Society Of St. Ann'S And The Rayalaseema ... vs The Secretary To Government, Education ... on 13 July, 1993

[Cites 63, Cited by 4]

Andhra HC (Pre-Telangana)

Society Of St. Ann'S And The Rayalaseema ... vs The Secretary To Government, Education ... on 13 July, 1993

Equivalent citations: 1993(2)ALT610

1. Pursuant to an order of reference dated September 26, 1991 passed by a Division Bench of this Court wherein the following questions have been referred for consideration by the Full Bench, Writ Petition No. 5640 of 1991 has been posted before us.

(1) Whether it is open to an educational agency to apply for permission to establish an institution in the absence of the competent authority under Section 20 (1) of the Act, notifying in the prescribed manner, calling for applications from the educational agencies desirous of establishing educational institutions?

(2) Whether the need of the 'entire State of Andhra Pradesh' or the 'locality' in the context of a particular area, has to be taken into consideration in determining the need of the locality under Sub-section 3 (a) of Section 20 of the A.P. Education Act, 1982?

(3) While considering the application under Section 20 of the Act, the provisions of the Act, as amended in 1987, have to be applied?

(4) To what extent judicial review is permissible with regard to the policy decision of the Government?

2. Writ Appeal No. 1014 of 1991 was directed by another Division Bench of this Court to be posted along with Writ Petition No. 5640 of 1991 before the Full Bench, by an order dated November 13,1992,which reads as follows:

"The learned Advocate General informs us that the question about maintainability of such applications, moved after Amendment Act No. 27 of 1987, was referred to a Full Bench in W.P.No. 5640 of 1991, by order dt.26-9-1991 It is stated that in the present case also the application for permission to open the school was moved in 1988, i.e., after the amendment, and he challenges the maintainability of that application. Hence we direct that this appeal also be placed for hearing along with W.P.No. 5640 of 1991, which was referred to a Full Bench for decision."

3. Before we advert to the questions referred to the Full Bench for decision, it would be useful to refer to the relevant facts of both the cases which would enable us to appreciate the points that arise for consideration, in a proper perspective.

4. Writ Petition No. 5640 of 1991:- Society of St. Ann's Mehdipatnam, Hyderabad is the petitioner. It submitted an application on July 18,1988 to the respondents seeking permission to start a College of Education for Women at Mehdipatnam, Hyderabad. The Society claims to have been running a number of educational institutions, hospitals and homes for the aged all over the State of Andhra Pradesh. All the members of the congregation, it is stated belong to Roman Catholic Community and are therefore entitled, in the matter of establishment and administration of educational institutions, to the rights conferred under Article 30 of the Constitution of India. A team deputed by the Osmania University and the District Educational Officer conducted inspection in response to the application submitted by the petitioner. As no orders were passed thereon, the petitioner filed writ petition No. 12874 of 1989 on the file of this Court for issuance of appropriate directions to the respondents to grant permission. The writ petition was disposed of on September 19, 1989 with a direction to consider the application of the petitioner and dispose it of within a period of three weeks from the date of receipt of the order. As the application was not disposed of for a long period, the petitioner was forced to file another writ petition No. 1000 of 1991. It was allowed on February 22,1991 directing the State Government to grant permission to the petitioner to start a College of Education for Women. Aggrieved by this order, the State Government preferred Writ Appeal No. 392 to 1991. It was allowed on March 25,1991 with a direction to the State Government to dispose of the application submitted by the petitioner for the grant of permission under Section 20 of the Andhra Pradesh Education Act,1982 (hereinafter referred to as the Act) to establish a College of Education for Women during the academic year 1990-91 and also to consider the application made by the petitioner under the Andhra Pradesh Minority Educational Institutions (Establishment, recognition and Regulation) Rules, 1988 made in G.O.Ms.No. 526, Education (Rules), dated December 21, 1988 (for short the Rules), for according recognition to it as minority educational institution. The application submitted under Section 20 of the Act was rejected by the State Government by the impugned proceedings dated April 15,1991, the relevant portion of which is extracted hereunder:

"The Government did not grant permission of any new colleges after 1988, though more than 130 applications are still pending with the Government. The present intake capacity as fixed by the Government for a college is 160. If permission is granted for all the 130 applicants the State will be creating more than additional 20,000 seats in the State in B.Ed., Sector. This is certainly not in the interest of the educated unemployed B.Ed., Graudates who are already knocking at the doors of the Government for absorption. The Government is aware of the seriousness and the Cabinet laid down its policy on opening of new B.Ed., Colleges in August, 1990, after a detailed review of existing facilities. The new policy of the Government did not permit the opening of new B.Ed., Colleges in the State during the academic year 1990-91. Hence, the competent authority has not issued any notification calling for applications from education agencies for starting new B.Ed., Colleges in the State. All the existing applicants cannot therefore compel the Government for grant of permission for starting new colleges. If any applicant in his over anxiety incurs expenditure on libraries, buildings etc., he may start new schools, colleges for starting of which there is no embargo in the State. They may await the announcement of the Government of the revised policy on B.Ed, colleges. The St. Ann's Society which has all the infrastructure may put its claim along with other applicants as and when the revised policy on B.Ed, colleges is announced and a notification inviting applications is issued by the competent authority. For the present, there is no need and the application of St. Ann's is therefore rejected."

Aggrieved by this order, the present writ petition has been filed.

5. The application made under the rules for according recognition to the proposed St. Ann's College of Education for Women, Mehdipatnam, Hyderabad as a minority educational institution was also rejected by the State Government by an order dated April 26, 1991. This order has been challenged by the petitioner in writ petition No. 7133 of 1991. It is stated that the said writ petition is still pending.

6. Writ Appeal No. 1014 of 1991:- The Rayalaseema Navodaya Minorities Christian Educational Society, Cuddapah, which filed writ petition No. 14914 of 1989 is the appellant. It is a society registered under the Societies Registration Act No. 21 of 1960. It claims that all the members of its Managing Committee belong to Christian Minority Community and they are all members of the Christ Church in Church of South India, Cuddapah District. It is stated that the appellant-society was formed with the sole aim and object of establishing primary and upper primary schools, technical vocational schools, colleges, and college of education for the betterment of the Christian minorities. It submitted an application dated August 12, 1988 to the State Government for grant of permission under Section 20 of the Act for establishing College of Education for Christian Minorities at Cuddapah. The State Government called for a report from the District Educational Officer, Cuddapah and Sri Venkateswara University within whose local jurisdiction the proposed college is sought to be established and ultimately rejected the application submitted by the petitioner, by an order dated December 12, 1988 stating that the Government was consolidating the existing institutions in the current year and therefore permission for new B.Ed., Colleges cannot be granted during the relevant year. Thereafter, the appellant submitted another application dated April 28,1989 requesting the State Government to reconsider its order and grant permission for establishing the college of education during the academic year 1989-90. It also made an application dated August 1, 1989 to the Director of School Education, Andhra Pradesh, Hyderabad under the rules, for according recognition to the proposed college as a minority educational institution. As no orders were passed on the application submitted by the appellant, it filed writ petition No. 14914 of 1989 on October, 23, 1989 for the issue of a Writ of Mandamus directing the respondents to accord permission to the petitioner-society to establish a college of education at Cuddapah during the academic year 1989-90. By an interim order dated October, 24,1989 the learned Judge directed the State Government to consider the application submitted by the petitioner and pass appropriate orders thereon. However, it transpires that in its proceedings dated September 27,1989 itself, the State Government rejected the application submitted by the petitioner in the following terms:

"I am directed to inform you that Government have re-examined your request to start college of Education at Cuddapah during 1989-90. The management have failed to fulfill the requisite conditions for starting college of Education; Government policy is not to permit new institutions that do not fulfill the requisite conditions in advance. The request of Rayalaseema Navodaya Educational Society, Cuddapah to open college of Education is, therefore, rejected."

A copy of this order was served on the petitioner-appellant only on October 31, 1989. Thereafter, the petitioner-appellant sought amendment of the prayer in the writ petition seeking a declaration that the order of the Government dated September 27, 1989 was illegal and void. The writ petition has been ultimately dismissed on August 19,1991 holding inter alia as follows:

"1. Minority Educational Institutions are also subject to the regulatory provisions contained in Chapter-VI of the A.P. Education Act and the Establishment of Private Training Institutions Rules.

2. The applicant has to satisfy the competent authority of the "need to provide educational facilities to the people of the locality" and that such satisfaction is the very basis for the exercise of jurisdiction of the competent authority under Section 20 of the Act read with the rules.

3. The conditions mentioned in Section 20 of the Act read with the Rule 2 of the Establishment of Private Training Institutions Rules are preconditions for grant of permission to establish college of education.

4. The competent authority is right in rejecting the application of the petitioner for non-compliance with the four pre-conditions stated in the report dt.25-2-1991.

5. The 2nd respondent has jurisdiction not to grant the application of the petitioner for permission to establish the college of Education if the applicant failed to satisfy him of the need for providing educational facilities in the locality.

6. The 2nd respondent was right in holding, that recognition of the petitioner's institution as a minority educational institution need be considered only after it is duly established, and

7. The interim order of this Court dt.8-2-1990 did not preclude the 2nd respondent from dealing with the petitioner's application under Section 20 (3) (a) (i) of the Act read with the Rules."

Challenging this order, the present writ appeal has been filed.

7. It is submitted by Mr. E. Manohar, the learned senior counsel for the appellant that the application submitted by the appellant under the rules for according recognition to the proposed College of Education as a minority educational institution is still pending with the concerned authority.

8. Now let us refer to the relevant provisions of law that arise for consideration.

Constitution of India:

Article 29. Protection of interests of minorities:-

(1) Any section of the citizens residing 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.

(2) No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.

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

(1-A) In making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority referred to in Clause (1), the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause.

(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.

Andhra Pradesh Education Act. 1982:

Section 2 Definitions:-

Section 2 (11): 'College' means a college established or maintained and administered by, or affiliated to or associated with or recognised by, any University in the State and includes a junior college recognised by or affiliated to the Andhra Pradesh Board of Intermediate Education.

Section 2 (12): "Competent authority" means any person, officer or authority authorised by the Government by notification to perform the functions of the competent authority under this Act for such area or for such purposes as may be specified in the notification.

Section 2 (16): "Education" means general education, technical education, physical education, teacher education, special education, oriental education, adult education (including non-formal) and any other branch of education which the Government may, by notification, specify.

Section 2(17): "Educational agency" means in relation to-

(a) any minority educational institution, any person who, or body of persons which, has established and is administering or proposes to establish and administer such minority educational institution; and

(b) any other private educational institution, any person or body of persons entrusted with the establishment, management and maintence of such private educational institution.

Section 2 (26)s "Local authority" means in relation to the local area comprised within the jurisdiction of a municipal corporation, the concerned municipal corporation and in relation to any other local area in the State, the concerned municipal council, Zilla Parishad, panchayat samithi, gram panchayat of township having jurisdiction over such local area.

Section 2 (29): "Minority educational institution& " means a private educational institution of its choice established and administered by a minority, whether based on religion or language, having the right to do so under Clause (1) of Article 30 of the Constitution of India.

Section2(35): Private institution" means an institution imparting education or training, established and administered or maintained by any person or body of persons, and recognised as educational institution by the Government, and includes a college, a special institution and a minority educational, institution, but does not include an educational institution-

(a) established and administered or maintained by the Central Government or the State Government or any local authority;

(b) established and administered by any University established by law; or

Section 2 (40): " specified area" means any area within the jurisdiction of a local authority in which primary education is declared by it to be compulsory under Sub-section (6) of Section 9.

