Sunita Agarwal, C.J.
1. For the convenience of readers, the judgment is divided into parts as indicated in the table of contents, given hereinbelow :-
Table of contents
|
Sl.No. |
Subject |
Page Nos. |
|
A |
Prologue |
12 |
|
B |
StatutoryScheme |
13 |
|
C |
ConstitutionalProtection |
47 |
|
D |
Judicial Precedents and the arguments of the learned counsels for the petitioners on the Constitutional Principles enshrined in Article 30:- |
48
49
50
61
62
62
73
83
90
98 |
|
||
|
||
N.Mehta,thelearnedSenioradvocate. |
100 105 |
|
|
112
130
132 |
|
|
E |
Arguments of the Learned Advocate General for the State respondents |
135 |
|
F |
DiscussionAndAnalysis
(a)AhmedabadSt.Xavier's
(b)T.M.A.PaiFoundation
Stateregulations
|
158 160 160 161 175 175 182 189 191 193 |
|
Decisions in Pre-TMA Pai Regime - Judgement following Ahmedabad St.Xavier's |
199 |
|
|
RatiooftheDecisionsInPostTMAPaiRegime |
206 |
|
|
G |
Findings andconclusion on the impugned Provisions |
222 |
A. PROLOGUE
2. In this bunch of Writ petitions, the recognised and aided minority institutions (both religious and linguistic) registered by the State of Gujarat are seeking to challenge the validity of Section 40-A of the Gujarat Secondary & Higher Secondary Education Act, 1972 (in short as "the Act' 1972"), amended by the Gujarat Secondary and Higher Secondary Education (Amendment Act) 2021 (Act No. 16 of 2021) (in short as "the Amendment Act of 2021"), came into force with effect from 23.03.2021, on the ground that it offends the fundamental rights of the minorities guaranteed under Articles 29 and 30 of the Constitution of India to establish and administer educational institutions of their choice. Further prayer is to hold the rules, namely, "Principal in the Registered Private Secondary and Higher Secondary Minority Schools (Procedure for Selection) Rules, 2021" (in short as the "Principal Selection Rules' 2021") and "the Teachers in Registered Private Secondary and Higher Secondary Minority Schools (Procedure for Selection) Rules, 2021" (in short as the "Teachers Selection Rules' 2021), framed in exercise of the powers conferred under Section 35 of the Act' 1972 as ultra vires. Further prayer is in the nature of a Writ of prohibition, prohibiting the respondent authorities from applying the provisions of Section 17(26), Section 34(2) and Section 35 of the Act' 1972 in relation to the affairs of the minority institutions such as the petitioners herein.
3. An inter-departmental communication dated 04.06.2021 addressed by the Joint Director of Education, Gandhinagar to the District Education Officers of the State, informing them about the procedure to be adopted in the matter of recruitment of Principals/teachers in the secondary education institutions is also subject matter of challenge herein.
B. STATUTORY SCHEME
4. Before delving into the controversy at hand, at the beginning, it would be apt to set out the relevant statutory provisions, pre and post amendment. The original section 40-A of the Act' 1972 as was inserted by the Gujarat Act No. 25 of 1973 with effect from 08.11.1973, the Principal Act, reads as under :-
"40-A. Savings
Nothing contained in clause (26) of Sec. 17, Secs. 34 & 35, and clause (b) of sub-section (1) and sub- secs. (2), (3), (4) and (5) of Sec 36 shall apply to any educational institution established and administered by a minority. whether based on religion or language."
Section 17(26) provides that :-
"Section 17. Powers and Duties of the Board. - Subject to the provisions of this Act, the powers and duties of the Board shall be as follows, namely:-
x x x x x x x x x
(26) to lay down qualifications, methods of selection except for headmasters and teachers of registered Government aided private, secondary and higher secondary schools and conditions of appointment, promotion and termination of employment and rules for conduct and discipline of the headmaster and the teaching & non-teaching staff of registered private secondary schools and registered private higher secondary schools."
Sections 34, 35 and 36 of the Act' 1972 further read as under:-
"Section 34. Recruitment and condition of service of persons appointed in registered private secondary schools or registered private higher secondary schools -
(1) Fifteen per cent of vacancies of the teaching staff of a registered private secondary school and a registered private Higher Secondary School shall be filled up by persons belonging to the Scheduled Castes and Scheduled Tribes.
Provided that where a person belonging to a Scheduled Caste or Scheduled Tribe is not available for filling any such vacancy, the vacancy shall be filled up as otherwise provided in this Act.
Explanation. - In this sub-section,-
(a) "Scheduled Castes" means such castes, races or tribes, or parts of, or groups within, such castes, races or tribes as are deemed to be Scheduled Castes in relation to the State of Gujarat under Article 341 of the Constitution of India
(b) "Scheduled Tribes" means such tribes or tribal communities or parts of, or groups within, such tribes of tribal communities as are deemed to be Scheduled Tribes in relation to the State of Gujarat under Article 342 of the Constitution of India
(2) Subject to sub-sec. (1), the Board shall by regulations regulate the recruitment (except for headmasters and teachers of registered Government aided private secondary and higher secondary schools) and conditions of service including conduct and discipline of persons appointed as headmaster, teachers and members of non-teaching staff of registered private secondary schools and registered private higher secondary schools in the State:
Provided that the conditions of service applicable immediately before the appointed day to the guaranteed staff shall not be varied to their disadvantage except with the previous approval of the State Govt.:
Provided further that it shall be lawful for any registered private secondary school or registered private higher secondary school imparting post basic education to make, with the previous approval of the Board, additional regulations, consistent with the basic nature and concept of post basic education and not inconsistent with the regulations made by the Board for regulating the conditions of service of persons appointed as head- master, teachers and members of non-teaching staff of that school."
Section 35. Selection of Teachers and Headmasters, etc. - The procedure for selection of teachers and headmasters of registered private secondary and higher secondary schools shall be such as may be notified by the State Government by rules from time to time."
Section 36. Dismissal, removal and reduction in rank of certain persons. - (1) No person who is appointed as a head-master, a teacher or a member of non-teaching staff of a registered private secondary school or registered Private Higher Secondary School shall be dismissed or removed or reduced in rank nor shall his service be otherwise terminated by the manager until -
(a) he has been given by the manager a reasonable opportunity of showing cause against the action proposed to be taken in regard to him, and
(b) the action proposed to be taken in regard to him, has been proved in writing by an officer authorized in this behalf by the Board:
Provided that nothing in this sub-section shall apply to any person who is appointed for a temporary period only.
(2) The officer referred to in clause (b) of sub-sec. (1) shall communicate his decision within a period of forty-five days, from the date of receipt by him of the proposal under the said clause (b) and if such decision is not communicated to the manager by the said officer within such period the action proposed to be taken under the said clause (b) shall be deemed to have been approved by the said officer.
(3) Where a head master, a teacher or a member of non-teaching staff of a registered private secondary school or registered Private Higher Secondary School is suspended by the manager of the school pending any inquiry proposed to be held against him, the fact of such suspension together with the grounds therefor, shall be immediately communicated by the manager to an officer authorized in this behalf by the Board, and such suspension shall be subject to ratification by the said officer within a period of forty-five days from the date of the receipt of the communication in this behalf by such officer and if such ratification is not communicated to the manager by the said officer within such period, the suspension under reference shall cease to have effect on the expiry of such period.
(4) Where a head-master, a teacher or a member of the non-teaching staff of a registered private secondary school or registered Private Higher Secondary School desires to submit his resignation, the resignation shall be tendered by him in person to the District Education Officer concerned and shall not be accepted by the manager unless it is so tendered and forwarded to him by such officer duly endorsed. The acceptance of any such resignation tendered in contravention of this sub-section shall be ineffective.
(5) Any person aggrieved by an order of the authorized officer under clause (b) of sub-sec. (1) may make an appeal to the Tribunal within a period of thirty days from the date of the decision of the authorized officer."
5. We may note with the enactment of the Gujarat Act No. 5 of 2014, with effect from 07.06.2014, the Gujarat State School Service Commission Act, 2013 came to be enacted to establish a State School Service Commission to undertake recruitment of teachers and headmasters in the registered private secondary and higher secondary schools including primary schools receiving grant-in-aid from the State Government. The said Act, however, has never come into force.
6. The offending provision of the amended Section 40-A of the Act' 1972 came to be inserted by the Gujarat Secondary and Higher Secondary Education (Amendment) Act, 2021 with effect from 23.03.2021. The amended Section 40-A inserted by the Act' 2021 reads as under :-
"40A. Savings
Notwithstanding anything contained in this Act, sub- section (1) of section 34, and clause (b) of sub- section (1) and sub-sections (2), (3), (4) and (5) of section 36 shall not apply to any educational institutions established and administered by a minority, whether based on religion or language."
The Statement of Object and Reasons of the Amendment Act of 2021 reads that :-
"STATEMENT OF OBJECTS AND REASONS
As per the provisions of the Gujarat Secondary and Higher Secondary Education Act, 1972 (Guj. 18 of 1973), the Gujarat Secondary and Higher Secondary Education Board is constituted so as to regulate the Secondary and Higher Secondary Education in the State. The Board conducts the certificate examination for both the Secondary School (i.e. 10th standard) and Higher Secondary School (i.e. 12th standard). The Board grants registration to the schools and grants permission to open new school in the State also. Moreover, the Board enjoys the powers and performs the duties as enumerated in section 17 and section 18 of the said Act.
Clause (q) of section 2 of the said Act provides for the definition of "recoginsed school" which means a secondary school or a post basic school recognized by the Director of Education, Gujarat State amongst others. Nowadays, new schools are opened by the Education Department as also by the other Departments such as the Social Justice and Empowerment Department, the Tribal Development Department, Samagra Shikshan Abhiyan in the State. Therefore, a suitable amendment is proposed in said clause (q). Clause 2 of the Bill provides for the same.
The Gujarat State Legislature has enacted the Gujarat Educational Institutions Services Tribunal Act, 2006 (Guj. 20 of 2013) so as to bring about uniformity amongst all laws relating to the Educational Tribunals and to provide for the constitution of a tribunal i.e. the Gujarat Educational Institutions Services Tribunal for the purpose of determining disputes relating to conditions of service of the members of the teaching and non-teaching staff of the educational institutions in the State. Existing section 36 of the said Act of 1973 provides for the procedure for dismissal, removal and reduction in rank of certain persons of the registered private Secondary School or registered private Higher Secondary School and also provides for an appeal against the order of the authorised officer to the Tribunal by the aggrieved person under sub-section (5) of said section 36. Now, as the Gujarat Educational Institutions Services Tribunal has already been constituted under section 3 of the said Act of 2013, it is, therefore, considered necessary to make suitable amendment in sub-section (5) of section 36 of the said Act of 1973. Clause 3 of the Bill provides for the same.
