Gauhati High Court
Jugalkishore Kedia And Ors. vs State Of Assam And Ors. on 8 May, 1987
Equivalent citations: AIR 1988 GAUHATI 8, (1987) 2 CURCC 641 (1987) 2 GAU LR 1, (1987) 2 GAU LR 1
Author: K.N. Saikia
Bench: K.N. Saikia
JUDGMENT Saikia, C.J. (Acting) 1. The petitioners challenge the order of the Inspector of Schools, Nagaon District Circle, Nagaon dated 28:7-77 constituting the new Managing Committee of the "Gandhi Vidyapith", a High School of Hojai, Nagaon, and the order of the Deputy Secretary to the Govt. of Assam, Education Department dated 17-10-77 declaring the Headmasters of respective schools as drawing and disbursing officers. They also challenge the vires of Section 5 of the Assam Secondary Education (Provincialisation) Act, 1977, for short "the Act', and of Rule 4 of the Assam Aided Higher Secondary, High and Middle Schools Management Rules, 1976, for short, 'the Rules', as violative of Article 30 of the Constitution. 2. The petitioners state, inter alia, that they belong to the Marwari community and have migrated to Assam from Rajasthan long time back; that they are now permanently residing at Hojai; that Hindi is both their literary and conversational language of general use; that with the growth of population of the Marwari community at Hojai, the members of the community felt the need of Hindi High School for higher education of their children and started the "Marwari Hindi High School" in 1956 which started functioning at the "Rajasthan Bhawan", Hojai; that the petitioners and other leading members of the Marwari community of Hojai and its neighbouring areas contributed funds and participated in its management; that the said school was initially run and managed by the members of the Marwari community through, a Governing Body and the State Government also provided grants including ad hoc recurring grant of Rs. 250/- in 1961-62; that it was recognised up to Class VI11 in 1960; that the members of the Hindi speaking community in a meeting held on 26-3-61 constituted a Board of Trustees which was entrusted with acquisiton of land, collection of funds and construction of the school building and in the same meeting the name of the school was changed to "Gandhi Vidyapith" which name still continues; that the land for the school was donated by the petitioner No. 1 Shri Jugalkishore Kedia and the petitioner No. 5 Ratanlal Ajitsaria; and that 13 other Marwari Firms of Hojai and other places of Assam contributed towards construction of rooms of the school building which was completed in 1962. It is stated that in 1962 vide letter of the Additional Director of Public Instructions, Assam dated 26-6-62, the Government decided to bring the school under the deficit system of grants and directed that a new Managing Committee be formed as per Rules and a Managing Committee was accordingly constituted on 28-6-62 and was approved by the Inspector of Schools for a period of three years with effect from 1-7-62. It appears such Managing Committees constituted under the Rules from time to time continued to manage the school until in May, 1973 a new Managing Committee of 12 members with the petitioner No. 1 as its President was constituted to function for three years. Meanwhile, the Assam Higher Secondary High and Middle Schools Management Rules, 1976 were framed and the Inspector of Schools by his letter dated 2-5-76 informed about the dissolution of the then Managing Committee with immediate effect and also ordered that the Headmaster of the school would function as the Secretary till a new Managing Committee was formed under the Rules; and that was objected to by the Secretary of the dissolved Managing Committee. Meanwhile, the Assam Secondary Education (Provincialisation) Ordinance, 1977 (Assam Ordinance No. V of 1977) was promulgated and later the same was repealed by the Act, which received the assent of the Governor on 10th December, 1977. It was an Act to provide for provincialisation of Secondary Education covered by the deficit scheme of the Government of Assam "for its improvement and for better control and management of such education in the State of Assam". As defined in its Section 2(iii) "deficit school" means a school receiving grants from the State Government under the Deficit Scheme of Grants-in-aid. "Secondary Education" as defined in Clause (x) means education imparted up to Class XII in different types of schools including Middle English Schools, Middle Madrasas, High Schools, High, Madrasas, and Higher Secondary Schools. "Secondary school" as defined in Clause (xi) means a deficit school where the secondary education is imparted. Admittedly, the Gandhi Vidyapith is a Secondary School receiving grants under the deficit system and the Act is applicable to it. The expression "provincialisation" has not been defined by the Act and its meaning has to be determined from the provisions of the Act. 3. The respondents resist the petition contending that there is no trust or a Board of Trustees to run the school and that it is run by a legally constituted Managing Committee formed under the Rules and that it ceased to be a Marwari Hindi High School after it accepted grants-in-aid and allowed it to be managed by a Managing Committee formed under the Rules and that after the Managing Committee declared by its resolution dated 14-11-72 that it has no objection to the provincialisation of the school, the petitioners now cannot object to its provincialisation under the Act as it renders security of service to the teachers and ensures standard education to the pupils. It is further contended that the petitioners have no locus standi to file this petition on behalf of the school. 4. Mr. N. M. Lahiri, the learned counsel for the petitioners, submits that Hindi speaking population according to 1971 census amounts to only 5.42 per cent of the total population of Assam and as such Hindi is a minority language in Assam. As the school was established to impart education to the Marwari students through the medium of. Hindi the school was established by the minority Marwari community according to its choice and the community has the right to administer it under Article 30 of the Constitution and the State violated those rights by enacting Section 5 of the Act and R. 4 of the Rules and in passing the aforesaid impugned orders. 