allowances of the teaching staff. In addition,the management of the private aided institutions has to incurrevenue and capital expenses. Such aided institutions cannotobtain that extent of autonomy in relation to management andadministration as would be available to a private unaidedinstitution, but at the same time, it cannot also be treated as aneducational institution departmentally run by Government oras a wholly owned and controlled government institution andinterfere with constitution of the governing bodies or thrustingthe staff without reference to management.

73. There are a large number of educational institutions, likeschools and non-professional colleges, which cannot operatewithout the support of aid from the State. Although theseinstitutions may have been established by philanthropists orother public-spirited persons, it becomes necessary, in order toprovide inexpensive education to the students, to seek aid fromthe State. In such cases, as those of the professional aided ABC

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Ainstitutions referred to hereinabove, the Government would beentitled to make regulations relating to the terms and conditionsof employment of the teaching and non-teaching staff wheneverthe aid for the posts is given by the State as well as admissionprocedures. Such rules and regulations can also provide forthe reasons and the manner in which a teacher or any otherBmember of the staff can be removed. In other words, theautonomy of a private aided institution would be less than thatof an unaided institution.

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C10. When a larger Bench consisting of eleven Judges of this Courtin T.M.A. Pai has declared what the law on the matter is, we donot want to dilute the effect of the same by analysing variousstatements made therein or indulge in any dissection of theprinciples underlying it. We would rather state that the StateGovernment shall take note of the declarations of law made byDthis Court in this regard and make suitable amendments to theirlaws, rules and regulations to bring them in conformity with theprinciples set out therein.”

33. In P.A. Inamdar and others v. State of Maharashtra andothers[25] a Bench of Seven Judges of this Court culled out the issuesEwhich arose for its consideration as under:

“26. These matters have been directed to be placed for hearingbefore a Bench of seven Judges under orders of the Chief Justiceof India pursuant to the order dated 15-7-2004 in P.A. Inamdar v.State of Maharashtra[26] and order dated 29-7-2004 in PushpagiriFMedical Society v. State of Kerala[27]. The aggrieved personsbefore us are again classifiable in one class, that is, unaided minorityand non-minority institutions imparting professional education. Theissues arising for decision before us are only three:

(i) the fixation of “quota” of admissions/students in respect ofGunaided professional institutions;

(ii) the holding of examinations for admissions to such colleges,that is, who will hold the entrance tests; and 25 (2005) 6 SCC 537

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(iii) the fee structure.

The questions spelled out by orders of reference

27. In the light of the two orders of reference, referred tohereinabove, we propose to confine our discussion to the questionsset out hereunder which, according to us, arise for decision:

(1) To what extent can the State regulate admissions made byunaided (minority or non-minority) educational institutions? Canthe State enforce its policy of reservation and/or appropriate toitself any quota in admissions to such institutions?

(2) Whether unaided (minority and non-minority) educationalinstitutions are free to devise their own admission procedure orwhether the direction made in Islamic Academy[28] for compulsorilyholding an entrance test by the State or association of institutionsand to choose therefrom the students entitled to admission in suchinstitutions, can be sustained in light of the law laid down in PaiFoundation?

(3) Whether Islamic Academy could have issued guidelines inthe matter of regulating the fee payable by the students to theeducational institutions?

(4) Can the admission procedure and fee structure be regulatedor taken over by the Committees ordered to be constituted byIslamic Academy?”

33.1. While dealing with real purpose of Article 30 of theConstitution, it was stated:- “70. The real purpose of Article 30 is to prevent discriminationagainst members of the minority community and to place them on-an equal footing with nonminority. Reverse discrimination wasnot the intention of Article 30.If running of educational institutionscannot be said to be at a higher plane than the right to carry onany other business, reasonable restrictions similar to those placedon the right to carry on business can be placed on educationalinstitutions conducting professional courses. For the purpose ofthese restrictions both minorities and non-minorities can be treatedat par and there would not be any violation of Article 30(1), which A

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Aguarantees only protection against oppression and discriminationof the minority from the majority. Activities of education beingessentially charitable in nature, the educational institutions both ofa non-minority and minority character can be regulated andcontrolled so that they do not indulge in selling seats of learning tomake money. They can be allowed to generate such funds asBwould be reasonably required to run the institute and for its furthergrowth.”

(Emphasis supplied)

33.2 The discussion shows that the matter was considered in theCcontext of the rights of unaided institutions and not with regard to “minorityeducational institutions receiving State aid” as is evident from para No.123of the decision. Para No.103 of the decision shows that minorityeducational institutions were classified in three categories and para No.104onwards points difference between professional and non-professionaleducational institutions. Paragraph Nos.104 to 107 were as under:D“Difference between professional and non-professionaleducational institutions

104. Article 30(1) speaks of “educational institutions” generallyand so does Article 29(2). These articles do not draw any distinctionbetween an educational institution dispensing theological educationor professional or non-professional education. However, the terrainof thought as has developed through successive judicialpronouncements culminating in Pai Foundation is that looking atthe concept of education, in the backdrop of the constitutionalprovisions, professional educational institutions constitute a classby themselves as distinguished from educational institutionsimparting non-professional education. It is not necessary for us togo deep into this aspect of the issue posed before us inasmuch asPai Foundation has clarified that merit and excellence assumespecial significance in the context of professional studies. Thoughmerit and excellence are not anathema to non-professionaleducation, yet at that level and due to the nature of educationwhich is more general, the need for merit and excellence thereinis not of the degree as is called for in the context of professionaleducation.

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105. Dealing with unaided minority educational institutions, PaiFoundation[8] holds that Article 30 does not come in the way ofthe State stepping in for the purpose of securing transparencyand recognition of merit in the matter of admissions. Regulatorymeasures for ensuring educational standards and maintainingexcellence thereof are no anathema to the protection conferredby Article 30(1). However, a distinction is to be drawn betweenunaided minority educational institution of the level of schools andundergraduate colleges on the one side and institutions of highereducation, in particular, those imparting professional education,on the other side. In the former, the scope for merit-based selectionis practically nil and hence may not call for regulation. But in thecase of the latter, transparency and merit have to be unavoidablytaken care of and cannot be compromised. There could beregulatory measures for ensuring educational standards andmaintaining excellence thereof. (See para 161, answer to Question4, in Pai Foundation.) The source of this distinction betweentwo types of educational institutions referred to hereinabove is tobe found in the principle that right to administer does not include aright to maladminister.

106. S.B. Sinha, J. has, in his separate opinion in Islamic Academydescribed (in para 199) the situation as a pyramid-like situationand suggested the right of minority to be read along with thefundamental duty. Higher the level of education, lesser are theseats and higher weighs the consideration for merit. It will,necessarily, call for more State intervention and lesser say for theminority.

