Patna High Court
Kumari Shanti vs The State Of Bihar & Ors on 16 May, 2016
Author: Shivaji Pandey
Bench: Shivaji Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.5096 of 2013
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Badal Kumar S/O Vijay Kumar Rao R/O Village- Laukariya, P.S.- Bairiya,
District- West Champaran At Bettiah
.... .... Petitioner/s
Versus
1. The State Of Bihar
2. The Principal Secretary Department Of Human Resources, Vikas Bhawan,
New Secretariat, Bihar, Patna
3. The Director, Primary Education Vikas Bhawan, New Secretariat, Bihar, Patna
4. The District Education Officer, West Champaran At Bettiah
5. The District Programme Officer (Establishment), West Champaran At Bettiah
6. The Managing Committee, Non-Government Aided Janta Middle School
Khenhar Rao, Laukariya, West Champaran At Bettiah Through Its Secretary
7. The Secretary, Non-Government Aided Janta Middle School Khenhar Rao,
Laukariya, West Champaran At Bettiah
8. The Headmaster Non-Government Aided Janta Middle School, Khenhar Rao,
Laukariya, West Champaran At Bettiah
.... .... Respondent/s
with
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Civil Writ Jurisdiction Case No. 5815 of 2013
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1. Abhishek Kumar Son Of Rajeev Yadav Resident Of Village - Sirsia, P.S. -
Sathi, District - West Champaran
2. Shailesh Kumar Son Of Ram Sunder Prasad Resident Of Village - Purvi
Kargahia, P.S. - Bettiah, District - West Champaran
.... .... Petitioner/s
Versus
1. The State Of Bihar
2. The Principal Secretary, Department Of Human Resources, Vikas Bhawan,
New Secretariat, Bihar, Patna
3. The Director, Primary Education, Vikas Bhawan, New Secretariat, Bihar, Patna
4. The District Education Officer, West Champaran At Bettiah
Patna High Court CWJC No.5096 of 2013 dt._16-05-2016 2
5. The District Programme Officer (Establishment), West Champaran At Bettiah
6. The Managing Committee, Non-Government Aided Janta Middle School ,
Murli, Sathi, Narkatiyaganj, District - West Champaran At Bettiah Through Its
Secretary
7. The Secretary, Non-Government Aided Janta Middle School, Murli, Sathi,
Narkatiyaganj, District West Champaran At Bettiah
8. The Headmaster, Non-Government Aided Janta Middle School, Murli, Sathi,
Narkatiyaganj, District - West Champaran At Bettiah
.... .... Respondent/s
with
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Civil Writ Jurisdiction Case No. 5189 of 2013
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Uma Shankar Prasad Son Of Late Bindhyachal Prasad Resident Of Village - Murli,
P.S. - Sathi, District - West Champaran
.... .... Petitioner/s
Versus
1. The State Of Bihar
2. The Principal Secretary, Department Of Human Resources, Vikas Bhawan,
New Secretariat, Bihar, Patna
3. The Director, Primary Education, Vikas Bhawan, New Secretariat, Bihar, Patna
4. The District Education Officer, West Champaran At Bettiah
5. The District Programme Officer (Establishment) , West Champaran At Bettiah
6. The Managing Committee, Non Government Aided Janta Middle School,
Murli, Sathi, Narkatiyaganj, District West Champaran At Bettiah Through Its
Secretary
7. The Secretary, Non-Government Aided Janta Middle School, Murli, Sathi,
Narkatiyaganj, District - West Champaran At Bettiah
8. The Headmaster, Non-Government Aided Janta Middle School, Murli, Sathi,
Narkatiyaganj, District West Champaran At Bettiah
.... .... Respondent/s
with
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Civil Writ Jurisdiction Case No. 5187 of 2013
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Patna High Court CWJC No.5096 of 2013 dt._16-05-2016 3
Abdur Raqueeb Son Of Md. Muztaba Resident Of Village- Thumka, P.S.- Sikta,
District- West Champaran At Bettiah
.... .... Petitioner/s
Versus
1. The State Of Bihar
2. The Principal Secretary, Department Of Human Resources, Vikas Bhawan,
New Secretariat, Bihar, Patna
3. The Director, Primary Education, Vikas Bhawan, New Secretariat, Bihar, Patna
4. The District Education Officer, West Champaran At Bettiah
5. The District Programme Officer (Establishment), West Champaran At Bettiah
6. The Managing Committee, Non-Government Minority Aided School, Chhawni,
West Champaran At Bettiah Through Its Secretary
7. The Secretary, Non-Government Minority Aided School, Chhawni, West
Champaran At Bettiah
8. The Headmaster, Non-Government Minority Aided School, Chhawni, West
Champaran At Bettiah
.... .... Respondent/s
with
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Civil Writ Jurisdiction Case No. 6380 of 2013
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1. Kumari Shanti W/O Ajay Kumar R/O Village- Murli, P.S.- Sathi, District- West
Champaran
2. Sushil Kumar Prasad S/O Pahwari Prasad R/O Village- Murli, P.S.- Sathi,
District- West Champaran
.... .... Petitioner/s
Versus
1. The State Of Bihar
2. The Principal Secretary Department Of Human Resources, Vikas Bhawan,
New Secretariat, Bihar, Patna
3. The Director, Primary Education Vikas Bhawan, New Secretariat, Bihar, Patna
4. The District Education Officer, West Champaran At Bettiah
5. The District Programme Officer (Establshment), West Champaran At Bettiah
6. The Managing Committee Non-Government Aided Jant Middle School, Murli,
Sathi, Narkatiyaganj, District- West Champaran At Bettiah Through Its
Patna High Court CWJC No.5096 of 2013 dt._16-05-2016 4
Secretary
7. The Secretary Non-Government Aided Janta Middle School, Murli, Sathi,
Natkatiyaganj, District- West Champaran At Bettiah
8. The Headmaster Non-Government Aided Janta Mddle School, Murli, Sathi,
Narkatiyaganj, District- West Champaran At Bettiah
.... .... Respondent/s
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Appearance :
(In CWJC No.5096 of 2013)
For the Petitioner/s : Mr. Sanjay Kumar, Adv.
For the Respondent/s : Mr. Subhash Pd. Singh, GA-7
(In CWJC No.5815 of 2013)
For the Petitioner/s : Mr. Sanjay Kumar, Adv.
For the Respondent/s : Mr. Rajiv Roy
(In CWJC No.5189 of 2013)
For the Petitioner/s : Mr. Sanjay Kumar, Adv.
For the Respondent/s : Mr. Ravindra Nath Dubey, AAG-12
(In CWJC No.5187 of 2013)
For the Petitioner/s : Mr. Sanjay Kumar, Adv.
For the Respondent/s : Mr. Anshuman Singh, GP-24
(In CWJC No.6380 of 2013)
For the Petitioner/s : Mr. Sanjay Kumar, Adv.
For the Respondent/s : Mr. Prashant Pratap
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CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY
ORAL JUDGMENT
Date: 16-05-2016
In a group of these writ applications, as identical question
of law is involved, these writ applications are being disposed of by
this common order.
For convenience, the fact of CWJC No. 5096 of 2013
(Badal Singh Vs. The State of Bihar & Ors.) is being considered for
the disposal of group of writ applications.
The matter relates to appointment of Assistant Teacher of
non-government aided minority institution (hereinafter to be referred
Patna High Court CWJC No.5096 of 2013 dt._16-05-2016 5
to as 'the said school'). The said school published an advertisement
on 27.3.2007 for the purpose of appointment of Assistant Teacher and
the last date for submission of form was fixed on 16.4.2007. In the
said advertisement, requisite qualification has been mentioned as
Intermediate or equivalent with teacher training course. The date of
interview was fixed on 21.4.2007 in terms of the advertisement. The
petitioner and four others applied for the post of Assistant Teacher. As
none of them were having training degree, the petitioner was found
most suitable and was selected as Assistant Teacher. The management
of the school vide letter dated 4.5.2007, communicated to join the
school, accordingly, he joined the post of Assistant Teacher on
1.5.2007. While working as a Teacher, he was sent for teacher training and he successfully completed the training. The petitioner again joined the school on 5.4.2011. As per Rule, being minority institution, the Managing Committee vide order dated 20.12.2011 sent a letter to the District Programme Officer for granting approval and fixation of the salary. The District Programme Officer vide letter dated 31.12.2011 (Annexure-6) granted approval to the services of the petitioner. After lapse of a period of about nine month, the District Education Officer vide letter dated 27.9.2012 issued a show-cause to the Managing Committee about the illegal appointment and a show- cause was also given to the petitioner. On receipt of the show-cause, Patna High Court CWJC No.5096 of 2013 dt._16-05-2016 6 the Managing Committee sent its show-cause reply dated 24.11.2012 wherein it has been mentioned that the appointment of the petitioner is legal and suffers from no illegality. The District Education Officer, not being satisfied with the explanation, again issued a letter to the Secretary of the said school as well as to the petitioner informing that they may participate in the hearing on 14.12.2012 with respect to the appointment of the petitioner. The District Education Officer, West Champaran, Betiah vide his letter no. 6683 dated 27/29.12.2012 found the appointment of the petitioner illegal and the approval of service granted to the petitioner has been withdrawn. In the impugned letter, following grounds have been motioned, namely, for the appointment of the teacher, no advertisement was published in the news paper and without any advertisement, in place of trained teacher, untrained person without following the roaster point of reservation and without participation of the representative of the State, have been appointed. It has further been mentioned that without following the proper procedure, the petitioner has been appointed.
