Patna High Court
Anjuman Ahle Hadees, Darbhanga And Ors. vs State Of Bihar And Ors. on 9 April, 1985
Equivalent citations: AIR1985PAT315, AIR 1985 PATNA 315, 1985 BBCJ 499
JUDGMENT Uday Sinha, J.
1. By this application under Articles 226 and 227 of the Constitution the petitioners have challenged the Constitutional vires of the provisions contained in Sections 7(2)(a) and (b), (n), 24, 25, 26(2)(c) and (k) and 28 of the Bihar State Madarsa Education Board Act.
2. Petitioner No. 1 is an Association which runs a Madarsa in the town of Darbhanga. Petitioners Nos. 2 and 3 are the members of the Managing Committee of the said Association.
3. The Bihar State Madarsa Education Board Act (hereinafter referred to as 'the Madarsa Act') was preceded by the Bihar Ordinance 172 of 1981. The Ordinance gave place to the Act without any change, Madarsa Act is an Act to provide for the constitution of an Autonomous Board for development and better supervision of Madarsa education in the State. It would not be inapt to state that in a Madarsa, education and religion are intermixed. There is a sizable population of Muslims in the State. Madarsas being centres of Muslim education and the State being a secular State, the Madarsas also claimed State patronage like other educational institutions. The Madarsas being primarily Muslim minority institutions, they have a right to manage their own concern. The State, did not refuse to extend its patronage to them. Grants-in-aid, were, therefore, accorded to Madarsas as well. In course of time Madarsas' also started becoming commercialised. In the name of education funds began to get diverted by pseudo organisations. The need was, therefore, felt to watch the Madarsas consistent with the freedom of the minority to manage their own affairs. That necessitated the enactment of the Madarsa Act. The Act provides for setting up of a Board known as The Bihar State Madarsa Education Board' with perpetual succession and common seal. The Board consists of the following members :
(1) Chairman, appointed by the State Government.
(2) Director of Education (Incharge of oriental Education, Bihar).
(3) Director, Institute of Post-graduate studies and Research in Arabic and Persian. (4) The Principal, Madarsa Islamia Shamshul Huda Patna.
(5) Chairman, Bihar Sunni Wakf Board, Patna.
(6) Chairman, Bihar Shia Wakf Board, Patna.
(7) Two members of the State legislature nominated by the State Government having interest in Madarsa Education or Islamic Studies. (8) Two senior teachers of recognised Madarsa nominated by State Government.
(9) Three other members nominated by the State Government who have interest in Madarsa Education or Islamic Studies.
The Board has been charged with the duty of providing for instruction and research in Arabic, Persian and Islamic Studies and to advise the State Government on all matters relating to Madarsa Education. The questions raised in this application have to be considered in that background.
4. In order to appreciate the submissions urged on behalf of the petitioners it would be useful to set out herein the provisions under challenge, so far as they are relevant. Section 7 of the Madarsa Act lays down the powers and functions of the Board. Section 7(2)(a)(b) and (n) which are under challenge read as follows :
"(2) Subject to the provisions of this Ordinance and the Rules and Regulations made thereunder, the Board shall have the powers to direct, supervise and control Madarsa Education and in particular have the powers -
(a) To grant recognition to Madarsa in accordance with such regulations as may be made by the Board in this behalf.
(b) To withdraw recognition of a recognised Madarsa in accordance with such regulations as may be made by the Board in this behalf and not to give grant to such Madarsa from the Madarsa Education Fund.
(n) To get the Managing Committee of Madarsa constituted in a manner so as to include the head maulvi, two donor representatives, one teacher representative, two guardians' representatives and one member nominated by the Board and two other persons interested in Madarsa Education or Islamic Studies co-opted by the above seven members.
The power to dissolve the Managing Committee shall vest in the Board."