107. Educational institutions imparting higher education i.e.graduate level and above and in particular specialised educationsuch as technical or professional, constitute a separate class. Whileembarking upon resolving issues of constitutional significance,where the letter of the Constitution is not clear, we have to keepin view the spirit of the Constitution, as spelt out by its entirescheme. Education aimed at imparting professional or technicalqualifications stands on a different footing from other educationalinstruction. Apart from other provisions, Article 19(6) is a clearindicator and so are clauses (h) and (j) of Article 51-A. Educationup to the undergraduate level aims at imparting knowledge just to AB

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Aenrich the mind and shape the personality of a student. Graduate-level study is a doorway to admissions in educational institutionsimparting professional or technical or other higher education and,therefore, at that level, the considerations akin to those relevantfor professional or technical educational institutions step in andbecome relevant. This is in the national interest and strengtheningBthe national wealth, education included. Education up to theundergraduate level on the one hand and education at the graduateand postgraduate levels and in professional and technical institutionson the other are to be treated on different levels inviting not identicalconsiderations, is a proposition not open to any more debate afterCPai Foundation. A number of legislations occupying the field ofeducation whose constitutional validity has been tested andaccepted suggest that while recognition or affiliation may not be amust for education up to undergraduate level or, even if required,may be granted as a matter of routine, recognition or affiliation isa must and subject to rigorous scrutiny when it comes to educationalDinstitutions awarding degrees, graduate or postgraduate,postgraduate diplomas and degrees in technical or professionaldisciplines. Some such legislations are found referred in paras 81and 82 of S.B. Sinha, J.’s opinion in Islamic Academy.”

34. In Kanya Junior High School, Bal Vidya Mandir, Etah,EU.P. v. U.P. Basic Shiksha Parishad, Allahabd, U.P. and others[29]one of the issues that arose was whether the school established andadministered by individuals professing – Jain Religion could be said to bea Religious Minority Educational Institution in the State of U.P. It wasconcluded by this Court that since the school was recognised as a MinorityFEducational Institution by the Division Bench of the High Court ofJudicature at Allahabad, it could not be denied that status and as suchbefore terminating the services of a teacher, prior approval of the DistrictBasic Education Officer was not necessary.

35. In Secretary, Malankara Syrian Catholic College v. T.

GJose and others[6]the principal question that arose for consideration waswhether right to choose a Principal is part of the right of a minorityinstitution under Article 30(1) of the Constitution. This Court consideredthe relevant decisions on the point and also quoted para No.16 of thedecision of this Court in Frank Anthony Public School case[17]. The 29 (2006) 11 SCC 92H

general principles relevant to establishment and administration of-educational institutions by minorities were summed up as under:

“19. The general principles relating to establishment andadministration of educational institution by minorities may besummarised thus:

(i) The right of minorities to establish and administer educationalinstitutions of their choice comprises the following rights:

(a) to choose its governing body in whom the founders of theinstitution have faith and confidence to conduct and managethe affairs of the institution; (b) to appoint teaching staff (teachers/lecturers andHeadmasters/Principals) as also non-teaching staff, and to takeaction if there is dereliction of duty on the part of any of itsemployees;

(c) to admit eligible students of their choice and to set up areasonable fee structure; (d) to use its properties and assets for the benefit of theinstitution.

(ii) The right conferred on minorities under Article 30 is only toensure equality with the majority and not intended to place theminorities in a more advantageous position vis-à-vis the majority.There is no reverse discrimination in favour of minorities. Thegeneral laws of the land relating to national interest, nationalsecurity, social welfare, public order, morality, health, sanitation,taxation, etc. applicable to all, will equally apply to minorityinstitutions also.

(iii) The right to establish and administer educational institutionsis not absolute. Nor does it include the right to maladminister.There can be regulatory measures for ensuring educationalcharacter and standards and maintaining academic excellence.There can be checks on administration as are necessary to ensurethat the administration is efficient and sound, so as to serve theacademic needs of the institution. Regulations made by the Stateconcerning generally the welfare of students and teachers,regulations laying down eligibility criteria and qualifications for A

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appointment, as also conditions of service of employees (bothteaching and non-teaching), regulations to prevent exploitation oroppression of employees, and regulations prescribing syllabus andcurriculum of study fall under this category. Such regulations donot in any manner interfere with the right under Article 30(1).

(iv) Subject to the eligibility conditions/qualifications prescribedby the State being met, the unaided minority educational institutionswill have the freedom to appoint teachers/lecturers by adoptingany rational procedure of selection.

(v) Extension of aid by the State does not alter the nature andcharacter of the minority educational institution. Conditions canbe imposed by the State to ensure proper utilisation of the aid,without however diluting or abridging the right under Article 30(1).

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21. We may also recapitulate the extent of regulation by the State,permissible in respect of employees of minority educationalinstitutions receiving aid from the State, as clarified and crystallisedin T.M.A. Pai The State can prescribe:

(i) the minimum qualifications, experience and other criteria bearingon merit, for making appointments,

(ii) the service conditions of employees without interfering withthe overall administrative control by the management over thestaff,

(iii) a mechanism for redressal of the grievances of the employees,

(iv) the conditions for the proper utilisation of the aid by theeducational institutions, without abridging or diluting the right toestablish and administer educational institutions.

In other words, all laws made by the State to regulate theadministration of educational institutions and grant of aid will applyto minority educational institutions also. But if any such regulationsinterfere with the overall administrative control by the managementover the staff, or abridges/dilutes, in any other manner, the right to establish and administer educational institutions, such regulations,to that extent, will be inapplicable to minority institutions.”

35.1 As regards freedom to choose the principal, it was observed:-

22. The Principal or Headmaster of an educational institution isresponsible for the functional efficiency of the institution, as alsothe quality of education and discipline in the institution. He is alsoresponsible for maintaining the philosophy and objects of theinstitution.

35.2 It also relied upon the passage from the decision of this Courtin N. Ammad[23], as under:-

25. In N. Ammad the appellant contended that he being theseniormost graduate teacher of an aided minority school, he shouldbe appointed as the Headmaster and none else. He relied on Rule44-A of the Kerala Education Rules which provided thatappointment of Headmaster shall ordinarily be according toseniority from the seniority list prepared and maintained underclauses (a) and (b) of Rule 34. This Court held: (SCC p. 680,paras 18-19)

“18. Selection and appointment of Headmaster in a school (orPrincipal of a college) are of prime importance in administrationof that educational institution. The Headmaster is the key post inthe running of the school. He is the hub on which all the spokes ofthe school are set around whom they rotate to generate result. Aschool is personified through its Headmaster and he is the focalpoint on which outsiders look at the school. A bad Headmastercan spoil the entire institution, an efficient and honest Headmastercan improve it by leaps and bounds. The functional efficacy of aschool very much depends upon the efficiency and dedication ofits Headmaster. This pristine precept remains unchanged despitemany changes taking place in the structural patterns of educationover the years.