Chapter VI. Establishment of educational institutions, their administration and control-

Section 18. Government to provide facilities for imparting education:- The Government may, for the purpose of implementing the provisions of this Act, provide adequate facilities for imparting general education, technical education, special education and teacher education in the State by-

(a) establishing and maintaining educational institutions;

(b) permitting any local authority or a private body of persons to establish educational institutions and maintain them according to such specifications as may be prescribed; and

Section 19. Classification of educational institutions:- The educational institutions shall be classified as follows:-

(a) State institutions, that is to say, educational institutions established or maintained and administered by the Government;

(b) local authority institutions, that is to say, educational institutions established or maintained and administered by a local authority; and

(c) private institutions, that is to say, educational institutions established or maintained and administered by any person or body of persons registered in the manner prescribed.

Section 20. Permission for establishment of educational institution:- (Prior to amendment by the Andhra Pradesh Education (Amendment) Act 27 of 1987).

(1) No private institution shall, after the commencement of this Act, be established except in accordance with the provisions of this Act or the rules made thereunder.

(2) Any local authority or any person or registered body of persons intending to-

(a) establish an institution imparting education; or

(b) open higher classes in an institution imparting primary education; or

(c) upgrade any such institution into a high school, may make an application, within such period in such manner and to such authority as may be prescribed for the grant of permission therefor.

(3) While granting permission under Sub-section (2), the authority concerned shall have due regard to the following matters, namely:-

(a) that there is need for providing educational facilities to the people in the locality;

(b) that there is adequate financial provision for continued and efficient maintenance of the institution as prescribed by the competent authority;

(c) that the institution is proposed to be located in sanitary and healthy surroundings;

(d) that the site for building, play-ground and garden proposed to be provided and the building in which the institution is proposed to be housed, conform to the rules prescribed therefor;

(e) that the teaching staff qualified according to rules made by the Government in this behalf is appointed;

(f) that the application satisfies the requirements laid down by this Act and the rules and orders made thereunder.

Section 20. Permission for establishment of educational institutions:- (As amended by the Andhra Pradesh Education (Amendment) Act 27 of 1987). (1) The competent authority shall, from time to time, conduct a survey as to identify the educational needs of the locality under its jurisdiction, and notify in the prescribed manner through the local news papers calling for applications from the educational agencies desirous of establishing educational institutions.

(2) In pursuance of the notification under Sub-section (1), any educational agency including local authority or registered body of persons intending to-

(a) establish an institution imparting education;

(b) open higher classes in an institution imparting primary education; or

(d) open new courses (certificate, diploma, degree, post-graduate degree courses, etc.), may make an application, within such period, in such manner and to such authority as may be notified for the grant of permission therefor.

(3) Any educational agency applying for permission under Sub-section (2) shall,-

(a) before the permission is granted, satisfy the authority concerned,-

(i) that there is need for providing educational facilities to the people in the locality;

(ii) that there is adequate financial provision for continued and efficient maintenance of the institution as prescribed by the competent authority;

(iii) that the institution is proposed to be located in sanitary and healthy surroundings;

(b) enclose to the application:-

(i) title deeds relating to the site for building, play-ground and garden proposed to be provided;

(ii) plans approved by the local authority concerned which shall conform to the rules prescribed therefor; and

(iii) documents evidencing availability of the finances needed for constructing the proposed buildings; and

(c) within the period specified by the authority concerned in the order granting permission:-

(i) appoint teaching staff qualified according to the rules made by the Government in this behalf;

(ii) satisfy the other requirements laid down by this Act and the rules and orders made thereunder failing which it shall be competent for the said authority to cancel the permission.

(4) On and from the commencement of the Andhra Pradesh Education (Amendment) Act, 1987 no educational institution shall be established except in accordance with the provisions of this Act and any person who contravenes the provisions of this section or who after the permission granted to him under this section having been cancelled continues to run such institution shall be punished with simple imprisonment which shall not be less than six months but which may extend to three years and with fine which shall not be less than three thousand rupees but which may extend to fifty thousand rupees:

Provided further that the court convicting a person under this section shall also order the closure of the institution with respect to which the offence is committed.

Section 20-A. Prohibition of individuals to establish institutions:- On and from the commencement of the Andhra Pradesh Education (Amendment) Act 1987 no individual shall establish a private institution:

Provided that this section shall not have any effect on any private institution established by an individual and recognised by the competent authority prior to such commencement.

Section 21. Grant or withdrawal of recognition of institutions imparting education:- The competent authority may, by order in writing grant recognition in respect of any institution imparting education or for a higher class in any such institution, permitted to be established under Section 20 subject to such conditions as may be prescribed in regard to accommodation equipment, appointment of teaching staff, syllabi, text books and other matters relating thereto;

Provided that in case of existing institutions under all managements the deficiencies if any, in respect of the above conditions shall be made good within the time specified therefor in the order granting recognition.

(2) Where the manager of any local authority educational institution or private educational institution:-

(a) fails to fulfil all or any of the conditions of recognition.............

(b)............

(c)............

(d)............

(e)............

(f)............

the competent authority may, for reasons to be recorded in writing withdraw the recognition of the institution or take such other action as is deemed necessary after giving to the manager an opportunity of making representation against such withdrawal or action.

Section 99 (1)(a) Power of Government to make rules:- The Government may by notification make rules to carry out all or any of the purposes of this Act.

(b) In particular and without prejudice to the generality of the foregoing power, such rules may provide for-

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

(xi) the establishment or maintenance and administration of educational institutions;

(xii) the grant of recognition to educational institutions and the conditions therefor;

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

9. One of the main contentions advanced by Mr. E. Manohar and Mr. Mahmood Ali, the learned counsel appearing for the minority institutions is that the petitioner and the appellant being religious minorities have a fundamental right under Article 30 of the Constitution of India to establish and administer educational institutions of their choice. The right to establish an educational institution is not subject to any restrictions whatsoever and therefore, the provisions of Sub-sections (1) and (2) and of Sub-clause (i) of Clause (a) of Sub-section (3) of Section 20 of the Act are not applicable to the educational institutions that may be established by the religious or linguistic minorities. Sub-section (1) of Section 20 provides that the competent authority shall conduct a survey from time to time for the purpose of identifying the educational needs of the locality under its jurisdiction and call for applications from the educational agencies desirous of establishing educational institutions, through a notification published in the local newspapers. In pursuance of the notification, any educational agency which includes a religious or linguistic minority, may make an application for the grant of permission therefor. Sub-clause (i) of Clause (a) of Sub-section (3) of Section 20 requires that any educational agency, which includes a religious or linguistic minority applying for permission, shall satisfy the concerned authority that there is need for providing educational facilities to the people in the locality. The thrust of argument of the learned counsel is that the provisions of Section 20 referred to above are not merely regulatory in character and they operate as restrictions interfering with the fundamental right of the minorities to establish and administer educational institutions of their choice, guaranteed under Article 30 of the Constitution of India. Therefore, they stress that the minorities can establish educational institutions of their choice even in the absence of a notification issued by the competent authority calling for applications from the educational agencies desirous of establishing such institutions and that the establishment of any such educational institution by any minority-either religious or linguistic, is neither dependent upon nor has anything to do with the educational needs of the locality, if any. Formally, if a minority makes an application for the grant of permission for the establishment of an educational institution of its choice, it shall be accorded without reference to the provisions of Section 20 referred to above.

10. Under Article 3O of the Constitution of India all minorities whether based on religion or language have a fundamental right to establish and administer educational institutions of their choice. The content and amplitude of this right has been the subject-matter of various decisions of the Supreme Court. In order to appreciate the contention advanced on behalf of the appellant and the petitioner with reference to the provisions of Section 20 of the Act, it would be necessary to refer to some of those decisions.

11. The earliest case on the subject relates to the constitutional validity of some of the clauses of Kerala Education Bill, 1957. One of the questions for consideration before a Special bench of. seven learned Judges of the Supreme Court in a reference made under Article 143(2) of the Constitution of India in Re-Kerala Education Bill, 1957, AIR 1958 SC 956 was whether Sub-caluse (5) of Clause 3, Sub-clause (3) of Clause 8 and Clauses 9 to 13 or any provisions thereof of the Kerala Education Bill offended Clause (1) of Article 30 of the Constitution of India in any particulars or to any extent. Sub-clause (5) of Clause 3 of the Kerala Education Bill reads as follows:

"3 (5). After the commencement of this Act, the establishment of a new school or the opening of a higher class in any private school shall be subject to the provisions of this Act and the rules made thereunder and any school or higher class established or opened otherwise than in accordance with such provisions shall not be entitled to be recognised by the Government."

"8(3). All fees and other dues, other than special fees, collected from the students in an aided school after the commencement of this section shall, notwithstanding anything contained in any agreement, scheme or arrangement, be made over to the Government in such manner as may be prescribed."

Clause 9 makes it obligatory on the Government to pay the salary of all teachers in aided schools direct or through the headmaster of the school and also to pay the salary of the non-teaching staff of the aided schools. It gives power to the Government to prescribe the number of persons to be appointed in the non-teaching establishment of aided schools, their salaries, qualifications and other conditions of service. Clause 10 requires the Government to prescribe the qualifications to be possessed by persons for appointment as teachers in Government schools and in private schools either aided or recognised. The State Public Service Commission is empowered to select candidates for appointment as teachers in Government aided schools according to the procedure laid down in Clause 11. Clause 12 prescribes the conditions of service of the teachers of aided schools with a view to afford some security of tenure to the teachers of aided schools. The majority opinion of six learned Judges expressed by the learned Chief Justice is to the effect that the minorities based on religion need not establish educational institutions for teaching religion only or that the linguistic minorities need not establish educational institutions for teaching their language only. Explaining the content of the fundamental right, the learned Judges observed:

"What the article says and means is that the religious and the linquistic minorities should 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 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. In other words, the article leaves it to their choice to establish such educational 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 next thing to note is that the Article, in terms, gives all minorities, whether based on religion or language, two rights, namely, the right to establish and the right to administer educational institutions of their choice."

The learned judges classified the educational institutions established or administered or to be so established or administered by the minorities into three categories viz., (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. As regards the institutions which fall within the first category, it was urged on behalf of the State of Kerala that by virtue of Clause 38 of the Bill, they were outside the purview of the Bill and that nothing can be done for or against them under the Bill and that they can exercise their right under Article 30(1) of the Constitution unhampered by the Bill. As none of the provisions of the Bill apply to them, the learned Judges declined to express any opinion on that point.

12. For the purpose of this case, we are not concerned with the second category of institutions which want aid as the appellant and the petitioner herein do not want any aid. Then, the institutions which fall under the third category are those which want only recognition but not aid. It was maintained by the State of Kerala that a minority community may exercise its fundamental right under Article 30(1) of the Constitution by establishing educational institutions of its choice wherever it likes and administer the same in its own way and need not seek recognition from the Government. But if the minority community desires to have the State recognition, it must submit to the terms imposed as conditions precedent to recognition of an educational institution. The claim of the minority communities on the other hand, was that their fundamental right under Article 30(1) was absolute and it could not be subjected to any restriction whatever. Dealing with these rival contentions, the learned Judges pointed out that the conservation of the distinct language, script or culture was not the only object of choice of the minority communities and that they also desire that scholars of their educational institutions should go out in the world, well and sufficiently equipped with the qualifications necessary for useful career in life. Noticing that the scholars of unrecognised schools are not permitted to pursue higher education in the University, the effect of recognition of an educational institution was explained in the following terms:

"Without recognition, therefore, the educational institutions established or to be established by the minority communities cannot fulfil the real objects of their choice and the right under Article 30(1) cannot be effectively exercised. The right to establish educational institutions of their choice must, therefore, mean the right to establish real institutions which will effectively serve the needs of their community and the scholars who resort to their educational institutions. There is, no doubt, no such thing as fundamental right to recognition by the State but to deny recognition to the educational institutions except upon terms tantamount to the surrender of their constitutional right of administration of the educational institutions of their choice is in truth and in effect to deprive them of their rights under Article 30(1). We repeat that the legislative power is subject to the fundamental rights and the legislature cannot indirectly take away or abridge the fundamental rights which it could not do directly and yet that will be the result if the said Bill containing any offending clause becomes law."

