Patna High Court
Smt.Asha Kumari vs The State Of Bihar & Ors on 27 March, 2014
Author: Shivaji Pandey
Bench: Shivaji Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.8079 of 2006
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1.Ara Catholic Middle School, Ara through the Secretary of its Managing
Committee, Jose Kaiprampatt S.J. Rresident of Ara Catholic High School,
P.S.Nawada(Ara) District Bhojpur.
2.Narendra Bhan Prasad s/o late Chandra Shekhar Prasad, resident of Mohalla
Jagdevnagar P.S.Nawada (Ara) District Bhojpur.
.. .... Petitioner/s
Versus
1.The State Of Bihar
2.Secretary, Primary Education, Govt. of Bihar, Patna.
3.Director, Primary Education, Govt. of Bihar, Patna.
4.District Superintendent of Education, Bhojpur, Ara.
.... .... Respondent/s
with
Civil Writ Jurisdiction Case No. 10719 of 2007
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Anita Kumari wife of Sri Ashok Kumar Singh, resident of village - Achitpur,
P.S.Isuapur District Saran.
.... .... Petitioner/s
Versus
1.The State Of Bihar
2.Secretary cum-Commissioner, Human Resources Department, Govt. of Bihar,
Patna.
3. Director, Primary Education, Govt. of Bihar, Patna.
4.District Superintendent of Education, Patna.
Principal, Dayanand Kanya Primary School, Mithapur, Patna.
6.Managilng Commi9ttee through its Secretary,
Dayanand Kanya Primary School, Mithapur, Patna.
7.Secretary, Managing Committee, Dayanand Kanya Primary School, Mithapur,
Patna.
.... .... Respondent/s
with
Civil Writ Jurisdiction Case No. 9076 of 2011
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1. Smt.Asha Kumari Sri Suresh Pd. Mandal Assistant Teacher In Diosessen
Primary Girls School Kahalgoan Distt. Bhagalpur
.... .... Petitioner/s
Versus
1. The State Of Bihar Through Principal Secretary Department Of Human
Resources Development ( Higher Education) Govt. Of Bihar Patna
2. The Director, Primary Education, Human Resources Development Department,
Govt. Of Bihar
3. The Regional Deputy Director Of Education ,Bhagalpur, Distt. Bhagalpur
4. The District Superintendent Of Education, Bhagalpur
.... .... Respondent/s
with
Patna High Court CWJC No.8079 of 2006 dt.27-03-2014
2/34
Civil Writ Jurisdiction Case No. 8230 of 2009
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1.Dr.Mukesh Kumar s/o Late Ranjan Prasad Singh, R/o village Gardhisai,
P.O.Gardhisai P.S.Vidyapati Nagar District Samastipur,
Presently working as Lecturer, Deptt. Of Statistics (1st Post), Allama Iqbal College,
Biharsharif (Nalanda).
2.Dr. Bishram Prasad s/o Late Ramdhani Mahto, R/o village Newaji Bigha
P.O.Hargawan, P.S.Manpwe District Nalanda,
Presently working as Lecturer, Department of Philosophy (1st Post), Allama Iqbal
College, Biharsharif (Nalanda).
3.Dr. Parash Nath s/o Late Hare Krishna Prasad, r/o village Mahammadpur P.O.
Mahammadpur P.S.Barh, District Patna.
Presently working as Lecturer, Department of Physics (2nd Post), Allama Iqbal
College, Biharsharif (Nalanda).
4.Mosharraf Hayat Khan s/o Sharif Khan, r/o village Samspur, P.O.Samspur
P.S.Belaganj District Gaya.
Presently working as Lecturer, Department of Urdu (2nd Post), Allama Iqbal
College, Biharsharif (Nalanda).
5.Md. Habibur Rahman s/o Md. Faizur Rahman, R/o village Balha P.O.Kamtaul
P.S.Bisfi District Madhubani.
Presently working as Lecturer, Department of Arabic (1st Post), Allama Iqbal
College, Biharsharif (Nalanda).
6.Dr. Umesh Yadav s/o Late Laldeo Yadav, r/o village Kothiya P.O. Kako
P.S.Kako District Jehanabad.
Presently working as Lecturer, Department of Physics (3rd Post), Allama Iqbal
College, Biharsharif (Nalanda).
7.Dr. Mir Samiullah s/o Late Mir Alimullah r/o Mohalla Jamamashjid P.O. Chinpur
P.S.Chainpur District Kaimur.
Presently working as Lecturer, Department of Psychology (1st Post), Allama Iqbal
College, Biharsharif (Nalanda).
8.Surajdeo Chandrapal s/o Late Govind Prajapati, r/o Mohalla Maranpur P.O.
Chand Choura P.S.Civil Line District Gaya.
Presently working as Lecturer, Department of Math (2nd Post), Allama Iqbal
College, Biharsharif (Nalanda).
9. Dr. Suvash Kumar Singh s/o Late Ramayan Singh, r/o Hariharpur Kala,
P.O.Hariharpur Kala P.S.Jamo Bazar Dist. Siwan.
Presently working as Lecturer, Department of Geography (3rd Post), Allama Iqbal
College, Biharsharif (Nalanda).
