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3. The petition impugning the appointment of respondent 7, contends that the same is illegal and vitiated by bad faith. The School was founded in the year 1927 and the Society was a secular trust. The Montessori and Secondary school, were in receipt of Grants-in-aid from the Government. The school was therefore governed by the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977, and the Rules framed thereunder. Prior to the coming into force of the Act and the Rules, conditions governing the service of the teaching and non-teaching staff of the School were regulated by the Secondary School Code (Code). Under the Code as also the Rules aforementioned, the petitioner was senior vis-a-vis the 7th respondent. This was on account of the seniority in age. The seniority of the petitioner had been recognised by the Society when he was appointed as the Second Supervisor and also the First Supervisor in preference to respondent 7. In fact, the attempt to appoint respondent 7 as Second Supervisor after his elevation to the post of First Supervisor had been objected to by the Education Department, for which reason the contemplated promotion could not be made. Section 3(1) of the Act made it incumbent upon all Private Schools in the State to comply with the provisions of the said Act. The Rules had been framed under Section 16 of the Act. Rules 3, 5, 12 and 15, all read together, indicated that the post of an AHM has to be filled in by promotion. Petitioner complied with the requirements of the Rules in that he was academically qualified, had the requisite experience and had a clean record of service. His junior viz. the 7th respondent, could not be preferred over him. The reason for by-passing him lay in the differing responses of himself and respondent 7 when questioned as to where their allegiance would lie in cases of a conflict between directions given by the Society on the one hand and respondent 6 on the other. Petitioner had answered that respondent 6 was the Head of the teaching section of the School, and he, as a teacher would be bound by her directions. Respondent 7 on the other hand proclaimed her fidelity to the management. That is why she was preferred over him. Petitioner had questioned the legality and propriety of the recommendation made by the Interview Committee which had been accepted by the Governing Body of the School. Respondents 2 and 3 instead of curbing the patent violation of the rules, fell in with the suggestion of the Society that it was a minority institution and therefore, had rightly excluded petitioner and respondent 7 from the operation of the Act and the Rules by virtue of the power conferred upon them vide Section 3(2) of the Act. The naming under Section 3(2) had been varied from year to> year by respondents 4 and 5. Petitioner contends that respondent 5 was not a minority school. The Trust was registered in or about 1927 when Gujarati speaking people were not a linguistic minority. Therefore, even assuming that Gujaratis were a linguistic minority after 1960, when the erstwhile State of Bombay was bifurcated, Gujarati institutions founded prior to that date, could not claim the status of a minority institution. On this ground also he could not be denied the benefit of the Act and the rules governing promotions to the post of an AHM. The decision to supersede him was void ab initio and malafide. In case it was held that Section 3(2) of the Act justified his supersession, it was petitioner's contention that the said provision was void. Section 3(2) exempted from the operation of the Act the Head Master and three other employees whose names were notified to the Education Department by the institution running the minority school. In the choice of the three persons other than the Head, the teaching staff had no voice. By a unilateral act of the management, any teacher could be deprived of his rights under the Act. Such a unilateral act on the part of the management could be for unspecified reasons and could be used to oppress and harass any member of the teaching staff. No guidelines were given in the section as to how the power of exemption was to be exercised by the minority institution. Article 30(1) of the Constitution of India had for its object, the empowering of minorities to establish and administer educational institutions of their choice. This right could not be enlarged to confer upon minority institutions the right to adopt any wayward or unbridled policy of "hire and fire". Section 3(2) of the Act went much further and conferred arbitrary powers upon minority institutions to pick and choose any member of the teaching staff for denial of the benefits conferred by the Act and the Rules framed thereunder.

Admittedly, the society came into existence in the year 1927. In which year the School was established is not clear, but assuming that it came into existence in 1927, does it follow that the Gujarati speaking people in that year were not a minority? Mr. Vashi submits that the burden to establish that Gujaratis were a minority in 1927 lay upon respondents 4 and 5. The mere fact that this claim of theirs had been accepted by respondents 1 to 3 did not absolve them of the task to prove the claim by satisfactory evidence. They made the claim of being a minority educational institution and the State authorities without further ado accepted the same. In any case such acceptance if it was going to affect valuable rights of the petitioner could not be treated as conclusive. In this connection counsel points to the facts in I.H. Shah's case where the claimant adduced overwhelming evidence to bear out the claim of being a minority school. In that case, the claimants had to establish that they were entitled to the exercise of the fundamental right guaranteed under Article 30(1), so as to get over certain provisions of the Secondary School Code. What was established to get over the Code was that Settlor-cum-Trustee and the remaining Trustees were all Gujarati speaking, that 90% students carne from Gujarati speaking familities having Gujarati as their mother tongue, that 80% of the teaching staff and 50% of the non-teaching staff were all Gujaratis. The Deputy Director of Education in his return claimed that the petitioners had not established as to haw Gujarati people in the State of Maharashtra constituted a linguistic minority. Pendse J. held that the aforementioned factors sufficed to justify the claim to minority status put forth by the petitioners. This. decision is not an authority for the proposition that a heavy burden is cast upon the claimants to establish minority status. Moreover in I.H. Shah's case (supra), the claim to minority status was disputed by the Directorate of Education. In the instant case, the State authorities accept the claim of respondent 5 of being a minority institution. The acceptance would suffice for the purpose of this case. After all, it is the State which disburses the grants-in-aid. If an institution claims to be a minority institution, the degree of supervision the State can exercise is reduced. It will have to be presumed that acceptance of minority status claimed by an institution is so accepted after a fairly satisfactory enquiry by the authorities. Next, it is not possible to hold that Gujarati speaking people were not a linguistic minority in the erstwhile State of Bombay. While the exact population figures for the year 1927 are not forthcoming, judicial notice can be taken of the fact that the Marathi speaking were the dominant linguistic group in the erstwhile State of Bombay. There is no reason to believe that the position in 1927 was any different. I therefore hold that respondent 5 was established and is being administered by a linguistic minority, viz. Gujarati speaking and is therefore entitled to the right conferred upon such minorities by Article 30(1) of the Constitution.