H P Kapadia Education Trust & vs State Of Gujarat & 2 on 24 June, 2016

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Gujarat High Court

H P Kapadia Education Trust & vs State Of Gujarat & 2 on 24 June, 2016

HC-NIC Page 1 of 50 Created On Wed Jun 29 01:49:02 IST 2016 C/SCA/3250/2001 JUDGMENT 1 By this writ application, the writ applicants the Board of Trustees and Principal of a minority School, have prayed for the following reliefs;

"20a) Declaring that the petitioners are entitled, in their discretion, to continue the employees of the school in service beyond the age of 58 or 60 years, till they are physically and mentally fit to discharge their duties.

20(aa) Quashing and setting aside the office order dated 18/25.06.2001 at AnnexureD to the petition.

20(aaa) Quashing and setting aside order dtd.7.7.01 passed by D.E.O. at Annexure : H to the petition.

b) Restraining the respondents from interfering with the continuance of the employees of the petitioners' school in service beyond the age of 58 or 60 years till they are physically and mentally fit to discharge their duties in any manner whatsoever.

c) Granting any other and further reliefs and passing any other and further orders may be necessary in the fact of the case.

d) Awarding the cost of this petition.

21 During the pendency and final disposal of this petition this Hon'ble Court may be pleased to pass an order:

a) Restraining the respondent authorities from interfering with the discharge of duties by the employees of the petitioners' school beyond the age of 58 or 60 years till they are physically and mentally fit to discharge their duties and further restraining the respondents from taking any action against the petitioners for continuing the employees of the school in service beyond the age of 58 or 60 years till they are physically and mentally fit to discharge their duties.

21(aa) staying the operation and implementation of the order dated 18/25.06.2011 at AnnexureD to the petition.

21(aaa) Restraining the respondent authorities from taking any punitive or coercive action against the petitioners.

b) Granting any other and further reliefs and passing any other and further orders as may be necessary in the fact of the case.

21(bb) Staying the operation and implementation of the order dated 7.7.2001 passed by D.E.O. at Ann. L H to the petition"

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HC-NIC Page 2 of 50 Created On Wed Jun 29 01:49:02 IST 2016 C/SCA/3250/2001 JUDGMENT 2 The case of the petitioner may be summarized as under:

2.1 The petitioner is running a school in the name of "the New High School" which is a minority institution established by the Jain Community. By the judgment and order dated 5th May 1997 of this Court passed in the Special Civil Application No.7907 of 1995, the School has been recognised as a 'minority institution' entitled to the protection of Articles 29 and 30 of the Constitution of India.

2.2 It is the case of the petitioners that being a minority institution, it has the freedom and powers to administer and manage the institution.

By virtue of Section 40A of the Gujarat Secondary Education Act, the petitioners are exempted from the applicability of Sections 17 (26), 34 and 35 and Clause (b) of subsection (1) and subsection (2), (3), (4) and (5) of Section 36.

2.3 According to the petitioners, Section 34(2) of the Act empowers the Gujarat Secondary Education Board to frame Regulations regarding the recruitment and conditions of service including the conduct and discipline of persons appointed as Headmaster, Teachers and members of the nonteaching staff of the registered private secondary schools.

2.4 It is the case of the petitioners that the State of Gujarat framed the Gujarat Secondary Education Regulations, 1974 (for short, "the Regulations, 1974"). The Regulation 36 therein provides that an employee of a registered secondary school shall be compulsorily retired on the date on which he attains the age of 58 years. The Regulation 36

(b) provides that if the management of the school is of the opinion that in the interest of the school, it is necessary to retain in service a Teacher Page 3 of 50 HC-NIC Page 3 of 50 Created On Wed Jun 29 01:49:02 IST 2016 C/SCA/3250/2001 JUDGMENT or a Headmaster beyond the age of 58 years, then it may reemploy such Teacher or Headmaster, if he or she is physically and mentally fit. However, clause (c) makes it clear that no management of the school shall extend the period of reemployment of a Teacher or Headmaster, if he had attained the age of 60 years, except with the prior permission of the Board. The proviso to clause (c)(ii) makes it clear that a Teacher or Headmaster, who has attained the age of 65 years, shall not be continued in service under any circumstances.

2.5 The petitioner further points out that the Regulation 42 provides that the regulation shall prevail over the provisions contained in the GrantinAid Code published under the Notification dated 22nd April 1964.

2.6 The Regulation 43 provides that nothing contained in the Regulations 19, 20, 21, 22, 24, 25, 26, 27, 28, 30, 31, 32, 33, 36, 37, 40 and subclause (4), (5) and (6) of the Regulation 41 shall apply to any educational institutions established and administered by the minority whether based on religion or language.

2.7 It is the case of the petitioners that since the regulations prevail over the provisions of the GrantinCode, the provision, if any, in the GrantinAid Code, providing for the age of superannuation for the employment of the secondary school would not apply to the school in question. It is the case of the petitioners that para 81.2 of the Grantin Aid Code providing for granting of extension to the Teachers upto the maximum age of 60 years is not applicable to the petitioners.

2.8 It is also the case of the petitioners that the provisions of the Grant inAid are not statutory in nature, and therefore, the State Government Page 4 of 50 HC-NIC Page 4 of 50 Created On Wed Jun 29 01:49:02 IST 2016 C/SCA/3250/2001 JUDGMENT cannot make provisions in the Code contrary to and inconsistent with the statutory regulations and the provisions of the Act.

2.9 According to the petitioners, since the school has been exempted from the provisions of the Act and the Regulations, it is at liberty to continue its employees in service beyond the age of 60 years, and the GrantinAid Code cannot compel the petitioners to obtain prior permission of the Educational Inspector for granting such an extension.

2.10 The petitioner No.1 addressed a letter dated 16 th April 2011 to the District Education Officer regarding the extension of service of the Headmaster beyond the age of 60 years. However, according to the petitioner No.1, no reply was received in that regard.

2.11 Hence, this petition.

3 By way of amendment carried out in the writ application that it has been brought to the notice of the Court that the District Education Officer passed an order dated 5th December 2000 granting extension to the Principal of the school upto 31st October 2001 i.e. till the end of the term. Thereafter, the District Education Officer passed an order dated 7th July 2001 cancelling the order dated 5th December 2000 referred to above and asking the Principal to retire with effect from 22nd July 2001.

4 On 3rd May 2001, notice was issued by this Court making it returnable on 20th July 2001. This Court, while issuing notice, directed the District Education Officer, to consider and decide the petitioners application dated 16th April 2001 (Annexure: "C" to this petition) in light of the submissions made in the petition. The Court further observed that if the decision was adverse to the school management, the same should Page 5 of 50 HC-NIC Page 5 of 50 Created On Wed Jun 29 01:49:02 IST 2016 C/SCA/3250/2001 JUDGMENT be rendered by a speaking order and shall also be communicated to the school management by 6th July 2001.

5 On 23rd July 2001, the following order was passed:

"Leave to amend the main petition is granted. Mr.Clerk has placed on record the order passed by the District Education Officer dated 7.7.2001, by which services of the Headmaster was allowed to be continued upto 22.7.2001. He has placed on record earlier order dated 5.12.2000 (wrongly mentioned as 5.12.2001), by which the Headmaster was allowed to serve upto 31.10.2001. The said order is also placed on record. He further submitted that so far as the minority institution is concerned, the provisions prescribing age limit in the Grantinaid Code is not applicable. Mr.Joshi, learned AGP, also may take information about various G.Rs. of the State Government regarding this issue and to find out whether for minority institution, the provisions of Grant inaid Code in so far as it prescribes age limit to the Headmaster are applicable or not. S.O. to 30th July, 2001.

In the meanwhile, the impugned order dated 7.7.2001 may not be implemented further and the Headmaster of the petitionerTrust may be allowed to continue to function as Headmaster till 30th July, 2001.

The aforesaid orders dated 7.7.2001 as well as 5.12.2000 are kept on record."

6 Thereafter, on 25th October 2001, the following order was passed:

"Heard learned counsel Mr. AK Clerk for the petitioner. In absence of formal affidavit of resistence, I am inclined to issue rule. Hence, Rule.

Learned counsel for the petitioner has mainly placed reliance on the relevant provisions of secondary Education Regulation, 1974 and the provisions of GrantinAid Code vis.a.vis the provisions of Article 29 and 30 of the Constitution of India. He has prayed that the petitioner school be granted interim relief as prayed and school as well as Principal both are ready to file an undertaking that in the event of failure on the part of the petitioners, the amount of grant recovered in lieu of salary can be adjusted against the future grant. Without commenting upon the relevant provisions, limited scope of success, and in view of the Page 6 of 50 HC-NIC Page 6 of 50 Created On Wed Jun 29 01:49:02 IST 2016 C/SCA/3250/2001 JUDGMENT observations made by this Court in the case reported in 1993(2) GLH p. 1150, in para9 (at page 1155), such a protection or interim relief if granted may complicate the matter and may give rise to other legal proceedings. Hence, interim relief as prayed refused. However, the petitionerschool shall be entitled to continue the present Principal till hearing and final disposal of this petition on condition that they shall not withdraw the grant qua the salary of the Principal. Their right to recover the amount of grant qua the salary of Principal as per norms shall be subject to the result of the petition or any further orders on merits at the end.

To be listed for final hearing on 4.12.2001."

7 Mr. Clerk, the learned counsel appearing for the petitioners vehemently submitted that the State Government was not justified in stopping the grant towards the salary of the Principal on the ground that the Principal had crossed the age of 60 years and was not entitled to remain in service thereafter. Mr. Clerk submitted that the school being a minority institution, the GrantinAid Code framed by the State Government which provides the age of superannuation would not apply to the case in hand.

8 Mr. Clerk submitted that being a minority Trust, the provisions of the Gujarat Secondary Education Act, 1972 (for short, "the Act") as regards the conditions of service and the provisions of the Regulations regarding the age of retirement would not apply. According to Mr. Clerk, if the Principal is fit both physically and mentally to discharge his duties, then it is within the discretion of the Board of Trustees to continue him beyond the age of 60 years.

9 Mr. Clerk submitted that at best, the Government Authorities can insist to provide medical certificate of a Civil Hospital certifying about the fitness of such person. Mr. Clerk invited the attention of the Court to the medical certificates issued by the Civil Hospital in this regard from time to time. The certificates would indicate that the Principal was Page 7 of 50 HC-NIC Page 7 of 50 Created On Wed Jun 29 01:49:02 IST 2016 C/SCA/3250/2001 JUDGMENT certified to be fit.

10 Mr. Clerk submitted that it is settled law that what is prohibited by law directly, cannot be done indirectly. According to Mr. Clerk, if the Regulation 36 has no application to the minority institutions, then to overcome this, there cannot be a stipulation in the GrantinAid Code by way of executive instructions that the maximum age of retirement of the teaching staff would be 60 years, and if the institution decides to continue the teaching staff beyond the age of 60 years, then they are not entitled to receive the grant towards the salary of such teaching staff.