10. Anil Kumar Ojha s/o Sri L.N.Ojha, r/o Mohalla -14, Adarsh Colony,
Kidwaipuri, Patna P.O. Kidwaipuri, P.S.Budha Colony Dist. Patna.
Presently working as Lecturer, Department of Chemistry (2nd Post), Allama Iqbal
College, Biharsharif (Nalanda).
11.Dr.Md. Yasin Khan s/o Ghulam Mustafa Khan, r/o village Simaru, P.O.Gurua,
P.S.Gurua Dist. Gaya.
Patna High Court CWJC No.8079 of 2006 dt.27-03-2014
3/34
Presently working as Lecturer, Department of Commerce (3rd Post), Allama Iqbal
College, Biharsharif (Nalanda).
12. Syed Reyazuddin s/o Late Syed Moniruddin, r/o Mohalla Nosha, P.O.
Phulwarisharif, P.S.Phulwsarisharif, Dist. Patna.
Presently working as Lecturer, Department of Geography (1st Post), Allama Iqbal
College, Biharsharif (Nalanda).
13.Rajesh Kumar Ranjan s/o Sri Madhav Prasad Singh, r/o village Nisharpura
(Chainpura), P.O.Kaab P.S.Ranitalab (Kamta) Dist.Patna.
Presently working as Lecturer, Department of English (4th Post), Allama Iqbal
College, Biharsharif (Nalanda).
14.Dr. Shashi Bhushan Kumar s/o Late Hans Raj Singh, r/o Mohalla Chitragupta
Nagar, Bankmens Colony, P.O. Chitragupta Nagar P.S.Patrakar Nagar, Dist Patna.
Presently working as Lecturer, Department of Political Science (3rd Post), Allama
Iqbal College, Biharsharif (Nalanda).
15.Dr.Ravi Ranjan s/o Late Gajadhar Sharma r/o Nandani P.O.Shivaisinghpur,
P.S.Mohiuddin Nagar, Dist. Samastipur.
Presently working as Lecturer, Department of Labour & Social Welfare (1st Post),
Allama Iqbal College, Biharsharif (Nalanda).
16.Krishna Kumar Das s/o Late Yugeshwar Das r/o village Pandaul P.O. Pandaul
P.S. Pandaul District Madhubani.
Presently working as Lecturer, Department of Commerce (1st Post), Allama Iqbal
College, Biharsharif (Nalanda).
17.Sunil Kumar s/o Sri Arjun Singh r/o village Gawaspur P.O. Jaitiya Dist. Patna.
Presently working as Lecturer, Department of Political Science (4th Post), Allama
Iqbal College, Biharsharif (Nalanda).
18.Dr.Puranjay Kumar s/o Lat e Ram Narayan Singh, r/o village Dahiya P.O.
Dahiya, P.S. Paliganj Dist. Patna.
Presently working as Lecturer, Department of Geography (2nd Post), Allama Iqbal
College, Biharsharif (Nalanda).
19.Dr. Bijay Kumar s/o Sri Laddu Kumar, r/o village Lalama, P.O.Alam Nagar
District Madhepura.
Presently working as Lecturer, Department of Sanskrit (1st Post), Allama Iqbal
College, Biharsharif (Nalanda).
20.Dr. Rekha Kumari d/o J.P.Jha, resident of C/o Krishna Mohan Jha, 18 Ram
Nagri Sector -2, Ashiana Nagar, Patna.
Presently working as Lecturer, Department of Sanskrit (2nd Post), Allama Iqbal
College, Biharsharif (Nalanda).
21.Nilam d/o Sri Braj Mohan Sharma, r/o Mohalla Devi Asthan Lane,
Chiraiyantand, P.O. GPO,Patna, P.S.Jakkanpur Dist. Patna.
Presently working as Lecturer, Department of Psychology (3rd Post), Allama Iqbal
College, Biharsharif (Nalanda).
22.Dr.Ghulam Shahid s/o Md. Zamiruddin, r/o Mohalla Maharajganj P.O. Rafiganj
Dist. Aurangabad.
Presently working as Lecturer, Department of Sociology (2nd Post), Allama Iqbal
Patna High Court CWJC No.8079 of 2006 dt.27-03-2014
4/34
College, Biharsharif (Nalanda).
23.Dr. Sujit Kumar s/o Prof. Hira Lal r/o Murarpur P.O. Laheri (Biharsharif), P.S.
Laheri Dist. Nalanda.
Presently working as Lecturer, Department of Zoology (3rd Post) Allama Iqbal
College, Biharsharif (Nalanda).
24.Aftab Ahmad s/o Late Hari Abdus Subhan, r/o Mohalla Karbigahia P.O. GPO
Patna P.S.Jakkanpur Dist. Patna.
Presently working as Store Keeper (Psychology), Allama Iqbal College,
Biharsharif (Nalanda).
25.Siyasharan Jamadar s/o LzteJhapsi Jamadar, r/o village Dwarika Bigha, P.O.
Amdaura P.S.Chandi DistrictNalanda.
Presently working as Store Keeper (HKome Science), Allama Iqbal College,
Biharsharif (Nalanda).
26. Md. Shakir s/o Md. Moin, r/o Mohalla Nayatola, Phulwarisharif, P.O. & P.S.
Phulwarisharif District Patna.
Presently working as Peon, Allama Iqbal College, Biharsharif (Nalanda).
