Madhya Pradesh High Court
Icon Education Society Thr. Shri ... vs Technical Education Department on 19 November, 2020
Author: S. C. Sharma
Bench: Shailendra Shukla, S. C. Sharma
Writ Petition No.9690/2020
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HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
Division Bench : HON'BLE MR. JUSTICE S. C. SHARMA AND
HON'BLE MR. JUSTICE SHAILENDRA SHUKLA
Writ Petition No.9690/2020
Icon Education Society
Versus
State of Madhya Pradesh and Others
Mr. S. C. Bagadia, learned Senior Counsel with
Mr. Rohit Saboo, learned counsel for the
petitioner.
Mr. Vivek Dalal, learned Additional Advocate
General with Ms. Kirti Patwardhan, learned
Panel Lawyer for the respondent / State.
Ms. Shraddha Dixit, learned counsel for the
respondent No.2 and 3.
O R D E R
(Delivered on this 19th November, 2020) Per S. C. Sharma, J.:
The petitioner before this Court Icon Education Society has filed this present petition being aggrieved by letter dated 14/11/2019 issued by Admission and Fee Regulatory Committee, State of Madhya Pradesh, order dated 10/01/2020 passed in Appeal No.189/2019 by Appellate Authority, Admission and Fee Regulatory Committee and order dated 06/03/2020 passed in Review/02/2020 by Appellate Authority, Admission and Fee Regulatory Committee.
02- The petitioner's contention is that the petitioner Society is a Society registered under the provisions of Madhya Pradesh Society Registrikaran Adhiniyam, 1973 and is running educational Institutions in Writ Petition No.9690/2020 -2- the name and style of Indore Institute of Law, Indore Nursing College and Idyllic Institute of Management. The petitioner has further stated that a certificate has been granted by Backward Classes and Minority Welfare Department, Government of Madhya Pradesh declaring the petitioner as Minority Educational Institute. The certificate was granted on 27/05/2015.
03- It has been further stated that Indore Institute of Law and Indore Nursing College were also declared as Minority Education Institute under Section 2(g) of National Commission for Minorities Educational Institutions, 2004 and the Colleges are entitled for all the privileges and benefits as declared by the National Commission for Minority Educational Institutes and the Government of Madhya Pradesh from time to time.
04- The petitioner has further stated that vide letter dated 08/07/2019 and 24/07/2019, the respondent No.2 directed the petitioner to submit details enabling the respondent No.2 to determine the tuition fees for the academic year 2019-20, 2020-21 and 2021-22 and the petitioner submitted a reply on 31/07/2019 stating that the petitioner is a private unaided Minority Educational Institution and does not fall within the jurisdiction of Madhya Pradesh Niji Vyavasayik Shikshan Sanstha (Pravesh Ka Viniyaman Avam Shulk Ka Nirdharan) Adhiniyam, 2007 (hereinafter referred to as "Act of 2007") 05- The petitioner's contention is that the petitioner Institute being a Minority Institute does not fall within the purview of Act of 2007 Writ Petition No.9690/2020 -3- keeping in view the law laid down by Hon'ble Supreme Court in the case of T.M.A. Pai Foundation and Others Vs. State of Karnataka and Others reported in (2002) 8 SCC 481 and inspite of the aforesaid the respondent No.2 has rejected the representation of the petitioner by an order dated 14/11/2019.
06- It has been further stated that an appeal was preferred under Section 10 of the Act of 2007 against order dated 14/11/2019 and the Appellate Authority has rejected the appeal by an order dated 10/01/2020. A review petition was also preferred in the matter and the Appellate Authority has dismissed the review petition by an order dated 06/03/2020.
07- The petitioner has challenged all the three orders passed in the matter and heavy reliance has been placed in the cases of Islamic Academy of Education and Another Vs. Sate of Karnataka and Others reported in (2003) 6 SCC 697 and Uttar Pradesh Power Corporation Limited Vs. Ayodhya Prasad Mishra and Another reported in (2008) 10 SCC 139.
08- Learned Senior Counsel for the petitioner has also argued before this Court that in the State of Uttarakhand, the law governing the field exempts Minority Institutions in the matter of fixation of fee i.e. Uttarakhand Unaided Private Professional Education Institution (Regulation of Admission and Fixation of Fee) (Amendment) Act, 2018 and similarly in Uttar Pradesh, Uttar Pradesh Private Professional Educational Institutions (Regulation of Admission and Fixation of Fee) Writ Petition No.9690/2020 -4- Act, 2006 is applicable to private aided and unaided professional Institutions except Minority Educational Institutions and therefore, in the State of Madhya Pradesh also the Minority Educational Institutions are excluded from the Act of 2007.
09- He has drawn the attention of this Court towards Section 8 of the Act of 2007 which provides for reservation of seats in admission to private unaided professional educations Institutions other than the Minority Educational Institutions. The petitioner's contention is that Minority Education Institutions have a right to fix their own fees and by judicial practice of reading down a statute to save it from unconstitutionality, Section 9 of the Act of 2007 has to be read down, if it is not to be declared as ultra vires.
10- Reliance has been placed upon a judgment delivered in the case of Sri Indra Das Vs. State of Assam reported in 2011 (3) SCC
380. Learned Senior Counsel has vehemently argued before this Court that Institution being a Minority Education Institute does not fall within the purview of Act of 2007 and the Appellate Authority has committed an error in overlooking the law laid down by the Hon'ble Supreme Court in the case of Islamic Academy of Education (Supra). The petitioner has prayed for the following reliefs:-
"(a) That, a writ, direction or order in the nature of mandamus or as deemed fit be issued to exempt petitioner Society being a Minority Educational Institute from the application of Section 9 of M. P. Niji Vyavasayik Shikshan Snastha (Pravesh Ka Viniyaman Avam Shulk Ka Nirdharan) Adhiniyam, 2007;
(b) That, a writ, direction or order in the nature of mandamus or as deemed fit be issued thereby permitting the petitioner to Writ Petition No.9690/2020 -5- fix its own fees to run the institute; and
(c) Any other relief which this Hon'ble Court deems fit be issued in favour of the petitioner Society.