5. Mr. D.N. Choudhury, the learned counsel for the respondents argues that though Hindi isa minority language in Assam the school was not established by minority as a minority school and that even assuming, though not admitting, that it was established by the minority Marwari community the petitioners' right to administer it as a minority school was surrendered while receiving Government aid and the same has been irretrievably lost. Mr. Choudhury further argues that no distinctive feature whatever is evident in the school and that except the fact that the petitioners are Hindi speaking there is no other decision or resolution to show that it was established as a minority school. 6. The first question to be decided, therefore, is whether the school was established as a minority school and if so, whether it has surrendered the right to administer it as a minority school and the right has been irretrievably lost? Article 30 of the Constitution deals with the right of minorities to establish and administer educational institution and provides : -- "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. (1A) 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. (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." 7. The contents and the orbit of the right guaranteed under the above article have been stated and delineated by the Supreme Court in a catena of decisions. Admittedly the school is an educational institution. Applying the decision in Azeez Basha v. Union of India, AIR 1968 SC 662, we hold that Article 30 postulates that a linguistic minority community will have their right to establish and administer educational institution of their choice meaning thereby that where a linguistic minority establishes an educational institution, it will have the right to administer that. The linguistic minority will have the right to administer educational institution of their choice provided that they have establised them but, not otherwise. The words "establish and administer" in the Article must be read conjunctively and so read it gives the right to the minority to administer an educational institution provided it has been establised by it. If the educational institution has not been established by a minority it cannot claim the right to administer it under Article 30. As regards the right of every religious denomination or any section thereof to establish and maintain an institution for religious and charitable purposes guaranteed under Article 26 of the Constitution is concerned, it has been held in Durgah Committee, Ajmer v. Syed Hussain Ali, (1962) 1 SCR 383 : AIR 1961 SC 1402 that if the right to administer the properties never vested in the denomination or had been validly surrendered by it or had otherwise been effectively and irretrievably lost to it, Article 26 could not be successfully invoked. The question whether this principle applies to educational institution under Article 30 of the Constitution has to be seen. In Azeed Basha (supra) it was held that as the Aligarh Muslim University was neither established nor administered by the Muslim minority it having come into existence in 1920 by the Aligarh Muslim University Act, 1920, though it might be that the said Act was passed as a result of the force of majority of the Muslim minority, it could not be said that it was established by the Muslim minority and, therefore, there was no question of any amendment to the 1920 Act made by the amending Acts of 1951 and 1971 being ultra vires Article 30. There is no dispute that the members of the Marwari community of Hojai felt the need of a Hindi High School for higher secondary education of their children and started the "Marwari Hindi High School" and the State Government extended ad hoc recurring grant of Rs. 250/- to the school in as far back as in 1961-62 and the school was recognised by the Directorate of Public Instructions as a High School on the basis of Inspector's report and that the name of the school was changed to Gandhi Vidyapith and the State Government decided to bring it under the deficit system of grant and its Managing Committee was formed as per the Education Department's Rules and Orders whereafter it was managed by the Managing Committee, However, it was nowhere specifically stated that the school was established as a minority school nor did the school have any manifest characteristic of a minority school. Nothing has been shown to us to prove that the school was established as a minority school. The petitioners contend that the fact that it was established by member of the Marwari community for the purpose of imparting education in Hindi and that the members of the Marwari community donated funds and that a Board of Trustees was constituted, were enough for holding that it was established as a minority school. Would that be enough in the absence of any express statement or manifest trait of its being a minority school? What is the basic criteria of identifying a school as a minority school? 8. The concept of minorities as envisaged in Article 30 has to be understood in the context in which it was used. Prior to the Constitution coming into force Britain had often claimed that it had a special obligation to protect the minorities, because minorities could not find justice at the hands of the majority. The Constituent Assembly intended to refute by proving that none else could be more interested than ourselves in protecting our minorities and to show that the mission was to satisfy every one of them. The Constitution, therefore, contains positive rights as well as negative safeguards for the minorities. The Minorities Sub-committee of the Advisory Committee of the Constituent Assembly had to consider the question of religious and linguistic minorities. India was a land of linguistic minorities where no one language was spoken by a majority of the popularion and there were not true linguistic minorities but also relative minorities -- groups of speakers of one of the more important languages living in enclaves controlled by the speakers of other major languages. Recognising this fact the Congress