The Supreme Court in the matter of T.M.A. Pai Foundation & Ors v. State of Karnataka & Ors 2002 (8) SCC 481 has held that so far as minority institutions are concerned, the academic standard cannot be lowered in any manner. Regulations can be framed governing service conditions for teaching and other staff of minority educational institutions where the aid is provided by the State without interfering with overall administrative control of the management over the staff. Accordingly, section 40A of the said Act is proposed to be substituted. Clause 4 of the Bill provides for the same.
This Bill seeks to amend the said Act to achieve the aforesaid objects."
7. With the enforcement of the Amendment Act of 2021, original Section 40-A came to be substituted resulting in applying the earlier excluded provisions of Section 17(26), 34(2) and Section 35 of the Act, 1972 to the educational institutions established and administered by the minorities (both religious and linguistic) in the State of Gujarat.
8. With the application of the aforesaid provisions, by virtue of Section 34(2) power has been conferred upon the Board, viz. Gujarat Secondary and Higher Secondary Education Board, established under the Act' 1972 to lay down qualifications, method of selection, and conditions of appointment, promotion and termination of employment as also the rules for conduct and discipline of the headmaster, teaching and non-teaching staff of registered private secondary and higher secondary schools.
The second proviso to sub-section (2) of Section 34 empowers a registered private secondary or higher secondary school imparting post basic education to make additional regulations with the previous approval of the Board, consistent with the basic nature and concept of the post basic education and not inconsistent with the regulations made by the Board for regulating the conditions of service of persons appointed as headmaster, teacher and members of non-teaching staff of that school.
9. Section 35 empowers the State Government to frame rules providing procedure for selection of teachers and Head-master of registered private secondary and higher secondary schools.
10. Special Civil Application No. 8081 of 2021 came to be filed on 11.06.2021 challenging the amended Section 40- A on the ground of it being ultra vires Articles 29 and 30 of the Constitution of India on the premise that the power conferred upon the Board/State Government to lay down the qualifications, method of selection, conditions of appointment, promotion, termination of employment, rules for conduct and discipline of teachers/employees, as may be set out, would infringe the rights of the minorities to administer and manage their institutions. Similar other writ petitions were filed and were entertained by this Court.
11. During the pendency of the Writ petitions, the "Principal and Teachers Procedure for Selection Rules, 2021" came into force on 18.10.2021 to facilitate the process of selection of principal and teachers of minority institutions. The said rules enacted by the State Government in exercise of the power under Section 35 of the Act' 1972 are applicable to minority institutions, which are registered private secondary and higher secondary schools having been granted the status of minority (religious or linguistic) under the law for the time being in force and receiving grant-in-aid from the State Government. Separate rules for recruitment of Principal and teachers have been framed and notified on the same date, i.e. 18.10.2021 providing for constitution of Scrutiny Committee; Minority school selection committee; eligibility qualifications; selection procedure; selection criteria, allocation of marks for preparation of merit list.
12. Relevant provision of both the Rules are extracted hereinunder for ready reference :-
The Principal in the Registered Private Secondary and Higher Secondary Minority Schools (Procedure for Selection) Rules, 2021
3. Constitution of Scrutiny Committee for Minority Schools. - (1) There shall be constituted a Scrutiny Committee for Minority Schools to be known as "The Gujarat State Scrutiny Committee for Recruitment of Principal in the Registered Private Secondary and Higher Secondary Minority School."
(2) The Scrutiny Committee for Minority Schools shall consist of the following members, namely:-
Sr.
No.
Designation
(1)
DirectorofSchools,GujaratState, Gandhinagar
Chairman
(2)
Secretary, Gujarat Secondary and Higher Secondary Education Board, Gandhinagar
MemberEx- officio
(3)
A senior Government Officer, not below the rank of Deputy Secretary,to be appointed by the Government
Member
(4)
Two eminent educationists, to be nominated by the Government
Member
(5)
Five representatives from minority Schoolmanagements tobenominated by the Government.
Member
(6)
TheJointDirector ofSchools,Gujarat State Gandhinagar
Member Secretary
(3) The headquarters of the Scrutiny Committee for Minority Schools shall be at Gandhinagar.
4. Eligibility for appointment of Principal.- To be eligible for appointment as a Principal, a candidate shall possess -
(1) requisite educational qualifications in accordance with the provisions of the Gujarat Secondary and Higher Secondary Education Act, 1972 and Gujarat Secondary and Higher Secondary Education Regulations, 1974 as amended from time to time; and
(2) basic knowledge of computer application as prescribed in the Gujarat Civil Services Classification and Recruitment (General) Rules 1967.
5. Selection of Principals.- The Scrutiny Committee for Minority Schools shall carry out scrutiny of persons who have applied for appointment on the posts of Principals in the registered private Secondary and Higher Secondary Minority Schools in accordance with the provisions of these Rules and provisions of the Gujarat Secondary and Higher Secondary Education Act, 1972 and Regulations framed thereunder from time to time.
6. Duties and functions of the Scrutiny Committee for Minority Schools.-
The Scrutiny Committee for Minority Schools shall -
(1) ascertain from the District Education Officers, the number of posts of Principals, for which recruitment is to be made. However, it shall be incumbent upon the District Education Officers to send the requisition for filling up of vacant posts of Principals to the Scrutiny Committee for Minority Schools after calling upon the details of vacant posts of principals from management of the respective minority schools;
(2) invite applications by an advertisement in the widely circulated Gujarati and English newspapers in the State of Gujarat;
(3) scrutinize applications received and prepare the school wise merit list on the basis of weightage of the marks secured by the candidate in HMAT and educational qualification as also the experience, if any, in the ratio of 60% and 40%, respectively.
(4) The list of first 15 candidates who are in the merit list as prepared in accordance with Rule 6 (3) above, shall be sent to the Minority School Selection Committee for personal interview.
7. Constitution of Minority School Selection Committee.- (1) The Minority School Selection Committee shall consist of the following members, namely:-
Sr.
No.
Designation
(1)
One of the Trustees nominated by the concerned Trust/Management of the Minority School
Chairman
(2)
An academician outside of the taluka, to be appointed by the District Education Officer as suggested by the concerned minority school Trust/Management
Member
(3)
One representative to be nominated by the concerned Minority School Trust/Management
Member
(4)
OnePrincipalofanyotherGrant-in-aid registered Private School to be nominated by the concerned Trust/Management Minority School
Member
(5)
The Education Inspector of the Officeof District Education Office of the concerned districts
Member Secretary
(1) The quorum for the meeting of the Minority School Selection Committee shall be three (3) members, in which presence of District Education Inspector shall be compulsory.
(2) The headquarters of the Minority School Selection Committee shall be at the office of the concerned District Education Officer, or any other place as determined by the Minority School Selection Committee.
(3) The record of selection procedure shall be maintained by the office of the Director of Schools, concerned District Education Officer and the minority school.
8. Preparation of Requisitions.- The Trust/Management of minority secondary and higher secondary school shall send a requisition to the District Education Officer showing total number of vacancy/ies for the post of Principal resulted on account of any reason whatsoever except in case of retirement within 30 days from occurrence of such vacancies including the newly created posts. In case of the vacancy/ies likely to occur in the next academic year due to retirement of the Principal, the requisition shall be made at least before six months' from the date of such retirement.
9. Application for the post of Principal.- (1) A candidate who intends to apply for the post of a Principal in minority school/s shall) submit an application to the Scrutiny Committee for Minority Schools in such form, with such fees and within such time limit as may be specified in the advertisement.
(2) The fees once paid shall not be refunded or held over for the subsequent selection.
(3) The request for withdrawal of application form and refund of fees shall not be entertained in any circumstances.
10. Scrutiny of the Applications.- The application shall be scrutinized by the Scrutiny Committee for Minority Schools and the Scrutiny Committee for Minority Schools may adopt such procedure for such scrutiny as it deems fit.
11. Preparation of Merit list for Personal Interview.- (1)(a) The Scrutiny Committee for Minority Schools shall prepare a merit list for personal interview on the basis of weightage of 60% marks of the total marks secured by the concerned candidate in Head Master Aptitude Test (HMAT) to be conducted at least once in a year by the State Examination Board, Gandhinagar.
(b) The marks secured by the concerned candidate in HMAT shall be valid for five years from the date of the result of the HMAT.
(c) The candidate who has secured at least 50% marks in HMAT shall only be considered as qualified candidate for HMAT weightage,
(d) Subject to the other provisions of these Rules, a candidate shall be at liberty to appear in the Head Master Aptitude Test (HMAT) for more than one time. However, the score shown in the certificate which has been produced by the candidate along with the application shall be considered for preparation of merit list for personal interview in the manner as specified in Appendix II;
(2) The weightage of 40% shall be given, out of the marks secured in the prescribed educational qualifications for the concerned post (Please see example in Appendix-II).
(3) The maximum marks for the qualification for the purpose of weightage of 40% shall be as prescribed in Appendix I.
(4) The Scrutiny Committee for Minority Schools shall prepare a school wise merit list for personal interview of the successful candidates specifying their names, application numbers and total marks obtained by them in order of merit on the basis of aggregate marks finally awarded to each candidate as provided under sub-rules (1) to (3) above limited to the number of posts advertised by the Scrutiny Committee for Minority Schools.
(5) The Scrutiny Committee for Minority Schools shall prepare the list of unqualified candidates who are not included in merit list due to non-fulfillment of qualification criteria prescribed in above Rule 11(1), 11(2) and 11(3) specifying their names, application numbers and total marks obtained by them.
(6) The Scrutiny Committee for Minority Schools shall call the candidate figuring in the merit list for personal interview to verify the certificates of educational qualifications, birth date, caste certificate and such other documents. In case of verification, if the Scrutiny Committee finds any document/s or/and information false, fabricated, or concocted, such candidate shall be disqualified for the appointment of Principal in accordance with provisions of Rule 17.
(7) Candidate who are included in the merit list for personal interview prepared under sub-rule (4) above, shall be allowed to select maximum 07 schools from the list of all the schools having vacant post of Principal.
(8) The list of first 15 candidates who are in the merit list as prepared in accordance with sub-Clause (4) above, shall be sent by the District Education officer to the Minority School Selection Committee for personal interview.
12. Verification of Documents.- The concerned District Education Officer shall verify the certificates of educational qualifications, birthdate, caste certificate and such other documents submitted by the concerned 15 candidates before issuance of call letter to such candidates for personal interview. In case of verification, if the District Education Officer finds any document/s or/and- information false, fabricated, or concocted, such candidate shall not be called for personal interview for the post of Principal.