The learned Judges further observed:

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

Clause 7deals with managers of aided schools. The Manager is made responsible for the conduct of the school in accordance with the provisions of this Bill and the rules thereunder. Sub-clause (4) makes it the duty of the manager to maintain such record and accounts of the school and in such manner as may be prescribed by the rules. The manager is, by Sub-clause (5), required to afford all necessary and reasonable assistance and facilities for the inspection of the school and its records and accounts by the authorised officer. Sub-clause (6) forbids the manager to close down any school without giving to the authorised officer one year's notice expiring with the 31st May of any year of his intention so to do. Sub-clause (7) provides that, in the event of the school being closed or discontinued or its recognition being withdrawn, the manager shall make over to the authorised officer all the records and accounts of the school. Sub-clause (8) provides for penalty for the contravention of the provisions of Sub-clauses (6) and (7). Clauses 19 and 20 of the Bill are extracted:

"19. Recognised schools:- The provisions of Sub-section s (2), (4), (5), (6), (7), (8) and (9) of Section 7 shall apply to recognised schools to the same extent and in the same manner as they apply to aided schools."

"20. No fee to be charged from pupils of primary classes:- No fee shall be payable by any pupil for any tuition in the primary classes in any Government or private school."

The claim of the minority institutions was that Clause 20 could not be treated as merely regulatory. Their plea was that if the Bill became Law, all their schools will have to forego their fruitful source of income and that there was no provision for counter-balancing the loss of fees which will be brought about by Clause 20 when it became law. Accepting the contention of the minority communities, the learned Judges held:

"Looking at the rights guaranteed to the minorities by our Constitution from the angle of vision indicated above, we are of opinion that Clause 7 (except Sub-clauses (1) and (3) which apply only to aided schools) and Clause 10 may well be regarded as permissible regulation which the State is entitled to impose as a condition for according its recognition to any educational institution but that Clause 20 which has been extended by Clause 3(5) to newly established recognised schools, in so far as it affects educational institutions established and administered by minority communities is violative of Article 30(1).& "

13. The next case of considerable relevance is Sidhrajbhai v. State of Gujarat, AIR 1963 SC 540. This case has been decided by a Special Bench of the Supreme Court consisting of six learned Judges. Justice Shah, as he then was, speaking for the Bench, pointed out the distinction between the right guaranteed under Article 30(1) and those guaranteed under Article 19 of the Constitution of India. It is held that the fundamental freedom under Clause (1) of Article 30 is absolute not being subject to any reasonable restrictions unlike the fundamental freedoms guaranteed under Article 19 which are subjected to reasonable restrictions. Any law or executive direction which infringes the right under Article 30(1) was held to be void to the extent of such infringement. But, at the same time, it was made clear that it was open to the State to impose regulations on the right to establish and administer educational institutions which cater to the educational needs of the citizens or sections thereof. Such regulations include those made in the interests of efficiency of instruction, discipline, health, sanitation, morality, public order and the like. Such regulations are not treated as restrictions on the substance of the right guaranteed under Article 30(1) because they are intended to secure the proper functioning of the institutions. Emphasising that the right conferred by Article 30(1) is intended to be a real right for the protection of the minorities, the learned Judge observed:

"The right established by Article 30(1) is a fundamental right declared in terms absolute. Unlike the fundamental freedoms guaranteed by Article 19 it is not subject to reasonable restrictions. It is intended to be a real right for the protection of the minorities in the matter of setting up of educational institutions of their own choice. The right is intended to be effective and is not to be whittled down by so-called regulative measures conceived in the interest not of the minority educational institution, but of the public or the nation as a whole. If every order which while maintaining the formal character of a minority institution destroys the power of administration is held justifiable because it is in the public or national interest, though not in its interest as an educational institution the right guaranteed by Article 30(1) will be but a "teasing illusion", a promise of unreality. Regulations which may lawfully be imposed either by legislative or executive action as a condition of receiving grant or of recognition must be directed to making the institution while retaining its character as a minority institution effective as an educational institution. Such regulation must satisfy a dual test-the test of reasonableness and the test that it is regulative of the educational character of the institution and is conducive to making the institution an effective vehicle of education for the minority community or other persons who resort to it."

14. In State, of Kerala v. Mother Provincial, the validity of the provisions of the Kerala University Act, 1969 which repealed and replaced the Kerala University Act, 1957 was questioned. The new Act was passed to reorganise the University of Kerala with a view to establishing a teaching, residential and affiliating university for the Southern districts of the State of Kerala. Some of its provisions affected private colleges particularly those founded by the minority communities in the State. Referring to the earlier decisions of the Supreme Court, Chief Justice Hidayatullah speaking for the Special Bench consisting of six learned Judges construed Article 30(1) of the Constitution as contemplating two rights. The first right is the initial right to establish institutions of the minorities choice. Establishment is explained as bringing into being of an institution by a minority community. The founding of such an institution can be either by a single individual or the community at large and the intention in either case must be to found an institution for the benefit of the minority community. Admission of students belonging to either the majority community or other minority communities was considered to be an irrelevant factor for deciding whether the institution was the one established by the minority community or not. Stressing that the management of an educational institution established by the minority community must be free of control so that the founders or their nominees can mould the institution as they think fit and in accordance with their ideas of how the interests of the community in general and the institution in particular will be best served, the learned Judges justified the imposition of regulations for the purpose of maintaining the standards of education in the following terms:

"Yet the right of the State to regulate education, educational standards and allied matters cannot be denied. The minority institutions cannot be allowed to fall below the standards of excellence expected of educational institutions, or under the guise of exclusive right of management, to decline to follow the general pattern. While the management must be left to them, they may be compelled to keep in step with others."

Holding that the minority community loses the right to administer the institution it has founded by the force of Sub-sections (2), (4) and (6) of Sections 48 and 49; that Section 53 confers on the Syndicate of the University the power to veto even the action of the governing body or the managing council in the selection of the principal; that the provisions of the Act take away the disciplinary action from the governing body and the managing council and confer it upon the University; that the provisions enable the political parties to go into the picture of administration of minority institutions; that Section 63 involves the transfer of the right to possession of the properties of the minority institutions to the University, the Supreme Court has come to the conclusion that the provisions of the Act affect the administration of the educational institutions established by the minority communities.

15. Whether the minorities based on religion or language have the right to establish and administer educational institutions for imparting general secular education within the meaning of Article 30 of the Constitution of India with reference to the provisions of the Gujarat University Act, 1949 as amended, is the question that came up for consideration before a Special bench of nine learned Judges of the Supreme Court in St. Xaviers College v. State of Gujarat, . Eight learned Judges expressed the view that some of the provisions of the Gujarat University Act offended Article 30(1) of the Constitution. Chief Justice A.N. Ray speaking for himself and Justice D.G. Palekar, explained the effect of affiliation of an educational institution to a University, as follows:

"Affiliation to a University really consists of two parts. One part relates to syllabi, curricula, courses of instruction, the qualifications of teachers, library, laboratories, conditions regarding health and hygiene of students. This part relates to establishment of educational institutions. The second part consists of terms and conditions regarding management of institutions. It relates to administration of educational institutions."

The object of conferring of right on minorities under Article 30 is to ensure that there will be equality between the majority and the minority and to enable the children of the minorities to have best general education and go out in the world as complete men and women fully equipped. Therefore, referring to the earlier decision of the Supreme Court in Re, Kerala Education Bill, 1957 (1 supra), both the learned Judges have held that it is not possible to exclude general secular education from Article 30. Relying on the decision in State of Kerala v. Mother Provincial (3 supra) it was pointed out that when a minority institution applied for affiliation, it agreed to follow the uniform courses of study, and that all institutions of general secular education whether established by the minorities or the non-minorities, shall follow the system of general education and courses of instruction prescribed by the University. Such regulatory measures for affiliation are intended for maintaining uniformity, efficiency and excellence in educational courses and they do not in any way violate the fundamental right of the minority institutions under Article 30. The learned Judges referred to the observation of Chief Justice Das in Re. Kerala Education Bill case (1 supra) that the right to administer is not the right to maladminister'. Justice Khanna pointed out:

"The idea of giving some special rights to the minorities is not to have a kind of a privileged or pampered section of the population but to give to the minorities a sense of security and a feeling of confidence."

Explaining the scope and ambit of the right guaranteed by Article 30(1), the learned Judge said:

"The clause confers a right on all minorities, whether they are based on religion or language, to establish and administer educational institutions of their choice. The right conferred by the clause is in absolute terms and is not subject to restrictions, as in the case of rights conferred by Article 19 of the Constitution. The right of the minorities to administer educational institutions does not, however, prevent the making of reasonable regulations in respect of those institutions. The regulations have necessarily to be made in the interest of the institution as a minority educational institution. They have to be so designed as to make it an effective vehicle for imparting education. The right to administer educational institutions can plainly not include the right to maladminister........ The State can prescribe regulations to ensure the excellence of the institution. Prescription of standards for educational institutions does not militate against the right of the minority to administer the institutions. Regulations made in the true interests of efficiency of instruction, discipline, health, sanitation, morality, public order and the like may undoubtedly be imposed..........

A regulation which is designed to prevent maladministration of an educational institution cannot be said to offend Clause (1) of Article 30. At the same time it has to be ensured that under the power of making regulations nothing is done as would detract from the character of the institution as a minority educational institution or which would impinge upon the rights of the minorities to establish and administer educational institutions of their choice. The right conferred by Article 30(1) is intended to be real and effective and not a mere pious and abstract sentiment; it is a promise of reality and not a teasing illusion. Such a right cannot be allowed to be whittled down by any measure masquerading as a regulation........"

Justice Mathew speaking for himself and Justice Chandrachud, as he then was, emphasised that the fundamental right guaranteed under Article 30(1) of the Constitution cannot be subjected to regulations dictated by the concept of State necessity. However, the learned Judges agreed that the regulations made for the purpose of securing recognition or affiliation of an educational institution enabling the students to sit for an examination to be conducted by the University in the prescribed subjects and to obtain the degree conferred by it can be validly imposed. The learned Judge said:

"We find it impossible to subscribe to the proposition that State necessity is the criterion for deciding whether a regulation imposed on an educational institution takes away or abridges the right under Article 30(1). If a legislature can impose any regulation which it thinks necessary to protect what in its view is in the interest of the State or society, the right under Article 30(1) will cease to be a fundamental right. It sounds paradoxical that a right which the Constitution makers wanted to be absolute can be subjected to regulations which need only satisfy the nebulous and elastic test of State necessity. The very purpose of incorporating this right in Part III of the Constitution in absolute terms in marked contrast with the other fundamental rights was to withdraw it from the reach of the majority. To subject the right today to regulations dictated by the protean concept of State necessity as conceived by the majority would be to subvert the very purpose for which the right was given."

16. Tine Manager of the Schools belonging to the Roman Catholic Diocese of Trivandrum, applied to the Education Authorities in Kerala for permission to admit girl students in their High School in which, as a matter of fact, only boy students were admitted for the last more than twenty five years. There was already in existence a facility for the education of the girls in the Muslim Girls High School situated in the locality. As the Christian community in the locality wanted their girls also to receive their education in the school established by their community, the Manager of the Schools sought for permission to admit the girl students in their school. The authorities refused permission. Holding that such refusal is violative of Article 30 of the Constitution, a Constitution Bench of the Supreme Court held in Mark Netto v. Government of Kerala, that such refusal was illegal. The relevant Rule 12(iii) in Chapter VI of the Kerala Education Rules, 1959 under which permission was refused is extracted hereunder:

"12(iii). "Girls may be admitted into Secondary Schools for boys in areas and in towns where there are no Girls' Schools and in such cases adequate arrangements should be made for the necessary convenience. The admissions will be subject to general permission of the Director in particular Boys' Schools which will be specified by him."