laid down in the 'Karachi Rights' of 1931 that the culture, language and scripts of the minorities and of the different linguistic areas should be protected. In 1938 a committee of the Central Advisory Board of Education supported one of the perpetual demands of linguistic minorities by espousing the principle of mother-tongue instruction in primary schools, and official support for this, and for the use of mother-tongue instruction at higher educational levels. The Congress Experts committee in 1946 suggested that the Constitution should protect linguistic minorities by providing that the members of a group not speaking the language of their area should not be restricted in developing their language and culture and that, in areas where a considerable proportion of the population used a language other than the provincial language, public authority must provide facilities for mother-tongue education. Such recommendation was made to the Minorities Sub-Committee of the Advisory Committee in April, 1947. However, neither suggestion was accepted. Instead, the Advisory Committee drafted a set of provisions that, generally speaking, minorities should have the right to conserve their language, script and culture; that no minority could be discriminated against on language grounds in regard to entrance into state educational institutions; that minorities could establish and maintain their own educational institutions; and that, when providing aid for schools, the State could not discriminate against schools maintained by language minorities. To ensure that all types of minorities were protected by these rights, including speakers of major languages residing in an area where another major language was spoken, special phraseology was used. Instead of using an earlier form 'Minorities in every Unit shall be protected' relative to language, etc. the expression that 'any section of citizens residing in the territory of India or any part thereof having a distinct language shall' etc. was favoured. The purpose being to include groups which although not minorities in the technical sense, (were) cultural minorities --meaning, for example, Tamil speaking Madrassis living in Bombay. It was believed that the State had a moral, if not a political, obligation to linguistic minorities and that the mother tongue education was a universal principle and no provincial Government could justifiably abrogate the principle without damage to a considerable part of the population in the matter of its educational rights. It would, therefore, be clear that a linguistic minority is to be determined on the basis of the language spoken by them or in other words on the basis of their mother-tongue. Articles 29 and 30 are meant to protect the cultural and educational rights of the minorities. The rights so conferred must mean the right to establish real institution, which would effectively serve the needs of the community and the scholars who resorted to such education, as was held in re Kerala Education Bill, 1957, 1959 SCR 995 : AIR 1958 SC 956. Though the provisions relating to language make no reference to education and the medium of instruction and the coordination and determination of standards of higher education, the Supreme Court in Gujarat University v. Krishna Raghunath Mudholkar, (1963) Suppl 1 SCR 112 : AIR 1963 SC 703 has held that the imposition of a regional language as a compulsory medium of instruction is beyond the powers of the State legislatures. Hindi is the official language of the Union of India and the Constitution contemplates that it should gradually replace English. In the instant case the petitioners do not say that Hindi istheir mother-tongue, but they say that it is both their literary and conversational language of general use. 9. What are the tests of determining a minority ? As we have seen, one of the tests is the language spoken by the community. This test has to be satisfied because the rights conferred by Article 30 are based on the same underlying notions as in Article 29. Under Article 29(1), any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same. Under Article 30(1), all minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice. The question is whether the linguistic minority has to be determined only on the basis of the language spoken by the minority or in respect of any other language ? If, for example, a group of persons belonging to Muslim minority establishes an English medium school, will it be regarded as minority school ? If a group of people belonging to Bengali minority establishes a Hindi medium school, can it be classified as a minority school ? The answer is obviously in the negative, the reason being that the right is for conservation of their distinct language and culture. The very basis of the minority being a religion or language, the right to establish and administer educational institution of their choice has necessarily to be understood in that context and not outside. Otherwise it will not result in the protection of any cultural or educational right. That the community wants to impart general or secular education is, of course, a different matter. In Re Kerala Education Bill (AIR 1958 SC 956) it has been held at para 21 of the judgment that the term 'minority' is not defined in the Constitution. It is easy to say that a minority community means a community which is numerically less than 50 per cent. But 50 per cent of what ? Is it 50 per cent of the entire population of India or 50 per cent of the population of a State forming part of the Union ? It has accordingly been held that where a Bill passed by a State Legislature extends to the whole of the State, the minority for the purposes of Articles 29 and 30 must be determined by reference to the entire population of that State. By this test, the Marwari Community throughout the State of Assam will surely be a minority. In Ramani Kanti Bose v. Gauhati University, ILR (1951) 3 Assma 348 : AIR 1951 Assam 163, it was held that persons who are alleged to be a minority must be a minority in the particular region in which the institution involved is situated. But this test was not found to be satisfactory. Their Lordships in Kerala Education