13. Selection Procedure.- (1) Subject to provisions of Rule 12 above, the District Education Officer and Minority School Trust/Management shall jointly issue the call letter to such candidates, who are in the merit list as prepared in accordance with rules, for personal interview before the Minority School Selection Committee.
(2) The Minority School Selection Committee shall give marks to the candidates out of total 40 marks.
(3) The marks to be given to the candidate by the Minority School Selection Committee shall be based on following norms, namely:-
(a) The ability of administration of the educational activities of the school;
(b) The ability of overall administration of the school;
(c) The ability to bring reform in the quality and standards of education of the school;
(d) The ability to conduct the extra-curricular activities of the school to achieve excellence in the education;
(e) The ability of Student management;
(f) Past Educational research;
(g) Knowledge of Curriculum reforms;
(h) Knowledge about Administrative/Executive/ Educational Rules and Regulations;
(i) General Knowledge.
After considering the marks given to candidates in the personal interview, the final selection list of not more than three candidates shall be prepared by the Minority School Selection Committee and recommended to the minority school Trust/Management for the appointment. The Minority School Trust/Management shall issue an order for appointment to the first candidate out of the final selection list so prepared. If the first candidate, by whatever reason, does not join the school to which he is given appointment then in such a case, rather than initiating the whole process afresh, the second number candidate of the final selection list shall be given appointment order and if under the circumstances, the second number candidate does not join the school then the minority school Trust/Management shall consider to give an appointment to the candidate who is at the third number position at the final selection list prepared by the Minority School Selection Committee.
19. Medical Examination:-
A candidate selected for appointment shall submit a medical certificate of fitness as provided in Regulation 21 of the Gujarat Secondary and Higher Secondary Education Regulations, 1974.
Appendix - I
See Rule 11(3)
No.
Qualification
Maximum Marks
1
Graduate Degree (As per Regulation 20(1) of the Gujarat Secondary and Higher Secondary Education Regulations, 1974)
10
2
Post Graduate Degree (As per Regulation 20(1) of the Gujarat Secondary and Higher Secondary Education Regulations, 1974)
07
3
Post Graduate Degree (As per Regulation 20(1) of the Gujarat Secondary and Higher Secondary Education Regulations, 1974)
10
4
Post Graduate Degree in Professional Courses (As per Regulation 20(1) of the Gujarat Secondary and Higher Secondary Education Regulations, 1974)
05
5
Experience (As per Regulation 20(1)of the Gujarat Secondary Education Regulations, 1974)
05
6
Experience as a principal inRegistered Private Secondary and Higher Secondary School (per year 0.5)
03
Total
40
Appendix - II
See Rules 11(1)(d) & 11(2)
Example of Calculation of 60% weightage of HMAT and Calculation of 40% Weightage of qualification
(1) Calculation of 60% Weightage of HMAT
If a candidate has secured 175 marks out of 200 marks in HMAT conducted by the State Examination Board, for selection he gets 175* 60/200=52.5 marks
(2) Calculation of 40% weightage for the Post of Principal
No
Qualification
Maximum Marks
ForExample
Percentage securedby the candidate
Marks eligible on the basis of percentage secured by the candidate (col.3xcol.4/100)
1
2
3
4
5
1
Graduate Degree (AsperRegulation 20(1) of the Secondary Gujarat and Higher Secondary Education Regulations, 1974)
10
50
5
2
Post Graduate Degree (As per Regulation20(1)of the Secondary Gujarat 07 and Higher Secondary Education Regulations, 1974)
07
60
4.2
3.
Graduate Degree in Professionalcourses (As per Regulation20(1)of the Gujarat Secondary and Higher Secondary
10
50
5
Education Regulations,1974)
4.
Post Degree Graduate in Professionalcourses (As per Regulation20(1)of the Gujarat Secondary and Higher Secondary Education Regulations, 1974)
05
60
3
5.
Experience, (As per Regulation20(1)of the Gujarat Secondary Education and Secondary Higher Regulations,1974)
(per year 0.5
marks)
05
12 Years [(morethan 10Years),2Years Experience is Counter
i.e2x0.5)
1
6.
Experience as principalRegistered Secondary a in PrivateandHigher Secondary School (per year 0.5
marks)
03
3 years Experience as Principal an: 1.5 (i.e 3
x0.5)
1.5
Total
40
----
19.70
According to above example the merit number shall be decided of the candidate for the post of Principal
No.
Post
Marks obtainedin HMAT i.e.
outof60%
Marks obtained in accordance with qualificationi.e. out 40%
Total marks forthemerit in inclusion in select list
1
2
3
4
5
1
Principal
52.5
19.70
72.2
The Teachers in the Registered Private Secondary and Higher Secondary Minority Schools (Procedure for Selection) Rules, 2021
3. Constitution of Scrutiny Committee for Minority Schools. - (1) There shall be constituted a Scrutiny Committee for Minority Schools to be known as "The Gujarat State Scrutiny Committee for Recruitment of Teachers in the Registered Private Secondary and Higher Secondary Minority School."
(2) The Scrutiny Committee for Minority Schools shall consist of the following members, namely:-
Sr.No.
Designation
(1)
Director of Schools, Gujarat State, Gandhinagar
Chairman
(2)
Secretary, Gujarat Secondary and HigherSecondaryEducationBoard, Gandhinagar
Member Ex-officio
(3)
A senior Government Officer, not below the rank of Deputy Secretary, to be appointed by the Government
Member
(4)
Two eminent educationists, to be nominated by the Government
Member
(5)
Five representatives from minority School managements to be nominated by the Government.
Member
(6)
TheJointDirectorofSchools,Gujarat State Gandhinagar
Member Secretary
(3) The headquarters of the Scrutiny Committee for Minority Schools shall be at Gandhinagar.
4. Eligibility for appointment of Teacher.- To be eligible for appointment as a Teacher, a candidate shall possess -
(1) requisite educational qualifications in accordance with the provisions of the Gujarat Secondary and Higher Secondary Education Act, 1972 and Gujarat Secondary and Higher Secondary Education Regulations, 1974 framed thereto and amended from time to time; and
(2) basic knowledge of computer application as prescribed in the Gujarat Civil Services Classification and Recruitment (General) Rules 1967.
5. Selection of Teachers.- The Scrutiny Committee for Minority Schools shall carry out scrutiny of persons who have applied for appointment on the posts of Teachers in the registered private Secondary and Higher Secondary Minority Schools in accordance with the provisions of these Rules and provisions of the Gujarat Secondary and Higher Secondary Education Act, 1972 and Regulations framed thereunder from time to time.
6. Duties and functions of the Scrutiny Committee for Minority Schools.-
The Scrutiny Committee for Minority Schools shall -
(1) ascertain from the District Education Officers, the number of posts of Teachers, for which recruitment is to be made. However, it shall be incumbent upon the District Education Officers to send the requisition for filling up of vacant posts of Teachers to the Scrutiny Committee for Minority Schools after calling upon the details of vacant posts of Teachers from management of the respective minority schools;
(2) invite applications by an advertisement in the widely circulated Gujarati and English newspapers in the State of Gujarat;
(3) scrutinize applications received and prepare the school and subject wise merit list on the basis of weightage of the marks secured by the candidate in TAT and educational qualifications in the ratio of 70% and 30%, respectively.
(4) The list of first 15 candidates who are in the merit list for personal interview as prepared in accordance with Rule 6 (3) above, shall be sent to the Minority School Selection Committee for personal interview.
7. Constitution of Minority School Selection Committee.- (1) The Minority School Selection Committee shall consist of the following members, namely:-
Sr.No.
Designation
(1)
One of the Trustees nominated bythe concerned Trust/Management of the Minority School
Chairman
(2)
An academician outside of thetaluka, to be appointed by theDistrict Education Officer as suggested by the concerned minority school Trust/Management
Member
(3)
One representative to be nominated by the concerned Minority School Trust/Management
Member
(4)
Principal/in-chargePrincipalofthe concerned minority school
Member
(5)
TheEducationInspectoroftheOffice of District Education Office of the concerned districts
Member Secretary
(2) The quorum for the meeting of the Minority School Selection Committee shall be three (3) members, in which presence of District Education Inspector shall be compulsory.
(3) The headquarters of the Minority School Selection Committee shall be at the office of the concerned District Education Officer, or any other place as determined by the Minority School Selection Committee.
(4) The record of selection procedure shall be maintained by the office of the Director of Schools, concerned District Education Officer and the minority school.
8. Preparation of Requisitions.- (1) The Trust/Management of minority secondary and higher secondary school shall send a requisition to the District Education Officer showing total number of vacancy/ies for the post of Teacher/s resulted on account of any reason whatsoever except in case of retirement within 30 days from occurrence of such vacancies including the newly created posts. In case of the vacancy/ies likely to occur in the next academic year due to retirement of the Teacher/s, the requisition shall be made at least before six months' from the date of such retirement.
(2) While calculating the number of vacancies the number of posts to be filled up by the appointment of old teacher or Shikshan Sahayak shall be considered.
9. Application for the post of Teacher.- (1) A candidate who intends to apply for the post of a Teacher in minority school/s shall submit an application to the Scrutiny Committee for Minority Schools in such form, with such fees and within such time limit as may be specified in the advertisement.
(2) The fees once paid shall not be refunded or held over for the subsequent selection.
(3) The request for withdrawal of application form and refund of fees shall not be entertained in any circumstances.
10. Scrutiny of the Applications.- The application shall be scrutinized by the Scrutiny Committee for Minority Schools and the Scrutiny Committee for Minority Schools may adopt such procedure for such scrutiny as it deems fit.
11. Preparation of Merit list for Personal Interview.- (1)(a) The Scrutiny Committee for Minority Schools shall prepare a merit list for personal interview on the basis of weightage of 70% marks of the total marks secured by the concerned candidate in Teachers Aptitude Test (TAT) to be conducted at least once in a year by the State Examination Board, Gandhinagar.
(b) The marks secured by the concerned candidate in TAT shall be valid for five years from the date of the result of the TAT.
(c) The candidate who has secured at least 50% marks in TAT shall only be considered as qualified candidate for TAT weightage,
(d) Subject to the other provisions of these Rules, a candidate shall be at liberty to appear in the TAT for more than one time. However, the score shown in the certificate which has been produced by the candidate along with the application shall be considered for preparation of merit list for personal interview in the manner as specified in Appendix II;
(2) The weightage of 30% shall be given, out of the marks secured in the prescribed educational qualifications for the concerned post (Please see example in Appendix-II).
(3) The maximum marks for the qualification for the purpose of weightage of 30% shall be as prescribed in Appendix I.