.... .... Petitioner/s
Versus
1.The State Of Bihar.
2. The Principal Secretary Human Resources Development Department (Higher
Education), Govt. of Bihar, New Secretariat, Patna.
3.The Director, Human Resources Development Department (Higher Education),
Govt. of Bihar, New Secretariat, Patna.
4.The Magadh University, Bodh Gaya, through its Vice Chancellor.
5.The Vice Chancellor, Magadh University, Bodh Gaya.
6.The Registrar, Magadh University, Bodh Gaya.
7.The Proctor, Magadh University, Bodh Gaya.
8.The Finance Office r, Magadh University, Bodh Gaya.
9.The Prof. In-charge, Allama Iqbal College, Biharsharif, Nalanda.10.The
Governing Body of Council of Allama Iqbal College & Allied Institution through
its Secretary, Shri Shah Javedy s/o Shri Abdul Wadood, Resident of C-20 New
Millat Colony, P.S. Phulwarisharif, District Patna.
.... .... Respondent/s
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Appearance :
(In CWJC No. 8079 of 2006)
For the Petitioner/s : Mr. Hemant Kumar,Adv.
For the Respondent/s : Mr. Sumant Kumar Singh, AC to GA-3
(In CWJC No. 10719 of 2007)
For the Petitioner/s : Mr. ABHINAY RAJ
For the Respondent/s : Mr. Arvind Kumar, AC to SC-28.
(In CWJC No. 9076 of 2011)
For the Petitioner/s : Mr. RAKESH KUMAR RANJAN,Adv.
For the Respondent/s : Mr. ASHOK KUMAR KESHRI, AAG11
(In CWJC No. 8230 of 2009)
For the Petitioner/s : Mr. ARUN KUMAR, Adv.
For the Respondent/s : Mr.Sanjay Pandey, GP-21.
Mr. Manish Kumar, AC to GP-21.
Patna High Court CWJC No.8079 of 2006 dt.27-03-2014
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CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY
ORAL JUDGMENT
Date: 27-03-2014 27.03.2014 Heard learned counsel for the petitioner and the State.
In all these cases, since common issue has been raised about applicability of reservation in Minority Institutions they have been heard together and are being disposed of by this common order.
For the sake of brevity, facts of CWJC No. 10719 of 2007 is being given below.
The petitioners in all the four cases are employees of Minority Institutions and their appointments have not been approved by the State of Bihar on the ground that the reservation policy as framed by the State of Bihar was not followed while making selection and appointment of candidates as teachers of Minority Institutions.
In the present case, Dayanand Kanya Primary School admittedly is a linguistic Minority institution had published an advertisement on 27th February 2004. The requisite qualification for appointment was Matric trained and later on by issuing corrigendum, qualification was changed/enhanced from Matric trained to Intermediate trained, written test was conducted and after selection of candidates, those who were found qualified in the written test, were called for interview. Anita Kumari, petitioner also participated in the interview and after adding the marks obtained in the written Patna High Court CWJC No.8079 of 2006 dt.27-03-2014 6/34 examination as well as of the interview, petitioners were appointed vide letter No. 375 dated 11th May 2004 and, accordingly, she joined the School on 21st May 2004. After acceptance of joining, the school authority informed the District Superintendent of Education, Patna about the appointment of the petitioner and later on vide letter no.56 of 2004 dated 4th December 2004 the school authority requested for approval of appointment of the petitioner.
It appears from the record that after the appointment and joining petitioner has been regularly discharging the duty of the school and on 2nd February 2005, the District Superintendent of Education inspected the school and also signed the Attendance Register of teacher where the name of petitioner was standing.
As repeatedly there was a request for approval of the appointment of the petitioners, but never any response was given by the State. For the first time on12th May 2005, the District Superintendent of Education sought some clarifications with regard to appointment of petitioner and in turn the School replied queries and had provided all materials. One of the query was related to observance of reservation policy prescribed by the State. Repeated requests were made for granting approval but no response was received. Thereafter petitioner filed CWJC No. 14432 of 2006 and during the pendency of the writ petition, the District Superintendent of Education vide Letter No. 9539 dated 13th December 2006 (Annexure-9) refused to approve Patna High Court CWJC No.8079 of 2006 dt.27-03-2014 7/34 the appointment of the petitioner. The Court after hearing the parties, quashed the said letter on the ground of nonobservance of principles of natural justice giving liberty to provide opportunity of hearing and to take fresh decision.
In pursuance of the order of this Court, petitioner filed a detailed representation providing the manner of selection was conducted by the School and made a prayer for grant of approval and payment of salary. Reminder was also given vide letter dated 26th June 2007 (Annexure-11 Series) the then District Superintendent of Education vide letter No. 5837 dated 26th July 2007 refused to grant approval of her service , thereby rejected the claim of petitioner on the ground that the School was provided with six posts of teachers by the State, out of which, four teachers were regularly appointed and three were from the general category and one from the most backward category. As the petitioner falls in the category of general category candidate, the appointment of the petitioner is against the reservation policy decision of the Government and accordingly, appointment of petitioner was not approved, vide impugned order which is under challenge before this Court.
