Bombay High Court
Bombay Institution For Deaf And Mutes ... vs Department Of Social Welfare, Pune And ... on 24 September, 2001
Equivalent citations: 2002(2)BOMCR156, 2002(1)MHLJ354
Author: R.M. Lodha
Bench: R.M. Lodha, Nishita Mhatre
JUDGMENT R.M. Lodha, J.
1. The petitioners in this writ petition have principally prayed that the Government Resolutions dated 27-3-1991 (Exhibit A) and 23-3-1994 (Exhibit B) be declared ultra-vires, unconstitutional, null and void and in the alternative for a writ or mandamus or any other writ, order or direction to respondents forbearing them from applying the directions in the Government Resolutions dated 27-3-1991 and 23-3-1994 to the School run by the petitioners.
2. Bombay Institutions for Deaf and Mutes is petitioner No. 1 before us which is a public trust registered under the provisions of Bombay Public Trusts Act, 1950. Petitioner No. 2 is the trustee of petitioner No. 1. Petitioner No. 1 institution is established by a religious minority, namely, Roman Catholic Community. The members of Petitioner No. 1 trust are all Roman Catholics. It is petitioners' case that petitioner No. 1 trust was created by an Indenture dated 19-12-1902. The Memorandum of Association of petitioner No. 1 provides for education to male and female deaf and mutes of all classes and of all characters so as to enable them to earn an independent livelihood in their life and useful members of the society. Petitioner No. 1 trust was established mainly for the purpose of imparting education to the needs of male and female deaf and mutes of all sections of the society and in attainment of the said objective, the petitioners have been running the school for deaf and mutes which has also been registered by Director of Education. It is petitioners' case that for the purpose of imparting education to the male and female deaf and mutes, the petitioners engage various types of teaching and non-teaching staff consisting of Principal, Special teachers and other necessary staff. The appointments are made in accordance with Rules and Regulations and Stipulations laid down by the Government of Maharashtra. The petitioners have averred that there is a selection committee called Selection Committee for appointment of teaching and non-teaching staffs which make appointments in the school run by petitioner No. 1 trust. Appointments are made after vacancies for the posts are advertised and selection is completed by the Selection Committee. It is endeavour of petitioner No. 1 trust that the person appointed for the post of teachers and other members of staff possesses requisite qualifications prescribed by respondent No. 1 and are in all respects suitable to undertake the task of imparting special education to the deaf and mutes. Petitioner No. 1 is a fully aided school recognised by the Board of Education, but the same is controlled by Director of Social Welfare (respondent No. 2 herein). By Government Resolution dated 27-3-1991, respondent No. 1, that is Government of Maharashtra, gave direction to the Department of Social Welfare-respondent No. 1 in regard to the reservations of the posts to be made in favour of the scheduled castes and scheduled tribes while making appointments to the teaching and non-teaching posts in the institutions under the control of respondent No. 1. The said Resolution is marked as "Exhibit A". Yet another Resolution dated 23-3-1994 (Exhibit B) was issued through which respondent No. 1 was to ensure that if there were more than 10 employees employed in any educational institution receiving grant-in-aid from the government, 34% Reservation Scheme as formulated by Rule 42(4) of the Special School Code for Schools for Handicapped is mandatorily followed. The petitioners seek to challenge the aforesaid Government Resolutions as being violative of their fundamental right under Article 30(1) of the Constitution of India. The petitioners' grievance is that by applying aforesaid two Government Resolutions, their right to select and appoint the necessary teachers and staff in their institution which is crucial and fundamental part of right to administer the said institute is affected and their fundamental right of appointing teachers of their choice is taken away.
3. Rule was issued by this Court on 12-6-1995 and at the time of issuance of Rule, interim relief in terms of prayer clause (e) was granted. Though, Rule has been taken up for hearing more than six years after it was issued and the respondents were served, no return has been filed by the respondents. However, Mr. Pakale, learned Counsel appearing for respondents Nos. 1, 2 and 4, raised two-fold contention : (i) that petitioner No. 1 institution is not a religious minority institution on the face of the averments made in paragraph 5 of the writ petition as it was established for the purpose of imparting education to the needs of male and female deaf and mutes of all castes and all creeds, and (ii) that petitioner No. 1 trust which runs the school is fully aided school and therefore, it is always open to State to regulate its administration including direction to them to make reservation in the appointment of the staff and teachers.