The provisions of the Act extend only to Madarsas recognised by the State. Besides the Madarsas which have received recognition from the Government or by the Board, there are several Madarsas. The Act does not touch them at all Such institutions are not concerned with the validity or invalidity of the provisions of the Act. Learned counsel for the petitioners did not seriously challenge the vires of Section 7(2)(a) of the Madarsa Act. The power of the Board to withdraw recognition or to withdraw grants-in-aid was seriously challenged. In my view there is no substance in the challenge. The Act does not touch any and every Madarsa, but Madarsas who come to the Board for aid and other facilities must be watched, their activities monitored. Before any benefit is conferred on a Madarsa, the Board must recognise it. In order to claim the benefits, recognition of a Madarsa is essential. The process of recognition may be through rules and regulations. No exception can, therefore, be taken to the Madarsa Board granting recognition to a Madarsa. Madarsas not willing to be recognized by the Board need not be worried about the power of the Board to grant recognition. If a Madarsa does not seek recognition, the Board cannot force it in that direction and if a Madarsa does not seek recognition no condition in regard to its management can be laid down by the Board. As a corollary thereto the Madarsa Board must have the power to withdraw recognition of a Madarsa. After withdrawing recognition in accordance with regulations framed by it, the Board may discontinue to extend grants-in-aid. I am unable to appreciate the attack on the power of the Board to withdraw recognition. If recognition of a Madarsa is a pre-condition for grants-in-aid, the power to withdraw recognition must be implicit in the Board. One who can give must have the freedom not to give or to withdraw, having given. Article 30(1) of the Constitution protects the right of Muslim minority institutions to manage their own affairs. It does not protect mismanagement or misdemeanour. A Madarsa being a minority institution in this country, must be conceded the right to manage the Madarsa. But no one forces a Madarsa to come to a Madarsa Board for benefit. If favour is sought, the Board, it is obvious, must have the power to recognise a Madarsa. Since a Madarsa is charged with certain duties and obligations, it should be obligatory on it to see that its funds or grants-in-aid are appropriately applied and that it does not become private funds of an individual or a coterie of individuals. The provision for grant-in-aid to a Madarsa and the provision in regard to withdrawal thereof is unexceptional It is now well established on several authorities of the Supreme Court of India that the State or an Agency of the State must have the power to regulate the affairs of a recognised Madarsa. The power of the Board to withdraw the recognition and to withhold grants is, therefore, a regulatory measure. No exception can, therefore, be taken to the provisions contained in Section 7(2)(a) and (b) of the Madarsa Act. The provisions are for maintaining proper state of affairs in education and excellence of the institutions. Such a provision is essential in the interest of the institution as also the interest of the funds of the Board. Further the impugned provisions only lay down the broad spectrum within which rules and regulations may be formed. I am, therefore, unable to appreciate the objection of the petitioners to the provisions contained in Section 7(2)(a) and (b) of the Madarsa Act.
5. Learned counsel for the petitioners submitted that the power of the Board to direct, supervise and control Madarsa Education was annihilative of the entire autonomy of Managing Committee of a Madarsa. This submission was based upon the expression 'supervise' in the main section. It was submitted that the expression 'supervise and control' took in its sweep the entire control of the affairs of a Madarsa. It was submitted that the expression 'supervise' implies inspection and control. That expression along with the expression 'control' means that the Madarsa Board would assume complete control of a Madarsa and smother the autonomy of such an institution. The submission is fallacious. The word 'supervision' as mentioned in Webster's Dictionary means "to oversee, inspect". Supervision does not necessarily mean control of affairs. The content of the expression will depend upon the context and purpose sought to be achieved. Further it will be appreciated that Section 7(2) uses the expression 'to direct, supervise and control Madarsa Education'. The presence of the word 'control' alongside of 'supervise' makes it absolutely clear that the expression 'supervise' only means to 'inspect or oversee'. It does not take away the administrative autonomy of a Madarsa. A Madarsa Managing Committee would still have reasonable scope for managing its affairs. I am unable to hold that Section 7(2)(a) and (b) infringes Article 30(1) of the Constitution.