(d) This petition may kindly be allowed with costs."
11- A detailed and exhaustive reply has been filed in the matter on behalf of the State of Madhya Pradesh and the respondent State has stated that the petitioner is not challenging constitutional validity of Section 4 and 9 of the Act of 2007 and once the Act is in existence, which does not include Minority Educational Institutions, the question of taking out the Minority Educational Institutions from the purview of the Act of 2007 does not arise.
12- It has been stated that the matter regarding fixation of fee under the Act of 2007 has been considered by the Hon'ble Supreme Court in the case of Modern Dental College and Research Centre and Others Vs. State of Madhya Pradesh and Others reported in (2016) 7 SCC 353. In the aforesaid case, constitutional validity of the aforesaid Act was under challenge and in the aforesaid case Hon'ble Supreme Court has turned down the plea raised by the Medical College upholding the constitutional validity of the Act.
13- The respondents have also stated that the State Legislature has enacted Madhya Pradesh Niji Vyavasayik Shikshan Sanstha (Pravesh Ka Viniyaman Avam Shulk Ka Nirdharan) Adhiniyam, 2007 to provide for the regulation of admission and fixation of fees in private professional educational Institutions in the State of Madhya Pradesh and to provide for reservation of seats to persons belonging to SC, ST and Writ Petition No.9690/2020 -6- OBC in professional Institutes and the matters connected therewith and incident to.
14- It has been stated that Act has been enacted keeping in view the observations made by the Hon'ble Supreme Court and the directions issued in the cases of T.M.A. Pai Foundation and Others Vs. State of Karnataka and Others reported in (2002) 8 SCC 481, Islamic Academy of Education and Another Vs. Sate of Karnataka and Others reported in (2003) 6 SCC 697 and P. A. Inamdar Vs. State of Maharashtra and Others reported in (2005) 6 SCC 537.
15- The respondents have further stated that the petitioner has challenged the validity of Section 9 of the Act of 2007 and the constitutional validity of an Act can be challenged on two grounds (a) Lack of legislative competence; and (b) Violative of Fundamental Rights enshrined under Part III of the Constitution of India. Reliance has been placed upon a judgment delivered in the case of State of Bihar Vs. Bihar Distillery reported in (1997) 2 SCC 453.
16- It has been further contended that Section 4 of the Act of 2007 elucidates constitution, composition, disqualification and functions of the Admission and Fee Regulatory Committee. The Committee is constituted for admission and fee regulation so that there is supervision and guidance for the purpose of admission process and fixation of fee to be charged from the candidates seeking admission in private professional educational Institution.
17- It has been further stated that Clause 4(8) provides that Writ Petition No.9690/2020 -7- Committee may require a private aided or unaided professional educational Institute or deemed University to furnish by a prescribed date, information as may be necessary for enabling the Committee to determine the fee that may be charged by Institution in respect of each professional course.
18- It has been further stated that Section 9 of the Act elucidates the factors which are to be considered while determining the fee and Clause 2 of Section 9 provides for grant of an opportunity to the Institution in the matter of fixation of fee. It has been further contended that the statutory provisions as contained under the Act of 2007 have been framed keeping in view the law laid down in the case of T. M. A. Pai Foundation (Supra). It has been stated that enactment does not lack legislative competence, on the contrary it has been enacted keeping in view the law laid down by the Hon'ble Supreme Court from time to time. It has also been stated that the Act of 2007 is not at all violative of fundamental right enshrined under Part III of the Constitution of India.
19- Learned counsel appearing on behalf of the State Government has vehemently argued before this Court in case arguments canvassed by the petitioner are accepted, it will result in anarchy. The minority Institutions will be charging fees as per their own discretion.
20- It has also been argued that in the matter of implementation of Right of Children to Free and Compulsory Education Act, 2009, when Writ Petition No.9690/2020 -8- the State was enforcing the Act throughout the State of Madhya Pradesh, large number of Institutions have changed their composition by including persons belonging to minority in the governing body. Their constitution was changed only to overcome the Right to Education Act.
Learned counsel has also argued that in the township of Indore most of the prestigious Institutions are now having minority status and it has been done only with a view to circumvent the provisions under the Right to Education Act.
21- It has been stated that now the petitioner, who is a Minority Institution, in order to overcome the statutory provisions and the regulations under the Act of 2007 is raising all hue and cry and it is only the Fee Regulatory Committee which is entitled to fix the fee keeping in view the Act of 2007. Learned counsel has argued before this Court that the wisdom of the other States in enacting the legislature cannot be looked into in the present case. If some States are providing some benefits to Minority Institution it cannot be extended in the State of Madhya Pradesh and in the State of Madhya Pradesh statutes are being made keeping in view the law laid down by the Hon'ble Supreme Court from time to time. It has been further contended that the present petition is a frivolous petition and no relief can be granted to the petitioner in the peculiar facts and circumstances of the case.
22- A rejoinder has also been filed by the petitioner and it has been stated that the judgment delivered in the case of Modern Dental College and Research Centre (Supra), in which constitutional validity Writ Petition No.9690/2020 -9- of the Act of 2007 has been upheld, does not relate to the issue in the matter of fixation of fee and in the State of Uttarakhand and State of Uttar Pradesh unaided minority Institutions are exempted from the regulatory control. Reliance has been again placed upon a judgment delivered in the case of Islamic Academy of Education (Supra) and a prayer has been made to allow the writ petition.
23- Learned counsel for the respondent No.2 and 3 has also vehemently argued before this Court that the action taken against the petitioner is in consonance with the statutory provisions governing the field and the same arguments, which have been canvassed by learned counsel for the State Government, have been canvassed by learned counsel for the respondents No.2 and 3.
24- There is a rejoinder also to the reply filed by respondents No.2 and 3 and it has been reiterated that the petitioner's case is of an unaided Minority Institution and it does not fall within the scope and ambit of Act of 2007.
25- Heard learned counsel for the parties at length and perused the record. The matter is being disposed of at motion hearing stage itself with the consent of the parties.