19. How important is the post of Headmaster of a school hasbeen pithily stated by a Full Bench of the Kerala High Court inAldo Maria Patroni v. E.C. Kesavan[30]. Chief Justice M.S.Menon has, in a style which is inimitable, stated thus:

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‘The post of the headmaster is of pivotal importance in the lifeof a school. Around him wheels the tone and temper of theinstitution; on him depends the continuity of its traditions, themaintenance of discipline and the efficiency of its teaching.The right to choose the headmaster is perhaps the mostimportant facet of the right to administer a school, and wemust hold that the imposition of any trammel thereon—exceptto the extent of prescribing the requisite qualifications andexperience—cannot but be considered as a violation of theright guaranteed by Article 30(1) of the Constitution. To holdotherwise will be to make the right “a teasing illusion, a promiseof unreality”.’

Thereafter, this Court concluded that the management of minorityinstitution is free to find out a qualified person either from thestaff of the same institution or from outside, to fill up the vacancy;and that the management’s right to choose a qualified person asthe Headmaster of the school is well insulated by the protectivecover of Article 30(1) of the Constitution and it cannot be chiselledout through any legislative act or executive rule except for fixingup the qualifications and conditions of service for the post; andthat any such statutory or executive fiat would be violative of thefundamental right enshrined in Article 30(1) and would thereforebe void. This Court further observed that if the management ofthe school is not given the wide freedom to choose the person forholding the key post of Principal subject, of course, to the restrictionregarding qualifications to be prescribed by the State, the right toadminister the school would get much diminished.

35.3 It was, thereafter, concluded:-

35.3 It was, thereafter, concluded:-

“27. It is thus clear that the freedom to choose the person to beappointed as Principal has always been recognised as a vital facetof the right to administer the educational institution. This has notbeen, in any way, diluted or altered by T.M.A. Pai. Having regardto the key role played by the Principal in the management andadministration of the educational institution, there can be no doubtthat the right to choose the Principal is an important part of theright of administration and even if the institution is aided, therecan be no interference with the said right. The fact that the post of the Principal/Headmaster is also covered by State aid will makeno difference.”

36. In Sindhi Education Society and another v. Chief Secretary,Government of NCT of Delhi and others[7] a Bench of two Judges ofthis Court considered inter alia whether under Rule 64(1)(b) of theDelhi School Education Rules, 1973, instructions could be issued to fill inthe posts of teachers in an aided Minority Educational Institution inaccordance with the policy of reservation by candidates from thecategories of Scheduled Casts and Scheduled Tribes. The ratio of thecases decided by this Court in Re: The Kerala Education Bill, 1957[9]and in Ahmedabad St. Xaviers’ College[5] was considered as under:

“46. In the said case, the Court held that right of the minorities tosome extent was restricted in the sense that general control stillcould be exercised by the authorities concerned, but in accordancewith law. That is how Clause 11 of the Bill, which has been veryheavily relied upon by the respondents before us, completely putsan embargo on the appointment of teachers of their choice andthe teachers could only be appointed out of the panel selected bythe Public Service Commission. This clause was held not to be inviolation of the Constitution, but Clauses 14 and 15, which relatedto taking over of the management of an aided school for theconditions stipulated therein, were held to be unconstitutional andbad. This was in view of the law stated under the Bill and itsscheme that weighed with the Court to record the findingsaforenoticed.

47. Still another seven-Judge Bench of this Court, in AhmedabadSt. Xavier’s College Society[5] was primarily concerned with thescope of Articles 29 and 30 of the Constitution, relating to therights of minorities to impart general education and applicabilityof the concept of affiliation to such institutions. Of course, theCourt held that there was no fundamental right of a minorityinstitution to get affiliation from a university. When a minorityinstitution applies to a university to be affiliated, it expresses itschoice to participate in the system of general education and coursesof instructions prescribed by that university, and it agrees to followthe uniform courses of study. Therefore, measures which willregulate the courses of study, the qualifications and appointmentof teachers, the conditions of employment of teachers, the health, A

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36.1 In the context of the decision in TMA Pai Foundation[8], itwas observed:

“55. The respondents have placed reliance upon the law statedby the Bench that any regulation framed in the national interestmust necessarily apply to all educational institutions, whether runby majority or the minority. Such a limitation must be read intoArticle 30. The rule under Article 30(1) cannot be such as tooverride the national interest or to prevent the Government fromframing regulations in that behalf. It is, of course, true thatgovernment regulations cannot destroy the minority character ofthe institution or make a right to establish and administer a mereillusion; but the right under Article 30 is not so absolute as to beabove the law.

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56. The appellant also seeks to derive benefit from the view thatthe courts have also held that the right to administer is not absoluteand is subject to reasonable regulations for the benefit of theinstitutions as the vehicle of education consistent with the nationalinterest. Such general laws of the land would also be applicable tothe minority institutions as well. There is no reason why regulationsor conditions concerning generally the welfare of the studentsand teachers should not be made applicable in order to provide aproper academic atmosphere. As such, the provisions do not, inany way, interfere with the right of administration or managementunder Article 30(1). Any law, rule or regulation, that would put theeducational institutions run by the minorities at a disadvantage,when compared to the institutions run by the others, will have tobe struck down. At the same time, there may not be any reversediscrimination.

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91. In T.M.A. Pai case[8] the right to establish an institution isprovided. The Court held that the right to establish an institution isprovided in Article 19(1)(g) of the Constitution. Such right,however, is subject to reasonable restriction, which may be broughtabout in terms of clause (6) thereof. Further, that minority, whetherbased on religion or language, however, has a fundamental right G

to establish and administer educational institution of its own choiceunder Article 30(1).

92. The right under clause (1) of Article 30 is not absolute butsubject to reasonable restrictions which, inter alia, may be framedhaving regard to the public interest and national interest of thecountry. Regulation can also be framed to prevent maladministrationas well as for laying down standards of education, teaching,maintenance of discipline, public order, health, morality, etc. It isalso well settled that a minority institution does not cease to be so,the moment grant-in-aid is received by the institution. An aidedminority educational institution, therefore, would be entitled to havethe right of admission of students belonging to the minority groupand, at the same time, would be required to admit a reasonableextent of non-minority students, to the extent, that the right inArticle 30(1) is not substantially impaired and further, the citizen’sright under Article 29(2) is not infringed.”