6. The next part of the petitioners' thrust was at Section 7(2)(n) of the Madarsa Act From the provisions quoted above, it will be appreciated that it is in two parts. The first part mentions the category of individuals who may fill the office of Managing Committee. It lays down that Rules and Regulations may provide for forming a Managing Committee in a particular manner. According to it, the Managing Committee of a Madarsa must have the Head Maulvi of the School, two donor representatives, one teacher representative, two guardians' representatives and one member nominated by the Board and two other persons interested in Madarsa Education or Islamic Studies to be co-opted by the seven members. The second part of the clause empowers the Board to dissolve the Managing Committee. No exception can be taken to rules and regulations being framed in such a manner that the Managing Committee consists of the category of persons mentioned in clause (n). It was submitted on behalf of the petitioners that the Madarsa Board or any Agency of the State had no business to lay down the manner in which the Managing Committee shall be constituted. It was submitted that the body of persons, who had set up the Madarsa must have full control to manage it in whatever manner it liked. Implicit in that right was the right to constitute the Managing Committee just as it liked. The Act or the Board, therefore, could not lay down the modality for constitution of the Managing Committee. The manner of constitution of a Managing Committee as laid down in Clause (n) would infringe Article 30(1) of the Constitution. I regret, I am unable to accede to this submission. If a Madarsa seeks grants, the Madarsa Board must ensure that the grants are being appropriately used and not abused; that they are used for the purpose for which they have been extended and not abused by a coterie or handful of persons. It should not be forgotten that the Board is charged with the duty of maintaining excellence of standards of a Madarsa. It is responsible for the better development of Madarsas. To that end, the Board would be perfectly within its right to provide the pattern of infra-structure to manage the Madarsa. Every favour must involve some regulatory measures. If a Madarsa does not seek favour in the form of aid from the Madarsa Education Fund, it need not seek recognition of the Madarsa Board. If it did not seek recognition, it would not be bound to have a Managing Committee as laid down in Section 7(2)(n). The Board would not be concerned with the functioning of such a Madarsa. But having taken the benefit the founders cannot be left to play fast and loose with Board's funds, and with the educational standards of the Madarsa or to convert the Madarsa into a commercial proposition. The Board would, therefore, be well within its rights to make rules and regulations in regard to constitution of Managing Committee. Such rules and regulations would amount to exercise of regulatory power. It is true that the management must be free of control so that the founders or their nominees can mould the institutions as they think fit, and in accordance with their ideas of how the interests of the minority community in general and the institutions in particular will be best served, There is, however, one exception. The standards of education are part of management. The minority institutions cannot be allowed to fall below the standards of excellence expected of educational institutions, or under the guise of exclusive right of management, to decline to follow the general pattern. That was the law laid down by Hidayatullah, C. J. in State of Kerala v. Very Rev Mother Provincial, AIR 1970 SC 2079. Judged by those standards the Board can certainly provide by regulations the infrastructures of the Managing Committee.
6A. While conceding that the State has the power to regulate the standard of teaching and impose regulatory conditions, the right of the minority institution to manage its own affairs cannot be swamped. The petitioner before us is Anjuman Ahle-Hadees (hereinafter called 'the Anjuman') and two of its officebearers. This Organization has installed the Madarsa in question. Question is can the right of petitioner No. 1 be whittled down to zero point? The pattern for the Managing Committee of Madarsa prescribed by Section 7(2)(n) is as follows :
"(i) Head Maulvi -- 1
(ii) Teacher representative -- 1
(iii) Donor representatives -- 2
(iv) Guardians' representatives -- 2
(v) Nominees of Madarsa Board -- 1
(vi) Co-opted members elected by the former seven -- 2"
From the above, it will be seen that the Managing Committee in terms of Section 7(2)(n) will comprise of nine members. Out of those nine the donor representatives will be only two. In the instant case, Anjuman Hadees which must be deemed to be the donor will have only two members on the Managing Committee. The others, if the expression 'foreign elements' can be used, being seven in number will naturally swamp the donors. The Management will thus naturally pass out of the hands of the Organisation which sponsored and set up the Madarsa and it may become a tool of the Madarsa Board. The minority community will, therefore, be deprived of its right and privilege of managing its institutions, namely, the Madarsa. The provisions of Section 7(2)(n) thus clearly infringe the guarantee in favour of minority institutions to manage their own affairs. The Anjuman in this state of things will be deprived of its right to manage the Madarsa.
