IN THE SUPREME COURT OF INDIA

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CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.5489 OF 2007
Sindhi Education Society & Anr. ...Appellants
Versus
The Chief Secretary, Govt. of
NCT of Delhi & Ors. ...Respondents
JUDGMENT
Swatanter Kumar, J.
1. The Bench hearing the letters patent appeal in the High Court of
Delhi at New Delhi, while setting aside the judgment/order passed
by the learned Single Judge dated 14th September, 2005 in Writ
Petition (C) No.2426 of 1992, issued a certificate of leave to
appeal under Article 133 read with Article 134-A of the
Constitution of India, 1950 (for short `the Constitution') in its
judgment dated 30th November, 2006 and considered it
appropriate to frame the following questions to be decided by this
Court :-
(a) Whether Rule 64(1)(b) of the Delhi School
Education Rules 1973 and the
orders/instructions issued thereunder would, if
made applicable to an aided minority
educational institution, violate the
fundamental right guaranteed under Article
30(1) of the Constitution and are the
respondents herein entitled to a declaration
and consequential directions to that effect ?
(b) Have the judgments of the learned Single
Judge of the High Court in Sumanjit Kaur v.
NCT of Delhi [2005 III AD (Delhi) 560], as
affirmed by the decision dated 1.2.2006 of the
Division Bench of the High Court in (LPA
Nos.445-446/2005) Govt. of National Capital
of Territory of Delhi v. Sumanjit Kaur been
correctly decided ?
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1. It is useful to notice at this juncture itself that the Division Bench
doubted the correctness of judgment of another Division Bench of
that Court in the case of Govt. of NCT of Delhi v. Sumanjit Kaur in
LPA Nos. 445-446 of 2006 dated 1.2.2006. The Division
Bench had affirmed the view taken by the Single Judge in
Sumanjit Kaur (supra). The learned Single Judge had expressed
the view that such circulars and regulations issued by the
Directorate of Education, would be unconstitutional since they are
likely to interfere with the choice of the medium of instruction as
well as minority character of the institution by compelling the
appointment to the teaching faculty of persons, who may be
inimical towards that minority community. The Court further held
that since the approval in the facts of the case would be deemed
to have been granted, the Court was not expected to discuss or
pass further orders in the writ petition. The Division Bench, which
passed the impugned judgment expressed the view contra to the
view taken by the learned Single Judge in the Case of Sumanjit
Kaur (supra), as affirmed by the Division Bench. While noticing
that the Government of NCT of Delhi had filed the Special Leave
Petition (C) No. 16374 of 2006 in this Court in that case, the
3
Division Bench in the present case thought it fit to grant the
certificate for leave to appeal to this Court.
1. This is how we have been called upon to examine the
constitutionality and legality or otherwise of the above questions
framed by the High Court of Delhi. We are also of the considered
view that besides the above question, it will have to be examined
that even if the relevant provisions of the Delhi School Education
Act, 1973 (for short the `DSE Act') are not unconstitutional, would
they still apply with their rigors to the linguistic minority schools
receiving grant-in-aid from the Government. Before we enter upon
the aspects relating to law on the above issues, reference to the
basic facts would be necessary.
Facts :-
1. The appellant - Sindhi Education Society (hereinafter referred to
as `the Society') is a Society established and duly registered under
the provisions of the Societies Registration Act, 1860. The
Society is running, inter alia, a school known as S.E.S. Baba
Nebhraj Senior Secondary School at Lajpat Nagar, New Delhi.
4
1. According to the Society, Sindhi language is one of the languages
included in VIII Schedule of the Constitution and the people
speaking Sindhi language are scattered in various parts of the
country. As Sindhi language is not spoken by the majority of
people in Delhi, therefore, the Sindhi community in Delhi is and
has been held to be a linguistic minority by virtue of Article 30(1)
of the Constitution. The Society, therefore, has a constitutional
right to establish and administer educational institutions of its
choice. In furtherance of such an object, the school was
established for preservation of Sindhi language and managing the
affairs of the school as per its constitution and under the
provisions of the relevant laws.
1. In the year 1973, the DSE Act came into force with a view to
provide better organization and development of the school
education in Union Territory of Delhi and for matters connected
therewith and incidental thereto. Soon after coming into force of
the provisions of the DSE Act, 1973, the Society felt that certain
provisions of the DSE Act infringed the minority character of the
Society, particularly, in matters related to administration and
management of the school.
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1. It appears that the society filed a writ petition in the High Court of
Delhi being Writ Petition (C) No. 940 of 1975, titled Sindhi
Education Society (Regd.) v. Director of Education and others,
which came to be disposed of by a detailed judgment of the Delhi
High Court dated 14th July, 1982. In that judgment, the Court
specifically held that the Society was a linguistic minority and the
provisions of the DSE Act as specified in the judgment would not
be applicable to the Society. In order to put the matters with
clarity, it will be useful to refer to the findings recorded by the
Court which read as under :-
"In the present case the Delhi School
Education Act is applicable only to the Union
territory of Delhi. It is with reference to this
Territory that one has to consider as to
whether Sindhi is a language spoken by the
majority or minority of the people. On this
there can be no doubt. Sindhi is not spoken
by majority of the people in Delhi and,
therefore, the Sindhi community in Delhi can
legitimately be regarded as a linguistic
minority. Just as a religious minority may be
composed of persons whose mother-tongue
may not be the same, similarly a linguistic
minority may not necessarily be composed of
people who belong to a religious minority of
the State. As such, every person, who is a
Sindhi, would be regarded as belonging to a
linguistic minority irrespective of the fact as to
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whether he is a Hindu, or a Muslim or a
Christian to the effect that some of the
provisions of the Act and the Rules would not
apply to minority institutions, while some other
provisions could be made applicable only with
certain modifications or in accordance with
the observations made by the Court. We
may now summarise the decision of this Court
with regard to those provisions of the Act and
the Rules which it held as not being
applicable, or being applicable as per the
directions contained therein, because the
learned counsel for the petitioner states that a
similar direction should be issued in this case
also.
xxx xxx xxx xxx xxx
The aforesaid provisions are not to apply to
the school but the Director of Education, Delhi
should be kept informed of any order of
dismissal, removal, reduction in rank or
termination of service of an employee by the
management. If the Administration receives
information that the disciplinary powers are
being abused by the school then the
Administration will have a right to suspend,
reduce or stop the grant-in-aid to the School
after giving a hearing to the school.
Section 27A and B :- The said provisions are
not to apply to the minority school.
The writ petition is accordingly allowed in the
aforesaid terms and, like in Jain Sabha's case
(supra), it is directed that the aforesaid
provisions of the Delhi School Education Act,
1973 and the Rules framed thereunder will
7
not apply to the petitioner or would apply only
in the manner in which they have been
interpreted by this Court. The petitioner will
be entitled to costs. Counsel's fee Rs.550/-."
1. The aforesaid judgment appears to have attained finality and, in
fact, was not impugned before this Court. The Division Bench,
while deciding the above case, clearly held that certain Rules
would not be applicable and it specifically noticed the provisions
relating to the constitution of the Managing Committee under Rule
59, Rule 64, different Clauses under Rule 96(3), Rule 98, Rule
105 and Rule 120 of Delhi School Education Rules, 1973 (for
short `DSE Rules') in that behalf. The Court held that Rule 64 of
the DSE Rules is to be construed in respect of minority schools to
require compliance only if those provisions of the Act and the
Rules and instructions thereunder are in consonance with the
provisions of the Constitution, particularly, with Article 30(1) of the
Constitution.
1. Rule 64, primarily, deals with the conditions of providing grant-in-
aid and further states that no aid is to be granted unless suitable
undertaking is given by the Managing Committee. Rule 64 came
to be amended by Notification Nos. 1340-2340 dated 23rd
8
February, 1990. This Rule prescribe certain limitation which the
Competent Authority can impose in exercise of its powers. Even
before amendment of this Rule, on 12th March, 1985, instructions
were issued by the Deputy Director of Education, addressed to the
appellant stating, inter alia, that in accordance with provision of
Rule 64 of the DSE Rules, the Managing Committee of the
Society was required to furnish an undertaking that they would
make reservation in the appointments of teachers for the
Scheduled Castes and Scheduled Tribes. The reference was
also made to the instructions issued by the Department of
Personnel, Government of India, wherein reservation for
Scheduled Castes and Scheduled Tribes in the
Institutions/Organisations was ordered. The relevant part of the
said letter reads as under :-
"4. Since the schools are required to apply for
grants-in-aid every years on the prescribed
proforma as provided under the Act, they are
also required to given undertaking to make
reservation in the services and posts for
scheduled castes and scheduled tribes
accordingly. A specimen of the declaration
is sent herewith the request that the same be
sent to this office duly filled in and signed with
stamp of the Authority signing.
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5. It may be noted that the future grants-in-aid
shall be released on giving the aforesaid
undertaking on the enclosed proforma."
The appellant Society responded to that letter vide reply dated
15th April, 1985, inviting attention of the authorities to the judgment of
the High Court dated 14.7.1982, in Writ Petition No. 940 of 1975,
deciding, inter alia, that the school in question, has been held to be a
minority institution and that Rule 64 of the DSE Rules is to be
accordingly construed in respect of minority school(s) that they
require compliance, only, if the same is in consonance with the
provisions of Article 30(1) of the Constitution.
1. The Secretary (Education), Govt. of NCT of Delhi, Respondent
No.3, thereafter vide his communication dated 21st March, 1986,
informed the appellant that the undertaking, which was required to
be given by all the Government aided schools in the matter of
compliance with the provisions relating to reservation for
Scheduled Castes and Scheduled Tribes in the institutions, is not
applicable to the minority institutions. Thus, they were not
required to adhere to the same. It will be useful to refer to the
10
communication of the Government at this stage itself, which reads
as follow :-
"In connection with circular letter issued vide
even number dated 12.3.85, this is hereby
clarified that an undertaking in writing which
was required to be given by all the Govt.
Aided Schools in the matter of compliance
with the provisions relating to reservation for
SC/ST in the institutions is not applicable to
the minority institutions. As such the
managements of the institutions are at the
discretion to adhere or not to adhere to the
instructions issued by the Govt. of India
regarding reservation of SC/ST."
1. The aforesaid letter was issued after the judgment of the Court
had been pronounced, however, according to the appellant, in
violation of all the principles and the law laid down by that Court,
they still received another communication from the authorities in
September, 1989, addressed to all the schools that appointment
of the Scheduled Castes and Scheduled Tribes candidates is a
precondition for all the agencies receiving grant-in-aid from the
Government and while referring to Rule 64 of the DSE Rules and
its amendment, they were required by the authorities to comply
with this condition. The correctness of this action of the
respondent was questioned by appellants by filing a writ petition in
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the High Court, which came to be registered as Writ Petition (C)
No.2426 of 1992 titled as Sindhi Education Society v. Union of
India and Others. This writ petition was allowed by the learned
Single Judge vide his Order dated 14.9.2005. The learned Single
Judge felt that the case was entirely covered by the judgment of
that Court in the case of Sumanjit Kaur (supra). That was the
primary and only reason, stated by the learned Single Judge, for
allowing the writ petition.
2. Aggrieved from the judgment of the learned Single Judge, the
NCT of Delhi filed a letter patent appeal being L.P.A. Nos. 33 to
36 of 2006 and 40-43 of 2006, and the same was not only
accepted but the Division Bench had felt it proper to grant
certificate of leave to appeal to this Court, vide judgment dated
30.11.2006. While setting aside the judgment of the learned
Single Judge and also expressing a dissent to the Division Bench
Judgment in the case of Sumanjit Kaur (supra), the Division
Bench, primarily, recorded the reasons as [a] that Rule 64(1)(b)
does not infringe any right of the minority institution, [b] Clause 11
of the Kerala Education Bill, 1957, which was the subject matter of
consideration before the Supreme Court in the case of In Re.
12
Kerala Education Bill, 1957, [(1959) SCR 995], was pari materia to
Rule 64(1)(b) of DSE Rules, and as such was in conformity with
law and lastly, implementation of roster of reservation was in
consonance with the stated principle and the fundamental rights
are not infringed. For these reasons, the High Court passed the
order afore-noticed, resulting in filing of the present appeal.
1. We have already noticed the questions of law of general public
importance, which had been framed by the High Court at the time
of issuance of certificate. The appellants herein succeeded
before the learned Single Judge, which order in turn, was set
aside by the Division Bench of the High Court. The appellants in
writ petition had raised a specific challenge to the provisions of
Rule 64(1)(b) of the DSE Rules which had been accepted by the
learned Single Judge as the matter was stated to be covered by
the judgment of that Court in Sumanjit Kaur's case (supra). The
respondents vide their letter dated 12th March, 1985, and,
thereafter, while referring to the Department of Personnel and
Administration, letter dated 7th October, 1974, pressed upon the
Managing Committee of the institutions, which were Government
aided including minority institutions, to furnish an undertaking that
13
they would abide by the rule promoting reservation while making
appointment of teachers in the school. Thus, the question that
clearly arise for consideration before this Court is whether the
provisions of Rule 64(1)(b) of the DSE Rules is ultra-vires or
violative of Article 30(1) of the Constitution. In the alternative,
whether the said Rule, as framed, can be enforced against the
Government aided institutions belonging to linguistic minorities.
In order to examine this aspect in some elaboration, we would
have to dissect it into two different sections. Firstly, the law in
relation to such minorities, as has been settled by catena of
judgments of this Court, and their correct application to the present
case, secondly, analysis of the scheme of the DSE Act and the Rules
framed there under, in relation to minority institutions. Depending
upon the answer to these two aspects, lastly, whether the Rule is
enforceable against the minority institutions to the extent that the
authorities can deny grant-in-aid for non-compliance.
Scheme under the Delhi School Education Act, 1973 and the
Rules framed thereunder in relation to the Minority Institutions :-
14
1. As already noticed, there is no dispute to the fact that appellant is
a minority institution and the Society is one which enjoys the
status of a linguistic minority and thus is entitled to all the
constitutional benefit and protection under Articles 29 and 30 of
the Constitution. Firstly, one has to examine what is a minority.
`Minority', would include both religious and linguistic minorities.