Bill were concerned with the validity of the Kerala Education Bill, which proceeded on the footing that there were minorities in Kerala who were entitled to the rights conferred by Article 30(1). In the instant case, however, we have to ascertain who will be a minority community entitled to protection under Article 30(1). We, therefore, hold that a linguistic minority for the purpose of Article 30(1) is to be determined with reference to the language spoken by the community and not with reference to any other language which the community wants its children to study. The petitioners state that they belong to Marwari community and that Hindi is both their literary and conversational language of general use. They have not said that Hindi is their mother tongue. Conversational language may be equated with spoken language, and in that view of the matter, the Marwari community may be regarded as a Hindi speaking community. But there may be other Hindi speaking communities in Hojai and, if so, they will form a minority group with them. The statement that Hindi speaking population amounts to only 5.42 per cent Assam has not been controverted before us. We accordingly hold that the Marwari community of Hojai along with other Hindi speaking communities constituted a minority for the purpose of Article 30(1) of the Constitution of India. 10. We now examine the vires of Section 5 of the Act and of Rule 4 of the Rules. The Act is an Act to provide for the provincialisation of Secondary Education covered by the Deficit Scheme of the Government of Assam for its improvement and for better control and management of such education in the State of Assam. The expression provincialisation has not been defined in the Act. Section 3 of the Act provides that subject to the provisions of Article 30 of the Constitution of India, on and from the appointed day all employees of all secondary schools in the State of Assam shall be deemed to have become employees of the State Government of Assam with effect from the date of appointment on the terms and conditions stated in that section. The petitioners have not challenged this provision, and we think rightly, because it is explicitly subject to the provisions of Article 30 of the Constitution. Any minority school will be protected under this section provided its right under Article 30 is infringed. 11. Section 5 of the Act prescribes the functions of Managing committees and provides : (1) The administration, management and control of all employees of all secondary schools coming within the purview of this Act shall vest in the State Government from the Appointed day. (2) The Managing Committees of such secondary schools shall exercise functions as may be specified by the State Government or under the rules made under this Act until such Committees are either reconstituted or replaced under the rules prescribed. 12. Section 3 having provided that the employees of all secondary schools shall be deemed to have become the employees of the State Government, subject to the provisions of Article 30 of the Constitution, it naturally follows that the administration, management and control of all such employees shall vest in the State Government from the appointed day. Becoming employees of the State Government itself being subject to the provisions of Article 30 of the Constitution of India, the administration, management and control of the employees must also be subject to the provisions of Article 30 of the Constitution of India and the minority schools can have no objection to this provision. In this view of the matter this section cannot be held to be ultra vires the Article 30(1) of the Constitution. 13. Sub-section (2) of Section 5 only provides that the Managing Committees shall exercise such functions as may be specified by the State Government or under the rules. The Assam Aided Higher Secondary, High and Middle Schools Management Rules, 1976 are the relevant Rules specifying the functions of the Managing Committee. Rule 3 of the Rules provides that every Higher Secondary School, High School and Middle School shall be governed by a managing committee the constitution of which has been approved by the Inspector of Schools save in cases where the Director of Public Instruction allows an exception under special circumstances. Rule 4 of the Rules, the vires whereof has been challenged in this petition, reads : "4. Save in cases where the Director of Public Instruction sanctions a Special Committee under special circumstances each managing committee shall consist of the following members, viz., -- (a) (i) President, (ii) One Secretary. (iii) Two teacher-members except in case of middle schools where this number will be one, to be elected by the teaching staff (excluding Assistant Headmater/Vice-Principal/Headmaster/Principal) of the school from among themselves. (iv) Two representatives to be elected by the guardians. (v) One member to be elected by the donors of not less than Rs. 500 and subscribers of Rs. 25 or above annually. (iv) Three members to be nominated by the Government. In girls' schools, one of the nominated members shall be a lady. (vii) Assistant Headmaster/Vice-Principal-Ex-Officio. (b) the President shall be nominated by the Government. (c) The Principal of the Higher Secondary School, the Headmaster of the High School or the Headmaster of the Middle School shall be nominated by the Government as ex-officio Secretary of the manageging committee of the school, unless there is any specific allegation against any Principal or Headmaster of Higher Secondary Schools or High Schools and Middle Schools. (d) One of the non-official members shall be nominated as Joint Secretary. He will be allowed by the Government to function as the Secretary when the Secretary is unable to function due to illness, long leave or any limitation imposed under Clause (c) above. (e) When special circumstances so justify not more than two additional members in excess of the number prescribed in this rule may be nominated by the Government." Does this rule offend Article 30(1) of the Constitution ? The petitioners' contention is that the composition of the Managing Committee under the above Rule is such that the minority who established the school shall not have adequate voice to administer the school. In other words, the right of administration has been taken away by this provision. The width of the power of control sought to be assumed by the State by virtue of the above provisions, it is submitted, amounts to infringement of fundamental rights guaranteed to the minority community under Article 30(1). 