(4) The Scrutiny Committee for Minority Schools shall prepare a school wise and subject wise merit list for personal interview on the basis of marks secured by the concerned candidate as provided in sub-rules 1(a) and 2 above.
(5) The Scrutiny Committee for Minority Schools shall prepare the merit list of unqualified candidates who are not included in merit list due to non- fulfillment of qualification criteria prescribed in above Rule 11(1), 11(2) and 11(3) specifying their names, application numbers and total marks obtained by them.
(6) The Scrutiny Committee for Minority Schools shill prepare the list of unqualified candidates who are not included in merit list due to non fulfillment of qualification criteria prescribed in above Rule 11(1), 11(2) and 11(3) specifying their names, application numbers and total marks obtained by them.
(7) The Scrutiny Committee for Minority Schools shall call the candidate figuring in the merit list for personal interview to verify the certificates of educational qualifications, birth date, caste certificate and such other documents. In case of verification, if the Scrutiny Committee finds any document/s or/and information false, fabricated, or concocted, such candidate shall be disqualified for the appointment of Teacher in accordance with provisions of Rule 17.
(8) The list of first 15 candidates who are in the merit list for personal interview as prepared in accordance with sub-clauses (4) and (5) above, shall be sent by the District Education officer to the Minority School Selection Committee for personal interview.
12. Verification of Documents.- The concerned District Education Officer shall verify the certificates of educational qualifications, birth date, caste certificate and such other documents submitted by the concerned 15 candidates before issuance of call letter to such candidates for personal interview. In case of verification, if the District Education Officer finds any document/s or/and information false, fabricated, or concocted, such candidate shall not be called for personal interview for the post of Teacher.
13. Selection Procedure.-(1) Subject to provisions (f Rule 12 above, the District Education Officer and Minority School Trust/Management shall jountly issue the call letter to such candidates, who are in the merit list as prepared in accordance with Rules, for personal interview before the Minority School Selection Committee.
(2) The Minority School Selection Committee shall give marks to the candidates out of total 10 (ten) marks.
(3) The marks to be given to the candidate by the Minority School Selection Committee shall be based on following norms, namely:-
I. The ability of administration of the educational activities of the school;
II. The knowledge of concerned subject for which application is made by the candidate;
III. The ability to bring reform in the quality and standards of education of the school;
IV. The ability to conduct the extra-curricular activities of the school to achieve excellence in the education;
V. The methodology to teach the Students;
VI. Past Educational research;
VII. Knowledge of Curriculum reforms.
VIII. General Knowledge,
After considering the marks given to candidates in the personal interview, the final selection list of not more than three candidates shall be prepared by the Minority School Selection Committee and recommended to the minority school Trust/Management for the appointment. The Minority School Trust/Management shall issue an order for appointment to the first candidate out of the final selection list so prepared. If the first candidate, by whatever reason, does not join the school to which he is given appointment then in such a case, rather than initiating the whole process afresh, the second number candidate of the final selection list shall be given appointment order and if under the circumstances, the second number candidate does not join the school then the minority school Trust/Management shall consider to give an appointment to the candidate who is at the third number position at the final selection list prepared by the Minority School Selection Committee.
19. Medical Examination:-
A candidate selected for appointment shall submit a medical certificate of fitness as provided in Regulation 21 of the Gujarat Secondary and Higher Secondary Education Regulations, 1974.
Appendix - I
See Rule 11(3)
Appendix - II
(1) For the post of Higher Secondary Teacher :-
No.
Qualification
Maximum Marks
1
Graduate degree in concerned subject.
10
2
PostGraduatedegreeinconcerned subject.
10
3
Graduate degree in professional subject i.e. B.Ed./B.P.Ed. etc.
05
4
Post Graduate degree inprofessional subject i.e. M.Ed./M.P.Ed. etc.
05
Total
30
No.
Qualification
Maximum Marks
1
Graduate degree in concerned subject.
10
2
PostGraduatedegreeinconcerned subject.(if possesses)
10
3
Graduate degree in professional subject i.e. B.Ed./B.P.Ed. etc.
05
4
Post Graduate degree in professional subject i.e. M.Ed./M.P.Ed. etc.(if possesses)
05
Total
30
(3) For the post of Special Teacher :-
No.
Qualification
Maximum Marks
1
GraduatedegreeinFineArts(B.F.A.)
30
1
Diploma in Fine Arts (5 years integrated course)
30
1
Art Teacher Diploma (A.T.D.) after Higher Secondary School Certificate (H.S.C.)
30
1
DrawingMaster(D.M.)afterHigher SecondarySchoolCertificate(H.S.C.)
30
(i) Drawing Teacher :-
No.
Qualification
Maximum Marks
1
H.S.C.
15
2.
Graduatedegreeinmusic
15
Total
30
(ii) Music Teacher :-
(iii) Physical Education Teacher:-
(a) Secondary Teacher :-
No.
Qualification
Maximum Marks
1
Graduate in any branch of Arts, commerce and science
10
2.
PostGraduateinanybranchofArts, commerce and science (If possess)
10
3.
Bachelor in professional subject (B.P.Ed./D.P.Ed.)
05
4.
Master'sinprofessionalsubject (M.P.Ed.) (if possesses)
05
Total
30
No.
Qualification
Maximum Marks
1
Degree of Bachelor of Physical Education (B.P.E) awarded at theend of the three or more yearscourse.
10
2.
Degree of M.P.E. with Degree of Bachelor of Physical Education (B.P.E) awarded at the end of the five or more years course (If possesses)
10
3.
Bachelor in professional subject (B.P.Ed./D.P.Ed./B.Ed.)
05
4.
Master'sinprofessionalsubject (M.P.Ed/M.Ed.) (if possesses)
05
Total
30
(b) Higher Secondary Teacher :-
No.
Qualification
Maximum Marks
1
Graduate in any branch of Arts, commerce and science
10
2.
Post Graduate in any branch of Arts, commerce and science
10
3.
Bachelor in professional subject (B.P.Ed./D.P.Ed.)
05
4.
Master's in professional subject (M.P.Ed.) (if possesses)
05
Total
30
No.
Qualification
Maximum Marks
1
Degree of Bachelor of Physical Education (B.P.E) awarded at theend of the three or more yearscourse.
10
2.
Degree of M.P.E. with Degree of Bachelor of Physical Education (B.P.E) awarded at the end of the five or more years course.
10
3.
Bachelor in professional subject (B.P.Ed./D.P.Ed./B.Ed.)
05
4.
Master'sinprofessionalsubject (M.P.Ed/M.Ed.) (if possesses)
05
Total
30
(iv) Craft and Industry Teacher:-
No.
Qualification
Maximum Marks
1.
H.S.C.
10
2.
DiplomainEngineeringinsubject concerned.
10
3.
GraduatedegreeinEngineeringin concerned subject.
10
Total
30
Appendix - I
See Rule No. 11(1)(d) & 11(2)
Example of Calculation of 70% weightage of TAT and Calculation of 30% Weightage of qualification
(1) Calculation of 70% Weightage
If a candidate has secured 175 marks out of 200 marks in TAT conducted by the Board, for selection he gets 175* 70/250=49 marks
(2) Calculation of 30% weightage
(1) For the post of Higher Secondary Teacher:
No
Qualification
Maxim um Marks
ForExample
Perce ntage secur edby the candi date
Markseligible on the basis of percentage secured by the candidate (col.3xcol.4/10 0)
1
2
3
4
5
1
Graduate Degree in
concernedsubject
10
70
7.0
2
PostGraduateDegree
in concerned subject
13. The petitioners are challenging the validity of the amended Section 40-A being ultra vires Articles 29 and 30 of the Constitution of India on the ground that with the application of Sections 17(26), 34(2) and 35 of the Act' 1972 to the minority institutions and consequent upon framing of the Rules 2021 for selection of principal and teachers of recognised aided minority institutions, there is an invasion into the freedom of choice of minorities to establish and administer their educational institutions. The fundamental rights guaranteed under Articles 29 and 30 of the Constitution have been infringed as the selection and appointment of teachers for educational institutions by religious and linguistic minority management, is one of the essential ingredients of their right to manage/administer an educational institution.
14. We are, therefore, required to deliberate on the scope and rights of the minorities guaranteed under Article 30 of the Constitution to establish and administer educational institution of their choice.
C. CONSTITUTIONAL PROTECTION
15. At this stage, Articles 29 and 30 of the Constitution of India are set out for ready reference :-
"29. Protection of interests of minorities.- (1) Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.
(2) No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.
30. Right of minorities to establish and administer educational institutions.- (1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.
[(1A) In making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority referred to in clause (1), the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause.
(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."
D. Judicial Precedents and the arguments of the learned Counsels for the petitioners on the Constitutional Principles under Article 30 :-
16. Mr. Mihir Thakore, learned Senior counsel appearing for the petitioners has taken us through the concept of the constitutional protection of the rights of minorities with the aid of the decisions of the Apex Court beginning from 1970 onwards; the law laid down wherein is to be noted hereinunder.
17. The first decision of the Constitution Bench dated 10.08.1970 on a challenge to the vires of certain provisions of the Kerala Universities Act, 1969 is:-
(a) State of Kerala v. Very Rev. Mother Provincial (1970) 2 SCC 417:-
The principles stated by the Apex Court therein are :-
(i) Article 30(1) contemplates two rights which are separated in point of time. The first right is the initial right to establish institutions of the minority's choice. Establishment means bringing into being of an institution and it must be by a minority community. The intention is that the institution must be founded for the benefit of minority community by a member of that community though people other than minority community, i.e. of majority community may also be benefited of these institutions.
(ii) The next part of the right relates to the administration of such institution. Administration means 'management of the affairs' of the institution. This management must be free of control so that founders or their nominees can mould the institution as they think fit, and in accordance with their ideas as to how the interests of the community in general and the institution in particular will be best served. No part of this management can be taken away and vested in another body without an encroachment upon the guaranteed rights.
(iii) There is an exception to the above proposition and it is that the standards of education are not a part of the management as such. These standards concern the body politic and are dictated by considerations of advancement of the country and its people.
(iv) The right of the State to regulate education, educational standards and allied matters cannot be denied. The minority institutions cannot be allowed to fall below the standards of excellence expected of educational institutions or under the guise of exclusive right of management to decline to follow the general pattern. While the management must be left to them, they may be compelled to keep in step with others.
(v) It was noted therein that in Rev. Father W. Proost v. State of Bihar (1969) 2 SCR 73, it was said that the right need not be enlarged nor whittled down. The Constitution speaks of administration and that must fairly be left to the minority institutions and no more."