26- The petitioners before this has filed this present petition being aggrieved by letter dated 14/11/2019 issued by Admission and Fee Regulatory Committee, State of Madhya Pradesh, order dated 10/01/2020 passed in Appeal No.189/2019 by Appellate Authority, Admission and Fee Regulatory Committee and order dated 06/03/2020 Writ Petition No.9690/2020
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passed in Review/02/2020 by Appellate Authority, Admission and Fee Regulatory Committee under the provisions of Act of 2007.
27- The Act of 2007 has been enacted to ensure that unreasonable fee structure is not in existence in the private Institutions in the State of Madhya Pradesh and the fee charged is not exorbitant and various checks and balances have been provided under the Act of 2007 to ensure that unaided Institutions does not enjoy an unfettered powers in the matter of fixation of fees.
28- Section 2(a) and Section 2(b) of the Act of 2007 reads as under:-
"2(a) institutions deemed to be universities, or constituent units thereto, imparting professional education, other than those promoted and maintained by the Central or State Government; and 2(b) the private unaided professional educational institutions affiliated to a university established under the Central or Madhya Pradesh Act."
Section 3(h) and Section 3(i) of the Act of 2007 reads as under:-
"3(h) "minority" means a minority defined under Section 2 (I) of the National Commission for Minority Educational Institution Act, 2004 (2 of 2005);
3(i) "minority institution" means an institution imparting professional education, established and administrated by a minority;"
The aforesaid statutory provisions of law under the Act of 2007 makes it very clear that the Act is applicable to Minority Institutions also. The Act deals with process of admission, fixation of fees and other miscellaneous provisions.
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29- The petitioner before this Court vide letter dated 08/07/2019 and 24/07/2019 was directed to furnish details enabling the Fee Regulatory Committee to fix tuition fees for the year 2019-20, 2020-21 and 2021-22 and the petitioner instead of furnishing the details submitted a representation on 31/07/2019 stating that the petitioner is a private unaided Minority Institution. The Act does not provide for any exemption as prayed by the petitioner and an order was passed rejecting the preliminary objection raised by the petitioner on 14/11/2019.
30- The petitioner preferred an appeal under Section 110 of the Act of 2007 and the Appellate Authority has rejected the appeal by an order dated 10/01/2020, thereafter, the petitioner has preferred a review petition and the same has been dismissed by the Appellate Authority by an order dated 03/03/2020. The petitioner's contention is that the Act of 2007 is not applicable in respect of Minority Institution.
31- The aim and object of the Act is to ensure that the private Institutions in the State of Madhya Pradesh do not charge exorbitant fee, capitation fee and in respect of all private Institutions a uniform formula is being adopted whether it is Minority Institution or not in the matter of fixation of fees.
32- In the present case, much has been argued over the legislature competence of the State of Madhya Pradesh in enacting the statute. The power to enact the statute has been derived by the State Government from List II of the Seventh Schedule of the Constitution of Writ Petition No.9690/2020
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India and in no way it can be said to be violative of Article 14 of the Constitution of India as argued by learned counsel.
33- In the case of State of Bihar Vs. Bihar Distillery (Supra), the apex Court has held as under:-
"The approach of the Court, while examining the challenge to the constitutionality of an enactment, is to start with the presumption of constitutionality. The Court should try to sustain its validity to the extent possible. It should strike down the enactment only when it is not possible to sustain it. The Court should not approach the enactment with a view to pick holes or to search for defects of drafting, much less inexactitude of language employed. Indeed, any such defects of drafting should be ironed out as part of the attempt to sustain the validity/constitutionality of the enactment. After all, an Act made by the Legislature represents the will of the people and that cannot be lightly interfered with. The unconstitutionality must be plainly and clearly established before an enactment is declared as void. The same approach holds good while ascertaining the intent and purpose of an enactment or its scope and application.
The Court must recognize the fundamental nature and importance of legislative process and accord due regard and deference to it, just as the Legislature and the Executive are expected to show due regard and deference to the Judiciary. It cannot also be forgotten that our constitution recognizes and gives effect to the concept of equality between the three wings of the State and the concept of 'checks and balances' inherent in such scheme."
In light of the aforesaid law laid down by the apex Court as 'checks and balances' have been provided by virtue of Act of 2007, it can never be said to be unconstitutional.
34- The Hon'ble Supreme Court in the case of T.M.A. Pai Foundation and Others (Supra). Paragraphs No.107 of the aforesaid judgment reads as under:-
"107. The aforesaid decision does indicate that the right under Article 30(1) is not so absolute as to prevent the government from making any regulation whatsoever. As already noted hereinabove, in Sidhajbhai Sabhai's case, it was laid down that regulations made in the true interests of efficiency of instruction, discipline, health, sanitation, morality and public order could be imposed. If this is so, Writ Petition No.9690/2020
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it is difficult to appreciate how the government can be prevented from framing regulations that are in the national interest, as it seems to be indicated in the passage quoted hereinabove. Any regulation framed in the national interest must necessarily apply to all educational institutions, whether run by the majority or the minority. Such a limitation must necessarily be read into Article 30. The right under Article 30(1) cannot be such as to override the national interest or to prevent the government from framing regulations in that behalf. It is, of course, true that government regulations cannot destroy the minority character of the institution or make the right to establish and administer a mere illusion; but the right under Article 30 is not so absolute as to be above the law. It will further be seen that in Sidhajbhai Sabhai's case, no reference was made to Article 29(2) of the Constitution. This decision,therefore, cannot be an authority for the proposition canvassed before us."
In light of the aforesaid, the State Government is certainly competent to frame regulations in the matter of fixation of fee and the State Government is no way interfering with the administration of the Institution and with the day to day working of the Institution. It can never be said that the Act of 2007 is destroying the minority character of the Institution or is interfering in the right to establish and administer the Institution.
35- In the case of P. A. Inamdar (Supra), the issue of Minority Institution was again considered by the Hon'ble Supreme Court and at no point of time any restriction has been imposed by the State Government in the matter of fixation of fee.
