Calcutta High Court
The Association Of Teachers In Anglo ... vs The Association Of Aids Of Anglo Indian ... on 21 December, 1994
Equivalent citations: AIR1995CAL194, AIR 1995 CALCUTTA 194, (1995) 1 CAL LJ 351
Author: Satya Brata Sinha
Bench: Satya Brata Sinha, Basudeva Panigrahi
ORDER Satya Brata Sinha, J.
1. This appeal is directed against a judgment and order dated 1st Sept. 1994 passed by a Ld. Single Judge of this Court, whereby and whereunder the writ petition filed by the respondent No. 1 herein, questioning the constitutionality of certain clauses of the Code of Regulations for Anglo Indian and other Listed Schools, 1993 (hereinafter referred to as "the Code") has been declared unconstitutional.
2. The writ petitioner-respondent No. 1 herein is an association of the Heads of the various Anglo Indian Schools who are said to be minority institutions within the meaning of Clause 1 of An. 30 of the Constitution of India. The writ petitioner, in its writ application had impleaded various minority institutions as pro forma respondents. The said pro forma respondents have supported the writ petitioner-respondent No. 1 before us as it was done before the Ld. Single Judge.
3. In the main writ application, the respondent No. 1, inter alia, question the maintainability of Clauses 11(a), 15 as also the proviso to Clause 24(f) of the Code.
4. By reason of the impugned judgment the said provisions have been declared to be not applicable in cases of the minority institutions.
5. The fact of the matter lies in a very narrow compass.
6. The Director of Public institutions issued a notification dated 1-1-1929 framing a regulation known as Code of Regulation for Anglo Indian Schools in Bengal (now West Bengal) for the regulation of the recognised Europeon Schools in Bengal. The Code was amended from time to time.
7. The State of West Bengal enacted West Bengal Board of Secondary Education Act, 1973 (hereinafter referred to as the 'said Act). In terms of the provision of the said Act, the State framed a Rule known as Management of Recognised non-government institutions Aided and Unaided Rules, 1969.
8. Rule 33 of the said Rules empowers the said State Government to recognised an institution on an application filed by or class of institutions, to which provisions under Article 30 of the Constitution of India applies further or other Rules for the formation of Managing Committee or Committee of Institution or class of Institution. The Board for Anglo Indian Education, West Bengal was constituted by the State of West Bengal. It is stated from time to time discussions took place in revising the Code amongst the members of the Board together with the authorised representatives of the Anglo Indian Schools. Whereas according to the writ petitioner some of the pro forma respondents submitted their objection on the draft Code but according to the State no such objection was ever made.
9. A notification, however, was issued by the Education Department of the Govern ment of West Bengal on 21-1-1994 purported to be in exercise of its power conferred by Sub-Regulation 2 of Regulation 1 of the Code of Regulation for Anglo Indian and other listed Schools, 1993 in respect whereof the first day of 1994 was made the appointed day.
By a notification dated 24-12-1993, the said Regulation was made as it was considered expedient to provide regulation of Anglo Indian and other listed Schools in West Bengal.
10. Anglo Indian Schools has been defined in Clause 5(2) thereto to mean:
"Anglo-Indian School means an institution including all standards and divisions thereof, established under the Code of Regulations for European (now Anglo-Indian) Schools in Bengal (now West Bengal), 1929 (hereinafter referred to in this Code as the existing Code) and continuing as such on the date of coming into force of this Code, provided that such institution continues to fulfil the conditions for recognition laid down in this Code, and particularly in Regulation 8.
Explanation:-- For the purposes of this Code, any new School, applying for recognition, shall satisfy the State Board and the Department of Education that it has been established, and is administered, by-
(a) Anglo-Indians, or
(b) Founders of existing recognised Anglo Indian Schools, provided that such school fulfils the conditions for recognition laid down in this Code, and particularly in Regulation 8"
'Managing Committee' has been defined in Clause 5(2) the said Code which reads as follows:--
"Managing Committee means the body of individuals entrusted by the Founder with the management of any Anglo-Indian School or any listed school or any under-graduate training college or other institution."
Clauses 8 to 12 of the said Code lay down the manner in which recognisation of schools is to be granted whereas Clause 13 deals with withdrawal of recognition.
11. Chapter III of the Code deals with Management and Administration of the Institutions.
12. Chapter IV deals with terms and conditions of service of staff. Benefits to be given to the staff are dealt with in Chapter V.
13. As noticed hereinbefore, the provisions of the Code which impugned in the writ application are clauses 11(a), 15 and proviso to 24(f), which are set out hereinafter: --
"11(a): No pupil shall be required to take part in any religious instruction that may be imparted in a recognised school or to attend any religious worship that may be conducted in such school or any premises attached thereto unless the parent or the guardian of the pupil has given his/her "no objection" thereto in writing."
"15: Management of Schools: All Schools approved and recognised under this Code will be managed by a Managing Committee duly constituted and acting under specific rules which the Department of education may require the schools to, submit for approval. Provision shall be made for the inclusion in the Managing Committee of two confirmed teachers elected by the confirmed teaching -staff of the school, provided that such inclusion is not violative of the existing rules of the Founder. If necessary, the existing rules may be amended in favour of inclusion of such teacher representatives in the Managing Committee.
24(f): The enquiry report will then be sent to the Chair-person of the Managing Committee who will issue a show cause notice with proposed penalties, if any, and the employee will be called upon to reply to the show cause notice within a fortnight of the receipt of such notice. Thereafter, the Managing Committee will take a final decision about the penalty, if any, that should be imposed.
Provided that if the staff is aggrieved by the order of any disciplinary action leading to the dismissal or removal from service or reduction in rank, he/she may prefer a reference to Arbitration Committee which will be appointed by the Chairman of the State Board and the decision of the Arbitration Committee will be final and such decision will be binding upon all concerned."
14. The Church of North India, Calcutta Diocese, respondent No. 6, Archbishop of the Roman Archiocese of Calcutta, respondent No. 7, Selection Province of Calcutta (Northern India), respondent No. 8 Catholic Mission of Western Bengal respondent No. 9, Apatolic Carmel Educational Society of West Bengal, respondent No. 10, Daughters of the Cross Calcutta, respondent No. 11, Loreto House Educational Society of Calcutta, respondent No. 12, The well and Goldsmith Educational and Charitable Society, respondent No. 13. The Assembly of God Church, respondent No. 14, Eliah Mayer Free School and Talmud Torah, respondent No. 15, All India Anglo-Indian Education Institution, respondent No. 16, Congregation of the Sisters of Our Lady of the Mission, respondent No. 17, Alban Education Trust, respondent No. 18, La Martiniere Schools, Calcutta, respondent No. 19, Congregation of Christian Brothers in India, respondent No. 20 and Society for the Advancement of English Education in India, respondent No. 21, which are said to be the founder bodies, of Anglo Indian Schools have filed affidavits supporting the case of the writ petitioner.
15. It is not disputes that prior to framing of the said Code, the authorities of the Board held discussions with the institutions wherefor several meetings took place, However, there lies a dispute as to whether the impugned Code has been framed with consent of the minority institutions or not; whereas according to the State of West Bengal and the appellant association, the Code of Conduct was framed after great deliberation and concensus amongst all concerned; and the contention of the petitioner as also the pro forma respondents appear to be that no such consensus had been arrived at in relation to the impugned provisions.
16. The writ petitioner as also the pro forma respondents have taken a stand that there had been no consensus in relation 3 matters, namely, (i) no student concerned would be required to take part in any religious instructions what may be imparted in a recognised school or to attend any religious worship that may be conducted in such school or any premises attached thereto in which the parent or the guardian of the pupil has given his or her 'No Objection', (ii) two teachers are to be included in the Governing Body of the College and (iii) if the Governing Body of any institution passes an order dismissing, removing or reducing in rank any of its teacher, the aggrieved teacher may approach an Arbitration Committee to be set up by the Chairman of the Board of Anglo Indian Schools, who admittedly is the Minister-in-Charge of School Education in the State of West Bengal.
17. The said provisions as indicated hereinbefore are contained in clauses 11, 15 and proviso to clause (f) of Regulation 24 of the said Code respectively.