Learned counsel for the petitioner submits that the impugned order suffers from illegality on the ground that when the petitioner has filed the show-cause, it was the duty of the authority to consider the case and pass a reasoned order which has not been done nor proper reason has been assigned for withdrawing the approval Patna High Court CWJC No.5096 of 2013 dt._16-05-2016 7 granted to the petitioner. As the said school is a minority school having been protected by Article 29 and 30 of the Constitution of India, the State has the jurisdiction to frame rules for regulating measures with avowed object of maintaining standard of educational level of the institution so that student of minority can march along with rest of the students of country but, cannot interfere in the management of the minority institution. It has been submitted that the letter of the Government dated 4.3.1993 is completely in the nature of interference with the working of the Board of Management in the administration. It has further been stated that the appointment of teacher is part of administrative function which is immune from the interference of State Government. He has further stated that so far the appointment of untrained teacher is concerned, in this connection, it has been mentioned that it is in consonance with the circular no. 3829 dated 26.7.1974 and after obtaining the training, the proposal was sent for the approval of the service of the petitioner. Though the petitioner was appointed as an untrained teacher and it was made clear at the time of appointment, the payment would be made after receipt of the grant from the Government and so much so that the application for approval was sent only when the petitioner acquired degree of training. It has been argued that the minority institution cannot be compelled to make provision of reservation to the person of socially Patna High Court CWJC No.5096 of 2013 dt._16-05-2016 8 backward, scheduled caste and scheduled tribes citizen of India. The minority institution, religious or linguistic have been given protection as provided under Article 29 and 30 of the Constitution of India. In such view of the matter, the minority institution cannot be compelled to follow the reservation policy of the State, inasmuch as, it has further been argued that the management of the said school cannot be compelled to issue the presence of government representative in the matter of selection of the teacher as it would be interference with the working of the management of the school. It has further been argued that once an approval was granted, the successor has no jurisdiction to review and recall the earlier decision of granting approval. It is not so the appointment has been made without due process, but facts remains that as per the Bye-Law of the school, the appointment has been made by making a local advertisement and also pasting the notices at appropriate conspicuous places including in the notice board of the school. The procedure has been followed in terms of the bye-laws of the school is sufficient compliance of the proper selection. He has placed reliance of the following judgments in the case of The Ahmedabad St. Xaviers College Society & Anr. Etc. Vs. State of Gujarat & Anr. reported in AIR 1974 SC 1389, Anjali Jain & Anr. Vs. The State of Bihar & Ors. reported in 2011(3) PLJR 702, T.M.A. Pai Foundation & Ors. Vs. State of Karnataka & Ors. reported in 2003(1) PLJR 1 SC, Sidhrajbhai Sabbai & Patna High Court CWJC No.5096 of 2013 dt._16-05-2016 9 Ors. Vs. State of Gujarat & Anr. reported in 1963 SC 540 in such view of the impugned order is completely bad in law, it suffers from illegality on account of interfering with the working of the management whereas in terms of the repeated judgments of the Hon'ble Supreme Court, they do have a power for regulation but has no jurisdiction of interfering with the working of the management committee of the school. It has further been submitted that though at the initial stage, the petitioner was untrained teacher but when the Managing Committee sought approval, at that time, he had received training and whatever be the deficiency were there have been removed. He has further submitted that on many occasions, in general teacher, the persons were appointed as untrained teacher and later on they were sent for training and their services have still not been terminated. The requisite qualification is not to be seen what was there at the time of advertisement rather at the time of approval of the services of the petitioner by the State Government. Placed reliance on the judgment in the case of The State of Bihar & Ors. Vs. Ashok Kumar Sinha & Ors. reported in 2008(4) PLJR 298. It has further been stated that if the order is being passed on different grounds and one of the ground is found to be unsustainable, the entire order will go. In support of his submission, he has placed reliance on the judgment in the case of The State of Maharashtra Vs. Babulal Kriparam Takkamore & Ors. reported in Patna High Court CWJC No.5096 of 2013 dt._16-05-2016 10 AIR 1967 SC 1353 Paragraph 15. It has further been submitted that the order shows that there was a ban in the appointment, cannot be extended to the minority school as the ban was applicable only to the government school otherwise it would amount to interference with the worker of the minority institution.
Per contra, the State has argued that the appointment suffers from illegality of such nature which can neither waived nor condoned, placed reliance on the judgment of the Hon'ble Supreme Court, State of Bihar Vs. Upendra Narayan Singh & Ors. reported in 2009(4) PLJR 73 (SC). The appointment has not been made after proper due advertisement, circulation of notice known to general public, second the petitioner on the date of selection had no requisite qualification which makes it vulnerable of illegality. Mere subsequent acquisition degree of training will not remove the tag of illegal appointment as it has to be seen the qualification at the time of his entry not at the time of approval. He has further submitted that though the State cannot interfere with the working of the minority institution but have regulatory jurisdiction and, in that capacity, the State has a power to frame rule in what would be qualification of teacher, manner the selection of teachers would be made as the primary idea is that there should be a proper selection of teacher so that the students of the minority institution can march along with the students of general Patna High Court CWJC No.5096 of 2013 dt._16-05-2016 11 school. He has further placed reliance in the case of All Bihar Christian Schools Association & Anr. Vs. State of Bihar & Ors. reported in AIR 1988 SC 305, submitted that there is power to review of earlier administrative order when it is found that the illegality has been committed and regulate/review the approval granted to the petitioner with regard to appointment. In reply, the counsel for the petitioner submits that if the appointment was illegal at the entry point but when the matter came for approval, he had already acquired the degree and, as such, whatever be the illegality, was not in existence, on the date of approval of appointment of the petitioner. He has further reliance on the judgment of this Court in the case of Rizwan Ahmad Azad Vs. The State of Bihar & Ors. reported in 2016(1) PLJR 80 and in the case of The State of Bihar & Ors. Vs. Ashok Kumar Sinha & Ors. reported in 2008(4) PLJR 298. He has further submitted that in the matter of appointment of less than five posts, no need to call the name from the employment exchange and placed reliance in the judgment of this Court in the case of Abhay Kumar Rai & Ors. Vs. The State of Bihar & Ors. reported in 2001(4) PLJR 245 and in the case of Christian Medical College Hospital Employees' Union & Anr. Vs. Christian Medical College Vellore Association & Ors. reported in AIR 1988 SC 37. He has further emphasized that the show-cause which was filed by the petitioner was not gone through properly and, as such, the order impugned suffers from illegality on Patna High Court CWJC No.5096 of 2013 dt._16-05-2016 12 account of non-speaking order based on whim and caprices.
Learned counsel for the State has pointed out that the petitioner has never filed any show-cause rather he has placed reliance on the show-cause filed by the Secretary of the school and he cannot blame and claim illegality on the non-consideration of the show- cause.
In that view of the mater, this Court has to decide in view of minority tag of the institution, how far it may claim immunity from Reservation Act framed by the State Government.
In constitutional mechanism, Part-III deals with the fundamental right of the citizen. Article 14 provides equality clause which says that every person is equal before the law and will get equal protection of law. Article 15 provides prohibition of discrimination on grounds of religion, race, caste, sex or place of birth. Article 15(5) has been inserted in the Constitution by 93rd Amendment Act, 2005 has been enforced with effect from 20.1.2006. Article 15(1) provides that there should not be discrimination against any citizen on grounds of religion, race, caste, sex, place of birth or any of them but clause-4 & 5 has made an exception. Article 15(4) provides that nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the scheduled castes Patna High Court CWJC No.5096 of 2013 dt._16-05-2016 13 and schedules tribes. Article 15(5) stipulates that nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of Article 30. Article 16 deals with the equality of opportunity in matters of employment which cognitivity with present case. Article 16(1) of the Constitution provides that there shall be equality of opportunity for all citizen in the matter of employment or appointment to any office under the State. Article 16(4), (4A) and 4(B) enables the State to make provisions of reservation of post in favour of any backward class of citizen and make provision for reservation in promotion for scheduled caste and scheduled tribe category of citizen. In the same part, special right/special protection has been conferred by way of fundamental right to the minorities, religious minority institution as well as to the linguistic minority which have been stipulated in Article 29 and 30 of the Constitution of India. Article 29 provides protection of interests of minorities. Any section of the citizens residing in the territory of India or any part Patna High Court CWJC No.5096 of 2013 dt._16-05-2016 14 thereof having a distinct language, script or culture of its own shall have the right to conserve the same. Clause 2 of Article 29 provides no citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them. Article 30 deals with right of linguistic as well as religious minorities to establish and administer educational institutions of their choice. Article 30(2) of Constitution provides that the State will not refuse to give aid to educational institution on the ground that it is under the management of minority whether based on religion or languages. In the present case, all the institutions are minority institutions. The minority institutions may be categorized in three classes. First educational institutions are neither seeking aid nor recognition from the State. The second institutions are those which want aid and the recognition and the third one educational institution which wants only recognition and not aid. Minority institutions falling in the first category are free to administer their institution in the manner they like. State has no power under the Constitution to place any restriction on the right of administration, this does not mean that unaided minority institution is immune from administration of general law. A minority institution cannot claim immunity from the contract law, tax measures, economic regulations, social welfare, Labour Industrial Law and similar other Patna High Court CWJC No.5096 of 2013 dt._16-05-2016 15 measures which are mean to meet the need of institution but, institutions falling within the second and third category are subject to regulatory provisions made by the State. It is attached to the State to prescribe the condition for granting recognition. The object and purpose of prescribing regulations is to ensure that minority institutions do not fall below the standard of excellence expected of an educational institution and that they do not fall outside the mainstream of the nation. A minority institution must also be fully equipped with educational excellence to keep pace with others in the State otherwise the students coming out of such institutions will not be fully equipped to serve the society or the nation. While the State has every right to prescribe conditions for granting recognition or disbursing aid, it cannot under the guise of that power prescribe onerous conditions compelling the minority institutions to surrender their rights of administration to the government. On the one hand the State is under an obligation to ensure that educational standards in the recognized institutions must be according to the need of the society and according to standards which ensure the development of personality of the students in turning out to be civilized, useful members of the society, and to ensure that the public funds disbursed to the minority institutions are properly utilized. On the other hand the State has to respect and honour minority rights under Article 30(1) in the matter of Patna High Court CWJC No.5096 of 2013 dt._16-05-2016 16 establishing and carrying on of administration of institution of their choice. In order to reconcile these two conflicting interests, the State has to strike a balance and statutory provisions should serve both the objects and such statutory provisions have to withstand the test of Article 30(1) of the Constitution of India. In this chapters itself, Article 15 and 16 are on side and Article 29 in on other side are two competing rights and both the articles fall under the same part of the Constitution. So both the rights have to be harmonized in such manner which should sub-serve the interest to the minority institution as well as minorities citizen must be assimilated in mainstream of society in such manner, hardly make any difference with the rest of society and contribute to the nation and people of the State. It has to be kept in mind that there should be a teacher of standard in the minority institution so that the students who are getting education may match with the rest of the students of the general school. The right of minority institution as well as the duty of the State should be arranged in such manner, the State should remain within Laxman Rekha of regulating of minority institutions and it should not cross that line it may turn to interference in the right of minority institutions. In what manner the State would regulate the functioning of the minority institution came for consideration on different occasion before the Hon'ble Supreme Court as well