4. We have reflected over the matter and the contentions raised by the learned Counsel for the parties and, in our view, the contentions raised by respondents Nos. 1, 2 and 4 have no substance and are noted to be rejected.
5. Insofar as the contention raised by the learned Counsel for respondents Nos. 1, 2 and 4 that petitioner No. 1 institution is religious minority institution as it was established for the purpose of imparting education to the needs of male and female deaf and mutes and to all castes and creeds is concerned, suffice it to observe that merely because a religious minority institution provides admission to cross-section of society, it does not cease to be religious minority institution. The averments made in the writ petition that petitioner No. 1 institution is established by religious minority, namely, Roman Catholic community, and that members of petitioner No. 1 trust are all Roman Catholics go unrebutted. As a matter of fact, the specific averment made in the writ petition that petitioner No. 1 institution is a religious minority institution owned, managed and administered by Roman Catholic community, has not at all been traversed. Paragraphs 2, 3 and 4 of the writ petition read thus :
"2. The first petitioner's institution is established by a Religious Minority viz., Roman Catholic Community Members of the First Petitioners are all Roman Catholics. At present there are 13 members all of whom profess the Roman Catholic faith. The said Institution is accordingly a minority institution owned, managed and administered by the Roman Catholic Community petitioners crave leave to refer to and rely upon the Memorandum of Association. 3. The petitioners state that the trust was created by Indenture dated 9-12-1902 between DOMINIC ANACEL TO de MONTE OF Bandora, REVEREND JAMES RUSSELL GOLDSMITH OF BOMBAY, RICHARD WILLIAM DIDOCK of Bombay, DAVID THOMPSON of Bombay, ARTHUR STEPHEN JOHN WARREN JONES of Bombay WILLIAM CROWDER of Bombay, GABRIEL HYACHINITH MISQUITIA of Bombay, DIOGO MANOEL DA SILVA of Bombay and GEORGE HENRY BOBLE SEXTON of Bombay therein referred to as Trustees on one part and petitioner No. 1 herein on the other part.
4. The Material terms of the Memorandum of Association of the 1st petitioner's institution are to educate male and female deaf mutes of all classes and of all creeds so as to enable them to earn in independent livelihood in their life and be useful members of Society."
Upon reading of the aforesaid averments and the fact that the said averments have not been denied, we have no hesitation in holding that petitioner No. 1 institution is established by religious minority. In Rev. Father W. Proost and Ors. v. The State of Bihar and Ors., , the Apex Court observed that Article 30(1) of Constitution of India cannot be cut down by introducing in,it considerations on which Article 29(1) is based and the latter Article is general protection which is given to minorities to conserve their language, script and culture. The Supreme Court went on to say that Article 30(1) is a special right to minorities to establish educational institutions of their choice and this choice is not limited to institutions seeking to conserve language, script or culture and the choice is not taken away if the minority community having established an educational institution of its choice also admits members of other communities. In the present case merely because the first respondent institution imparts education to the needs of male and female deaf and mutes of all castes and all creeds their right, being a minor religious institution to administer educational institution of the choice, is not taken away and such circumstance is irrelevant for application of Article 30(1) of Constitution of India. The Constitution Bench of Apex Court in the State of Kerala v. very Rev. Mother Provincial, etc., reiterated the legal position by observing that Article 30(1) of Constitution of India contemplates two rights which are separated in point of time. First right is the initial right to establish institutions of minority's choice and it is irrelevant that in addition to the minority community others from the majority community can take advantage of these institutions and the next part of the right relates to administration of such institutions which means management of the affairs of the institutions and this management must be of free of control so that the founders or their nominees can hold the institution as they think fit and in accordance with their ideas as to how the interests of the community in general and the institution in particular will be best served.
6. In the light of the said legal position when applied on the facts which we have indicated above we find no difficulty in holding that petitioner No. 1 institution is religious minority institution owned, managed and administered by the Roman Catholic community.