Holding that the rule in question in its wide amplitude providing for withholding of permission for admission of girls in the boys minority schools is violative of Article 30 of the Constitution as it interferes with the administration of the institution, the learned Judges have construed it narrowly as to make it inapplicable to a minority educational institution.

17. In A.P. Christian Medical Educational Society v. Government of Andhra Pradesh, , a three Judge Bench of the Supreme Court repelled the contention advanced on behalf of the Andhra Pradesh Christian Medical Educational Society that neither the Government nor the University could deny its right to establish a minority institution at the very threshold and they could only impose regulatory measures in the interest of uniformity, efficiency and excellence in the education. Justice Chinnappa Reddy speaking for the Bench pointed out that the Government, the University and ultimately the Court have the undoubted right to pierce the 'minority veil' and discover whether there was lurking behind it no minority at all and in any case, no minority institution. Adverting to another contention on behalf of the Society that the permission to start a new medical college could not be refused by the Government nor could affiliation be refused by the University to a minority institution on the ground that the Government of India and the Medical Council of India had taken a 'policy decision' not to permit the starting of new medical colleges, the learned Judges did not want to express any opinion on the question. While referring to the rival contentions of the contesting parties, the learned Judges pointed out:

"It was contended before us that the permission to start a new medical college could not be refused by the Government nor could affiliation be refused by the University to a minority institution on the ground that the Government of India and the Medical Council of India had taken a policy decision not to permit the starting of new medical colleges. It was said that such a policy decision would deny the minorities their right to establish an educational institution of their choice, guaranteed by Article 30(1) of the Constitution. The argument was that the right to establish an educational institution was an absolute right of the minorities and that no restriction, based on any ground of the public interest or State or societal necessity could be placed on that right so as to destroy that right itself. It was said that to deny permission to a minority to start a medical college on the ground that there were already enough medical colleges in the country was tantamount to denying the right of the minority guaranteed under Article 30(1). On the other hand, it was said, when in the pursuit of general or professional education for its members, a minority community joins the mainstream of national life, it must subject itself to the national interest. 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). It was said that a medical college needed very heavy investment and that to produce doctors beyond need would be a national waste apart from creating a problem of unemployment in a sphere where there should be none. It appears, if one may borrow the words of Sir Roger de Coverley, 'there is much to be said on both sides'. In view of our conclusion on the other issues we do not want to venture an opinion on this question." :

18. Subsequently, a two-Judge Bench of the Supreme Court explained the content and dimension of the Fundamental Right guaranteed by Article 30(1) of the Constitution vis-a-vis the State necessity and the general societal interest in Frank Anthony Public School Employees' Association v. Union of India, and expressed its view in the following manner:

".....The right guaranteed to religious and linguistic minorities by Article 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 State 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". It follows that regulatory measures which are designed towards the achievement of the goal of making the minority educational institutions effective instruments for imparting education cannot be considered to impinge upon the right guaranteed by Article 30(1) of the Constitution. The question in each case is whether the particular measure is, in the ultimate analysis, designed to achieve such goal, without of course nullifying any part of the right of management in substantial measure......."

19. Rejecting the contention that the educational institutions established by religious or linguistic minorities are immune from the law of the land, a two-Judge Bench of the Supreme Court observed in All Bihar Christian Schools Association v. State of Bihar, :

"Guarantee of freedom to a minority institution under Article 30(1) of the Constitution does not permit the minority institution to act contrary to law and order, law of contract, industrial laws or other general laws which are enacted for the welfare of the society. If the minorities' claim for immunity from the law of the land is upheld that would be unreasonable and against the interest of the minority institutions themselves......"

20. In the State of Tamil Nadu, some religious minorities established educational institutions for imparting education in teachers' training course without obtaining recognition from the Education Department of the State Government. The question whether the students pursuing their studies in those institutions could be permitted to appear at the public examinations held by the Education Department came up for consideration before a Bench of two learned Judges of the Supreme Court in State of Tamil Nadu v. St. Joseph Teachers Training Institute, . Answering the question in the negative, the learned Judges held:

"Smt. Nalini Chidambaram contended that under Section 9 of the Tamil Nadu Act, a minority community is entitled to establish an educational institution without obtaining permission from the Government and the students of such institution are entitled to appear at the public examinations. We find no merit in the submission. Under Article 30 of the Constitution, minorities based on religion or language, have fundamental freedom to establish educational institutions of their own choice, but the State has right to prescribe regulatory provisions for ensuring educational excellence. Minority institutions which do not seek recognition are free to function according to their own choice, but if such an institution seeks recognition from the State, it has to comply with the prescribed conditions for granting recognition, and in that event, the minority institution has to follow prescribed syllabus for examination, courses of study and other allied matters. These conditions are necessary to be followed to ensure efficiency and educational standard in minority institutions. See: All Bihar Christian Schools Association v. State of Bihar (8 supra). We are, therefore, of the opinion that even if a minority community has fundamental right to establish and administer educational institution, it has no right to insist upon the State to allow students to appear at the public examinations without recognition or without complying with the conditions prescribed for such recognition."

21. Again, the scope and ambit of the Fundamental Right guaranteed under Article 30(1) of the Constitution was the subject matter of debate before a Constitution Bench of the Supreme Court consisting of five learned Judges in St. Stephen's College v. The University of Delhi, . The following three issues were discussed:

"First: Whether St. Stephen's College is a minority-run institution? Second: Whether St. Stephen's College as minority institution is bound by the University Circulars dated June 5,1980 and June 9,1980 directing that the college shall admit students on the basis of merit of the percentage of marks secured by the students in the qualifying examinations? Third: Whether St. Stephen's College and the Allahabad Agricultural Institute are entitled to accord preference to or reserve seats for students of their own community and whether such preference or reservation would be invalid under Article 29(2) of the Constitution?"

Before taking up the issues for consideration, Justice Jagannatha Shetty, speaking for himself and three other learned Judges made pertinent observations in his prefatory remarks regarding the freedom of the minorities under Article 30(1) of the Constitution and they are extracted:

"It should be borne in mind that the words "establish" and "administer" used in Article 30(1) are to be read conjunctively. The right claimed by a minority community to administer the educational institution depends upon the proof of establishment of the institution. The proof of establishment of the institution, is thus a condition precedent for claiming the right to administer the institution. Prior to the commencement of the Constitution of India, there was no settled concept of Indian Citizenship. This Court, however, did reiterate that the minority competent to claim the protection of Article 30(1) of the Constitution, and on that account the privilege of establishing and maintaining educational institutions of its choice, must be a minority of persons residing in India. They must have formed a well defined religious or linquistic minority. It does not envisage the rights of the foreign missionary or institution, however laudable their objects might be. After the Constitution, the minority under Article 30 must necessarily mean those who form a distinct and identifiable group of citizens of India. Whether it is "old stuff" or "new product", the object of the institute should be genuine, and not devious or dubious. There should be nexus between the means employed and the ends desired. As pointed out in A.P. Christian Educational Society case, , there must exist some positive index to enable the educational institution to be identified with religious or linguistic minorities. Article 30(1) is a protective measure only for the benefit of religious and linguistic minorities and it is essential to make it absolutely clear that no ill-fit or camouflaged institution should get away with the constitutional protection."

The majority of four learned Judges has expressed their view that the right guaranteed under Article 30(1) is subject to the power of the State to regulate education, educational standards and allied matters and stated:

"Though Article 30(1) is couched in absolute terms in marked contrast with other fundamental rights in Part III of the Constitution, it has to be read subject to the power of the State to regulate education, educational standards and allied matters. In Ahmedabad St. Xaviers College Society v. State of Gujarat, which was the decision of a nine-Judge Bench, Ray, C.J. with whom Palekar, J., concurred, observed (at pp.197,200) that upon affiliation to a University, the minority and non-minority institutions must agree in the pattern and standards of education. Regulations which will serve the interest of the students, regulations which will serve the interests of the teachers are of paramount importance in good administration. Regulations in the interest of efficiency of teachers, discipline and fairness in administration are necessary for preserving harmony among affiliated institutions. It was further observed: "That the ultimate goal of minority institutions too imparting general secular education is advancement of learning. This Court has consistently held that it is not only permissible but also desirable to regulate everything in educational and academic matters for achieving excellence and uniformity in standards of education."

On a scrutiny of the various relevant decisions, the learned Judges observed:

"The need for a detailed study on this aspect is indeed not necessary. The right to minorities whether religious or linquistic, to administer educational institutions and the power of the State to regulate academic matters and management is now fairly well settled. The right to administer does not include the right to maladminister. The state being the controlling authority has right and duty to regulate all academic matters. Regulations which will serve the interests of students and teachers, and to preserve the uniformity in standards of education among the affiliated institutions could be made. The minority institutions cannot claim immunity against such general pattern and standard or against general laws such as laws relating to law and order, health, hygiene, labour relations, social welfare legislations, contracts, torts etc. which are applicable to all communities. So long as the basic right of minorities to manage educational institution is not taken away, the State is competent to make regulatory legislation. Regulations, however, shall not have the effect of depriving the right of minorities to educate their children in their own institution. That is a privilege which is implied in the right conferred by Article 30(1)."

We have to bear in mind that both the institutions St. Stephen's College at New Delhi and Allahabad Agricultural institute at Naini are aided educational institutions getting grant from the State Funds. Whereas St. Stephen's College has been affiliated to the Delhi University, the Allahabad Agricultural Institute has been affiliated to the Uttar Pradesh University.

22. Before another Constitution Bench of the Supreme Court, two important questions viz., (1) whether the Constitution of India guarantees a Fundamental Right to education to its citizens and (2) whether there is a Fundamental Right to establish an educational institution under Article 19(1)(g), came up for consideration in Unni Krishnan, J.P. v. State of Andhra Pradesh, 1993 (1) SCALE 290. The learned Chief Justice L.M. Sharma and Justice Bharucha have expressed the view, while agreeing with Justice Jeevan Reddy, that there is "no Fundamental Right to education for a professional degree that flows from Article 21". Justice Mohan has come to the conclusion that by holding the right to education as a Fundamental Right upto the age of 14 years, the Court is not determining the priorities. However, regarding the higher education, the learned Judge has observed mat it falls heavily on national economic resources and therefore, the right to it must necessarily be limited by its economic and social circumstances. Referring to the present position of primary education in the country, the learned Judge has concluded that the right to free education upto the age of 14 years is a Fundamental Right.

23. As regards the other question as to whether there is a Fundamental Right to establish educational institution under Article 19(1)(g), Justice Mohan has pointed out that the right to establish and run an educational institution "with State's recognition arises only on the State permitting, pursuant to a policy decision or on the fulfilment of the conditions of the Statute" and that the State policy may dictate a different course. Adverting to the right to establish an educational institution, the learned Judge pointed out that it would logically be tantamount to a right to establish a University also, which is not contemplated under Article 19(1)(g). Referring to the decision of the Supreme Court in Ahmedabad St. Xaviers College case (4 supra) that "the right to establish and administer educational institutions of their choice has been conferred on religious and linguistic minorities so that the majority who can always have their right by having proper legislation, do not pass a legislation prohibiting minorities to establish and administer educational institutions of their choice, the learned Judge is of the view that the conferment of such a right on the minorities in a positive way under Article 30 negatives the assumption of fundamental right in that behalf in every citizen of the country. In this context, the following observations made by Justice Khanna in Ahmedabad St. Xaviers College case, which have been referred to by the learned Judge, are pertinent to understand the content and dimension of the right conferred on the minorities under Article 30(1) of the Constitution:

"The idea of giving some special right to the minorities is not to have a kind of privileged or pampered section of the population but to give to the minorities a sense of security and a feeling of confidence. The great leaders of India since time immemorial had preached the doctrine of tolerance and catholicity of outlook. Those noble ideas were enshrined in the Constitution. Special rights for minorities were designed not to create inequality. Their real effect was to bring about equality by ensuring the preservation of the minority institution and by guaranteeing to the minorities autonomy in the matter of the administration of these institutions. The differential treatment for the minorities by giving them special rights is intended to bring about an equilibrium, so that the ideal of equality may not be reduced to a mere abstract idea but should become a living reality and result in true, genuine equality, an equality not merely in theory but also in fact. The majority in a system of adult franchise hardly needs any protection. It can look after itself and protect its interests. Any measure wanted by the majority can without much difficulty be brought on the statute book because the majority can get that done by giving such a mandate to the elected representatives. It is only the minorities who need protection, and Article 30, besides some other articles, is intended to afford and guarantee that protection."