Section 2(o) of the DSE Act defines `minority school' as
follows:-
"minority school" means a school established
and administered by a minority having the
right to do so under clause (1) of Article 30 of
the Constitution
Once an institution satisfies the above ingredients, it has to be
given the status of a minority institution. The High Court in its
judgment in Sindhi Education Society (Writ Petition No.940 of 1975)
(supra) had clearly declared that the appellant is a linguistic minority
and that judgment has attained finality.
1. There is hardly any dispute in regard to status of this Society.
Prior to coming into force of DSE Rules, the Society was obviously
free to carry on its activity of running the educational institution,
free from any restriction and in accordance with law. DSE Act
15
was enacted to provide better organization and development of
school education in Union Territory of Delhi and for matters
connected therewith or incidental thereto. The very object of this
Act was, therefore, to improve the organization and school
education in Delhi. The primary object, thus, was to aid and
develop the education system at the school level. In order to
achieve this purpose, power is vested in the Administrator to
regulate education in all schools in Delhi in accordance with the
provisions of the DSE Act and Rules made there under. Section
3(3) of the DSE Act makes it abundantly clear that on and from
the commencement of DSE Act, and subject to the provisions of
Clause 1 of Article 30 of the Constitution, the establishment of a
new school or opening of a higher class or even closing of existing
classes shall have to be in accordance with the provisions of the
DSE Act, but for such compliance, the recognition shall be denied
to such institution by the appropriate authority. The school is
required to have a scheme of management in terms of Section 5
of the DSE Act, but such scheme insofar as it relates to the
previous approval of the appropriate authority, will not be
applicable to the scheme for an unaided school.
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1. Powers of wide dimensions and authority are vested in the
Administrator under Section 20 of the DSE Act, which forms part
of Chapter VII relating to taking over of the management of the
schools under the provisions of the Act. Whenever the
Administrator is satisfied that the managing committee or the
manager of the school has failed or neglected to perform their
duties and carry on the management of the school in accordance
with the provisions of the Act, the Administrator can take over the
management of the school whether such school is recognized or
not. But, such action can be taken only in accordance with the
prescribed procedure. However, where the Administrator feels
that it is expedient to take over the management of the school, it
could pass orders from time to time, outer limit being 3 years
which again could be extended for further period, if the
Administrator is of that opinion for valid reasons but, in any case, it
cannot exceed the period of 5 years in its entirety. These powers
of the Administrator indicate the legislative intent to ensure that
the object of the DSE Act is not defeated and every recognized or
unrecognized institution, without classification on the basis of
receiving Government aid, should function and be managed in
17
accordance with the provisions of the DSE Act and the Rules
framed thereunder. It is of great significance to notice here that
the legislature in its wisdom by a specific provision under Section
21 of the DSE Act has kept minority schools outside the ambit and
scope of Section 20. In other words, the power of control and
management vested in the authority even on the basis of alleged
breach of conditions would not enable the authorities to take over
the management of any minority school. Section 21, thus, is an
absolute exception to the applicability of Section 20 of the DSE
Act. Section 28 of the DSE Act empowers the Administrator to
frame Rules with the previous approval of the Central
Government. The Administrator has been empowered under
Section 28(2), in particular and without prejudice to the generality
of the stated powers, to frame Rules in relation to the matters
specified in that sub-section.
1. It will not be necessary for us to notice in detail the purposes for
which Rules can be framed but reference to few of them would be
useful. Under Section 28(2)(b), Rules can be framed in regard to
the condition which every existing school shall be required to
comply. While, Section 28(2)(g) contemplate framing of minimum
18
qualifications for, and method of recruitment, and the terms and
conditions of service of employees, Section 28(2)(k) empowers
the Administrator to frame Rules in regard to the conditions under
which aid may be granted to recognized schools and on violation
of which, aid may be stopped, reduced or suspended and Section
28(2)(q) relates to faming of Rules for admission to a recognized
school and lastly under Section 28(2)(u), Rules can be framed in
regard to financial and other returns to be filed by the managing
committee of recognized private school. It has to be noticed that
all these Rules can be framed and have only one purpose `make
rules to carry out the provisions of the Act''. In other words, the
framing of Rules does not empower the Administrator to go
beyond the purpose of object of the Act and all these Rules so
framed should be intended only to further the cause of the Act and
bring nothing into existence, which is specifically or by necessary
implication impermissible under the provisions of the DSE Act.
1. At this point reference to some of the DSE Rules can be of some
assistance. Under Chapter-II - Regulation of Education - The
freedom of minority institutions to establish educational institutions
for advancement of their own language and culture is a protected
19
freedom. Rule 10 of the DSE Rules recognizes such mandate. It
is provided there that any linguistic minority which intends to set
up school with the object of imparting education in the mother-
tongue of such linguistic minority, shall be entitled to do so and
shall be entitled to receive grant-in-aid, if other conditions for that
purpose are satisfied. However, second proviso to this rule states
that linguistic minority can decide to impart education at the school
in a language other than the language of such linguistic minority.
In that event, it shall not be obligatory upon the Administrator to
give grant-in-aid to such schools. In other words, this rule
recognizes two aspects - firstly, the extent of freedom available to
the linguistic minority for educational purposes and secondly, an
obligation on the part of the Administrator to give grant-in-aid
unless the linguistic minority was covered by the second proviso.
The indication that such institution would normally be entitled to
receive grant-in-aid, if they satisfy the conditions, is clear in terms
of Rule 10.
1. Chapter-III deals with Opening of New Schools or Classes or
Closure of Existing Schools or Classes. Rule 44 provides that
every individual, association of individuals, society or trust which
20
desires to establish a new school, not being a minority school, is
required to give intimation in writing to the Administrator of their
intention to establish such school. The details of the
intention/intimation required have been stated in Rule 44(2).
Amongst others, it requires details to be submitted in respect of
managing committee of the proposed new school and the
proposed procedure until its recognition under the DSE Act for
selection of the Head of the School and the teachers as well as
the non-teaching staff etc. It is noteworthy that this rule is
applicable to the institutions not being a minority school. The
minority institution, therefore, has specifically been kept out of the
application of this rule, the purpose being that the administration
and management of a minority school will remain outside the
rigors of compliance of Rule 44.
1. Chapter-IV of the DSE Rules deals with Recognition of Schools.
Rule 50 states the condition which an institution is required to
satisfy before it can be granted recognition. Rule 56 empowers
the competent authority to suspend or withdraw the recognition
granted.
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1. Chapter-V deals with the Scheme of Management of the
recognized schools. Rule 59 is one other provision which,
primarily, indicates the limitations of the schools in regard to
furnishing of scheme of the management of the recognized
schools. All the recognized schools are expected to submit to the
authority the scheme of management and comply with the
requirements of formation of managing committee of the school
and total number of the members in terms of that rule. The
managing committee would include two members to be nominated
by the Director, and other members to be nominated or elected,
as the case may be, in accordance with the rules and regulations
of the society in terms of Section 590(1)(iv), (v) and (vi)
respectively. The members, who are nominated by the Director
and the persons nominated by the Advisory Board, in the case of
schools other than the minority schools, have an effective role to
play in decisions of management as well as they have right of
voting. However, in regard to minority school the framers of the
rule have added five provisos to Rule 59(1). They specifically
provided that in a minority school, the members, instead of being
elected, would be the one nominated by the society or the trust by
22
which such unaided minority school is run. The educationist, to be
nominated by the Director, shall be a non-official belonging to the
minority by which the school is established and run, and the
managing committee shall co-opt two senior-most teachers out of
a panel of ten senior-most teachers of the school by rotation and
in case the school works in two shifts, then one senior-most
teacher shall be co-opted from a panel of five senior most
teachers in each shift by rotation. Sub-rule (iv) of Rule 59 which
gives powers to the Advisory Board to nominate two persons will
not apply in the case of the minority school. Furthermore, the
members nominated by the Director, Education in exercise of its
powers under Sub-rule (v) of Rule 59 shall not be entitled to take
part in the management of the minority school and shall function
as advisers and observers to put forward the views of the
Government in the meeting. This reflects the kind of control, the
framers of the rule desired, that the authorities should exercise
over the aided minority schools in comparison to the Government
aided non-minority schools. There is clear line of distinction which
gets more and more prominent with further reference to the
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various provisions of the DSE Act and the Rules framed
thereunder.
1. Chapter-VI is the basic chapter, with which, we may be concerned
in the present case, as it deals with grant-in-aid. Under Rule 60,
every aided school, which was receiving aid, will continue to
receive such aid, so long as it fulfills the conditions of receiving
the aid, in terms of Rule 64. Rule 64 deals with the condition that
an undertaking in writing has to be filed by the institution to
receive the grant-in-aid allowed by the competent authority under
the provisions of the DSE Act. The Rule reads as under :
"(1) No school shall be granted aid unless its
managing committee gives an undertaking in
writing that:
(a) it shall comply with the provisions of the Act
and these rules;
(a) it shall fill in the posts in the school with the
Scheduled Castes and the Scheduled Tribes
candidates in accordance with the instructions
issued by the Central Government from time
to time and also maintain the roster and other
connected returns in this behalf;"
Rule 65 details the conditions which a school, applying for
grant-in-aid, should satisfy. The grant-in-aid is required to be given
24
only for the qualified staff as Rule 66 imposes no obligation upon the
State to release grant-in-aid in relation to unqualified staff. The
management of the school must employ adequate number of
qualified teachers and other staff which is approved by the Director
under the norms prescribed for such post or which may be
prescribed from time to time.
1. Rule 96 under Chapter VIII relates to the Recruitment and Terms
and Conditions of Service of the Employees of the Private Schools
other than the Unaided Minority Schools. This chapter itself will
not apply to unaided minority schools but would apply to other
schools. The chapter deals with how a selection committee will be
constituted and how the employees including the teachers would
be appointed to the schools. DSE Rules 96(1) to 96(3) deals in
some detail with reference to appointment, constitution of the
selection committee, methodology of selection and appointment to
the post of teacher as well as Group-D employees. Significantly,
DSE Rules 96(3A) and 96(3B) are exceptions to the earlier part of
the DSE Rules. The said DSE Rule 96(3A) refers to various
nominations which makes it clear that in the case of aided minority
schools, such nominated persons, under different clauses stated
25
therein, shall act only as advisers and will not have the power to
vote or actually control the selection of an employee. Rule 96(3B)
states that notwithstanding anything contained in sub-rule (3), the
Selection Committee of a minority school shall not be limited by
the number specified in the said sub-rule and its managing
committee may fix such number. Obviously, all these provisions
have been framed with the emphasis on the fact that authorities
like the Administrator, Director and other officers do not have a
direct, and in some cases, even indirect participation in the
management and administration of the minority school which
includes the selection and appointment of teachers. It attains a
greater significance, once these provisions along with restrictions
stated in the DSE Act are read in conjunction with Articles 29 and
30 of the Constitution.
1. Chapter-XI of the DSE Rules deal with Unaided Minority School.
It requires that recruitment of employees of each recognized
unaided minority school shall be made on the recommendation of
a Selection Committee to be constituted by the managing
committee of that school. Rule 128(1) requires the minimum
qualifications for appointment as a teacher of an unaided minority
26
school shall not be less than those as are prescribed by the
Affiliating Board. In the event, no minimum qualifications have
been specified by the Affiliating Board, in respect of the post of
any teacher, the minimum qualifications for recruitment to the
such post be made by the Administrator after considering such
recommendations or suggestions as may be made by the
unaided school in this behalf. In terms of Rule 129, the
appropriate Authority has been empowered to relax the minimum
qualification for such period as it may deem fit and proper.
Chapter XII deals with `Admissions to Recognized
Schools'.
1. Thus, the scheme of the DSE Act, in particular, is to give greater
freedom to the aided minority institutions and not to impinge upon
their minority status as granted under Article 30(1) of the
Constitution. We shall shortly discuss the constitutional mandate
and effect thereof with reference to the facts of the present case.
On the analysis of the above, it is clear that Section 21 of the DSE
Act has to be given its true meaning and permitted to operate in
the larger field. The stringent power vested in the appropriate
Authority in terms of the Section 20 cannot be enforced against a
27
minority institution. It is the consequence flowing from the
violations committed by management of a school that empowers
the authorities to take over the management of the school within
the scope of Section 21 of the DSE Act. Minority Institutions
being an exception to these rules have been given a distinct and
definite status under the Act and the Rules framed thereunder.
Discussion on law particularly with reference to the judgments
relied upon by the respective parties.
1. Mr. P.P. Malhotra, the learned Additional Solicitor General of
India, with great emphasis, argued that by providing and enforcing
the intent of Rule 64(1)(b) of the DSE Rules, the Government is
not causing any discrimination. The said DSE Rule relating to
reservation is uniformly applied to all schools. It was fairly stated
that there is no dispute to the fact that the appellant institution is a
linguistic minority institution. It is also contended that the
controversy in the present case is covered by Kerala Education
Bill, 1957, case (supra) and the appeal deserves to be dismissed.
1. The direction issued by the Directorate of Education for furnishing
of such an undertaking is contemplated under Rule 64(1)(b) and
28
its implementation is in consonance with the principle of equality
before law and also within the ambit of Article 15 of the
Constitution. The right is vested in the Government to make
reservation, as such the grant-in-aid is to be used for a social
object, namely, upliftment of reserved category, even by providing
employment in minority institutions, like the appellant. This shall
be the true spirit of the preamble of the Constitution, which
requires attainment of the goal, to secure to all citizens, justice,
social, economic and political. These expressions are of wide
magnitude and the authorities are well within their competence to
require minority institutions as well to comply with the rule of
reservation and file undertakings as contemplated under Rule
64(1)(b) of the DSE Rules. The reliance has primarily been
placed upon the judgment of this Court in the case of Kerala
Education Bill, 1957 (supra); T.M.A. Pai Foundation v. State of
Karnataka [(2002) 8 SCC 481]; Kanya Junior High School, Bal
Vidya Mandir v. U.P. Basic Shiksha Parishad [(2006) 11 SCC 92],
Secy. Malankara Syrian Catholic College v. T. Jose [(2007) 1 SCC
386] and Brahmo Samaj Education Society v. State of W.B.
[(2004) 6 SCC 224].