18. With regard to Regulation 11 of the Code, the writ petitioner urged that the same is against the usual practice of the institutions concerned, inasmuch as, the practice which had all along been followed was that a student was not required to take part in any religious instructions, if his or her parent takes any objection thereto.
19. With regard to Regulation 15 of the said Code, the contention of the writ petitioner is that no teacher's representative can be admitted in the Governing Body against the wishes of the minority institutions. It is stated that even the head of the institution may not be a member of the Governing Body.
20. The challenge to proviso appended to clause (f) of Regulation 24 of the Code is based upon the contention that the same is violative of the fundamental right of the minority institutions as enshrined under Art. 30(1) of the Constitution of India.
21. The aforementioned contentions of the writ petitioner found favour with the learned trial Judge. The learned trial Judge in an elaborate judgment considered various decisions of the Supreme Court of India and came to the conclusion that the aforementioned 'offending clauses' clearly violate the fundamental right of the Anglo Indian Community which is a linguistic minority community under Art. 30(1) of the Constitution.
22. Mr. P.K. Roy, learned Counsel for the appellant submitted that the protection accorded under Art. 30(1) of the Constitution is only to a religious/ linguistic minority who have established and administered an educational institution. It was submitted that the expressions 'established' and 'administered' occurring in the said Article, must be read conjunctively. Reliance in this connection has been placed upon in the case of I.S. Azeez Basha v. Union of India, and St. Stephen's College v. The University of Delhi, . Learned counsel contended that the petitioner being an association, is not a citizen of India, and thus has no right whatsoever to involve the provision of Art. 30(1) of the Constitution. It has been contended that admittedly the petitioner association has neither established nor administers any minority institution within the meaning of the aforementioned Article, it being an artificial person of the heads of the institution, many of whom need not be belonging to Anglo Indian Community. He, therefore, submitted that the writ petitioner/respondent No. 1 Association has no locus standi to challenge the impugned provisions of the Code. In support of his aforementioned contendion, Sri Roy has relied upon a Division Bench decision of this Court in West Bengal State Electricity Board Engineers Association v. State of West Bengal reported in 1992 (1) CLJ 16.
23. Learned counsel next contended that keeping in view the long line of decisions of the Supreme Court of India beginning from In re: Kerala Education Bill 1957, reported in AIR 1958 SC 956, St. John's Teachers Training Institute (for Women), Madurai v. State of Tamil Nadu there cannot be any doubt whatsoever that the minority community establishing and administering educational institution enjoys the protection of clause (1) of Art. 30 of the Constitution of India, but such a right of management is not an absolute one. Learned counsel submitted that in Kerala Education Bill, the Supreme Court while considering the provisions impugned therein held the same intra vires.
24. Mr. Roy submitted that it is true that the Supreme Court in the case of the The Ahmedabad St. Xaviers' College Society v. State of Gujarat seemingly struck a different note but the said decision having been closely scrutinised, analysed and interpreted by the Supreme Court in Frank Anthony Public School Employees' Association v. Union of India , which has consistently been followed by the Supreme Court in the cases of Mrs. Y. Theclarmma v. Union of India , All Saints High School, Hyderabad v. Govt, of Andhra Pradesh , All Bihar Christian School Associations v. State of Bihar , Bihar State Madarasa Education Board v. Managing Committee of Madarasa Hanafia Arabic College and Monshar Harries Walters v. Basel Mission Higher Education Centre reported in 1992 Supp (2) SCC 301 which have been referred to in the case , there cannot be any doubt whatsoever that the impugned provisions of the Code are intra vires.
25. Learned counsel further submitted that so far as the provisions relating to compulsory religious instructions are concerned, the same is covered under clause (3) of Art. 28 of the Constitution of India. Reference in this connection has been made to St. Xavier's College case (supra).
26. Mr. Roy urged that the learned trial Judge completely misdirected himself in so far as he applied different standards in interpreting clauses 11 and 15 of the Code. It was also submitted that the doctrine of precedent as has been applied by the learned trial Judge while considering Frank Anthony's case (supra) and subsequent decisions of the Supreme Court following the same law on the ground that a decision of a larger Bench shall prevail over the decision of a Bench of lesser number of Judges must be held to be bad in law inasmuch as, in Frank Anthony's case, The Supreme Court itself had considered the decision of St. Xavier's College's case (supra) which thus creates a binding precedent in terms of Art. 141 of the Constitution of India.
27. Mr. Pabitra Kumar Basu, learned counsel appearing for the State of West Bengal submitted that English being the official language of the State, Anglo Indian community cannot be said to be a minority community. It was submitted that the respondent State in its affidavit in opposition has clearly disputed the minority character of the Anglo Indian Schools, and in that view of the matter, the writ petition was not maintainable. It was further submitted that the State Board is not a foreign body as majority of its members represent the Anglo Indian community, and thus if some powers have been vested an the Board as also the Chairman thereof, no illegality can be said to have been committed. In relation to clause 13 of the Code, it was submitted that the teachers are not outsiders, and in any even from a bare perusal of the said provision, it would appear that no complaint in relation to formation of the Governing Body has been made, and thus the same in no way prejudices the founder schools. According to the learned counsel, clause 13 of the said Code, is merely directory in nature. Mr. Basu further submitted that constitution of the State Board having not been questioned, the writ petition must fail. Learned counsel in support of his aforementioned contentions has relied upon the decisions , and . It was submitted that while making regulatory provisions to supervise the affairs of the minority institutions to which the State is entitled to under the law, the role of the State Board cannot be overlooking particularly in view of the fact that the decision of the State Board is the decision of the Anglo Indian Community themselves.
28. With regard to the validity of proviso to clause 24(f) of the Code, it was submitted that the Arbitration Committee has not yet been appointed and thus the writ application was prenature. Learned counsel contended that the said provision had been made in terms of a unanimous resolution of the State Board which has delegated its power to the Chairman. According to the learned counsel; the Board being not an outsider as was the case in St. Xaviers' College (supra), it cannot be said that any unreasonable restriction has been imposed. On instructions from the Deputy Director of Anglo Indian Schools who was present in Court, and who had affirmed the affidavit in opposition on behalf of the State of West Bengal, Mr. Basu submitted that the State is ready, and willing to make a District Judge as the Chairman of the Arbitration Committee.
29. Mr. Bhaskar Prasad Gupta, learned counsel appearing on behalf of the writ petitioner/respondent No. 1, submitted that the petitioner association being a society registered under the Societies Registration Act, is entitled to sue and be sued in its own name through its Secretary. Learned counsel submitted that the right of the State to enforce any provision of law which is ultra vires the Constitution is not necessary to be questioned only by a citizen, as unlike Art. 19, the other provisions of Part III of the Constitution of India, can be enforced by any person, which may include a body of persons like an association. In this connection it was submitted that the Headmasters being the commanders of the School, association of Headmasters would be vitially interested in the administration of the school and thus the association of the heads of the institutions must be held to have sufficient locus to question the validity of the impugned Code.
30. So far as minority character of Anglo Indian Schools is concerned, learned counsel drew our attention to a letter dated 28th March. 1994, addressed by the Minister-in-Charge of the Department of Primary and Secondary Education, and submitted that it would appear therefrom that the Minister-in-Charge himself admitted that Anglo Indian community to be a minority community and the institutions run by them are minority institutions. Learned counsel contended that in the said letter the Hon'ble Minister admitted that there had been differences in relation to certain provisions of the Code and thus it would not be correct to contend that there has been a consensus amongst the members of the Board with regard to the Code itself. Submission of Mr. Gupta is that in view of the fact that the Minister of Education himself admitted that the institutions run by the Anglo Indian community are minority institutions, it does not lie in the month of the appellant at the State of West Bengal to contend otherwise. Reliance in this connection has been placed by Mr. Gupta on a decision of this Court reported in 88 CWN 766.
31. Learned counsel contended that therein this Court had clearly held the Anglo Indian Community being linguistic community is a minority community. Reliance in this connection has also been further placed on the decisions and AIR 1988 SC 979. Learned counsel further drew our attention to page 91 of the stay application and submitted that from a perusal thereof it would appear that the Board itself recognised Anglo Indian institutions as minority institutions within the meaning of the said Code.