14. The nature and extent of the minority community's right to administer educational institution of its choice established by it has already been delineated by the Supreme Court. While considering the vires of the above provisions the general objectives of the Act and the Rules have to be borne in mind and every one of its clauses has to be interpreted and read in the light of these objectives. If any particular clause leaves any discretion to the Government to take any action it has to be understood that such discretion is to be exercised for the purpose of advancing and in aid of implementing and not impeding these objectives. On the other hand as was held in the Kerala Education Bill case (AIR 1958 SC 956) (supra), Article 26 gives freedom to religious denominations or any section thereof, subject to public order, morality and health, to establish and maintain institutions for religious and charitable purposes. Article 29(1) gives protection to any section of citizens residing in the territory of India having a distinct language, script or culture of its own the right to conserve the same. The distinct language, script or culture of a minority community can best be conserved by and through educational institutions, for it is by education that their culture can be inculcated into the impressionable minds of the children of their community. It is through educational institutions that the language and script of the minority community can be preserved, improved and strengthened. Therefore, Article 30(1) confers on all minorities, whether based on religion or language, the right to establish and administer educational institutions of their choice. The minorities, quite understandably, regard it as essential that the education of their children should be in accordance with the teachings of their religion and they hold, quite honestly, that such an education cannot be obtained in ordinary schools designed for all the members of the public but can only be secured in schools conducted under the influence and guidance of people well versed in the tenets of their religion and in the traditions of their culture, the minorities evidently desire that education should be imparted to the children of their community in an atmosphere congenial to the growth of their culture. Our Constitution makers recognised the validity of their claim and to allay their fears conferred on them the fundamental rights referred to above. But the conservation of the distinct language, script or culture is not the only object of choice of the minority communities. They also desire that scholars of their educational institutions should go out in the world well and sufficiently equipped with the qualifications necessary for a useful career in life. It has further been held that Article 30(1) gives certain rights not only to religious minorities but also to linguistic minorities to establish educational institutions of their choice. It does not say that minorities based on religion should establish educational institutions for teaching religion only, or that linguistic minorities should have the right to establish educational institutions for teaching their language only. What the article says is that the religious and the linguistic minorities have the right to establish educational institutions of their choice. There is no limitation placed on the subjects to be taught in such educational institutions. As such minorities will ordinarily desire that their children should be brought up properly and efficiently and be eligible for higher university education and to go out in the world fully equipped with such intellectual attainments as will make them fit for entering the public services. Educational institutions of their choice will necessarily include institutions imparting general secular education also. It is left to the choice of the minorities to establish such institutions as will serve both purposes, namely, the purpose of conserving their religion, language or culture, and also the purpose of giving a thorough, good general education to their children. The article gives two rights, namely, the right to establish and the right to administer educational institutions of their choice. As was pointed out by the Supreme Court, the key to the understanding of the true meaning and implication of Article 30(1) are the words "of their choice". The dominant word is "choice" and the content of that Article is as wide as the choice of the particular minority community may make it. The ambit of the rights conferred by Article 30(1) has, therefore, to be determined on a consideration from the point of view of the institutions themselves. However, to be recongnised as a minority school there must be something related to the objects of Article 30(1) of the Constitution, as was held in A.P. Christians Medical Educational society v. Govt. of Andhra Pradesh, AIR 1986 SC 1490. The Court has the jurisdiction to pierce the veil of an institution to see its reality. The contention that even a single individual belonging to a minority, could found a minority institution and had the right so to do under the Constitution and neither the Government not the University could deny that right, was rejected by the Supreme Court holding that the Government, the University and the Court have the undoubted right to pierce the minority veil and discover whether there is lurking behind it no minority at all and in any case, no minority institution. O. Chinnappa Reddy, J. speaking for Court said : "The object of Article 30(1) is not to allow bogies to be raised by pretenders but to give the minorities a sense of security and a feeling of confidence not merely by guaranteeing the right to profess, practise and propagate religion to religious minorities and the right to conserve their language, script