as in this Court, held that the State Patna High Court CWJC No.5096 of 2013 dt._16-05-2016 17 has a jurisdiction to frame the rule in such a manner to regulate the working of the minority institution and the view has been taken that the State should not interfere with the administration of the management of the minority institution. The State can fix the syllabus for teaching. It can fix the educational qualification of teacher, the mode of their selection but the State cannot interfere with the matter of selection of teacher of the minority school. It lies completely within the domain of the management and the State has been prohibited to interfere in the matter. It will be relevant to examine some judgments of the Hon'ble Supreme Court as well as this Court directly dealing with this aspect of the matter. First of its kind, dealing with competing right of the State vis-à-vis constitutional right and constitutional protection conferred upon and the minority institution. The Kerala Education Bill, 1957 Reference case reported in 1958 SC 956 = 1959 SCR 995. In the Kerala Education Bill, 1957, a provision was made for reservation in the minority institution, was seriously objected was referred to the President for assent. The President of India had some doubt to some clauses of the said bill which was touching the right of the minority institution. The Hon'ble Court considered the right of minority institution as adumbrated under Article 30 (1) of the Constitution of India. The Court adverted it does not say that minorities based on religion should establish educational institutions Patna High Court CWJC No.5096 of 2013 dt._16-05-2016 18 for teaching religion only, or that linguistic minorities should have the right to establish educational institutions for teaching their language only but the article say that the religious and the linguistic minorities should have the right to establish educational institutions of their choice no limitation placed on the subjects to be taught in such educational institutions, as such minorities will ordinarily desire that their children should be brought up properly and efficiently and be eligible for higher university education and go out in the world fully equipped with such intellectual attainments as will make them fit for entering the public services, educational institutions of their choice will necessarily include institutions imparting general secular education also. The court has held in the following terms:-
"-------The first point to note is that the Article gives certain rights not only to religious minorities but also to linguistic minorities. In the next place, the right conferred on such minorities is to establish educational institutions of their choice. It does not say that minorities based on religion should establish educational institutions for teaching religion only, or that linguistic minorities should have the right to establish educational institutions for teaching their language only. What the article say and means is that the religious and the linguistic minorities should have the right to establish educational institutions of their choice. There is no limitation placed on the subjects to be taught in such educational institutions. As such minorities will ordinarily desire that their children should be brought up properly and efficiently and be eligible for higher university education and go out in the world fully equipped with such intellectual Patna High Court CWJC No.5096 of 2013 dt._16-05-2016 19 attainments as will make them fit for entering the public services, educational institutions of their choice will necessarily include institutions imparting general secular education also. In other words, the Article leaves it to their choice to establish such educational institutions as will serve both purposes, namely, the purpose of conserving their religion, language or culture, and also the purpose of giving a thorough, good general education to their children. The next thing to note is that the Article, in terms, gives all minorities, whether based on religion or language, two rights, namely, the right to establish and the right to administer educational institutions of their choice.----"
The Court has held that the minority institution has a right to establish and administer educational institution of their choice and the duty of the Government to promote education, there is, on the other side the obligation of the State under Art. 45 to endeavour to introduce free and compulsory education. The court has said that both the conflicting right has to be reconciled and give effect to both. The directive principles cannot ignore or override the fundamental rights but must subserve the fundamental rights. The right to administer cannot obviously include the right to mal-administer. The minority institution cannot ask for aid for educational institution run by them in unhealthy surrounding without any competent teachers, possessing any semblance of qualification, and which does not maintain even a fair standard of teaching or which teaches matters subversive of the welfare of the scholars. It will be relevant to quote paragraph no.31, Patna High Court CWJC No.5096 of 2013 dt._16-05-2016 20 which reads as follows:-
"31. -------- There is, on the one hand the minority rights under Art. 30(1) to establish and administer educational institutions of their choice and the duty of the Government to promote education, there is, on the other side the obligation of the State under Art. 45 to endeavour to introduce free and compulsory education. We have to reconcile between these two conflicting interests and to give effect to both if that is possible and bring about a synthesis between the two. The directive principles cannot ignore or override the fundamental rights but must, as we have said, subserve the fundamental rights. We have already observed that Art. 30(1) gives two rights to the minorities, (1) to establish and (2) to administer, educational institutions of their choice. The right to administer cannot obviously include the right to maladminister. The minority cannot surely ask for aid or recognition for an educational institution run by them in unhealthy surroundings, without any competent teachers, possessing any semblance of qualification, and which does not maintain even a fair standard of teaching or which teaches matters subversive of the welfare of the scholars. It stands to reason, then, that the constitutional right to administer an educational institution of their choice does not necessarily militate against the claim of the State to insist that in order to grant aid the State may prescribe reasonable regulations to ensure the excellence of the institutions to be aided. Learned Attorney-General Patna High Court CWJC No.5096 of 2013 dt._16-05-2016 21 concedes that reasonable regulations may certainly be imposed by the State as a condition for aid or even for recognition.----"
The same issue again came for consideration in the case of Sidhrajbhai Sabbai & Ors. Vs. State of Gujarat & Anr. reported in AIR 1963 SC 540. There the Court has dealt with two conflicting right as provided under Article 19(1) of the Constitution of India as well as Article 30(1) of the Constitution of India and both fall in the same part of the Constitution. The Court has held that all minorities have the right to establish and administer educational institutions of their choice. 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 but the Court said that it is open to the State to impose regulation upon the exercise of rights. The Court found that the fundamental freedom is to establish and to administer educational institutions. The educational institutions must be in real sense is an institution which cater to the educational needs of the citizens, or sections thereof. Regulation made must be 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 restriction on the substance of right which secure proper functioning of the institution. It is relevant to quote paragraph Patna High Court CWJC No.5096 of 2013 dt._16-05-2016 22 no.10 of the judgment which reads as follows:-
"(10) Article 30(1) provides that all minorities have the right to establish and administer educational institutions of their choice, and Art. 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 nondiscrimination clause of the Constitution and does not derogate from the provisions made in el. (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 Art. 19, the fundamental freedom under cl. (1) of Art. 30, is absolute in terms ; it if; 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 Art. 30 (1) All 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 Art. 30(1) would to that extent be void. This, Patna High Court CWJC No.5096 of 2013 dt._16-05-2016 23 however, is not to say that it is not open to the State to impose regulations upon the exercise of this right. Tile 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 institution, in matters educational."
Again the Hon'ble Supreme Court has an occasion to consider the right of minorities with regard to establishment of the institution of their choice and the right with regard to the management of the affair of the institution in the case of The Ahmedabad St. Xaviers College Society & Anr. Etc., Vs. State of Gujrat & Anr. reported in 1974 SC 1389. The Court had held that the management must be free of control so that the founders or their nominees can mould the institution as they think fit and in accordance with their ideas of how the interest of the community in general and the institution in particular will be best served. The right of management cannot be taken away and vested to another body as that would be encroachment upon the guaranteed right. This right is not absolute. It is open to the State to regulate the Patna High Court CWJC No.5096 of 2013 dt._16-05-2016 24 course of study, the qualification and appointment of teacher, the health and hygiene of student, facilities for libraries and laboratories are basic component to good institution, is condition precedent for granting affiliations. These are regulatory measures and do not violate any fundamental right of minorities institution. It would be relevant to quote paragraph no.10 & 18 of the judgment which reads as follows:-
"(10) In Re. The Kerala Education Bill 1957 [1959] S.C.R. 995 this Court said that Article 30(1) covers institution-, imparting general secular education. The object of Article 30 is to enable children of minorities to go out in the world fully equipped. All persons whether in the majority or in the minority have the right under Article 25 freely to profess, practice and propagate religion.
Any section of citizens which includes the majority as well as the minority shall have under Article 29 the right to conserve their distinct language, script or culture. That is why the minorities are given a specific right in respect of educational institutions Linder Article 30. Article 30(1) gives the right to linguistic minorities as well where no question of religion arises. It is, therefore, not at all possible to exclude secular education from Article 30. Since the Kerala Education Bill case (supra) in 1959 this Court has consistently held that general secular education is covered by Article 30.
18. This Court in State of Kerala v. Very Rev. Mother Provincial, etc. [1971] 1 S.C.R.734 explained the Patna High Court CWJC No.5096 of 2013 dt._16-05-2016 25 necessary and importance of regulatory measures of system and standard of education in the interest of the county and the people. When a minority institution applies for affiliation, it agrees to follow the uniform courses of study. Affiliation is regulating the educational character and content of the minority institutions. These regulations are not only reasonable in the interest of general secular education but also conduce to the improvement in the statute and strength of the minority institutions. All, institutions of general secular education whether established by the minorities or the non-minorities must impart to the students education not only for their intellectual attainment but also for pursuit of careers. Affiliation of minority institutions is intended to ensure the growth and excellence of their children and other students in the academic field. Affiliation mainly pertains to the academic and educational character of the institution. Therefore, measures which will regulate the courses of study, the qualifications and appointment of teachers, the conditions of employment of teachers, the health and hygiene of students, facilities for libraries and laboratories are all comprised in matters germane to affiliation of minority institutions. These regulatory measures for affiliation are for uniformity, efficiency and excellence in educational courses and do not violate any fundamental right of the minority institutions under Article 30."
Patna High Court CWJC No.5096 of 2013 dt._16-05-2016 26 The right of the minority institution vis-à-vis right of the State to regulate the function of the institution means the State has a right to regulate but not to interfere with the management of the minority institution. The Court has also said that the appointment of teacher is an important and essential right of administration. That right cannot be interfered by the State in the name of right of regulation has been dealt with in paragraph no.19 & 20 which reads as follows:-
"(19) The entire controversy centers round the extent of the right of the religious and linguistic minorities to administer their educational institutions. The right to administer is said to consist of four principal matters. First is the right to choose its managing- or governing body. It is said that the founders of the minority institution have faith and confidence in their own committee or body consisting of persons selected by them. Second is the right to choose its teachers. It is said that minority institutions want teachers to have compatibility with the ideals, aims and aspirations of the institution. Third is the right not to be compelled to refuse admission to students. In other words, the minority institutions want to have the right to admit students of their choice subject to reasonable regulations about academic qualifications. Fourth is the right to use its properties and assets for the benefit of its own institution.
(20) The right conferred on the religious and linguistic minorities to administer educational institutions of Patna High Court CWJC No.5096 of 2013 dt._16-05-2016 27 their choice is not in an absolute right. This right is not free from regulation. Just as regulatory measures are necessary for maintaining the educational character and content of minority institutions similarly regulatory measures are necessary for ensuring orderly, efficient and sound administration. Das, C.J. in the Kerala Education Bill case (supra) summed up in one sentence the true meaning of the right to administer by saying that the right to administer is not the right to maladminister."