11 In such circumstances referred to above, Mr. Clerk prays that the orders dated 18th / 25th June 2001 at Annexure : "D" and 7th July 2001 at Annexure : "H" be quashed. Mr. Clerk prays that it be declared by an appropriate writ, order or direction that it would be within the discretion of the management of a minority institution to continue its employees in service beyond the age of 60 years till they are physically and mentally fit to discharge their duties.

12 On the other hand, this writ application has been vehemently opposed by Mr. Swapneshwar Gautam, the learned Assistant Government Pleader appearing for the respondents. The learned Assistant Government Pleader would submit that although the school is a minority institution, yet, that by itself, does not confer an absolute or unfettered powers or discretion as regards the conditions of service of its employees. According to the learned Assistant Government Pleader, the minority institutions are entitled to receive grants from the Government, but subject to the GrantinAid Code. If the GrantinAid Code has provided that the age of retirement would be 58 years and the same could be extended maximum upto 60 years, then the management cannot insist that it is within its discretion to continue its employees Page 8 of 50 HC-NIC Page 8 of 50 Created On Wed Jun 29 01:49:02 IST 2016 C/SCA/3250/2001 JUDGMENT even beyond the age of 60 years. According to him, if the management decides to continue its employees in service beyond the age of 60 years, as provided in the GrantinAid, then the Government would not be obliged to pay the grant towards the salary of such an employee.

13 Mr. Gautam contended that the GrantinCode prescribing the age of retirement of the teaching and nonteaching staff neither amounts to interference in the daytoday administration of the minority educational institutes nor does it affect the right of the minority educational institutes to appoint a Principal of its choice, but it is a part of the regulatory regime to maintain standards of the educational institutes.

14 Mr. Gautam, in support of his submissions, has placed reliance on a decision of this Court in the case of Haji Musa Ismail v. District Education Officer and others [1993 (2) GLH 1150]. He has also placed strong reliance on an unreported judgment of this Court in the case of Rajaram Vidhyavihar v. State of Gujarat [Special Civil Application No.1694 of 2002 decided on 22nd February 2002] and affirmed by the Division Bench in the Letters Patent Appeal No.697 of 2002. He has also placed reliance on a Supreme Court decision in the case of Kolawala Gram Vikas Kendra v. State of Gujarat and others [2010 (1) SCC 133].

15 Mr. Gautam has also placed reliance on the following averments made in the affidavitinreply filed on behalf of the respondent No.3:

"4 I state that the order dated 07.07.2001 is just and proper and the order was passed after considering the Government Resolution dated 07.12.1996. A copy of the Government Resolution dated 07.12.1996 is annexed herewith and marked as AnnexureRI. I state that by Government Resolution dated 07.12.1996 Section 812 of GrantinAid Code, 1964 was amended which provides to permitting to concerned employees to work till the age of 60 years and more than 60 years the Page 9 of 50 HC-NIC Page 9 of 50 Created On Wed Jun 29 01:49:02 IST 2016 C/SCA/3250/2001 JUDGMENT employee cannot be permitted to continue. A copy of the amendment which is amended in Code is annexed herewith and marked as Annexure RII for ready reference of this Hon'ble Court. I state that as per the amended grantinaid code the Principal cannot be permitted to continue beyond the age of 60 years. In view of the aforesaid the petition is required to be dismissed."

16 In rejoinder to the reply filed on behalf of the respondent No.3, the petitioners have stated as under:

"4 It is further submitted that GrantinAid Code contains administrative instructions and is nonstatutory in character. It is well settled law that administrative instructions cannot run contrary to or override the statutory provisions contained in the Act and the Regulations. It is submitted that when the Act and the Regulations exempt the minority institution from the provisions prescribing the age of superannuation, the GrantinAid Code cannot provide for the age of superannuation for minority institutions. The petitioner submits that Regulations framed under the Act prevail over the GrantinAid Code under Regulation 42 of the Regulations and therefore the provisions contained in GrantinAid Code are not applicable to the petitioner.

5 It is submitted that age of superannuation is a condition of service or employment and it must be provided either in the contract of employment or in the Act or the Regulations. In the absence of any such provisions, the employee is entitled to continue in service and discharge his duties so long as he is mentally and physically fit to perform his duties."

17 Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the petitioners are entitled to the reliefs prayed for in this writ application.

18 Before I advert to the rival submissions canvassed on either sides, I deem fit to look into few relevant provisions of the Act, Rules, Regulations and the GrantinAid Code.



         19     Section   17   of   the   Act   prescribes   powers   and   duties   of   the 


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Secondary Education Board. It enables the Board to lay down qualifications, methods of selection of employment and the rules for the conduct and discipline of the Headmaster and teaching and non teaching staff of the registered private secondary schools. For our purpose, Section 17(26) of the Act is relevant, which reads as under:

"17(26) to lay down qualifications, methods of selection and conditions of appointment, promotion and termination of employment and rules for conduct and discipline of the headmaster and the teaching & non teaching staff of registered private secondary schools;"

20 Section 54 provides for framing of the Regulations by the State Government.

21 Section 40A is with regard to the savings, which reads as under:

"40A. Savings - Nothing contained in clause (26) of section 17, sections 34 and 35, and clause (b) of subsection (1) and subsections (2), (3), (4) and (5) of section 36 shall apply to any educational institutions established and administered by a minority, whether based on religion or language."

22 The plain reading of Section 40A of the Act, which was introduced into the Act by the Gujarat Act 25 of 1973 provides that nothing contained in Clause (26) of Section 17, Sections 34 and 35 and clause

(b) of subsection (1) and subsection (2), (3), (4) and (5) of Section 36 shall apply to any educational institutions established and administered by a minority whether based on religion or language.

23 The Regulation 36 of the Regulations 1974 reads as under:

"36. Superannuation of teaching staff - (1)(a) A teacher or a headmaster of a registered private school shall be compulsorily retired on the date on which he attains the age of 58 years;



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(b) Where a management of the school is of opinion that in the interest of the school it is necessary to retain in service a teacher or a headmaster beyond the age of 58 years, it may reemploy such teacher or headmaster if the teacher or the headmaster concerned is physically and mentally fit;

(c) (i) No management of the school shall extent the period of re employment of a teacher or headmaster after he had attained the age of 60 years, except with the previous permission of the Board;

(ii) The Board may grant permission for such further reemployment for a period not exceeding one year at a time. If it is satisfied that in the interest of the school it is necessary to reemploy the teacher or the headmaster and the teacher or the headmaster is physically and mentally fit:

Provided that a teacher or a headmaster, who has attained the age of 65 years shall not be continued in service under any circumstances,

(d) On reemployment of a person in the manner specified in sub clauses (b) or (c) his pay should not exceed the last pay (including special pay or additional pay, if any, drawn by him at the time of his retirement minus pension (including pension equivalent to deathcumretirement gratuity or gratuity in lieu of pension). Such pay should not, however, exceed the maximum of the time scale of the post in which he is re employed. Where the pay is fixed according to this regulation the incumbent shall be entitled to receive the benefits of annual increments even though the pension (including pension equivalent to deathcum retirement gratuity or gratuity in lieu of pension) plus pay so fixed exceeds the last pay drawn by him at the time of retirement, but the total shall not exceed the maximum of the time scale of the post in which he is re employed;

(e) Pension may be allowed to be drawn as a separate entity and may be held in abeyance if the pensioner so applies;

(f) A member of the teaching staff shall not be entitled to any notice for his relief after he attains the age of 58 years or after, the expiry of the period for which reemployment has been granted:

Provided that where the period of reemployment is not specifically mentioned in the order granting such reemployment the person concerned shall be entitled to one month's notice or salary (Pay and allowances, if any) in lieu of such notice."

24 The Regulation 42 makes it clear that the Regulations shall prevail Page 12 of 50 HC-NIC Page 12 of 50 Created On Wed Jun 29 01:49:02 IST 2016 C/SCA/3250/2001 JUDGMENT over the GrantinAid Code. It reads as under:

"42. Regulations to prevail over GrantinAid Code. The provisions of these regulations shall prevail over those provisions contained in the GrantinAid Code published under Government Notification Education and Labour Department No.GAC1064C dated the 22nd April, 1964, in so far as they relate to any matters provided in these regulations."

25 The Regulation 43 reads as under:

"43. Nothing contained in Regulations 19, 20, 21, 22, 24, 25, 26, 27, 28, 30, 31, 33, 36, 37, 40 & subclauses (4), (5) & (6) of Regulation No.41 shall apply to any educational institution established and administered by a minority, whether based on religion or language."

26 Let me now look into the GrantinAid Code. The relevant provision in the Code is Rule 81, which reads as under:

"81.1 A Secondary School Teacher shall ordinarily retire from service at the age of 58.

81.2 The management may grant to teachers extensions upto the age of

60. If the Inspecting Officers report on the basis of their inspection that any teacher beyond the age of 58 is unable to discharge his duties properly, the teacher will be sent for Medical examination and if declared unfit will be compelled to retire.

81.3 If a management for any reasons, desires to give extension to a teacher in its employ, beyond the age of 60, it should obtain the previous permission of the Educational Inspector who may grant such extension for a period not exceeding one year at a time on the merit of the case and subject to the teacher being physically and mentally fit. No teacher who has completed the the age of 65, shall however, be continued in service under any circumstances.

81.4 The case of parttime teachers and special teachers like teachers for Drawing, Music, Craft, etc. and parttime nonteaching staff who are treated on par with other teaching and nonteaching staff in respect of service conditions etc. shall also be governed by these rules.





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81.5 No person who has already attained the age of 58 years shall be employed as a teacher or on the nonteaching staff. Retired persons from Government or nonGovernment Educational Institutions may however, be reemployed by the Educational Institutions provided they are physically and mentally fit. The employment of such retired persons should be subject to the provisions made in clauses 81 2 and 81.3 above and such other terms and conditions not in contravention of these rules and the general service conditions as may be mutually agreed upon between the employer and the employee. Such reemployed persons will not however, be eligible for the departmentally prescribed scales of pay and allowances, etc. and to the Government aided Provident Fund scheme. "

27 Thus, the provisions referred to above, makes the picture abundantly clear as regards the applicability of certain provisions of the Act, Regulations, Rules and Rules to the amended institutions.

28 The issue as regards the rights of a minority institution was a matter of adjudication before a Bench of 11 Judges' of the Supreme Court in the case of T.M.A. Pai Foundation and others v. State of Karnataka [2002 (8) SCC 481]. In a majority judgment delivered by the learned Chief Justice Mr. Justice B.N. Kirpal (as his Lordship then was) it was held that the right to establish and administer a minority educational institution includes within its ambit the right to appoint the staff (teaching and nonteaching). It has held that the aided institution does not become Government owned and Government controlled institution, or a departmentally run and interfere with the constitution of the governing bodies or thrusting staff without reference to the management. The enunciation of law in the majority judgment can be seen from the following observations:

50" The right to establish and administer broadly comprises the following rights:

(a) to admit students;

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(b) to set up a reasonable fee structure;

c(c) to constitute a governing body;

ci(d) to appoint staff (teaching and nonteaching) ; and

(e) to take action if there is dereliction of duty on the part of any employees.