36- The most important aspect of the case is that the Act of 2007 was subjected to judicial scrutiny before the Hon'ble Supreme Court in the case of Modern Dental College and Research Centre and Others (Supra). Paragraphs No.69 and 70 of the aforesaid judgment reads as under:-
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"69. From the above discussion, it clearly emerges that in exercise of their "right to occupation", private institutions cannot transgress the rights of the students. Discernibly, the Act does not give unbridled power to the authority to determine the fee. Determination of fee has to be based on the factors stipulated in Section 9 of the Act. Further, an opportunity of appeal is also provided for in the Act 2007 to the aggrieved. Fundamental rights of colleges to run their administration, includes fixation of fee. However, such right in turn has to be balanced with the rights of the students, so that they are not subjected to exploitation in the form of profiteering.
70. For the foregoing discussion, I hold that the State has the legislative competence to enact the impugned legislation-Act 2007 to hold common entrance test for admission to professional educational institutions and to determine the fee and the High Court has rightly upheld the validity of the impugned legislation. Regulations sought to be imposed by the impugned legislation on admission by common entrance test conducted by the State and determination of fee are in compliance of the directions and observations in T.M.A. Pai, Islamic Academy of Education and P.A. Inamdar. Regulations on admission process are necessary in the larger public interest and welfare of the student community to ensure fairness and transparency in the admission and to promote merit and excellence. Regulation on fixation of fee is to protect the rights of the students in having access to higher education without being subjected to exploitation in the form of profiteering. With the above reasonings, I concur with the majority view in upholding the validity of the impugned legislation and affirm the well merited decision of the High Court."
The aforesaid law laid down by the apex Court makes it very clear that the constitutional validity of the Act of 2007 has been upheld and the petitioner cannot get away from the jurisdiction of the Fee Regulatory Committee being a Minority Institution.
37- It is being reiterated that the State Government is not interfering with the administration of the Institution and the working of the Institution, however, in order to ensure that exorbitant fee is not charged, capitation fee is not charged, reasonable restriction in the matter of fixation of fee has been imposed by virtue of the Act of 2007.
This Court does not find any reason to grant the relief prayed by the Writ Petition No.9690/2020
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petitioner and to interfere with the order passed by the Fee Regulatory Committee.
38- The apex Court recently in the case of SK Md. Rafique Vs. Managing Committee, Contai Rahamania High Madarasah and Others reported in MANU/SC/0004/2020 : (2020) 1 SCT 627 (SC) has held that the State is will within its right to introduce a regulatory regime in the "national interest" to provide minority educational Institutions with well-qualified teachers in order for them to "achieve excellence in education" and the managements of Minority Institutions cannot ignore such a legal regime by saying that it is their fundamental right under Article 30 of the Constitution of India to establish and administer their educational Institutions according to their choice. The apex Court in the aforesaid case in paragraphs No.38 to 56 has held as under:-
"38. In the backdrop of the decisions of this Court referred to hereinabove, we must now consider whether the relevant provisions of the Commission Act transgress upon the rights of a minority institution or said provisions can be termed as "tenable as ensuring the excellence of the institution without injuring the essence of the right" [Expression used by Krishna Iyer J. in Gandhi Faiz-e-am-College v. University of Agra, (1975) 2 SCC 283 : 1 SCEC 277] of a minority institution. Right from Re: The Kerala Education Bill MANU/SC/0029/1958 : (1959) SCR 995 Case the issue that has engaged the attention of this Court is about the content of rights of minority educational institution and the extent and width of applicability of Regulations and what can be said to be permissible Regulations. If the cases in the first segment i.e. upto the decision in TMA Pai Foundation MANU/SC/0905/2002 : (2002) 8 SCC 481 are considered, the following principles emerge:
A) In Re: The Kerala Education Bill MANU/SC/0029/1958 : (1959) SCR 995 Case, Clause 11(2) in terms of which the State Public Services Commission was empowered to select candidates for appointment as teachers in Government and aided schools, was found to be a permissible Regulation. It was observed that such provision, inter alia, was applicable to all educational institutions and was Writ Petition No.9690/2020
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designed to give protection and security to the teachers engaged in rendering service to the nation.
B) The decision in Sidhajbhai Sabhai MANU/SC/0076/1962 : (1963) 3 SCR 837, however, observed, "Unlike Article 19, the fundamental freedom under Clause (1) of Article 30, is absolute in terms; it is not made subject to any reasonable restrictions of the nature the fundamental freedoms enunciated in Article 19 may be subjected to." It went on to add "Regulation made in the true interests of efficiency of instruction, discipline, health, sanitation, morality, public order and the like may undoubtedly be imposed." It read the decision in Re: The Kerala Education Bill MANU/SC/0029/1958 : (1959) SCR 995 case as "not an authority for the proposition submitted by the Additional Solicitor General that all regulative measures which are not destructive or annihilative of the character of the institution established by the minority, provided the Regulations are in the national or public interest, are valid." It however laid down a test-"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."
C)(i) In Ahmedabad St. Xavier's College MANU/SC/0088/1974 : (1974) 1 SCC 717 case, while considering the importance of teachers in an educational institution, Ray C.J. In his leading judgment observed, "The minority institutions have the right to administer institutions. This right implies the obligation and duty of the minority institutions to render the very best to the students. In the right of administration, checks and balances in the shape of regulatory measures are required to ensure the appointment of good teachers and their conditions of service." It was further stated that "Regulations which will serve the interests of the teachers are of paramount importance in good administration."
(ii) According to Khanna, J., "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."; a n d "Regulations made in the true interests of efficiency of instruction, discipline, health, sanitation, morality, public order and the like may undoubtedly be imposed." A word of caution was also expressed while observing, "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 Writ Petition No.9690/2020
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be left to them, they may be compelled to keep in step with others."