The right of appointment lies with the right of management but the fixing of the qualification of teacher falls within the right of the State to regulate the minority institution as has been dealt in paragraph no.30 which reads as follows:-
"(30). Educational institutions are temples of learning.
The virtues of human intelligence are mastered and harmonized by education. Where there is complete harmony between the teacher and the taught, where the teacher imparts and the student receives, where there is complete dedication of the teacher and the taught in learning, where there is discipline: between the teacher and the taught, where both are worshipers of learning, no discord or challenge will arise. An educational institution runs smoothly when the teacher and the taught are engaged in the, common ideal of pursuit of knowledge. It is, therefore, manifest that the appointment of teachers is an important part in educational institutions. The, Patna High Court CWJC No.5096 of 2013 dt._16-05-2016 28 qualifications and the character of the teachers are really important. 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 d their conditions of service. The right to administer is to be tempered with regulatory measures to facilitate smooth administration. The best administration will reveal no trace or colour of minority. A minority institution should shine in exemplary eclectic in the administration of the institution. The best compliment that can be paid to a minority institution is that it does not rest on or Proclaim its minority character."
It will be also relevant to quote paragraph nos. 41, 72, 98, 103, 105, 183, 209 and 210 which reads as follows:-
"41. Autonomy in administration means right to administer effectively and to manage and conduct the affairs of the institutions. The distinction is between a restriction on the right of administration and a regulation prescribing the manner of administration. The right of administration is day to day administration. The choice in the personnel of management is a part of the administration. The university will always have a right to see that there is no maladministration. If there is maladministration, the university will take steps to Patna High Court CWJC No.5096 of 2013 dt._16-05-2016 29 cure the same. There may be control and check on administration in order to find out whether the minority institutions are engaged in activities which are not conducive to the interest of the minority or to the requirements of the teachers and the students. In State of Kerala v. Very Rev. Mother Provincial etc. (supra) this Court said that if the administration goes to a body in the selection of whom the founders have no say, the administration would be displaced. This Court also said that situations might be conceived when they might have a preponderating voice. That would also affect the autonomy in administration. The provisions contained in section 33 A(1) (a) of the Act have the effect of displacing the management and entrusting it to a different agency. The autonomy in administration is lost. New elements in the shape of representatives of different type are brought in. The calm waters of an institution will not only be disturbed but also mixed. These provisions in section 33A (1) (a) cannot therefore apply to minority institutions.
72. Article 28 forbids, subject to the exception contained in clause (2), the imparting of religious instructions in any educational institution wholly maintained out of State funds. The article also contains provision against compulsion for persons attending an educational institution recognized by the state or receiving aid out of State funds, to take part in any religious instruction that may be imparted in such institution or to attend any religious worship that may be conducted in such Patna High Court CWJC No.5096 of 2013 dt._16-05-2016 30 institution or in any premises attached thereto. 98 It has been argued on behalf of the respondents that there is no fundamental right to affiliation or recognition and that a minority educational institution seeking affiliation or recognition must conform to the conditions which are prescribed for recognition or affiliation. So far as this aspect is concerned, I am of the view that it is permissible for the State to prescribe reasonable regulations like the one to which I have referred earlier and make it a condition precedent to the according of recognition or affiliation to a minority institution. It is not, however, permissible to prescribe conditions for recognition or affiliation which have the effect of impairing the right of the minority to establish and administer their educational institutions. Affiliation and recognition are, no doubt, not mentioned in article 30(1), the position all the same remains that refusal to recognize or affiliate minority institutions unless they (the minorities) surrender the right to administer those institutions would have the effect of rendering the right guaranteed by article 30(1) to be wholly illusory and 'Indeed a teasing illusion. It is, in our Opinion, not permissible to exact from the minorities in lieu of the recognition or affiliation of their institutions a price which would entail. the abridgement or extinguishment of the right under article 30(1). An educational institution can hardly serve any purpose or be of any practical utility unless it is affiliated to a University or is otherwise recognized like other Educational institutions. The right conferred by article 30 is a real and meaningful right. It is neither an abstract right nor is it to be exercised in vacuum. Article 30(1) was intended to have a real significance and it is not permissible to construe it in such a manner as would Patna High Court CWJC No.5096 of 2013 dt._16-05-2016 31 rob it of that significance. It may be appropriate in this context to refer to the observations of Das CJ. in the case of Re Kerala Education Bill (supra) on pages 1067-68 "Without recognition, therefore, the educational institutions established or to be established by the minority communities cannot fulfil the real objects of their choice and the fights 'under Art.30(1) cannot be effectively exercised. The right to establish educational institutions of their choice must, therefore, mean the right to establish real institutions which will effectively serve the needs of their community and the scholars who resort to their educational institutions. There is, no doubt,' no such thing as fundamental right to recognition by the State but to deny recognition to the educational institutions except upon terms tantamount to the surrender of their constitutional right of administration of the educational institutions of their choice is in truth and in effect to deprive them of their rights under Art.30(1). We repeat that the legislative power is subject to the fundamental rights and the legislature cannot indirectly take away or abridge the fundamental rights which it could not do directly and yet that will be the result if the said Bill containing any offending clause becomes law."
Similar view was expressed in. the case of Rev. Sidhajbhai Sabhai (1963) 3 SCR 837 = (AIR 1963 SC 540) (supra) wherein it was observed :
"The Government also holds examinations for granting certificates to successful candidates as trained primary teachers, and scholars receiving training in recognized institutions alone are entitled to appear at the examination. Manifestly, in the absence Patna High Court CWJC No.5096 of 2013 dt._16-05-2016 32 or recognition by the Government training in the College will have little practical utility.
The College is a non-profit 'making institution and depends primarily upon donations and Government grant for meeting its expenses. Without such grant, it would be extremely difficult if not impossible for the institution to function."
What is said above with regard to aid or recognition applies, equally to affiliation of a college to the University because but for such affiliation the student will not be able to obtain a University. degree which is recognized as a passport to several professions and future employment in Public Service.
103. Another conclusion which follows from what has been discussed above is that a law which interferes with a minority's choice of qualified, teachers or its disciplinary control over teachers and other members of the staff of the institution is void as being violative of article 30(1). it is, of course, permissible for the State and its educational authorities to prescribe the qualifications of teachers, but once the teachers possessing the, requisite qualifications are selected by the minorities for their educational institutions, the State would have no right to veto the selection of those teachers. The selection and appointment of teachers for an educational institution is one of the. essential ingredients of the right to manage an educational institution and the minorities can plainly be not denied such right of selection and Patna High Court CWJC No.5096 of 2013 dt._16-05-2016 33 appointment without, infringing article 30(1). In the case of Rev. Father W. Proost (1969) 2 SCR 73 = (AIR 1969 SC 465) (supra), this Court while dealing with section 48-A of the 'Bihar Universities Act observed that the said provision completely took away the autonomy of the governing body of the college and virtually vested the control of the college in the University Service Commission. The petitioners in that case were, therefore, held entitled to the protection of article 30(1) of the Constitution. The provisions of that section have been referred to earlier. According to the section, subject to the approval of University appointments, dismissals, removals, termination of service or reduction in rank of teachers of an affiliated college not belonging to the State Government would have to be made by the governing body of the college on the recommendation of the University Service Commission. The section further provided that the said Commission would be consulted by the governing body of a college in all disciplinary matters affecting teachers of the college and no action would be taken against or any punishment imposed upon a teacher of a college otherwise than in conformity with the findings of the Commission.
105. Although disciplinary control over the teachers of a minority educational institution would be with the governing council, regulations, in my opinion, can be made for ensuring proper conditions of service ,of the teachers and for, securing a fair procedure in the matter of disciplinary action against the teachers. Such provisions which are calculated to Patna High Court CWJC No.5096 of 2013 dt._16-05-2016 34 safeguard the interest of teachers would result in security of tenure and thus inevitably attract competent persons for the posts of teachers. Such a provision would also eliminate a potential cause of frustration amount the teachers. Regulations made for this purpose should be considered to be in the interest of minority educational institutions and as such they would not violate article 30(1). Clause (a) of sub-sections (1) and (2) of section 51A of the impugned Act which make provision for giving a reasonable opportunity of showing cause against a penalty to be proposed on a member of the staff of an educational institution would consequently be held to be valid. Clause (b) of those sub-sections which gives a power to the Vice- Chancellor and officer of the University authorised by him to veto the action of the managing body of an educational institution in awarding punishment to a member of the staff, in my opinion, interferes with the disciplinary control of the managing body over its teachers. It is significant that the power of approval conferred by clause (b) in each of the two sub-
sections of section 51A on the Vice-Chancellor or other officer authorised by him is a blanket power. No guidelines are laid down for the exercise of that power and it is not provided that the approval is to be withheld only in case the dismissal, removal, reduction in rank or termination of service is mala fide or by way of victimisation or other similar cause. The conferment of such blanket power on the Vice-Chancellor or other officer authorised by him for vetoing the disciplinary action of the managing Patna High Court CWJC No.5096 of 2013 dt._16-05-2016 35 body of an educational institution makes a serious inroad on the right of the managing body to administer an educational institution. Clause (b) of each of the two sub-sections of section 51A should, therefore, be held to be violative of article 30(1) so far as minority educational institutions are concerned.
183. It is upon the principal and teachers of a college that the tone and temper of an educational institution depend. On them would its reputation, the maintenance of discipline and its efficiency in teaching. The right to choose the principal and to have the teaching conducted by teachers appointed by the management after, an overall assessment of their outlook and philosophy is perhaps the most important facet of the right to administer an educational institution. We can perceive no reason why a representative of the University nominated by the Vice Chancellor should be on the Selection Committee for recruiting the Principal or for the insistence ,of head of the department besides the representative of the University being on the Selection Committee for recruiting the members of the teaching staff. So long as the persons chosen have the qualifications prescribed by the University, the choice must be left to the management. That is part of the fundamental right of the minorities to administer the educational institution established by them.