54. The right to establish an educational institution can be regulated, but such regulatory measures must, in general, be to ensure the maintenance of proper academic standards, atmosphere and infrastructure (including qualified staff) and the prevention of maladministration buy those in charge of management. The fixing of a rigid fee structure, dictating the formation and composition of a governing body, compulsory nomination of teachers and staff for appointment or nominating students for admissions would be unacceptable restrictions. "

72...................

At the same time it has to be ensured that even an aided institution does not become a governmentowned and controlled institution. Normally, the aid that is granted is relatable to the pay and allowances of the teaching staff. In addition, the management of the private aided institutions has to incur revenue and capital expenses. Such aided institutions cannot obtain that extent of autonomy in relation to management and administration as would be available to a private unaided institution but at the same time it cannot also be treated as an educational institution departmentally run by government or as a wholly owned and controlled government institution and interfere with constitution of the governing bodies or thrusting the staff without reference to management. "

29 The Supreme Court in the case of Secretary, Malankara Syrian Catholic College v. T. Jose and others [2007 (1) SCC 386] reiterated the legal position that the right of a minority institution to administer an educational institution of its choice comprises of a right to appoint teaching or nonteaching staff. In dealing with the issue as to what extent, the State can interfere with the functioning of the minority institutions, more particularly, when such institution is receiving financial aid from the State, the Supreme Court held in paras 19 and 21 Page 15 of 50 HC-NIC Page 15 of 50 Created On Wed Jun 29 01:49:02 IST 2016 C/SCA/3250/2001 JUDGMENT as under:

"

"19. The general principles relating to establishment and administration of educational institution by minorities may be summarised thus:

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

(a) to choose its governing body in whom the founders of the institution have faith and confidence to conduct and manage the affairs of the institution;

(b) to appoint teaching staff (teachers/lecturers and Headmasters/ Principals) as also nonteaching staff, and to take action if there is dereliction of duty on the part of any of its employees;

(c) to admit eligible students of their choice and to set up a reasonable fee structure;

(d) to use its properties and assets for the benefit of the institution.

(ii) The right conferred on minorities under Article 30 is only to ensure equality with the majority and not intended to place the minorities in a more advantageous position visàvis the majority. There is no reverse discrimination in favour of minorities. The general laws of the land relating to national interest, national security, social welfare, public order, morality, health, sanitation, taxation, etc. applicable to all, will equally apply to minority institutions also.

(iii) The right to establish and administer educational institutions is not absolute. Nor does it include the right to maladminister. There can be regulatory measures for ensuring educational character and standards and maintaining academic excellence. There can be WP (Civil) Nos.

7568/1999 & 8710/2007 Page 18 of 26 checks on administration as are necessary to ensure that the administration is efficient and sound, so as to serve the academic needs of the institution. Regulations made by the State concerning generally the welfare of students and teachers, regulations laying down eligibility criteria and qualifications for appointment, as also conditions of service of employees (both teaching and non teaching), regulations to prevent exploitation or oppression of employees, and regulations prescribing syllabus and curriculum of study fall under this category. Such regulations do not in any manner interfere with the right under Article 30(1).

(iv) Subject to the eligibility conditions/qualifications prescribed by the Page 16 of 50 HC-NIC Page 16 of 50 Created On Wed Jun 29 01:49:02 IST 2016 C/SCA/3250/2001 JUDGMENT State being met, the unaided minority educational institutions will have the freedom to appoint teachers/lecturers by adopting any rational procedure of selection.

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

"21. We may also recapitulate the extent of regulation by the Staff, permissible in respect of employees of minority educational institutions receiving aid from the State, as clarified and crystallised in T.M.A.Pai. Foundation, the State can prescribe:

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

(ii) the service conditions of employees without interfering with the overall administrative control by the management over the staff.

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

(iv) the conditions for the proper utilisation of the aid by the educational institutions, without abridged or diluting the right to establish and administer educational institutions.

(v) In other words, all laws made by the State to regulate the administration of educational institutions and grant of aid will apply to minority educational institutions also. But, if any such regulations interfere with the over all administrative control by the management over 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."

30 In the case of Sindhi Education Society and another v. Chief Secretary, Government of NCT Delhi and others [2010 (8) SCC 49] dealing with the similar issue in regard to an aided linguistic minority school, the Supreme Court held as under:

111. "A linguistic minority has constitution and character of its own. A provision of law or a circular, which would be enforced against the general class, may not be enforceable with the same rigours against the minority institutions particularly where it relates to establishment and management of the school. It has been held that founders of the minority institution have faith and confidence in their own committee or body consisting of the persons selected by them. Thus, they could choose their managing Page 17 of 50 HC-NIC Page 17 of 50 Created On Wed Jun 29 01:49:02 IST 2016 C/SCA/3250/2001 JUDGMENT committee as well as they have a right to choose its teachers. Minority institutions have some kind of autonomy in their administration. This would entail the right to administer effectively and to manage and conduct the affairs of the institution. There is a fine distinction between a restriction on the right of administration and a regulation prescribing the manner of administration. What should be prevented is the maladministration. Just as regulatory measures are necessary for maintaining the educational character and content of the minority institutions, similarly regulatory measures are necessary for ensuring orderly, efficient and sound administration.

112. Every linguistic minority may have its own social, economic and cultural limitations. It has a constitutional right to conserve such culture and language. Thus, it would have a right to choose teachers, who possess the eligibility and qualifications, as provided, without really being impressed by the fact of their religion and community. Its own limitations may not permit, for cultural, economic or other good reasons, to induct teachers from a particular class or community. The direction, as contemplated under Rule 64 (1) (b), could be enforced against the general or majority category of the governmentaided schools but, it may not be appropriate to enforce such condition against linguistic minority schools. This may amount to interference with their right of choice and at the same time may dilute their character of linguistic minority. It would be impermissible in law to bring such actions under the cover of equality which in fact, would diminish the very essence of their character or status. Linguistic and cultural compatibility can be legitimately claimed as one of the desirable features of a linguistic minority in relation to selection of eligible and qualified teachers. (emphasis supplied)

113. A linguistic minority institutions is entitled to the protection and the right of equality enshrined in the provisions of the Constitution. The power is vested in the State to frame regulations, with an object to ensure better organisation and development of school education and matters incidental thereto. Such power must operate within its limitation while ensuring that it does not, in any way, dilutes or impairs the basic character of linguistic minority. Its right to establish and administer has to be construed liberally to bring it in alignment with the constitutional protections available to such communities.

114. The minority society can hardly be compelled to perform acts or deeds which per se would tantamount to infringement of its right to manage and control. In fact, it would tantamount to imposing impermissible restriction.

A school which has been established and granted status of a linguistic minority for years, it will not be proper to stop its grantinaid for the reason that it has failed to comply with a condition or restriction which is impermissible in law, particularly when the teachers appointed or proposed to be appointed by such institution satisfy the laid down criteria and/or Page 18 of 50 HC-NIC Page 18 of 50 Created On Wed Jun 29 01:49:02 IST 2016 C/SCA/3250/2001 JUDGMENT eligibility conditions. The minority has an inbuilt right to appoint persons, which in its opinion are better culturally and linguistically compatible to the institution. "

31 A Division Bench of this Court in the case of Hajinurul Hasan Master Charitable Trust and another v. State of Gujarat [2013(2) GLR 946], while considering the constitutional validity of the Government Resolution dated 21st May 1994 compelling the minority institutions to absorb teaching and nonteaching staff from other minority institutions for the purpose of availing of the grantinaid has discussed in details the powers of the Board to impose such restriction upon the minority institutions. While declaring the Government Resolution as violative of Article 30(1) of the Constitution of India, the Division Bench framed three questions for its consideration and answered as under:

"(I). Whether the clause 4 (g) of the Government Resolution dated 21.5.1994 which provides for absorption of teaching /non teaching staff declared surplus from other minority institutions, by the minority institutions and Clause 64.3 in the Grant in Aid Code which provides that on non absorption of teaching / non teaching declared surplus, by the concerned minority institution there shall be grant cut would violate the fundamental right of such minority / minority institutions guaranteed under Article 30(1) of the Constitution of India ?

(II). To what extent, State Government can regulate the administration and management of such minority educational institutions when such institutions receive aid from the State ?

(III). Whether the learned Single Judge is right in holding that clause 4(g) of the Government Resolution dated 21.5.1994 directing the minority institutions to absorb a surplus teaching/ non teaching staff declared surplus from other minority institutions and clause 64.3 of the Grant in Aid Code did not violate any of the rights of such aided minority institutions, guaranteed under Article 30(1) of the Constitution of India ?

8 Thus, when such aided minority institutions have absolute right to appoint the teachers as per their choice, but subject to fulfilling the recruitment rules as stated above, they cannot be compelled to absorb teaching/non teaching staff declared surplus from other institutions may Page 19 of 50 HC-NIC Page 19 of 50 Created On Wed Jun 29 01:49:02 IST 2016 C/SCA/3250/2001 JUDGMENT be minority institutions. What cannot be done directly cannot be permitted to be done indirectly. Thus, clause 4(g) of the Government Resolution dated 21.5.1994 which compels/directs the religious or linguistic minority institutions to absorb the teaching / non teaching staff declared surplus staff from other minority institutions would violate the fundamental rights of such minority institution to administer and/or establish the institution of their choice which is guaranteed under Article 30(1) of the Constitution of India.

8.1 Now, the next question which is posed for consideration of this Court is whether merely because such minority institutions are receiving aid i.e. they are aided minority institutions they are bound to obey and/or comply with any provisions which otherwise violates their fundamental rights guaranteed under Article 30(1) of the Constitution of India ?

8.2 In the case of Brahmo Samaj Education Society v. State of W.B. [2004 (6) SCC 224], it is held and observed by the Supreme Court that merely because such minorities are receiving aid, their autonomy of administration cannot be totally restricted and institutions cannot be treated as a government owned one. It is further observed that ofcourse the State can impose such conditions as are necessary for the proper maintenance of standards of education and to check maladministration. But that control cannot extend to the day to day administration of the institution. It is further observed that State can regulate the method of selection and appointment of teachers after prescribing requisite qualification for the same. Independence for the selection of teachers among the qualified candidates is fundamental to the maintenance of the academic and administrative autonomy of an aided institution. It is further observed that the State can very well provide the basic qualification for teachers. It is further observed by the Supreme Court in the said decision that receiving aid from the State coffers can also not be treated as a justification for imposition of any restrictions that cannot be imposed otherwise.