36.2 While considering the amplitude of the Rule in question, itwas observed:

“101. To appoint a teacher is part of the regular administrationand management of the school. Of course, what should be thequalification or eligibility criteria for a teacher to be appointed canbe defined and, in fact, has been defined by the Government ofNCT of Delhi and within those specified parameters, the right ofa linguistic minority institution to appoint a teacher cannot beinterfered with. The paramount feature of the above laws was tobring efficiency and excellence in the field of school educationand, therefore, it is expected of the minority institutions to selectthe best teacher to the faculty. To provide and enforce anyregulation, which will practically defeat this purpose would haveto be avoided. A linguistic minority is entitled to conserve itslanguage and culture by a constitutional mandate. Thus, it mustselect people who satisfy the prescribed criteria, qualification andeligibility and at the same time ensure better cultural and linguisticcompatibility to the minority institution.

112. Every linguistic minority may have its own social, economicand cultural limitations. It has a constitutional right to conservesuch culture and language. Thus, it would have a right to choose AB

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Ateachers, who possess the eligibility and qualifications, as provided,without really being impressed by the fact of their religion andcommunity. Its own limitations may not permit, for cultural,economic or other good reasons, to induct teachers from aparticular class or community. The direction, as contemplated underRule 64(1)(b), could be enforced against the general or majorityBcategory of the government-aided schools but, it may not beappropriate to enforce such condition against linguistic minorityschools. This may amount to interference with their right of choiceand, at the same time, may dilute their character of linguisticminority. It would be impermissible in law to bring such actionsCunder the cover of equality which in fact, would diminish the veryessence of their character or status. Linguistic and culturalcompatibility can be legitimately claimed as one of the desirablefeatures of a linguistic minority in relation to selection of eligibleand qualified teachers.”

D36.3 It was also observed that despite Rule 64(1)(b), a circularwas issued on 21.03.1986 exempting Minority Institutions from complyingwith the requirements of said Rule; and that the subsequent insistencethrough circular of September 1989 did not disclose any reason for suchdeparture and it was, therefore, observed:

E“117. Thus, the framework of reservation policy should be such,as to fit in within the constitutional scheme of our democracy. Asand when the Government changes its policy decision, it is expectedto give valid reasons and act in the larger interest of the entirecommunity rather than a section thereof. In its wisdom andapparently in accordance with law the Government had taken aFpolicy decision and issued the Circular dated 21-3-1986 exemptingthe minority institutions from complying with the requirements ofRule 64(1)(b) of the DSE Rules. Despite this and the judgment ofthe High Court there was a change of mind by the State thatresulted in issuance of the subsequent Circular of September 1989.GFrom the record before us, no reasons have been recorded insupport of the decision superseding the Circular dated 21-3-1986.”

36.4 In the aforesaid circumstances, the appeal was allowed andit was held that Rule 64(1)(b) and the circular of 1989 would not beenforceable against Linguistic Minority Schools in the NCT of Delhi.

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37. In Chandana Das (Malakar) vs. State of West Bengal andothers[31] the question that arose was set out in para 6 as under:-

6. … …whether the Institution’s right to select and appointteachers is in any way affected by the provisions of the Rules ofManagement of Recognised Non-Government Institutions (Aidedand Unaided), 1969 framed under the provisions of the West BengalBoard of Secondary Education Act, 1963?”

In terms of Rule 28 teachers on permanent or temporary basis,against permanent or temporary vacancies, could be appointed only onthe recommendation of the West Bengal Regional School ServiceCommission[32]. However, according to Rule 33, on the application byany institution to which the provisions of Articles 26 and 30 of theConstitution apply, rules could be framed by the State Government.According to the State, the concerned institution had never claimedminority status and was never recognised as minority institution. Reliancewas also placed on Rule 8(3) of the Rules for Management of RecognisedNon-Government Institutions (Aided and Unaided), 1969 whereunderpermission for special constitution was granted to the institution and,therefore, it was submitted that having accepted the special constitution,it could not turn around and contend that it was a minority institution asper special rules framed in terms of Rule 33.

37.1 There was disagreement between the Judges constitutingthe Bench. According to Thakur, J, as the learned Chief Justice thenwas, since the institution was set up by Punjabi speaking Sikh community,a linguistic minority in the State, the mechanism provided for makingappointments under Rule 28 had no application to minority educationalinstitutions for whom there could be special dispensation under Rule 33.During the course of his Judgment, Thakur, J. observed:- “21. It is unnecessary to multiply decisions on the subject for thelegal position is well settled. Linguistic institution and religious areentitled to establish and administer their institutions. Such right ofadministration includes the right of appointing teachers of its choicebut does not denude the State of its power to frame regulationsthat may prescribe the conditions of eligibility for appointment ofsuch teachers.The regulations can also prescribe measures to 31 (2015) 12 SCC 140

32 Constituted in forms of 1997 Act – as dealt with in para 6 hereinabove.

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Aensure that the institution is run efficiently for the right to administerdoes not include the right to maladministration. While grant-in-aidis not included in the guarantee contained in the Constitution tolinguistic and religious minorities for establishing and running theireducational institutions, such grant cannot be denied to suchinstitutions only because the institutions are established by linguisticBor religious minority. Grant of aid cannot, however, be madesubservient to conditions which deprive the institution of theirsubstantive right of administering such institutions. Suffice it tosay that once Respondent 4 Institution is held to be a minorityinstitution entitled to the protection of Articles 26 and 30 of theCConstitution of India the right to appoint teachers of its choicewho satisfy the conditions of eligibility prescribed for suchappointments under the relevant rules is implicit in their rights toadminister such institutions. Such rights cannot then be diluted bythe State or its functionariesinsisting that the appointment shouldbe made only with the approval of the Director or by followingDthe mechanism generally prescribed for institutions that do notenjoy the minority status.”

(Emphasis supplied)

37.2 Banumathi, J., however, found that the concerned institutionEhad never claimed to be a minority institution and had, in fact, acceptedthe special constitution in terms of Rule 8 (3). It was, therefore, observed:- “52. The fourth respondent school has accepted the specialconstitution and it has not chosen to challenge the same. As rightlyheld by the High Court, when the fourth respondent school hasFaccepted the special constitution and has not claimed to be aminority institution, the appellants who are merely employees ofsuch an institution, cannot contend that the institution was aminority institution entitled to appoint its own teachers.”