(b) Ahmedabad St. Xavier's College Society v. State of Gujarat (1974) 1 SCC 717 : AIR 1974 SC 1389 (1):-
The question before the Constitution Bench therein was as to the scope and ambit of the rights of the minorities (religious or linguistic) to establish and administer educational institutions of their choice under clause (1) of Article 30 of the Constitution of India; and whether religious or linguistic minorities have right to establish and administer educational institutions for imparting general secular education within the meaning of Article 30 of the Constitution of India.
After reading Articles 29 and 30 and deliberating on the scope of Article 30(1), it was observed therein that :-
(i) Every section of the public, the majority as well as minority has rights in respect of religion as contemplated under Articles 25 and 26 and rights in respect of language, script, culture as contemplated in Article 29. The whole object of conferring the right of minorities under Article 30 is to ensure that there will be equality between the majority and minority. If the minorities do not have such special protection, they will be denied equality.
(ii) The right to administer of the religious and linguistic minorities to their educational institutions consists of four principles :-
a) The right to choose its managing or governing body;
b) The right to choose its teachers;
c) The right not to be compelled to refuse admission to students;
d) The right to use its properties and assets for the benefit of its own institution.
(iii) The whole idea of giving rights to choose its managing or governing body is that the founders of the minority institutions have faith and confidence in their own committee or body consisting of persons selected by them. Similarly, the right to choose its teachers is conferred with an idea that the minority institutions want teachers to have compatibility with the ideals, aims and aspirations of the institution. The right not to be compelled to refuse admission to students is recognition of the right of minority institutions to have right to admit students of their choice subject to reasonable regulations about academic qualifications.
(iv) The right conferred on the religious and linguistic minorities to administer educational institutions of their choice is, however, not an absolute right. This right is not free from regulatory measures which are necessary to be set in place for maintaining the educational character and content of minority institutions as also for ensuring orderly, efficient and sound administration. The statement of Das, C.J. in Kerala Education Bill AIR 1958 SC 956 case was noted therein that "the right to administer is not the right to maladminister".
(v) Justice H.R. Khanna in his separate judgment speaking for the Bench, has observed in paragraph '89' that a liberal, generous and sympathetic approach is reflected in the Constitution in the matter of preservation of the right of minorities so far as their educational institutions are concerned. The Apex Court has consistently upheld the rights of minorities embodied in Articles 29 and 30 and has ensured that the ambit and scope of the minority rights is not narrowed down. The broad approach has been to see that nothing is done to impair the rights of the minorities in the matter of their educational institutions and that the width and scope of the provisions of the Constitution dealing with those rights are not circumscribed.
(vi) Dealing with the scope and ambit of the rights guaranteed by clause (1) of Article 30, it is said that the clause confers a right on all minorities, whether based on religion or language, to establish and administer educational institutions of their choice. The right conferred by the clause is in absolute terms and is not subject to restrictions as in the case of rights conferred by Article 19 of the Constitution. However, rights of the minorities to administer educational institutions does not prevent the making of reasonable regulations in respect of those institutions. The regulations have necessarily to be made in the interest of the institution as a minority educational institution.
(vii) On the question whether there is any limitation in the prescription of regulations of minority education institutions, it is said that the authority prescribing the regulations must bear in mind that the Constitution has guaranteed a fundamental right to the minorities for establishing and administering their educational institutions. Regulations made by the authority concerned should not impinge upon that right. Balance has, therefore, to be kept between the two objectives, that of ensuring the standard of excellence of the institution and that of preserving the right of the minorities to establish and administer their educational institutions. Regulations which embrace and reconcile the two objectives can be said to be reasonable.
(viii) Much emphasis has been laid by Mr. Mihir Thakore, learned Senior counsel for the petitioners on the observation of the Apex Court in paragraph '103' of this judgment to submit that the choice of selection and appointment of teachers for an educational institution is one of the essential ingredients of the right to manage an educational institution and a law which interferes with the minority's choice of qualified teachers or its disciplinary control over teachers and other members of the staff of the institution is void as being violative of Article 30(1). It was argued that though it is permissible for the State and its educational authorities to prescribe qualifications of teachers, but once the teachers possessing the requisite qualifications are selected by the minorities for their educational institutions, the State would have no right to veto the selection of those teachers.
(ix) We may further note from the observations in paragraph '105' of the judgment penned by Justice Khanna (supra) that although disciplinary control over the teachers of a minority educational institution would be with the governing council, regulations however, can be made for ensuring proper conditions of service of the teachers and for securing a fair procedure in the matter of disciplinary action against the teachers.
(x) A question arose therein that although religious and linguistic minorities have the fundamental right to establish and administer educational institutions of their choice, they have no right, fundamental or otherwise to get recognition or affiliation for their educational institution established by them, unless they submit to the regulations made by the appropriate authority and applicable alike to educational institutions established and administered by the majority as well as to those established and administered by religious and linguistic minorities. The argument was that Article 30(1) does not confer any right to recognition or affiliation and that recognition or affiliation is a privilege which might be granted or withheld as the legislature might thing fit. Answering this issue, it was stated in paragraph '176' as under:-
"176. Recognition or affiliation is granted on the basis of the excellence of an educational institution, namely, that it has reached the educational standard set up by the university. Recognition or affiliation is sought for the purpose of enabling the students in an educational institution to sit for an examination to be conducted by the university and to obtain a degree conferred by the university. For that purpose, the students should have to be coached in such a manner so as to attain the standard of education prescribed by the university. Recognition or affiliation creates an interest in the university to ensure that the educational institution is maintained for the purpose intended and any regulation which will subserve or advance that purpose will be reasonable and no educational institution established and administered by a religious or linguistic minority can claim recognition or affiliation without submitting to those regulations. That is the price of recognition or affiliation: but this does not mean that it should submit to a regulation stipulating for surrender of a right or freedom guaranteed by the Constitution, which is unrelated to the purpose of recognition or affiliation. In other words, recognition or affiliation is a facility which the university grants to an educational institution, for the purpose of enabling the students there to sit for an examination to be conducted by the university in the prescribed subjects and to obtain the degree conferred by the university, and therefore, it stands to reason to hold that no regulation which is unrelated to the purpose can be imposed. If, besides recognition or affiliation, an educational institution conducted by a religious minority is granted aid, further regulations for ensuring that the aid is utilized for the purpose for which it is granted will be permissible. The heart of the matter is that no educational institution established by a religious or linguistic minority can claim total immunity from regulations by the legislature or the university if it wants affiliation or recognition; but the character of the permissible regulations must depend upon their purpose. As we said, such regulations will be permissible if they are relevant to the purpose of securing or promoting the object of recognition or affiliation. There will be border line cases where it is difficult to decide whether a regulation really subserves the purpose of recognition or affiliation. But that does not affect the question of principle. In every case, when the reasonableness of a regulation comes up for consideration before the Court, the question to be asked and answered is whether the regulation is calculated to subserve or will in effect subserve the purpose of recognition or affiliation, namely, the excellence of the institution as a vehicle for general secular education to the minority community and to other persons who resort to it. The question whether a regulation is in the general interest of the public has no relevance, if it does not advance the excellence of the institution as a vehicle for general secular education as, exhypothesi, the only permissible regulations are those which secure the effectiveness of the purpose of the facility, namely, the excellence of the educational institutions in respect of their educational standards. This is the reason why this Court has time and again said that the question whether a particular regulation is calculated to advance the general public interest is of no consequence if it is not conducive to the interests of the minority community and those persons who resort to it.
(xi) In Ahmedabad St. Xavier's (1974) 1 SCC 717 : AIR 1974 SC 1389 (1), the challenge was to Section 33A(1)(b) of the Gujarat University Act, 1949 providing for the requirement that a representative of the University nominated by the Vice Chancellor should be on the selection committee for recruiting the principal and the head of the department besides the representative of the university being on the selection committee for recruiting members of the teaching staff, which was held ultra vires. The observations in paragraph '182' placed before us by the learned Senior counsel are to be noted hereinunder :-
"182. It is upon the principal and teachers of a college that the tone and temper of an educational institution depend. On them would depend its reputation, the maintenance of discipline and its efficiency in teaching. The right to choose the principal and to have the teaching conducted by teachers appointed by the management after an overall assessment of their outlook and philosophy is perhaps the most important facet of the right to administer an educational institution. We can perceive no reason why a representative of the University nominated by the Vice-Chancellor should be on the Selection Committee for recruiting the Principal or for the insistence of head of the department besides the representative of the University being on the Selection Committee for recruiting the members of the teaching staff. So long as the persons chosen have the qualifications prescribed by the University, the choice must be left to the management. That is part of the fundamental right of the minorities to administer the educational institution established by them."
(xii) It was vehemently argued by the learned Senior counsel for the petitioners that if the regulations framed by the State Government, subject matter of challenge herein are tested on the anvil of the above test laid down by the Apex Court in this case of Ahmedabad St. Xavier's (1974) 1 SCC 717 : AIR 1974 SC 1389 (1), the provisions requiring the Scrutiny committee comprising of the officers of the State and the selection committee which includes members who are outsiders, in the instant case, are to be held violative of Article 30(1) of the Constitution. The composition of the Scrutiny committee and the School level selection committee for recruitment of principal and teachers in the minority institutions are hit by Articles 29 and 30 of the Constitution of India.
(xiii) Much emphasis has been laid on the observations of the Apex court in Ahmedabad St. Xavier's (1974) 1 SCC 717 : AIR 1974 SC 1389 (1) that the minorities cannot be asked to barter away their fundamental right guaranteed under Article 30(1) merely for the fact that the State is providing aid from public fund to them. Permissible regulations must depend upon their purpose and the most significant characteristic of the power to impose a condition is relevancy of the condition to the attainment of the objective involved in the grant of the privilege or benefit. A condition may be invalidated on the ground that denying a benefit or privilege because of the exercise of a right in effect penalizes its exercise.
It was submitted that the Apex Court therein has noted that in considering the question whether the regulation imposing a condition subserves the purpose for which recognition or affiliation is granted, it is necessary to have regard to what regulation the appropriate authority may make and impose in respect of an educational institution established and administered by a religious minority and receiving no recognition or aid. Such an institution will, of course, be subject to the general laws of the land like the law of taxation, law relating to sanitation, transfer of property, or registration of documents, etc., because they are laws affecting not only educational institutions established by religious minorities but also all other persons and institutions. It cannot be said that by these general laws, the State in any way takes away or abridges the right guaranteed under article 30(1).