and culture to linguistic minorities, but also to enable all minorities, religious or linguistic to establish and administer educational institutions of their choice. These institutions must be educational institutions of the minorities in truth and reality and not mere masked phantoms. They may be institutions intended to give the children of the minorities the best general and professional education, to make them complete men and women of the country and to enable them to go out into the world fully prepared and equipped. They may be institutions where special provision is made to the advantage and for the advancement of the minority children. They may be institutions where the parents of the children of the minority community may expect that education in accordance with the basic tenets of their religion would be imparted by or under the guidance of teachers, learned and steeped in the faith. They may be institutions where the parents expect their children to grow in a pervasive atmosphere which is in harmony with their religion or conducive to the pursuit of it What is important and what is imperative is that there must exist some real positive index to enable the institution to be identified as an educational institution of the minorities.". Their Lordships also observed :-- "The right guaranteed by Article 30(1) gives the minority the full liberty to establish educational institutions of its own choice. If the minority community expresses its choice and opts to join the scheme of national educational policy, it must naturally abide by the terms of that policy unless the terms require the surrender of the right under Article 30(1)." 15. Thus the rights under Article 30(1) have to be understood as distinguished from the obligation of the State to provide for education of the children in the State. Insofar as the measure is wholly within the State's obligation and a school though set up by minority wants nothing else than that, there would be no justification in depriving the State of any regulatory power over it A minority school will naturally include some aspect or characteristic which is outside the State's general scheme to provide education. Considered from this view point it cannot be said that the Gandhi Vidyapith possesses any such characteristics. The Hindi medium of instruction is not outside the general system of education. This may not be material. In Ahmedabad St. Xaviers College v. State of Gujarat, AIR 1974 SC 1389 it was analysed that Article 30(1) covers institution imparting general secular education. The object of Article 30 is to enable children of minorities to go out in the world fully equipped. It would be wrong to read Article 30(1) as restricting the right of minorities to establish and administer educational institutions of their choice only to cases where such institutions are concerned with language, script or culture of the minorities. Articles 29 and 30 create two separate rights though it is possible that the rights might coincide in a given case. We accordingly hold that if other charateristics are present, the fact that Gandhi Vidyapith is for imparting general education only in Hindi medium will not disqualify it for being treated as a minority school. 16. Does a minority institution waive its rights by receiving Government grants-in-aid in deficit system or otherwise? The relationship between Government grant-in-aid and the minority rights is relevant in determining infringement of those rights. For this purpose the educational institutions established or administered by the minorities or to be so established or administered by them in exercise of the rights conferred by that Article may be classified into three categories, namely, (1) those which do not seek either aid or recognition from the State, (2) those which want aid, and (3) those which want only recognition but not aid. The schools covered by the instant Act belong to the second category as only the schools under the Deficit System of grant have been provincialised. No educational institution can in modern times afford to function efficiently without some State aid and therefore to continue their institutions they will have to seek aid. If administrative conditions or regulations are attached to the aid they shall virtually have to surrender their constitutional right of administering educational institutions of their choice. In determining the constitutional validity of such a measure or a provision regard must be had to the real effect and impact thereof on the fundamental right under Article 30(1). (See Rashid Ahmed v. Municipal Board, Kairana, 1950 SCR 566 at p. 571 : AIR 1950 SC 163 at Pp. 164-165; Mohd. Yasin y. Town Area Committee, Jalalabad, 1952 SCR 572 at p. 577 : AIR 1952 SC 115 at p. 116 and State of Bombay v. Bombay Education Society, AIR 1954 SC 561 : (1955) 1 SCR 568) The State while granting aid may prescribe reasonable regulations to ensure the excellence of the aided institutions. In Kerala Education Bill the Supreme Court accepted reconciliation observing thus at para 31 : "We are thus faced with a problem of considerable complexity apparently difficult of solution. There is, on the one hand the minority rights under Article 30(1) to establish and administer educational institutions of their choice and the duty of the Government to promote education, there is, on the other side the obligation of the State under Article 45 to endeavour to introduce free and compulsory education. We have to reconcile between these two conflicting interests and to give effect to both if that is possible and bring about a synthesis between the two. The directive principles cannot ignore or override the fundamental rights but must, as we have said, subserve the fundamental rights. We have already observed that Article 30(1) gives two rights to the minorities. (1) to establish and (2) to administer, educational institutions of their choice. 