31. Mr. Gupta further submitted that the guardians of the wards have also the locus to question the provisions and reliance in this connection has been placed upon the decisions and . Learned counsel contended that all the pro forma respondents which are founder bodies have supported the case of the writ petitioner and necessary averments have been made in various paragraphs of the supplementary affidavit. So far as the question of managing the affairs of the institutions is concerned learned counsel submitted that it is not necessary that administration of a minority institution must be by a minority community. The administration of a school may be through its nominees. Reliance in this connection has been placed on the decisions in the case of State of Kerala v. Very Rev. Mother Provincial etc. and .
33. With regard to the question of vires of proviso appended to sub-clause (f) of Cl. 24 of the Code, learned counsel relied upon various decisions of the Supreme Court which have also been noticed by the learned trial Judge.
34. In view of the rival contentions aforementioned, the following questions arise for consideration in this appeal.
(1) Whether the writ petitioner association has any locus standi to maintain the writ application? (2) Whether Anglo Indian community is a minority community within the meaning of clause (1) of Art. 30 of the Constitution? (3) Whether clauses 11, 15 and proviso to clause 24(f) are ultra vires of clause (1) of Art. 30 of the Constitution of India?
35. A teacher in relation to certain matter enjoys the right which under the Roman Law is known as patries protestes. A teacher, therefore, enjoys the right which a head of the family enjoys over his legitimate children.
36. In the case of the West Bengal Board of Secondary Education v. Smt. Basana Rani Ghosh , a Division Bench of this Court upheld the right of the guardians to question the validity of the revised History syllabus for Class VIII. In that case also, a contention was raised that the said syllabus was framed in consultation with the West Bengal Headmasters' Association, which was also a party thereto. The Division Bench upon following the decision of the Supreme Court in the case of Akhil Bharatiya Soshit Karmachari Sangh v. Union of India, , observed as follows:
"That our current processual jurisprudence is broad-based and people-oriented, and envisions access to justice through 'class actions', 'public interest litigations', and 'representative proceedings'."
37. In , the Parents Association of English Medium Schools questioned a circular before the Karnataka High Court, whereby and whereunder teaching of Kanada language was made compulsory.
38. A school imparts education to the students and thus exercises a public function. If any regulation imposing control is thrust upon the schools, the same affects public in general and all those who have some connection therewith. In this view of the matter, any person who is concerned with the affairs of the school. In my opinion, would have the necessary locus standi to question the validity of such regulation. The heads of the institutions, therefore, cannot be said to be a busy body having no interest whatsoever in the affairs of the schools so as to be disabled to question the vires of the offending provisions. Reference in this connection may be made to the decisions reported in AIR 1981 SC 344 and AIR 1991 SC 2219.
39. Moreover, all the founder bodies of the Anglo Indian Schools in this writ application have been impleaded as pro forma respondents. Each one of them has supported the case of the writ petitioner by filing affidavits. Learned counsel appearing on their behalf adopted the submissions of Mr. Gupta, although they did not feel it necessary to advance any separate or further argument. Moreover, keeping in view the fact that a decision has already been arrived at by the learned trial Judge, in my opinion, it would not be proper for this court at this juncture to throw away the entire writ application only on the ground of lack of locus, particularly in view of the fact that the State in such matters has public accountability, and in that view of the matter, this court, in a given situation, could consider the vires of such provisions even suo motu.
40. The submission of Mr. Roy that the writ petitioner association being not citizen of India, is not entitled to maintain this writ application cannot be accepted. A writ application, as is well known, is maintainable at the instance of an association. It is not a case where the general principle that the writ petitioner must be a person, would apply, in as much as, as is well known, such a principle has been relaxed in recent cases in terms whereof, inter alia, where public interest is affected by the State action, an organisation which is interested or a member thereof is allowed to apply. Reference in this connection may be made to the decisions reported in AIR 1981 SC 344, , .
41. It is also well known that an association which is registered under the Societies Registration Act, is a juristic person having a right to sue or be sued.
42. In this view of the matter, in my opinion, it is not a case where the writ petition should be thrown out on the ground of alleged lack of locus on the part of the writ petitioner. Reliance placed by Mr. Roy on the decision reported in 1992 (1) C.L.J. 16, is misplaced. The said decision was rendered by the learned trial Judge himself, wherein the writ petitioner was held to be not maintainable as some of the promotees for whose alleged benefit the writ petition was filed, denied and disputed the right of the association, and in fact categorically stated that they do not intend to question the order of promotion. It is only in that factual background it was held that the association had no locus standi to maintain the writ application.
43. So far as the submission of Mr. Basu that the Anglo Indian community is not a minority community based on language is stated to be rejected. Only because English is one of the official language, the same does not mean that the Anglo Indian community whose language is English, cannot be termed to be a minority community. The question as to whether a community can be said to be a minority community whether based on religion or language depends upon the question as to whether they are minority in the province in question. Anglo Indian community has clearly been held to be minority community by this court in the case of State of West Bengal v. Daughters of the Cross reported in 88 C.W.N. 766. This aspect of the matter has further been considered by the Supreme Court in the case of State of Bombay v. Bombay Education Society . It has been held :
"Where however, a minority like the Anglo Indian Community which is based, 'inter alia', on religion and language, has the fundamental right to conserve its language, script and culture under Article 29(1) and has the right to establish and administer educational institutions of their choice under Article 30(1) surely then there must be implicit in such fundamental right, the right to impart instruction in their own institutions to the children of their own Community in their own language. To hold otherwise will be to deprive Article 29(1) and Article 30(1) of the greater parts of their contents. Such being the fundamental right, the police power of the State to determine the medium of instruction must yield to this fundamental right to the extent it is necessary to give effect to it and cannot be permitted to run counter to it."
44. In AIR 1958 SC 956 (In re: Kerala Education Bill), upon which reliance has been placed both by Mr. Roy and Mr. Basu, it has been held:
"Anglo-Indian education institutions come within sub-category (a). An Anglo-Indian is defined in Art. 366(2). The Anglo-India community is a well known minority community in India based on religion as well as language and has been recognised as such by this Court in The State of Bombay v. Bombay Education Society, (P). According to the figures set out in the statement of case filed by the two Anglo Indian institutions represented before us by Shri Frank Anthony, about which figures there is no dispute, there are 268 recognised Anglo-Indian Schools in India out of which ten are in the State of Kerala."
Moreover, as noticed hereinbefore, the Minister-in-Charge himself as also the Board recognised the Anglo-Indian Schools to be minority institutions. In this connection reference may be made to the letter dated March 29, 1994, written by the Minister-in-Charge.
45. For the reasons aforementioned, in my opinion, the contention of Mr. Basu that the Anglo-Indian institutions are not minority institutions cannot be accepted.
46. Clause 11 of the Code which has been quoted hereinbefore merely states that 'no objection' certificate has to be brought from the guard' in of the student to the effect that he has no objection if religious instructions are given to his ward. Mr. Gupta contended that the earlier practice prevalent in the minority institutions had all along been that a guardian could send a letter objecting to the religious instructions being imparted to his ward.
47. Clause (3) of Article 28 of the Constitution of India reads thus:--
"No person attending any educational institution recognised by the State or receiving aid out of State funds shall be required to take part in any religious institution that may be imparted in such institution or to attend any religious worship that may be conducted in any such institution or any previous attached thereto under such person or, if such person is a minor, his guardian has given consent thereto.
48. The said provision, therefore, clearly indicates that religious instructions cannot be thrust upon the students.
49. In St. Xeviers' , the law in the regard has been stated thus:--
"Article 28(3) imposes a third restriction on the right in Article 30(1). It provides that no person attending any educational institution recognised or receiving aid by the State shall be required to take part in any religious institution or in any premises attached thereto unless such person or, if such person is a minor, his guardian has given his consent thereto. Obviously, Article 28(3) prohibits a religious minority establishing and administering an educational institution which receives aid or is recognised by the State from compelling any citizen reading in the institution to receive religious instruction against his wishes or if minor against the wishes of his guardian. It cannot be disputed that the right of a religious minority to impart religious instruction in an educational institution forms part of the right to administer the institution. And yet Article 28(3) curtails that right to a certain extent.