6B. On behalf of the respondents it was contended that the Article 30(1) protects the rights of minorities to administer educational institutions of their choice and not the right of individuals of a minority community to run institutions and, therefore, the provisions of Section 7(2)(n) were not violative of Article 30(1). The submission is attractive, but is in the teeth of a catena of decisions of the Supreme Court in Rev. Sidharajbhai v. State of Gujarat, AIR 1963 SC 540, State of Kerala v. Mother Provincial, AIR 1970 SC 2079, and St. Xaviers v. State of Gujarat, AIR 1974 SC 1389. Learned Advocate General placed reliance on G. F. College, Shahjahanpur v. Agra University, AIR 1975 SC 1821 where the imposition of a Principal and seniormost teacher of a college in the Managing Committee was upheld. In the pattern of the Managing Committee in that case two foreign elements in the form of Principal and teacher elements would not denude the right of the Managing Committee to manage the institution. In the instant case, the donors would clearly be swamped and thus the right to manage the Madarsa would be swamped. The reliance placed by learned Advocate General on the case of G. F. College, Shahjahanpur (supra) has no force and must be rejected.
6C. Learned Advocate General attempted to distinguish the cases referred to above on the footing that in those cases the power of the University, a creature of the State Government was under challenge. In the instant case, in order to sustain the right of Muslim minorities the State Legislature has set up a Madarsa Board which would necessarily "be controlled by Muslims and, therefore, the situation was different. The submission is fallacious. Just as Universities are creatures of State Legislature, so will be the Madarsa Board, a creature of the Legislature. No distinction can be made between Madarsa Board and University. Both are functionaries of the State created by Statute. The conclusion is, therefore, inescapable that the pattern for constitution of Managing Committee as laid down in Section 7(2)(n) is violative of Article 30(1). The provisions in that behalf must, therefore, be struck down as ultra vires of Article 30(1).
7. The last sentence in Section 7(2)(n) providing that the Board shall have the right to dissolve the Managing Committee is rather significant. I have not the least doubt that the power of the Board to dissolve a Managing Committee is an infringement of the autonomy of a religious minority institution and thus infringes Article 30(1) of the Constitution. The power of the Board to regulate Madarsa is not disputed, but regulation is not an annihilation. The Board can only regulate the Madarsa. It cannot annihilate the Managing Committee. The institution seeks grants-in-aid but it does not surrender all its rights. The institutions and the property of the institutions remain the property of the Madarsa. It does not become the property of the Board. If the Board has the power to dissolve the Managing Committee, it would mean that the Board could dissolve the Managing Committee and take over the institution lock, stock, and barrel. That cannot be permitted. Article 30(1) of the Constitution does not permit it. In The All Saints High School v. Government of Andhra Pradesh, AIR 1980 SC 1042 Murtaza Fazal Ali, J. observed that in the garb of regulation, autonomy of a religious minority institution cannot be annihilated. That is the law of the land. The provision in regard to dissolution of the Managing Committee obviously infringes Article 30(1) of the Constitution.
8. Learned Advocate General in his endeavour to save the provisions submitted that the power to dissolve a Managing Committee was only a temporary measure. It was submitted that the Managing Committee would be dissolved by the Board only for a short time until a new Managing Committee would be constituted by the elements who had set up the institutions and were interested in Madarsa Education. Expanse of the power of dissolution being only temporary, it must be held to be regulatory. Thus submitted learned Advocate General. I regret, I find no force in this submission. There is no force in this submission for the reason that the moment a Managing Committee is dissolved, it is bound to be supplanted by an Ad hoc Managing Committee. Such Managing Committees have a tendency of overstay and stick to power. On the face of it, they look innocuous, but in actual practice they have vicious potentiality. State Government or instrumentalities of the State are in no hurry to let power exercised through Ad hoc Committees slip by. The devastating character of a power of dissolution of a Managing Committee, therefore, cannot be glossed over by characterising it as a temporary measure. Having tasted blood, can it be expected to forsake its kill soon? The experience of supersession of Co-operative Societies, Managing Committees of non-minority schools and of Gram Panchayats presents some guide to the nature of the character of Ad hoc Committees. It is true that no Madarsa is entitled to favours of the Board, but that does not imply that the Managing Committee through which the recognition was extended should itself be dissolved. If the Madarsa or the Managing Committee thereof is not functioning in the interest of institutional excellence, the Board will be well within its right to withdraw its favours. It may withdraw its recognition, but it can have no jurisdiction to dissolve the Managing Committee and devour it by imposing its Ad hoc Managing Committee. That would not be the exercise of regulatory power. In my concluded view, therefore, the power to dissolve the Managing Committee vested in the Board as contained in Section 7(2)(n) of the Madarsa Act is clearly ultra vires Article 30(1) of the Constitution. It is struck down accordingly.