(xiv) A law which may not be a direct restriction on the right but is designed to accomplish another objective and the impact upon the right is secondary or indirect, the question to be asked and answered is whether the particular measure is regulatory or whether it crosses the zone of permissible regulation and enters the forbidden territory of restrictions or abridgment. It was the view of the Court that regulations which may lawfully be imposed either by legislative or executive action as a condition of receiving grant or of recognition must be directed to making the institution while retaining its character as a minority institution, effective as an educational institution and such regulation must satisfy the dual test - (a) test of reasonableness, viz. the test that it is regulative of the educational character of the institution and (b) is conducive to making the institution an effective vehicle of education for the minority community or other persons who resort to it.
(xv) The submission is that the impugned Rules' 2021 for recruitment of principal and teachers of secondary education institutions herein, cannot withstand the aforesaid dual test, inasmuch as, they cannot be said to be regulative of the educational character of the institution, rather they amount to denial of fundamental right of petitioner minorities to administer the institutions established by them under the guise of regulating the standards of education.
(c) N. Ammad v. Emjay High School (1998) 6 SCC 674:-
The Apex Court therein was concerned as to the freedom of management of a minority school to choose and appoint a qualified person as headmaster of the school. Referring to the majority views of K.K. Mathew, J. and H.R. Khanna, J. of the Nine Judge's Bench in Ahmedabad St. Xavier's (1974) 1 SCC 717 : AIR 1974 SC 1389 (1), it was noted therein that the selection and appointment of teachers for an educational institution is one of the essential ingredients of the right to manage an educational institution and the minorities can plainly be not denied such right of selection and appointment without infringing Article 30(1). The right to choose the principal and to have the teaching conducted by teachers appointed by the management after an overall assessment of their outlook and philosophy is perhaps the most important facet of the right to administer an educational institution. The Apex Court observed in paragraph '24' in N.Ammad (1998) 6 SCC 674 that :-
"24. If management of the school is not given very wide freedom to choose the personnel for holding such a key post, subject of course to the restrictions regarding qualifications to be prescribed by the State, the right to administer the school would get much diminished."
(d) Board of Secondary Education and Teachers Training v. Jt. Director of Public Instructions (1998) 8 SCC 555:-
The question therein was whether the minority educational institution is entitled to select a person of their choice as the principal for the school which is established and is administered by them. The decisions in the State of Kerala v. Very Rev. Mother Provincial (1970) 2 SCC 417 and the Ahmedabad St. Xavier's (1974) 1 SCC 717 : AIR 1974 SC 1389 (1) were followed to hold therein that :-
"3.....The State has undoubtedly the power to regulate the affairs of the minority educational institutions also in the interest of discipline and excellence. But in that process, the aforesaid right of the management cannot be taken away, even if the Government is giving hundred per cent grant.
(e) T.M.A. Pai Foundation & Ors. v. State of Karnataka & Ors. (2002) 8 SCC 481:-
(i) The 11 (Eleven) Judge's Bench was constituted to consider the doubt raised by a Bench of 5 (five) Judge's as to the correctness of the decision of the Apex Court in St. Stephen's College vs University Of Delhi (1992) 1 SCC 558. The question as to the correctness of the decision of the Apex Court in Unni Krishnan, J.P. And Ors. Etc. vs State Of Andhra Pradesh (1993) 1 SCC 645 that it imposed unreasonable restrictions on the administration of the private educational institutions and especially in the case of minority institutions and the right guaranteed to them under Article 300(1) stood infringed, was also subject matter of consideration.
(ii) The Apex Court has addressed the question as to what extent can the rights of aided private minority institutions to administer be regulated Previous decisions in State of Kerala v. Very Rev.Mother Provincial (1970) 2 SCC 417, Ahmedabad St. Xavier's (1974) 1 SCC 717 : AIR 1974 SC 1389 (1) were considered at length to record in paragraphs '116' to '120' as under :-
"116.While considering the right of the religious and linguistic minorities to administer their educational institutions, it was observed by Ray, C.J., at SCR p. 194, as follows : (SCC pp. 745-46, para 19)
"The right to administer is said to consist of four principal matters. First is the right to choose its managing or governing body. It is said that the founders of the minority institution have faith and confidence in their own committee or body consisting of persons elected by them. Second is the right to choose its teachers. It is said that minority institutions want teachers to have compatibility with the ideals, aims and aspirations of the institution. Third is the right not to be compelled to refuse admission to students. In other words, the minority institutions want to have the right to admit students of their choice subject to reasonable regulations about academic qualifications. Fourth is the right to use its properties and assets for the benefit of its own institution."
117. While considering this right to administer, it was held that the same was not an absolute right and that the right was not free from regulation. While referring to the observations of Das, C.J., in Kerala Education Bill, 1957 case AIR 1958 SC 956 it was reiterated in St. Xaviers' College case3 that the right to administer was not a right to maladminister. Elaborating the minority's right to administer at SCR p. 196, it was observed as follows : (SCC p. 748, para 30)
"The minority institutions have the right to administer institutions. This right implies the obligation and duty of the minority institutions to render the very best to the students. In the right of administration, checks and balances in the shape of regulatory measures are required to ensure the appointment of good teachers 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 colour of minority. A minority institution should shine in exemplary eclecticism 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."
118. Ray, C.J., concluded by observing at SCR p. 200, as follows : (SCC p. 752, paras 46-47)
"The ultimate goal of a minority institution too imparting general secular education is advancement of learning. This Court has consistently held that it is not only permissible but also desirable to regulate everything in educational and academic matters for achieving excellence and uniformity in standards of education.
In the field of administration it is not reasonable to claim that minority institutions will have complete autonomy. Checks on the administration may be necessary in order to ensure that the administration is efficient and sound and will serve the academic needs of the institution. The right of a minority to administer its educational institution involves, as part of it, a correlative duty of good administration."
119. In a concurrent judgment, while noting (at SCC p. 770, para 73) that "clause (2) of Article 29 forbids the denial of admission to citizens into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them", Khanna, J. then examined Article 30, and observed at SCR p. 222, as follows : (SCC p. 770, para 74)
"74. Clause (1) of Article 30 gives right to all minorities, whether based on religion or language, to establish and administer educational institutions of their choice. Analysing that clause it would follow that the right which has been conferred by the clause is on two types of minorities. Those minorities may be based either on religion or on language. The right conferred upon the said minorities is to establish and administer educational institutions of their choice. The word 'establish' indicates the right to bring into existence, while the right to administer an institution means the right to effectively manage and conduct the affairs of the institution. Administration connotes management of the affairs of the institution. The management must be free of control so that the founders or their nominees can mould the institution as they think fit and in accordance with their ideas of how the interest of the community in general and the institution in particular will be best served. The words 'of their choice' qualify the educational institutions and show that the educational institutions established and administered by the minorities need not be of some particular class; the minorities have the right and freedom to establish and administer such educational institutions as they choose. Clause (2) of Article 30 prevents the State from making discrimination in the matter of grant of aid to any educational institution on the ground that the institution is under the management of a minority, whether based on religion or language."
120. Explaining the rationale behind Article 30, it was observed at SCR p. 224, as follows : (SCC p. 772, para 77)
"77.........xxx....xxx....xxx....xxx....xxx....xxx"
(iii) Referring to the opinion of Justice H.R. Khanna in Ahmedabad St. Xavier's (1974) 1 SCC 717 : AIR 1974 SC 1389 (1) the principles stated were noted in paragraphs '121' to '123' that :-
"121. While advocating that provisions of the Constitution should be construed according to the liberal, generous and sympathetic approach, and after considering the principles which could be discerned by him from the earlier decisions of this Court, Khanna, J., observed at SCR p. 234, as follows : (SCC p. 781, para 89)
"89.......xxx......xxx......xxx.........xxx......xxx"
122. The learned Judge then observed that the right of the minorities to administer educational institutions did not prevent the making of reasonable regulations in respect of these institutions. Recognizing that the right to administer educational institutions could not include the right to maladminister, it was held that regulations could be lawfully imposed, for the receiving of grants and recognition, while permitting the institution to retain its character as a minority institution. The regulation "must satisfy a dual test - the test of reasonableness, and the test that it is regulative of the educational character of the institution and is conducive to making the institution an effective vehicle of education for the minority community or other persons who resort to it". (SCC p. 783, para 92) It was permissible for the authorities to prescribe regulations, which must be complied with, before a minority institution could seek or retain affiliation and recognition. But it was also stated that the regulations made by the authority should not impinge upon the minority character of the institution. Therefore, a balance has to be kept between the two objectives - that of ensuring the standard of excellence of the institution, and that of preserving the right of the minorities to establish and administer their educational institutions. Regulations that embraced and reconciled the two objectives could be considered to be reasonable. This, in our view, is the correct approach to the problem."
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 AIR 1958 SC 956 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 dismissed, removed or reduced in rank without the previous sanction of the authorized officer. At SCC p. 792, Khanna, J., observed that in cases subsequent to the opinion in Kerala Education Bill, 1957 case AIR 1958 SC 956 this Court had held similar provisions as clause 11 and clause 12 to be violative of Article 30(1) (sic in the case) of the minority institutions. He then observed as follows : (SCC p. 792, para 109)
"The opinion expressed by this Court in Re Kerala Education Bill, 1957 AIR 1958 SC 956 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 AIR 1958 SC 956 in this respect was hesitant and tentative and not a final view in the matter."
(iv) As stated therein, in paragraph '92', the rights under Article 30(1) have to be read subject to the power of the State to regulate education, educational standards and allied matters. Article 30(1) is a sort of guarantee or assurance to the linguistic and religious minority institutions of their right to establish and administer educational institutions of their choice. The essence of Article 30(1) is to ensure equal treatment between the majority and the minority institutions. It was held that laws of the land including rules and regulations must apply equally to the majority institutions as well as minority institutions. The minority institutions must be allowed to do what the non-minority institutions are permitted to do.
(v) The observations in paragraphs '136' & '139' in this regard are relevant to be extracted hereunder :-
"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."
"139. Like any other private unaided institutions, similar unaided educational institutions administered by linguistic or religious minorities are assured maximum autonomy in relation thereto; e.g. method of recruitment of teachers, charging of fees and admission of students. They will have to comply with the conditions of recognition, which cannot be such as to whittle down the right under Article 30."
(vi) In T.M.A. Pai Foundation 2002 (8) SCC 481 the Apex Court has also answered the question whether Article 30 gives a right to ask a grant or aid from the State and that if a minority institution gets aid, to what extent its autonomy in administration, specifically in the matter of admission to the educational institution established by the community can be curtailed or regulated. While answering these questions, it was noted that the grant of aid is not a constitutional imperative. Article 30(1) would not justify a demand for aid and it cannot be said that the absence of aid makes the right under Article 30(1) illusory. Article 30(2) only means 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. It was clarified that if an abject surrender of the right to management is made as 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.