37.3 Because of the disagreement, the matter was directed to be Gplaced before a Bench of three Judges of this Court, which has sincethen rendered its decision on 25.09.2019[33]. It was noted that Rule 32specifically declared that nothing in the concerned Rules would apply toan educational institution established and administered by a minority 33 Reported in 2019 SCC OnLine SC 1253 [Chandana Das (Malakar) vs. State ofH West Bengal and others]

referred to in clause (c) of Section 2 of the West Bengal Minorities’Commission Act, 1996, which had, in turn, defined expression “minority”to mean a community based on religion such as Muslim, Christian, Sikh,Buddhist, or Zorastrian (Parsee). As regards the first question, it was,therefore, observed in paragraphs 17 to 20 that the Institution was aminority educational institution. It was also considered whetherdeclaration as to status of the minority institution by the competentauthority was necessary before the institution could claim the status ofbeing a minority institution. Both the issues which had led to disagreementbetween two Judges were thus, squarely answered and the decision ofThakur, J. was accepted to be the correct view on both counts.

37.4 During the course of its discussion, this Court also consideredthe decision in Ahmedabad St. Xavier’s College[5] case and observed:- “30. A reading of the aforesaid judgment would leave no mannerof doubt that if Respondent No. 4 is a minority institution, Rule 28of the Rules for Management of Recognized Non-GovernmentInstitutions (Aided and Unaided) 1969, cannot possibly apply asthere would be a serious infraction of the right of Respondent No.4 to administer the institution with teachers of its choice.”

DISCUSSION AND CONCLUSION

38. In the backdrop of the decisions of this Court referred tohereinabove, we must now consider whether the relevant provisions ofthe Commission Act transgress upon the rights of a minority institutionor said provisions can be termed as “tenable as ensuring the excellenceof the institution without injuring the essence of the right”[34] of a minorityinstitution. Right from Re: The Kerala Education Bill[9 ]Case the issuethat has engaged the attention of this Court is about the content of rightsof minority educational institution and the extent and width of applicabilityof regulations and what can be said to be permissible regulations. If thecases in the first segment i.e. upto the decision in TMA Pai Foundation[8]are considered, the following principles emerge:-

A) In Re: The Kerala Education Bill[9] Case, Clause 11(2) interms of which the State Public Services Commission was empoweredto select candidates for appointment as teachers in Government andaided schools, was found to be a permissible regulation. It was observed 34 Expression used by Krishna Iyer J. in the Gandhi Faiz – e-am College case13

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Athat such provision, inter alia, was applicable to all educational institutionsand was designed to give protection and security to the teachers engagedin rendering service to the nation.

B) The decision in Sidhajbhai Sabhai[10], however, observed,“Unlike Art. 19, the fundamental freedom under clause (1) of Art.B30, is absolute in terms; it is not made subject to any reasonablerestrictions of the nature the fundamental freedoms enunciated inArt. 19 may be subjected to.” It went on to add “Regulation made inthe true interests of efficiency of instruction, discipline, health,sanitation, morality, public order and the like may undoubtedly beimposed.” It read the decision in Re: The Kerala Education Bill[9]Ccase as “not an authority for the proposition submitted by theAdditional Solicitor General that all regulative measures which arenot destructive or annihilative of the character of the institutionestablished by the minority, provided the regulations are in thenational or public interest, are valid.” It however laid down a test -D“Such regulation must satisfy a dual test - the test of reasonableness,and the test that it is regulative of the educational character of theinstitution and is conducive to making the institution an effectivevehicle of education for the minority community or other personswho resort to it.”

EC) (i) In Ahmedabad St. Xavier’s College[5] case, whileconsidering the importance of teachers in an educational institution, RayC.J. in his leading judgment observed, “The minority institutions havethe right to administer institutions. This right implies the obligationand duty of the minority institutions to render the very best to thestudents. In the right of administration, checks and balances in theFshape of regulatory measures are required to ensure the appointmentof good teachers and their conditions of service.” It was furtherstated that “regulations which will serve the interests of the teachersare of paramount importance in good administration.”

(ii) According to Khanna, J., “The regulations have necessarilyGto be made in the interest of the institution as a minority educationalinstitution. They have to be so designed as to make it an effectivevehicle for imparting education.”; and “Regulations made in the trueinterests of efficiency of instruction, discipline, health, sanitation,morality, public order and the like may undoubtedly be imposed.” A

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word of caution was also expressed while observing, “The minorityinstitutions cannot be allowed to fall below the standards ofexcellence expected of educational institutions, or under the guiseof exclusive right of management, to decline to follow the generalpattern. While the management must be left to them, they may becompelled to keep in step with others.”

Khanna, J. then laid down “Balance has, therefore, to be keptbetween the two objectives, that of ensuring the standard ofexcellence of the institution and that of preserving the right of theminorities to establish and administer their educational institutions.Regulations which embrace and reconcile the two objectives canbe considered to be reasonable.”;

(iii) Mathew, J. however stated, “The question whether aregulation is in the general interest of the public has no relevance,if it does not advance the excellence of the institution as a vehiclefor general secular education as, exhypothesi, the only permissibleregulations are those which secure the effectiveness of the purposeof the facility, namely, the excellence of the educational institutionsin respect of their educational standards. This is the reason whythis Court has time and again said that the question whether aparticular regulation is calculated to advance the general publicinterest is of no consequence if it is not conducive to the interests ofthe minority community and those persons who resort to it.”

D) In Gandhi Faiz-e-am College[13], Krishna Iyer, J. found “Inour case autonomy is virtually left intact and refurbishing, notrestructuring, is prescribed. The core of the right is not gouged outat all and the regulation is at once reasonable and calculated topromote excellence of the institution — a text book instance ofconstitutional conditions.” The regulation was, however, not found tobe permissible by Mathew, J.

E) In Frank Anthony Public School[17]case, it was emphasized,“The excellence of the instruction provided by an institution woulddepend directly on the excellence of the teaching staff, and in turn,that would depend on the quality and the contentment of theteachers.”

39. We now turn to TMA Pai Foundation[8] case and consider theprinciples that it laid down and whether there was reiteration of the A

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A) In para 50, five incidents were stated to comprise the “rightto establish and administer” and three of them were stated to be :- (a) right to admit students; B

(b) right to appoint staff – teaching and non-teaching; and

(c) right to take disciplinary action against the staff.

The discussion in the leading judgment was under various headingsand the important one being “[5]. To what extent can the rights of aidedCprivate minority institutions to administer be regulated?”

B) The earlier decisions of the Court were considered and whileconsidering the judgment of this Court in Sidhajbhai Sabhai[10] case itwas observed:- “If this is so, it is difficult to appreciate how the GovernmentDcan be prevented from framing regulations that are in thenational interest, as it seems to be indicated in the passagequoted hereinabove. Any regulation framed in the nationalinterest must necessarily apply to all educational institutions,whether run by the majority or the minority. Such a limitationEmust necessarily be read into Article 30. The right underArticle 30(1) cannot be such as to override the national interestor to prevent the Government from framing regulations in thatbehalf. It is, of course, true that government regulationscannot destroy the minority character of the institution ormake the right to establish and administer a mere illusion;Fbut the right under Article 30 is not so absolute as to be abovethe law.”