To sum up, Arts. 29(2), 15(4) and 28(3) place certain express limitations on the right in Art. 30(1). There are also certain implied limitations on this right. The right should be read subject to those implied limitations."
50. In view of the aforementioned 9 Bench judgment, in my opinion, the learned Trial Judge committed an error in holding that the said provision is ultra vires. It is, in my considered opinion, irrelevant that the post practice was otherwise. The said provision in the teeth of the constitutional mandate cannot be held to be invalid on the ground of existing practice prevailing in some of the minority institutions.
51. In view of the clear and unambiguous provision contained in Art. 28(3) of the Constitution, there cannot be any doubt whatsoever that the said provision is constitutional and no exception can be taken thereto.
52. Clause 15(i) of the Code which has been quoted hereinbefore, ipso facto does not suggest that the same is mandatory in nature. It is now well known that a statutory provision has to be read as a whole. Reading the said provision in its entirety, there cannot be any manner of doubt whatsoever that the Board does not intend to interfere with the existing arrangement. Mr. Gupta, however, submitted that the offending portion of the said clause is that a prior approval is necessary for constitution of the Managing Committee. According to Mr. Gupta, the power to approve necessarily includes the power to disapprove. The said provision, as indicated hereinbefore, has to be read with the other provisions contained therein. It has clearly been stated in the said provision that re-constitution of the Governing Body would depend upon the wishes of the school concerned. Such a direction is not mandatory in nature. In the case of The Gandhi Faiz-e-am College, Shahjahanpur v. University of Agra , the Supreme Court held that imposition of a Headmaster and a seniormost teacher of the college in the Managing Committee cannot be said to be unreasonable. The Headmaster and a seniormost teacher of the college were found to be insiders of the school. In this view of the matter, there cannot be any doubt that the provision enabling the Governing Body to include two teachers, who were insiders, as members of the Governing Body cannot be said to be violative of the right of the minority institutions under clause (1) of Article 30 of the Constitution, inasmuch as, it is not a case where the Managing Committee is sought to be composed of a body of teachers or majority of them are outsiders to administer the educational administration which would be admitting the administration of the institution in favour of an outside agency only in which event a right of a minority institution under Article 30(1) of the Constitution of India is infringed.
53. It has been contended on behalf of the writ petitioners that in many of the schools even Headmaster is not a member of the governing body. The said statement implies that in some school at least Headmasters are the members of the Governing Body.
54. The Supreme Court in G.F.'s College case (supra) has held that the service of a Headmaster and a teacher would be useful. It is held:--
"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 Vice-Chancellor. He brings into the work of the Managing Committee that intimate acquaintance with educational operations and that necessary expression of student-teacher 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 may be and more unobtrusive 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 16-member 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.
We see no force in the objection to the two innocuous insiders being seated on the Managing Committee."
55. It is however interesting to note that the cause of Anglo Indian Minority Institution has been taken up by the Association of Headmasters. The Governing Bodies of the Minority Institutions which have been arrayed as pro forma respondents have supported the writ petitioner. It is, therefore, evident that the Headmaster of the respective Institutions as members of the Association have taken up the cause of Minority Institutions.
56. Even assuming that in a given case, the State does not give its approval with regard to the Constitution of the Managing Committee, the action of the State can be questioned by seeking judicial review thereof in this Court.
The concerned Governing Bodies of the Minority Institutions would not, therefore, be without any remedy whatsoever.
57. Moreover, the Managing Committee are required to be constituted in terms of the Code. A bare perusal of Clause 15 of the Code reveals that the State has no intention to interfere with the existing Managing Committee unless the existing Governing Body of a Minority Institution itself chooses to include two teachers representatives. For the reasons aforementioned, in my considered view Clause 15(1) of the Code cannot be said to be violative of clause (1) of Article 30 of the Constitution of India.
58. The question as to the vires of the proviso appended to Clause 24(f) as quoted hereinbefore requires a detailed consideration.
59. In re:-- The Kerala Education Bill, 1957 (AIR 1958 SC 956) arose out oi reference made by the President of India for the opinion of the Supreme Court in terms ot Article 143 of the Constitution of India. The said decision of the Supreme Court was advisory in nature and is not a binding precedent in terms of Article 141 of the Constitution.
60. In State of Kerala v. Very Rev. Mother Provincial etc., , the provisions of Section 56(2) and Section 56(4) of Kerala University Act, 1969, (Act. 9 of 1969) which were impugned therein read thus: , "56. Conditions of service of teachers of private colleges -
(1) xxxxxxxxxx (2) No teacher of a private college shall be dismissed, removed, or reduced in rank by the governing body or managing council without the previous sanction of the Vice-Chancellor or placed under suspension by the governing body or managing council for a continuous period exceeding fifteen days without such previous sanction.
(3) xxxxxxxxxxxx (4) A teacher against whom disciplinary action is taken shall have a right of appeal to the Syndicate and the Syndicate shall have power to order reinstatement of the teacher in cases of wrongful removal or dismissal and to order such other remedial measures as it deems fit, and the governing body or managing council, as the case may be, shall comply with the order."
61. The Supreme Court held that the said provisions clearly take away the disciplinary action from the governing body and the managing council and conferred it upon the University. The Supreme Court observed :
"This enables political parties to come into the picture of the administration of minority institutions, which may not like this interference. When this is coupled with the choice of nominated members left to Government and the University by sub-section (1) (d) of Sections 48 and 49, it is clear that there is much room for interference by persons other than those in whom the founding community would have confidence."
62. The Supreme Court then said that the said provisions were made bona fide and in the interest of education, but observed, but unfortunately they do affect the administration of these institutions and rob the founders of that right which the Constitution desires should be theirs." The Supreme Court, therefore, in paragraph 20 held the said provisions to be ultra vires of Article 30 of the Constitution of India.
63. In the case of D. V. College, Jullundur Tec. v. The State of Punjab , it was held that 'Arya Samaj' is also minority community within the meaning of Arts. 29 and 30 of the Constitution of India. In the case of The Ahmedabad St. Xaviers College Society (supra), the 9 Judges Bench inter alia, was considering the provisions of Section 51A and Section 52A of The Gujarat University (Amendment) Act, 1972. The said provisions read thus:
"51 A(1) No member of the teaching, other academic and non-teaching staff of an affiliated college and recognized or approved institution shall be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges and until -
(a) he has been given a reasonable opportunity of making representation on any such penalty proposed to be inflicted on him, and
(b) the penalty to be inflicted on him is approved by the Vice-Chancellor or any other officer of the University authorised by the Vice-Chancellor in this behalf.
(2) No termination of service of such member not amounting to his dismissal or removal falling under sub-section (1) shall be valid unless -
(a) he has been given a reasonable opportunity of showing cause against the proposed termination, and
(b) such termination is approved by the Vice-Chancellor or any officer of the University authorised by the Vice-Chancellor in this behalf:
Provided that nothing in this sub-section shall apply to any person who is appointed for a temporary period only.
52A. (1) Any dispute between the govern-
ing body and any member of the teaching, other academic and non-teaching staff of an affiliated college or recognized or approved institution which is connected with the conditions of service of such member, shall, on a request of the governing body, or of the member concerned be referred to a Tribunal of Arbitration consisting of one member nominated by the governing body of the college or, as the case may be, member of the recognized or approved institution, one member nominated by the member concerned and an Umpire appointed by the Vice-Chan-cellor.
(2) The provisions of Section 52 shall, thereupon mutatis mutandis apply to such request and the decision that may be given by such Tribunal."
A. N. Ray, C.J. and D. G. Palekar, J. held that:
43. The third set of provisions impeached by the petitioners consists of Sections 51A and 52A. Section 51A states that no member of the teaching, other academic and non-teaching staff of an affiliated college shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges and given a reasonable opportunity of being heard and until (a) he has been given a reasonable opportunity of making representation on any such penalty proposed to be inflicted on him; and (b) the penalty to be inflicted on him is approved by the Vice-Chancellor or any other officer of the university authorised by the Vice-Chancellor in this behalf. Objection is taken by the petitioner to the approval of penalty by the Vice-Chancellor or any other officer of the university authorised by him. First, it is said that a blanket power is given to the Vice-Chancellor without any guidance. Second, it is said that the words "any other officer of the university by him also confer power on the Vice-Chancellor to authorise any one and no guidelines are to be found there. In short, unlimited and undefined power is conferred on the Vice-Chancellor. The approval by the Vice-Chancellor may be intended to be a check on the administration. The provision contained in Section 51 A, cl. (b) of the Act cannot be said to be a permissive regulatory measure inasmuch as it confers arbitrary power on the Vice-Chancellor to take away the right of administration of the minority institutions. Section 51A of the Act cannot, therefore apply to minority institutions.