7. In St. Stephen's College v. The University of Delhi, , the Apex Court in unequivocal terms ruled that State financial grant cannot affect the rights of minority educational institutions under Article 30(1) of Constitution of India. In paragraph 90 of the Report, the Apex Court held thus :
"Second, the receipt of State aid does not impair the rights in Article 30(1). The State can lay down reasonable conditions for obtaining grant-in-aid and for its proper utilisation. The State has no power to compel minority institutions to give up their rights under Article 30(1). (See: Re: Kerala Education Bill case and Sidhajbhai case). In the latter case, this Court observed (at 856-857) that the regulation which may lawfully be imposed as a condition of receiving grant must be directed in making the institution an effective minority educational institution. The regulation cannot change the character of the minority institution. Such regulations must satisfy a dual test; the test of reasonableness, and the test that it is regulative of the educational character of the institution. It must be conducive to making the institution an effective vehicle of education for the minority community or other persons who resort to it. It is thus evident that the rights under Article 30(1) remain unaffected even after securing financial assistance from the Government."
8. We deem it unnecessary to advert to various rulings of Apex Court as in our view there seems to be no doubt and ambiguity in legal position that rights of minority educational institutions under Article 30(1) remain unaffected even after they get total aid and financial assistance from the government. On the face of this legal position, the second contention raised by Mr. Pakale cannot be accepted and has to be negated.
9. By asking petitioner No. 1 trust which runs educational institution to appoint teaching and non-teaching staff keeping in view the reservation prescribed under Government Resolutions dated 27-3-1991 and 23-3-1994, petitioner's right to administer the institute is infringed and affected. The right having been conferred upon minority educational institutions to establish and administer educational institution of their choice is clearly violated if such minority educational institution is asked to appoint teachers as per reservation prescribed in Government Resolutions and not of its own choice as right to administer the minority educational institution inherently includes the right to appoint members of the staff of its choice to achieve its objectives. There is no doubt that the fundamental right conferred upon minority educational institution is subject to certain safeguards against maladministration which safeguards can be in the form of reasonable regulations but such regulations must 'ensure proper administration of the educational institution which has been established by minority. In Rev. Sidhajbhai v. State of Gujarat, AIR 1963 SC 540, the Constitution Bench of the Apex Court in paragraph 10 of the Report held thus:
"(10) Article 30(1) provides that all minorities have the right to establish and administer educational institutions of their choice, and Article 30(2) enjoins the State, in granting aid to educational institutions, not to discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language. Clause (2) is only a phase of the non-discrimination clause of the Constitution and does not derogate from the provisions made clause (1). The clause is moulded in terms negative: the State is thereby enjoined not to discriminate in granting aid to educational institutions on the ground that the management of the institution is in the hands of a minority, religious or linguistic, but the form is not susceptible of the inference that the State is competent otherwise to discriminate so as to impose restrictions upon the substance of the right to establish and administer educational institutions by minorities, religious or linguistic. 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 Art 19 may be subjected to. All minorities linguistic or religious have by Article 30(1) an absolute right to establish and administer right to establish and administer educational institutions of their choice; and any law or executive direction which seeks to infringe the substance of that right under Article 30(1) would to that extent be void. This, however, is not to say that it is not open to the State to impose regulations upon the exercise of this right. The fundamental freedom is to establish and to administer educational institutions : it is a right to establish and administer what are in truth educational institutions-institutions which cater to the educational needs of the citizens, or sections thereof. Regulation made in the true interests of efficiency of instruction discipline, health, sanitation, morality public order and the like may undoubtedly be imposed. Such regulations are not restrictions on the substance of the right which is guaranteed: they secure the proper functioning of the institutions, in matters educational."
10. What follows from the aforesaid observations of the Apex Court is that all minorities, linguistic or religious by virtue of Article 30(1) have an absolute right to establish and administer educational institutions of their choice and any law or executive direction which seeks to infringe the substance of that right under Article 30(1) would to that extent be void, though it does not restrict the right of the State to impose regulations on such minority institutions in the true interest of the efficiency of instruction, discipline, health, sanitation, morality and the like. But a direction to the minority educational institution to have reservation in the appointment of staff teachers is definitely a serious encroachment upon the right of minority institution under Article 30(1) in administering the minority educational institutions and such direction cannot be upheld.
11. In view of the aforesaid discussion we direct the respondents to not to apply the Government Resolutions dated 27-3-1991 (Exhibit A) and 23-3-1994 (Exhibit B) to the extent they provide for reservation in the appointment of staff and teachers to the educational institution run by Petitioner No. 1.
Rule is made absolute in aforesaid terms.
No costs.
12. Order accordingly.