9. The challenge to the validity of Sections 25 and 26 does not merit serious consideration. Section 25 lays down that the State Government shall determine the rules and procedures of appointment and promotion of teachers in a recognized Madarsa on the basis of their qualifications and seniority. They enshrine only rule making power. No exception can be taken to the framing of rules in relation to appointment and promotion of teachers. Section 25 by itself does not hold out a command. It only provides for a rule making power. It vests power in the State Government in consultation with the Board to frame rules. It is only an enabling provision. No exception can be taken to it. When the rules in relation to appointment and promotion of teachers are framed, the petitioners may make a grievance if those rules curtail the autonomy of the Managing Committee. Here again, I would like to emphasize that regulatory provisions do not attract the ire of Article 30(1) of the Constitution. The primary goal being excellence of the institutions, it is imperative that there should be rules of appointment and promotion. The formalities for appointment must be conducive to the appointment of the very best of the available candidates as teachers. The teachers must know their promotional avenues so that they may know where they stand. If they do not know their prospects, there may be delusion and depression in teachers. The result would be nothing but fall in standards of teachers which would be contrary to the development of a Madarsa. The existence of a set of rules for appointment and promotion of teachers is sine qua non for an excellent institution, it is essential to prevent mismanagement of institutions. The rules, therefore, can always provide guideline for ensuring the security and service conditions of teachers in the Madarsa. The power of the State Government, thus to frame rules in relation to appointment and promotion of teachers is not open to attack. It does not infringe Article 30(1) of the Constitution.
10. Section 26 of the Act also is a rule making power. The petitioners cannot have any grievance in regard to a rule making power. If they have a grievance after the rules have been framed, if they pinch them in any manner, they may have a cause to agitate, but the mere power of making rules can be no basis for any grievance for the petitioners. There is no substance, therefore, in the submission urged on behalf of the petitioners challenging the validity of Sections 25 and 26 of the Act. They are intra vires the Constitution and good pieces of legislation. .
11. It only remains to consider the validity and vires of Section 24 of the Act which reads as follows:
"24. Services of teachers and non-teaching staff. --- The services of the approved teachers and non-teaching staff of a recognised Madarsa shall be under the supervision of the Board. Subject to the regulations prescribed under this Ordinance their services shall be controlled by the Board or Madarsa Managing Committee. No teacher of the Madarsa shall be discharged or dismissed from service without the prior approval of the Board."
The above provision contains three sentences. They are firstly 'the services of the approved teachers and non-teaching staff of a recognised Madarsa shall be under the supervision of the Board". The second is that 'the services of the employees of a Madarsa shall be controlled by the Board or the Madarsa Managing Committee'. The third part is that 'no teacher of the Madarsa shall be discharged or dismissed from service without the prior approval of the Board'. In regard to the second part, namely, that the services shall be controlled by the Board or Madarsa Managing Committee, Mr. K.D. Chatterji appearing on behalf of the Madarsa Board respondents 2 and 3 submitted that there was no cause for apprehension to the petitioners. The Managing Committee will be controlling the services and, therefore, there is no invasion upon their autonomy. The provision of Section 24 of the Act in so far as it lays down that the services of teachers and non-teaching staff shall be controlled by the Board cannot be sustained. The expression 'control' is of no indefinite import. That means complete abrogation of the power of the Managing Committee to manage its affairs. As was stated by the Supreme Court in State of Kerala v. Very Rev. Mother Provincial, (AIR 1970 SC 2079) (supra) the Management must be free of control. Again in the case of AH Saints High School, (AIR 1980 SC 1042) (supra) it was stated by the Supreme Court that in the garb of regulation, the autonomy of a religious minority institution cannot be annihilated Vesting the control of a Madarsa in the Madarsa Board would amount to placing the ultimate affairs of the Madarsa in the Madarsa Board. That would infringe Article 30(1) of the Constitution. I am, therefore, unable to sustain the power of the Board to control the service conditions of teachers and non-teaching staff. Section 24 of the Act, therefore, must be held to be ultra vires Article 30( 1) of the Constitution in so far as it lays down that subject to the regulations prescribed under this Ordinance the services of teachers and non-teaching staff shall be controlled by the Board.