44. The provisions contained in Section 52A of the Act contemplate reference of any dispute between the governing body and any member of the teaching, other academic and non-teaching staff of an affiliated college which is connected with the conditions of service of such member to a Tribunal of Arbitration consisting of the member nominated by the governing body of the college one member nominated by the member concerned and an Umpire appointed by the Vice-Chancellor. These references to arbitration wilt introduce an area of litigious controversy inside the educational institution. The atmosphere of the institution will be vitiated by such proceedings. The governing body has its own disciplinary authority. The governing body has its domestic jurisdiction. This jurisdiction will be displaced. A new jurisdiction will be created in administration. The provisions contained in Section 52A of the Act cannot, therefore, apply to minority institutions.
45. For these reasons the provisions contained Sections 40, 41, 33A (1) (a), 33A (1) (b), 51A and 52A cannot be applied to minority institutions. These provisions violated the fundamental rights of the minority institutions.
65. Jaganmohan Reddy, J. and A. Ala-giriswami, J. who agreed with the view of Ray, C.J. and D.G. Palekar, J. observed:
"53: The impugned provisions, namely, Sections 40, 41, 33A(1) (a), 33A (1) (b), 51A and 52A have already been given in the judgment of Hon'ble the Chief Justice. These may be compared with the provisions of the Kerala Education Bill, the Kerala University Act and the Statutes of the Guru Nanak University Act, which have been justaposed for an easy appreciation of the nature of the provisions which have been held void by the cases referred to above.
54: In spite of the consistent and cate-
orical decisions which have held invalid certain provisions of the University Acts of some of the States as interfering with the fundamental rights of management of minority institutions inherent in the right to establish educational institutions of their choice under Article 30(1), the State- of Gujarat has incorporated similar analogous provisions to those that have been declared invalid by this Court. No doubt education is a State subject, but in the exercise of that right any transgression of the fundamental right guaranteed to the minorities will have its impact beyond the borders of that State and the minorities in the rest of the country will feel apprehensive of their rights being invaded in a similar manner by other States. A kind of instability in the body politic will be created by action of a State which will be created by action of a State which will be construed as a deliberate attempt to transgress the rights of the minorities where similar earlier attempts were successfully challenged and the offending provisions held invalid.
66. H. R. Khanna, J. held clause (b) of each of the sub-section of Section 51A violative of Article 30(1). The learned Judge also held the entire provision of Section 52A as violative of Article 30(1) stating:
"It is significant that the power of approval conferred by cl. (b) in each of the two subsections of Section 51A on the Vice-Chancellor or other officer authorised by him is a blanket power. No guidelines are laid down for the exercise of that power and it is not provided that the approval is to be withheld only in case the dismissal, removal, reduction in rank or termination of service is mala fide or by way of victimisation or other similar cause. The conferment of such blanket power on the Vice-Chancellor or other officer authorised by him for vetoing the disciplinary action of the managing body of an educational institution makes a serious in road on the right of the managing body to administer an educational institution Clause (b) of each of the two sub-sections of Section 51A should, therefore, be held to be violative of Article 30(1) so far as minority educational institutions are concerned."
"Section 52A is widely worded, and as it stands it would cover within its ambit every dispute connection with the conditions of service of a member of the staff of an educational institution, however trivial or insignificant it may be, which may arise between the governing body of a college and a member of the staff. The effect of this section would be that the managing committee of an educational institution would be embroided by its employees in a series of arbitration proceedings. The provisions of Section 52A would thus act as a spoke in the wheel of effective administration of an educational institution. It may also be stated that there is nothing objectionable to selecting the method of arbitration for setting major disputes connected with conditions of service of staff of educational institutions. It may indeed be a desideratum. What is objectionable apart from what has been mentioned above, is the giving of the power to the Vice-Chancellor to nominate the Umpire. Normally in such disputes there would be hardly any agreement between the arbitrator nominated by the governing body of the institution and the one nominated by the concerned member of the staff. The result would be that the power would vest for all intents and purposes in the nominee of the Vice-Chancellor to decide all disputes between the governing body and the member of the staff connected with the latter's conditions of service. The governing body would thus be hardly in a position to take any effective disciplinary action against a member of the staff. This must cause on inroad in the right of the governing body to administer the institution. Section 52A should, therefore, be held to be violative of Article 30(1) so far as minority educational institutions are concerned."
67. In relation to Kerala Educational Bill 1959, the learned Judge found :
"Clause 11 made it obligatory for all aided schools to select teachers from a panel of candidates selected for each district by the Public Service Commission. Clause 12 related to the conditions of service of aided teachers. According to sub-clause (a) of Clause 12, no teacher of an aided schools could be dis-
missed, removed or reduced in rank or suspended by the manager without the previous sanction of the authorised officer. Das, C.J. observed that the above provisions were serious inroads on the right of administration and appeared perilously near violating that right. All the same, he observed that this" Court "as at present advised" was prepared to treat those regulations as permissible regulations. I have already mentioned above that in subsequent cases this Court held similar provisions to be violative of Art. 30(1) in the case of minority institutions. The opinion expressed by this Court, in Re: Kerala Education Bill (supra) was of an advisory character and though great weight should be attached to it because of its pursuasive value, the said opinion cannot override the opinion subsequently expressed by this Court contested cases. It is the law declared by this Court in the subsequent contested cases which would have a binding effect. The words "as at present advised" as well as the preceding sentence indicate that the view expressed by this Court in Re: Kerala Education Bill in this respect was hesitant and tentative and not a final view in the matter. It has been pointed out that in Re: Levy of Estate Duty , Spens, C.J., referred to an observation made in the case of Attorney General for Ontario v. Attorney General for Canada, 1912 AC 71 that the advisory opinion of the Court would have no more effect than the opinion of the law Officers. 1 need not dialate upon this aspect of the matter because I am of the opinion that the view expressed by this Court in subsequent cases referred to above by applying the general--principles laid down in the Re: Kerala Education Bill is correct and calls for no interference."
68. K. K. Mathew, J. and Y. V. Chan-drachud, J. (as his Lordship then was), inter alia, held:
"Recongnition or affiliation is granted on the basis of the excellence of an educational institution, namely, that it has reached the educational standard set up by the University. Recongnition of affiliation is sought for the purpose of enabling the students in an educational institution to sit for an examination to be conducted by the university and to obtain a decree conferred by the university. For that purpose, the students should have to be coached in such a manner so as to attain the standard of education prescribed by the university. Recognition or affiliation creates an interest in the university to ensure that the educational institution is maintained for the purpose intended and any regulation which will subserve or advance that purpose will be reasonable and no educational institution established and administered by a religious or linguistic minority can claim recognition or affiliation without submitting to those regulations. That is the price of recognition or affiliation but this does not mean that it should submit to a regulation stipulating for surrender of a right or freedom guaranteed by the Constitution, which is unrelated to the purpose of recognition or affiliation. In other words, recognition or affiliation is a facility which the university grants to an educational institution, for the purpose of enabling the students there to sit for an examination to be conducted by the university in the prescribed subjects and to obtain the degree conferred by the university, and therefore, it stands to reason to hold that no regulation, which is unrelated to the purpose can be imposed. If, besides recognition or affiliation, an educational institution conducted by a religious minority is granted aid, further regulations for ensuring that the aid is utilized for the purpose for which it is granted will be permissible. The heart of the matter is that no educational institution established by a religious or linguistic minority can claim total immunity from regulations by the legislature or the university if it wants affiliation or recognition; but the character of the permissible regulations must depend upon their purpose. As we said, such regulations will be permissible it they are relevant to the purpose of securing or promoting the object of recognition or affiliation. There will be borderline cases where it is difficult to decide whether a regulation really subserves the purpose of recognition or affiliation. But that does not affect the question of principle. In every case, when the reasonableness of a regulation comes up for consideration before the Court, the question to be asked and answered is whether the regulation is calculated to subserve or will in effect subserve the purpose of recognition or affiliation namely the excellence of the institution as vehicle for general secular education" to the minority community and to other persons who resort to it. The question whether a regulation is in the general interest of the public has no relevance, if it does not advance the excellence of the institution as a vehicle for general secular education as, ex-hypo-thesi, the only permissible regulations are those which secure the effectiveness of the purpose of the facility, namely, the excellence of the educational institutions in respect of their educational standards. This is the reason why this Court has time and again said that the question whether a particular regulation is calculated to advance the general public interest is of no consequence if it is not conducive to the interests of the minority community and those persons who resort to it."