8.6 It is also required to be noted at this stage that even as per Section 40A of the Gujarat Secondary and Higher Secondary Education Act, 1972, clause (26) of Section 17, Sections 34 and 35, and clause (b) of subsection (1) and subsections (2), (3), (4) and (5) of Section 36 shall not apply to any educational institution established and administered by a minority, whether based on religion or language. Subsection (26) of Section 17 confers upon Gujarat Secondary Education Board to lay down qualifications, methods of selection and conditions of appointment, promotion and termination of employment and rules for conduct and discipline of the headmaster and the teaching and non teaching staff of registered private secondary schools. Section 34 of the aforesaid Act is relating to the recruitment and conditions of service of persons appointed Page 20 of 50 HC-NIC Page 20 of 50 Created On Wed Jun 29 01:49:02 IST 2016 C/SCA/3250/2001 JUDGMENT in registered private secondary schools. Section 35 of the aforesaid Act provides to have selection committee who shall select the persons for appointment as teachers of the school from amongst the persons who are qualified to be appointed as such in accordance with regulation made in that behalf. Thus, by Section 40A of the said Act, the aforesaid provisions would not be applicable to the educational institutions established and administered by minority, whether based on religion or language. Thus, in view of the aforesaid statutory provisions, more particularly, Section 40 A of the aforesaid Act, such minority institution cannot be compelled to absorb the surplus teaching / non teaching staff, declared surplus from other minority institutions. Nothing can be done indirectly, which cannot be done directly.

8.8 Considering the aforesaid decisions and the law laid down by the Supreme Court, it is to be held that the linguistic or religious minority institutions have right guaranteed under Article 30(1) of the Constitution of India to establish and administer the minority institutions of their choice and they have right to choose their managing committee as well as they have right to choose its teachers, who possess the eligibility and qualification, as provided by the State Government and merely because such minorities institutions are aided minority institutions taking grant from the Government, their autonomy of administration cannot be totally restricted and/or the minority character of institutions does not cease to be so when grant in aid is received from the State. Thus, it is to be held that clause 4(g) of the Resolution dated 21.5.1994 directing the linguistic or religious minority institutions to absorb teaching / nonteaching staff, declared surplus from other minority institutions and clause 64.3 of the GrantinAid Code providing that by not absorbing a surplus teaching / non teaching staff, there would be grant cut are void being violative of rights guaranteed to such minority institutions guaranteed under Article 30(1) of the Constitution of India and it is to be held that clause 64.3 of the GrantinAid Code would not be applicable to the linguistic or religious minority institutions."

32 A Full Bench of the Bombay High Court in the case of St. Francis De Sales Education Society, Nagpur and another v. State of Maharastra and another [2001 (3) Mh. L. J. 261], while dealing with an issue falling under the Maharashtra Employees of Private Schools (Conditions of Service) Act and rules framed thereunder, held that a minority institution cannot be directed to appoint teachers of other staff on the basis of reservation policy followed by the State as evidenced in rule 9 (7) to Rule 9 (10) of the Maharashtra Employees of Private Page 21 of 50 HC-NIC Page 21 of 50 Created On Wed Jun 29 01:49:02 IST 2016 C/SCA/3250/2001 JUDGMENT Schools (Conditions of Service) Rules, 1981. It has been held that the fundamental right guaranteed under Article 30 of the Constitution of India are absolute and not subject to reasonable restrictions as under

Article 19. It was held that a minority institution cannot be directed to appoint teachers or other staff on the basis of reservation policy followed by the State.

33 A Division Bench of the Bombay High Court, in the case of the Canossa Society v. State of Maharastra [Writ Petition No.1049 of 2012 decided on 7th May 2014], after adverting to the settled legal position as regards a minority educational institution, held as under:

"22 ....The State would be within its right to impose only such restrictions so as to maintain standards of education and to check any kind of maladministration. However, the autonomy in regard to day to day administration of the minority institution cannot be taken away by imposing any condition or restrictions which would take away the minority character of a minority institution and infringe the Constitutional guarantee conferred by Article 30 of the Constitution of India."

34 In All Bihar Christian Schools Association v. State of Bihar [1988 (1) SCC 206], after examining the purpose of Article 30(1) of the Constitution and the earlier decisions of the Court, the Supreme Court observed as under (SCC, p.220):

"9....Minority institutions may be categorised in three classes, (i) educational institutions which neither seek aid nor recognition from the State, (ii) institutions that seek aid from the State, and (iii) educational institutions which seek recognition but not aid. Minority institutions which fall in the first category are free to administer their institutions in the manner they like, the State has no power under the Constitution to place any restriction on their right of administration. This does not mean that an unaided minority institution is immune from operation of general laws of the land. A minority institution cannot claim immunity from contract law, tax measures, economic regulations, social welfare Page 22 of 50 HC-NIC Page 22 of 50 Created On Wed Jun 29 01:49:02 IST 2016 C/SCA/3250/2001 JUDGMENT legislation, labour and industrial laws and similar other measures which are intended to meet the need of the society. But institutions falling within the second and third categories are subject to regulatory provisions which the State may impose. It is open to the State to prescribe conditions for granting recognition or disbursing aid. These conditions may require a minority institution to follow prescribed syllabus for examination, courses of study, they may further regulate conditions of employment of teachers, discipline of students and allied matters. The object and purpose of prescribing regulations are to ensure that minority institutions do not fall below the standard of excellence expected of an educational institution and that they do not fall outside the main stream of the nation. A minority institution must also be fully equipped with educational excellence to keep in step with others in the State; otherwise the students coming out of such institutions will not be fully equipped to serve the society or the nation. While the State has every right to prescribe conditions for granting recognition or disbursing aid, it cannot under the guise of that power prescribe onerous conditions compelling the minority institutions to surrender their rights of administration to the Government. On the one hand the State is under an obligation to ensure that educational standards in the recognised institutions must be according to the need of the society and according to standards which ensure the development of personality of the students in turning out to be civilized, useful members of the society, and to ensure that the public funds disbursed to the minority institutions are properly utilised for the given purpose. On the other hand the State has to respect and honour minority rights under Art. 30(l) in the matter of establishing and carrying of administration of institution of their choice. In order to reconcile these two conflicting interests the State has to strike a balance and statutory provisions should serve both the objects and such statutory provisions have to withstand the test of Art. 30(l) of the Constitution. These principles have to be borne in mind in considering the question of validity of statutory provisions relating to minority educational institutions."

35 In St. Xavier's College Society v. State of Gujarat [(1974) 1 SCC 717], the validity inter alia of Section 33A (1) of the Gujarat University Act 1949 which stipulated how the governing body of any non government institution seeking affiliation should be constituted was challenged by a minority institution. Concurring with the majority in holding the provision to be violative of the fundamental right of minorities under Article 30(1) of the Constitution, Mathew. J., observed (SCC, p.815):

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HC-NIC Page 23 of 50 Created On Wed Jun 29 01:49:02 IST 2016 C/SCA/3250/2001 JUDGMENT "182. It is upon the principal and teachers of a college that the tone and temper of an educational institution depend. On them would depend its reputation, the maintenance of discipline and its efficiency in teaching. The right to choose the principal and to have the teaching conducted by teachers appointed by the management after an overall assessment of their outlook and philosophy is perhaps the most important facet of the right to administer an educational institution. We can perceive no reason why a representative of the University nominated by the ViceChancellor should be on the Selection Committee for recruiting the Principal or for the insistence of head of the department besides the representative of the University being on the Selection Committee for recruiting the members of the teaching staff.

So long as the persons chosen have the qualifications prescribed by the University, the choice must be left to the management. That is part of the fundamental right of the minorities to administer the educational institution established by them."

36 In Gandhi FaizEAm College v. University of Agra [1975 (2) SCC 283], the Supreme Court by a 2:1 majority rejected the contention of the minority institution that the Statute 14A framed by the University of Agra which compelled the institution, as a condition for grant of affiliation, to include the Principal and a teacher to represent the teaching staff on the Governing Body of the institution constituted a violation of Article 30(1) of the Constitution. Speaking for the majority, Krishna Iyer, J. noted (SCC, p. 293):

"21. An activist principal is an asset in discharging these duties which are inextricably interlaced with academic functions. The principal is an invaluable insider the management's own choice not an outsider answerable to the ViceChancellor. He brings into the work of the Managing Committee that intimate acquaintance with educational operations and that necessary expression of studentteacher aspirations and complaints which are so essential for the minority institution to achieve a happy marriage between individuality and excellence. And the role of the seniormost teacher, less striking maybe and more unobstrusive, is a useful input into managerial skills, representing as he does the teachers and being only a seasoned minion chosen by the management itself. After all, two creatures of the society on a 16member Managing Committee can bring light, not tilt scales. Moreover, the Managing Committee itself is subject to the hierarchical control of the governing body and the General Council.




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Rejecting the contention that the Agra University Statute was no different from the one that the Supreme Court had struck down in St. Xavier's College Society, the majority in para 29 explained that (SCC, p. 298) "the features of the Agra University Act visàvis the minority institutions are conspicuously different and leave almost unaffected the total integrity of the administration by the religious group, save in the minimal inclusion of two internal entities, namely the Principal of their own choice and the senior most lecturer independently appointed by them." (Mathew J., dissented and held that the provision was no different from the one struck down by the constitution bench in St. Xavier's).

37 In Ammad v. Manager Emjay High School [1998 (6) SCC 674] the question considered was: "is the management of a minority school free to choose and appoint any qualified person as a Headmaster of the school or whether such management is hedged by any legislative edict or executive fiat in doing so?" Answering the earlier part of the question in the affirmative and the later part in the negative, the Supreme Court held (SCC, p. 681) "if the management of the school is not given very wide freedom to chose the personnel for holding such a key post, subject of course to the restrictions regarding qualifications to be prescribed by the State, the right to administer the school would get much diminished." Elaborating on the concept of a "key post" the Supreme Court explained (SCC, p. 680):

"18. Selection and appointment of Headmaster in a school (or Principal of a college) are of prime importance in administration of that educational institution. The Headmaster is the key post in the running of the school. He is the hub on which all the spokes of the school are set around whom they rotate to generate result. A school is personified through its Headmaster and he is the focal point on which outsiders look at the school. A bad Headmaster can spoil the entire institution, an efficient and honest Headmaster can improve it by leaps and bounds. The functional efficacy of a school very much depends upon the efficiency and dedication of its Headmaster. This pristine precept remains unchanged despite many changes taking place in the structural patterns of education over the years.

19. How important is the post of Headmaster of a school has been pithily stated by a Full Bench of the Kerala High Court in Aldo Maria Patroni v. E.C. Kesavan AIR 1965 Ker 75. Chief Justice M.S. Menon has, in a style Page 25 of 50 HC-NIC Page 25 of 50 Created On Wed Jun 29 01:49:02 IST 2016 C/SCA/3250/2001 JUDGMENT which is inimitable, stated thus: "The post of the headmaster is of pivotal importance in the life of a school. Around him wheels the tone and temper of the institution; on him depends the continuity of its traditions, the maintenance of discipline and the efficiency of its teaching. The right to choose the headmaster is perhaps the most important facet of the right to administer a school, and we must hold that the imposition of any trammel thereon except to the extent of prescribing the requisite qualifications and experience cannot but be considered as a violation of the right guaranteed by Article 30(1) of the Constitution. To hold otherwise will be to make the right 'a teasing illusion, a promise of unreality'."