29
1. On the contra, the submission made by Mr. K.L. Janjani, the
learned counsel appearing on behalf of the appellant is that
merely because the State is providing grant-in-aid to a minority
institution, it will not clothe the authority with the power to interfere
in the administration and management of a minority institution.
Right to appoint a teacher is a part of the management and, thus,
is free from any restriction. In terms of Article 30 of the
Constitution, the right of minority to establish and administer
educational institutions of their own choice, is incapable of being
interfered with by the authorities and the language of Rule
64(1)(b), as well as the directives issued by the respondents
violates the constitutional protection available to the appellants in
accordance with law. It is the contention of the appellant that the
law enunciated in Kerala Education Bill case,1957 (supra) has
been watered down suitably by this Court in T.M.A. Pai's case
(supra) and also that the provisions of DSE Act are not pari
materia, much less, identical to that of Kerala Education Bill, 1957
case (supra). There are specific provisions in the DSE Act and
the Rules exempting linguistic minority institutions and, as such,
the State cannot derive any benefit from the said judgment. The
30
purpose of allowing grant-in-aid is to create equality and parity
with other institutions. But this does not mean that the authorities
under the pretext of granting to the minority institutions additional
protections impose conditions which would frustrate the very
purpose and object of minority institution and for non-compliance
thereof, deny the grant-in-aid. On the simple interpretation of
Articles 15, 29 and 30 of the Constitution, it is crystal clear that the
linguistic minority institution has the right to make appointments,
free of restriction or reservation, as that alone will be in the
interest of the linguistic minority. The learned counsel for the
appellants relied upon the dictum of order in T.M.A. Pai's case
(supra), in addition to the Ahmedabad St. Xaviers College Society
v. State of Gujarat [AIR 1974 SC 1389]; Father Thomas Shingare
v. State of Maharashtra [(2002) 1 SCC 758]; T. Devadasan v.
Union of India [AIR 1964 SC 179], Brahmo Samaj Education
Society (supra) and Lt. Governor of Delhi v. V.K. Sodhi & Ors.
[AIR 2007 SC 2885] in support of his contentions.
1. In the light of the submissions made before us, it will be pertinent
for us to examine how the law has travelled for all these years in
relation to the right of minority to run their institutions and the
31
extent to which they can be subjected to control by the appropriate
authorities, in accordance with law. The seven-Judge Bench of
this Court in the case of Kerala Education Bill, 1957 (supra) was
concerned with constitutionality or otherwise of certain clauses of
the Kerala Education Bill, 1957. While, discussing the scope of
rights available to the minority institutions in relation to running of
educational courses, the Court dealt with different aspects of the
matter and discussed the constitutional provisions construed in
light of the Kerala Education Bill. The Bill had provided different
clauses which the institution was required to satisfy to receive the
grant-in-aid. In para 29 of the judgment, the Court noticed
various clauses of the Kerala Education Bill, the validity of which
was challenged before this Court. The argument advanced
before the Court, inter alia, was also with reference to the Anglo
Indian Education Institutions, that they were entitled to receive the
grant under Article 337 of the Constitution and the provisions of
the said Bill, which legitimately come within the provisions which
infringe their right not only under Article 337 of the Constitution,
but also violate Article 30(1) of the Constitution. In that case they
are prevented from effectively exercising its rights. A Bench
32
noticed the grievances of the minorities in para 29 of the judgment
and discussed the same in para 31 before arriving at the final
conclusion.
1. The Court in that case was dealing with the Presidential
Reference, in terms of Article 143 of the Constitution. While
referring to the questions framed for the opinion of the Court, the
Court noticed that the width of power of control thus sought to be
assumed by the State evidently appeared to the President to be
calculated to raise doubts as to the constitutional validity of some
of the clauses of the said Bill on the ground of prohibited
infringement of some of the fundamental rights granted to the
minority communities by the Constitution. The Bench in Para 10
noticed the questions which are as under :-
(1) "Does sub-clause 5 of clause 3 of the
Kerala Education Bill read with clause 36
thereof or any of the provisions of the said
sub-clause 36 thereof or any of the
provisions of the said sub-clause, offend
article 14 of the Constitution in any
particulars or to any extent?
(1) Do sub-clause (5) of clause (3), sub-clause
(3) of clause 8 and clause 9 to 13 of the
Kerala Education Bill or any provisions
33
thereof, offend clause 91) of article 30 of
the Constitution in any particulars or to any
extent?
(1) Does clause 15 of the Kerala Education
Bill or any provisions thereof, offend article
14 of the Constitution in any particulars or
to any extent?
(1) Does clause 33 of the Kerala Education
Bill, or any provisions thereof, offend
article 226 of the Constitution in any
particulars or to any extent?"
The answers to question Nos. 1 and 3 :
"That result, therefore, is that the charge of
invalidity of the several clauses of the Bill
which fall within the ambit of questions 1 and
3 on the ground of the infraction of Article 14
must stand repelled and our answers to both
the questions 1 and 3 must, therefore, be in
the negative".
Answer to question No. 2 :-
"Yes, so far as Anglo Indian education
institutions entitled to grant under Article 337
are concerned. (ii) As regards other minorities
not entitled to grant as of right under any
express provision of he constitution but are in
receipt of aid or desire such aid and also as
regards Anglo Indian educational institutions
in so far as they are receiving aid in excess of
what are due to them under Article 337
clauses 8(3) and 9 to 13 do not offend Article
30(1) but clause 3(5) in so far as it makes
such educational institutions subject to
clauses 14 and 15 do not offend Article 30(1).
34
(iii) Clause 7 (except sub clauses (1) and (3)
which applies only to aided schools),
clause10 in so far as they apply to recognized
schools to be established after the said Bill
comes into force do not offend Article 30(1)
but clause 3(5) in so far as it makes the new
schools established after the commencement
of the Bill subject to clause 20 does offend
Article 30(1)."
In the said case, the Court held that right of the minorities to
some extent was restricted in the sense that general control still
could be exercised by the authorities concerned, but in accordance
with law. That is how Clause 11 of the Bill, which has been very
heavily relied upon by the respondents before us, completely put an
embargo on the appointment of teachers of their choice and the
teachers could only be appointed out of the panel selected by the
Public Service Commission. This clause was held not to be in
violation of the Constitution, but clauses 14 and 15, which related to
taking over of the management of an aided school for the conditions
stipulated therein, were held to be unconstitutional and bad. This
was in view of the law stated under the Bill and its scheme that
weighed with the Court to record findings afore-noticed.
35
1. Still another Seven Judge Bench of this Court, in the case of the
Ahmedabad St. Xavier's College Society (supra) was, primarily,
concerned with the scope of Articles 29 and 30 of the Constitution,
relating to the rights of minorities to impart general education and
applicability of the concept of affiliation to such institutions. Of
course, the Court held that there was no fundamental right of a
minority institution to get affiliation from a University. When a
minority institution applies to a University to be affiliated, it
expresses its choice to participate in the system of general
education and courses of instructions prescribed by that
University, and it agrees to follow the uniform courses of study.
Therefore, measures which will regulate the courses of study, the
qualifications and appointment of teachers, the conditions of
employment of teachers, the health, hygiene of students and the
other facilities are germane to affiliation of minority institutions.
With regard to grant of an appropriate protection of such
community in terms of Article 30 of the Constitution, the Court
held as under :-
"12. The real reason embodied in Article 30
(1) of the Constitution is the conscience of the
nation that the minorities, religious as well as
36
linguistic, are not prohibited from establishing
and administering educational institutions of
their choice for the purpose of giving their
children the best general education to make
them complete men and women of the
country. The minorities are given this
protection under Article 30 in order to
preserve and strengthen the integrity and
unity of the country The sphere of general
secular education is intended to develop the
commonness of the boys and girls of our
country. This is in the true spirit of liberty,
equality and fraternity through the medium of
education. If religious or linguistic minorities
are not given protection under Article 30 to
establish and administer educational
institutions of their choice, they will feel
isolated and separate. General secular
education will open doors of perception and
act as the natural light of mind for our
countrymen to live in the whole.
xxx xxx xxx xxx xxx
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 compete dedication of the teacher and the
taught in learning, where there is discipline
between the teacher and the taught, where
both are worshippers 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,
37
manifest that the appointment of teachers is
an important part in educational institutions.
The 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 measure are required to
ensure the appointment of good teachers and
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
color of minority. A minority institution should
shine in exemplary eclectism 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."
As is evident from the above noticed dictum of the Court the
emphasis had been laid on the right of the minority institutions to
administer institution. Appointment of teacher is an important part of
administration of educational institution and administrative freedom of
the minority in that regard.
1. Now we may refer to a judgment of this Court in the case of
Managing Committee, Khalsa Middle School v. Mohinder Kaur
[(1993) Supp. 4 SCC 26]. In this case, the Court was concerned
38
with the amendments made in the Rules and Regulations of the
Society. The date of passing of the resolution or its registration,
which would be the effective date while dealing with the
termination of service of a teacher without obtaining the approval
of the Director of Education, could not be annulled for violating the
provisions of the DSE Act. While registering the Khalsa
Education Society, which was running a school known as Khalsa
Primary School, belonging to a minority, it lost its status of
minority, which was restored in July, 1979. The action was
initiated during the interregnum period when the Society was
working as non-minority institution, the Court took the view that as
a non-minority institution, it was required to comply with the
conditions of the DSE Act and the Rules framed thereunder, but
once the character of minority institution was restored, the
provisions will not be attracted. In this regard, the Court held as
under :-
"10...........Here we are concerned with the
amendment in the Rules and Regulations of
the Society. In the absence of any
requirement in the Societies Registration Act
that the alteration in the Rules and
Regulations must be registered with the
Registrar, it cannot be held that registration
39
of the amendment is a condition precedent for
such an alteration to come into effect. It is,
therefore, not possible to accept the
contention of Shri Mehta that the amendment
which was made in the Rules and Regulations
by resolution dated July 1, 1979 did not come
into effect till March 13, 1980 when the
amended Rules and Regulations were
registered with the Registrar, Firms and
Societies. The said amendment should be
treated to have come into effect from the date
on which the resolution making the said
amendment was passed, i.e. July 1, 1979.
As a result of the said amendment in the
Rules and Regulations of the Society, the
alterations made in the Rules and Regulations
in 1963 were reversed and the position as it
stood prior to the amendment of 1963 was
restored. Consequently, the school which
was a minority institution till the amendment of
the Rules and Regulations in 1963 and had
ceased to be a minority institution as a result
of the amendment in 1963 regained its status
as a minority institution after July 1, 1979,
when the rules and regulations were
amended and the original position was
restored. In view of the restoration of the
minority character of the institution the
provisions of the Education Act and the
Education Rules ceased to be applicable to
the institution after July 1, 1979. The
impugned order of termination order of the
services of the respondent was passed on
December 31, 1979, i.e., after the school had
become a minority institution. The said order
cannot, therefore, be held to be invalid on the
ground that it was passed in contravention of
Section 8 of the Education Act. The order
passed by the Delhi High Court quashing the
said order as well as the disciplinary
40
proceedings cannot, therefore, be upheld.
The respondent was placed under suspension
on August 11, 1972 and continued under
suspension till April 9, 1973 on which date
Education Act came into force. In other
words she was under suspension at a time
when the Education Act was not in force.
The order of suspension cannot be judged on
the basis of the provisions of the Education
Act and the Education Rules. We are,
therefore, unable to uphold the direction of
the High Court quashing her order of
suspension."
The aforesaid judgment states principle of law of far reaching
consequences, i.e. an institution which is run by a minority linguistic
or religious would not be controlled exclusively by the provisions of
the DSE Act and the Rules framed thereunder, as the grant of
approval would tantamount to interfere in the internal management of
a minority institution.
1. Now, we may refer to the case of T.M.A. Pai (supra) which has
been strongly relied upon by learned counsel appearing from both
the sides before us. In this judgment, the Court had practically
discussed the entire case law on the subject and particularly, the
case of Kerala Education Bill, 1957 (supra) as well as Ahmedabad
St. Xavier's case (supra). It may be noticed that the law stated by
41
the Seven-Judge Bench in Kerala Education Bill, 1957 case
(supra), to some extent, has been diluted. Various aspects of this
case, we shall shortly proceed to discuss, but let us first examine
what the Court has held and in what context. It is really not
necessary for us to get into detailed factual matrix and all the
principles that have been enunciated by the Eleven-Judge Bench.
It will be better for us to restrict ourselves to the discussion only in
relation to the question of involvement in the present case. The
learned Additional Solicitor General relied upon paras 72, 73, 107,
136, 138, 141, 144 and 450 of the judgment in support of his
submissions.
1. On the contrary, the learned counsel for the appellants submitted
that the paragraphs relied upon by the respondents are the
minority view and not the part of the majority judgment. With this,
he placed reliance upon paras 89, 116 and 123 of the judgment.
In order to avoid any ambiguity or confusion, we must clarify at the
outset that till paragraph 161, it is the majority view of the T.M.A.
Pai's case (supra) whereafter different Judge/Judges have
expressed their views and given independent conclusions and
answers to the questions framed. Thus, it will be expected from
42
us and we would only refer to the decision and finding of the
majority view, which is binding on the Court.
1. The respondents have placed reliance upon the law stated by the
Bench that any regulation framed in the national interest must
necessarily apply to all educational institutions, whether run by
majority or the minority. Such a limitation must be read into
Article 30. The rule under Article 30(1) cannot be such as to
override the national interest or to prevent the Government from
framing regulations in that behalf. It is, of course, true that
Government regulations cannot destroy the minority character of
the institution or make a right to establish and administer a mere
illusion, but the right under Article 30 is not so absolute as to be
above the law. The appellant also seek to derive benefit from the
view that the Courts have also held that the right to administer is
not absolute and is subject to reasonable regulations for the
benefit of the institutions as the vehicle of education consistent
with the national interest. Such general laws of the land would be
also applicable to the minority institutions as well. There is no
reason why regulations or conditions concerning generally the
welfare of the students and teachers should not be made
43
applicable in order to provide a proper academic atmosphere. As
such, the provisions do not, in any way, interfere with the right of
administration or management under Article 30(1). Any law, rule
or regulation, that would put the educational institutions run by the
minorities at a disadvantage, when compared to the institutions
run by the others, will have to be struck down. At the same time,
there may not be any reverse discrimination.