Counsel for the petitioners submits that people of India either in Religious Minority or in Linguistic Minority have freedom of conscience and the right to freely profess, practice and propagate religion and also a right to observe and conserve their culture, Patna High Court CWJC No.8079 of 2006 dt.27-03-2014 8/34 religion and language in the manner they require. All minorities, whether based on religion or language shall have the right to establish and administer educational institution of their choice. The rights of minorities have been deliberated from Articles 25 to 30, which fall in Chapter-III of the Constitution of India deals with fundamental right of citizen of India.
He has further submitted that Articles 14 to 16 fall in Chapter-III of the Constitution which provides equality of opportunity to all citizens in the matter of appointment, employment to any office under State but exception has been granted for reservation in appointment in favour of backward class citizen. He has submitted there are two rights. One right of minority and second is right of reservation for backward class of citizen, so both fall in same chapter, it is the duty of court to strike a balance in between two rights. The minority institutions are immune from policy of reservation and they cannot be compelled to appoint the person following the reservation policy framed by the State carving out 50 per cent of the post for the backward class of citizen. If it is allowed, it will amount to encroaching upon the right of minority.
In support of his submission, counsel for the petitioners has relied upon two judgments, i.e. (2010)8 SCC 59 (Sindhi Education Society v. Govt. (NCT of Delhi) and 2011(3) PLJR 702 (Anjali Jain v. State of Bihar).
Patna High Court CWJC No.8079 of 2006 dt.27-03-2014 9/34 As has been submitted by the counsel for the petitioner where identical issue was raised about application of reservation policy of the State in the Minority Institution in the matter of the appointment of teachers. The answer that has been returned by both Courts, i.e. Hon‟ble Supreme Court and this Court that the Minority Institution cannot be asked to implement the policy of reservation and while making appointments as it would amount to encroaching upon the right and freedom of institution to select persons of their choice.
Counsel for the petitioners has also relied on the Notification (Annexure-21) (CWJC No.10719/2007) whereby the Government has issued a Gazette Notification No. 378 dated 8th July 2011 as Bihar School Examination Board (Senior Secondary) Affiliation Bye-laws. Appendix-II of the said notification is relevant which deals with the Minority Institution, provids condition for granting affiliation to the Minority Institutions. In Item no.8 of the guidelines, dealing with the applicability of reservation policy with respect to SC/ST and other backward class in the Minority Institutions for the post of teachers and other staff. Clause-5 of the said Bye-laws provides the manner the Managing Committee of the Governing Body shall be constituted. It has been provided the State does not have power directly or through the University to direct the institution or the Governing Body in the manner it is required to constitute. On that Patna High Court CWJC No.8079 of 2006 dt.27-03-2014 10/34 strength counsel for the petitioner submits that the State has authority of regulatory in nature over the Minority Institutions, i.e. the State can fix minimum qualification, experience, other similar criteria for appointment of teachers, the idea is that standard of students of minority institutions to be kept at particular level so that they can compete with students of other institutions.
Counsel for the State in contra has submitted that the reservation policy is embodied in Part-III of the Constitution of India in order to provide an opportunity of employment to the backward class of citizen of the Society. The Minority Institutions cannot deny to apply the reservation policy of the State while making appointment, they are bound to apply the policy of reservation and any infraction will be treated to be violation of the constitutional mandate.
Chapter-III of Constitution of India deals with equality of opportunity to the citizen in matter of employment in State and instru-mentality of State with exception that State has been empowered to provide reservation to backward class of citizens and in the same Chapter, right has been conferred upon religious minority and linguistic minority in the matter of freedom of conscience and freedom of profession, practice and propagation of religion and right has been conferred upon minority to establish and administer educational institutions. Both rights fall in same Chapter, it will be Patna High Court CWJC No.8079 of 2006 dt.27-03-2014 11/34 duty of Court to strike balance of two rights one for weaker section of the society as well as right of minority citizens of State. The State has right to provide provisions to regulate minority institution by way of laying down conditions consistent with requirement of ensuring merit, excellence of education and preventing maladministration, State can provide quality of teaching by prescribing minimum qualifications for teachers prescribe curriculum for infantry education but would not interfere in day-to-day administration.
The applicability of reservation in the Minority Institution has been considered in large number of judgments of the Hon‟ble Supreme Court and in one of the recent judgments i.e. in the case of Sindhi Education Society (supra) has dealt with the identical issue where the issue was raised about the applicability of reservation in the Minority Institution where the Sindhi Education Society was constituted by the Sindhi Community and was given the status of Linguistic Minority Institution. There the Government of NCT, Delhi as it was an aided School sought the compliance of reservation policy in the matter of appointment of teachers.