On a consideration of the various decisions of the Supreme Court and the provisions of the Constitution, the learned Judge has held that there is no fundamental right under Article 19(1)(g) to establish an educational institution if recognition or affiliation is sought for such an educational institution. It has been made clear that any one desirous of starting an institution purely for the purpose of educating the students, he could do so while keeping in mind that Sections 22 and 23 of the University Grants Commission Act prohibited the award of degrees by any one except by a University. Justice Jeevan Reddy has also expressed the view that every child/citizen of mis country has a right to free education until he/she completes the age of 14 years and after he/she completes the age of 14 years, his /her right to education is circumcribed by the limits of economic capacity of the State and its development. While holding so, the learned Judge observed:

"This does not however mean that this obligation can be performed only through the State schools. It can also be done by permitting, recognising and aiding voluntary non-governmental organisations, who are prepared to impart free education to children. This does not also mean that unaided private schools cannot continue. They can, indeed, they too have a role to play. They meet the demand of that segment of population who may not wish to have their children educated in State-run schools. They have necessarily to charge fees from the students. In this judgment, however, we do not wish to say anything about such schools or for that matter other private educational institutions except 'professional colleges'......."

24. Regarding the other question as to whether there is a fundamental right to establish an educational institution under Article 19( 1 )(g) of the Constitution, the learned Judge pointed out that the outline education was woefully inadequate to the needs of the people. It was noticed that even so, on account of lack of proper supervision, self-discipline and commitment, the quality and standard of instruction in most of the Government schools and colleges except the professional colleges was woeful and therefore, an opportunity had arisen to the private educational institutions to fill the void both in terms of meeting the need and more particularly in the matter of quality of instruction. Referring to the various enactments made by the Parliament, such as the University Grants Commission Act, 1956,the Indian Medical Council Act, 1956, All India Council for Technical Education Act, 1987, the Indian Medical Council (Amendment) Ordinance, 1992 and the relevant legislations made by the States of Andhra Pradesh, Karnataka, Maharashtra and Tamil Nadu on the subject of education in general and prohibition of charging of capitation fee in educational institutions, in particular it was observed that the intention of the Parliament was to promote and co-ordinate university education by determining and maintaining standards of teaching education and research in the universities. The University Grants Commission Act specifically provides that the Commission can formulate the regulations in the public interest having regard to the nature of any course of study for obtaining any qualification from any University, the types of activities in which persons obtaining such qualifications are likely to be engaged on the basis of such qualification and the minimum standards which a person possessing such qualification should be able to maintain in his work relating to such activities. As regards the technical education, the All India Council for Technical Education has power to take all steps as it may think fit for ensuring coordinated and integrated development of technical education and maintenance of standards. For achieving that purpose, it can fix norms and guidelines, grant approval for starring new technical institutions and introduction of new courses of programmes in consultation with the agencies concerned. The Indian Medical Council (Amendment) Ordinance, 1992 specifically provides that no medical college shall be established nor any new or higher course of study or training opened in an existing institution nor shall it increase its admission capacity in any course of study or training, except with the previous permission of the Central Government obtained in accordance with the provisions of the ordinance. Several matters which the Council and the Central Government have to take into consideration before granting permission for establishing a new medical college "are designed to ensure that a properly equipped institution is in place before it is permitted to impart medical education". Taking into consideration the provisions referred to above and the ground reality, the learned Judge held:

"It is thus: the Central Government does not have the resources to undertake any additional financial responsibility for medical or technical education; it is unable to aid any private educational institution financially at a level higher than at present; therefore the policy of the Central Government is to involve private and voluntary efforts in the education sector in conformity with accepted norms and goals."

25. Holding that imparting education cannot be treated as trade or business or professional occupation, the learned Judge emphasised that the activity of establishing and/or running an educational institution cannot be a matter or commerce. Relying on the decision of the Supreme Court in St. Xaviers College case (4 supra) that the right to establish an educational institution does not carry with it the right to recognition or the right to affiliation, it has been pointed out that though it is open to a person to establish an educational institution, admit students, impart education, conduct examination and award certificates to students, he or the educational institution has no right to insist that the certificate or degree awarded by such institution should be recognised by the State. The institution has to seek such recognition or affiliation from the appropriate agency. Emphasising that principle the learned Judge observed:

"Grant of recognition and/or affiliation is not a matter of course nor is it a formality. Admission to the privileges of a University is a power to be exercised with great care, keeping in view the interest of the general public and the nation......by virtue of the provisions of the U.G.C. Act,........no educational institution in this country except a University is entitled to award degrees.......... These educational institutions follow the syllabus prescribed by the Government/University, have the same courses of study, follow the same method of teaching and training. They do not award their own degrees/qualifications. They prepare their students for University/Government examinations, request the University/ Government to permit them to appear at the examinations conducted by them and to award the appropriate degrees to them. Clearly and indubitably, the recognised/affiliated private educational institutions, supplement the function performed by the institutions of the State. Theirs is not an independent activity but one closely allied to and supplemental to the activity of the State."

It was further held:

"No private educational institution can survive or subsist without recognition and/or affiliation. The bodies which grant recognition and/ or affiliation are the authorities of the State. In such a situation, it is obligatory - in the interest of general public - upon the authority granting recognition or affiliation to insist upon such conditions as are appropriate to ensure not only education of requisite standard but also fairness and equal treatment in the matter of admission of students. Since the recognising/affiliating authority is the 'State', it is under an obligation to impose such conditions as part of its duty enjoined upon it by Article 14 of the Constitution. It cannot allow itself or its power and privilege to be used unfairly. The incidents attaching to the main activity attach to supplemental activity as well. Affiliation/recognition is not there for anybody to get it gratis or unconditionally."

26. In the light of the provisions of law and the principles enunciated by the Supreme Court in the various decisions referred to above, it has to be considered whether it is open to educational agencies including religious or linguistic minorities to apply for permission to establish an educational institution of their choice even in the absence of a notification issued by the competent authority under Section 20(1) of the Act calling for applications from the educational agencies desirous of establishing educational institutions. Along with this question the other three questions which have been referred for the decision of the Full Bench can also be conveniently dealt with as they incidentally arise for consideration while dealing with the first question.

27. "Education including technical education, medical education and universities" is a subject which forms part of Entry 25 in the concurrent list (List III) of the 7th Schedule to the Constitution. The Andhra Pradesh Education Act, 1982 is a consolidating and amending Act made by the State Legislature with the object of reforming, organising and developing the educational system in this State and to provide for matters connected therewith or incidental thereto. Chapter 3 (Sections 7 and 8) pertains to school education. Chapter 4 (Sections 9 to 16) deals with primary education and its implementation. Chapter 5 (Section 17) pertains to examinations. Chapter 6 (Sections 18 to 33) relates to establishment of educational institutions, their administration and control. Section 18 confers powers on the State Government to provide adequate facilities for imparting general, technical, special and teacher education in the State by either itself establishing and maintaining educational institutions and/ or permitting any local authority or a private body of persons to establish educational institutions and maintain them according to such specifications as may be prescribed by the State Government. It also vests power in the State Government to take from time to time such of the steps as may be necessary or expedient for the aforesaid purpose. The educational institutions are classified under Section 19 into three categories viz., (1) State institutions, that is to say, educational institutions established or maintained and administered by the Government;

(2) Local Authority institutions, that is to say, educational institutions established or maintained and administered by a local authority; and (3) Private institutions, that is to say, educational institutions established or maintained and administered by anybody of persons registered in the prescribed manner.

28. Granting of permission for the establishment of educational institutions is governed by Section 20. The Section has been amended by Act No. 27 of 1987. On and from the commencement of the Amending Act, 1987, no educational institutions shall be established except in accordance with the provisions of the Act. The State Government is authorised to appoint by notification a competent authority for such area or for such purposes as may be specified in the notification. It appears that the State Government may appoint for different areas in the State, different competent authorities and if it so desires, there is nothing in the Act that precludes the State Government from appointing one competent authority for the entire State. Sub-section (1) of Section 20 provides that the competent authority appointed by the State Government shall from time to time conduct a survey for the purpose of identifying the educational needs of the locality under its jurisdiction. Thereafter it shall issue a notification through the local newspapers calling for applications from the educational agencies desirous of establishing educational institutions. Educational agency means any body of persons including that of religious or linguistic minority, entrusted with the establishment and maintenance of a private educational institution of a minority educational institution, as the case may be. In pursuance of the notification issued under Sub-section (1) of Section 20 any educational agency intending to establish an educational institution may make an application for the grant of permission therefor to such authority as may be notified by the State Government. Before permission is granted, any educational agency applying for permission shall satisfy the concerned authority that there is need for providing educational facilities to the people in the locality. There are some other requirements mentioned in Sub-section (3) of Section 20 that have to be fulfilled by any educational agency applying for permission for establishing an educational institution and for the purpose of this reference, it is not necessary to deal with those other requirements.

29. Individuals are prohibited from establishing private educational institutions under Section 20-A which has been inserted by the Amending Act of 1987. The competent authority is empowered under Section 21 to grant recognition in respect of any educational institution permitted to be established under Section 20 as well as to withdraw the recognition already granted, in the circumstances mentioned therein.

30. From what is stated above, it is discernible that for the purpose of achieving the legislative object of reforming, organising and developing the educational system in the State, the Government has been vested with the power under Section 18 to either itself establish and maintain educational institutions and /or permit any local authority or a private body of persons including a religious or linguistic minority to establish and maintain educational institutions, according to such specifications as may be prescribed by it. Therefore, it is for the State Government to permit or not to permit a private body of persons including a religious or linguistic minority to establish an educational institution.

31. Where a competent authority has been appointed by the State Government for any area in the State, such authority shall identify the educational needs of the locality under its jurisdiction by conducting a survey and issue a notification calling for applications from the educational agencies desirous of establishing educational institutions. It is an undisputed fact that the State Government has not so far appointed any competent authority for any area in the State. Therefore, we proceed to answer the questions referred to us on that basis.

32. Till now, the applications for the grant of permission for establishing educational institutions by any body of persons including that of a religious or linguistic minority are being submitted only to the State Government and they are being considered by it. Even the granting of recognition under Section 21 in respect of any educational institutions permitted to be established under Section 20 is being dealt with, we are told, by the State Government itself. In both these cases also, applications are submitted to the State Government seeking permission to establish colleges of education and they have been rejected by the State Government. In such circumstances we have to consider the first question referred to us viz., "whether it is open to an educational agency to apply for permission to establish an educational institution in the absence of a competent authority under Section 20(1) of the Act notifying in the prescribed manner calling for applications from the educational agencies desirous of establishing educational institutions?"

33. In Unni Krishnan's case (11 supra) one of the points for debate was whether a citizen had a fundamental right under Article 19(1)(g) of the Constitution to establish an educational institution. Both Justice Mohan and Justice Jeevan Reddy, held in their separate but concurrent judgments that no citizen was entitled to claim a right to establish an educational institution if recognition or affiliation was sought for such an educational institution. Both the learned Judges have pointed out that any one desirous of starting an institution purely for the purpose of educating the students, can do so. But, without recognition/affiliation the students trained in such institution cannot be permitted to appear for the examinations conducted either by the Government or the University and such an institution cannot award a degree. Justice Mohan has observed that the right to establish and run an educational institution with State's recognition arises only on the State permitting pursuant to a policy decision or on the fulfilment of the conditions of the Statute, any person to establish an educational institution. Emphasising that no private educational institution can survive or subsist without recognition and /or affiliation, Justice Jeevan Reddy has also come to the conclusion that no citizen can claim a fundamental right under Article 19(1)(g) of the Constitution to establish an educational institution if recognition or affiliation is sought for such an educational institution.