1. It was observed in St. Xavier's case (supra), at page 192 of the
judgment that the whole object of conferring the right on minorities
under Article 30 is to ensure that there will be equality between
the majority and the minority. If the minorities do not have such
special protection, they will be denied equality. The emphasis by
the appellants is more on paragraphs 88 to 90 to say that Articles
29 and 30 are a group of articles relating to cultural and
educational rights. Article 29(1) gives the right to any section of
the citizens having a distinct language, script or culture of its own,
to conserve the same. Article 29(2) refers to admission to a
educational institution established by anyone, but which is
maintained by the State or receives aid out of State funds. In other
words, State-maintained or aided educational institutions, whether
44
established by the Government or the majority or a minority
community cannot deny admission to a citizen on the ground of
religion, race, caste or language. Article 30(1) states the right of
minorities to establish and administer educational institutions of
their choice, as provided under that Article. The fundamental
freedom is to establish and to administer educational institutions.
It is a right to establish and administer institutions to cater the
educational needs of the minorities or sections thereof.
1. Before we really analyze the dictum of this Court in its various
judgments and examine the scope of their application to the facts
of the present case, it would be necessary for us to refer to certain
specific paragraphs of the judgment, besides the above portions
which have been relied upon by the learned counsel appearing for
the respective parties. The basic questions which would arise for
consideration with regard to the facts of the present case are the
extent of the right to establish, administer and management of
institution by the linguistic minorities, the extent of control or
restrictions that can be imposed by the State and obviously the
right of a minority institution to receive grant-in-aid. In the case of
T.M.A. Pai (supra), the Court was primarily concerned with the
45
ambit and scope of grant of admission to the students in various
academic courses in the minority institutions aided or unaided. In
that case, the Court was basically not concerned with the
methodology to be adopted by the minority institutions and the
restrictions that can be imposed by the Government with regard to
the recruitment of teachers like Rule 64(1)(b) of the DSE Rules.
So to understand, the impact of the dictum in T.M. Pai's case
(supra), we may usefully refer to certain paragraphs of the
judgment itself.
"123. After referring to the earlier cases in
relation to the appointment of teachers, it was
noted by Khanna, J., that the conclusion
which followed was that a law which interfered
with a minority's choice of qualified teachers,
or its disciplinary control over teachers and
other members of the staff of the institution,
was void, as it was violative of Article 30(1).
While it was permissible for the State and its
educational authorities to prescribe the
qualifications of teachers, it was held that
once the teachers possessing the requisite
qualifications were 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 was regarded as one of the
essential ingredients under Article 30(1). The
Court's attention was drawn to the fact that in
Kerala Education Bill, 1957 case this Court
had opined that clauses 11 and 12 made it
obligatory for all aided schools to select
teachers from a panel selected from each
district by the Public Service Commission and
that no teacher of an aided school could be
46
dismissed, removed or reduced in rank
without the previous sanction of the
authorized officer. At SCR p. 245, Khanna, J.,
observed that in cases subsequent to the
opinion in Kerala Education Bill, 1957 case
this Court had held similar provisions as
clause 11 and clause 12 to be violative of
Article 30(1) of the minority institution. He
then observed as follows: (SCC p.792, para
109)
"The opinion expressed by this Court in Re
Kerala Education Bill, 1957 was of an
advisory character and though great weight
should be attached to it because of its
persuasive value, the said opinion cannot
override the opinion subsequently expressed
by this Court in contested cases. It is the law
declared by this Court in the subsequent
contested cases which would have a binding
effect. The words `as at present advised' as
well as the preceding sentence indicate that
the view expressed by this Court in Re Kerala
Education Bill, 1957 in this respect was
hesitant and tentative and not a final view in
the matter."
124. In Lily Kurian v. Sr. Lewina this Court
struck down the power of the Vice-Chancellor
to veto the decision of the management to
impose a penalty on a teacher. It was held
that the power of the Vice-Chancellor, while
hearing an appeal against the imposition of
the penalty, was uncanalized and unguided.
In Christian Medical College Hospital
Employees' Union v. Christian Medical
College Vellore Assn. this Court upheld the
application of industrial law to minority
colleges, and it was held that providing a
remedy against unfair dismissals would not
infringe Article 30. In Gandhi Faiz-e-am
College v. University of Agra a law which
sought to regulate the working of minority
institutions by providing that a broad-based
management committee could be
reconstituted by including therein the Principal
47
and the seniormost teacher, was valid and not
violative of the right under Article 30(1) of the
Constitution. In All Saints High School v.
Govt. of A.P. a regulation providing that no
teacher would be dismissed, removed or
reduced in rank, or terminated otherwise
except with the prior approval of the
competent authority, was held to be invalid,
as it sought to confer an unqualified power
upon the competent authority. In Frank
Anthony Public School Employees' Assn. v.
Union of India the regulation providing for
prior approval for dismissal was held to be
invalid, while the provision for an appeal
against the order of dismissal by an employee
to a tribunal was upheld. The regulation
requiring prior approval before suspending an
employee was held to be valid, but the
provision, which exempted unaided minority
schools from the regulation that equated the
pay and other benefits of employees of
recognized schools with those in schools run
by the authority, was held to be invalid and
violative of the equality clause. It was held by
this Court that the regulations regarding pay
and allowances for teachers and staff would
not violate Article 30.
xxx xxx xxx xxx xxx
135. We agree with the contention of the
learned Solicitor-General that the Constitution
in Part III does not contain or give any
absolute right. All rights conferred in Part III of
the Constitution are subject to at least other
provisions of the said Part. It is difficult to
comprehend that the framers of the
Constitution would have given such an
absolute right to the religious or linguistic
minorities, which would enable them to
establish and administer educational
institutions in a manner so as to be in conflict
with the other Parts of the Constitution. We
find it difficult to accept that in the
establishment and administration of
48
educational institutions by the religious and
linguistic minorities, no law of the land, even
the Constitution, is to apply to them.
136. Decisions of this Court have held that the
right to administer does not include the right
to maladminister. It has also been held that
the right to administer is not absolute, but
must be subject to reasonable regulations for
the benefit of the institutions as the vehicle of
education, consistent with national interest.
General laws of the land applicable to all
persons have been held to be applicable to
the minority institutions also -- for example,
laws relating to taxation, sanitation, social
welfare, economic regulation, public order and
morality.
137. It follows from the aforesaid decisions
that even though the words of Article 30(1)
are unqualified, this Court has held that at
least certain other laws of the land pertaining
to health, morality and standards of education
apply. The right under Article 30(1) has,
therefore, not been held to be absolute or
above other provisions of the law, and we
reiterate the same. By the same analogy,
there is no reason why regulations or
conditions concerning, generally, the welfare
of students and teachers should not be made
applicable in order to provide a proper
academic atmosphere, as such provisions do
not in any way interfere with the right of
administration or management under Article
30(1).
xxx xxx xxx xxx xxx
141. The grant of aid is not a constitutional
imperative. Article 337 only gives the right to
assistance by way of grant to the Anglo-Indian
community for a specified period of time. If no
aid is granted to anyone, Article 30(1) would
not justify a demand for aid, and it cannot be
said that the absence of aid makes the right
49
under Article 30(1) illusory. The founding
fathers have not incorporated the right to
grants in Article 30, whereas they have done
so under Article 337; what, then, is the
meaning, scope and effect of Article 30(2)?
Article 30(2) only means what it states viz.
that a minority institution shall not be
discriminated against where aid to
educational institutions is granted. In other
words the State cannot, when it chooses to
grant aid to educational institutions, deny aid
to a religious or linguistic minority institution
only on the ground that the management of
that institution is with the minority. We would,
however, like to clarify that if an abject
surrender of the right to management is made
a condition of aid, the denial of aid would be
violative of Article 30(2). However, conditions
of aid that do not involve a surrender of the
substantial right of management would not be
inconsistent with constitutional guarantees,
even if they indirectly impinge upon some
facet of administration. If, however, aid were
denied on the ground that the educational
institution is under the management of a
minority, then such a denial would be
completely invalid.
142. The implication of Article 30(2) is also
that it recognizes that the minority nature of
the institution should continue,
notwithstanding the grant of aid. In other
words, when a grant is given to all institutions
for imparting secular education, a minority
institution is also entitled to receive it, subject
to the fulfilment of the requisite criteria, and
the State gives the grant knowing that a
linguistic or minority educational institution will
also receive the same. Of course, the State
cannot be compelled to grant aid, but the
receipt of aid cannot be a reason for altering
the nature or character of the recipient
educational institution.
143. This means that the right under Article
30(1) implies that any grant that is given by
50
the State to the minority institution cannot
have such conditions attached to it, which will
in any way dilute or abridge the rights of the
minority institution to establish and administer
that institution. The conditions that can
normally be permitted to be imposed, on the
educational institutions receiving the grant,
must be related to the proper utilization of the
grant and fulfilment of the objectives of the
grant. Any such secular conditions so laid,
such as a proper audit with regard to the
utilization of the funds and the manner in
which the funds are to be utilized, will be
applicable and would not dilute the minority
status of the educational institutions. Such
conditions would be valid if they are also
imposed on other educational institutions
receiving the grant.
144. It cannot be argued that no conditions
can be imposed while giving aid to a minority
institution. Whether it is an institution run by
the majority or the minority, all conditions that
have relevance to the proper utilization of the
grant-in-aid by an educational institution can
be imposed. All that Article 30(2) states is that
on the ground that an institution is under the
management of a minority, whether based on
religion or language, grant of aid to that
educational institution cannot be discriminated
against, if other educational institutions are
entitled to receive aid. The conditions for
grant or non-grant of aid to educational
institutions have to be uniformly applied,
whether it is a majority-run institution or a
minority-run institution. As in the case of a
majority-run institution, the moment a minority
institution obtains a grant of aid, Article 28 of
the Constitution comes into play. When an
educational institution is maintained out of
State funds, no religious instruction can be
provided therein. Article 28(1) does not state
that it applies only to educational institutions
51
that are not established or maintained by
religious or linguistic minorities. Furthermore,
upon the receipt of aid, the provisions of
Article 28(3) would apply to all educational
institutions whether run by the minorities or
the non-minorities. Article 28(3) is the right of
a person studying in a State-recognized
institution or in an educational institution
receiving aid from State funds, not to take
part in any religious instruction, if imparted by
such institution, without his/her consent (or
his/her guardian's consent if such a person is
a minor). Just as Articles 28(1) and (3)
become applicable the moment any
educational institution takes aid, likewise,
Article 29(2) would also be attracted and
become applicable to an educational
institution maintained by the State or receiving
aid out of State funds.
It was strenuously contended that the right to
give admission is one of the essential
ingredients of the right to administer conferred
on the religious or linguistic minority, and that
this right should not be curtailed in any
manner. It is difficult to accept this contention.
If Articles 28(1) and (3) apply to a minority
institution that receives aid out of State funds,
there is nothing in the language of Article 30
that would make the provisions of Article
29(2) inapplicable. Like Article 28(1) and
Article 28(3), Article 29(2) refers to "any
educational institution maintained by the
State or receiving aid out of State funds". A
minority institution would fall within the ambit
of Article 29(2) in the same manner in which
Article 28(1) and Article 28(3) would be
applicable to an aided minority institution. It is
true that one of the rights to administer an
educational institution is to grant admission to
52
the students. As long as an educational
institution, whether belonging to the minority
or the majority community, does not receive
aid, it would, in our opinion, be its right and
discretion to grant admission to such students
as it chooses or selects subject to what has
been clarified before. Out of the various rights
that the minority institution has in the
administration of the institution, Article 29(2)
curtails the right to grant admission to a
certain extent. By virtue of Article 29(2), no
citizen can be denied admission by an aided
minority institution on the grounds only of
religion, race, caste, language or any of them.
It is no doubt true that Article 29(2) does
curtail one of the powers of the minority
institution, but on receiving aid, some of the
rights that an unaided minority institution has,
are also curtailed by Articles 28(1) and 28(3).
A minority educational institution has a right to
impart religious instruction -- this right is
taken away by Article 28(1), if that minority
institution is maintained wholly out of State
funds. Similarly on receiving aid out of State
funds or on being recognized by the State, the
absolute right of a minority institution requiring
a student to attend religious instruction is
curtailed by Article 28(3). If the curtailment of
the right to administer a minority institution on
receiving aid or being wholly maintained out of
State funds as provided by Article 28 is valid,
there is no reason why Article 29(2) should
not be held to be applicable. There is nothing
in the language of Articles 28(1) and (3),
Article 29(2) and Article 30 to suggest that, on
receiving aid, Articles 28(1) and (3) will apply,
but Article 29(2) will not. Therefore, the
contention that the institutions covered by
Article 30 are outside the injunction of Article
29(2) cannot be accepted."
53
1. The Court then proceeded to discuss the concept of equality and
secularism and noticed that for a healthy family, it is important that
each member is strong and healthy and all members have the
same constitution, whether physical or mental. For harmonious
growth and health, it is but natural for the parents to give more
attention and food to the weaker child, so as to help him or her to
become stronger. Noticing recognition and preservation of
different types of people with diverse languages and different
beliefs is essential, the Court answered the 11 questions framed
therein . It is not necessary for us to refer to all the questions and
answers, suffices, it would be to notice the relevant questions and
answers given by the majority in para 161 of the judgment.
"Q. 1. What is the meaning and content of the
expression "minorities" in Article 30 of the
Constitution of India?
A. Linguistic and religious minorities are
covered by the expression "minority" under
Article 30 of the Constitution. Since
reorganization of the States in India has been
on linguistic lines, therefore, for the purpose
of determining the minority, the unit will be the
State and not the whole of India. Thus,
religious and linguistic minorities, who have
been put on a par in Article 30, have to be
considered Statewise.
54
xxx xxx xxx xxx xxx
Q. 4. Whether the admission of students to
minority educational institution, whether aided
or unaided, can be regulated by the State
Government or by the university to which the
institution is affiliated?
A. Admission of students to unaided minority
educational institutions viz. schools and
undergraduate colleges where the scope for
merit-based selection is practically nil, cannot
be regulated by the State or university
concerned, except for providing the
qualifications and minimum conditions of
eligibility in the interest of academic
standards.