(vii) 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 fulfillment of the requisite criteria and the State gives the grant knowing that a linguistic or minority educational institution will also receive the same. It was, thus, held that though 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. (Reference to be made to Paragraph Nos.'143' and '144').
(viii) In T.M.A. Pai Foundation 2002 (8) SCC 481 it was held that on receiving aid out of the State fund, Article 28(1) and (3) became applicable as also Article 29(2), inasmuch as, the minority institutions receiving aid from the State fund will not be able to impart religious instructions and shall have to impart secular education and also would not be able to deny admission on the grounds of religion, race, caste, language or any of them, bu0t the factum of receipt of aid would not result in curtailment of right of the minority to administer their institutions and would not result into altering the nature or character of such educational institutions.
(ix) We may note that though the Apex court has drawn a distinction between the minority institutions receiving aid and educational institutions which are private unaided minority institutions by applying Article 29(2) as obligatory to aided minority institutions, but there is no deviation from the basic principles stated in the Ahmedabad St. Xavier's (1974) 1 SCC 717 : AIR 1974 SC 1389 (1) that the minority nature of the institution should continue and with the grant of aid to the minority institution, the State cannot have such conditions attached to it, which will in any way dilute or abridge the rights of the minority institution to administer that institution. It was stated by the Apex Court in T.M.A. Pai Foundation 2002 (8) SCC 481, that 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 fulfillment of the objectives of the grant.
(x) Placing the above, it was, thus, argued before us that the position of law as stated in the Ahmedabad St. Xavier's (1974) 1 SCC 717 : AIR 1974 SC 1389 (1) that the selection and appointment of principal and teachers in a minority institutions is one of the important facet on which the right to administer the institution is founded, a law which interferes with the minority's choice of selection of teachers shall be violative of Article 30(1) of the Constitution of India. It was vehemently urged that the statement of law therein while holding the provisions of the Gujarat University Act, subject matter of challenge therein, in the case of recruitment of the principal and of teachers of the college by inclusion of the representatives of the university, nominated by the Vice Chancellor and the head of the department, would result in impinging the choice of minorities to administer their institutions established by them, is a settled position on the concept of the rights of the minorities under Article 30 of the Constitution.
(f) Secy., Malankara Syrian Catholic College v. T. Jose (2007) 1 SCC 386:-
(i) In the said matter, the dispute arose with regard to the appointment of principal in two aided private minority institutions affiliated to the Kerala University. The question arose as to what extent the State can regulate the rights of the minorities to administer their educational institutions when such institutions received aid from the State. The second question was as to 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.
(ii) The High Court of Kerala, relying on the 11 Judge's Bench judgement of the Apex Court in T.M.A. Pai Foundation 2002 (8) SCC 481 had held that the receipt of aid by minority institution removes the protection under Article 30(1) by taking away its right to claim immunity from interference and, therefore, all regulations made by the State governing the manner of making appointments and removal, as also the conditions of service of Principal and lecturers, will be binding on such aided institutions. The High Court held therein that aid carries the "price" of surrender of a part of its freedom and independence in matters of administration. As a consequence, Section 57(3) of the Kerala University Act providing that the post of Principal to be filled by promotion on the seniority-cum- fitness, was held applicable to the minority institutions.
(iii) The institutions therein, on the other hand, contended that the right to appoint principal and teacher is the most important facet of minorities' "right to administer" under Article 30(1) of the Constitution. The stand was that receipt of aid by minority institutions does not, in any way, fetter or abridge their constitutional right to administer educational institutions and, therefore, Section 57(3) of the Kerala University Act requiring the appointment of only the senior-most lecturer as principal was violative of Article 30(1) of the Constitution.
(iv) On the first question about the extent to which the State can regulate the right of minorities, the Apex Court considered the statement of law in Very Rev. Mother Provincial (1970) 2 SCC 417 and Ahmedabad St. Xavier's (1974) 1 SCC 717 : AIR 1974 SC 1389 (1), to lay emphasis on the observation in Very Rev. Mother Provincial (1970) 2 SCC 417 that the minority institutions cannot be allowed to fall below the standards of excellence expected of educational institutions or under the guise of exclusive right of management, to decline to follow the general pattern. While the management must be left to them, they may be compelled to keep in step with others. The majority view in Ahmedabad St. Xavier's (1974) 1 SCC 717 : AIR 1974 SC 1389 (1) was noted to record that the prescription of conditions of service would attract better and competent teachers and would not jeopardise the right of the management of minority institutions to appoint teachers of their choice.
(v) The Apex Court, entertaining the challenge has, however, noted therein that the observations made in paragraphs '72 and '73' of T.M.A. Pai Foundation 2002 (8) SCC 481 relied by the High Court, were not made with reference to aided minority educational institutions and the High Court had misconstrued T.M.A. Pai Foundation 2002 (8) SCC 481 in concluding that acceptance of aid by a minority institution takes away its right to claim immunity from interference and the State can lay down any regulation governing the conditions of service of employees of aided minority institutions ignoring the constitutional guarantee under Article 30(1). It was clarified by the Apex Court that the observations in paragraph '73' in T.M.A. Pai Foundation 2002 (8) SCC 481 were made in the context of aided non-minority non-professional private institutions. The position of minority educational institutions securing aid from the State or its agencies was considered in paras '80 to 155', wherein it was clearly held that receipt of State aid does not annihilate the right guaranteed to minorities to establish and administer educational institutions of their choice under Article 30(1).
(vi) The observation in T.M.A. Pai Foundation 2002 (8) SCC 481 has been extracted in paragraph '18' while laying emphasis on the following :-
"141.....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."
It was clarified that among the questions formulated and answered by the majority in T.M.A. Pai Foundation 2002 (8) SCC 481 while summarising conclusions, question 5(c), which reads as under is in two parts:-
"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"
(vii) The first part of the answer to question no.5(c) related to unaided minority institutions where Court has expressed the view that in case of unaided minority educational institutions, the regulatory measure of control should be minimimal; and in the matter of day to day management like the appointment of staff (both teaching and non-teaching) and administrative control over them, the management should have the freedom and there should not be any external controlling agency. But such institutions will have to comply with the conditions of recognition or affiliation to a board or university; and a rational procedure for the selection of teaching staff and for taking the decision will be formulated by the management itself.
(viii) The second part of answer to question no. 5(c) applicable to aided institutions was extracted therein, in the following manner:-
"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."
(ix) It was further noted that the position enunciated in T.M.A. Pai Foundation 2002 (8) SCC 481 has been reiterated in P.A. Inamdar v. State of Maharashtra (2005) 6 SCC 537 and the general principles relating to establishment and administration of educational institutions by minorities may be summarised as under :-
"19. The general principles relating to establishment and administration of educational institution by minorities may be summarised thus:
(i) The right of minorities to establish and administer educational institutions of their choice comprises the following rights:
(a) to choose its governing body in whom the founders of the institution have faith and confidence to conduct and manage the affairs of the institution;
(b) to appoint teaching staff (teachers/lecturers and Headmasters/Principals) as also non-teaching staff, and to take action if there is dereliction of duty on the part of any of its employees;
(c) to admit eligible students of their choice and to set up a reasonable fee structure;
(d) to use its properties and assets for the benefit of the institution.
(ii) The right conferred on minorities under Article 30 is only to ensure equality with the majority and not intended to place the minorities in a more advantageous position vis- -vis the majority. There is no reverse discrimination in favour of minorities. The general laws of the land relating to national interest, national security, social welfare, public order, morality, health, sanitation, taxation, etc. applicable to all, will equally apply to minority institutions also.
(iii) The right to establish and administer educational institutions is not absolute. Nor does it include the right to maladminister. There can be regulatory measures for ensuring educational character and standards and maintaining academic excellence. There can be checks on administration as are necessary to ensure that the administration is efficient and sound, so as to serve the academic needs of the institution. Regulations made by the State concerning generally the welfare of students and teachers, regulations laying down eligibility criteria and qualifications for appointment, as also conditions of service of employees (both teaching and non-teaching), regulations to prevent exploitation or oppression of employees, and regulations prescribing syllabus and curriculum of study fall under this category. Such regulations do not in any manner interfere with the right under Article 30(1).
(iv) Subject to the eligibility conditions/qualifications prescribed by the State being met, the unaided minority educational institutions will have the freedom to appoint teachers/lecturers by adopting any rational procedure of selection.
(v) Extension of aid by the State does not alter the nature and character of the minority educational institution. Conditions can be imposed by the State to ensure proper utilisation of the aid, without however diluting or abridging the right under Article 30(1)."
(x) On the aspect of the nature and extent of rights of aided minority institutions and permissible control of State, the statement of law in paragraphs '20' and '21' is to be noted hereinunder :-
"20. Aided institutions give instruction either in secular education or professional education. Religious education is barred in educational institutions maintained out of the State funds. These aided educational minority institutions providing secular education or professional education should necessarily have standards comparable with non-minority educational institutions. Such standards can be attained and maintained only by having well-qualified professional teachers. An institution can have the services of good qualified professional teachers only if the conditions of service ensure security, contentment and decent living standards. That is why the State can regulate the service conditions of the employees of the minority educational institutions to ensure quality of education. Consequently, any law intended to regulate the service conditions of employees of educational institutions will apply to minority institutions also, provided that such law does not interfere with the overall administrative control of the management over the staff.
21. We may also recapitulate the extent of regulation by the State, permissible in respect of employees of minority educational institutions receiving aid from the State, as clarified and crystallised in T.M.A. Pai [(2002) 8 SCC 481]. 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, (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."
(xi) On the question no.2 about the validity of Section 57(3) of the Kerala University Act providing the requirement for seeking permission for appointment to the post of principal or headmaster of an educational institution, it was held that the management is responsible for the functional efficiency of the institution as also the quality of education and discipline in the institution. It is also responsible for maintaining the philosophy and objects of the institution.
(xii) Referring to the decisions in the Very Rev. Mother Provincial (1970) 2 SCC 417, Ahmedabad St. Xavier's (1974) 1 SCC 717 : AIR 1974 SC 1389 (1), N. Ammad (1998) 6 SCC 674, Rt. Rev. Aldo Maria Patroni v. Kesavan 1964 SCC OnLine Ker 182 and the decision of the Apex Court in Board of Secondary Education and Teachers Training (1998) 8 SCC 555, it was held in paragraphs '27' and '28 therein to conclude that Section 57(3) of the Kerala University Act cannot apply to minority run educational institution even if they are aided :-
"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 [(2002) 8 SCC 481]. Having regard to the key role played by the Principal in the management and administration of the educational institution, there can be no doubt that the right to choose the Principal is an important part of the right of administration and even if the institution is aided, there can be no interference with the said right. The fact that the post of the Principal/Headmaster is also covered by State aid will make no difference.