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 teaches matters subversive of the welfare of the scholars." Regulatory measures regarding the courses of study, qualifications and appointment of teachers, the conditions of employment of teachers, the health and hygiene of the students, facilities for libraries and laboratories are for uniformity, efficiency and excellence in educational course and do not violate any fundamental right of the minority institutions under Article 30(1). Similarly regulatory measures for ensuring orderly and efficient sound administration do not militate against the minority's right. The appointment of teachers is an important part in educational institutions. The qualifications and character of the teachers are important. The right of minority institutions to administer institution implies the obligation and duty of the minority institutions to render the very best to the students. In the right of administration, checks and balances in the shape of regulatory measures are required to ensure the appointment of good teachers and their conditions of service. Regulations are, therefore, necessary to see that there are no divisive or disintegrating forces in the administration. Whether in a given case the conditions and regulations infringe the orbit of Article 30(1) will be a question of fact. In the instant case nothing has been pointed out to us in this regard. We are, therefore, of the view that the fact that the Gandhi Vidyapith has been receiving aid by itself will not deprive it from being categorised as a minority school. 17. Rule 4 of the Rules only prescribe the constitution of the managing committee. It also permits a special committee under special circumstances which have not been defined. Is the setting up of a managing committee to administer a minority school by itself violative of Article 30(1) ? Does the answer to this question depend on the constitution or composition of the Managing Committee itself ? In All Saints High School v. Govt. of Andhra Pradesh, AIR 1980 SC 1042, Fazal Ali J. on an exhaustive analysis of the cases decided by it, namely, AIR 1958 SC 956, AIR 1963 SC 540, AIR 1969 SC 465, AIR 1970 SC 2079, AIR 1971 SC 1737, AIR 1974 SC 1389, AIR 1975 SC 1821 and AIR 1979 SC 52 during the previous two decades on various aspects, shades and colours, built-in safegurds, guarantees, scope and ambit of the fundamental right enshrined in Article 30(1) the Supreme Court summarised the principles and propositions deduced therefrom. It was held that the right under Article 30(1) is in complete consonance with the secular nature of democracy and the Directive of the constitution itself, that it does not give a free licence for maladministration so as to defeat the avowed object of the Article, namely, to advance excellence and perfection in the field of education; that while the State or any other statutory authority has no right to interfere with the internal administration or management of the minority institution, the State can take regulatory measures to promote the efficiency and excellence of educational standards and issue guidelines for the purpose of ensuring the security of the services of the teachers or other employees of the institution but it cannot under the cover or garb of adopting regulatory measures tend to destroy the administrative autonomy of the institution or start interfering willy-nilly 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. Such a blatant inference would be violative of Article 30(1) and would be wholly inapplicable to the institution concerned. The introduction of an outside authority however high it may be either directly or through its nominees in the governing body or the Managing Committee of the Minority institution to conduct the affairs of the institution would be completely destructive of Article 30(1) and would reduce the management to a helpless entity having no real say in the matter and thus destroy the very personality and individuality of the institution which is fully protected by Article 30. It can, therefore, be said that though there might not be any serious objection to the introduction of high authorities or their nominees in the administration, particularly that part of it which deals with the conditions of service of the teachers, yet such authorities should not be thrust so as to have a controlling voice in the matter and thus overshadow the powers of the managing committee. Where educational institutions have set up a particular Managing Committee in which all the powers vest, such powers should not be curbed or taken away unless the Government is satisfied that these powers are grossly abused and if allowed to continue may reduce the efficacy or the usefulness of the institution. 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 and the members of the staff are not arbitrarily treated or innocently victimised. In such a case the purpose should be not to interfere with the internal administration or autonomy of the institution but should be merely 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. While setting up such an authority care must, therefore, be taken to see that the said authority is not given blanket and uncanalised and arbitrary powers so as to act at their own sweet will ignoring the very spirit and objective of the institution. 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, the authority concerned must be provided with proper guidelines under the restricted field which they have to cover. The right is subject to reasonable restrictions in the interest of efficiency of instruction, discipline, health, sanitation, morality, public order and the like. In case of the institutions that receive Government grants it is the duty and obligation of the Government which grants aid to see that public funds are usefully and properly expended. If the expenditure incurred for paying the emoluments of the staff is subsidised or financed from out of the State funds, it becomes the duty of the Government to see that no one who does not possess the minimum qualifications is appointed on the staff, the pay and other emoluments of the staff are guaranteed and their service conditions secured. Minority instructions which receive State aid cannot complain of conditions subject to which the aid is granted, so long as such conditions do not amount to discrimination against them on the ground of language or religion and so long as the aid is not made to depend upon the performance or observance of conditions which amount to deprivation of the right guaranteed by Article 30(1). If the Rules prescribe a Managing Committee for the above purposes and it is overseen by the Governmental authority, that by itself will not be violative of Article 30(1). Interference with the minority administration has to be shown. 