Khanna, J. then laid down "Balance has, therefore, to be kept between the two objectives, that of ensuring the standard of excellence of the institution and that of preserving the right of the minorities to establish and administer their educational institutions. Regulations which embrace and reconcile the two objectives can be considered to be reasonable.";
(iii) Mathew, J. however stated, "The question whether a Regulation is in the general interest of the public has no relevance, if it does not advance the excellence of the institution as a vehicle for general secular education as, exhypothesi, the only permissible Regulations are those which secure the effectiveness of the purpose of the facility, namely, the excellence of the educational institutions in respect of their educational standards. This is the reason why this Court has time and again said that the question whether a particular Regulation is calculated to advance the general public interest is of no consequence if it is not conducive to the interests of the minority community and those persons who resort to it." D) In Gandhi Faiz-e-am College MANU/SC/0070/1975 : (1975) 2 SCC 283, Krishna Iyer, J. found "In our case autonomy is virtually left intact and refurbishing, not restructuring, is prescribed. The core of the right is not gouged out at all and the Regulation is at once reasonable and calculated to promote excellence of the institution -- a text book instance of constitutional conditions." The Regulation was, however, not found to be permissible by Mathew, J. E) In Frank Anthony Public School MANU/SC/0076/1986 : (1986) 4 SCC 707 case, it was emphasized, "The excellence of the instruction provided by an institution would depend directly on the excellence of the teaching staff, and in turn, that would depend on the quality and the contentment of the teachers.
39. We now turn to TMA Pai Foundation MANU/SC/0905/2002 : (2002) 8 SCC 481 case and consider the principles that it laid down and whether there was reiteration of the principles laid down in the decisions of this Court in the earlier segment or whether there was any change or shift in the emphasis. A) In para 50, five incidents were stated to comprise the "right to establish and administer" and three of them were stated to be:
(a) right to admit students;
(b) right to appoint staff-teaching and non-teaching; and
(c) right to take disciplinary action against the staff.
The discussion in the leading judgment was under various headings and the important one being "5. To what extent can the rights of aided private minority institutions to administer be regulated?"
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B) The earlier decisions of the Court were considered and while considering the judgment of this Court in Sidhajbhai Sabhai MANU/SC/0076/1962 : (1963) 3 SCR 837 case it was observed:
If this is so, it is difficult to appreciate how the Government can be prevented from framing Regulations that are in the national interest, as it seems to be indicated in the passage quoted hereinabove. Any Regulation framed in the national interest must necessarily apply to all educational institutions, whether run by the majority or the minority. Such a limitation must necessarily be read into Article 30. The right Under Article 30(1) cannot be such as to override the national interest or to prevent the Government from framing Regulations in that behalf. It is, of course, true that government Regulations cannot destroy the minority character of the institution or make the right to establish and administer a mere illusion; but the right Under Article 30 is not so absolute as to be above the law. C) Thus, the principle laid down in Sidhajbhai Sabhai MANU/SC/0076/1962 :(1963) 3 SCR 837 that the right Under Article 30(1) cannot 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 was not accepted in TMA Pai Foundation MANU/SC/0905/2002 : (2002) 8 SCC 481. The emphasis was clear that any Regulation framed in the national interest must necessarily apply to all educational institutions, whether run by the majority or the minority and put the matter beyond any doubt. A caveat was however entered and it was stated that the Government Regulations cannot destroy the minority character of the institution.
D) The leading judgment then observed that the correct approach would be-what was laid down by Khanna, J. in Ahmedabad St. Xavier's College MANU/SC/0088/1974 : (1974) 1 SCC 717 case:
A balance has to be kept between the two objectives -- that of ensuring the standard of excellence of the institution, and that of preserving the right of the minorities to establish and administer their educational institutions. Regulations that embraced and reconciled the two objectives could be considered to be reasonable. This, in our view, is the correct approach to the problem.
E) The majority judgment then summed up the matter and stated:
It is difficult to comprehend that the framers of the Constitution would have given such an absolute right to the religious or linguistic minorities, which would enable them to establish and administer educational institutions in a manner so as to be in conflict with the other Parts of the Constitution. ........Writ Petition No.9690/2020
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137. ...... The right Under Article 30(1) has, therefore, not been held to be absolute or above other provisions of the law, and we reiterate the same. By the same analogy, there is no reason why Regulations or conditions concerning, generally, the welfare of students and teachers should not be made applicable in order to provide a proper academic atmosphere, as such provisions do not in any way interfere with the right of administration or management Under Article 30(1).
It was further laid down:
In other words, the essence of Article 30(1) is to ensure equal treatment between the majority and the minority institutions. ..... Laws of the land, including Rules and Regulations, must apply equally to the majority institutions as well as to the minority institutions.
40. The decision in TMA Pai Foundation MANU/SC/0905/2002 : (2002) 8 SCC 481, rendered by Eleven Judges of this Court, thus put the matter beyond any doubt and clarified that the right Under Article 30(1) is not absolute or above the law and that conditions concerning the welfare of the students and teachers must apply in order to provide proper academic atmosphere, so long as the conditions did not interfere with the right of the administration or management. What was accepted as correct approach was the test laid down by Khanna, J. in Ahmedabad St. Xavier's College MANU/SC/0088/1974 : (1974) 1 SCC 717 case that a balance be kept between two objectives-one to ensure the standard of excellence of the institution and the other preserving the right of the minorities to establish and administer their educational institutions. The essence of Article 30(1) was also stated-"to ensure equal treatment between the majority and the minority institutions" and that Rules and Regulations would apply equally to the majority institutions as well as to the minority institutions.
41. The decisions of this Court rendered after TMA Pai Foundation MANU/SC/0905/2002 : (2002) 8 SCC 481 case, may now be considered.
(A) In Brahmo Samaj Education Society MANU/SC/0508/2004 : (2004) 6 SCC 224, the argument that the appointment of teachers through College Service Commission would maintain equal standard of education for all throughout the State was not accepted and it was observed that the equal standards would be maintained by insistence on qualifying tests or examinations. This Court, however, did not consider whether the Rules in question were valid or not and left it to the authorities to bring the Rules and Regulations in conformity with the principles laid down in TMA Pai Foundation MANU/SC/0905/2002 : (2002) 8 SCC 481. It may be stated here that a review petition has since then been allowed and the matter now stands referred to a Constitution Bench. (As observed in para 41 of Writ Petition No.9690/2020
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Chandana Das - MANU/SC/1323/2019) (B) The decision of this Court in P.A. Inamdar MANU/SC/0482/2005 : (2005) 6 SCC 537 was not directly concerned with the rights of the minority educational institutions receiving aid. It, however, dealt with the matter regarding admission of students in unaided professional educational institutions and observed that the admission of students in minority unaided professional educational institutions must also be governed on the basis of merit. It thus did not accept the right to admit students to be an unqualified right inhering in a minority professional educational institution. The discussion in that case shows that the admissions based on merit in professional educational institutions were found to be in the national interest and strengthening the national welfare.