38 In Secretary, Malankara Syrian Catholic College (supra), the post of the Principal in the Malankara Syrian Catholic College, which was a minority institution, fell vacant on 31st March 2000. The Manager passed an order dated 27th March 2000 giving charge of the post of the Principal to a lecturer in the college. The Vice Chancellor approved the said decision on 15th April 2000. A challenge was raised to the appointment of the interim Principal and since there was a stay of such appointment, the management appointed another senior lecturer to discharge the duties of the Principal. Thereafter, the High Court modified its interim order and permitted the management to make a regular appointment of the Principal. This was challenged by the senior lecturer who had been asked to take charge the second time, by filing an appeal before the Kerala University Appellate Tribunal. The Tribunal directed the management to make a fresh appointment. This order was challenged in the Kerala High Court. The High Court held that the statutory provision, i.e. Section 57(3) of the Kerala University Act, 1974 applied to minority institutions as well, and in accordance with the provisions of the Act, the senior most among the eligible and fit lecturers, had to be appointed as the Principal.




         39     Reversing   the   judgment   of   the   High   Court,   the   Supreme   Court 


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         held in para 21 as under (SCC, p. 400):

"21. We may also recapitulate the extent of regulation by the State, permissible in respect of employees of minority WP (Civil) Nos. 7568/1999 & 8710/2007 Page 23 of 26 educational institutions receiving aid from the State, as clarified and crystallized in TMA Pai. The State can prescribe:

(i) the minimum qualifications, experience and other criteria bearing on merit, for making appointments;

(ii) the service conditions of employees without interfering with the overall administrative control by the Management over the staff.

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

(iv) the conditions for the proper utilization of the aid by the educational institutions, without abridging or diluting the right to establish and administer educational institutions.

In other words, all laws made by the State to regulate the administration of educational institutions, and grant of aid, will apply to minority educational institutions also. But if any such regulations interfere with the overall administrative control by the Management over the staff, or abridges/dilutes, in any administer educational institutions, such regulations, to that extent, will be inapplicable to minority institutions."

40 Thereafter, the Court examined the question of appointment of Principal or headmaster and noted that such person was responsible for the functional efficiency of the institution, as also for maintaining the philosophy and objects of the institution. After noticing other relevant decisions of the Supreme Court, it was held in para 27 as under (SCC, p.

404):

"27. It is thus clear that the freedom to choose the person to be appointed as Principal has always been recognized as a vital facet of the right to administer the educational institution. This has not been, in any way, diluted or altered by T.M.A. Pai. Having regard to the key role played by the Principal in the management and administration of the educational institution, there can be no doubt that the right to choose the Principal is an important part of the right of administration and even if the institution is aided, there can be no interference with the said right. The fact that the post of the Principal/Headmaster is also covered by State aid, will make no Page 27 of 50 HC-NIC Page 27 of 50 Created On Wed Jun 29 01:49:02 IST 2016 C/SCA/3250/2001 JUDGMENT difference."

41 The position in law as is evident from the above decisions is that the post of the Principal or the Headmaster of an unaided minority institution is a "key post", and therefore, apart from mandating that the minimum qualification for such post should not be less than that prescribed for other schools, the State cannot have any say on what should be the terms and conditions of service.

42 The fundamental right guaranteed by Article 30(1) has a two fold aspect. The minority has a right to establish any educational institution of its choice. It has also the right to administer such an educational institution. The contention before me is that by insisting on retiring the Headmaster at the age of 70 years, the fundamental right of the minority to administer an educational institution of its choice is violated.

43 In the decision in In re Kerala Education [AIR 1958 SC 956], the Supreme Court observed (at Pp. 98283):

"The right to administer cannot obviously include the right to maladminister. The minority cannot surely ask for aid or recognition for an educational institution run by them in unhealthy surroundings, without any competent teachers possessing any semblance of qualification, and which does not maintain even a fair standard of teaching or which teachers matters subversive of the welfare of the scholars. It stands to reason, then, that the constitutional right to administer an educational institution of their choice does not necessarily militate against the claim of the State to insist that in order to grant aid the State may prescribe reasonable regulations to ensure the excellence of the institutions to be aided."

In Sidhrajbhai Sabhai v. State of Bombay, AIR 1963 SC 540, the Court mentioned the type of regulations that could be imposed by the State without offending Article 30(1) (at P. 545):

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HC-NIC Page 28 of 50 Created On Wed Jun 29 01:49:02 IST 2016 C/SCA/3250/2001 JUDGMENT "Regulation made in the true interests of efficiency of instruction, discipline, health, sanitation, morality, public order and the like may undoubtedly be imposed. Such regulations are not restrictions on the susbstance of the right which is guaranteed: they secure the proper functioning of the institution, in matters educational."

In State of Kerala v. Mother Provincial, AIR 1970 SC 2079, the Court expressed the opinion that "to a certain extent the State may also regulate the conditions of employment of teachers and the health and hygiene of students." This was affirmed again in St. Xaviers College, AIR 1974 SC 1389 with the observation that "in the right of administration, checks and balances are required to ensure the appointment of good teachers and their conditions of service". It is not necessary to multiply authorities. The Supreme Court has repeatedly recognised the liability of the minority institutions to be regulated by the State in the matter of education, educational standards and allied matters.

44 The entire matter was reviewed in All Bihar Christian Schools Association (supra), where the Court summarised the scope of the regulatory power on the right of administration of the minority in these words (Para 9):

"In view of these decisions it is now well settled that minorities based on religion or language have fundamental freedom to establish and manage educational institutions of their own choice, but the State has right to provide regulatory provisions for ensuring educational excellence, conditions of employment of teachers, ensuring health, hygiene and discipline and allied matters. Such regulatory provisions do not interfere with the minorities" fundamental right of administering their educational institutions; instead, they seek to ensure that such institutions; is administered efficiently, and that students who come out of minority institution after completion of their studies are well equipped with knowledge and training so as to stand at par in their avocation in life without any handicap. If regulatory provisions indirectly impinge upon minorities" right of administration of their institutions, it would not Page 29 of 50 HC-NIC Page 29 of 50 Created On Wed Jun 29 01:49:02 IST 2016 C/SCA/3250/2001 JUDGMENT amount to interference with the fundamental freedom of the minorities as the regulatory provisions are in the interest of the minority institutions themselves.

xx xx xx xx xx xx xx xx These conditions may require a minority institution to follow prescribed syllabus for examination, courses of study, they may further regulate conditions of employment of teachers, discipline of students and allied matters."

45 What then is the content of the minority"s right to administer educational institutions of its choice visavis appointment of teachers? The Supreme Court dealt with this question in State of Kerala v. Mother Provincial, AIR 1970 SC 2079, in these words (Para 9) "The next part of the right relates to the administration of such institutions. Administration means `management of the affairs" of the institution. This management must be free of control so that the founders or their nominees can mould the institution 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. No part of this management can be taken away and vested in another body without an encroachment upon the guaranteed right."

Ray, C.J. dealt with the matter with the following observations in The Ahmedabad St. Xaviers College v. State of Gujarat, AIR 1974 SC 1389 (Para 41):

"Autonomy in administration means right to administer effectively and to manage and conduct the affairs of the institutions. The distinction is between a restriction on the right of administration and a regulation prescribing the manner of administration. The right of administration is day to day administration. The choice in the personnel of management is a part of the administration."

Khanna, J. had this to say in his judgment in the very same case. (Para

103):

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HC-NIC Page 30 of 50 Created On Wed Jun 29 01:49:02 IST 2016 C/SCA/3250/2001 JUDGMENT "Another conclusion which follows from what has been discussed above is that a law which interferes with a minority"s choice of qualified teachers or its disciplinary control over teachers and other members of the staff of the institution is void as being violative of Art.30(1). It is, of course, permissible for the State and its educational authorities to prescribe the qualifications of teachers, but once the teachers possessing the requisite qualifications are selected by the minorities for their educational institutions, the State would have no right to veto the selection of those teachers. The selection and appointment of teachers for and educational institution is one of the essential ingredients of the right to manage an educational institution and the minorities can plainly be not denied such right of selection and appointment without infringing Art.30(1)."

It is evident from the above that while regulations calculated to improve education, educational standards and allied matters are permissible, any denial of the right of selection and appointment of teachers will be an infringement of Article 30(1). According to Ray, C.J. the choice in the personnel of management is a part of administration of the institution.

46 The right of the minority to administer an educational institution of its choice requires the presence of a person in whom they can repose confidence, who will carry out their directions, and to whom they can look forward to maintain the traditions, discipline and the efficiency of the teaching. When once the pivotal position of the Headmaster is recognised, it has to be held that the right to appoint a person of its choice as Headmaster is of paramount Importance to the minority, any interference with which (otherwise than by prescribing qualifications and experience) will denude the right of administration of its content, reducing it to mere husk, without the grain. Such an inroad cannot be saved as a regulation which the State might impose for furthering the standards of education.





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         47     At the same time, any choice of Headmaster, even by the minority,

has to satisfy the requirements of qualifications and experience as also the essential qualities necessary for making a good Headmaster. It will always be open to the educational authorities to consider whether the appointee of the minority educational agency is one qualified, competent or experienced to be a Headmaster. Power is vested in the educational authorities, on these limited grounds, to refuse approval to any appointment of Headmaster made by the minority educational agency. All that I propose to hold is that the GrantinCode so far as it prescribes the maximum age of retirement is concerned does not operate in full force against a minority educational agency.

48 The object of conferring the right on minorities under Article 30 is to ensure that there will be equality between the majority and the minority. If the minorities do not have such special protection they will be denied equality. The right conferred on religious minority to administer educational institutions of their choice is not an absolute right, though no restrictions were imposed on the right conferred under Article 30, like the reasonable restrictions placed on Article 19. Regulatory measures can be made to ensure the appointment of good teachers and their conditions of service, for securing a fair procedure in the matter of disciplinary action against the teachers and for the elimination of a potential cause of insecurity and frustration amongst them. The taking of such measures which safeguard the security of tenure and which consequently attract efficient teachers are permissible and constitutes a reasonable control. A distinction must, however, be drawn between a regulation prescribing the manner of administration and a restriction on the right of administration. The right of administration includes the choice of the personnel of management, the ensuring of orderliness, fairness, soundness and efficiency and discipline Page 32 of 50 HC-NIC Page 32 of 50 Created On Wed Jun 29 01:49:02 IST 2016 C/SCA/3250/2001 JUDGMENT in the administration, the appointment of good, efficient and disciplined teachers. A corresponding right exists also to remove teachers for achieving this purpose. Only those measures which aim at regulating these rights and powers of a minority community are permissible. Any measure that seeks to abolish or abridge, even in the slightest way, any of these rights, hits the provision of Article 30(1). The ensuring of proper conditions of service of the teachers, the securing of fairness in the matter of disciplinary action against them, the safeguarding of the interest of the teachers and its consequent security of tenure of service must be brought about through the instrumentality of the existing management and not by displacing it. Therefore, reasonable regulatory measure is that which strikes a balance between the ensuring of the standard of excellence of a school and the safeguarding of the right conferred by Article 30(1). The freedom of control of the school by the management or their nominees must enable them to shape the institution according to their way of thinking, their ideas of how the interest of the minority community and more particularly of the school, will best be served. The choice of the teachers which is best suited and most compatible to carry out the ideals of the minority community must necessarily be left to the management, provided that the teacher has the qualifications prescribed by the Government or it's instrumentality.