209. Laws made for sustaining the very conditions of organised society and civilised existence, so that the Patna High Court CWJC No.5096 of 2013 dt._16-05-2016 36 rights of all, including fundamental rights of the minorities, may be maintained and enforced do not rest on mere implication. The specific provisions of Art. 245 to 254 read with the three Legislative lists in the Seventh Schedule of the Constitution confer a host of legislative powers upon State Legislatures and the Parliament to regulate various kinds of activities including those of minority institutions. No doubt Art. 30(1), like other fundamental Constitutional rights, is meant to limit the scope of ordinary legislative power. But, it was submitted, on behalf of the State, that it is only a "law which takes away or abridges the rights conferred" by Part III of the Constitution, containing the fundamental rights of citizens, which is "void" and that too only "to the extent of the contravention". Thus, a mere incidental regulation of or restriction upon the exercise of a fundamental right intended to secure and actually ensuring its more effective enjoyment could not be said to be really directed at an a bridgement or taking away of the fundamental right at all or to have that effect. Such a law, when analysed, will be found to aim at something quite different from the abridgement of a minority's fundamental rights under Art. 30(1) of the Constitution. It would not really take away or abridge the fundamental rights even though it regulates their exercise. If, on the other hand, a law necessarily has the compelling effect of a substantial abridgement or taking away of the fundamental right from a minority institution, it would not be saved simply because it does not say Patna High Court CWJC No.5096 of 2013 dt._16-05-2016 37 so but produces that effect indirectly. For the purposes of applying Art. 13(2) of the Constitution we have to look at the total effect of statutory provisions and not merely intention behind them. This is how I understand the majority view in 1959 SCR 995 = (AIR 1958 SC 956).
210. The essence of the right guaranteed by Art. 30(1) of the Constitution is a free exercise of their choice by minority institutions of the pattern of education as well as of the administration of their educational institutions. Both these, taken together, determine the kind or character of an educational institution which a minority has the right to choose. Where these patterns are accepted voluntarily by a minority institution itself, even though the object may be to secure certain advantages for itself from their acceptance, the requirement to observe these patterns would not be a real violation of rights protected by Art. 30(1). Indeed, the acceptance could be more properly viewed as an assertion of the right to choose which may be described as the "core" of the right protected by Art. 30(1). In a case in which the pattern is accepted voluntarily by a minority institution, with a view to taking advantage of the benefits conferred by a statute, it seems to me that it cannot insist upon an absolutely free exercise of the right of administration. Here, the incidental fetters on the right to manage the institution, which is only a part of the fundamental right, would be consequences of an exercise of the substance or essence of the right which. as I see it, is freedom of choice. No doubt, the rights protected by Art. 30(1) Patna High Court CWJC No.5096 of 2013 dt._16-05-2016 38 are laid down in "absolute" terms without the kind of express restrictions found in Articles 19, 25 and 26 of the Constitution. But, if a minority institution has the option open to it of avoiding the statutory restrictions altogether, if it abandons, with it, the benefits of a statutory right, I fail to see how the absoluteness of the right under Art. 30(t) of the Constitution is taken away or abridged. All that happens is that the statute exacts a price in general interest for conferring its benefits. It is open to the minority institution concerned to free itself from any statutory control or fetters if freedom from them is considered by it to be essential for the full exercise of its fundamental rights under Art. 30(1) of the Constitution. This article, meant to serve as a shield of minority educational institutions against the invasion of certain rights protected by it and declared fundamental so that they are not discriminated against, cannot be converted by them into a weapon to exact unjustifiable preferential or discriminatory treatment for minority institutions so as to obtain the benefits but to reject the obligations of statutory rights. It is only when the terms of the statute necessarily compel a minority institution to abandon the core of its fundamental rights under Art. 30 (1) that it could amount to taking away or abridgement of a fundamental right within the meaning of Art. 13(2) of the Constitution. It is only then that the Principle could apply that what cannot be done directly cannot be achieved by indirect means. Having stated my approach to the interpretation of Art. 30 (1) of the Constitution, I Patna High Court CWJC No.5096 of 2013 dt._16-05-2016 39 proceed now to consider the effect of this article on the impugned provisions."
The same issue came for consideration in the case of All Bihar Christian Schools Association & Anr. Vs. State of Bihar & Ors. reported in AIR 1988 SC 305. There, the Christian schools challenged the provisions of Bihar Non-Government Secondary Schools (Taking over of Management and Control) Act, 1981. As the minority institutions were holding the view certain provisions dealing with minority jurisdiction are encroaching upon the right which has been conferred on them through Article 29 and 30 of the Constitution of India. The Hon'ble Supreme Court took the view that the provisions of Taking Over Act, 1981 are not encroaching upon the right of minority institution rather provision are regulatory in nature. It will be relevant to quote paragraph no.9 of the said judgment which reads as follows:-
"9. In view of these decisions it is now well-settled that minorities based on religion or language, have fundamental freedom to establish and manage educational institutions of their own choice, but the State has right to provide regulatory provisions for ensuring educational excellence, conditions of employment of teachers, ensuring health, hygiene and discipline and allied matters. Such regulatory provisions do not interfere with the minorities' fundamental right of administering their educational institutions; instead they seek to ensure that such institution is administered efficiently, and that students Patna High Court CWJC No.5096 of 2013 dt._16-05-2016 40 who come out of minority institution after completion of their studies are well equipped with knowledge and training so as to stand at par in their avocation in life without any handicap. If regulatory provisions indirectly impinge upon minorities' right of administration of their institution, it would not amount to interference with the fundamental freedom of the minorities as the regulatory provisions are in the interest of the minority institutions themselves. If the minority institution seeks affiliation or recognition from the State or Education Board the State has the right to prescribe syllabi and terms and conditions for giving such affiliation or recognition or extending grants in aid. Minority institutions may be categorised in three classes, (i) educational institutions which neither seek aid nor recognition from the State, (ii) institutions that seek aid from the State, and (iii) educational institutions which seek recognition but not aid. Minority institutions which fall in the first category are free to administer their institution in the manner they like, the State has no power under the Constitution to place any restriction on their right of administration This does not mean that an unaided minority institution is immune from operation of general laws of the land. A minority institution cannot claim immunity from contract law tax measures, economic regulations, social welfare legislation, labour and industrial laws and similar other measures which are intended to meet the need of the society But institutions falling within the second and third categories are subject to regulatory provisions which the State may impose It is open to the State to prescribe conditions for granting recognition or disbursing aid. These conditions may require a Patna High Court CWJC No.5096 of 2013 dt._16-05-2016 41 minority institution to follow prescribed syllabus for examination. courses of study, they may further regulate conditions of employment of teachers, discipline of students and allied matters. The object and purpose of prescribing regulations is to ensure that minority institutions do not fall below the standard of excellence expected of an educational institution and that they do not fall outside the main stream of the nation. A minority institution must also be fully equipped with educational excellence to keep in step with others in the State; otherwise the students coming out of such institutions will not be fully equipped to serve the society of the nation. While the State has every right to prescribe conditions for granting recognition or disbursing aid, it cannot under the guise of that power prescribe onerous conditions compelling the minority institution to surrender their rights of administration to the Government. On the one hand the State is under an obligation to ensure that educational standards in the recognised institutions must be according to the need of the society and according to standards which ensure the development of personality of the students in turning out to be civilized, useful members of the society, and to ensure that the public funds disbursed to the minority institutions are properly utilised for the given purpose. On the other hand the State has to respect and honour minority rights under Article 30(1) in the matter of establishing and carrying of administration of institution of their choice. In order to reconcile these two conflicting interests the State has to strike a balance and statutory provisions should serve both the objects and such statutory provisions have to withstand the test of Article 30(1) of the Patna High Court CWJC No.5096 of 2013 dt._16-05-2016 42 Constitution. These principles have to be borne in mind in considering the question of validity of statutory provisions relating to minority educational institutions."
There the Court has categorized three classes of the school. One class which does not take any aid or seek recognition. The government cannot interfere in the matter but other two classes, namely, they do not take aid but seek recognition and the third class which take aid and seek recognition. The court is of the view that in two classes, the Government can frame the regulation provided in what manner will be the syllabus of the college fixing qualification of teacher, keeping library, laboratory, playing ground etc. with the purpose of maintaining standard of the student as well as teacher but the State cannot frame regulation interfering with the affairs of the minority institution. It will be relevant to quote paragraph no.10, 15, 17 and 21 which reads as follows:-
"10. -------- The minority secondary schools, proprietary secondary schools, centrally sponsored schools and autonomous secondary schools have not been taken over by Section 3(1) of the Act. It does not affect a minority secondary school at all. As regards Section 3(2) it confers power on the State Government to take over the management and control of recognised minority schools, proprietary or autonomous secondary schools by issuing a notification in the official Gazette provided the managing committee, trust, association or the corporate body which may have been maintaining such schools makes an Patna High Court CWJC No.5096 of 2013 dt._16-05-2016 43 unconditional offer to the State Government to make over the school with all assets and properties. If the State Government accepts the offer and considers it necessary to take over the management of such a school it may lay down terms and conditions for the take over of the management and control of the school. Section 3(2) does not confer any power on the State to compulsorily acquire or take over the management of a minority school instead the management is free to maintain and carry on the administration of its school and the State has no power to interfere with its administration. The State is entitled to take over the school only if an un- conditional offer is made by the management of the school. There is, however, no compulsion on the management of a minority school to make over the school to the Government. If the management of a minority school finds it difficult to maintain its school, instead of closing down, it may, in the larger interest of the educational need of the area, hand- over the control and management of the institution to the State. Section 3(2) does not interfere with minority's rights to maintain or administer its school, it merely enables the State to take over the control and management of a minority institution only when an unconditional offer is made to it by the management of the minority institution. There is, therefore, no question of Section 3(2) infringing the rights of minority institutions.
15 ------------The court further held that since these aforesaid clauses of the Bill were regulatory, they do not violate Article 30(1) of the Constitution. Section 8(4) of the Delhi School Education Act 1973 which require a managing committee of recognised private school to obtain approval of the Director for suspending an employee was upheld in its application to the minority institutions by this Court in Frank Anthony Public School Employees' Patna High Court CWJC No.5096 of 2013 dt._16-05-2016 44 Association case [1986] 4 SCC 707 : (AIR 1987 SC 311) and Mrs. Y. Theclamma's case [1987] 2 SCC 516 : (AIR 1987 SC 1210). In the latter case this Court observed that while the right of the minority to establish and administer educational institutions of their choice cannot be interfered with, restrictions by way of regulations for the purpose of ensuring educational standards and maintaining excellence thereof can validly be prescribed. Regulations can be made for ensuring proper conditions of service for the teacher and also for ensuring a fair procedure in the matter of disciplinary action. Section 8(4) of Delhi Act was designed to afford some measure of protection to teachers of the minority institutions without interfering with the management's right to take disciplinary action.