The Court in the case of P.A. Inamdar v. State of Maharashtra (2005)6 SCC 537 held that right conferred by Article 30 of the Constitution is more in the nature of protection for minorities. It protects minority institutions from regulatory legislations framed under Article 19(6) but still they were not immune from regulatory Patna High Court CWJC No.8079 of 2006 dt.27-03-2014 12/34 control. The Court was concerned with admission of students to different institutions where it observed that even within the scope and ambit of Article 30(1) there was a need for imposing reasonable restrictions even on the minority institutions and such direction would not vitiate and hurt the minority status. The Court has further discussed the two basic concepts - one relating to imposition of conditions with regard to the management of the institutions and secondly the power of the State to step in where there are questions of national interest. The Court allowed the permitted operations of the regulation with reference to rationality and reasonableness. It is relevant to quote certain Paragraphs from the aforesaid judgment of Sindhi Education Society (supra) which are as follows:
"Para-: 67. There are two basic concepts-- one relating to imposition of conditions with regard to the management of the institutions and secondly, the power of the State to step in where there are questions of national interest. The Court did approve the permitted operation of the committees with reference to rationality and reasonableness and the two significant matters were decided by the Court as follows: (P.A. Inamdar case27, SCC pp. 593-94 & 603, paras 103 & 134) "103. To establish an educational Patna High Court CWJC No.8079 of 2006 dt.27-03-2014 13/34 institution is a fundamental right. Several educational institutions have come up. In Kerala Education Bill „minority educational institutions‟ came to be classified into three categories, namely, (i) those which do not seek either aid or recognition from the State; (ii) those which want aid; and (iii) those which want only recognition but not aid. It was held that the first category protected by Article 30(1) can „exercise that right to their hearts' content‟ unhampered by restrictions. The second category is most significant. Most of the educational institutions would fall in that category as no educational institution can, in modern times, afford to subsist and efficiently function without some State aid. So it is with the third category. An educational institution may survive without aid but would still stand in need of recognition because in the absence of recognition, education imparted therein may not really serve the purpose as for want of recognition the students passing out from such educational institutions may not be entitled to admission in other educational institutions for higher studies and may also not be eligible for securing jobs. Once an educational institution is granted aid or aspires for recognition, the State Patna High Court CWJC No.8079 of 2006 dt.27-03-2014 14/34 may grant aid or recognition accompanied by certain restrictions or conditions which must be followed as essential to the grant of such aid or recognition. This Court clarified in Kerala Education Bill that „the right to establish and administer educational institutions‟ conferred by Article 30(1) does not include the right to maladminister, and that is very obvious. Merely because an educational institution belongs to a minority it cannot ask for aid or recognition though running in unhealthy surroundings, without any competent teachers and which does not maintain even a fair standard of teaching or which teaches matters subversive to the welfare of the scholars. Therefore, the State may prescribe reasonable regulations to ensure the excellence of the educational institutions to be granted aid or to be recognised. To wit, it is open to the State to lay down conditions for recognition such as, an institution must have a particular amount of funds or properties or number of students or standard of education and so on. The dividing line is that in the name of laying down conditions for aid or recognition the State cannot directly or indirectly defeat the very protection conferred by Article 30(1) on the Patna High Court CWJC No.8079 of 2006 dt.27-03-2014 15/34 minority to establish and administer educational institutions. Dealing with the third category of institutions, which seek only recognition but not aid, Their Lordships held that „the right to establish and administer educational institutions of their choice‟ must mean the right to establish real institutions which will effectively serve the needs of the community and scholars who resort to these educational institutions. The dividing line between how far the regulation would remain within the constitutional limits and when the regulations would cross the limits and be vulnerable is fine yet perceptible and has been demonstrated in several judicial pronouncements which can be cited as illustrations. They have been dealt with meticulous precision coupled with brevity by S.B. Sinha, J. in his opinion in Islamic Academy. The considerations for granting recognition to a minority educational institution and casting accompanying regulations would be similar as applicable to a non-minority institution subject to two overriding considerations: (i) the recognition is not denied solely on the ground of the educational institution being one belonging to minority, and (ii) the regulation is neither aimed at nor has the effect of depriving the institution Patna High Court CWJC No.8079 of 2006 dt.27-03-2014 16/34 of its minority status.
xxxxx The judgment of Kanya Junior High School, Bal Vidya Mandir v. U.P. Basic Shiksha Parishad, (2006)11 SCC 92 the Court observed that law did not contemplate granting of any higher rights to the minority as opposed to majority and it only conferred additional protection. The object of Article 30(1) of the Constitution is to see the desire of minorities that their children should be brought up properly, efficiently and acquire eligibility for higher university education. The Court further held that under the provisions of law the approval of the District Education Officer was not necessary before terminating the services of a teacher, as the institution was recognized as a minority institution.
The Hon‟ble Court in Sindhi Education Society relied on the case of Malankara Syrian Catholic College v. T. Jose, (2007)1 SCC 386 and it is relevant to quote the extract from judgment Sindhi Education Society, which is as follows:
"Para- : 69. (Sindhu Educaion Soiety) Last of the judgments, which has some bearing on the subject in question, is on the principle reiterated by a Bench of this Court in Malankara Syrian Catholic College10, where the Court again dealt with the aided minority educational institutions and terms and conditions of services of Patna High Court CWJC No.8079 of 2006 dt.27-03-2014 17/34 employees. The Court in para 12 of the judgment framed the following two questions: (SCC p. 393) "12. The rival contentions give rise to the following questions:
(i) To what extent, the State can regulate the right of the minorities to administer their educational institutions, when such institutions receive aid from the State?
(ii) Whether the right to choose a Principal is part of the right of minorities under Article 30(1) to establish and administer educational institutions of their choice. If so, would Section 57(3) of the Act violate Article 30(1) of the Constitution of India?"