49 However, the right conferred on religious minority to administer educational institutions of their choice is not an absolute right, though no restrictions were imposed on the right conferred under Article 30, like the reasonable restrictions placed on Art.19. Regulations governing educational and academic matters with a view to achieving excellence and uniformity in standards are not only permissible but desirable. The right to administer does not include the right to maladminister. The right conferred by Article 30(1) implies a duty to render the very best to Page 33 of 50 HC-NIC Page 33 of 50 Created On Wed Jun 29 01:49:02 IST 2016 C/SCA/3250/2001 JUDGMENT the students. Normal standards of the general pattern of education must be maintained not only by the majority but also by the minority community. The instrumentality of the Government entrusted with the responsibility of fostering and guiding education must have the right to control and check the administration in order to find out whether the minority institutions are engaged in activities which are not conducive to the interest of the minority.

50 Regulatory measures can be made to ensure the appointment of good teachers and their conditions of service, for securing a fair procedure in the matter of disciplinary action against the teachers and for the elimination of a potential cause of insecurity and frustration amongst them. The taking of such measures which safeguard the security of tenure and which consequently attract efficient teachers are permissible and constitutes a reasonable control.

51 A distinction must, however, be drawn between a regulation prescribing the manner of administration and a restriction on the right of administration. The right of administration includes the choice of the personnel of management, the ensuring of orderliness, fairness, soundness and efficiency and discipline in the administration, the appointment of good, efficient and disciplined teachers. A corresponding right exists also to remove teachers for achieving this purpose. Only those measures which aim at regulating these rights and powers of a minority community are permissible. Any measure that seeks to abolish or abridge, even in the slightest. way, any of these rights, hits the provision of Article 30(1). The ensuring of proper conditions of service of the teachers, the securing of fairness in the matter of disciplinary action against them, the safeguarding of the interest of the teachers and its consequent security of tenure of service must be brought about Page 34 of 50 HC-NIC Page 34 of 50 Created On Wed Jun 29 01:49:02 IST 2016 C/SCA/3250/2001 JUDGMENT through the instrumentality of the existing management and not by displacing it.

52 Therefore, a reasonable regulatory measure is that which strikes a balance, between the ensuring of the standard of excellence of a school and the safeguarding of the right conferred by Article 30(1). The freedom of control of the school by the management or their nominees must enable them to shape the institution according to their way of thinking, their ideas of how the interest of the minority community and more particularly of the school, will best be served. No part of this freedom can be transferred from the management to an outsider, be he an individual or a body, and vested in such individual or body, if the constitutional rights conferred on the minorities are to be kept free from encroachment. The teacher contributes to the setting out of the tone and temper of a school. He is partially responsible for the reputation, the maintenance of discipline and efficiency in teaching. It is the responsibility of the management to choose the teachers after an overall assessment of their outlook in life, their philosophy, their compatibility with the ideals of the minority community. These are the most important aspects of the right to administer a school. The choice of the teachers which is best suited and most compatible to carry out the ideals of the minority community must necessarily be left to the management, provided that the teacher has the qualifications prescribed by the Government or its instrumentality.

53 In Benson Enock Semual v. State of Gujarat and others [AIR 1984 Gujarat 49], while examining the prayer to declare Rules 106(3)

(e), 107(3), 109(2) and (4) and 115 of the Bombay Primary Education Rules, 1949, as ultra vires the Constitution, observed in paras 8, 9, 10, 11, 12, 13, 14 and 15 as under:

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HC-NIC Page 35 of 50 Created On Wed Jun 29 01:49:02 IST 2016 C/SCA/3250/2001 JUDGMENT "8. It is firmly established on principle as well as authority that all minorities, linguistic or religious have by Art.30 (1) an absolute right to establish and administer educational institutions of their choice, and any law or executive direction which seeks to infringe the substance of that right under Art.30 (1) would to that extent be void. This, however, does not mean that it is not open to the State to impose regulations in the true interest of efficiency of instruction, discipline, health, sanitation, morality, public order and the like. Such regulations have never been construed as restrictions on the substance of the right which is guaranteed under the Article since they are designed to secure proper functioning of the institutions in the matters which are really educational. Such regulations 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 (see : Sidhrajbhai v. State of Gujarat, AIR 1963 SC 540).

9. It is also firmly established that Art.30 applies to schools established by minority whether before or after the Constitution, irrespective of its general nature of education or the fact of their students being drawn from the communities other than minor communities. It is an absolute right which cannot be controlled by any law or executive direction, and any such attempt would be to that extent violative of Art.30 and void. Any regulative measure conceived in the interest, not of the minority educational institution, but of the public or the nation as a whole is also considered as impairing such absolute right (see : A.M. Patroni v. Kesavan, AIR 1965 Ker 75 (FB)).

10. In W. Proost v. State of Bihar, AIR 1969 SC 465, S.48A of the Bihar Universities Act providing for establishment of a University Service Commission for private affiliated colleges requiring the governing body of the private college to make appointment, dismissal, removal and termination of services or reduction in rank of teachers of such affiliated colleges on the recommendation of the Commission and subject to the approval of the University was challenged as violative of Art.30 (1) of the Constitution. In that context, the Supreme Court, speaking through Hidayatullah, C. J. (as he then was), ruled that the said provision completely took away the autonomy of the Governing Body of the College and virtually vested the control of the college in the University Service Commission and, therefore, it was void to that extent.

11. Again in State of Kerala v. Very Rev. Mother Provincial, AIR 1970 SC 2079, the Supreme Court was concerned with the various provisions of Kerala University Act, 1969 out of which some were upheld by the Kerala High Court. The provisions which were under challenge in Mother Provincial's case (AIR 1970 SC 2079) (supra) were the provisions Page 36 of 50 HC-NIC Page 36 of 50 Created On Wed Jun 29 01:49:02 IST 2016 C/SCA/3250/2001 JUDGMENT contained in subsecs. (1), (2) and (3) of S.53 conferring on the Syndicate of the University the power to veto even the action of the governing body or the managing council in the selection of the principal as well the provisions contained in subsecs. (2) and (4) of S.56 which took away the power of taking disciplinary action from the Governing Body and the management council and conferring it on the University. In that context, Hidayatullah, C. J. observed as under in paras 9 and 10 :

"9. The next part of the right relates to the administration of such institutions. Administration means 'management of affairs' of the institution. This management must be free of control so that the founders or their nominees can mould the institution 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. No part of this management can be taken away and vested in another body without an encroachment upon the guaranteed right.

10. There is, however, an exception to this and it is that the standards of education are not a part of management as such. These standards concern the body politic and are dictated by considerations of the advancement of the country and its people. Therefore, if Universities establish the syllabi for examinations, they must be followed subject, however, to special subject which the institutions may seek to teach and to a certain extent the State may also regulate the conditions of employment of teachers and the health and hygiene of students. Such regulations do not bear directly upon management as such although they may indirectly affect it. Yet the right of the State to regulate education, educational standards and allied matters cannot be denied. The minority institutions cannot be allowed to fall below the standard of excellence expected of educational institutions, or under the guise of exclusive right of management to decline to follow the general pattern. While the management must be left to them, they may be compelled to keep in step with others. These propositions have been firmly established in the State of Bombay v. Bombay Education Society (1955) 1 SCR 568 : (AIR 1954 9C 561); State of Madras v. S.C. Dorairajan, 1951 SCR 525 : (AIR 1951 SC 226); In re the Kerala Education Bill 1957, 1959 SCR 995 : (AIR 1958 SC 956); Sidharajbhai v. State of Gujarat, 19633 SCR 837 : (AIR 1963 SC

540); Katra Education Society v. State of U. P.,19663 SCR 328 :

(AIR 1966 SC 1307); Gujarat University Ahmedabad v. Krishna Ranganath Mudholkar, 1963 Supp (1) SCR 112 : (AIR 1963 SC

703); and Rev. Father W. Proost v. State of Bihar, 19692 SCR 73 : (AIR 1969 SC 465). In the last case it was said that the right need not be enlarged nor whittled down. The Constitution speaks of administration and that must fairly be left to the minority Page 37 of 50 HC-NIC Page 37 of 50 Created On Wed Jun 29 01:49:02 IST 2016 C/SCA/3250/2001 JUDGMENT institutions and no more. Applying these principles we now consider the provisions of the Act." (Emphasis supplied)

12. In D. A. V. College, Jullundur v. State of Punjab, AIR 1971 SC 1737, the Supreme Court was concerned with the validity of certain provisions of the Guru Nanak University Amritsar Act (21 of 1969) pertaining, inter alia, to cls. 2 (1) (a), 17 and 18 of Chapter V of the statutes. Clause 2 (1)

(a) provided that a college applying for admission to the privileges of the University shall send a letter of application to the Registrar and shall satisfy the Senate that the college shall have a regularly constituted governing body consisting of not more than 20 persons approved by the Senate and including among others. 2 representatives of the University and the Principal of the College Exofficio. Clause 17 provided that the staff initially appointed shall be approved by the ViceChancellor, and all subsequent changes shall be reported to the University for ViceChancellor's approval. Clause i8 prescribed that nonGovernment colleges shall comply with the requirements laid down in the ordinances governing service and conduct of teachers in nonGovernment colleges as may be framed by the University. The Supreme Court, speaking through Jaganmohan Reddy, J., referred to the decision in Father W. Proost's case (AIR 1969 SC 465) (supra) and held that the provisions contained in Cls. 2 (1) (a) and 17, which decidedly interfere with the rights of management of the petitioner colleges were not justified, and they could not be made conditions of affiliation, the noncompliance of which would involve disaffiliation and consequently they will have to be struck down as offending Art.30 (1) of the Constitution. However, as regards Cl. 18 which enjoined non Government colleges to comply with the requirements laid dawn in the ordinances governing service and conduct of teachers in nonGovernment colleges, it was held that it did not suffer from the same vice as Cl. 17 since that provision in so far as it was applicable to the minority institutions empowered the University to prescribe by regulations governing the service and conduct of teachers which was enacted in the larger interests of the institutions to ensure their efficiency and excellence. In that connection, the Supreme Court observed as under in paragraph 38 on page 1749:

"38....It may for instance issue an ordinance in respect of age of superannuation or prescribe minimum qualifications for teachers to be employed by such institutions either generally or in particular ejects. Uniformity in the conditions of service and conduct of teachers in all nonGovt. colleges would make for harmony and avoid frustration. Of course while the power to make ordinances in respect of the matters referred to is unexceptional the nature of the infringement of the right, if any, under Art.30 (1) will depend on the actual purpose and import of the ordinance when made and the manner in which it is likely to affect the administration of the educational institution, about which it is not possible now to predicate. (Emphasis supplied) Page 38 of 50 HC-NIC Page 38 of 50 Created On Wed Jun 29 01:49:02 IST 2016 C/SCA/3250/2001 JUDGMENT

13. In St. Xavier's College v. State of Gujarat, AIR 1974 SC 1389, a larger Bench of nine Judges of the Supreme Court was confronted with two questions, viz. (1) Can recognition or affiliation be granted on terms involving surrender of the rights conferred by Art.30 (1) and (2) whether the right enshrined in Art.30 (1) would include the right of recognition or affiliation? All the nine Judges agreed that the recognition or affiliation cannot be on such conditions which may result in virtual surrender of right conferred by Art.30 (1) of the Constitution. As regards the second question, the majority opinion of seven Judges affirming the law laid down by Supreme Court held that this right includes the right to recognition or affiliation. Briefly stated, the position which emerges from the views of the different Judges expressed in St. Xavier's case (AIR 1974 SC 1389) (supra), by a majority view of eight Judges that Ss.40 and 41 of the Gujarat University Act which converted affiliated colleges into constituent colleges held to be violative of Article 30 (1) and could not have any compulsory application to colleges established and administered by religious and linguistic minorities. Similarly, S.33A (1) (a) which provided that every college shall be under the management of the governing body which shall include amongst its members a representative of the University nominated by the ViceChancellor and representatives of teachers, nonteaching staff and students of the college was held to be violative of Art.30 (1), in view of the majority judgment of eight Judges.