C) Thus, the principle laid down in Sidhajbhai Sabhai[10] that theright under Article 30(1) cannot be whittled down by so-called regulativemeasures conceived in the interest not of the minority educationalGinstitution, but of the public or the nation as a whole was not accepted inTMA Pai Foundation[8]. The emphasis was clear that any regulationframed in the national interest must necessarily apply to all educationalinstitutions, whether run by the majority or the minority and put the matterbeyond any doubt. A caveat was however entered and it was stated that H

the Government regulations cannot destroy the minority character ofthe institution.

D) The leading judgment then observed that the correct approachwould be - what was laid down by Khanna, J. in Ahmedabad St. Xavier’sCollege[5] case:- “A balance has to be kept between the two objectives —that of ensuring the standard of excellence of theinstitution, and that of preserving the right of the minoritiesto establish and administer their educational institutions.Regulations that embraced and reconciled the twoobjectives could be considered to be reasonable. This, inour view, is the correct approach to the problem.”

E) The majority judgment then summed up the matter and stated:-

“It is difficult to comprehend that the framers of theConstitution would have given such an absolute right tothe religious or linguistic minorities, which would enablethem to establish and administer educational institutionsin a manner so as to be in conflict with the other Parts ofthe Constitution. ……..

137. …… The right under Article 30(1) has, therefore, notbeen held to be absolute or above other provisions of thelaw, and we reiterate the same. By the same analogy, thereis no reason why regulations or conditions concerning,generally, the welfare of students and teachers should notbe made applicable in order to provide a proper academicatmosphere, as such provisions do not in any way interferewith the right of administration or management underArticle 30(1).”

It was further laid down :-

“In other words, the essence of Article 30(1) is to ensureequal treatment between the majority and the minorityinstitutions. ….. Laws of the land, including rules andregulations, must apply equally to the majority institutionsas well as to the minority institutions.”

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A40. The decision in TMA Pai Foundation[8], rendered by ElevenJudges of this Court, thus put the matter beyond any doubt and clarifiedthat the right under Article 30(1) is not absolute or above the law andthat conditions concerning the welfare of the students and teachers mustapply in order to provide proper academic atmosphere, so long as theconditions did not interfere with the right of the administration orBmanagement. What was accepted as correct approach was the test laiddown by Khanna, J. in Ahmedabad St. Xavier’s College[5] case that abalance be kept between two objectives - one to ensure the standard ofexcellence of the institution and the other preserving the right of theminorities to establish and administer their educational institutions. TheCessence of Article 30(1) was also stated – “to ensure equal treatmentbetween the majority and the minority institutions” and that rulesand regulations would apply equally to the majority institutions as well asto the minority institutions.

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41. The decisions of this Court rendered after TMA PaiDFoundation[8] case, may now be considered.

A) In Brahmo Samaj Education Society[24], the argument thatthe appointment of teachers through College Service Commission wouldmaintain equal standard of education for all throughout the State wasnot accepted and it was observed that the equal standards would beEmaintained by insistence on qualifying tests or examinations. This Court,however, did not consider whether the Rules in question were valid ornot and left it to the authorities to bring the rules and regulations inconformity with the principles laid down in TMA Pai Foundation[8]. Itmay be stated here that a review petition has since then been allowedand the matter now stands referred to a Constitution Bench.[35]F

B) The decision of this Court in P.A. Inamdar[25] was not directlyconcerned with the rights of the minority educational institutions receivingaid. It, however, dealt with the matter regarding admission of students inunaided professional educational institutions and observed that theadmission of students in minority unaided professional educationalGinstitutions must also be governed on the basis of merit. It thus did notaccept the right to admit students to be an unqualified right inhering in aminority professional educational institution. The discussion in that caseshows that the admissions based on merit in professional educational H

institutions were found to be in the national interest and strengtheningthe national welfare.

(C) Malankara Syrian Catholic College[6] was concerned withselection and appointment of a Principal in an unaided minority educationalinstitution. It was stated in para 19 that the right conferred on minoritiesunder Article 30 was only to ensure equality with majority and was notintended to place the minorities in a more advantageous position vis-à-vis the majority and that there was no reverse discrimination in favour ofminorities and that the general laws of the land relating to national interest,would equally apply to minority institutions. It was also observed that thePrincipal or Headmaster of any educational institution would beresponsible for functional efficiency of the institution and also for thequality of education and discipline in the educational institutions as wellas maintaining the philosophy and objects of the institution. On thatpremise, the right to choose a Principal was accepted to be part of theright of a minority educational institution. It also relied upon the decisionin N. Ammad[23] case which in turn had relied upon the Full Bench decisionof the Kerala High Court. It was, therefore, stated that the power tochoose a Headmaster was always recognised as an important facet ofthe right to the administer the educational institutions.

(D) Sindhi Education Society[7] was concerned with the issuewhether instructions could be issued to fill up the posts of teachers in anunaided minority institution in accordance with the principles and policyof reservation. The concerned rules empowered the authority to issuesuch instructions. However, a Circular was issued on 21.03.1986exempting minority institutions from complying with the said Rule. Thesubsequent insistence through Circular of September, 1989, which didnot disclose any reason for departure was not held to be enforceable.The discussion in the case undoubtedly deals with the issue whether theminority educational institutions have a right to choose persons to beappointed as teachers and could there be any regulations and could thatright be in any way affected by regulations. However, in the context ofa Linguistic Minority Schools it was observed that such institutions musthave a right to select the best teachers who not only satisfy the prescribedcriteria, qualification and eligibility but also ensure better cultural andlinguistic compatibility. Since, the candidates nominated in terms ofpowers conferred by Rule 64(1)(b) and the instructions issued in Circularof September, 1989 would not satisfy such requirements and ensurecompatibility, the appeal was allowed.

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A(E) In Chandana Das[31], the principal issue was whether theconcerned institution was a minority institution or not. On that issue,there was a disagreement between two Judges of this Court and thematter was referred to a Bench of three Judges which accepted theview of Thakur, J. and held that the institution was a minority educationalinstitution[33]. The issue arose in the context whether recommendationsBof the West Bengal School Service Commission as regards appointmentsof teachers against permanent or temporary vacancies could be validlyissued in so far as a minority educational institution was concerned. Itmay be stated that in terms of Section 15 of 1997 Act, nothing in that Actwould apply to “a School established and administered by a minorityCwhether based on religion or language” and as such therecommendations of the West Bengal School Service Commission couldnever apply to a minority institutions. Once the view taken by Thakur, J.was accepted and it was held that the institution was a minority institution,by virtue of said Section 15, the West Bengal School Commission couldnot be competent to issue any direction.D

45. Thus, going by the decision of eleven Judges of this Court inTMA Pai Foundation[8], so long as the principles laid down therein (asculled out in para 40 hereinabove) are satisfied, it is permissible if anyregulations seek to ensure the standard of excellence of the institutionswhile preserving the right of the minorities to establish and administerEtheir educational institutions.