17 --------This Court (majority) held that the unqualified power conferred on an outside authority which was made a judge of both, facts and law, the exercise of which was made to depend purely on subjective considerations, constituted an infringement' of the right guaranteed by Article 30(1) of the Constitution. These decisions do not affect the view taken by us. As already discussed clauses (c) and (d) of Section 18(3) of the Act are regulatory in nature to ensure the educational standard of security of employment of teachers and no unguided, uncanalised, blanket power in the nature of veto or appellate power has been conferred on any outside agency against the disciplinary action taken by the management of a minority institution. The School Service Board is vested with limited power to see that the person proposed to be appointed possesses the requisite qualifications prescribed and that the prescribed method of selection was followed by the management. The choice of the person for appointment continues to vest in the managing Patna High Court CWJC No.5096 of 2013 dt._16-05-2016 45 committee of the minority school. Similarly in disciplinary matters also the managing committee of a minority school has full power to remove, terminate or discharge a teacher, but it has to obtain the approval of the School Service Board, here again the Service Board has a limited power to ascertain whether the disciplinary proceedings have been taken in accordance with the rules framed by the management itself, the School Service Board has no. Other power in the matter. These provisions do not suffer from the legal infirmities as pointed out in the aforesaid decisions."
Similar issue has come for consideration before the Hon'ble Supreme Court in the case of Secy., Malankara Syrian Catholic College Vs. T. Jose & Ors. reported in 2007(1) SCC 386. There the minority institution was getting the aid from the government for running of its education. The question came for consideration for the appointment of the Principal of the College. The court has held that the right of minority institution to establish and administer educational institution of their choice, they do have a right to choose its Governing Body, to appoint teaching staff, to admit eligible students of their choice, to use property and assets for the benefit of the institution, the right conferred under Article 30 is only to ensure equality with majority not intended to place the minority in a more advantageous position vis-à- vis the majority. Right to establish and administer educational institution is not absolute but the Court says that if any such regulation interfere with the overall administrative control of the Patna High Court CWJC No.5096 of 2013 dt._16-05-2016 46 management, abridges or dilutes, the right to establish and administer educational institutions, such regulations, to that extent, will be inapplicable to minority institutions. It is relevant to quote paragraph no. 20, 21 & 22 of the judgment which reads as follows:-
"20. Aided institutions give instruction either in secular education or professional education. Religious education is barred in educational institutions maintained out of State fund. These aided educational minority institutions providing secular education or professional education should necessarily have standards comparable with non-minority educational institutions. Such standards can be attained and maintained only by having well qualified professional teachers. An institution can have the services of good qualified professional teachers only if the condition of service ensures security, contentment and decent living standards. That is why State can regulate the service conditions of the employees of the minority educational institutions to ensure quality of education. Consequently, any law intended to regulate the service conditions of employees of educational institutions will apply to minority institutions also, provided that such law does not interfere with the overall administrative control of the managements over the staff.
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 crystalised in TMA Pai. The State can prescribe :
Patna High Court CWJC No.5096 of 2013 dt._16-05-2016 47
(i) the minimum qualifications, experience 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.
22. The Principal or Headmaster of an educational institution is responsible for the functional efficiency of the institution, as also the quality of education and discipline in the institution. He is also responsible for maintaining the philosophy and objects of the institution."
The question arise in the case of Sindhi Education Society & Anr. Vs. Chief Secretary, Government of NCT of Delhi & Ors. reported in Patna High Court CWJC No.5096 of 2013 dt._16-05-2016 48 2010(8) SCC 49. There the minority institution challenged that they cannot be compelled to follow the resolution claiming encroaching upon their right conferred to them by Article 29 & 30 of the Constitution of India and claimed that they are outside the purview of the resolution in view of constitutional protection. In the name of granting reservation to backward class of citizen cannot be compelled to accommodate the substandard teacher in their educational institution. The Hon'ble Supreme court approved the objection, held they cannot be compelled to make provision for the reservation. The court was considering in what manner provision of Article 16 vis-à- vis Article 29 and 30 of the Constitution of India can be balanced where the Court has held as follows:-
"85. ------ Once an organization or society falls outside the ambit of this circumference, in that event, it will be 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 of those societies.
87. There is no doubt, that there may be minority institutions which are receiving grant-in-aid from the Government. But, merely receiving grant-in- aid per se would not make such school or institution `State' within the meaning of Article 12 of the Constitution of India.
89. ------ various judgments of this Court have also Patna High Court CWJC No.5096 of 2013 dt._16-05-2016 49 consistently taken the view that the State has no right of interference in the establishment, administration and management of a school run by linguistic minority except the power to regulate as specified.
90. ------ Thus, except providing grant-in-aid as per the DSE Rules and having no power to discriminate in terms of Article 30(2) of the Constitution, the Government has a very limited regulatory control over the minority institutions and no control whatsoever on the managing committee, internal management of the school and, of course, has no power to take over such an institution.
97. The minimum qualifications, experience, other criteria for making appointments etc are the matters which will fall squarely within the power of the State to frame regulations but power to veto or command that a particular person or class of persons ought to be appointed to the school failing which the grant-in-aid will be withdrawn, will apparently be a subject which would be arbitrary and unenforceable.
98. In that case, while dealing with the appointment of a person as Principal, the Court clearly stated the dictum that the freedom to choose the person to be appointed as Principal has always been recognized as a vital facet to right to administer the educational institution. It being an important part of the administration and even if the Patna High Court CWJC No.5096 of 2013 dt._16-05-2016 50 institution is aided, there can be no interference with the said right. The power to frame regulations and control the management is subject to another restriction which was reiterated by the Court in P.A. Inamdar's case (supra) stating that it is necessary that the objective of establishing the institution was not defeated.
99. Thus, the very object and propose of this enactment was to improve the standard as well as management of school education. It will be too far fetched to read into this object that the law was intended to make inroads into character and privileges of the minority. Besides, in the given facts and circumstances of the case, the Court is also duty bound to advance the cause or the purpose for which the law is enacted. Different laws relating to these fields, thus, must be read harmoniously, construed purposively and implemented to further advancement of the objects, sought to be achieved by such collective implementation of law. While, you keep the rule of purposive interpretation in mind, you also further add such substantive or ancillary matters which would advance the purpose of the enactment still further. To sum up, we will term it as `doctrine of purposive advancement'.
100. Even, otherwise, it is a settled principle of law that Rules must fall within the ambit and scope of the principal legislation.
101. To appoint a teacher is part of the regular Patna High Court CWJC No.5096 of 2013 dt._16-05-2016 51 administration and management of the School. Of course, what should be the qualification or eligibility criteria for a teacher to be appointed can be defined and, in fact, has been defined by the Government of N.C.T. of Delhi and within that specified parameters, the right of the linguistic minority institution to appoint a teacher cannot be interfered with. The paramount feature of the above laws was to bring efficiency and excellence in the field of school education and, therefore, it is expected of the minority institutions to select the best teacher to the faculty. To provide and enforce the any regulation, which will practically defeat this purpose would have to be avoided.
114. In fact, it would tantamount to imposing impermissible restriction. A school which has been established and granted status of a linguistic minority for years, it will not be proper to stop its grant-in-aid for the reason that it has failed to comply with a condition or restriction which is impermissible in law, particularly, when the teacher appointed or proposed to be appointed by such institution satisfy the laid down criteria and/or eligibility conditions.
119. 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 Patna High Court CWJC No.5096 of 2013 dt._16-05-2016 52 its constitutional duty to compel the linguistic minority institution 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 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.
The right of minority institution with respect to dismissal of an employee as per regulation was to take approval of the Director, came for consideration in the case of Ms. G. Vallikumari Vs. Andhra Education Society & Ors. reported in AIR 2010 SC 1105. The court has held that the protection of minorities is an article of faith in the Constitution of India. The right to the administration of institutions of minority's choice enshrined in Article 30(1) means 'management of affairs' of the institution. This right is, however, subject to the regulatory power of the State. Article 30(1) is not a charter of maladministration; regulation so that the right to administer may be Patna High Court CWJC No.5096 of 2013 dt._16-05-2016 53 better exercised for the benefit of the institution, is permissible. Bench to view declaring Section 8(2) Delhi Education Act is ultra virus of Constitution, as that provision was encroaching upon the right to minority institution. It is relevant to quote paragraph nos. 11 & 12 of this judgment which reads as follows:-
11. In Y. Theclamma's case (AIR 1987 SC 1210), the issue considered by this Court was whether the suspension of the appellant pending departmental inquiry was legally correct and justified. The Court referred to earlier judgments including the Constitution Bench judgment in Lily Kurian's case (AIR 1979 SC 52) and observed (Paras 8 of AIR 1987 SC)::
"It is not necessary to go through all the cases relied upon by the Court in Frank Anthony Public School case (AIR 1987 SC
311) for the view taken that the provisions of Chapter IV of the Act were of a regulatory nature and therefore did not have the effect of abridging the fundamental right guaranteed to the minorities under Article 30(1). It is enough to say that although there is no reference in the judgment to Lily Kurian case (AIR 1979 SC 52) the observations made by the court with regard to the applicability of sub-
section (4) of Section 8 of the Act which relates to the exercise of the power of suspension by the management, fall in line Patna High Court CWJC No.5096 of 2013 dt._16-05-2016 54 with the view expressed by the majority in All Saints High School case (AIR 1980 SC 1042) where such power was held to be, on consideration of all the decisions starting from In re the Kerala Education Bill, 1957 (AIR 1958 SC 956), a permissible restriction being regulatory in character.
Presumably the court in Frank Anthony Public School case felt that it was not necessary to refer to Lily Kurian case as the extent of the regulatory power of the State had been dealt with by the court in In re the Kerala Education Bill, 1957 and reaffirmed in the subsequent decisions, including that in All Saints High School case (AIR 1980 SC 1042). In Lily Kurian case one of us (Sen, J.,) speaking for a Constitution Bench had occasion to observe: (SCC p. 137, para 36) "Protection of the minorities is an article of faith in the Constitution of India.
The right to the administration of institutions of minority's choice enshrined in Article 30(1) means `management of the affairs' of the institution. This right is, however, subject to the regulatory power of the State. Article 30(1) is not a charter for maladministration; regulation, so that the right to administer may be better exercised for the benefit of the institution, is permissible;"
Patna High Court CWJC No.5096 of 2013 dt._16-05-2016 55 (emphasis supplied) In that case, the question was whether the conferment of a right of appeal to an external authority like the Vice-Chancellor of the University under Ordinance 33(4) framed by the Syndicate of the University of Kerala under Section 19(j) of the Kerala University Act, 1957 against any order passed by the management of a minority educational institution in respect of penalties including that of suspension was an abridgement of the right of administration conferred on the minorities under Article 30(1). The question was answered in the affirmative and it was held that the conferral of the power of appeal to the Vice- Chancellor under Ordinance 33(4) was not only a grave encroachment on such institution's right to enforce and ensure discipline in its administrative affairs but it was uncanalised and unguided in the sense that no restrictions were placed on the exercise of the power. It was further said that in the absence of any guidelines it could not be held that the power entrusted to the Vice- Chancellor under Ordinance 33(4) was merely a check on maladministration."