Section 51A (1) (b) and (2) (b) which controlled the right of the management to terminate or dismiss, reduce in rank or remove the academic and nonteaching staff, except after an inquiry as prescribed therein, and after obtaining the approval of the ViceChancellor, were found by the majority of seven Judges as violating Art.30 (1) of the Constitution of India, and that they could not be applied to minority institutions. Similarly, S.52A providing for reference to the Tribunal of Arbitration consisting of one member each appointed by the Governing Body and an umpire appointed by the ViceChancellor in the matter of dispute between the academic and nonteaching staff of affiliated college and the management was also held to be violative of Art.30 (1) of the Constitution.

14. In Lilly Kurian v. Sr. Lewina, AIR 1979 SC 52 the right of appeal conferred by Cl.32 (4) of the Ordinance framed under the Kerala University Act, 1957 to the member of teaching staff against the order of penalty to the ViceChancellor was held to be violative of Art.30 (1) since it conferred wide unfettered power on the ViceChancellor to interfere in disciplinary matters which directly effected the administration of the institution.

15. In All Saints High School v. Govt. of Andhra Pradesh, AIR 1980 SC 1042, the Court was concerned with the validity of the provisions contained in S.3 (1) and (2) of the Andhra Pradesh Recognized Private Page 39 of 50 HC-NIC Page 39 of 50 Created On Wed Jun 29 01:49:02 IST 2016 C/SCA/3250/2001 JUDGMENT Educational Control Act, 1975. It may be necessary to refer to this decision in detail since the Act the provisions of which were under challenge is somewhat similar to the provisions contained in the Bombay Primary Education Rules which are under challenge in these petitions. The provisions which were under challenge in All Saints High School's case (AIR 1980 SC 1042) (supra) were contained in different section viz. Sec.3 (3) of the Andhra Pradesh Recognized Private Educational Institutions Control Act, 1975, which related to suspension in contemplation of an inquiry and duration thereof; S.4 providing for an appeal against the order of punishment imposed on teachers; S.5 which was a consequential provision directing the pending appeals to be transferred to the Appellate Authority; S.6 providing for retrenchment of teachers consequent upon any order of the Government relating to education or course of instruction; S.7 relating to pay and allowances of teachers; Ss.10 and 11 providing for inspection or inquiry in respect of school buildings, laboratories etc. and the mode and manner of inspection and inquiry and furnishing returns, statistics and other information to the competent authority by the school management; Ss.12 and 13 relating to penalties for contravention of the provisions of the Act; S.15 investing the Government with the revisional jurisdiction and the power of the Government to delegate this revisional power; S.16 providing for ouster of the Civil Court's jurisdiction, and S.17 providing for indemnity of officers for bona fide act. These sections were assailed on the ground that they were violative of Article 30 of the Constitution of India. In this context Fazal Ali, J., analysed exhaustively the case law on the scope and ambit of the fundamental right enshrined in Art.30 (1) and spelled out the following propositions as emerging from the analysis. It is not necessary to set out in extenso all these principles, but suffice it to say that he found that the right of minority, linguistic or religious trust or society to manage and administer their educational institutions is absolute though it would not permit any maladministration which may necessarily result in the deterioration of excellence and perfection in the field of education. Though the State has no right to interfere with the administration or management of the minority institutions, it can prescribe regulatory measures to promote the efficiency and excellence of educational standards inter alia for ensuring the security of the services of the teachers or other employees of the institution. However the State cannot, under the disguise of regulatory measures, make provisions which tend to destroy the administrative autonomy of the institution or start interfering with the core of the management of the institution so as to render the right of the administration of the management of the institution concerned nugatory or illusory. Article 30 by its very nature implies that the State cannot impose any conditions destructive in their nature of the autonomy of such institution by refusing affiliation without sufficient reasons. Any interference by the State either directly or through its nominees in the Governing Body or Managing Committee to control the conduct of the affairs of the institution would be violative of Art.30. The following Page 40 of 50 HC-NIC Page 40 of 50 Created On Wed Jun 29 01:49:02 IST 2016 C/SCA/3250/2001 JUDGMENT observations of Fazal Ali, J., are instructive (at p. 1067):

"??..It is, therefore, open to the Government or the University to frame rules and regulations governing the conditions of service of teachers in order to secure their tenure of service and to appoint a high authority armed with sufficient guidance to see that the said rules are not violated or the members of the staff are not arbitrarily treated or innocently victimised. In such a case the purpose is not to interfere with the internal administration or autonomy of the institution but it is merly to improve the excellence and efficiency of the education because a really good education can be received only if the tone and temper of the teachers are so framed as to make them teach the students with devotion and dedication and put them above all controversy. But while setting up such an authority care must be taken to see that the said authority is not given blanket and uncanalised and arbitrary powers so as to act at its own sweet will ignoring the very spirit and objective of the institution. It would be better if the authority concerned associates the members of the governing body or its nominee in its deliberation so as to instill confidence in the founders of the institution or the committees constituted by them.

...............

While there could be no objection in setting up a high authority to supervise the teaching staff so as to keep a strict vigilance on their work and to ensure the security of tenure for them, but the authority concerned must be provided with proper guidelines under the restricted field which they have to cover. Before coming to any decision which may be binding on the managing committee, the Head of the institution or the senior members of the managing committee must be associated and they should be allowed to have a positive say in the matter. In some cases the outside authorities enjoy absolute powers in taking decisions regarding the minority institutions without hearing them and these orders are binding on the institution. Such a course of action is not constitutionally permissible so far as minority institution is concerned because it directly interferes with the administrative autonomy of the institution. A provision for an appeal or revision against the order of the authority by the aggrieved member of the staff alone or the setting up of an Arbitration Tribunal is also not permissible because Ray C. J. pointed out in AIR 1974 SC 1389 that such a course of action introduces an arena of litigation and would involve the institution in unending litigation, thus imparing educational efficiency of the institution and create a new field for the teachers and thus draw them out of purely educational atmosphere of the minority institutions for which they had been established. In other words, nothing should be done which would seek to run counter to the intentions of the founders of such institutions." (Emphasis Page 41 of 50 HC-NIC Page 41 of 50 Created On Wed Jun 29 01:49:02 IST 2016 C/SCA/3250/2001 JUDGMENT supplied)"

54 A Division Bench of this Court (to which I was a party), in the case of Gujarat Minority Schools Association and others v. State of Gujarat, reported in 2014 (2) GLR 921, while considering the challenge to an amendment made by the State Government by way of a resolution deleting Regulation 20 framed under the Act from the applicability of Section 40A of the Act, observed as under:

"8. After hearing the learned counsel for the parties and after going through the aforesaid materials, we find that by virtue of the amendment in Regulation 43, the State Government has deleted reference of Regulation 20 which was in existence in the said Regulations and by taking aid of such amendment, the respondents have sought to enforce the additional qualification of passing TAT also to the schools managed by minority institutions.

9. As pointed out above, Section 40A of the Gujarat Secondary & Higher Secondary Education Act itself provides that nothing contained in clause (26) of Section 17, sections 34 and 35 and clause (b) of subsection (1) and subsections (2), (3), (4) and (5) of section 36 shall apply to any educational institutions established and administered by a minority, whether based on religion or language. It is true that in exercise of power conferred under Section 17[26], power has laid down to add the fresh additional qualification for the post of Head Master and teaching and non teaching staff of the registered private secondary schools and registered private higher secondary schools. The schools which are involved in this application are private secondary schools, meaning, a higher secondary school which is not owned, managed or sponsored by the Central or the State Government. Therefore, by virtue of the provision contained in Section 17[26], the State Government is authorized to add further qualification of Head Master or other teachers or nonteaching staff in such private higher secondary schools or registered private higher secondary schools. At the same time, we find that in the Act itself, Section 40A specifically excludes the operation of clause [26] of Section 17 to any educational institutions established and administered by a minority institution, whether based on religion or language. Such being the position, we find substance in the contention of Mr. Patel, the learned advocate appearing on behalf of the petitioners that so long Section 40A is existing in the Gujarat Secondary & Higher Secondary Education Act, 1972, by merely amending Regulation 43 and deleting the reference of Regulation 20 there from, the new amendment furnishing additional qualification cannot be made applicable atleast to a school which is Page 42 of 50 HC-NIC Page 42 of 50 Created On Wed Jun 29 01:49:02 IST 2016 C/SCA/3250/2001 JUDGMENT established and administered by a minority institution. Those amendments will be applicable to all other schools which are not established and administered by a minority, whether based on religion or language.

10. It is wellknown that by virtue of power conferred under the statute, a delegatee cannot enact any provision which is inconsistent with the substantive provisions of the statute enacted by the Legislature of the State or the Parliament. The rulemaking power is a species of delegated legislation. A delegatee, therefore, can make rules only within the four corners thereof. [see Mahabir Vegetable Oils (P) Ltd. vs. State of Haryana reported (2006) 3 SCC 620].

11. Therefore, the effect of the amendment introduced by Regulation 43 notwithstanding the deletion of reference of Regulation 20 there from cannot affect the schools established and administered by the minority institutions. We, therefore, find substance in this Special Civil Application and hold that the Resolution dated 17 th August, 2001 as also the amendment of Regulation 43 deleting the reference of Regulation 20 there from is ultra vires and inconsistent with Section 40A read with Section 17[26] of the Act and the said provisions should not be made applicable to the private schools established and administered by a minority category, whether based on religion or language."