69. Another Constitution Bench considered the effect of Ordinance 33(4), Chapter LVII framed by Syndicate of the University of Kerala, in exercise of its power under Section 19(1) of the Kerala University Act, 1957 in Lilly Kurian v. Sr. Lewina, . The impugned provisions in the said can read thus:
"Section 33(1), Suspension: The manage-ment may at any time place a teacher under suspension where a disciplinary proceedings against him is contemplated or is pending. He shall be paid subsistence allowance and other allowances by the management during the period of suspension at such rates as may be specified by the University in each case. The teacher shall have right to appeal against the order of suspension to the Vice-Chancellor of the University within a period of two months from the date on which he received the order of suspension.
(2) Nature of penalties: The following penalties may for good and sufficient reasons be imposed on a teacher by the Management:--
(i) Censure.
(ii) Withholding of increment.
(iii) Recovery from pay of any pecuniary loss caused to the institution/ monetary value equivalent to the amount of increment ordered to be withheld.
(iv) Reduction to a lower rank in the seniority list or to a lower grade or post.
(v) Dismissal from service.
The Management shall be the Disciplinary Authority in imposing the penalties.
X X X X X X X X X X (4) Appeal: A teacher shall be entitled to appeal to the Vice-Chancellor of the University against any order passed by the management in respect of the penalties referred to in items (ii) to (v). Such appeal shall be submitted within the period of 60 days the appellant received the order of punishment."
The Supreme Court held: "The expression "conditions of service covers a wide range, as explained by the Privy Council in N.W.F. Province v. Suraj Narain which was approved by the Court in State of U.P. v. Babu Ram, . These decisions and also a later decision of this Court in State of M.P. v. Shardul Singh (1970) 2 SCR 302 have made it clear that the expression 'condition of service' includes everything from the stage of appointment to the stage of termination of service and even beyond and relates to matters pertaining to disciplinary action."
The Supreme Court upheld the findings of the High Court that the right of appeal conferred by Ordinance 33 (4) forms part of the conditions of service and, therefore, is invalid. The Supreme Court, however, did not agree with the finding that Ordinance 33(4) and the right of appeal before the Vice-Chancellor given to the teachers of private colleges under Ordinance 33(1) and (4), in the matter of suspension and dismissal was not violative of the rights of religious minorities under Art.
30(1) of the Constitution of India. The Supreme Court further observed :
"The right to administer is, therefore, to be tampered with regulatory measures to facilitate smooth administration. Regulations which will serve the interests of the students, regulations which will serve the interests of the teachers are of paramount importance under good administration. Regulation in the interest of efficiency of teachers, discipline and fairness in administration are necessary for preserving harmony among affiliated institutions. It is urged that if the State has any role to play in the system of general education, its power cannot be confined mere by to the laying down of a prescribed standard of education for minority educational institutions but should also extend to all necessary measures to secure an orderly, efficient and sound administration of such institutions."
The Supreme Court analysed its earlier decision in St. Xavier College and held:. "The power of appeal conferred on the Vice-Chancellor under Ordinance 33{4) is not only a grave encroachment on the institution's right to enforce and ensure discipline in its administrative affairs but it is uncanalised and unguided in the sense that no restrictions are placed on the exercise of the power. The extent of the appellate power of the Vice-Chancellor is not defined; and, indeed, his powers are unlimited." The Supreme Court held that the majority decision in St. Xaviers College squarely applied to the facts of the said case holding:
"If the conferral of such power on an outside authority like the Vice-Chancellor, which while maintaining the formal character of a minority institution destroys the power of administration, that is, its disciplinary control, is held justifiable because it is in the public and national interest, though not its interest as an educational institution, the right guaranteed by Art. 30(1) will be to use the well-known expression a 'teasing illusion', a 'promise of unreality'. A distinction is, however, sought to be drawn between the provisions contained in clause (b) of sub-sections (1) and (2) of S. 51-A of the Gujarat Univer-
sity Act, 1949, which provided that no penalty could be inflicted on a member of the teaching staff without the prior approval of the Vice-Chancellor or his nominee, and that contained in Ordinance 33(4) which confers on the Vice-Chancellor the power to hear an appeal against an order of dismissal. It is said that while a provision making the prior approval of the Vice-Chancellor a condition precedent against dismissal, removal or reduction in rank of an employee creates a fetter on the exercise of a disciplinary control, which the employer undoubtedly has, the provision conferring on the Vice-Chancellor a power to hear an appeal leaves the power of the employer untouched. We are afraid, the distinction tried to be drawn is without any basis."
70. In All India Saints High School, Hyderabad v. Government of Andhra Pra-desh, , the Supreme Court was considering the question of validity of Section 3 of Andhra Pradesh Recognised Private Educational Institutions (Control) Act, which reads thus:
"Sec. 3(1). Subject to any rule that may be made in this behalf, no teacher employed in any private educational institution shall be dismissed, removed or reduced in rank nor shall his appointment be otherwise terminat ed, except with the prior approval of the competent authority:
Provided that if any educational management, agency or institution contravenes the provisions of this sub-section, the teachers affected shall be deemed to be in service.
(2) Where the proposal to dismiss, remove or reduce in rank or otherwise terminate the appointment of any teacher employed in any private educational institution is communicated to the competent authority that authority shall, if it is satisfied that there are adequate and reasonable grounds for such proposal, approve such dismissal, removal, reduction in rank or termination of appointment.
(3) (a) No teacher employed in any private educational institution shall be placed under suspension, except when an inquiry into the gross misconduct of such teacher is contemplated.
(b) No such suspension shall remain in force for more than a period of two months from the date of suspension and if such inquiry is not completed within that period, such teacher, shall, without prejudice to the inquiry be deemed to have been restored as teacher:
Provided that the competent authority may, for reasons to be recorded in writing, extend the said period of two months for a further period not exceeding two months, if, in the opinion of such competent authority, the inquiry could not be completed within the said period of two months for reasons directly attributable to such teacher.
(4) Every such teacher as is placed under suspension under sub-section (3) shall be paid subsistence allowance at such rates as may be prescribed during the period of his suspension."
The Supreme Court referred to Very Rev. Mother Provincial Case (supra), D. V. College (supra) and Lilly Kurian's Case (supra) and held that there is no distinction in principle between the provisions involved therein and these contained in Sections 3(1) and 3(2).
71. Y. V. Chandrachud,; C. J., reaffirmed the decisions of the Supreme Court in'the case o'f St. Xavier; College as also in Lilly Kurian's case. It was held, that the, said provisions are not applicable to minority, institutions, stating that "any doubt as to the width of the area in which Section 3(1) operates and is intended to operate, is removed by the provision contained in Section 3(2) by virtue of which the competent authority "shall" approve the proposal, "if it is satisfied that there are adequate and reasonable grounds" for the proposal. This provision, under the guise of conferring the power of approval, confers upon the competent authority an appellate power of great magnitude. The competent authority is "made by that provision the sole Judge of the propriety of the proposed order since it is for that authority to see whether there are reasonable grounds for the proposal. The authority is indeed made a Judge both of facts and law by the conferment upon it of a power to test the validity of the proposal on the vastly subjective touchstone of adequacy and reasonableness. Section 3(2), in my opinion, leaves no scope for reading down the provisions of Section 3(1). The two sub-sections together confer upon the competent authority in the absence of proper rules, a wide and untrammelled discretion to interfere with the proposed order, whenever, in its opinion, the order is based on grounds which do not appear to it either adequate or reasonable." The learned Chief Justice observed:
"But discipline is not to be equated with dictatorial methods in the treatment of teachers. The institutional code of discipline must, therefore, conform to acceptable norms of fairness and cannot be arbitrary or fanciful. I do not think that in the name of discipline and in the purported exercise of the fundamental right of administration and management, any educational institution can be given the right to 'hire and fire' its teachers. After all, through the management may be left free to evolve administrative policies of an institution, educational instruction has to be imparted through the instrumentality of the teachers; and unless, they have a constant assurance of justice, security and fair play it will be impossible for them to give of their best which alone can enable the institution to attain the ideal of educational excellence."