12. In regard to the first and third parts of the Section 24, Mr. K.D. Chatterji as also learned Advocate General submitted that the supervision of the Board and the prior approval of the Board must be read down. They conceded that on the face of it they did appear to be invasion upon the autonomy of the Managing Committee, but, they submitted, that the provisions regarding supervision and prior approval must be read down as merely overseeing and issuing directions. It is not easy to read them down. It is true that supervision does not necessarily mean ultimate control. It also means to oversee or inspect. That right cannot be denied to the Board. But to say that the services of approved teachers and staff of a recognized Madarsa shall be under the supervision of the Board necessarily implies much more than overseeing. It takes in its sweep the power also to issue necessary directions. The power of administration and control having been vested in the Managing-Committee itself, the power of issuing directions implicit in supervision must necessarily imply overriding directions. That is, the direction of the Board must supersede the direction of the Managing Committee. This would amount to negativing the administrative autonomy of the Managing Committee. The expression 'supervision of the Board' cannot be watered down as submitted/suggested by learned Advocate General and counsel for the Board. They contain pernicious forebodings. In my view, therefore, the provision regarding vesting the ultimate power of supervision in the Board in regard to services of approved teachers and staff infringes Article 30(1) of the Constitution. This provision must, therefore, be held to be ultra vires the Constitution.
13. The last part of Section 24 that no teacher of the Madarsa shall be discharged or dismissed from service without the prior approval of the Board' is also annihilative of the autonomy of the Board in the garb of regulation of the affairs of the Madarsa. It is true that for the maintenance or achievement of excellence of education and institutions, it is essential that teachers and non-teaching staff of a Madarsa have fixity of the tenures and that they are not hired and fired Ad Lib by the Managing Committee. But that is entirely different from laying down that no person can be dismissed or discharged without the prior approval of the Board. The administration vests in the Managing Committee. The Committee must have the ultimate power of discharging or dismissing the employees of a Madarsa. I am prepared to concede that after an order of discharge or dismissal has been passed, the Madarsa Board may screen it in order to see that orders have not been passed mala fide or that the rules of natural justice have been complied. Suitable amendment in the Statute or Rules may be made in that regard in order to clothe the Madarsa Board with such powers in order to protect-the tenure of teachers and staff so that they do not have to reduce themselves to slavery of the Managing Committee. But to clothe the Madarsa Board with the power of approval prior to dismissal of an employee would mean vesting ultimate control of the institution in the Madarsa Board. This, in my view, is not permissible. In my view, therefore, the provision in regard to prior approval of dismissal or discharge of teachers of Madarsa is also ultra vires Article 30(1) of the Constitution and must be struck down.
14. For the reasons stated above, Section 7(2)(n) and Section 24 in so far as it vests the Board with the power of control of the teachers and non-teaching staff and with the obligation upon Madarsa to obtain prior approval for dismissal or discharge of teachers are held ultra vires Article 30(1) of the Constitution and are struck down accordingly. There is no substance in the attack on the vires of any other provision of the Act. The application is allowed accordingly. In the circumstances of the case, there shall be no order as to costs.
15. S.B. SANYAL, J.:-- I have perused the judgment of my learned Brother Uday Sinha, J. and I generally agree with his conclusion that Section 7(2)(a), (b) and (n), Section 24 of the Bihar State Madarsa Education Board Act (hereinafter to be referred to as 'the Act'), must be struck down as being ultra vires Article 30(1) of the Constitution of India. I also agree with his reasoning and conclusion that Sections 25, 26(2)(c)(k) and Section 28 of the Act do not suffer from any legal infirmity and vice.