(C) Malankara Syrian Catholic College MANU/SC/5280/2006 : (2007) 1 SCC 386 was concerned with selection and appointment of a Principal in an unaided minority educational institution. It was stated in para 19 that the right conferred on minorities Under Article 30 was only to ensure equality with majority and was not intended to place the minorities in a more advantageous position vis-a-vis the majority and that there was no reverse discrimination in favour of minorities and that the general laws of the land relating to national interest, would equally apply to minority institutions. It was also observed that the Principal or Headmaster of any educational institution would be responsible for functional efficiency of the institution and also for the quality of education and discipline in the educational institutions as well as maintaining the philosophy and objects of the institution. On that premise, the right to choose a Principal was accepted to be part of the right of a minority educational institution. It also relied upon the decision in N. Ammad MANU/SC/0588/1998 : (1998) 6 SCC 674 case which in turn had relied upon the Full Bench decision of the Kerala High Court. It was, therefore, stated that the power to choose a Headmaster was always recognised as an important facet of the right to the administer the educational institutions.
(D) Sindhi Education Society MANU/SC/0476/2010 : (2010) 8 SCC 49 was concerned with the issue whether instructions could be issued to fill up the posts of teachers in an unaided minority institution in accordance with the principles and policy of reservation. The concerned Rules empowered the authority to issue such instructions. However, a Circular was issued on 21.03.1986 exempting minority institutions from complying with the said Rule. The subsequent insistence through Circular of September, 1989, which Writ Petition No.9690/2020
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did not disclose any reason for departure was not held to be enforceable. The discussion in the case undoubtedly deals with the issue whether the minority educational institutions have a right to choose persons to be appointed as teachers and could there be any Regulations and could that right be in any way affected by Regulations. However, in the context of a Linguistic Minority Schools it was observed that such institutions must have a right to select the best teachers who not only satisfy the prescribed criteria, qualification and eligibility but also ensure better cultural and linguistic compatibility. Since, the candidates nominated in terms of powers conferred by Rule 64(1)(b) and the instructions issued in Circular of September, 1989 would not satisfy such requirements and ensure compatibility, the appeal was allowed.
(E) In Chandana Das MANU/SC/1168/2014 : (2015) 12 SCC 140, the principal issue was whether the concerned institution was a minority institution or not. On that issue, there was a disagreement between two Judges of this Court and the matter was referred to a Bench of three Judges which accepted the view of Thakur, J. and held that the institution was a minority educational institution. [Reported in MANU/SC/1323/ 2019 [Chandana Das (Malakar) v. State of West Bengal and others]] The issue arose in the context whether recommendations of the West Bengal School Service Commission as regards appointments of teachers against permanent or temporary vacancies could be validly issued in so far as a minority educational institution was concerned. It may be stated that in terms of Section 15 of 1997 Act, nothing in that Act would apply to "a School established and administered by a minority whether based on religion or language" and as such the recommendations of the West Bengal School Service Commission could never apply to a minority institutions. Once the view taken by Thakur, J. was accepted and it was held that the institution was a minority institution, by virtue of said Section 15, the West Bengal School Commission could not be competent to issue any direction.
42. Thus, going by the decision of eleven Judges of this Court in TMA Pai Foundation MANU/SC/0905/2002 : (2002) 8 SCC 481, so long as the principles laid down therein (as culled out in para 40 hereinabove) are satisfied, it is permissible if any Regulations seek to ensure the standard of excellence of the institutions while preserving the right of the minorities to establish and administer their educational institutions.
Out of five incidents which constitute "the right to establish and administer" an educational institution as noted in para 50 of the leading judgment in TMA Pai Foundation MANU/SC/0905/2002 :
(2002) 8 SCC 481, the right to admit students has not been Writ Petition No.9690/2020
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considered to be an absolute and an unqualified right. The decision in P.A. Inamdar MANU/SC/0482/2005 : (2005) 6 SCC 537 shows that in professional educational institutions or those imparting higher education, merit based selection has been taken to be in the interest of the nation and subserving and strengthening the national welfare. Selection of meritorious students has been accepted to be in the national interest. A minority institution cannot in the name of right Under Article 30(1) of the Constitution, disregard merit or merit-based selection of students as regards professional and higher education. The right to take disciplinary action against the staff has also not been accepted to be an unqualified right. TMA Pai Foundation MANU/SC/0905/2002 : (2002) 8 SCC 481 itself lays down that even in an unaided minority educational institution, a mechanism must be evolved and appropriate Tribunal must be constituted to consider the grievances and till then the Tribunals could be presided over by a judicial officer of the rank of a District Judge. To that extent, there was a definite departure from the law laid down in Ahmedabad St. Xavier's College MANU/SC/0088/1974 : (1974) 1 SCC 717 case which had struck down Sections 51-A and 52-A of the Gujrat University Act, 1949.
43. When it comes to the right to appoint teachers, in terms of law laid down in TMA Pai Foundation MANU/SC/0905/2002 :
(2002) 8 SCC 481 a Regulation framed in the national interest must necessarily apply to all institutions regardless whether they are run by majority or minority as the essence of Article 30(1) is to ensure equal treatment between the majority and minority institutions. An objection can certainly be raised if an unfavourable treatment is meted out to an educational institution established and administered by minority. But if ensuring of excellence in educational institutions is the underlying principle behind a regulatory regime and the mechanism of selection of teachers is so designed to achieve excellence in institutions, the matter may stand on a completely different footing.