The right to admit students being an essential
facet of the right to administer educational
institutions of their choice, as contemplated
under Article 30 of the Constitution, the State
Government or the university may not be
entitled to interfere with that right, so long as
the admission to the unaided educational
institutions is on a transparent basis and the
merit is adequately taken care of. The right to
administer, not being absolute, there could be
regulatory measures for ensuring educational
standards and maintaining excellence thereof,
and it is more so in the matter of admissions
to professional institutions.
A minority institution does not cease to be so,
the moment grant-in-aid is received by the
institution. An aided minority educational
institution, therefore, would be entitled to have
the right of admission of students belonging to
the minority group and at the same time,
would be required to admit a reasonable
extent of non-minority students, so that the
rights under Article 30(1) are not substantially
impaired and further the citizens' rights under
Article 29(2) are not infringed. What would be
a reasonable extent, would vary from the
55
types of institution, the courses of education
for which admission is being sought and other
factors like educational needs. The State
Government concerned has to notify the
percentage of the non-minority students to be
admitted in the light of the above
observations. Observance of inter se merit
amongst the applicants belonging to the
minority group could be ensured. In the case
of aided professional institutions, it can also
be stipulated that passing of the common
entrance test held by the State agency is
necessary to seek admission. As regards
non-minority students who are eligible to seek
admission for the remaining seats, admission
should normally be on the basis of the
common entrance test held by the State
agency followed by counselling wherever it
exists.
Q. 5. (a) Whether the minorities' rights to
establish and administer educational
institutions of their choice will include the
procedure and method of admission and
selection of students?
A. A minority institution may have its own
procedure and method of admission as well
as selection of students, but such a procedure
must be fair and transparent, and the
selection of students in professional and
higher education colleges should be on the
basis of merit. The procedure adopted or
selection made should not be tantamount to
maladministration. Even an unaided
minority institution ought not to ignore the
merit of the students for admission, while
exercising its right to admit students to the
colleges aforesaid, as in that event, the
institution will fail to achieve excellence.
Q. 5. (b) Whether the minority institutions'
right of admission of students and to lay down
procedure and method of admission, if any,
would be affected in any way by the receipt of
State aid?
56
A. While giving aid to professional institutions,
it would be permissible for the authority giving
aid to prescribe bye-rules or regulations, the
conditions on the basis of which admission
will be granted to different aided colleges by
virtue of merit, coupled with the reservation
policy of the State qua non-minority students.
The merit may be determined either through a
common entrance test conducted by the
university or the Government concerned
followed by counselling, or on the basis of an
entrance test conducted by individual
institutions -- the method to be followed is for
the university or the Government to decide.
The authority may also devise other means to
ensure that admission is granted to an aided
professional institution on the basis of merit.
In the case of such institutions, it will be
permissible for the Government or the
university to provide that consideration should
be shown to the weaker sections of the
society.
Q. 5. (c) Whether the statutory provisions
which regulate the facets of administration like
control over educational agencies, control
over governing bodies, conditions of affiliation
including recognition/withdrawal thereof, and
appointment of staff, employees, teachers
and principals including their service
conditions and regulation of fees, etc. would
interfere with the right of administration of
minorities?
A. So far as the statutory provisions
regulating the facets of administration are
concerned, in case of an unaided minority
educational institution, the regulatory measure
of control should be minimal and the
conditions of recognition as well as the
conditions of affiliation to a university or board
have to be complied with, but in the matter of
day-to-day management, like the appointment
of staff, teaching and non-teaching, and
administrative control over them, the
57
management should have the freedom and
there should not be any external controlling
agency. However, a rational procedure for the
selection of teaching staff and for taking
disciplinary action has to be evolved by the
management itself.
For redressing the grievances of employees
of aided and unaided institutions who are
subjected to punishment or termination from
service, a mechanism will have to be evolved,
and in our opinion, appropriate tribunals could
be constituted, and till then, such tribunals
could be presided over by a judicial officer of
the rank of District Judge.
The State or other controlling authorities,
however, can always prescribe the minimum
qualification, experience and other conditions
bearing on the merit of an individual for being
appointed as a teacher or a principal of any
educational institution.
Regulations can be framed governing service
conditions for teaching and other staff for
whom aid is provided by the State, without
interfering with the overall administrative
control of the management over the staff.
Fees to be charged by unaided institutions
cannot be regulated but no institution should
charge capitation fee.
xxx xxx xxx xxx xxx
Q. 9. Whether the decision of this Court in
Unni Krishnan, J.P. v. State of A.P. (except
where it holds that primary education is a
fundamental right) and the scheme framed
thereunder require reconsideration/
modification and if yes, what?
58
A. The scheme framed by this Court in Unni
Krishnan case and the direction to impose the
same, except where it holds that primary
education is a fundamental right, is
unconstitutional. However, the principle that
there should not be capitation fee or
profiteering is correct. Reasonable surplus to
meet cost of expansion and augmentation of
facilities does not, however, amount to
profiteering."
1. The above paragraphs and the conclusions arrived at by the
Court, certainly suggest that the Court did not specifically or
impliedly over ruled or expressed any different view than what was
taken by the Court in Ahmedabad St. Xavier's case (supra) as
well as discussed the impact of Kerala Education Bill, 1957 case
(supra) with reference to Clauses 11 and 12, then the Court held
that the view expressed in Kerala Education Bill, 1957 case
(supra) was tentative. The view of the Court is that it is not an
absolute right of the minority institution, but a right where certain
conditions could be applied but such conditions should not, in any
way, destroy or completely diminish the status and constitutional
direction available to that minority.
1. With the passage of time this Court had the occasion to deal with
the clarificatory enunciation of law stated in T.M.A. Pai's case
59
(supra) and dealt with different cases depending on the facts and
circumstances of those cases. In the case of Brahmo Samaj
Education Society (supra), a Bench of this Court was concerned
with the appointment of persons to the post of teachers including
principal under the West Bengal College Teachers (Security of
Services) Act, 1975, the West Bengal College Services
Commission, 1978 and the Regulations framed thereunder. A
particular procedure was stated under these rules for making
these appointments as per the regulations, National Eligibility Test
(NET) is conducted by UGC (University Grants Commission) for
determining teaching eligibility criteria of the candidate, which was
added as an essential qualification for appointment as a teacher
and, even further, restrictions were introduced by adding College
Service Commission and appointments were sought to be made
through this Commission. The Brahmo Samaj Education Society
challenged this procedure and being a religious minority claiming
benefit under Articles 25, 26 and 30 (1) of the Constitution,
questioned the constitutional validity of these provisions. The
Court considered the question whether the appointment of
teachers in an aided institution by the College Service
60
Commission by restricting the petitioner's right to appointment is a
reasonable restriction. After following the law stated in T.M.A.
Pai's case (supra), the Court held as under :
"6. The question now before us is to decide
whether the appointment of teachers in an
aided institution by the College Service
Commission by restricting the petitioners' right
to appointment is a reasonable restriction in
the interest of general public or not. The
petitioners have a right to establish and
administer educational institution. Merely
because the petitioners are receiving aid, their
autonomy of administration cannot be totally
restricted and institutions cannot be treated
as a government-owned one. Of course the
State can impose such conditions as are
necessary for the proper maintenance of
standards of education and to check
maladministration.....
7. But that control cannot extend to the day-
to-day administration of the institution. It is
categorically stated in T.M.A. Pai (SCC at
p. 551, para 72) that the State can regulate
the method of selection and appointment of
teachers after prescribing requisite
qualification for the same. Independence for
the selection of teachers among the qualified
candidates is fundamental to the maintenance
of the academic and administrative autonomy
of an aided institution. The State can very well
provide the basic qualification for teachers.
Under the University Grants Commission Act,
1956, the University Grants Commission
(UGC) had laid down qualifications to a
teaching post in a university by passing
Regulations. As per these Regulations UGC
conducts National Eligibility Test (NET) for
determining teaching eligibility of candidates.
UGC has also authorised accredited States to
conduct State-Level Eligibility Test (SLET).
Only a person who has qualified NET or SLET
will be eligible for appointment as a teacher in
an aided institution. This is the required basic
61
qualification for a teacher. The petitioners'
right to administer includes the right to
appoint teachers of their choice among the
NET-/SLET- qualified candidates.
8. Argument on behalf of the State that the
appointment through the College Service
Commission is to maintain the equal standard
of education all throughout the State of West
Bengal, does not impress us. The equal
standard of teachers are already maintained
by NET/SLET. Similarly, receiving aid from
State coffers can also not be treated as a
justification for imposition of any restrictions
that cannot be imposed otherwise."
In the above case, the Court did not rest with laying down the
above law but even directed the State Government to take due notice
of the declarations made in the T.M.A. Pai's case (supra) and to take
appropriate steps in that regard.
1. Thereafter, a Five-Judge Bench of this Court in Islamic Academy
of Eduation v. State of Karnataka [(2003) 6 SCC 697], while
dealing with the right of the minorities, aided as well as unaided
institutions including professional educational institutions, in
relation to the process of admission and fee structure, specified
that the constitution of committees for admission and fee structure
process was improper in relation to unaided minority institutions
while certain other specifications were given with regard to the
minority aided institutions but the Court specifically noted that non-
62
minority educational institutions, in certain matters, cannot and do
not stand on the same footing as minority educational institutions
which enjoys the protection of Article 30 and the preferential right
to admit students of their own community. Further noticing that
the whole object of conferring the right on minority is that they will
be on equality with the majority, the Court further held as under :
"9........Undoubtedly, at first blush it does
appear that these paragraphs equate both
types of educational institutions. However, on
a careful reading of these paragraphs it is
evident that the essence of what has been
laid down is that the minority educational
institutions have a guarantee or assurance to
establish and administer educational
institutions of their choice. These paragraphs
merely provide that laws, rules and
regulations cannot be such that they favour
majority institutions over minority institutions.
We do not read these paragraphs to mean
that non-minority educational institutions
would have the same rights as those
conferred on minority educational institutions
by Article 30 of the Constitution of India. Non-
minority educational institutions do not have
the protection of Article 30. Thus, in certain
matters they cannot and do not stand on a
similar footing as minority educational
institutions. Even though the principle behind
Article 30 is to ensure that the minorities are
protected and are given an equal treatment
yet the special right given under Article 30
does give them certain advantages. Just to
take a few examples, the Government may
decide to nationalise education. In that case it
may be enacted that private educational
institutions will not be permitted. Non-minority
63
educational institutions may become bound
by such an enactment. However, the right
given under Article 30 to minorities cannot be
done away with and the minorities will still
have a fundamental right to establish and
administer educational institutions of their
choice. Similarly, even though the
Government may have a right to take over
management of a non-minority educational
institution, the management of a minority
educational institution cannot be taken over
because of the protection given under Article
30. Of course, we must not be understood to
mean that even in national interest a minority
institute cannot be closed down. Further,
minority educational institutions have
preferential right to admit students of their
own community/language. No such rights
exist so far as non-minority educational
institutions are concerned.
xxx xxx xxx xxx xxx
14.......Whilst discussing Article 30 under the
heading "To what extent can the rights of
aided private minority institutions to
administer be regulated" reliance has been
placed, in the majority judgment, on previous
judgments in the cases of Kerala Education
Bill, 1957, Re, Sidhajbhai Sabhai v. State of
Gujarat, Rev. Father W. Proost v. State of
Bihar, State of Kerala v. Very Rev. Mother
Provincial and Ahmedabad St. Xavier's
College Society v. State of Gujarat. All these
cases have recognised and upheld the rights
of minorities under Article 30. These cases
have held that in the guise of regulations,
rights under Article 30 cannot be abrogated. It
has been held, even in respect of aided
minority institutions that they must have full
autonomy in administration of that institution.
It has been held that the right to administer
includes the right to admit students of their
own community/ language. Thus an unaided
64
minority professional college cannot be in a
worse position than an aided minority
professional college. It is for this reason that
paragraph 68 provides that a different
percentage can be fixed for unaided minority
professional colleges. The expression
"different percentage for minority professional
institutions" carries a different meaning than
the expression "certain percentage for
unaided professional colleges". In fixing the
percentage for unaided minority professional
colleges the State must keep in mind, apart
from local needs, the interest/need of that
community in the State. The need of that
community, in the State, would be paramount
vis-`-vis the local needs."
1. In an attempt to clarify the matters beyond controversy, a Seven-
Judge Bench of this Court in the case of P.A. Inamdar v. State of
Maharashtra [(2005) 6 SCC 537], discussed the entire gamut of
law in relation to minority educational institutions and noticed that
the right conferred by Article 30 was more in the nature of
protection for minorities. It protects minority institutions from
regulatory legislations framed under Article 19 (6), but still they
were not immune from regulatory control. The Court was primarily
concerned in that case with admission of the students to different
institutions where it observed that even within the scope and ambit
of Article 30(1) there was a need for imposing reasonable
restrictions even on the minority institutions, and such direction
65
would not vitiate and hurt the minority status. There are two basic
concepts - one relating to imposition of conditions with regard to
the management of the institutions and secondly the power of the
State to step in where there are questions of national interest.
The Court did approve the permitted operation of the committees
with reference to rationality and reasonableness and the two
significant matters were decided by the Court as follows :
"103. To establish an educational institution is
a fundamental right. Several educational
institutions have come up. In Kerala
Education Bill6 "minority educational
institutions" came to be classified into three
categories, namely, (i) those which do not
seek either aid or recognition from the State;
(ii) those which want aid; and (iii) those which
want only recognition but not aid. It was held
that the first category protected by Article
30(1) can "exercise that right to their hearts'
content" unhampered by restrictions. The
second category is most significant. Most of
the educational institutions would fall in that
category as no educational institution can, in
modern times, afford to subsist and efficiently
function without some State aid. So it is with
the third category. An educational institution
may survive without aid but would still stand in
need of recognition because in the absence
of recognition, education imparted therein
may not really serve the purpose as for want
of recognition the students passing out from
such educational institutions may not be
entitled to admission in other educational
66
institutions for higher studies and may also
not be eligible for securing jobs. Once an
educational institution is granted aid or
aspires for recognition, the State may grant
aid or recognition accompanied by certain
restrictions or conditions which must be
followed as essential to the grant of such aid
or recognition. This Court clarified in Kerala
Education Bill that "the right to establish and
administer educational institutions" conferred
by Article 30(1) does not include the right to
maladminister, and that is very obvious.