16. I would, however, like to record my own reasons as to why Section 7(2)(n) in its entirety and Section 24 of the Act infringe Article 30(1) of the Constitution of India.
17. Section 7(2)(n) of the Act empowers the Board to constitute a Managing Committee inclusive of two donor representatives, two guardians' representatives, one member nominated by the Board and two other persons interested in Madarsa Education or Islamic Studies to be co-opted by the Board. The Managing Committee should also include two "insiders" of the institution, namely, the Head Maulvi and one teacher representative. It further empowers the Board to dissolve the Managing Committee.
18. Section 24, on the other hand, empowers the Board to supervise and control the services of the teachers and non-teaching staff and it further provides that without prior approval of the Board no staff could be discharged or dismissed.
19. Article 30(1) of the Constitution of India provides that all minorities, whether based on religion or language, shall have the right to establish and administer educational, institutions of their choice. The right to the administration of the institution of minority's choice as enshrined in Article 30(1) "means management of the affairs" of the institution. The right established by Article 30(1) is a fundamental right declared in terms absolute.
This right is subject to the regulatory power of the State. It is true that this right cannot be treated to be a "charter for mal-administration". The power to regulate, however, cannot be restrictive of the right conferred under this Article. No regulatory measure would be permitted which is a serious inroad on the rights vested in the institution, to administer and manage its affairs. It has been held in the case of State of Kerala v. Mother Provincial, AIR 1970 SC 2079 that this right of management must be free of control, so that.
the founders or their nominees can mould the institutions as they think fit, and in accordance, with their ideas of how the interests of the community in general and the institution in particular will be best served. It has further been observed that "the standards of education are not a part of management as such. The minority institutions cannot be allowed to fall below the standard of excellence expected of educational institution. Measures providing syllabi for examinations, special subject which the institution may seek to teach, the educational standard and professional skill of the teachers, libraries, laboratories, health and hygiene of the students are some of the regulatory measures which can be provided for the excellence of the training imparted therefrom. It has been held "Regulations made in the true interest of efficiency of institution, discipline, health, sanitation, morality, public order and the like may undoubtedly be imposed. Such regulations are not restrictions on the substance of the right which is guaranteed. It is also not right to hold that for grants-in-aid any condition can be imposed since the schools can forego the grants for exercising their right under Article 30(1) of the Constitution. Conditions cannot be attached to the grants which will destroy the fundamental right. The grants must be made in a reasonable manner and reasonable regulations can also be made to secure excellence of education. Article 30(2) enjoins the State in granting aid to educational institution not to discriminate on the ground that it is under the management of a minority whether based on religion or language. This article does not in any way curtail the right conferred under Article 30(1) of the Constitution. The State, therefore, is not competent to impose restrictions upon the substance of the right guaranteed under Article 30(1), while providing grants-in-aid or extending recognition to the institution. The State cannot disregard or override the fundamental right by employing indirect methods of achieving exactly the same result. Claim of recognition or grant-in-aid does not mean that the institution should submit to a regulation stipulating for a surrender of a right or freedom guaranteed by the Constitution. In that event it has rightly been observed that the right conferred would be a "teasing illusion", "a promise of unreality". Regulations which may lawfully be imposed either by legislative or executive action as a condition of receiving grant or of recognition must be directed to making the institution while retaining its character as a minority institution, effective as an educational institution. Such regulation must satisfy a dual test, the test of reasonableness, and the test that it is regulative of the educational character of the institution and is conducive to making the institution an effective vehicle of education for the minority community or other persons who resort to it. Under no circumstance there could be any regulation which will denude the right of management of the affairs of the institution. (See AIR 1963 SC 540 --
Sidharajbhai v. State of Gujarat).