18. In Frank Anthony Public School Employees' Association v. Union of India, (1986) 4 SCC 707 : AIR 1987 SC 311 it has been held that statutory measures regulating to terms and conditions of service of employees of minority educational institution for maintaining educational standard and excellence would not offend Article 30(1). Grant of aid to minority institution cannot be made conditional on the surrender of a part of the right under Article 30(1). Standard, excellence and efficiency of an undertaking institution depend upon better pay and better conditions of service of the employees. It has also been held that key to the Article lies in the words of their own choice." These words indicate that the extent of the right is to be determined, not with reference to any concept of State necessity and general social interest but with reference to the educational institutions themselves, that is, with reference to the goal of making the institutions effective vehicles of education for the minority community or other persons who resort to them. It follows that regulatory measures which are designed towards the achievement of the goal of making the minority educational institutions effective instruments for impacting education cannot be considered to impinge upon the right guaranteed Article 30(1) of the Constitution. The question in each case is whether the particular measure is, the ultimate analysis designed to achieve such goal, without of course nullifying any part of the right of management in substantial measure. 19. In Bharat Sevashram Sangh v. State of Gujarat, AIR 1987 SC 494 it has held that the protection of interest of the teachers is also equally important from the point of view of the State where large number of teachers whose salaries are met by the grants given by the State under the Grants-in-Aid Code are employed by the managements of the private secondary schools. It was held that the State should have a voice in the method of recruitment and it should also make provision for reservation of certain percentage of seats for members belonging to the Scheduled Castes and the Scheduled Tribes in the public interest Section 40A of the Gujarat Secondary Act, 1973 made certain sections of that Act inapplicable to any educational institution established and administered by a minority community whether based on religion or language. It was held that in view of the above provision no minority institution could complain about the Act. 20. In Mrs. Y. Theclamma v. Union of India decided on 15-4-1987 and since reported in 1987 II SVLR (L) 16 : (AIR 1987 SC 1210) following the long line of decisions starting from the Kerala Education Bill Case (AIR 1958 SC 956) down to All Saints High School case (AIR 1974 SC 1389) it has been held that the provisions which were permissible restrictions and were intended and meant to prevent maladministration of the educational institution cannot be said to infringe Article 30(1). Where a provision is eminently reasonable and just designed to afford some measure or protection to the employees, without interfering with the management's right to take disciplinary action, Article 30(1) is not a charter for maladministration. Regulation ensuring that the right to administration may be better exercised for the benefit of the institution is permissible, The setting up of a Managing Committee by itself cannot be objectionable. We have, therefore, to scrutinise the composition and functioning of the managing committee of the school. 21. The composition of the managing committee has to be scrutinised in the light of the above principles. It has not been shown to us that in this Managing Committee the minority shall have no say at all. The President of the committee is to be nominated by the Government If the Government nominates the President from among the minority community there can be no apprehension in this regard. We also find that mere is provision for a special committee under special circumstances. If the fact of the school being in the nature of the minority school is considered as a special circumstance, the Director of Public Instruction may constitute a special committee. There is also provision for nomination by Government of three members to the Managing Committee. This provision may also come in handy in maintaining the administrative rights of a minority school. Considering the above factors we hold that the Rule 4 of the Rules is not ultra vires the Article 30(1) of the Constitution. We are also of the view that where minority characteristics are present the Government should form a special committee in the interest of the minority for managing the minority schools. 22. The impugned order of the Inspector of Schools, Nowgong District Circle, Nowgong dated 28-7-1977 constituting the new Managing Committee of the Gandhi Vidyapith following the provincialisation of the school ipso facto cannot be held to be violative of Article 30(1). It will, however, be openfor the Director of Public Instruction to re-constitute the same in the light of the observations made hereinabove. 23. The order of the Deputy Secretary dated 17-10-1977 declaring the Head Masters of respective schools as drawing and disbursing officers cannot be held to be violative of Article 30(1). This only vests the powers of drawing and disbursing officer on the Head Master which ipso facto cannot affect any minority rights. Besides, the Government having extended grant-in-aid it has to see that such grants are utilised for the purposes they were meant. Making the Head Master drawing and disbursing officer is also necessary for smooth functioning of the school. No fault therefore can be found with this order. 24. In the result, with the above observations and directions, this petition is disposed of. We leave the parties to bear their own costs. R. K. Manisana Singh, J.
25. I agree.