Out of five incidents which constitute “the right to establish andadminister” an educational institution as noted in para 50 of the leadingjudgment in TMA Pai Foundation[8], the right to admit students has notbeen considered to be an absolute and an unqualified right. The decisionFin P.A. Inamdar[25]shows that in professional educational institutions orthose imparting higher education, merit based selection has been takento be in the interest of the nation and subserving and strengthening thenational welfare. Selection of meritorious students has been acceptedto be in the national interest. A minority institution cannot in the name ofGright under Article 30(1) of the Constitution, disregard merit or merit-based selection of students as regards professional and higher education.The right to take disciplinary action against the staff has also not beenaccepted to be an unqualified right. TMA Pai Foundation[8] itself laysdown that even in an unaided minority educational institution, a mechanismmust be evolved and appropriate Tribunal must be constituted to considerHthe grievances and till then the Tribunals could be presided over by a judicial officer of the rank of a District Judge. To that extent, there wasa definite departure from the law laid down in Ahmedabad St. Xavier’sCollege[5] case which had struck down Sections 51-A and 52-A of theGujrat University Act, 1949.

46. When it comes to the right to appoint teachers, in terms of lawlaid down in TMA Pai Foundation[8]a regulation framed in the nationalinterest must necessarily apply to all institutions regardless whether theyare run by majority or minority as the essence of Article 30(1) is toensure equal treatment between the majority and minority institutions.An objection can certainly be raised if an unfavourable treatment ismeted out to an educational institution established and administered byminority. But if ensuring of excellence in educational institutions is theunderlying principle behind a regulatory regime and the mechanism ofselection of teachers is so designed to achieve excellence in institutions,the matter may stand on a completely different footing.

47. The test accepted in TMA Pai Foundation[8], and the balancebetween two objectives can well be considered in the context of twocategories of institutions; one imparting education which is directly aimedat or dealing with preservation and protection of the heritage, culture,script and special characteristics of a religious or a linguistic minority;while the second category of institutions could be those which areimparting what is commonly known as secular education. When it comesto the institutions in the former category, the teachers who believe in thereligious ideology or in the special characteristics of the concerned minoritywould alone be able to imbibe in the students admitted in such educationalinstitutions, what the minorities would like to preserve, profess andpropagate. But, if the subjects in the curriculum are purely secular incharacter, that, is to say, subjects like Arithmetic, Algebra, Physics,Chemistry or Geography, the intent must be to impart education availingthe best possible teachers. In the first category, maximum latitude maybe given to the managements of the concerned minority institutions asthey would normally be considered to be the best judges of what wouldhelp them in protecting and preserving the heritage, culture, script orsuch special features or characteristics of the concerned minorities.However, when it comes to the second category of institutions, thegoverning criteria must be to see to it that the most conducive atmosphereis put in place where the institution achieves excellence and imparts bestpossible education.

A

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A48. As laid down in the leading judgment in Ahmedabad St.Xavier’s College[5] case, regulations which will serve the interest of thestudents so also regulations which will serve the interest of the teachersare of paramount importance in good administration; that regulations inthe interest of efficiency of teachers are necessary for preservingharmony amongst the institutions; and that the appointment of teachersBis an important part in educational institutions. It is quite natural thatqualitatively better teachers will ensure imparting of education of thehighest standard and will help in achieving excellence. As accepted inFrank Anthony Public School[17]case, the excellence of the instructionprovided by an institution would depend directly on the excellence of theCteaching staff and would in turn depend inter alia on the quality ofteachers.

49. Thus, if the intent is to achieve excellence in education, wouldit be enough if the concerned educational institutions were to employteachers with minimum requisite qualifications in the name of exerciseDof Right under Article 30 of the Constitution, while better qualifiedteachers are available to impart education in the second category ofinstitutions as stated hereinabove. For example, if the qualifying percentileindex for a teacher to be appointed in an educational institution, consideringhis educational qualifications, experience and research, is required to be50, and if teachers possessing qualifications far greater and higher thanEthis basic index are available, will it be proper exercise for a minorityeducational institution to select teachers with lower index disregardingthose who are better qualified? Will that subserve pursuit of excellencein education? One can understand if under the regulatory regimecandidates who are otherwise less qualified are being nominated in theminority educational institution and the minority educational institution isFforced to accept such less meritorious candidates in preference to betterqualified candidates. In such cases, the minority educational institutioncan certainly be within its rights to agitate the issue and claim a right tochoose better teachers. But if the candidates who are selected andnominated under the regulatory regime to impart education which is purelyGsecular in character, are better qualified, would the minority institutionbe within its rights to reject such nomination only in the name of exerciseof a right of choice? The choice so exercised would not be in pursuit ofexcellence. Can such choice then be accepted?

If the right is taken to be absolute and unqualified, then certainlyHsuch choice must be recognised and accepted. But, if the right has not been accepted to be absolute and unqualified and the national interestmust always permeate and apply, the excellence and merit must be thegoverning criteria. Any departure from the concept of merit and excellencewould not make a minority educational institution an effective vehicle toachieve what has been contemplated in various decisions of this Court.Further, if merit is not the sole and governing criteria, the minorityinstitutions may lag behind the non-minority institutions rather than keepin step with them.

Going back to the example given above, as against index of 50 i.e.the minimum qualifying index, if a candidate nominated under theregulatory regime is at an index of 85, selection by a minority educationalinstitution of a candidate at an index 55 may certainly be above theminimum qualifying mark, but in preference to the one at the index of 85who is otherwise available, the appointment of a person at the indexlevel of 55, will never give the requisite impetus to achieve excellence.A meritorious candidate at the index level of 85 in the above example, ifgiven the requisite posting will not only help in upholding the principle ofmerit but will in turn generate an atmosphere of qualitative progress andsense of achievement commensurate with societal objectives and ideologyand such posting will, therefore, be in true national interest.

50. At the cost of repetition, it needs to be clarified that if theminority institution has a better candidate available than the one nominatedunder a regulatory regime, the institution would certainly be within itsrights to reject the nomination made by the authorities but if the personnominated for imparting education is otherwise better qualified and suitable,any rejection of such nomination by the minority institution would neverhelp such institution in achieving excellence and as such, any suchrejection would not be within the true scope of the Right protected underArticle 30(1) of the Constitution.