The learned Chief Justice found Section 4 violative of Article 30, holding:
'"Lastly, it is strange, and perhaps an oversight may account for the lapse, that whereas a right of appeal is given to the aggrieved teacher against an order passed by the management, no corresponding right is conferred on the management against an order passed by the competent authority under Section 3(2) of the Act. It may be recalled that by Section 3(1), no teacher can be dismissed, removed etc. except with the prior approval of the competent authority. Section 3(2) confers power on the competent authority to refuse to accord its approval if there are no adequate and reasonable grounds for the proposal. In the absence of the provision for an appeal against the order of the competent authority refusing to approve the action proposed by the management, the management is placed in a gravely disadvantageous position vis-a-vis the teacher who is given the right of appeal' by Section 4. By reason of these infirmities I agree with the conclusion of my learned brothers that Section 4 of the impugned Act is unconstitutional, as being violative of Article 30(1)."
S. Murtaza Fazal AH, J., held the entire provision of sub-sections (1) and (2) of Section 3 of the said Act is offending Article 30(1) of the Constitution as thereby the right of management was interferred with and was completely destructive of the same. The learned Judge held:
"The perusal of this section would clearly reveal that while no rules regulating the conditions of service of the teachers employed in private institutions had been made, the power to do so has been reserved with the Government. The proviso enjoins that any contravention of the provisions would not affect the teachers who would be deemed to be in service. It is manifest that in the absence of any rules the proviso would have no application. Even if the proviso applies it would amount to a serious inroad on the fundamental right of the minority institutions to administer or manage their own affairs. Thus Section 3(1) as also the proviso is clearly violative of Article 30 and is wholly inapplicable to the minority institutions. Serious exception has been taken by counsel for the, appellants to sub-sections (2), (3) and (4) of Section 3. xxxxxxxxxxxxxxx This sub-section seeks to control the power of the institution concerned in the matter of dismissal, removal or reduction in rank or termination of the appointment of any teacher employed by any private educational institution and enjoins that any action taken against the teacher will be of no consequence unless it is approved by the said competent authority. It will be rather interesting to note that the competent authority has not been given any guidelines under which it can act."
The learned Judge observed Sections 3(3)(a) 3(3)(b) and 3(4) to be offending Article 30(1) of the Constitution, holding:
"The proviso to Section 3(3) again empowers the competent authority to extend the period of suspension. Thus, the cumulative effect of sub-sections (3)(a), (3)(b) and the proviso is to interfere with the internal administration of the minority institution and curb the power of suspension and thus deprive the institution of the right of taking any disciplinary action against the teacher to such an extent that the institution becomes almost a figure-head. Such a provision, therefore cannot be upheld as it is clearly violative of Article 30(1) of the Constitution of India. It is obvious that whenever an institution suspends a teacher, it is bound to pay subsistence allowance and any express provision like subsection (4) of Section 3 is wholly unnecessary and makes a serious inroad on the internal autonomy of the institution. Thus, in our opinion, Section 3 in its entirety is ultra vires as being violative of Article 30(1) of the Constitution and is wholly inapplicable to the appellants who are admittedly minority institutions."
The learned Judge further found Section 4 to be ultra vires Article 30 of the Constitution of India, holding:
"It is, therefore, difficult to understand how the appellate Court would exercise this power in deciding whether or not the teacher was guilty of misconduct and what is the correlation between the degree of misconduct and in the appropriate punishment which may have been awarded by the institution and approved by the competent authority. The conferment of such an absolute and unguided power on the appellate authority which if passed against the management it cannot even file a civil suit to set aside this order amounts not only to a direct interference with the right enshrined in Art. 30(1) of the Constitution but makes the minority institution a limp, lifeless and powerless body incapable of effective teaching and/ or attaining excellence in the standards of education. Such a course of action is bound to hurt the feelings of the founders of the Institution. For these reasons, therefore, I am of the opinion that Section 4 is also ultra vires as violative of Article 30 of the Constitution and would, therefore, have no application to the minority institutions who are appellants in this case."
T. S. Kailasam, J., found Sections 3(1) and 3(2) to be valid. The said learned Judge, however, found that Section 4 of the Act was invalidated by the fact that the right of appeal is confined to the teachers and is not available to the institutions.
72. The aforementioned decisions, therefore, clearly held that any interference by an outside agency in the disciplinary matter of the Managing Committee would be ultra vires.
73. Let us now consider the effect of the decision in Frank Anthony's case, , which is a Division Bench decision, comprising of two Judges of the Supreme Court. In the aforementation case, the Supreme Court was considering the provisions of the Delhi School Education Act, 1973, being Act 18. of 1973. In order to understand the said decision, it is necessary to consider the relevant provision. Section 8 of the said Act lays down the terms and conditions of service of employees of recognised, private schools, which is in the following terms:
"8(1) The Administrator may make rules regulating the minimum qualifications for recruitment, and the conditions of service, of employees of recognised private schools:
Provided that neither the salary nor the rights in respect of leave of absence, age of retirement and pension of an employee in the employment of an existing school at the commencement of this Act shall be Varied to the disadvantage of such employee:
Provided further that every such employee shall be entitled to opt for terms and conditions of service as they, were applicable to him immediately before the commencement of this Act.
(2) Subject to any rule that may be made in this behalf, no employee of a recognised private school shall be dismissed, removed or reduced in rank nor shall his service be otherwise terminated except with the prior approval of the Director.
(3) Any employee of a recognised private school who is dismissed, removed or reduced in rank may, within three months fromdate of communication to him of the order of such dismissal, removal or reduction in rank, appeal against such order to the Tribunal constituted under Section 11.
(4) Where the managing committee of a recognised private school intends to suspend any of its employees, such intention shall be communicated to the Director and no such suspension shall be made except with the prior approval of the Director;
Provided that the managing committee may suspend an employee with immediate effect and without the prior approval of the Director if it is satisfied that such immediate suspension is necessary by reason of the gross misconduct, within the meaning of the Code of Conduct prescribed under Section 9, of the employees;
Provided further that no such immedia'te suspension shall remain in force for more than a period of fifteen days from the date of suspension unless it has been communicated to the Director and approved by him before the expiry of the said period.
(5) Where the intention to suspend, or the immediate suspension of, an employee is communicated to the Director, he may, if he is satisfied that there are adequate and reasonable grounds for such suspension, accord his approval to such suspension."
74. Section 11 of the said Act provides for constitution of the Tribunal known as Delhi School Tribunal, consisting of one person, which post would be held by a person who held office as District Judge or any equivalent judicial office. The Administrator was enjoined with a duty to make available to the Tribunal with such staff as may be necessary in the discharge of its functions under the Act.
Sub-section (4) of Section 11 provides that all expenses incurred in connection with the Tribunal shall be defrayed out of the Consolidated Fund of India. Sub-section (5) of Section 11 empowers the Tribunal to regulate its own procedure in all matters arising out of the discharge of its functions including the place or places at which it shall hold its sittings. In terms of sub-section (6) of Section 11, the Tribunal for the purpose of disposal of an appeal would have the same powers as are vested in a Court of appeal by the Code of Civil Procedure, and shall also have the power to stay the operation of the order appealed against on such terms as it may think fit. The Court held sub-section (2) of Section 8 of the Act to be inapplicable to minority institutions. The Court took into consideration the decision in St. Xavier College case (supra) and other decisions and clearly held:
"Thus there, now, appears to be a general and broad consensus about the content and dimension of the Fundamental Right guaranteed by Article 30(1) of the Constitution. The right guaranteed to religious and linguistic minorities by Art. 30(1) is two fold, to establish and to administer educational institutions of their choice. The 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 Stale necessity and general societal 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."