20. Section 7(2)(n), in my opinion, displace the management of the school, entrusting it to different agency, thus directly affecting the autonomy of the school. In the case of St. Xaviers v. State of Gujarat, AIR 1974 SC 1389, a Bench of nine Judges was considering, inter alia, Section 33-A of the Gujarat University Act, 1949, which provided the management of a Governing Body to include amongst its members, a representative of the University nominated by the Vice-Chancellor and representatives of teachers, non-teaching staff and students of the college. Seven Judges held, "the autonomy in administration is lost". Dwivedi, J., while agreeing with the plurality view observed "Section 33-A(1)(a) of the said Act is 'abnoxious to Article 30(1)". The right of administration is day to day administration. The choice in the personnel of management is a part of the administration. The Board will always have a right to see that there is no mal-administration. If there is mal-administration, the Board will take steps to cure the same. There may be control and check on administration in order to find out whether the minority institutions are engaged in activities which are not conducive to the interest of minority or to the requirement of the teachers and the students. It was observed in the said case that the provisions contained in Section 33-A(1)(a) of the Act have the effect of displacing the management and entrusting it to a different agency. The autonomy in administration is lost. New elements in the shape of representatives of different types are brought in. These provisions in Section 33-A(1)(a) cannot, therefore, apply to minority institutions.
21. It has been rightly said in the case of State of Kerala, (AIR 1970 SC 2079) (supra) "if the administration goes to a body in the selection of whom, the founders have no say, the administration will be displaced. In my opinion, no power like this can be conferred on a body like the one contemplated to administer and manage the institution in the name of excellence of education and/or to secure orderly, efficient and sound administration of such institution. The learned Advocate General contended that Article 30(1) does not invalidate provisions which are of a regulatory character and intended to secure better administration of an institution. He further contended, Sub-section 7(2)(n) provides a pattern set out for constitution of the Managing Committee. The section does not interfere with the internal administration and management of Madarsa, in view of the personnel noticed in the said section. According to the learned Advocate General, by no stretch it could be said to be arbitrary constitution of the Managing Committee. In support of his submission, he strongly relied in a case reported in AIR 1975 SC 1821 (G. F. College, Shahjahanpur v. Agra University). In this case the Agra University Statutes required that the Managing Committee of the minority educational institution shall include the Principal of the College and the seniormost member of the teaching staff. This was assailed as being ultra vires Article 30(1) of the Constitution of India. The validity of the said provision was upheld on the ground of the inclusion of the Principal and seniormost teacher of the College who are "insiders". Krishna Iyer, J., observed "we see no force in the objection to the two innocuous insiders being seated on the Managing Committee". The reliance by the learned Advocate General on this case is misplaced and runs counter to his submission. The ratio of this case clearly indicates that the question would be altogether different if the Managing Committee composes of outsiders.
22. In the instant case, the Managing Committee sought to be composed of a body of almost seven outsiders to administer the educational institutions which, in my opinion, is demitting the administration of the institution in favour of an outside agency which infringes Article 30(1) of the Constitution of India. The power conferred on the Board is "anathema to the right of administration guaranteed by Article 30(1) of the Constitution". Section 7(2)(n) of the Act, therefore, has to be struck down in its entirety.
23. Section 24 deals basically with the disciplinary power of the minority institution. The institution has a right to enforce and ensure discipline in its administrative affairs. To confer this right on an outside authority like the Board is to take away the disciplinary power of the minority institution. The grounds of interference by the Board have not been defined. Conferment of such a blanket power interferes with the disciplinary control of the managing body of a minority educational institution. This is in effect demitting the entire disciplinary power of a minority educational institution in favour of an outside agency. Similar question arose in the case of Lilly Kurian v. Sr. Lewina, AIR 1979 SC 52 where the Kerala University Act provided a right of appeal to the Vice-Chancellor of the University against an order passed by the management by way of a disciplinary action. The same was struck down by the Supreme Court by observing, "the conferral of a right of appeals to an outisde authority like the Vice-Chancellor under Ordinance 33(4) takes away the disciplinary power of a minority educational authority. The Vice-Chancellor has the power to veto its disciplinary control. There is a clear interference with the disciplinary power of the minority institution". It was further held, "the State's rights to regulate do not include a power to impose any restriction which is destructive of the right itself. Spirit of Section 24 of the Act is similar to that of Section 33(4) of the Kerala University Act and as such has to be struck down.