34. Under the Act, no educational institution can be established and run except in accordance with the provisions of the Act. Therefore, no educational agency can establish an educational institution without obtaining the prior permission for such establishment and recognition for running such institution.

35. Admittedly, the State Government has not so far appointed a competent authority for any area in the state and therefore the question of the competent authority issuing a notification calling for applications for establishing educational institutions as contemplated under Sub-section (1) of Section 20 does not arise. Then, a question will arise whether in such a situation, any educational agency including a religious or linguistic minority desirous of establishing an educational institution cannot make an application for the grant of permission for establishing such an educational institution. The State has the power to control and regulate education, educational standards and allied matters as pointed out by the Supreme Court in more than one decision. For the purpose of implementing the provisions of the Act, the State Government has been vested with the power to either itself establish and maintain an educational institution and /or permit any educational agency including a local authority to establish and maintain educational institutions in the State. Therefore, primarily it is for the State Government to permit or not to permit an educational agency to establish an educational institution in the State. This power conferred on the State Government for the purpose of achieving the legislative object of reforming, organising and developing the educational system in the State is not subject to the provisions of Sub-section (1) of Section 20 under which a competent authority appointed by the State Government has been vested with the power to identify the educational needs of the locality under its jurisdiction, on the basis of a survey conducted by it and issue a notification calling for applications for the establishment of educational institutions. Therefore, even in the absence of a notification issued by a competent authority under Sub-section (1) of Section 20 calling for applications from the educational agencies desirous of establishing educational institutions, it is open to any educational agency to make an application to the State Government for the grant of permission for establishing an educational institution.

36. In this context, the scope and ambit of the power of the State Government in controlling the establishment of educational institutions in the State falls for consideration. The function of providing adequate facilities for imparting general, technical, social and teacher education in the State by establishing and maintaining educational institutions is entrusted to the State Government. For the purpose of performing this statutory function, the State Government may have to necessarily take a decision as to what kind of education has to be given priority, what are the educational needs of a locality or area or of the entire State, as the case may be, and whether educational institutions for imparting a particular kind of education shall be permitted to be established or not.

37. It is submitted by the learned Advocate General appearing for the State Government that the State Government had taken a policy decision, on the basis of all the relevant considerations such as the nature of education, the population, the educational needs of the entire State, the educational standards to be maintained and the unemployment problem faced by the trained B.Ed, graduates, that no new college of education shall be permitted to be established in the State for the time being. He has stated that the State Government wants to weed out the sub-standard colleges of education in the State. In the counter affidavit filed by the Secretary to Government of Andhra Pradesh, Education Department, it has been mentioned that in the year 1988 the State Government had taken a policy decision of granting permission to new B.Ed. colleges only after weeding out unauthorised substandard institutions and also keeping in view of the need and unemployment problem. It has been further mentioned that the same policy decision has been extended thereafter even for the academic year 1990-91. In the order rejecting the application of the writ petitioner it has been stated:

"The Government did not grant permission of any new colleges after 1988, though more thanl30 applications are still pending with the Government. The present in take capacity as fixed by the Government for a college is 160. If permission is granted for all the 130 applicants, the State will be creating more than additional 20,000 seats in the State in B.Ed., sector. This is certainly not in the interest of the unemployed B.Ed., graduates who are already knocking at the doors of the Government for absorption.

The Government is aware of the seriousness and the cabinet laid down its policy on opening of new B.Ed, colleges in August, 1990, after a detailed review of existing facilities. The new policy of the Government did not permit the opening of new B.Ed, colleges in the State.......For the present there is no need and the application of St. Ann's is therefore rejected".

38. Whether new educational institutions for imparting a particular kind of education shall be established or not in the State and if they are to be established whether they shall be established by the State Government itself or they may be permitted to be established by any local authority or by a private body of persons, are matters which have to be decided by the State Government, having regard to an over all assessment of all the relevant considerations, such as the system of education, the priority to be given to a particular kind of education, the educational needs of a particular locality or area or of the entire State as the State Government may determine, the unemployment problem faced by the persons who are trained in a particular branch of education, the need to maintain uniformity in the pattern and standards of education etc.

39. The power of the educational authorities to take a policy decision in the matter of starting of new educational institutions has been upheld by the Supreme Court in State of Maharashtra v. Lok Shikshan Sanstha, in the following terms:

"So long as there is no violation of any fundamental rights and if the principles of natural justice are not offended, it is not for the High Court to lay down the policy that should be adopted by the educational authorities in the matter of granting permission for starting schools. The question of policy is essentially for the State and such policy will depend upon an over all assessment and summary of the requirements of residents of a particular locality and other categories of persons for whom it is essential to provide facilities for education. If the overall assessment is arrived at after a proper classification on a reasonable basis, it is not for the Courts to interfere with the policy leading up to such assessment."

40. The problem of unemployment of trained teachers was accepted by the Supreme Court as a relevant criterion for taking a decision whether an educational institution for imparting teacher education can be permitted to be established or not or whether an institution which is already established can be permitted to hold first year classes in such teacher education, in V. S. V. Mahasangh v. State of Maharashtra, . In that case, the Government of Maharashtra refused by its order dated 31st May, 1985 to grant permission to a number of institutions to hold the first year classes in Diploma in Education (D.Ed.) in the academic year 1985-86. That order was challenged on various grounds. The plea of the State Government was that it would not be desirable and feasible to permit all the 47 D.Ed, colleges to hold first year classes during the year 1985-86. These 47 colleges with 73 divisions can admit 3,000 students which would be far in excess of the requirement of only 600 students and to permit admission of 3,000 students every year will result in a serious consequence of a large scale unemployment. Accepting the plea of the State Government, the Supreme Court stated:

"In view of the averments in the affidavit of the respondents, it is (difficult to accept the contention of the appellant that the impugned order or the policy decision of the Government is arbitrary and unreasonable. There is also no question of interference with the right to education of any citizen, as contended on behalf of the appellant. On the contrary, the Government, in our opinion, has taken the right decision so as to save the youngmen from being exploited. There is no substance in the contention of the appellant that the refusal to grant permission to hold D.Ed, classes for the year 1985-86 will result in unemployment. As pointed out in the affidavit of the respondents, if the permission is granted. there will be a large scale unemployment inasmuch as 3.000 students will be admitted in the first year classes as against the requirement of 616 students". (emphasis is ours)

41. No citizen has a fundamental right to B.Ed, college education. It is stated in the order of rejection of permission that if permission is granted for all the 130 applicants, the State will be creating more than 20,000 additional seats in the B.Ed, sector and that it will be certainly not in the interests of unemployed B.Ed, graduates who are already knocking the doors of the Government for absorption. It is further stated that the State cabinet had taken a policy decision not to permit the opening of new B.Ed, colleges as there was no need. It was also mentioned in the counter affidavit filed on behalf of the State Government that the State Government had taken a policy decision of granting permission to new B.Ed, colleges only after weeding out unauthorised substandard institutions and also keeping in view the need and the unemployment problem. If the State Government had taken a policy decision of not granting permission to new colleges of education for the time being on the basis of the relevant considerations referred to above, such a decision cannot be said to be either arbitrary or unreasonable. It cannot even be said to be violative of any fundamental right or the principles of natural justice.

42. In Andhra Kesari Educational Society Ongole v. Government of Andhra Pradesh, Hyderabad, a Division Bench of this Court referred to the decision of the Supreme Court in State of Maharashtra v. Lok Shikshan Sanstha (12 supra) and also noticed that it would not be proper for the High Court to lay down a policy in the matter of providing educational facilities, if the State had made an over all assessment and arrived at a policy decision after a proper classification on a reasonable basis. However, holding that the need for providing educational facilities to the people in the locality has to be judged in the light of the Directive principles of State Policy enshrined in Part IV of the Constitution, the learned Judges observed:

".........it is clear that the only factor that seems to have weighed with the Government in laying down a policy not to permit opening of new educational institutions as there are 13,066 trained teachers unemployed. But what Clause (a) of Sub-section (3) of Section 20 requires the authorities concerned to take into account is the need for providing educational facilities for the people of the locality. If the people of a particular locality need such educational facilities, the starting of an educational institution can not be denied. If the Government itself intends to start a college, it can of course decide upon a policy not to permit opening of a private college. If, on account of financial constraints or for any other reason, the Government itself is unable to start a college, when there is need to provide educational facilities, it cannot refuse permission to an educational Society or individual citizens, when they come forward to provide educational facilities to the people in the locality. It is the right of every citizen to adopt the profession of teaching or to get himself trained or train teachers for adopting the profession of teaching only he has to obtain permission to establish such an institution. Permission cannot be refused on extraneous grounds or without taking the factors referred to in Section 20(3)."

The above observations made by the learned Judges of the Division Bench run counter to the principles enunciated by the Supreme Court in the decisions referred to above.

43. In a case arising under Section 20 of the Andhra Pradesh Education Act, another Division Bench of this Court made the following observations in Andhra Kesari Educational Society, Ongole v. Government of Andhra Pradesh, 1985 (2) APLJ 77.

"It is well settled that there can be no room for a policy where the matter is governed by law nor can there be any policy at variance with law."

We are referring to these observations as they have been quoted with approval by another Division Bench in Government of Andhra Pradesh v. St. Anthony's Education Society, .

44. The validity of the policy adopted by the State Government that no new colleges of education should be permitted to be started in the academic year 1990-91 was the subject matter of discussion before a Division Bench of this Court in Secretary to Government, Education Department, Government of Andhra Pradesh v. Society for St. Ann's, Mehdipatnam, and in Government of Andhra Pradesh v. St. Anthony's Educational Society, Narasaraopet, . Relying on the provisions of Clause (a) of Sub-section (3) of Section 20 and the earlier decision of a Division Bench of this Court in Andhra Kesari Educational Society, Ongole v. Government of Andhra Pradesh (14 supra) as well as the decision of another Division Bench of this Court in Andhra Kesari Educational Society, Ongole v. Government of Andhra Pradesh, 1985 (2) APLJ 77, the learned Judges held that the policy decision of the State Government that no new colleges of education could be permitted to be started in the academic year 1990-91 runs counter to the legislative policy set out in Section 20 (3) (a) (i), that the educational needs of the people in the locality shall be the criterion and that the need of the locality which is relevant cannot be given a go-bye under the guise of a general executive policy. In other words, it is stated that it is the need of the locality that is relevant rather than the . over all educational needs of the State as a whole.

45. With respect, we are unable to agree with the learned Judges. The need for providing education facilities to the people in the locality mentioned in Sub-clause (i) of Clause (a) of Sub-section (3) of Section 20 is referrable to the educational needs of the locality mentioned in Sub-section (1) of Section 20. After identifying the educational needs of the locality by conducting a survey, competent authority appointed by the State Government shall issue a notification calling for applications for establishing educational institutions. In pursuance of such a notification is an application is made by any educational agency for the grant of permission for the establishment of an educational institution, such an applicant has to satisfy the concerned authority that there is need for providing education facilities to the people in the locality. But if no competent authority has been appointed and no notification has been issued by it calling for applications for establishing an educational institution, the question of applying the criterion of need for providing educational facilities to the people in the locality does not arise. As we have already mentioned the State Government is entrusted with the statutory function of providing educational facilities for imparting different kinds of education in the State either by itself establishing or permitting any local authority or a private body of persons to establish educational institutions and maintain them. In exercise of that power, it is for the State Government to take a policy decision after taking into account all the relevant considerations, as to the need to have the educational institutions established for imparting a particular kind of education in any locality or area or of the entire State as the State Government may deem it necessary. The power conferred on the competent authority under Section 20 (1) to identify the educational needs of a locality under its jurisdiction has to necessarily be read as subject to the overall general power conferred on the State Government under Section 18. The power conferred on the competent authority cannot operate as a restriction on the power of the State Government. To hold otherwise will result in denuding the State Government of the statutory power conferred on it by the legislature for the purpose of implementing the provisions of the Act. Having regard to the object of the legislation and the various provisions of the Act, we are unable to subscribe to the view that the feasibility of establishing an educational institution shall always be decided on the basis of the educational needs of the locality.