55 The grantinaid system was first introduced in 1859 and its main object was to promote voluntary efforts and reliance on the local resources in the field of education apart from such contributions as may be available from the funds of the State. After the States reorganisation took place, in order to bring about uniformity in the matter, the State of Bombay appointed in 1958 an Integration Committee for the Secondary Education to examine the different Education Codes and administrative practices in force at the secondary stage in the various regions, which were added to the State of Bombay under the states organisation and to make proposals for a unified system of Secondary Education as well as the assistance to be given to the nongovernment Secondary schools.

56 The provisions of the Code are executive instructions and are in the nature of administrative instructions without any constitutional force.




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[See: The State of Maharashtra and others v. Sakharkheda Education Society, AIR 1973 SC 588] 57 I am of the view that the argument canvassed on behalf of the State that as the petitioners are receiving aid from the State Government, they are duty bound to comply with the rules of the Code so far as the age of retirement of its employees is concerned, is not tenable in law. If this argument is accepted, it will render Section 40A of the Act and the Regulations 42 and 43 otiose. The insistence on the part of the State Government that the teaching as well as nonteaching staff of a minority institution cannot be continued beyond the age of 60 years even if they are physically and mentally fit, is nothing, but an indirect method of overcoming the provisions of the Act and Regulations. To say that the institution may continue its employees in service beyond the 60 years, but the Government would not pay grant towards the salary of such employees is definitely violative of Article 30(1) of the Constitution of India. The stance of the State Government that it is a matter of policy would also not save the situation as such a policy would definitely be hit by Article 30(1) of the Constitution.

58 Let me now look into the decision of this Court in the case of Haji Musa (supra) on which strong reliance has been placed by the learned Assistant Government Pleader. The petitioner, in the said case, was an educational institution established and administered by religious minority. It granted extension in service to its Principal beyond the age of 58 years. As discussed above, under the Regulation 36, the employees of the Secondary School, are to retire on attaining the age of 58 years. It was argued by the petitioner that the Regulation would not apply to the minority institutions in view of the Regulation 43 and therefore, the Page 44 of 50 HC-NIC Page 44 of 50 Created On Wed Jun 29 01:49:02 IST 2016 C/SCA/3250/2001 JUDGMENT matter would be governed by the relevant provisions of the GrantinAid Code providing for continuing in employment upto 60 65 years, subject to certain conditions.

59 The learned Single Judge of this Court, after considering the relevant provisions relating to the appointment and superannuation of the Headmaster and teaching staff of the registered private secondary schools, and also considering the GrantinCode, observed in paras 9, 10 and 11 as under:

"9. From the aforesaid discussion, it is evident that a minority institution to which certain provisions of the Act and the regulations do not apply may grant extension to a teacher who has attained the age of 58 years provided he is physically and mentally fit. If such person is unable to discharge his duties properly, he will have to be retired and the management cannot insist for his continuation. Similarly, if the person has already retired at the age of 58 years and is reappointed by the management, such reappointment must be in accordance with the provisions of the rules and he would not be entitled to claim pay scales prescribed by the department and such reappointment would be subject to the terms and conditions of the agreement mutually arrived at between the parties. Again, the institution cannot claim government aided provident fund scheme.

10. In the instant case, it is clear that the institution is a minority institution and certain provisions of the Act as also the regulations are not applicable to it. It was, therefore, permissible to the management to extend services of Respondent No. 3 after he attained the age of 58 years which was done unanimously by the petitioner. It was the case of the petitioner that Respondent No. 3 was physically fit and the petitioner had also shown its readiness to produce necessary certificate as an when required by the respondent authorities. It was not even the allegation of the authorities that the Respondent No. 3 was physical and/or mentally unfit. Unfortunately, the respondent authorities did not consider the material fact that it was open to the petitioner to adopt such a course and rejected the application. The petition, therefore, requires to be allowed. Since the action of the petitioners in granting extension in favour of Respondent No. 3 was legal, valid and in accordance with law, the petitioners were also entitled to claim grant from the Government. Even at the time of admission, such an order was passed by this Court (Coram : J. N. Bhatt, J.) on April 13, 1991 subject to the result of the petition.



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               11      Mr.   Sompura,   learned   Assistant   Government   Pleader   for   the

respondentState placed reliance on resolution passed by the Government of Gujarat on December 2, 1975 making certain alterations in Regulations of 1974 and particularly in Regulation 36 by which earlier Regulation 36 was substituted. I have considered Regulation 36 duly amended as quoted above. But in my opinion, when Regulation 36 is not applicable to a minority institution, any amendment therein is of no consequence whatsoever."

60 In my opinion, the aforesaid decision has no application to the facts of the case in hand, more particularly, the issue which has been raised for my consideration. The minority institution i.e. the petitioner itself relied upon the GrantinAid Code, which provided that an employee in service could be continued utpo 65 years of age, subject to satisfying the authorities that such employee is physically and mentally fit to discharge his duties. The learned Single Judge had no occasion to consider the effect of the Regulation 42 of the Regulations. In my view, the decision in the case of Haji Musa (supra) would not save the situation for the State Government.

61 The Article 30 of the Constitution of India itself incorporates a special provision prohibiting discretion in the matter of financial grants against a minority institution. Articles 30(1) and (2) read as under:

"30. Right of minorities to establish and administer educational institutions (1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.

[(1 A) In making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority, referred to in Clause (1), the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause.] Page 46 of 50 HC-NIC Page 46 of 50 Created On Wed Jun 29 01:49:02 IST 2016 C/SCA/3250/2001 JUDGMENT (2) The State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language."

62 Thus, under clause (1), a minority is given the right to establish and administer the educational institution of its choice. The founding fathers of the Constitution considered the necessity of incorporating clause (2) to exclude the possibility of denying of the grantinaid by the State to an institution established by a minority even when sought for, while extending the grant to nonminority institution. Therefore, it is clear that if a minority institution seeks the grant in terms of the Grant inAid Code, the Government cannot deny the grant on the ground that as the grant is received in accordance with the Code, the provisions of the Act, Rules and Regulations will not apply.

63 All administrative decisions must stand the test of the judicial scrutiny when they are made arbitrarily without application of mind or assigning of proper reasons. More so, when they involve the rights of parties in part III of the Constitution.

64 The GrantinAid Code at times may contain provisions which, in many respects, covers the same field as it covers by the Act and the Rules. If the Code in those respects is to prevail, then the Regulation 42 would also be rendered otiose. The constitutional right cannot be permitted to be defeated by the executive instructions of the State Government. As discussed by me in the earlier part of my judgment that at times, the minority school may find it difficult to find a good Headmaster. If a particular Headmaster has been able to perform exceedingly well and proves to be an asset for the institution, because ultimately, it is the students, who are going to be benefited by such Page 47 of 50 HC-NIC Page 47 of 50 Created On Wed Jun 29 01:49:02 IST 2016 C/SCA/3250/2001 JUDGMENT Headmaster, then in such circumstances, the management of a minority institution would be well within its right to continue him in service even beyond the age, which has been prescribed in the GrantinAid Code. At best, the State Authorities can ask the institution to make a declaration that the Headmaster they propose to continue in service beyond the age of 60, is physically and mentally fit. Beyond this, the State Authorities cannot impose any restriction and interference with the discretion of the management in this regard.

65 In the case in hand, although there are certificates on record issued by the Civil Hospital that the Principal is physically fit, yet those were ignored only on the ground that the GrantinAid Code does not permit any Principal even of a minority institution to continue in service beyond the age of 60 years. I am not impressed by the submission of the learned Assistant Government Pleader that prescribing the age of retirement of the teaching and nonteaching staff in the GrantinAid Code, neither amounts to interference in the daytoday administration of the minority educational institutes nor does it affect the right of the minority educational institutes to appoint a Principal of its choice, but it is a part of the regulatory regime to maintain standards of the educational institutes. If a hale and hearty Principal of a minority institution performing exceedingly well and has been able to bring the institution to a particular level is forced by the State authorities to retire at the age of 60 years, then it definitely amounts to interference in the daytoday administration of the minority educational institutes. It cannot be termed as a part of the regulatory regime to maintain standards of the educational institutes. In a given case, the authorities concerned may object to the continuance of a Principal or a Headmaster of a minority school beyond the age of 60, if he is, otherwise, found to be unfit both physically and mentally. However, it would all depend on Page 48 of 50 HC-NIC Page 48 of 50 Created On Wed Jun 29 01:49:02 IST 2016 C/SCA/3250/2001 JUDGMENT the facts and circumstances of each case.

66 I have to my advantage a very interesting judgment of the Supreme Court in the case of Indian Institute of Technology, Kanpur v. Raja Ram Verma and others [2010 AIR SCW 7241]. In that case, the respondent No.1 therein was appointed to the post of Assistant Registrar at the Indian Institute of Technology, Kanpur. As per the statute 13 of the I.I.T., the respondent was due to retire on 31st August 2000 on attaining the age of 60 years. His case before the Court was that he should have been allowed to continue upto the age of 62 years. One Mr. Bakre was a Assistant Registrar and was due to retire. The I.I.T. extended in his favour the benefit of the increased age. The respondent argued before the Supreme Court that Mr. Bakre was extended the benefit. He should also have been given the same benefit. The Supreme Court made the following observations, which, in my opinion, are applicable to the facts of the present case:

"32. This Court finds that there is a valid rationale in allowing teachers and persons holding posts which are at par with teachers to work beyond 60 years. The reason for this is that it is very difficult to find a good faculty of academicians for doing the job of teachers. In any discipline and especially in a discipline in an institute like I.I.T., it is very difficult to replace an experienced teacher with years of learning, maturity and experience. This explains why in many cases even teachers are retained beyond their extended period of retirement by way of extension or their services are continued on the basis of reemployment. This is done to preserve the intrinsic value and quality of teaching imparted in these institutions."

67 For the foregoing reasons, I hold the action on the part of the respondents in stopping the grant as violative of Article 30(1) of the Constitution of India. The impugned orders at Annexures : "D", "H" and "L" passed by the District Education Officer are, hereby, ordered to be quashed and set aside. It is declared that the petitioner No.1, had the Page 49 of 50 HC-NIC Page 49 of 50 Created On Wed Jun 29 01:49:02 IST 2016 C/SCA/3250/2001 JUDGMENT right to continue the petitioner No.2 i.e. the Principal in service beyond the age of 60 years and the respondents were obliged to pay the grant towards his salary.

68 Mr. Clerk, the learned counsel appearing for the petitioners informs that the school is no longer functional. It got closed sometime in the year 2012. According to him, his client should have received the grant from the State Government towards the salary of the Principal for the period between 2001 and 2012.

69 In such circumstances referred to above, the authorities concerned shall calculate the amount towards the arrears of the grant for the period between 2001 and 2012, and pay the requisite amount to the management of the school within a period of three months from the date of receipt of the order. Rule is made absolute to the aforesaid extent. Direct service is permitted.

(J.B.PARDIWALA, J.) chandresh Page 50 of 50 HC-NIC Page 50 of 50 Created On Wed Jun 29 01:49:02 IST 2016

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