The Court rejected the argument that the decision in Frank Anthony Public School Employees' Association's case (AIR 1987 SC 311) was in conflict with the Constitution Bench judgment in Lily Kurian's case (AIR 1979 SC 52). Paragraphs 11 and 12, which contain discussion on this issue, read thus:
"11. It would be seen that the decision of the Court in Frank Anthony Public School case with regard to the applicability of sub-section (4) of Section Patna High Court CWJC No.5096 of 2013 dt._16-05-2016 56 8 of the Act to the unaided minority educational institutions is based on the view taken by the majority in All Saints High School case which, on its turn, was based on several decisions right from In re the Kerala Education Bill, 1957 down to St. Xavier, including that in Lily Kurian. It is therefore difficult to sustain the argument of learned counsel for the respondents that the decision in Frank Anthony Public School case holding that sub-section (4) of Section 8 of the Act was applicable to such institutions was in conflict with the decision of the Constitution Bench in Lily Kurian case and therefore required reconsideration. The contention of learned counsel for the respondents that sub- section (4) of Section 8 of the Act requiring the prior approval of the Director for the suspension of a teacher was a flagrant encroachment upon the right of the minorities under Article 30(1) of the Constitution to administer educational institutions established by them is answered in all the earlier decisions of this Court right from In re the Kerala Education Bill, 1957 down to that in All Saints High School case which have been referred to by the Court in Frank Anthony Public School case. These decisions unequivocally lay down that while the right of the minorities, religious or linguistic, to establish and administer educational institutions of their choice cannot be interfered with, restrictions by way of regulations for the purpose of ensuring educational standards and maintaining excellence thereof can validly be prescribed.
12. It cannot be doubted that although disciplinary control over the teachers of a minority educational institution is with the management, regulations can be made for ensuring proper conditions of service for the teachers and also for Patna High Court CWJC No.5096 of 2013 dt._16-05-2016 57 ensuring a fair procedure in the matter of disciplinary action. As the court laid down in Frank Anthony Public School case the provision contained in sub-section (4) of Section 8 of the Act is designed to afford some measure of protection to the teachers of such institutions without interfering with the Managements' right to take disciplinary action. Although the court in that case had no occasion to deal with the different ramifications arising out of sub-section (4) of Section 8 of the Act, it struck a note of caution that in a case where the management charged the employee with gross misconduct, the Director is bound to accord his approval to the suspension. It would be seen that the endeavour of the court in all the cases has been to strike a balance between the constitutional obligation to protect what is secured to the minorities under Article 30(1) with (sic and) the social necessity to protect the members of the staff against arbitrariness and victimisation."
12. The prepositions which can be culled out from the above noted two judgments are:
(i) Section 8(1), (3), (4) and (5) of the Act do not violate the right of the minorities to establish and administer their educational institutions.
However, Section 8(2) interferes with the said right of the minorities and is, therefore, inapplicable to private recognized aided/unaided minority educational institutions.
(ii) Section 12 of the Act, which makes the Patna High Court CWJC No.5096 of 2013 dt._16-05-2016 58 provisions of Chapter IV of the Act inapplicable to unaided private recognized minority educational institutions is discriminatory except to extent of Section 8(2). In other words, Chapter IV of the Act except Section 8(2) is applicable to private recognized aided as well as unaided minority educational institutions and the concerned authorities of the education department are bound to enforce the same against all such institutions. Similar issue came for consideration before this Court in the case of Anjali Jain Vs. The State of Bihar & Ors. reported in 2011(3) PLJR 702. In this case, the Court has considered most of the previous judgments and has dealt with the right of minority institution. In this case it is similar to the fact of these cases, so it will be relevant to consider the fact of Anjali Jain case (supra). There the issue was raised, whether the State is competent to impose its reservation policy in respect of selection and appointment of the staff and teacher of the minority school in view of fact that the school was minority, receiving the government aid. Jain community established an educational institution, published an advertisement, interview was conducted, selection of petitioner was made, accordingly appointed Headmistress of the school sought approval for the petitioner's appointment from the District Inspector of School, Bhojpur. The District Inspector of the School, Bhojpur granted approval to the appointment and recommended it to the District Superintendent of Education. The Patna High Court CWJC No.5096 of 2013 dt._16-05-2016 59 District Superintendent of Education approved the appointment on fixed pay-scale as well as matric trained Assistant Teacher but the Director, Primary Education, Government of Bihar remitted back for reconsideration in view of the department letter dated 2.5.2005. During pendency of the writ application, the District Superintendent of Education of Bhojpur passed order communicating that as per reservation policy, the selection was not made in accordance with law as the reservation policy was not followed nor reservation roaster was applied, as per the order of the Director, Primary Education, Government of Bihar, the approval granted by the District Superintendent of Education on 2.5.2005 was cancelled. It was directed that the petitioner's school was receiving the government aid, it must follow the departmental circular with regard to reservation policy in a matter of appointment. The court considered the previous judgments held that the State has a power to regulate its functioning in a limited sense which should not contravene the fundamental right 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.
Relevant to quote paragraph no.37 which reads as Patna High Court CWJC No.5096 of 2013 dt._16-05-2016 60 follows:-
"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 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 Patna High Court CWJC No.5096 of 2013 dt._16-05-2016 61 decades, as in the present cases, as this 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."
With regard to making provision of reservation in admission in the private Institutions as well as minority institutions taking aid from Government, came to consideration again in the case of Pramati Educational & Cultural Trust & Ors. Vs. Union of India & Ors. reported in 2014(3) PLJR 86 SC. The question arose about making provision of reservation in educational institutions for backward class of citizen as well as for scheduled caste and scheduled tribe category of candidate in terms of Clause 5 of Article 15 of the Constitution of India with respect to private unaided educational institution. The applicability of reservation policy in minority institution came for consideration. The Court has taken view that Clause (5) of Article 15 does not apply to the minority institution, Hon'ble Court adverted with the right of minority institution in the background of regulatory power of the State with respect to maintaining the educational standard. There the court has held that Clause (5) of Article 15 of the Constitution, therefore, enables the State to make a special provision, by law, for the advancement of socially and educationally backward Patna High Court CWJC No.5096 of 2013 dt._16-05-2016 62 classes of citizens or for the Scheduled Castes and Scheduled Tribes insofar as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of Article 30 of the Constitution. It is relevant to quote paragraph no. 42 deals with reservation in non-aided minority institutions of the said judgment which reads as follows:-
"42. In our considered opinion, therefore, by the Constitution (Eighty-Sixth Amendment) Act, a new power was made available to the State under Article 21A of the Constitution to make a law determining the manner in which it will provide free and compulsory education to the children of the age of six to fourteen years as this goal contemplated in the Directive Principles in Article 45 before this constitutional amendment could not be achieved for fifty years. This additional power vested by the Constitution (Eighty-Sixth Amendment) Act, 2002 in the State is independent and different from the power of the State under clause (6) of Article 19 of the Constitution and has affected the voluntariness of the right under Article 19(1)(g) of the Constitution. By exercising this additional power, the State can by law impose admissions on private unaided schools and so long as the law made by the State in exercise of this power under Article 21A of the Constitution is Patna High Court CWJC No.5096 of 2013 dt._16-05-2016 63 for the purpose of providing free and compulsory education to the children of the age of 6 to 14 years and so long as such law forces admission of children of poorer, weaker and backward sections of the society to a small percentage of the seats in private educational institutions to achieve the constitutional goals of equality of opportunity and social justice set out in the Preamble of the Constitution, such a law would not be destructive of the right of the private unaided educational institutions under Article 19(1)(g) of the Constitution."
The applicability of reservation policy with respect to minority institution came for consideration. The Hon'ble Supreme Court adverted the provision for reservation of educationally and socially backward classes of citizen or for scheduled castes and scheduled tribes does not apply has been dealt in paragraph no. 45 and 46 which is reads as follows:-
"45. Under Article 30(1) of the Constitution, all minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice. Religious and linguistic minorities, therefore, have a special constitutional right to establish and administer educational schools of their choice and this Court has repeatedly held that the State has no power to interfere with the administration of minority institutions and can make only regulatory measures and has no power to force admission of Patna High Court CWJC No.5096 of 2013 dt._16-05-2016 64 students from amongst non-minority communities, particularly in minority schools, so as to affect the minority character of the institutions. Moreover, in Kesavananda Bharati Sripadagalvaru v. State of Kerala & Anr. (supra) Sikri, CJ., has even gone to the extent of saying that Parliament cannot in exercise of its amending power abrogate the rights of minorities. To quote the observations of Sikri, CJ. in Kesavananda Bharati Sripadagalvaru v. State of Kerala & Anr. (supra):
"178. The above brief summary of the work of the Advisory Committee and the Minorities Sub-committee shows that no one ever contemplated that fundamental rights appertaining to the minorities would be liable to be abrogated by an amendment of the Constitution. The same is true about the proceedings in the Constituent Assembly. There is no hint anywhere that abrogation of minorities' rights was ever in the contemplation of the important members of the Constituent Assembly. It seems to me that in the context of the British plan, the setting up of Minorities Sub-committee, the Advisory Committee and the proceedings of these Committees, as well as the proceedings in the Constituent Assembly mentioned above, it is impossible to read the expression "Amendment of the Constitution" as empowering Parliament to abrogate the rights of minorities."
Thus, the power under Article 21A of the Patna High Court CWJC No.5096 of 2013 dt._16-05-2016 65 Constitution vesting in the State cannot extend to making any law which will abrogate the right of the minorities to establish and administer schools of their choice.
46. When we look at the 2009 Act, we find that Section 12(1)(b) read with Section 2(n) (iii) provides that an aided school receiving aid and grants, whole or part, of its expenses from the appropriate Government or the local authority has to provide free and compulsory education to such proportion of children admitted therein as its annual recurring aid or grants so received bears to its annual recurring expenses, subject to a minimum of twenty-five per cent. Thus, a minority aided school is put under a legal obligation to provide free and compulsory elementary education to children who need not be children of members of the minority community which has established the school. We also find that under Section 12(1)(c) read with Section 2(n)(iv), an unaided school has to admit into twenty-five per cent of the strength of class I children belonging to weaker sections and disadvantaged groups in the neighbourhood.