The answer to Question (i) was provided in para 21 while Question (ii) was answered in paras 27 and 28 of the judgment which read as under: (SCC pp. 400 & 404) "21. We may also recapitulate the extent of regulation by the State, permissible in respect of employees of minority educational institutions receiving aid from the State, as clarified and crystallised in T.M.A. Pai. The State can prescribe:
(i) the minimum qualifications, experience Patna High Court CWJC No.8079 of 2006 dt.27-03-2014 18/34 and other criteria bearing on merit, for making appointments,
(ii) the service conditions of employees without interfering with the overall administrative control by the management over the staff,
(iii) a mechanism for redressal of the grievances of the employees,
(iv) the conditions for the proper utilisation of the aid by the educational institutions, without abridging or diluting the right to establish and administer educational institutions.
In other words, all laws made by the State to regulate the administration of educational institutions and grant of aid will apply to minority educational institutions also. But if any such regulations interfere with the overall administrative control by the management over the staff, or abridges/dilutes, in any other manner, the right to establish and administer educational institutions, such regulations, to that extent, will be inapplicable to minority institutions.
27. It is thus clear that the freedom to choose the person to be appointed as Principal Patna High Court CWJC No.8079 of 2006 dt.27-03-2014 19/34 has always been recognised as a vital facet of the right to administer the educational institution. This has not been, in any way, diluted or altered by T.M.A. Pai. Having regard to the key role played by the Principal in the management and administration of the educational institution, there can be no doubt that the right to choose the Principal is an important part of the right of administration and even if the institution is aided, there can be no interference with the said right.
The fact that the post of the Principal/ Headmaster is also covered by State aid will make no difference.
28. The appellant contends that the protection extended by Article 30(1) cannot be used against a member of the teaching staff who belongs to the same minority community. It is contended that a minority institution cannot ignore the rights of eligible lecturers belonging to the same community, senior to the person proposed to be selected, merely because the institution has the right to select a Principal of its choice. But this contention ignores the position that the right of the minority to select a Principal of its choice is with reference to the assessment of the person‟s outlook and philosophy and ability Patna High Court CWJC No.8079 of 2006 dt.27-03-2014 20/34 to implement its objects. The management is entitled to appoint the person, who according to them is most suited to head the institution, provided he possesses the qualifications prescribed for the posts. The career advancement prospects of the teaching staff, even those belonging to the same community, should have to yield to the right of the management under Article 30(1) to establish and administer educational institutions."
The above answers to the questions formulated demonstrate that the Court has kept a clear line of distinction between laws made by the State to regulate the administration of educational institutions receiving grant-in-aid but if such regulations interfere with overall administrative control by the management over the staff or abridges or dilutes, in any other manner, the right to establish and administer educational institutions, in that event, to such extent, the regulations will be inapplicable to the minorities.
The Court ultimately arrived to the conclusion that the Court has kept line of distinction between the laws made by the State to regulate the Patna High Court CWJC No.8079 of 2006 dt.27-03-2014 21/34 administration of educational institutions and the grant of aid which will apply to the minority educational institutions also. But if any such regulations interfere with the overall administrative control by the management over the staff, or abridges/dilutes in any other manner, the right to establish and administer educational institutions, such regulations, to that extent will be inapplicable to Minority Institutions and later on proceeded to deal with applicability of equality clause of the Constitution enshrined in Article 14 and the policy of the State in making reservation in the appointment. Both the rights are fundamental rights. It has to be balanced and it has to be kept in mind that Articles 14, 16 are under Chapter III as well as Articles 25 to 30. The Court has held that merely because the Minority Institutions are receiving grant in aid they did not come under „State‟ within the meaning of Article 12 of the Constitution.
The Court relying on the judgment of T.M.A.Pai Foundation v. State of Karnataka, (2002)8 SCC 481 held that right under Article 30(1) of the Constitution is not absolute but subject to reasonable restriction which inter alia can be framed having regard o the public interest. Regulation can also be framed to protect the Patna High Court CWJC No.8079 of 2006 dt.27-03-2014 22/34 interest of the Minority Institutions.
The Court has further held that a Minority Institutions may have its own procedure and method of selection but it has to be a fair transparent method. A provision of law or a circular applicable to general institution with the same rigors against the minority institution, particularly where it relates to establishment and management of the School cannot be applied. The Court has held that there is a fine distinction between the restriction on right of administration and a regulation prescribing the manner of administration. What should be prevented is the maladministration Just as regulatory measures are necessary for maintaining the educational character and content of the minority institutions, regulatory measures are necessary for ensuring orderly, efficient and sound administration.
Article 16 ensures equality of opportunity in the matter of public employment again has been worded so as to prohibit discrimination and at the same time, vests the State with power to make provisions, law and reservations in relation to particular class or classes of persons. The Court was of the view that reservation, as such, will be applicable in relation to service under the State. The minority institutions only because they are getting aid cannot be treated to be a State or instrumentality of the State under Article 12 of the Constitution. It will be relevant to quote Para, 82, 83, 84, 85,111, Patna High Court CWJC No.8079 of 2006 dt.27-03-2014 23/34 112, 113, 118 and 119 Sindhu Education Society (supra) judgment, which are as follows:
"Para- 82. The logical impact of Article 30(2) read with the provisions of the DSE Act and the Rules framed thereunder is that, to receive grant-in-aid is a legitimate right of a school subject to satisfying the requirements of law. Article 30(2) thus, has been worded in a negative language not permitting the State to discriminate the minority institution in relation to the matters of grant-in-aid.