46. Therefore, the learned Judges are not correct in holding that the policy decision of the State Government not to permit the opening of new colleges of education in the State is opposed to the legislative policy enunciated in Section 20 of the Act.

47. The view expressed by a Division Bench of this Court in Andhra Kesari Educational Society, v. Government of Andhra Pradesh, Hyderabad (14 supra) that the citizens have a fundamental right to teacher education and that the authorities have to take into account the educational need of a locality for providing educational facilities and if the people of a particular locality have such a need of starting of the institution, they cannot be denied by way of a policy decision taken by the State Government, cannot be held to be good law. In Unni Krishnan's case (11 supra), the Supreme Court held that the Citizens have a fundamental right to primary education up to the age of fourteen years and that they do not have a fundamental right for higher education. We have already explained how a policy decision taken by the State Government under the provisions of the Act after taking into consideration the educational needs of the State as a whole that no new college of education shall be permitted to be established is valid. So also, the decision of another Division Bench in Andhra Kesari Educational Society, Ongole v. Government of Andhra Pradesh (15 supra) that the policy adopted by the State Government that no new college of education shall be permitted to be started cannot be sustained as it is at variance with a legal provision contained in Section 20 (3) (a) (i) cannot be held to be good law for the reasons mentioned above. Therefore, the judgments of the Division Benches in the latter two cases rendered on the basis of the earlier two Division Bench judgments that the policy of the State Government that no new college of education shall be permitted to be established has to be read down consistent with Section 20 (3) (a) do not reflect correct legal position.

48. When an application is made by any educational agency to the State Government for the grant of permission for establishing an educational institution, the State Government may follow the principles underlying Sub-section (3) of Section 20 of the Act in considering the application for. the grant of permission though the provisions of Sub-section (3) of Section 20 strictly speaking, do not apply for such consideration and they apply only where an application is made to the concerned authority pursuant to a notification issued by a competent authority calling for applications from the educational agencies desirous of establishing educational institutions. While the State Government considers the applications, it can take into account not only the need for providing educational facilities to the people in the locality, it can as well take into account the educational needs of the entire State, if the State Government considers it necessary, for the purpose of implementing the provisions of the Act. It is for the State Government to decide whether the educational needs of a locality or area or of the entire State shall be taken into account in considering the applications and such a decision has to be arrived at on the basis of all the relevant factors.

49. If the State Government takes a policy decision in the exercise of the statutory power vested in it under Section 18 as regards the establishment of educational institutions in the State on the basis of relevant considerations referred to above, and such a policy decision is not opposed to either fundamental rights or principles of natural justice and it is not found to be otherwise unreasonable or arbitrary, such a policy decision shall not generally be interfered with by the Courts. It will not be possible to lay down precise principles for testing the validity of a policy decision taken by the State Government. It depends upon the facts and circumstances of the case subject to the general principles referred to by us supra.

50. The need for providing educational facilities to the people in the locality, contemplated under Section 20 (3) (a) (i) has to be understood in the context of the educational needs of the locality identified by the competent authority under Sub-section (1) of Section 20. Even in a case where the educational needs of a locality have been identified by a competent authority, the need for providing educational facilities to the people in the locality shall be subject to the policy decision, if any, taken by the State Government in that regard in exercise of its power under Section 18 of the Act. If a competent authority has either not been appointed or after appointment it has not issued any notification calling for applications for establishing educational institutions as contemplated under Sub-section (1) of Section 20,even then, it is open to any educational agency to apply to the State Government for the grant of permission for establishing an educational institution. In such a case, it is for the State Government to pass appropriate orders on the application submitted to it, on the basis of the principles underlying Sub-section (3) of Section 20 and the policy decision, if any, taken by it as regards the need. But, the State Government has to take appropriate decision having regard to the relevant criteria, whether the educational needs of the locality or of the area or of the entire State shall be taken into account.

51. It is, however, contended by the learned counsel appearing for the proposed institutions that if a competent authority had already identified the educational needs of the locality under its jurisdiction and issued a notification calling for applications for establishing educational institutions, where is the need for the applicant to again satisfy the authority concerned about the need for providing educational facilities to the people in the locality. We have to bear in mind that the authority vested with the power to grant permission for establishing an educational institution is different from the competent authority. The identification of the educational needs of the locality by a competent authority is not conclusive proof of the need. It is the satisfaction, about the need, of the authority concerned which disposes of the application for the grant of permission, that is necessary. Unless such authority is satisfied, no permission can be granted.

52. Observations made in the decision in Vijaya Memorial Educational Association, Kurnool, v. State of Andhra Pradesh , 1989 (3) ALT 279 by a learned Judge of this Court, contrary to what we have stated are not correct.

53. It is, however, contended by the learned counsel appearing for the minority institutions that the religious or linguistic minorities which have been guaranteed a fundamental right under Article 30 (1) of the Constitution to establish and administer educational institutions of their choice can establish any educational institution without seeking permission for such establishment as required under Section 20 of the Act. They submit that the policy decision taken by the State Government not to permit any educational agency including a religious or linguistic minority to establish a college of education in the State deprives the minorities of their fundamental right and therefore, the policy decision of the State Government is unconstitutional. We have to decide whether a minority community is bound by the policy decision taken by the State Government that no new college of education shall be permitted to be established. In Mother Provincial case (3supra), accident principle was enunciated by the Supreme Court that a minority institution was bound to follow the general pattern and it can be "compelled to keep in step with others." It was specifically pointed out that even in the matter of establishing and administering educational institutions by the minorities, the right of the State to regulate education, educational standards and allied matters cannot be denied. These principles were reiterated by a Constitution Bench of the Supreme Court in St. Stephen's College's case (10 supra). It has been explained by another Constitution Bench of the Supreme Court in the latest Unni Krishnan's case (11 supra) that it is the primary function of the State to provide education to the people and to create necessary facilities for that purpose. The role of the private educational institutions including the minority educational institutions has been characterised as the one merely intended to supplement the activity of the State and that theirs is not an independent activity. In St. Xnviers College's case (4 supra) Justice Khanna has made a pertinent observation that" the idea of giving special rights to the minorities it not to have a kind of a privileged or pampered section of the population but to give to the minorities a sense of security and a feeling of confidence." The learned Judge further elaborated that "the special rights for minorities were designed not to create inequality and that the differential treatment for the minorities by giving them special rights is intended to bring about an equilibrium". This reasoning is based on the principle that in a system of adult franchise, the majority does not need any protection and it can look after itself and protect its interests. It is only the minority who need protection and therefore they have been guaranteed a right under Article 30 (1) of the Constitution. In Bihar Christian Schools Association's case (8 supra) the Supreme Court held that the minorities could not claim any immunity from the law of the land and upholding such claim would be unreasonable and against the interest of the minority institutions themselves.

54. It is commended by the learned Advocate General for our acceptance, that the State Government as the controlling authority in the matter of education, had taken the policy decision in the interest of students and trained teachers, having regard to the educational needs in respect of teacher education in the State, the unemployment of the trained teachers and the maintenance of educational standards. He has laid stress on the fact that the B.Ed., Course is a career-oriented one, unlike a degree in Arts or Sciences and therefore, in the interest of the students, Government has taken appropriate decision. When no educational agency in the State is permitted to establish a college of education pursuant to the policy decision of the State Government, it is contended that a minority community can be compelled to keep in step with others, as otherwise the very purpose of the policy decision taken by the State Government as the controlling and regulating authority in respect of education, will be defeated and a state of inequilibrium and inequality will be created. When a minority community joins the main stream of national life in the pursuit of general, or professional education for its members, it must abide by the policy decision taken by the State Government in the public interest.

55. Any religious or linguistic minority can establish and administer an educational institutions of its choice and impart education to the students. It can conduct examinations and award certificates. But, as pointed out by the Supreme Court in Unni Krishnan 's case (11 supra), such an educational institution has no right to insist that the certifcates or degrees awarded by it should be recognised by the State. Such an institution which has not obtained recognition /affiliation cannot request educational authorities to permit the students to appear for the examinations conducted either by the University or the State Government or any other authority. As pointed out by Justice Mohan in Unni Krishnan's case (11 supra), the right to establish and run an educational institution "with the State's recognition arises only on the State permitting, pursuant to a policy decision or on the fulfilment of the conditions of the Statute." Justice Jeevan Reddy has held in his separate judgment that no private educational institutions can survive or subsist without recognition and or affiliation. Unless an educational institution has been granted recognition by the concerned authority under Section 21 of the Act and affiliated to the University under the Universities Act, the students trained by such an institution cannot be permitted to appear for the examinations conducted either by the State Government or the University. No educational institution in this country can award degrees except a University. Therefore, an educational institution which has been established by any educational agency including a religious or linguistic minority for the purpose of imparting general, secular education, and which has not been granted recognition/affiliation, becomes an ineffective institution serving no purpose at all. On the other hand, if the institution is meant exclusively for imparting instructions either in the religious tenets or for teaching the language of a particular minority concerned, no permission need be obtained for establishing such an institution, under Section 20 of the Act as is specifically provided in the Andhra Pradesh Minority Educational Institutions Rules, 1988.

56. Regulations which serve the interests of the students and teachers and preserve uniformity in general pattern and standards of education are held to be valid. Even a minority institution cannot claim immunity from preserving such uniformity in general pattern and standards of education and following the general laws of the land. The provisions of the Act and the rules made thereunder relating to the establisment of educational institutions are designed to ensure that an institution which is permitted to be established serves the educational needs of a locality or area or of the entire State, as the case may be, and is well equipped to serve the need. The right to establish and run an educational institution with the State's recognition arises only on the State permiting the establishment of an educational institution pursuant to its policy decision and fulfilment of the statutory conditions.

57. Any regulation made for achieving the goal of making the institution an effective vehicle of education for the minority community or other persons who resort to it cannot be considered as the one impinging upon the right guaranteed under Article 30 (1) of the Constitution. If on an overall assessment of the educational needs of the State in respect of college education for teachers and in the interest of the students and the trained teachers, the maintenance of uniformity in the pattern and the standards of education, the State as controlling authority in the matter of education has taken a policy decision that no college of education shall be permitted to be established, such a policy decision binds not only the non-minorities but also the minorities as well. Otherwise, it will create an imbalance in the society and the power of the State of regulate education will lose its purpose and significance. An educational institution which does not effectively serve any educational need cannot be described as an effective vehicle of education whether it be an institution of the minorities or of the non-minorities. The educational needs either of a locality or of an area or of the entire State are determined more from the point of view of the effective utility of the educational institutions themselves rather than the general societal interest. Therefore, if it is insisted that any educational agency including a minority community which is desirous of establishing an educational institution, shall satisfy the concerned authority before permission is granted that there is need for providing educational facilities to the people, such a pre-condition cannot be said to be invalid. It can be construed as a regulatory measure which is outside the michief of Article 30 (1). When the State Government has taken a policy decision after taking into account all relevant considerations that there is no need to establish an institution for imparting a particular kind of education, the State Government cannot be compelled to grant recognition for such an institution under Section 21, even if such an institution is established by a religious or linguistic minority. In the absence of recognition, an institution established even by a religious or linguistic minority cannot effectively function and it will not be able to serve the interests of even the minorities. Therefore, the very establishment of the institution will be an empty formality. Viewed in this background , it is difficult to say that the right guaranteed under Article 30 (1) has been violated, even according to the wider interpretation given in some of the decisions.