51. With these basic principles in mind, we may now consider thestatutory provisions under which the teachers could be nominated underthe Commission Act and see whether the concerned regulations help inachieving excellence or whether those provisions are violative of theRights of the minority institutions.

52. In terms of Section 4 of the Commission Act, the Commissionis to consist of a Chairman and four Members. The Chairman of theCommission has to be an eminent educationist having profound knowledgein Islamic Culture and must be well versed in education with teachingexperience inter alia as a teacher of a University or as a Principal of a AB

CD

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G

H

Acollege, for a period of not less than twelve years. It is true that thelatter part of Section 4(ii) speaks of an officer of the State Governmentnot below the rank of Joint Secretary who could also be appointed as theChairman of the Commission. But in our view, considering the nature ofduties that the Chairman is to discharge, even an officer of the StateGovernment has to be a person with profound knowledge in IslamicBCulture. Apart from the Chairman, there are four Members who are tobe appointed in terms of Section 4(iii) of the Commission Act. Out ofthese four Members, one has to be an eminent educationist havingprofound knowledge in Islamic Theology and Culture, while the othertwo Members must have teaching experience inter alia as a teacher ofCa University, or a Principal of a College for a period of not less than tenyears. The fourth member could be a non-educationist, but he must haveheld the position of eminence in public life or in Legal or AdministrativeService. Predominant composition of the Commission is thus ofeducationists and two of them have to be persons with profoundknowledge in Islamic Culture and Islamic Theology. The provisions ofDthe Commission Act are thus specially designed for Madrasahs andMadrasah Education System in the State. Rule 8 of the 2010 Rulesstipulates fair and transparent process of merit based selection and thestatutory mechanism would ensure that only those teachers would beselected who would be best suited to impart education in MadrasahEEducation System. The State Legislature has taken care to see that thecomposition of the Commission would ensure compatability of theteachers who would be selected to impart education in MadrasahEducation System, which is also emphasized in the Statement of Objectsand Reasons.

53. It is true that the recommendations or nominations of teachersFmade by the Commission are otherwise binding on the ManagingCommittees of concerned Madrasahs, but, in terms of second proviso toSection 10 of the Commission Act, if there be any error, it is open to theManaging Committee of the concerned Madrasah to bring it to the noticeof the Commission for removal of such error. The concept of ‘error’ asGcontemplated must also include cases where the concerned Madrasahcould appoint a better qualified teacher than the one nominated by theCommission. If any such error is pointed out, the Commission willcertainly have to rectify and remove the error. The further protection isafforded by Section 12 of the Commission Act, under which theconcerned Madrasah could be within its rights to refuse to issueH

appointment letter to the candidate recommended by the Commission ifany better qualified candidate is otherwise available with the managingcommittee of the concerned Madrasah. Such refusal may also comewithin the expression ‘any reasonable ground’ as contemplated in Section12(i) of the Act.

The legislature has thus taken due care that the interest of aminority institution will always be taken care of by ensuring that i) innormal circumstances, the best qualified and suitable candidates will benominated by the Commission; ii) and in case there be any error on partof the Commission, the concerned Managing Committee could not onlypoint out the error which would then be rectified by the Commission butthe Managing Committee may also be within its rights in terms of Section12 (i) to refuse the nomination on a reasonable ground.

54. The regime put in place by the State legislature thus ensuresthat the Commission comprising of experts in the field would screen thetalent all across the State; will adopt a fair selection procedure and selectthe best available talent purely on merit basis; and even while nominating,the interest of the minority institution will also be given due weightageand taken care of. The statutory provisions thus seek to achieve‘excellence’ in education and also seek to promote the interest of theminority institutions. The provisions satisfy the test as culled out in thedecision of this Court in TMA Pai Foundation[8]case.

55. In our considered view going by the principles laid down inthe decision in TMA Pai Foundation case[8], the concerned provisionscannot, therefore, be said to be transgressing the rights of the minorityinstitutions. The selection of the teachers and their nomination by theCommission constituted under the provisions of the Commission Actwould satisfy the national interest as well as the interest of the minorityeducational institutions and said provisions are not violative of the rightsof the minority educational institutions.

56. The aforesaid conclusions have been arrived at by us in keepingwith the principles laid down by this Court in TMA Pai Foundation[8]case.

We are aware that in Brahmo Samaj Education Society[24],Sindhi Education Society[7]and Chandana Das (Malakar)[33], decidedafter TMA Pai Foundation[8], this Court had also dealt with the questionwhether the concerned authorities could validly nominate teachers to beappointed in minority educational institutions. Brahmo Samaj EducationSociety[24] did not specifically deal with the question whether rules were A

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Avalid or not and left it to the authorities to bring the rules and regulationsin conformity with the principles in TMA Pai Foundation[8] case. SindhiEducation Society[7] dealt with the issue in the context of reservation. Italso found that the teachers nominated by the concerned authoritieswould not be compatible to teach in educational institutions run bylinguistic minorities. In Chandana Das (Malakar)[33]the basic issueBwas whether the concerned institution was a minority institution or not.Sindhi Education Society[7] and Chandana Das (Malakar)[33] dealt withstatutory regimes which did not have any special features or mattersconcerning compatibility of teachers which could be required going bythe special characteristics of the minority educational institutions.CHowever, the additional feature in the present matter shows that thecomposition of the Commission with special emphasis on persons havingprofound knowledge in Islamic Culture and Theology, would ensurethat the special needs and requirements of minority educational institutionswill always be taken care of and thus the present case stands on adifferent footing.DWe, therefore, have no hesitation in going by the test culled out inthe TMA Pai Foundation[8] and hold that the provisions of the CommissionAct are not violative of the rights of the minority educational institutionson any count.

57. In the premises, while allowing these appeals, we set asideEthe view taken by the Single Judge and the Division Bench of the HighCourt and dismiss Writ Petition No.20650(W) of 2013 and otherconnected matters. We also hold Sections 8, 10, 11 and 12 of theCommission Act to be valid and constitutional.

58. In the end, we declare all nominations made by the Commissionin pursuance of the provisions of the Commission Act to be valid andFoperative. However, if after the disposal of the matters by the HighCourt any appointments are made by the concerned Madarshas, suchappointments of teachers shall be deemed to be valid for all purposes.But the Commission shall hereafter be competent to select and nominateteachers to various Madarshas in accordance with the provisions of theCommission Act and the Rules framed thereunder.G59. With the aforesaid observations these appeals are allowed.No separate orders are required to be passed in respect of Writ Petitionsand contempt petitions which stand disposed of in terms of declarationas above. No orders as to costs.

HKalpana K. Tripathy