Merely because an educational institution
belongs to a minority it cannot ask for aid or
recognition though running in unhealthy
surroundings, without any competent teachers
and which does not maintain even a fair
standard of teaching or which teaches matters
subversive to the welfare of the scholars.
Therefore, the State may prescribe
reasonable regulations to ensure the
excellence of the educational institutions to be
granted aid or to be recognised. To wit, it is
open to the State to lay down conditions for
recognition such as, an institution must have
a particular amount of funds or properties or
number of students or standard of education
and so on. The dividing line is that in the
name of laying down conditions for aid or
recognition the State cannot directly or
indirectly defeat the very protection conferred
by Article 30(1) on the minority to establish
and administer educational institutions.
Dealing with the third category of institutions,
which seek only recognition but not aid, Their
Lordships held that "the right to establish and
administer educational institutions of their
choice" must mean the right to establish real
institutions which will effectively serve the
needs of the community and scholars who
67
resort to these educational institutions. The
dividing line between how far the regulation
would remain within the constitutional limits
and when the regulations would cross the
limits and be vulnerable is fine yet perceptible
and has been demonstrated in several judicial
pronouncements which can be cited as
illustrations. They have been dealt with
meticulous precision coupled with brevity by
S.B. Sinha, J. in his opinion in Islamic
Academy. The considerations for granting
recognition to a minority educational
institution and casting accompanying
regulations would be similar as applicable to a
non-minority institution subject to two
overriding considerations: (i) the recognition is
not denied solely on the ground of the
educational institution being one belonging to
minority, and (ii) the regulation is neither
aimed at nor has the effect of depriving the
institution of its minority status.
xxx xxx xxx xxx xxx
134. However, different considerations would
apply for graduate and postgraduate level of
education, as also for technical and
professional educational institutions. Such
education cannot be imparted by any
institution unless recognised by or affiliated
with any competent authority created by law,
such as a university, Board, Central or State
Government or the like. Excellence in
education and maintenance of high standards
at this level are a must. To fulfil these
objectives, the State can and rather must, in
national interest, step in. The education,
knowledge and learning at this level
possessed by individuals collectively
constitutes national wealth."
68
The apparent analysis was that the emphasis has to be on the
need for preserving its minority character so as to enjoy the privilege
of protection under Article 30(1).
1. Still, in the case of Kanya Junior High School, Bal Vidya Mandir v.
U.P. Basic Shiksha Parishad [(2006) 11 SCC 92], this Court
observed that the law did not contemplate granting of any higher
rights to the minority as opposed to majority and it only conferred
additional protection. Referring to P.A. Inamdar's case (supra),
the Court declared that the object underlying Article 30(1) is to see
the desire of minorities that their children should be brought up
properly, efficiently and acquire eligibility for higher university
education. It further noticed that under the provisions of law, the
approval of District Basic Education Officer was not necessary
before terminating the services of a teacher, as the institution was
recognized as a minority institution. Last of the judgment, which
has some bearing on the subject in question, is on the principle
reiterated by a Bench of this Court in the case of Secy. Malankara
Syrian Catholic College (supra), where the Court again dealt with
the aided minority educational institutions and terms and
69
conditions of services of employees. The Court in para 12 of the
judgment framed the following two questions :
"12. The rival contentions give rise to the
following questions:
(i) To what extent, the State can regulate the
right of the minorities to administer their
educational institutions, when such
institutions receive aid from the State?
(ii) Whether the right to choose a Principal is
part of the right of minorities under Article
30(1) to establish and administer educational
institutions of their choice. If so, would
Section 57(3) of the Act violate Article 30(1) of
the Constitution of India?"
The Answer to question no. 1 was provided in para 21 while
question no. 2 was answered in para Nos. 27 and 28 of the judgment
which read as under :
"21. We may also recapitulate the extent of
regulation by the State, permissible in respect
of employees of minority educational
institutions receiving aid from the State, as
clarified and crystallised in T.M.A. Pai. The
State can prescribe:
(i) the minimum qualifications, experience 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,
70
(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.
xxx xxx xxx xxx xxx
27. It is thus clear that the freedom to choose
the person to be appointed as Principal has
always been recognised as a vital facet of the
right to administer the educational institution.
This has not been, in any way, diluted or
altered by T.M.A. Pai. Having regard to the
key role played by the Principal in the
management and administration of the
educational institution, there can be no doubt
that the right to choose the Principal is an
important part of the right of administration
and even if the institution is aided, there can
be no interference with the said right. The fact
that the post of the Principal/Headmaster is
also covered by State aid will make no
difference.
28. The appellant contends that the protection
extended by Article 30(1) cannot be used
71
against a member of the teaching staff who
belongs to the same minority community. It is
contended that a minority institution cannot
ignore the rights of eligible lecturers belonging
to the same community, senior to the person
proposed to be selected, merely because the
institution has the right to select a Principal of
its choice. But this contention ignores the
position that the right of the minority to select
a Principal of its choice is with reference to
the assessment of the person's outlook and
philosophy and ability to implement its
objects. The management is entitled to
appoint the person, who according to them is
most suited to head the institution, provided
he possesses the qualifications prescribed for
the posts. The career advancement prospects
of the teaching staff, even those belonging to
the same community, should have to yield to
the right of the management under Article
30(1) to establish and administer educational
institutions."
The above answers to the questions formulated demonstrates
that the Court has kept a clear line of distinction between laws made
by the State to regulate the administration of educational institutions
receiving grant-in-aid but if such regulations interfere with overall
administrative control by the management over the staff or abridges
or dilutes, in any other manner, the right to establish and administer
educational institutions, in that event, to such extent, the regulations
will be inapplicable to the minorities.
Discussion on constitutional provisions read in conjunction
with the provisions of the Delhi School Education Act,1973 and
72
the Rules framed thereunder with reference to the legal
principles above enunciated
1. Undoubtedly, the Preamble of our Constitution mandates `to
secure to all its citizens justice - social, economic and political'.
The Constitution has been held to be a living and organic thing
and not a mere law and it is expected to be construed broadly and
liberally. Thus, these expressions must be given liberal
construction so as to further the constitutional mandate. The
social and economic justice would take within its ambit the
progress and development of the entire nation without reference
to caste, creed, colour or the section of the society to which they
belong.
1. Article 14 of the Constitution commands equality before law or the
equal protection of laws. The concept of equality is wide enough
to include equality in advantages available to the public at large as
a result of State action. The Constitution has itself made out
certain exceptions to the general rule of equality in terms of
Articles 15 and 16. Article 15 (1) spells out a prohibitory intent
against the State that it would not discriminate against any citizen
on the ground only of religion, race, caste, sex, place of birth or
73
any of them. In other words, the State cannot deny the equality
on the basis of the aforestated factors. Despite this mandate,
Article 15(3) spells out an exception to Article 15(1) and 15(2) as
well as to the concept of basic equality and empowers the State to
make special provisions for women and children. Similarly, by
Article 15(4), which was introduced by 1st Constitutional
Amendment of 1951, the State is further empowered to make any
special provisions for advancement of any socially and
educationally backward classes of citizens or for the Scheduled
Castes and Scheduled Tribes. Article 15(5), which was
introduced by 93rd Constitutional Amendment of 2005, made out
another exception to the general rule of equality and this sub-
Article, while giving power to the State to enact special laws, also
carves out an exception in regard to which this power cannot be
exercised, i.e. minority educational institutions referred to in
clause (1) of Article 30. Article 15(5) reads as under :
"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 insofar as such special provisions
relate to their admission to the educational
institutions including private educational
institutions, whether aided or unaided by the
74
State, other than the minority educational
institutions referred to in Clause (1) of
Article 30."
1. Article 16 further guarantees to the citizens equality of opportunity
in matters of public employment. Article 16(2) again prohibits
discrimination in respect of any employment or office under the
State on the ground of religion, race, caste, sex, descent, place of
birth, residence or any of them. These factors cannot render any
citizen ineligible for appointment for public employment. Clauses
(3) to (4B) are the provisions which empowers the State to make
any law in regard to a class or classes of employment or
appointment to an office under the Government of, or any local or
other authority within, a State or Union Territory, any requirement
as to a residence within that State or Union Territory, prior to such
employment or appointment. It also empowers the State from
making any provision for the reservation of appointments or posts
in favour of any backward class which, in the opinion of the State,
is not adequately represented in the service under the State. The
State is also vested with the power of reserving the vacancies in a
particular year and make reservation in favour of Scheduled
Castes and Scheduled Tribes, which are not adequately
75
represented in service of the State, in matters of promotion with
consequential seniority. Putting it simply, the State is entitled to
make law and reservations in different fields for Scheduled Castes
and Scheduled Tribes and the persons belonging to backward
class in the services under the State, in accordance with law.
1. While dealing with the cultural and educational rights under the
Constitution, the framers have devoted specific attention to the
minorities in our country while enacting Articles 29 and 30. Article
29 grants complete protection to any section of the citizens
residing in the territory of India having a distinct language, script or
culture of its own and freedom to conserve the same. Besides
granting this freedom, this Article also mandates that no citizen
shall be denied admission to any educational institution
maintained by the State or receiving aid out of the State funds on
the grounds of discrimination stated in Articles 15 and 16 of the
Constitution. Article 30 gives certain rights to the minorities, i.e.
all minorities whether religious or linguistic, have the right to
establish and administer educational institutions of their choice.
Article 30(2) has to be noticed with some emphasis. It requires
the State not to discriminate against any educational institution on
76
the ground that it is under the management of a minority, whether
based on religion or language, while granting aid to the
educational institution. The Article reads as under :
"30. Right of minorities to establish and
administer educational institutions.--(2) The
State shall not, in granting aid to educational
institutions, discriminate against any
educational institution on the ground that it is
under the management of a minority, whether
based on religion or language."
1. The principle of free primary education had been introduced as a
constitutional right by this Court in Unni Krishnan, J.P. V. State of
A.P. [(1993) 1 SCC 645]. The Court, while dealing with the case
of T.M.A. Pai (supra), not only reiterated the same with approval
but made right to receive secondary education as a fundamental
right. The dictum of this Court then led to 86th constitutional
amendment by Amendment Act of 2002 wherein Article 21-A was
introduced placing a clear obligation on the State to provide free
and compulsory education to all children of the age of 6 to 14
years in such manner as the State may by law determine. The
judgments of the Court and the constitutional law introduced a
new dimension to the right of the children to receive education.
77
To achieve this object, the State had to introduce various
incentives and policies to invite the private sector into the field of
dispensation of education. This obviously, led to certain
liberalization in the field of private sector dealing with the different
levels of education. All the schools, which then came up, had to
be recognized by the competent authority and they had to work
under the regulatory measures declared by the State but in
accordance with law. The private sector could be dissected into
two sectors - aided and non-aided schools. The aided schools
could further be divided into two sections - minority institutions
receiving grant in aid and, non-minority institutions receiving grant-
in-aid.
1. As is evident from the above narrated principles, the Government
does not enjoy identical control over the management of the
schools belonging to the minority and/or majority schools. In view
of the above ground reality and amendment in law, Article 30(2)
provides a definite protection to the minority institutions that they
would not be discriminated against providing of grant-in-aid. This
aspect is further dealt with some clarity in Chapter VI relating to
grant-in-aid under the provisions of the DSE Rules, 1973. In
78
terms of Rule 60, every aided school will continue to get the aid
subject to the provisions of the DSE Rules. Rule 64 of DSE Rules
contemplates that aid to be given upon furnishing of suitable
undertaking by the managing committee. The grant-in-aid, then,
would be given only upon satisfaction of the conditions stipulated
in Rule 65. Second proviso to Rule 10 requires that wherever a
linguistic minority school decides to impart education in a
language other than the language of such linguistic minority, in
that event the Administrator shall not be under any obligation to
give grant-in-aid to such schools. In other words, a school run by
linguistic minority would be entitled to receive grant-in-aid if it is
imparting education in the language of the minority, of course, by
satisfying other stated conditions. The right to receive grant thus
has to be accepted as a legitimate right in contra-distinction or
opposed to legal right to get recognition including the case of a
minority institution. This principle has been reiterated by this
Court in catena of judgments including the judgments referred by
us above. The logical impact of Article 30(2) read with the
provisions of the DSE Act and the Rules framed thereunder is
that, to receive grant-in-aid is a legitimate right of a school subject
79
to satisfying the requirements of law. Article 30(2) thus, has been
worded in a negative language not permitting the State to
discriminate the minority institution in relation to the matters of
grant-in-aid.
1. Article 15(5) of the Constitution excludes the minority educational
institutions from the power of the State to make any provision by
law for the advancement of any social or backward classes of the
citizens or for Scheduled Castes and Scheduled Tribes in relation
to their admission to educational institutions including private
educational institutions whether aided or unaided. This Article is
capable of very wide interpretation and vests the State with power
of wide magnitude to achieve the purpose stated in the Article.
But, the framers of the Constitution have specifically excluded
minority educational institutions from operation of this clause.
Article 16 which ensures equality of opportunity in matters of
public employment again has been worded so as to prohibit
discrimination and, at the same time, vests the State with power to
make provisions, laws and reservations in relation to a particular
class or classes of persons. It is of some significance to notice
that power of the State to exercise such power is in relation to the
80
`service under the State'. This expression has been used in all the
clauses of the Article which relates to providing of employment
and framing of laws/reservations in those categories. Upon its
true construction, this expression itself is capable of a wide
construction and must be construed liberally and cannot be
restricted to its narrow sense. The expression `service under the
State' would obviously include service directly under the State
Government or its instrumentalities and/or even the sectors which
can be termed as a State within the meaning of Article 12 of the
Constitution. 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.
1. The interpretation of the word `State' really does not require any
deliberation as this aspect is no more res-integra and has been
settled by the law stated in the case of Ajay Hasia v. Khalid Mujib
Sehravardi [(1981) 1 SCC 722], where this Court spelt out the test
that would be applicable in determining whether a Corporation or a
Government Company or a private body is an instrumentality or
81
agency of the State. Primarily, there are different type of controls,
which can be exercised by the State over any other authority,
society, organization or private body to bring it within the ambit of
the expression `State' or `other authority' appearing in Article 12 of
the Constitution. These are financial control, managerial and
administrative control and functional control. To put it differently,
what is the administrative control that the Government exercises
upon such a body, whether functions of that body are
governmental functions or closely related thereto, quantum of
State control, volume of financial assistances, character and
structure of the body and cumulative effect of these factors etc.