58. A similar question as to whether a Christian Minority had an unrestricted right to establish an educational institution of its choice without reference to the provisions of the Andhra Pradesh Education Act, 1982, came up for consideration before a Division Bench of this Court in Andhra Kesari Educational Society v. Government of Andhra Pradesh, 1987 (2) APLJ 374. The learned Judges answered the question in the negative in the following terms:

"In this State , A.P. Education Act, 1982 regulates the establishment of educational institutions. Section 20 says that anyone seeking to establish an educational institution has to apply to the prescribed authority for such permission. On receiving such an application, the Authority shall examine the matter in the light of the need of the locality. This aspect assumes importance in the cases of professional colleges like Medical and Engineering Colleges, or even Colleges of Education with respect to which category there has been a good amount of litigation in this Court in recent times. Suppose the need is adjudged to be only for a college with 100 seats and, say, four minority institutions and four non-minority institutions (to use a convenient expression) apply for it, each proposing to have 100 seats. Can it be said that minority institutions have an unrestricted right to establish or that they are not governed by Section 20? If this is so, does the law apply only to non-minority institutions? The answer can only be one viz., that the right of establishing an institution given to minorities under Article 30 is subject to the relevant statutory provisions. (Even here, problems may arise. Suppose permission is given to a minority institutions with 100) seats. If such institution says, 'I don't want your aid, I will admit students of only my community'. What should happen to members of other minorities and the majority community? Should each of them be permitted one college and if so, what happens to the criteria of 'need'?). So long as such a statute does not discriminate against minorities on the ground of language or religions, it has to be followed. In short, minorities do not have an unrestricted or preferential right to establish educational institutions of their choice. They can do so only in accordance with the law for the time being in force. Even in the matter of maintaining and running an educational institution, the right given by Article 30 is not unqualified 01 unrestricted.............."

59. Before a Full Bench of the Kerala High Court a similar question was the subject matter of debate Fr. Mathew Munthriil Chinthyil Vicar, St. Mary's Church Anikkampoil v. State of Kerala, . In that case, the validity of the Kerala Education Rules placing restriction on the opening of new schools and upgrading of existing schools was questioned. One of the contentions advanced before the Full Bench on behalf of the minority communities was that the rules placed unwarranted fetters and restrictions on the absolute right of the minorities to establish educational institutions of their choice. Repelling the contention, the Full Bench held:

"The argument is attractive; but we are afraid, should break down on an analysis. That the right is not absolute and unqualified, but one capable of regulation in the method and manner of its exercise, is now beyond dispute. In the course, of the argument, we had asked the petitioner's counsel whether the minorities would claim a right to establish educational institutions whenever and wherever demanded. Although with hesitation, petitioner's counsel was obliged to admit that his extreme right cannot be maintained. We think too, that such an extreme position entitling the minority to ask, and to be given, the educational institutions, wherever it wants to establish, at any moment when the cry is raised is not the scope and the content of Article 30. Regulation of the right in time as well as in space, must, it appears, be permissible. Rule 2 seems to provide for nothing more than such a regulation........We cannot, therefore, in the nature of things, regard R.2 as passing beyond the pale of permissible regulations and trenched on the offending sphere of restrictions on the fundamental right. We are of the opinion, that the Rule is well within the border land of regulation of the right sanctioned by judicial decisions."

60. There is yet another aspect which requires close scrutiny. The State Government made Andhra Pradesh Minority Educational Institutions (Establishment, Recognition and Regulation) Rules, 1988, in the exercise of the power conferred by Section 99 of the Andhra Pradesh Education Act, 1982. These rules apply to all the education institutions in the State which are managed by the minority communities both religious and linguistic. In G.O.Ms.No. 12, Education (Rules), dated January 11,1989, the Cabinet Sub-Committee on Minorities is prescribed to be the recognition authority. It is empowered to accord recognition to the educational institution and issue a Certificate of Recognition as minority educational institution. Any private educational institution established and administered by a minority whether based on religion or language is entitled to be recognised as a minority educational institution on the basis of the guidelines laid down under the rules. Educational agencies desirous of obtaining recognition can make an application under Rule 5 to the recognition authority. Rule 7 clearly provides that a minority community (religious or linguistic) is entitled to establish an educational institution without seeking any permission if such institution is meant exclusively for imparting instructions in religious tenets or teaching of the language of the minority concerned. In all other cases, the minority communities are entitled to establish educational institutions only in accordance with the provisions of the Andhra Pradesh Education Act and the Rules made thereunder.

61. Both the minorities before us applied for recognition under the rules as minority educational institutions. In the case of the writ petitioner the application was rejected by the Cabinet Sub-Committee by an order dated April 26,1991. This order has been challenged by the petitioner in Writ Petition No. 7133 of 1991 and it is still pending. So far as the writ appellant is concerned, it is stated that the application submitted by it for recognition is still pending.

62. In A.P. Christian Medical Educational Society vs Government of Andhra Pradesh (6 supra) a three-Judge Bench of the Supreme Court repelled the contention advanced on behalf of the Andhra Pradesh Christian Medical Educational Society that neither the Government nor the University could deny its right to establish a minority institution at the very threshold and held that the Government, the University and ultimately the Court had the undoubted right to pierce the 'minority veil' and discover whether there was a lurking behind it no minority at all and in any case, no minority institution. Rule 4 of the Andhra Pradesh Minority Educational Institutions Rules, 1988, lays down the criteria for determining whether a particular institution is a minority educational institution or not. Under the Rules, the concerned authority can enquire into and find out whether the proposed institution, is in fact, a minority institution or not. Reiterating the principles laid down by the Supreme Court in A.P. Christian Medical Educational Society (6 supra) the Constitution Bench observed in St. Stephen's case (10 supra):

"that there must exist some positive index to enable the educational institution to be identified with religious or linguistic minorities. Article 30 (1) is a protective measure only for the benefit of religious and linguistic minorities and it is essential to make it absolutely clear that no ill-fit or camouflaged institution should get away with the constitutional protection."

In the prefatory remarks Justice Jagannatha Shetty, speaking for himself and three other learned Judges, pointed out that the words. "Establish" and "administer" used in Article 30(1) are to be read conjunctively. It was emphasised that the right claimed by a minority community to administer the educational institution depends upon the proof of establishment of the institution. The writ petition and the appellant have yet to obtain recognition from the competent authority to establish the minority character of the educational institutions proposed to the established by them.

63. For the reasons stated above, we hold that a minority community is bound by the provisions of the Andhra Pradesh Education Act, 1982 and the Rules made thereunder which regulate the establishment and administration of educational institutions and they are also bound by the policy decisions, if any, taken by the State Government regarding the educational needs of any locality or area or of the entire State, as the case may be, unless such a policy decision is held to be invalid.

64. The Andhra Pradesh Education (Amendment) Act 27 of 1987 has brought about substantial change in the making of applications by educational agencies for the grant of permission for establishing educational institutions and their consideration by the concerned authority. Prior to the amendment any local authority or any person or registered body of persons was entitled to make an application for the grant of permission for establishing an educational institution. On receipt of the application it was for the concerned authority to pass appropriate orders, having due regard to the criteria laid down in Sub-section (3) prior to its amendment. But, the amended provisions provide that an educational agency can make an application for the grant of permission for establishing an educational institution pursuant to a notification issued by the competent authority calling for applications. After the making of the application, it is for the educational agency to satisfy the concerned authority that there is need for providing educational facilities to the people in the locality. One of the questions referred to the Full Bench, as we understand, is whether an application made prior to the amendment of Section 20 and pending on the date the Amendment Act came into force shall be disposed of in accordance with either pre-amended law or amended law. No educational agency has a vested right to the grant of permission for establishing an educational institution nor can it claim a vested right to have its application for the grant of permission dealt with in a particular way, following a particular procedure. In a case arising under the Tamil Nadu Minor Mineral Concession Rules, 1959, the Supreme Court dealt with a somewhat similar question in State of Tamil Nadu v. Hindu Stone, AIR 1987 SC 711. In that case, applications were made for renewal of quarry lease long before commencement of Rule 8 (c) of the Minor Mineral Concession Rules and they were disposed of in accordance with Rule 8 (c) after its commencement. Repelling the contention advanced on behalf of the applicants that the applications should have been disposed of in accordance with the per-amended law, the learned judges of the Supreme Court held:

"No one has a vested right to the grant of renewal of a lease and none can claim a vested right to have an application for the grant of renewal of a lease dealt with in a particular way by applying particular provisions. In the absence of any vested rights in anyone, an application for a lease has necessarily to be dealt with according to the rule in force on the date of the disposal of the application despite the fact that there is a long delay since the making of the application."

To same effect is the decision of a Division Bench of this Court dated February 12,1993 in Writ Petition No. 12953 of 1992 and batch, wherein it was held that the applications for admission to M.B.B.S. course shall be considered in accordance with the rules in force on the date of consideration of the applications. Following those decisions, we hold that all applications submitted by the educational agencies for the grant of permission for establishing educational institutions, and pending on the date the Amending Act 27 of 1987 came into force, shall be considered and disposed of in accordance with the law in force on the date of consideration of such applications including the policy decision, if any, taken by the State Government, in that regard and in force on the date of such consideration.

65. Therefore, questions 1,2,3, and 4 are answered as follows:

(1) Even in the absence of a notification issued by a competent authority under Sub-section (1) of Section 20 of Andhra Pradesh Education Act, 1982 calling for applications from the educational agencies desirous of establishing educational institutions, it is open to any educational agency including a religious or linguistic minority, to make an application to the State Government for the grant of permission for establishing an educational institution.

(2) It is for the State Government to decide whether the educational needs of a locality or area or of the entire State shall be taken into account in considering the applications. Even in a case where the educational needs of a locality have been identified by a competent authority under Sub-section (1) of Section 20 of the Act, the need for providing educational facilities to the people in the locality comtemplated under Sub-clause (i) of Clause (a) of Sub-section (3) of Section 20 of the Act, shall be subject to the policy decision, if any, taken by the State Government in that regard in exercise of its power under Section 18 of the Act.

(3) All applications submitted by the educational agencies for the grant of permission for establishing educational institutions and pending on the date the Amending Act No. 27 of 1987 came into force, shall be considered and disposed of in accordance with law in force on the date of consideration of such applications including the policy decision, if any, taken by the State Government in that regard and in force on the date of such consideration.

(4) If the State Government takes a policy decision in the exercise of statutory power vested in it under Section 18 as regards the establishment of educational institutions in the State, on the basis of the relevant considerations referred to in the judgment, and such a policy decision is not opposed to either fundamental rights or principles of natural justice and is not found otherwise unreasonable or arbitrary, such a policy decision shall not generally be interfered with by the Courts. It will not be possible to lay down precise principles for testing the validity pi a policy decision taken by the State Government. It depends upon the facts and circumstances of each case, subject to the general principles referred to by us.

66. For the aforesaid reasons, we hold that the decisions of this Court in:

(1) Andhra Kesari Educational Society, Ongole v. Government of Andhra Pradesh, Hyderabad (14 supra);

(2) Andhra Kesari Educational Society, Ongole v. Government of Andhra Pradesh, Hyderabad (15 supra);

(3) Secretary to Government, Education Department, Government of Andhra Pradesh v. Society for St. Ann's Medhipatnam (17 surpa);

(4) Government of Andhra Pradesh v. St. Anthony's Educational Society (16 supra); and (5) Vijaya Memorial Educational Association, Kurnool, v. State of Andhra Pradesh (18 supra) in so far (as) they are contrary to the principles laid down by us in this judgment, do not lay down correct law and to that extent they are overruled.

67. The writ petition and the writ appeal shall be posted before a Division Bench for disposal.

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