Para-83. Article 15(5) of the Constitution excludes the minority educational institutions from the power of the State to make any provision by law for the advancement of any socially or educationally backward classes of the citizens or for Scheduled Castes and Scheduled Tribes in relation to their admission to educational institutions including private educational institutions whether aided or unaided. This article is capable of very wide interpretation and vests the State with power of wide magnitude to achieve the purpose stated in the article. But, the framers of the Constitution have specifically excluded minority educational Patna High Court CWJC No.8079 of 2006 dt.27-03-2014 24/34 institutions from the operation of this clause.
Para-84. Article 16 which ensures equality of opportunity in matters of public employment again has been worded so as to prohibit discrimination and, at the same time, vests the State with power to make provisions, laws and reservations in relation to a particular class or classes of persons. It is of some significance to notice that power of the State to exercise such power is in relation to the "service under the State". This expression has been used in all the clauses of the article which relate to providing of employment and framing of laws/reservations in those categories. Upon its true construction, this expression itself is capable of a wide construction and must be construed liberally and cannot be restricted to its narrow sense.
Para-85. The expression "service under the State" would obviously include service directly under the State Government or its instrumentalities and/or even the sectors which can be termed as State within the meaning of Article 12 of the Constitution. Once an organisation or society falls outside the ambit of this circumference, in that event, it will be Patna High Court CWJC No.8079 of 2006 dt.27-03-2014 25/34 difficult for the courts to hold that the State has a right to frame such laws or provisions or make reservations in the field of employment for those societies.
"Para- 111. A linguistic minority has constitution and character of its own. A provision of law or a circular, which would be enforced against the general class, may not be enforceable with the same rigours against the minority institution, particularly where it relates to establishment and management of the school. It has been held that founders of the minority institution have faith and confidence in their own committee or body consisting of the persons selected by them. Thus, they could choose their managing committee as well as they have a right to choose its teachers. Minority institutions have some kind of autonomy in their administration.
This would entail the right to administer effectively and to manage and conduct the affairs of the institution. There is a fine distinction between a restriction on the right of administration and a regulation prescribing the manner of administration. What should be prevented is the maladministration. Just as Patna High Court CWJC No.8079 of 2006 dt.27-03-2014 26/34 regulatory measures are necessary for maintaining the educational character and content of the minority institutions, similarly, regulatory measures are necessary for ensuring orderly, efficient and sound administration.
Para-112: Every linguistic minority may have its own social, economic and cultural limitations. It has a constitutional right to conserve such culture and language Thus it would have a right to choose teachers, who possess the eligibility and qualifications, as provided, without really being impressed by the fact of their religion and community. Its own limitations may not permit, for cultural, economic or other good reasons, to induct teachers from a particular class or community. The direction, as contemplated under Rule 64(1)(b), could be enforced against the general or majority category of the government-aided schools but, it may not be appropriate to enforce such condition against linguistic minority schools. This may amount to interference with their right of choice and, at the same time, may dilute their character of linguistic minority. It would be impermissible in law to bring such actions under the cover of equality which in Patna High Court CWJC No.8079 of 2006 dt.27-03-2014 27/34 fact, would diminish the very essence of their character or status. Linguistic and cultural compatibility can be legitimately claimed as one of the desirable features of a linguistic minority in relation to selection of eligible and qualified teachers.
Para:113 A linguistic minority institution is entitled to the protection and the right of equality enshrined in the provisions of the Constitution. The power is vested in the State to frame regulations, with an object to ensure better organization and development of school education and matters incidental thereto. Such power must operate within its limitation while ensuring that it does not , in any way, dilutes or impairs the basic character of linguistic minority. Its right to establish and administer has to be construed liberally to bring it in alignment with the constitutional protections available to such communities.
Para:118. It is a settled canon of administrative jurisprudence that State action must be supported by some valid reasons and should be upon due application of mind. In the affidavits filed on behalf of the State, nothing in this regard could be Patna High Court CWJC No.8079 of 2006 dt.27-03-2014 28/34 pointed out and in fact none was pointed out during the course of arguments. Absence of reasoning and apparent non-application of mind would give colour of arbitrariness to the State action. This aspect attains greater lucidity in the light of the well-accepted norm that minority institution cannot stand on the same footing as a non-minority institution.
Para:119. Besides that, State actions should be actio quaelibet it sua via and every discharge of its duties, functions and governance would also be within the constitutional framework. This principle equally applies to the Government while acting in the field of reservation as well. It would not be possible for the courts to permit the State to impinge upon or violate directly or indirectly the constitutional rights and protections granted to various classes including the minorities. Thus, the State may not be well within its constitutional duty to compel the linguistic minority institutions to accept a policy decision, enforcement of which will infringe their fundamental right and/or protection. On the contrary, the minority can validly question such a decision of the State in law. The service in an aided linguistic minority Patna High Court CWJC No.8079 of 2006 dt.27-03-2014 29/34 school cannot be construed as „a service under the State‟ even with the aid of Article 12 of the Constitution. Resultantly, we have no hesitation in coming to the conclusion that Rule 64(1)(b) cannot be enforced against the linguistic minority school. Having answered this question in favour of the appellant and against the State, we do not consider it necessary to go into the constitutional validity or otherwise of Rule 64(1)(b) of the Rules, which question we leave open."