This has been followed consistently in the case of Zoroastrian
Coop. Housing Society Ltd. v. District Registrar, Coop. Societies
(Urban) [(2005) 5 SCC 632] and in a very recent judgment in the
case of State of U.P. v. Radhey Shyam Rai [(2009) 5 SCC 577],
wherein this Court held that Uttar Pradesh Ganna Kishan
Sansthan (Sansthan) is a State because these criteria were
satisfied and even the State could take over the functions of the
Sansthan. Unless all these three aspects are established or they
are stated to be satisfied, it will not be permissible to term that
82
society, organization or body as a `State'.
1. 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. Even this aspect we need not discuss in any
great detail as the question stands settled by the judgment of this
Court in the case of V.K. Sodhi (supra), wherein this Court has
dealt with the question whether State Council of Education,
Research and Training is not State or other authority within the
meaning of Article 12. The Court returned the finding that though
the finances were being provided by the State, the State
Government does not have deep and pervasive control over the
working of the Council and it was an independent society and
thus, is not a State. The Court held as under :
"11. The two elements, one, of a function of
the State, namely, the coordinating of
education and the other, of the Council being
dependant on the funding by the State,
satisfied two of the tests indicated by the
decisions of this Court. But, at the same time,
from that alone it could not be assumed that
SCERT is a State. It has to be noted that
though finance is made available by the State,
in the matter of administration of that finance,
83
the Council is supreme. The administration is
also completely with the Council. There is no
governmental interference or control either
financially, functionally or administratively, in
the working of the Council. These were the
aspects taken note of in Chander Mohan
Khanna (supra) to come to the conclusion
that NCERT is not a State or other authority
within the meaning of Article 12 of the
Constitution of India. No doubt, in Chander
Mohan Khanna (supra), the Bench noted that
the fact that education was a State function
could not make any difference. This part of
the reasoning in Chander Mohan Khanna
(supra) case has been specifically
disapproved by the majority in Pradeep
Kumar Biswas (supra). The majority noted
that the objects of forming Indian Institute of
Chemical Biology was with the view of
entrusting it with a function that is
fundamental to the governance of the country
and quoted with approval the following
passage in Rajasthan SEB v. Mohan Lal
[(1967) 3 S.C.R. 377]:
"The State, as defined in Article 12, is thus
comprehended to include bodies created for
the purpose of promoting the educational and
economic interests of the people."
The majority then stated:
"We are in respectful agreement with this
statement of the law. The observations to the
contrary in Chander Mohan Khanna v.
NCERT relied on by the learned Attorney-
General in this context, do not represent the
correct legal position."
xxx xxx xxx xxx xxx
13. We also find substantial differences in
the two set ups. Sabhajit Tewary (supra),
after referring to the rules of the Council of
Scientific and Industrial Research which was
registered under the Societies Registration
Act, concluded that it was not a State within
the meaning of Article 12 of the Constitution.
While overruling the said decision, the
majority in Pradeep Kumar Biswas (supra)
84
took the view that the dominant role played by
the Government of India in the governing
body and the ubiquitous control of the
Government in the Council and the complete
subjugation of the Governing Body to the will
of the Central Government, the inability of the
Council to lay down or change the terms and
conditions of service of its employees and the
inability to alter any bye-law without the
approval of the Government of India and the
owning by the Central Government of the
assets and funds of the Council though
normally owned by the society, all indicated
that there was effective and pervasive control
over the functioning of the Council and since it
was also entrusted with a Governmental
function, the justifiable conclusion was that it
was a State within the meaning of Article 12
of the Constitution. The majority also noticed
that on a winding up of that Council, the entire
assets were to vest in the Central
Government and that was also a relevant
indication. Their Lordships in the majority
also specifically overruled as a legal principle
that a Society registered under the Societies
Registration Act or a company incorporated
under the Companies Act, is by that reason
alone excluded from the concept of State
under Article 12 of the Constitution. In the
case of SCERT, in addition to the operational
autonomy of the Executive Committee, it
could also amend its bye-laws subject to the
provisions of the Delhi Societies Registration
Act though with the previous concurrence of
the Government of Delhi and that the
proceedings of the Council are to be made
available by the Secretary for inspection of
the Registrar of Societies as per the
provisions of the Societies Registration Act.
The records and proceedings of the Council
have also to be made available for inspection
by the Registrar of Societies. In the case of
dissolution of SCERT, the liabilities and
assets are to be taken over at book value by
the Government of Delhi which had to appoint
a liquidator for completing the dissolution of
the Body. The creditors' loans and other
liabilities of SCERT shall have preference and
bear a first charge on the assets of the
Council at the time of dissolution. This is not
85
an unconditional vesting of the assets on
dissolution with the Government. It is also
provided that the provisions of the Societies
Registration Act, 1860 had to be complied
with in the matter of filing list of office-bearers
every year with the Registrar and the carrying
out of the amendments in accordance with the
procedure laid down in the Act of 1860 and
the dissolution being in terms of Sections 13
and 14 of the Societies Registration Act, 1860
and making all the provisions of the Societies
Registration Act applicable to the Society.
These provisions, in our view, indicate that
SCERT is subservient to the provisions of the
Societies Registration Act rather than to the
State Government and that the intention was
to keep SCERT as an independent body and
the role of the State Government cannot be
compared to that of the Central Government
in the case of Council of Scientific and
Industrial Research.
14. As we understand it, even going by
paragraph 40 of the judgment in Pradeep
Kumar Biswas (supra), which we have quoted
above, we have to consider the cumulative
effect of all the facts available in the case. So
considered, we are inclined to hold that
SCERT is not a State or other authority within
the meaning of Article 12 of the Constitution
of India. As we see it, the High Court has not
independently discussed the relevant rules
governing the functioning and administration
of SCERT. It has proceeded on the basis that
in the face of Pradeep Kumar Biswas (supra)
decision, the decision in Chander Mohan
Khanna (supra) must be taken to be overruled
and no further discussion of the question is
necessary. But, in our view, even going by
Pradeep Kumar Biswas (supra), each case
has to be considered with reference to the
facts available for determining whether the
body concerned is a State or other authority
within the meaning of Article 12 of the
Constitution of India. So considered, we find
that the Government does not have deep and
pervasive control over the working of SCERT.
It does not have financial control in the sense
that once the finances are made available to
86
it, the administration of those finances is left
to SCERT and there is no further
governmental control. In this situation, we
accept the submission on behalf of the
appellants and hold that SCERT is not a State
or other authority within the meaning of Article
12 of the Constitution of India. After all, the
very formation of an independent society
under the Societies Registration Act would
also suggest that the intention was not to
make the body a mere appendage of the
State. We reverse the finding of the High
Court on this aspect."
1. The principle above enunciated clearly shows that it is the
cumulative effect of all the three essential features which would
finally help in determining whether a society, body or an
association is `State' or not. We have referred to various
provisions of the DSE Act, 1973 and particularly, the Rules framed
thereunder. The DSE Rules specifically contemplate that the
State Government will not have any strict control over the
management of these institutions. Even the members, who are
nominated by the Director of Education, would only have a right of
limited participation with no right of voting. Rule 59(b)(iv), requires
two other persons who are or have been teachers of any other
school or college, to be nominated by the Advisory Board on the
Managing Committee of a school. However, this clause shall not
apply to a minority institution in terms of the proviso to the said
87
Rule. The limited extent of control exercisable by the authorities is
demonstrated in DSE Rules 44, 59 and 96(3A) & (3B). Every
school is required, when it desires to establish a new school, to
give intimation in writing to the Administrator or its office to
establish such a school to specifically exempt the minorities'
institutions from application of this detailed provision. In addition
to this, the management of a minority school cannot be taken over
by the authorities in terms of Section 20 of the DSE Act as the
statute itself prohibits the application of Section 20 to such school
in terms of Section 21 of the Act. Besides these statutory
provisions and the scheme under the DSE Act, various judgments
of this Court have also 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.
1. The right to establish and administer includes a right to appoint
teachers. 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
88
whatsoever on the managing committee, internal management of
the school and, of course, has no power to take over such an
institution. This Court has also expressed the view in some
judgments that in respect of minority or even minority institutions,
steps can be taken even for closure of such institutions in the
national interest which of course may be a rare exception. Once
the State lacks basic power of jurisdiction to make special
provisions and reservations in relation to minority institutions,
which do not form part of service under the State, it will be difficult
for the Court to hold that Rule 64(1)(b) can be enforced against
aided minority institution. There are still other aspects which can
usefully be examined to analyze this issue in a greater detail. In
T.M.A. Pai's case (supra) the right to establish an institution is
provided. The Court held that the right to establish an institution is
provided in Article 19(1)(g) of the Constitution. Such right,
however, is subject to reasonable restriction, which may be
brought about in terms of clause (6) thereof. Further, that
minority, whether based on religion or language, however, has a
fundamental right to establish and administer educational
institution of its own choice under Article 30(1).
89
1. The right under clause (1) of Article 30 is not absolute but subject
to reasonable restrictions which, inter alia, may be framed having
regard to the public interest and national interest of the country.
Regulation can also be framed to prevent mal-administration as
well as for laying down standards of education, teaching,
maintenance of discipline, public order, health, morality etc. It is
also well settled that a minority institution does not cease to be so,
the moment grant-in-aid is received by the institution. An aided
minority education institution, therefore, would be entitled to have
the right of admission of students belonging to the minority group
and, at the same time, would be required to admit a reasonable
extent of non-minority students, to the extent, that the right in
Article 30(1) is not substantially impaired and further, the citizen's
right under Article 29 (2) is not infringed.
1. A minority institution may have its own procedure and method of
admission as well as the selection of students but it has to be a
fair and transparent method. The State has the power to frame
regulations which are reasonable and do not impinge upon the
basic character of the minority institutions. This Court, in some of
90
the decisions, has taken the view that the width of the rights and
limitations thereof of unaided institutions, whether run by a
majority or by a minority, must conform to the maintenance of
excellence and with a view to achieve the said goal indisputably,
the regulations can be made by the State. It is also equally true
that the right to administer does not amount to the right to mal-
administer and the right is not free from regulations. The
regulatory measures are necessary for ensuring orderly, efficient
and sound administration. The regulatory measures can be laid
down by the State in the administration of minority institutions.
The right of the State is to be exercised primarily to prevent mal-
administration and such regulations are permissible regulations.
These regulations could relate to guidelines for the efficiency and
excellence of educational standards, ensuring the security of the
services of the teachers or other employees, framing rules and
regulations governing the conditions of service of teachers and
employees and their pay and allowances and prescribing course
of study or syllabi of the nature of books etc. Some of the
impermissible regulations are refusal to affiliation without sufficient
reasons, such conditions as would completely destroy the
91
autonomous status of the educational institution, by introduction of
outside authority either directly or through its nominees in the
Governing Body or the Managing Committee of minority institution
to conduct its affairs etc. These have been illustrated by this
Court in the Case of State of Kerala v. Very Rev. Mother
Provincial [1970) 2 SCC 417, All Saints High School v. Govt. of
A.P. [(1980) 2 SCC 478] and T.M.A. Pai's case (supra). Even in
the Kerala Education Bill, 1957 case (supra), referred for opinion
by the President under Article 143(1) of the Constitution, this
Court while answering question No.2 emphasized upon the
freedom and extent of protection available to the minority
institutions. Referring to the fact that Articles 29 and 30 are set
out in Part-III of the Constitution, which guarantees fundamental
rights, the text and margin notes of both the Articles show that
their purpose is to confer those fundamental rights on certain
sections of community, which constitute minority communities.
The Court held that Article 30(1) cannot be limited and should
equally operate in favour of educational institution, whether
established pre or post the commencement of the Constitution.
The Bench repelled the contention that by admission of an
92
outsider, the minority institution will loose its character as such,
and held:
"To say that an institution which
receives aid on account of its being a minority
educational institution must not refuse to
admit any member of any other community
only on the grounds therein mentioned and
then to say that as soon as such institution
admits such an outsider it will cease to be a
minority institution is tantamount to saying
that minority institutions will not, as minority
institutions, be entitled to any aid".
While admitting non-members, the institution does not shed its
character or ceases to be a minority institution. The freedom of
minority institutions was further explained by the Bench by saying
that it is the choice of the minority institution, to establish such
educational institutions as well serve both purposes that of
conserving their religion, language or culture and also the purpose of
giving a thorough good general education to their children. So, they
could even impart education in their own language or in any other
language, which choice essentially has to be left to the minority
institution. The constitution itself uses the word `choice' in Article
30(1), which indicates the extent of liberty and freedom, the framers
of the Constitution intended to grant to the minority community.
Thus, there arises no occasion for the Court to read restrictions into
93
such freedom on the ground of policy. It may amount to intrusion
into the very minority character and protection available to the
community in law. The right to frame regulations, therefore, is not
itself an unregulated right. It has its own limitations and sphere
within which such regulations would be framed and made operative.
1. It is not necessary for us to examine the extent of power to make
regulations, which can be enforced against linguistic minority
institutions, as we have already discussed the same in the earlier
part of the judgment. No doubt, right conferred on minorities
under Article 30 is only to ensure equality with the majority but, at
the same time, what protection is available to them and what right
is granted to them under Article 30 of the Constitution cannot be
diluted or impaired on the pretext of framing of regulations in
exercise of its statutory powers by the State. The permissible
regulations, as afore-indicated, can always be framed and where
there is a mal-administration or even where a minority linguistic or
religious school is being run against the public or national interest,
appropriate steps can be taken by the authorities including closure
but in accordance with law. The minimum qualifications,
experience, other criteria for making appointments etc are the
94
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. Even in
T.M.A. Pai's case (supra), which view was reiterated by this Court
in the case of Secy. Malankara Syrian Catholic College (supra), it
was held that the conditions for proper utilization of the aid by the
educational institution was a matter within the empowerment of
the State to frame regulations but without abridging or diluting the
right to establish and administer educational institutions. 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
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
95
objective of establishing the institution was not defeated.