Hence, unaided minority schools will have a legal obligation to admit children belonging to weaker sections and disadvantaged groups in the neighbourhood who need not be children of the members of the minority community which has established the school. While discussing the validity of clause (5) of Article 15 of the Constitution, we have held that members of communities other than the minority community Patna High Court CWJC No.5096 of 2013 dt._16-05-2016 66 which has established the school cannot be forced upon a minority institution because that may destroy the minority character of the school. In our view, if the 2009 Act is made applicable to minority schools, aided or unaided, the right of the minorities under Article 30(1) of the Constitution will be abrogated. Therefore, the 2009 Act insofar it is made applicable to minority schools referred in clause (1) of Article 30 of the Constitution is ultra vires the Constitution. We are thus of the view that the majority judgment of this Court in Society for Unaided Private Schools of Rajasthan v. Union of India & Anr. (supra) insofar as it holds that the 2009 Act is applicable to aided minority schools is not correct."
In view of the aforesaid discussion, let us examine the facts of present case on the touchstone of principle laid by the Hon'ble Supreme Court and this Court. In the present case, all the schools are minority institution. Earlier they were granted approval but, later on withdrawn on the background that none of minority institution followed the provision of reservation policy and did not call the representative of the Government to attend meeting while making selection of the teacher. The selection has been made of the persons who are not trained teachers as per circular of the Government which requires only trained teacher should be appointed and so much so that the appointment has been made without following the due procedure of law in the matter of selection of teacher as it was Patna High Court CWJC No.5096 of 2013 dt._16-05-2016 67 not circulated by publishing in the newspaper. Admittedly it was pasted on the notice board at the school.
In view of the above discussion, rule of reservation is not applicable to the minority institution. At the same time, merely because the representative of the Government was not there cannot be a ground for holding the selection of teacher to be illegal as the power of selection is administrative function of school, State in the name of regulatory power cannot interfere in the matter of selection of teacher on the ground the representative of Government was not called for to participate in the meeting, as power of selection is concomitant of administrative power squarely lies with the management of school, if this would be approved, it will be interference in the functioning of institution but, a question would arise, specially with regard to educational qualification of persons, having been appointed as teachers are untrained teacher so much so that the appointment has not been followed by a proper procedure as has been discussed in view of fact that the Government has a regulatory power to fix the qualification of teacher, postulates the academic syllabus of the colleges and school including of minority institution for the purpose of maintaining a standard as well as the Government has also regulatory power to provide procedure in what manner teachers would be appointed. For example, if after proper procedure, five persons Patna High Court CWJC No.5096 of 2013 dt._16-05-2016 68 having proper qualification having been selected, who will be appointed by the management of minority intuition lies within the domain of the minority institution but while making selection, the minority institution will have to follow the proper procedure. If the appointment has been made in a very arbitrary manner without making advertisement in the daily newspaper, the claim of the minority institution that they have followed their own bye-laws which has not been brought on record, cannot take a plea for holding selection according to their bye-laws, such selection can not be approved, this Court holds that the selection of petitioners are illegal in view of the judgment of the Supreme Court in the case of State of Bihar Vs. Upendra Narayan Singh & Ors. reported in 2009(4) PLJR 73 SC where the Supreme Court has adumbrated that the selection should be done in a proper manner. The proposition is buttressed from the letter of the Government of Bihar contained in letter no. 0728/80 f"k0&25 dated 10.1.1986, as clause-3 of the said letter stipulates proper circulation of advertisement in newspaper, which reads as follows:-
^^fcgkj ljdkj] f'k{kk foHkkx] i=kkad 12@o&8&0728@80 f'k0&25] fnukad 10&1&1986] is"kd] Jh jke ujs'k] funs'kd ¼ek/;fed f'k{kk½] fcgkj] iVuk] lsok esa] ftyk f'k{kk inkf/kdkjh] jkWph@?kuckn@x;k@iVuk@flagHkwe] pkbcklk A fo"k;%& Hkk"kk;h /kfeZd vYila[;d ,lksfl;s'ku fcgkj ls lEc) fo|ky; ds f'k{kdksa dh lsok dk lR;kiu ,oa osru Hkqxrku A Patna High Court CWJC No.5096 of 2013 dt._16-05-2016 69 mi;qZDr fo"k;d foHkkxh; i=kad 12@o8&0184@85 fo0&1082]fnukad 09-12-85 ds dze esa dguk gS fd vkils ekWxh xbZX lwpuk ;Fkkale; izkIr ugha gqbZ A bl chp mPpre U;k;ky; )kjk nh xbZ le; lhek lekIr gks xgZ gS vr% vkidks funs'k fn;k tkrk gS fd v/kksfyf[kr xkbM ykbu dks n`f"Vxr j[krs gq, osru Hkqxrku djsa vkSj vuqikyu izfrosnu rqjUr Hkstsa A ¼1½ in foHkkx )kjk Lohd`r gS A ¼2½ fu;qDr f'k{kd foHkkx )kjk fu?kkZfjr vgZrk j[krs gS] ¼iz?kkuk/;id ds ekeyksa esa izLohd`r ek/;fed fo|ky; dk 10 o"kkZs dk f'k{k.k vuqHko izkIr gS A ½ ¼3½ fu;qfDr esa] fu;qfDr dh lkeku; izfdz;k tSls nSfud lekpkj i= esa in dk foKkiu@vkosnd dk lk{kkRdkj ,oa blds vk/kkj ij pquko vkfn dk ikyu fd;k x;k gS A fo|ky; dh izLohd`r ds le; tks f'k{kd dk;Zjr Fks ¼bldk lR;kiu fo'ks"k i"kZn ds fujh{k.k izfrosnu@dk;kZy; vfHkys[k ls fd;k tk ldrk gS½ muds ekeys esa in dk foKkiu ,oa vkSipkfjd lk{kkRdkj dh 'krksZ dh vuns[kh dh tk ldrh gS A ¼4½ ,sls fo|ky; tks foHkkx }kjk 21-5-74k ds ckn izLohd`r gS] fdUrq fof?kor :i ls vYila[;d ugha /kksf"kr fd;s x;s gS] ogkW ds f'k{kd@f'k{kdsRrj deZpkjh dks Hkh osru Hkqxrku fd;k tk; A ¼5½ f'k{kdksa dh fu;qFdr ds fy;s dksbZ U;wure vk;q lhek ¼flok; blds fd;s o;Ld gksa½ fu?kkZfjr ugha gS A vr% osru Hkqxrku gsrq mez dk dksbZ cU/ku ugha gksxk A ek= 58 o"kZ ls vf/kd mez ds f'k{kd dks osru Hkqxrku ugha fd;k tk;sxk A ¼6½ tgkW rd f'k{kdsRrj deZpkfj;ksas dk iz'u gS budh fu;qfDr ds vuqeksnu dk dksbZ izko/kkku vf/kfu;e esa ugha gSa vr% izcU/k lfefr )kjk ftl fdlh O;fDr dh fu;qfDr Lohd`r inks ads Hkhrj gks xbZ] mls Lohdkj dj osru Hkqxrku fu;qfDr frfFk ls djuh gS A ¼7½ 2-10-80 ds o"kZ dh fu;qfDr lkekU;r% ugha Lohdkj djuh gS D;ksafd 2-10-80 ds iwoZ vYila[;d fo|kky; ds fu;qDr f'k{kdksa dk vkSipkfjd :i ls vuqeksnu ugha gksrk Fkk ek= ftyk f'k{kk inkf/kdkjh@ek/;fed f'k{kk cksMZ )kjk laxr vfHkys[ksa dh tkWp Patna High Court CWJC No.5096 of 2013 dt._16-05-2016 70 dj] osru fu/kkZj.k fd;k tkrk Fkk A vxj ,slk dksbZ ekeyk gks rks mldh xgjkbZ ls Nkuchu djsa vkSj foHkkxh; vkns'k izkIr djus ds mijkUr gh osru Hkqxrku djsa A ¼8½ vxj fdlh [kkl ekeys esa le; dh vYirk dks ns[krs gqw, lHkh rF;ksa dk lR;kiu djuk rqjr lEHko ugha gks rks rRdky vkSicaf/kd :I ls bl 'krZ ds lkFk osru Hkqxrku djsxs fd rF;ksa ds lR;kiu ds vkyksd esa bl lEcU/k esa vfUre fu.kZ; fy;k tk;sxk rFkk xyr :i ls Hkqxrku dh x;h jkf'k dk leatu@okilh ls fd;k tk;sxk A ¼9½ fo|kky; ds iz?kkuk/;kid dh ;g ftEesokjh gksxh f dos ns[ksa fd fdlh f'k{kd dks xyr Hkqxrku ugha gksrk gS A ¼10½ rRdky&vYila[;d fo|ky;ksa ds osru ds in esa miyC/k jkf'k dks ns[krs gq, orZeku ¼current½ osru dk Hkqxrku djsaxs rFkk cdk;s osru ds Hkqxrku gsrq vxj dksbZ gks rks jkf'k dh ekWx djsaxsA D`I;k osru Hkqxrku dj vuqikyu izfrosnu rqjr Hkstsa ftlls fd ekuuh; mPpre U;k;ky; dks bldh lwpuk nh tk lds A** Merely the pasting of an advertisement in the school notice board as also pasting at some places will not be treated that proper circulation of advertisement and proper process of selection has been followed. Though the case does not deal with minority institution but in view of letter of State Government dated 8.1.1986, in all fairness, it has to be followed even by the minority institution as indicated in the letter mentioned herein above so that the best talented person would be inducted as a teacher. In the present case, it is admitted fact that in all the cases, untrained teachers have been appointed dehors to the government circular but the claim of the Patna High Court CWJC No.5096 of 2013 dt._16-05-2016 71 petitioners that at the time of approval, they were all trained teacher does not rectify the illegality in the selection of a teacher and so much so that admittedly in all these cases, the appointment has been made without proper advertisement. The claim of petitioner that advertisement was not required to be circulated through Newspaper Publication as vacancy was less than five is not sustainable in law in view of letter of the Government. The order dated 18.4.2016 passed in C.W.J.C. No. 13278 of 2015 (Md. Sallauddin Vs. The State of Bihar & Ors.) in no way touches issue involved in the present case.
In that view of the matter, the appointment of the teacher cannot be upheld. The decision of the Government cannot be held to be illegal. However, the school, in question, will be at liberty to appoint the trained teacher as per the executive instruction by publishing the advertisement in the daily newspaper so that best and talented person would be appointed.
With the aforementioned observation, all the writ applications are dismissed.
(Shivaji Pandey, J) Rishi/-
AFR/NAFR AFR CAV DATE NA Uploading Date 18.5.2016 Transmission Date