While exploring the uncovered area, the Bench held :
"The appeal is not to any departmental official but to a Tribunal manned by a person who has held office as a District Judge and who is required to exercise his powers not arbitrarily but in the same manner as a Court of appeal under the Code of Civil Procedure. The right of appeal itself is confined to a limited class of cases, namely, those of dismissal, removal or reduction in rank and not to every dispute between an employee and the management. The limited right of appeal, the character of the authority constituted to hear the appeal and the manner in which the appellate power is required to be exercised make the provision for an appeal perfectly reasonable, in our View. The objection to the reference to an Arbitration Tribunal in the Nine Judge Bench case was to the wide power given to the Tribunal to entertain any manner of dispute and the provision for the appointment of umpire by the Vice-Chancellor. Those defects have been cured in the provisions before us. Similarly, the provision for an appeal to the Syndicate was considered objectionable in State of Kerala v. Mother Provincial (supra) as it conferred the right on the university,"
However, unfortunately, in the said judgment, the earlier decision of the Constitution Bench in Lilly Kurian's case (supra) was not taken notice of.
75. In view of the observations of the Supreme Court itself in Frank Anthony's case, it is difficult to accept the submission of Mr. Roy that Frank Anthony's case should be preferred to St. Xavier's case.
76. The aforementioned decision has been affirmed by the Supreme Court-in Mrs, Y. Theclamma v. Union of India, . It may be noticed that A. P. San J. who delivered judgment in Lilly Kurian's case reiterated its earlier decision. It, however, distinguished Lilly Kurian's case saying that therein Ordinance 33(4) was held to be bad which provided for an appeal against an order of dismissal etc. and not in relation to an order of suspension provided for under clause 33(I) thereof. In Theclam-ma's case, therefore, the Supreme Court was merely concerned with a matter of suspension and not a matter of dismissal, removal or reduction in rank.
77. This aspect of the matter has been considered by me in Anjuman-e-Mishbul Muslemin v. State of Bihar, reported in 1988 PLJR page 1107. As would be noticed hereinafter the Supreme Court also took the same view in 1994 BBCJ 15(SC).
78. In All Bihar Christian School Asso-
ciation v. State of Bihar, , which has again been rendered by a Division Bench comprising of two learned Judges. Section 18(3)(d) was in question. The said provision reads thus:
"18. Recognition of minority Secondary Schools:
(1)&(2)xxxxxxxxxxxxxxxx (3) The minority Secondary School accorded recognition under sub-sections (1) and (2) shall be managed and controlled under the following provisions:
(a) to (c)xxxxxxxxxxxxxxxx
(d) The Managing Committee with the approval of the School Service Board shall have powers to remove a teacher, to terminate his services, to dismiss and to discharge him from service. Provided that for the purpose of approval any disciplinary action against the teacher by the managing committee, the Board shall scrutinise whether disciplinary proceedings have been in accordance with the rules and no more."
The words 'no more' are very significant. The Supreme Court held that Section 18(3) ensures that rules framed by the minority schools are followed and the said section expressly provided that the Board is merely to scrutinise whether the disciplinary proceedings had been taken in accordance with the rules and no more. In that case, therefore, the School Service Board had no jurisdiction to sit in appeal over the judgment of the gov-erning body, nor a prior approval of the Board, was necessary before, an order of termination, removal or reduction in rank was given effect. It had, thus, a limited role to play in the matter of review the decision of the minority institution.
In the case of Bihar State Madarsa Education Board, Patna v. Anjuman Able Hadees, , the Supreme Court struck down Section 7(2)(n) of the Bihar State Madarsa Education Board Act, following decisions in the case of State of Kerala v. Very Rev. Mother Provincial (supra), in the case of Manohar Harries Walters v. Basel Mission Higher Education Centre, Dharwad, reported in 1992 Supplementary (2) SCC 301, the Supreme Court did not lay down any new law; it merely followed its earlier decision. In that case, in fact, the matter was referred back to the High Court which dismissed the writ application only on the basis that the impugned provisions are ultra vires clause (1) of Article 30 of the Constitution of India.
In St. John's Teachers Training's case , the Supreme Court was not concerned with any provision which may be said to be offending clause (1) of Article 30 of the Constitution. It was concerned with the regulatory measures which can be imposed by the State while granting recognition to a Teacher's Training College.
79. The aforementioned decisions leave no manner of doubt that any provision which seeks to take away the right of the managing committee to pass any order of dismissal, removal or reduction in rank, would be violative of Article 30(1) of the Constitution of India. Such a provision may, however, be upheld if an independent Tribunal wholly unconnected with the affairs of the institution as in the case of Delhi Act, or a provision is made to over-see that the governing body complies with the principles of natural justice.
80. The Supreme Court of India in St. Xaviers College case (supra) clearly has not only declared the provision for appeal as against an order of the managing committee dismissing, removing or reducing in rank of a teacher violative, but also the provision for reference to an Arbitration Committee if the teacher is aggrieved by any order passed by the governing body. Clause 24 deals basically with the powers of the minority institutions. Minority Institutions have a right to enforce and ensure discipline in its administrative affairs. To confer this right to an outside authority like the Chairman of the Board is to take away the disciplinary power of the minority institutions. It may be noticed that no guideline whatsoever has been laid down in the matter of constitution of the Arbitration Committee. The constitution of such Committee, Arbitrator or Arbitrators to adjudicate upon the disputes, the extent of the power of such Arbitration Committee, its tenure and other provisions have been left at the sweet-will of the Minister-in-Charge. Such a provision in view of decision in St Xaviers College case (supra), must be held to be unreasonable. It may be noticed that the Supreme Court recently in Bihar Stale Madarsa Education Board v. Anjuman Able Hadee, reported in 1994 BBCJ 15 (SC) struck down the provisions of Section 7(2)(n) and Section 24 of the Bihar State Madarsa Education Board Act which is as follows:
"S. 7(2). Subject to the provisions of this Act and the Rules and Regulations made thereunder, the Board shall have the powers to direct, supervise and control Madarsa Education and in particular have the powers:--
(n) to get the Managing Committee of Madarsa constituted in a manner so as to include the Head Maulvi, two donor representatives, one teacher representative, two guardian's representatives and one member nominated by the Board and two other persons interested in Madarsa Education or Islamic Students co-opted by the above seven members."
"S. 24. Services of teachers and non-teaching staff -- The services of the approved teachers and non-teaching staff of a recognised Madarsa shall be under the supervision of the Board. Subject to the regulations prescribed under this Ordinance their services shall be controlled by the Board/or Madarsa Managing Committee. No teacher of the Madarsa shall be discharged or dismissed from service without the prior approval of the Board."
81. The Supreme Court observed that the reasons adduced by the High Court for striking down the said provisions appear to be unexceptionable as the said provisions are patently violative of Article 30(1) of the Constitution holding:
"As is evident, tremendous control is put in the hands of the Board to meddle with the affairs of the minority institutions. Such control is inconceivable in the scheme of things and specially in the context of Article 30 of the Constitution."
82. Before the Supreme Court, similar suggestion which has been given to us by Mr. Basu appearing on behalf of the State of West Bengal was put. The Supreme Court observed :
"In the situation it is for the State Legislature to consider and examine whether it would be prudent and feasible to redraft these two provisions in the manner in which the Board-appellant is attempting to have these provisions read down. We do not think that this would be healthy and prudent in the facts and circumstances to redraft legislation by means of judicial interpretation. If the Board wants to assume some power in the context, it may have to request the Government to introduce legislation in the spirit of Article 30 of the Constitution to carry out the aims and objects of the Act."
83. The aforementioned decision, therefore, clearly suggests that no provision which takes away or abridges the right of the minority institutions to manage it own affairs must be held to be violative of clause (1) of Article 10 of the Constitution.
84. For the reasons aforementioned the proviso appended to clause 24(f) of the Code must be held to be inapplicable in the case of Minority Institutions being ultra vires Article 30(1) of the Constitution.
85. In the result this appeal is allowed in part and to the extent mentioned hereinbefore. However, in the facts and circumstances of this case there will be no order as to costs.
Basudeva Panigrahi, J.
86. I agree.