1. At last, what is the purpose of granting protection or privilege to
the minorities in terms of Article 29, and at the same time,
applying negative language in Article 30(2) in relation to State
action for releasing grant-in-aid, as well as the provisions of DSE
Act, 1973 and the rules framed thereunder? It is obvious that the
constitutional intent is to bring the minorities at parity or equality
with the majority as well as give them right to establish, administer
and run minority educational institutions. With the primary object
of Article 21A of the Constitution in mind, the State was expected
to expand its policy as well as methodology for imparting
education. DSE Act, as we have already noticed, was enacted
primarily for the purpose of better organization and development
of school education in the Union Territory of Delhi and for matters
connected therewith or incidental thereto. 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
96
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'. The power to regulate,
undisputedly, is not unlimited. It has more restriction than
freedom particularly, in relation to the management of linguistic
minority institutions. The rules, which were expected to be
framed in terms of Section 28 of the DSE Act, were for the
purpose of carrying out the provisions of the Act. Even,
otherwise, it is a settled principle of law that Rules must fall within
the ambit and scope of the principal legislation. Section 21 is
sufficiently indicative of the inbuilt restrictions that the framers of
the law intended to impose upon the State while exercising its
power in relation to a linguistic minority school.
97
1. To appoint a teacher is part of the regular 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. A linguistic minority is entitled to conserve its
language and culture by a constitutional mandate. Thus, it must
select people who satisfy the prescribed criteria, qualification and
eligibility and at the same time ensure better cultural and linguistic
compatibility to the minority institution. At this stage, at the cost of
repetition, we may again refer to the judgment of this Court in
T.M.A. Pai's case (supra), where in para 123, the Court
specifically noticed that while it was permissible for the State and
its educational authorities to prescribe qualifications of a teacher,
98
once the teachers possessing the requisite qualifications were
selected by the minorities for their educational institutions, the
State would have no right to veto the selection of the teachers.
Further, the Court specifically noticed the view recorded by
Khanna, J. in reference to Kerala Education Bill, 1957 case
(supra), and to clauses 11 and 12 of the Bill in particular, where
the learned Judge had declared that, it is the law declared by the
Supreme Court in subsequently contested cases as opposed to
the Presidential reference, which would have a binding effect and
said:
"123.........The words `as at present advised'
as well as the preceding sentence indicate the
view expressed by this Court in relation to
Kerala Education Bill, 1957, in this respect
was hesitant and tentative and not a final view
in the matter."
What the Court had expressed in para 123 above, appears to
have found favour with the Bench dealing with the case of T.M.A. Pai
(supra). In any case, nothing to the contrary was observed or held in
the subsequent judgment by the larger Bench.
1. The concept of equality stated under Article 30(2) has to be read
in conjunction with the protection under Article 29 and thus it must
99
then be given effect to achieve excellence in the field of education.
Providing of grant-in-aid, which travels from Article 30(2) to the
provisions of the DSE Act and Chapter VI of the Rules framed
thereunder, is again to be used for the same purpose, subject to
regulations which themselves must fall within the permissible
legislative competence. The purpose of grant-in-aid cannot be
construed so as to destroy, impair or even dilute the very
character of the linguistic minority institutions. All these powers
must ultimately, stand in comity to the provisions of the
Constitution, which is the paramount law. The Court will have to
strike the balance between different facets relating to grant-in-aid,
right to education being the fundamental right, protection available
to religious or linguistic minorities under the Constitution and the
primary object to improve and provide efficiency and excellence in
school education. In our considered view, it will not be
permissible to infringe the constitutional protection in exercise of
State policy or by a subordinate legislation to frame such rules
which will impinge upon the character or in any way substantially
dilute the right of the minority to administer and manage affairs of
its school. Even though in the case of Mohinder Kaur (supra), the
100
Bench of this Court held that upon restoration of the minority
character of the institution, the provisions of the Act and the rules
framed thereunder would cease to apply to a minority institution.
We still would not go that far and would preferably follow the view
expressed by larger Bench of this Court in T.M.A. Pai's case
(supra) and even rely upon other subsequent judgments, which
have taken the view that the State has the right to frame such
regulations which will achieve the object of the Act. Even if it is
assumed that there is no complete eclipse of the DSE Act in the
Rules in the case of minority institutions, still Rule 64(1)(b), if
enforced, would adversely effect and dilute the right and
protection available to the minority school under the Constitution.
1. Now, we will revert back to the facts of the present case. There is
no dispute to the fact that the appellant-school is a linguistic
minority institution and has been running as such for a
considerable time. Admittedly, it was receiving grant-in-aid for all
this period. Its minority status was duly accepted and declared by
the judgment of the Delhi High Court in the case of this very
institution and which has attained finality. In this very judgment,
the Court also held that certain provisions of DSE Rules, 1973
101
would not apply to this minority school. Thereafter, vide letter
dated 12th March, 1985, the Managing Committee was required to
give an undertaking that it would make reservation in service for
Scheduled Castes and Schedule Tribes, to which the school had
replied relying upon the judgment of the Delhi High Court in its
own case. However, vide letter dated 21st March, 1986, Secretary
(Education), Government of N.C.T., Delhi had informed the
appellants that the circular requiring Government aided schools to
comply with the provisions relating to reservation was not
applicable to the minority institutions. In face of the judgment of
the Court, such a requirement was not carried out by the
appellant-school and the controversy was put at rest vide letter
dated 21st March, 1986 and the institution continued to receive the
grant-in-aid. However, in September, 1989, again, a letter was
addressed to all the government aided schools including the
appellant stating that it was a precondition for all agencies
receiving grant-in-aid, not only to enforce the requirement of
providing reservation in the posts but even not to make any
regular appointments in the general category till the vacancies in
the reserved category were filled up. This was challenged before
102
the High Court. At the very outset, we may notice that we entirely
do not approve the view expressed by the learned Single Judge of
the Delhi High Court in the case of Sumanjit Kaur (supra) insofar
as it held that the regulation would be unconstitutional since they
are likely to interfere with the choice of the medium of instruction
as well as minority character of the institution by compelling the
appointments to the teaching faculty of the persons, who may be
inimical towards the minority community.
1. We are of the considered view that the learned Single Judge as
well as the Division Bench erred in law in stating the above
proposition as it is contra-legam. The Preamble of our
Constitution requires the people of India to constitute into a
`Sovereign Socialist Secular Democratic Republic'. Secularism,
therefore, is the essence of our democratic system. Secularism
and brotherhoodness is a golden thread that runs into the entire
constitutional scheme formulated by the framers of the
Constitution. The view of the learned Single Judge and the
Division Bench in the case of Sumanjit Kaur (supra), runs contra
to the enunciated law. We are afraid that while deciding a
constitutional matter in accordance with law, the Court would not
103
be competent to raise a presumption of inimical attitude of and
towards one community or the other. We do not approve the view
of the High Court that a provision of an Act or a Circular issued
thereunder could be declared as unconstitutional on such
presumptuous ground. However, to the extent that it may interfere
with the choice of medium of instructions as well as minority
character of the institution to some extent is a finding recorded in
accordance with law. The Division Bench while entertaining the
appeal against the judgment of the learned Single Judge, had
primarily concentrated on the point that the selection of the
teacher was valid and not violative of the Rules and accepted the
findings recorded by the learned Single Judge, resulting in grant of
relief to the appellants. Further, in our considered view and for the
reasons afore-recorded, the judgment of the Division Bench in the
present case while dismissing the writ petition filed by the
appellants before that Court cannot be sustained in law. Further,
in the judgment under appeal the Division Bench was right in not
accepting the reason given by the learned Single Judge founded
on other persons being inimical towards minority. It was expected
of the Division Bench to critically analyze other reasons given by
104
the learned Single Judge in the case of Sumanjit Kaur (supra),
which had been followed in the present case. We could have had
the benefit of the independent view of the Division Bench as well.
Reasoning is considered as the soul of the judgment. The Bench
referred to the fact that the view in the Kerala Education Bill, 1957
case (supra) was tentative but still erred in ignoring paragraph 123
of the T.M.A. Pai's case (supra) as well as the other judgments
referred by us, presumably, as they might not have been brought
to the notice of the Bench. The discussion does not analyze the
various principles enunciated in regard to the protection available
to the linguistic minorities under Article 29 of the Constitution and
the result of principle of equality introduced by Article 30(2) of the
Constitution. For the detailed reasons recorded in this judgment,
we are unable to persuade ourselves to accept the view of the
Division Bench in the Judgment under appeal.
1. A linguistic minority has constitution and character of its own. A
provision of law or a Circular, which would be enforced against the
general class, may not be enforceable with the same rigors
against the minority institution, particularly where it relates to
establishment and management of the school. It has been held
105
that founders of the minority institution have faith and confidence
in their own committee or body consisting of the persons selected
by them. Thus, they could choose their managing committee as
well as they have a right to choose its teachers. Minority
institutions have some kind of autonomy in their administration.
This would entail the right to administer effectively and to manage
and conduct the affairs of the institution. There is a fine distinction
between a restriction on the right of administration and a
regulation prescribing the manner of administration. What should
be prevented is the mal-administration. Just as regulatory
measures are necessary for maintaining the educational character
and content of the minority institutions, similarly, regulatory
measures are necessary for ensuring orderly, efficient and sound
administration. Every linguistic minority may have its own socio,
economic and cultural limitations. It has a constitutional right to
conserve such culture and language. Thus, it would have a right
to choose teachers, who possess the eligibility and qualifications,
as provided, without really being impressed by the fact of their
religion and community. Its own limitations may not permit, for
cultural, economic or other good reasons, to induct teachers from
106
a particular class or community. The direction, as contemplated
under Rule 64(1)(b), could be enforced against the general or
majority category of the Government aided school but, it may not
be appropriate to enforce such condition against linguistic minority
schools. This may amount to interference with their right of choice
and, at the same time, may dilute their character of linguistic
minority. It would be impermissible in law to bring such actions
under the cover of equality which in fact, would diminish the very
essence of their character or status. Linguistic and cultural
compatibility can be legitimately claimed as one of the desirable
features of a linguistic minority in relation to selection of eligible
and qualified teachers.
1. A linguistic minority institution is entitled to the protection and the
right of equality enshrined in the provisions of the Constitution.
The power is vested in the State to frame regulations, with an
object to ensure better organization and development of school
education and matters incidental thereto. Such power must
operate within its limitation while ensuring that it does not, in any
way, dilute or impairs the basic character of linguistic minority. Its
right to establish and administer has to be construed liberally to
107
bring it in alignment with the constitutional protections available to
such communities. The minority society can hardly be compelled
to perform acts or deeds which per se would tantamount to
infringement of its right to manage and control. 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. The minority has an inbuilt
right to appoint persons, which in its opinion are better culturally
and linguistically compatible to the institution.
1. To frame policy is the domain of the Government. If, as a matter
of policy, the Government has decided to implement the
reservation policy for upliftment of the socially or otherwise
backward classes, then essentially it must do so within the frame
work of the Constitution and the laws. The concept of reservation
has been provided, primarily, under Article 16 of the Constitution.
Therefore, it would be the requirement of law that such policies
108
are framed and enforced within the four corners of law and to
achieve the laudable cause of upliftment of a particular section of
the society. In regard to the ambit and scope of reservation, this
Court in the case of M. Nagaraj v. Union of India [(2006) 8 SCC
212] held as under :-
"39. Reservation as a concept is very wide.
Different people understand reservation to
mean different things. One view of reservation
as a generic concept is that reservation is an
anti-poverty measure. There is a different
view which says that reservation is merely
providing a right of access and that it is not a
right to redressal. Similarly, affirmative action
as a generic concept has a different
connotation. Some say that reservation is not
a part of affirmative action whereas others say
that it is a part of affirmative action.

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40. Our Constitution has, however,
incorporated the word "reservation" in Article
16(4) which word is not there in Article 15(4).
Therefore, the word "reservation" as a subject
of Article 16(4) is different from the word
"reservation" as a general concept.
41. Applying the above test, we have to
consider the word "reservation" in the context
of Article 16(4) and it is in that context that
Article 335 of the Constitution which provides
for relaxation of the standards of evaluation
has to be seen. We have to go by what the
Constitution-framers intended originally and
not by general concepts or principles.
Therefore, schematic interpretation of the
Constitution has to be applied and this is the
basis of the working test evolved by
Chandrachud, J. in the Election case14."
109
1. Thus, the framework of reservation policy should be such, as to fit
in within the constitutional scheme of our democracy. As and
when the Government changes its policy decision, it is expected
to give valid reasons and act in the larger interest of the entire
community rather than a section thereof. In its wisdom and
apparently in accordance with law Government had taken a policy
decision and issued the circular dated 21st March, 1986 exempting
the minority institutions from complying with the requirements of
the Rule 64(1)(b) of the DSE Rules. Despite this and judgment of
the High Court there was a change of mind by the State that
resulted in issuance of the subsequent circular of September,
1989. From the record before us, no reasons have been recorded
in support of the decision superseding the circular dated 21st
March, 1986. It is a settled canon of administrative jurisprudence
that state action, must be supported by some valid reasons and
should be upon due application of mind. In the affidavits filed on
behalf of the State, nothing in this regard could be pointed out and
in fact, none was pointed out during the course of arguments.
Absence of reasoning and apparent non-application of mind would
give colour of arbitrariness to the state action. This aspect attains
110
greater lucidity in light of the well accepted norm that minority
institution cannot stand on the same footing as a non-minority
institution.
1. Besides that, State actions should be actio quaelibet it sua via and
every discharge of its duties, functions and governance should
also be within the constitutional framework. This principle equally
applies to the Government while acting in the field of reservation
as well. It would not be possible for the Courts to permit the State
to impinge upon or violate directly or indirectly the constitutional
rights and protections granted to various classes including the
minorities. Thus, the State may not be well within its constitutional
duty to compel the linguistic minority 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
111
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.
1. For the reasons afore-stated, we allow the appeal and hold that
Rule 64(1)(b) and the circular of September, 1989, are not
enforceable against the linguistic minority school in the NCT of
Delhi. There shall be no order as to costs.
........................................J.
[ DR. B.S. CHAUHAN ] ........................................
J.
[ SWATANTER KUMAR ]
New Delhi
July 8, 2010 112
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