Hon‟ble Supreme Court, arrived to a conclusion that as the Minority Institutions is a class itself, employment in the Minority Institutions cannot be treated as the employment in the State merely because it has received the grant from the State.
In the Anjali Jain (supra) somewhat similar issue was raised and the Court held, the Minority Institution either religious or linguistic, it constitutes a separate class and law of reservation cannot be enforced. It will be appropriate to quote Para 37 and 39 of the judgment which are as follows:
"Para-37: In my view, the principles that emerged from the above referred decisions is that so far as minority educational institutions are concerned, the State has the power to regulate its functioning in a limited Patna High Court CWJC No.8079 of 2006 dt.27-03-2014 30/34 sense which should not contravene the fundamental rights which has been guaranteed to them under Article-30 (1) of the Constitution. A Minority Institution cannot be denied aid on the ground that it is not agreeable to conform to Government directives which are not for the purposes of enforcing excellence in education and efficiency in Management. The intrusion by regulation of State into the right to establish and administer educational institution of their choice is permissible only to that extent and not beyond. Even though the regulation made, otherwise be in general public interest, by receiving aid, they cannot be forced or asked to surrender their autonomy as guaranteed under Article 30 (1) of the Constitution. Enforcement of reservation policy may be of general public importance and benefit but it cannot be applied to aided minority educational institutions who are free to choose and appoint Teachers and staff subject to minimum educational and academic qualifications being complied with. The requirement of grant of approval would only be limited to evaluating that they meet the educational and academic qualifications required for the post and not beyond that. These considerations by the State cannot take decades, as in the present cases, as this Patna High Court CWJC No.8079 of 2006 dt.27-03-2014 31/34 can be easily evaluated in matter of moment and, hence, approval cannot be kept pending for a long time, longer than necessary to evaluate the qualifications. Subject to the minimum standards of educational and academic, the approval of appointment would be as a matter of right.
Para-39: In view of the aforesaid, the situation in the present cases that emanates is that only because the Management of the recognized Minority‟s Educational Institution failed to comply with Government decision and departmental circulars in respect of conforming to the State‟s reservation policy, the disapproval cannot be upheld. It must, therefore, be held that the disapproval is unconstitutional and invalid. It would, thus, follow that there being no other impediment, the selection and appointment of the two writ petitioners cannot be disapproved and have to be approved from the date when they were selected and appointed with all consequential benefits. To clarify, if the petitioners had been working consequent to their selection and appointment and consequently, had their appointment been approved, they became entitled to be paid out of Government aid, now they would be so paid and the Government would be obliged to make provision for it immediately after grant Patna High Court CWJC No.8079 of 2006 dt.27-03-2014 32/34 of approval of their selection and appointment which could be done by the concerned officers including the Director, Primary Education, Government of Bihar within a period of three months from today. It shall be the responsibility of the Director to see that the orders of this Court are complied with in all respects within the time fixed".
The Government has come forward with a bye-law vide 9/Bi.Vi.Pa.Sa (U.Ma)-08/08/375 dated 8th July 2011 providing under what circumstances affiliation to the Schools would be granted and Appendix-II specifically deals with the Minority Institutions. It will be apt to quote Clause-5 and 8 of the bye-laws which are as follows:
Clause-5: Constitution of Governing Bodies in Minority Educational Institutions. - The Minority educational institution must be free to induct competent and reputed individuals from other communities in the Managing Committees/Governing Bodies. The minority character of institutions is not impaired so long as the constitution of Managing Committee/Govern Body provides for an effective majority to the members of the minority community.
The State should not have any power, directly or through the University, to direct the constitution of Patna High Court CWJC No.8079 of 2006 dt.27-03-2014 33/34 the governing bodies in a manner so as to deprive a majority of the effective administration of its educational institutions. However, the State or the University may lay down general guidelines to ensure that only qualified persons find a place in the Governing Bodies.
Clause-8 Appointment of Teachers in Minority Educational Institutions. - The Government cannot enforce the rules of reservation in favour of Scheduled Castes. Scheduled Tribes and other Backward classes for the post of teachers and other staff in minority educational institutions." These clauses provide that the Government would not enforce reservation policy in favour of SC, ST and other backward classes in the Minority Institution for the appointment of teaching and non- teaching staff. This shows the Government has reversed the earlier policy about applicability of reservation policy while making appointment in the Minority Institutions.
In view of above discussion, employment in the minority institutions is not an employment in this State or instrumentality of State, the Government under this regulatory power of the State cannot enforce its reservation policy for backward class of citizen. In this view of the matter, the respective impugned orders are quashed and Patna High Court CWJC No.8079 of 2006 dt.27-03-2014 34/34 the respondent concerned is directed to take a decision in terms of principles decided hereinabove.
The Director, Education, Bihar is directed to take a decision within three months from the date of receipt/production of copy of this order. If he comes to the conclusion that the appointment of petitioners were legal and proper, release the fund so that payments may be made to the petitioners without further delay.
With the above observations/directions these writ petitions are allowed.
Jay/- __ (Shivaji Pandey, J) |__| U |__| T