44. The test accepted in TMA Pai Foundation MANU/SC/0905/2002 : (2002) 8 SCC 481, and the balance between two objectives can well be considered in the context of two categories of institutions; one imparting education which is directly aimed at or dealing with preservation and protection of the heritage, culture, script and special characteristics of a religious or a linguistic minority; while the second category of institutions could be those which are imparting what is commonly known as secular education. When it comes to the institutions in the former category, the teachers who believe in the religious ideology or in the special characteristics of the concerned minority would alone be able to imbibe in the students admitted in such educational institutions, what the minorities would like to preserve, profess and propagate. But, if the subjects in the curriculum are purely secular in character, that, is to say, subjects like Arithmetic, Algebra, Physics, Chemistry or Geography, the intent must be to impart education availing the best possible teachers. In the first category, maximum latitude may be given to the managements of the concerned minority institutions as they would normally be considered to be the best judges of what Writ Petition No.9690/2020
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would help them in protecting and preserving the heritage, culture, script or such special features or characteristics of the concerned minorities. However, when it comes to the second category of institutions, the governing criteria must be to see to it that the most conducive atmosphere is put in place where the institution achieves excellence and imparts best possible education.
45. As laid down in the leading judgment in Ahmedabad St. Xavier's College MANU/SC/0088/1974 : (1974) 1 SCC 717 case, Regulations which will serve the interest of the students so also Regulations which will serve the interest of the teachers are of paramount importance in good administration; that Regulations in the interest of efficiency of teachers are necessary for preserving harmony amongst the institutions; and that the appointment of teachers is an important part in educational institutions. It is quite natural that qualitatively better teachers will ensure imparting of education of the highest standard and will help in achieving excellence. As accepted in Frank Anthony Public School MANU/SC/0076/1986 : (1986) 4 SCC 707 case, the excellence of the instruction provided by an institution would depend directly on the excellence of the teaching staff and would in turn depend inter alia on the quality of teachers.
46. Thus, if the intent is to achieve excellence in education, would it be enough if the concerned educational institutions were to employ teachers with minimum requisite qualifications in the name of exercise of Right Under Article 30 of the Constitution, while better qualified teachers are available to impart education in the second category of institutions as stated hereinabove. For example, if the qualifying percentile index for a teacher to be appointed in an educational institution, considering his educational qualifications, experience and research, is required to be 50, and if teachers possessing qualifications far greater and higher than this basic index are available, will it be proper exercise for a minority educational institution to select teachers with lower index disregarding those who are better qualified? Will that subserve pursuit of excellence in education? One can understand if under the regulatory regime candidates who are otherwise less qualified are being nominated in the minority educational institution and the minority educational institution is forced to accept such less meritorious candidates in preference to better qualified candidates. In such cases, the minority educational institution can certainly be within its rights to agitate the issue and claim a right to choose better teachers. But if the candidates who are selected and nominated under the regulatory regime to impart education which is purely secular in character, are better qualified, would the minority institution be within its rights to reject such nomination only in the name of exercise of a right of choice? The choice so exercised would not be in pursuit of excellence. Can such choice then be accepted?
If the right is taken to be absolute and unqualified, then certainly such choice must be recognised and accepted. But, if the right has not been accepted to be absolute and unqualified and the national interest must always permeate and apply, the excellence Writ Petition No.9690/2020
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and merit must be the governing criteria. Any departure from the concept of merit and excellence would not make a minority educational institution an effective vehicle to achieve what has been contemplated in various decisions of this Court. Further, if merit is not the sole and governing criteria, the minority institutions may lag behind the non-minority institutions rather than keep in step with them.
Going back to the example given above, as against index of 50 i.e. the minimum qualifying index, if a candidate nominated under the regulatory regime is at an index of 85, selection by a minority educational institution of a candidate at an index 55 may certainly be above the minimum qualifying mark, but in preference to the one at the index of 85 who is otherwise available, the appointment of a person at the index level of 55, will never give the requisite impetus to achieve excellence. A meritorious candidate at the index level of 85 in the above example, if given the requisite posting will not only help in upholding the principle of merit but will in turn generate an atmosphere of qualitative progress and sense of achievement commensurate with societal objectives and ideology and such posting will, therefore, be in true national interest.
47. At the cost of repetition, it needs to be clarified that if the minority institution has a better candidate available than the one nominated under a regulatory regime, the institution would certainly be within its rights to reject the nomination made by the authorities but if the person nominated for imparting education is otherwise better qualified and suitable, any rejection of such nomination by the minority institution would never help such institution in achieving excellence and as such, any such rejection would not be within the true scope of the Right protected Under Article 30(1) of the Constitution.
48. With these basic principles in mind, we may now consider the statutory provisions under which the teachers could be nominated under the Commission Act and see whether the concerned Regulations help in achieving excellence or whether those provisions are violative of the Rights of the minority institutions.
49. In terms of Section 4 of the Commission Act, the Commission is to consist of a Chairman and four Members. The Chairman of the Commission has to be an eminent educationist having profound knowledge in Islamic Culture and must be well versed in education with teaching experience inter alia as a teacher of a University or as a Principal of a college, for a period of not less than twelve years. It is true that the latter part of Section 4(ii) speaks of an officer of the State Government not below the rank of Joint Secretary who could also be appointed as the Chairman of the Commission. But in our view, considering the nature of duties that the Chairman is to discharge, even an officer of the State Government has to be a person with profound knowledge in Islamic Culture. Apart from the Chairman, there are four Members who are to be appointed in terms of Section 4(iii) of the Commission Act. Out of these four Members, one has to be an eminent educationist Writ Petition No.9690/2020
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having profound knowledge in Islamic Theology and Culture, while the other two Members must have teaching experience inter alia as a teacher of a University, or a Principal of a College for a period of not less than ten years. The fourth member could be a non- educationist, but he must have held the position of eminence in public life or in Legal or Administrative Service. Predominant composition of the Commission is thus of educationists and two of them have to be persons with profound knowledge in Islamic Culture and Islamic Theology. The provisions of the Commission Act are thus specially designed for Madrasahs and Madrasah Education System in the State. Rule 8 of the 2010 Rules stipulates fair and transparent process of merit based selection and the statutory mechanism would ensure that only those teachers would be selected who would be best suited to impart education in Madrasah Education System. The State Legislature has taken care to see that the composition of the Commission would ensure compatibility of the teachers who would be selected to impart education in Madrasah Education System, which is also emphasized in the Statement of Objects and Reasons.
50. It is true that the recommendations or nominations of teachers made by the Commission are otherwise binding on the Managing Committees of concerned Madrasahs, but, in terms of second proviso to Section 10 of the Commission Act, if there be any error, it is open to the Managing Committee of the concerned Madrasah to bring it to the notice of the Commission for removal of such error. The concept of 'error' as contemplated must also include cases where the concerned Madrasah could appoint a better qualified teacher than the one nominated by the Commission. If any such error is pointed out, the Commission will certainly have to rectify and remove the error. The further protection is afforded by Section 12 of the Commission Act, under which the concerned Madrasah could be within its rights to refuse to issue appointment letter to the candidate recommended by the Commission if any better qualified candidate is otherwise available with the managing committee of the concerned Madrasah. Such refusal may also come within the expression 'any reasonable ground' as contemplated in Section 12(i) of the Act.
The legislature has thus taken due care that the interest of a minority institution will always be taken care of by ensuring that i) in normal circumstances, the best qualified and suitable candidates will be nominated by the Commission; ii) and in case there be any error on part of the Commission, the concerned Managing Committee could not only point out the error which would then be rectified by the Commission but the Managing Committee may also be within its rights in terms of Section 12(i) to refuse the nomination on a reasonable ground.
51. The regime put in place by the State legislature thus ensures that the Commission comprising of experts in the field would screen the talent all across the State; will adopt a fair selection procedure and select the best available talent purely on merit basis; and even while nominating, the interest of the minority institution will also be given due weightage and taken care of. The Writ Petition No.9690/2020
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statutory provisions thus seek to achieve 'excellence' in education and also seek to promote the interest of the minority institutions. The provisions satisfy the test as culled out in the decision of this Court in TMA Pai Foundation MANU/SC/0905/2002 : (2002) 8 SCC 481 case.
52. In our considered view going by the principles laid down in the decision in TMA Pai Foundation case MANU/SC/0905/2002 : (2002) 8 SCC 481, the concerned provisions cannot, therefore, be said to be transgressing the rights of the minority institutions. The selection of the teachers and their nomination by the Commission constituted under the provisions of the Commission Act would satisfy the national interest as well as the interest of the minority educational institutions and said provisions are not violative of the rights of the minority educational institutions.
53. The aforesaid conclusions have been arrived at by us in keeping with the principles laid down by this Court in TMA Pai Foundation MANU/SC/0905/2002 : (2002) 8 SCC 481 case.
We are aware that in Brahmo Samaj Education Society MANU/SC/0508/2004 : (2004) 6 SCC 224, Sindhi Education Society MANU/SC/0476/2010 : (2010) 8 SCC 49 and Chandana Das (Malakar)8, decided after TMA Pai Foundation MANU/SC/0905/2002 : (2002) 8 SCC 481, this Court had also dealt with the question whether the concerned authorities could validly nominate teachers to be appointed in minority educational institutions. Brahmo Samaj Education Society MANU/SC/0508/2004 : (2004) 6 SCC 224 did not specifically deal with the question whether Rules were valid or not and left it to the authorities to bring the Rules and Regulations in conformity with the principles in TMA Pai Foundation MANU/SC/0905/2002 : (2002) 8 SCC 481 case.S indhi Education Society MANU/SC/0476/2010 :
(2010) 8 SCC 49 dealt with the issue in the context of reservation. It also found that the teachers nominated by the concerned authorities would not be compatible to teach in educational institutions run by linguistic minorities. In Chandana Das (Malakar)8 the basic issue was whether the concerned institution was a minority institution or not. Sindhi Education Society MANU/SC/0476/2010 : (2010) 8 SCC 49 andC handana Das (Malakar)8 dealt with statutory regimes which did not have any special features or matters concerning compatibility of teachers which could be required going by the special characteristics of the minority educational institutions. However, the additional feature in the present matter shows that the composition of the Commission with special emphasis on persons having profound knowledge in Islamic Culture and Theology, would ensure that the special needs and requirements of minority educational institutions will always be taken care of and thus the present case stands on a different footing.
We, therefore, have no hesitation in going by the test culled out in the TMA Pai Foundation MANU/SC/0905/2002 : (2002) 8 SCC 481 and hold that the provisions of the Commission Act are Writ Petition No.9690/2020
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not violative of the rights of the minority educational institutions on any count.
54. In the premises, while allowing these appeals, we set aside the view taken by the Single Judge and the Division Bench of the High Court and dismiss Writ Petition No. 20650(W) of 2013 and other connected matters. We also hold Sections 8, 10, 11 and 12 of the Commission Act to be valid and constitutional.
55. In the end, we declare all nominations made by the Commission in pursuance of the provisions of the Commission Act to be valid and operative. However, if after the disposal of the matters by the High Court any appointments are made by the concerned Madrasahs, such appointments of teachers shall be deemed to be valid for all purposes. But the Commission shall hereafter be competent to select and nominate teachers to various Madrasahs in accordance with the provisions of the Commission Act and the Rules framed thereunder.
56. With the aforesaid observations these appeals are allowed. No separate orders are required to be passed in respect of Writ Petitions and contempt petitions which stand disposed of in terms of declaration as above. No orders as to costs."
In light of the aforesaid judgment delivered by the Hon'ble Supreme Court and also keeping in view the fact that the constitutional validity of the Act of 2007 has already been upheld, this Court does not find any reason to interfere with the order passed by the Fee Regulatory Committee. The writ petition is accordingly dismissed.
Certified copy as per rules.
(S. C. SHARMA) (SHAILENDRA SHUKLA)
JUDGE JUDGE
Tej
Digitally signed by
Tej Prakash Vyas
Date: 2020.11.19
12:37:33 +05'30'