28. The appellant contends that the protection extended by Article 30(1) cannot be used against a member of the teaching staff who belongs to the same minority community. It is contended that a minority institution cannot ignore the rights of eligible lecturers belonging to the same community, senior to the person proposed to be selected, merely because the institution has the right to select a Principal of its choice. But this contention ignores the position that the right of the minority to select a Principal of its choice is with reference to the assessment of the person's outlook and philosophy and ability 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."
Much emphasis has been laid by Mr. Mihir Thakore, learned Senior counsel appearing for the petitioners to the abovenoted proposition of law stated in this decision that the freedom to choose a person to be appointed as principal has always been recognised as a vital facet of the right to administer the educational institution and this principle has not been, in any way, diluted or altered in T.M.A. Pai Foundation 2002 (8) SCC 481.
(g) Sindhi Education Society v. Govt. (NCT of Delhi) (2010) 8 SCC 49:-
(i) The challenge before the Apex Court therein was to the validity of Rule 64 (1) (b) of the Delhi School Education Act, 1973 and the orders/instructions issued thereunder to the extent that if they made applicable to an aided minority educational institution, they violate the fundamental right guaranteed under Article 30(1) of the Constitution. The Apex Court has also proceeded to consider therein that even if the relevant provisions of the Delhi School Education Act, 1973 are not unconstitutional, would they still apply with their rigors to the linguistic minority schools receiving grant- in-aid from the Government.
(ii) Rule 64 of the Rules under challenge therein was to primarily deal with the conditions of providing grant- in-aid and provided that no aid was to be granted unless suitable undertaking was given by the managing committee. The amended Rule 64 brought by the notification dated 23.02.1990 prescribed certain limitation which the Competent Authority could impose in exercise of its powers. Even before amendment of the said Rule on 12.03.1985, instructions were issued by the Deputy Director of Education addressed to the appellant institution therein stating, inter alia that in accordance with the 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 therein to the instructions issued by the Department of Personnel, Government of India, wherein reservation for the Scheduled Castes and Scheduled Tribes in the institutions/organisations were ordered. The letter stated that future grants-in-aid shall be released on giving the aforesaid undertaking on the enclosed proforma.
(iii) On receipt of the response of the appellant Society, the Secretary (Education) Government of NCT of Delhi vide communication dated 21.03.1986 informed that the requirement of undertaking was not applicable to the minority institutions and as such, the management of the institutions were at the discretion to adhere or not to adhere to the instructions issued by the Government of India regarding the reservation of SC/ST.
(iv) Inspite of the aforesaid communication, the appellant society therein received another communication from the authorities in September 1989, addressed to all the schools that appointment of the Scheduled Castes and Scheduled Tribes candidates was 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.
(v) In the light of the above noted facts, dispute arose before the High Court about the correctness of the action of the State authorities in reiterating the requirements of Rule 64(1)(b) asking for the undertaking by the institutions as a pre-condition of grant-in-aid from the Government. The matter went to the Apex Court on the grant of certificate of leave to appeal by the Division Bench of the High Court of Delhi while it was held by the High Court that Rule 64(1)(b) does not infringe any right of the minority institution and the implementation of the roster of reservation was in consonance with the stated principles in the case of Kerala Education Bill, 1957 AIR 1958 SC 956, and the fundamental rights of minority institutions are not infringed. In this context of the dispute before the Apex Court, it was held in paragraphs '79' to '85' as under:-
"79. 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 for 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.
80. In terms of Rule 60, every aided school will continue to get the aid subject to the provisions of the DSE Rules. Rule 64 of the DSE Rules contemplates that aid is 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.
81. 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 contradistinction or opposed to legal right to get recognition including the case of a minority institution. This principle has been reiterated by this Court in a catena of judgments including the judgments referred by us above.
82. The logical impact of Article 30(2) read with the provisions of the DSE Act and the Rules framed thereunder is that, to receive grant-in-aid is a legitimate right of a school subject to satisfying the requirements of law. Article 30(2) thus, has been worded in a negative language not permitting the State to discriminate the minority institution in relation to the matters of grant-in-aid.
83. Article 15(5) of the Constitution excludes the minority educational institutions from the power of the State to make any provision by law for the advancement of any socially or educationally backward classes of the citizens or for Scheduled Castes and Scheduled Tribes in relation to their admission to educational institutions including private educational institutions whether aided or unaided. This article is capable of very wide interpretation and vests the State with power of wide magnitude to achieve the purpose stated in the article. But, the framers of the Constitution have specifically excluded minority educational institutions from the operation of this clause.
84. Article 16 which ensures equality of opportunity in matters of public employment again has been worded so as to prohibit discrimination and, at the same time, vests the State with power to make provisions, laws and reservations in relation to a particular class or classes of persons. It is of some significance to notice that power of the State to exercise such power is in relation to the "service under the State". This expression has been used in all the clauses of the article which relate to providing of employment and framing of laws/reservations in those categories. Upon its true construction, this expression itself is capable of a wide construction and must be construed liberally and cannot be restricted to its narrow sense.
85. The expression "service under the State" would obviously include service directly under the State Government or its instrumentalities and/or even the sectors which can be termed as State within the meaning of Article 12 of the Constitution. Once an organisation or society falls outside the ambit of this circumference, in that event, it will be difficult for the courts to hold that the State has a right to frame such laws or provisions or make reservations in the field of employment for those societies."
(vi) Placing the above-noted observations of the Apex Court in Sindhi Education Society (2010) 8 SCC 49, it was vehemently argued by the learned senior counsel for the petitioners that the minority schools or institutions which are receiving grant in aid from the Government by merely receiving grant-in-aid per se would not become "State" within the meaning of Article 12 of the Constitution of India. Article 15(5) specifically excludes minority educational institutions from operation of this clause and Article 16 which ensures equality of opportunity in matter of public employment in relation to the `service under the State' is not attracted in case of a minority institution whether aided or not. It was argued that the expression 'service under the State' in Article 16 would 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 as settled by the Apex Court in the case of Ajay Hasia v. Khalid Mujib Sehravardi (1981) 1 SCC 722. The test as spelt out therein would not be applicable in the case of a minority institution. The State, therefore, cannot exercise control over a minority institution which is otherwise entitled to the protection under Article 30(1) of the Constitution.
(vii) It was argued that the Apex Court has categorically held therein that the service in aided linguistic minority school cannot be constructed as 'service under the State' even with the aid of Article 12 of the Constitution and linguistic minority which has constitution and character of its own, is entitled to the protection and right of equality enshrined in the Constitution. The observations in paragraphs '63' and '64' of the said decision has been placed before us to emphasize that the Apex Court has recognised the right to appoint persons who are better culturally and linguistically compatible to the institution as an inbuilt right. The power vested in the State to frame regulations must operate within its limitation while ensuring when it does not, in any way, dilute or impairs the basic character of linguistic minority (religious or linguistic) and that the right of minority to establish and administer has to be construed liberally to bring it in alignment with the constitutional protections available to such minorities.
(viii) It was, thus, argued that the position of law as stated in T.M.A. Pai Foundation 2002 (8) SCC 481, with regard to aided minority institutions, has been restated and reaffirmed by the Apex Court with the clarification again and again emphasizing the law stated in the Very Rev.Mother Provincial (1970) 2 SCC 417 and Ahmedabad St. Xavier's (1974) 1 SCC 717 : AIR 1974 SC 1389 (1). The consistent view of the Apex Court throughout has been that the choice to appoint principal or teaching staff, who possess the eligibility and qualifications as provided, has to be left at the discretion of the management of the minority institutions. Any amount of interference with their right to choose teachers would be impermissible in law as it may dilute their character of religious and linguistic minority, which, in fact, would diminish the very essence of their character or status. The 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. It was vehemently argued that the Apex Court in Sindhi Education Society (2010) 8 SCC 49 has clearly held that the provision of law which would be enforced against the general class cannot be made enforceable with the same rigours against the minority institutions, both in relation to their choice of their managing committee as well as their right to choose the teachers.
(h) Chandana Das (Malakar) v. State of W.B. (2020) 13 SCC 411
(i) In the said decision, a question arose as to the status of the institution therein as a linguistic minority institution and the applicability of the rule framed under the West Bengal Board of Secondary Act qua appointment of teachers. Rule 28 which was sought to be applied to the linguistic minority institutions therein provided that in an aided institution, the committee constituted under the rules shall have the power to appoint on the recommendation of the West Bengal Regional School Service Commission in respect of region concerned, teachers on permanent or temporary basis against permanent or temporary vacancies, on the approval by the Director or any officer authorised by him. Rule 33 of the Rules, however, provided that nothing in the Rules shall affect the power of the State Government to frame, on the application of any institution or class of institution to which the provisions of Articles 26 or Article 30 of the Constitution of India may apply, further or other rules for the composition, powers, functions of the managing committee or committee of such institution or class of institutions. These Rules have been amended by 2008 amendment whereby rule 33 had been omitted altogether. It was also an admitted fact that prior to the amendment, no such rules had been framed by the State under Rule 33.
(ii) The dispute, however, was pertaining to the letter from the Secretary, West Bengal Board of Secondary Education intimating providing for a special constitution of the managing committee of the school. The issue was whether by acceptance of the said letter, the managing committee of the minority institutions, in any manner, unequivocally waived its right to be treated as minority institution. There was no dispute about the fact that in the State of West Bengal it was a linguistic minority and the institution in question was set up by them.
(iii) In the context of the said dispute, the Apex Court has considered the historical reasons for enacting Article 30(1) as discussed in Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225, and noted from the judgment drawn by Khanna, J., in Ahmedabad St. Xavier's (1974) 1 SCC 717 : AIR 1974 SC 1389 (1), reiterated in the concurring Judgement of Quadri, J. in T.M.A. Pai Foundation 2002 (8) SCC 481, in paragraphs '20' to '22' as under :-
"20. The historical reasons for enacting Article 30(1) have been set out in some detail in the judgment of Shelat, J. and Grover, J. in Kesavananda Bharati (1973) 4 SCC 225 as follows : (SCC p. 429, para 535-A)
"535-A. It may be recalled that as regards the minorities the Cabinet Mission had recognised in their report to the British Cabinet on 6-5-1946, only three main communities : general, Muslims and Sikhs. General community included all those who were non-Muslims or non-Sikhs. The Mission had recommended an Advisory Committee to be set up by the Constituent Assembly which was to frame the rights of citizens, minorities, tribals and excluded areas. The Cabinet Mission statement had actually provided for the cession of sovereignty to the Indian people subject only to two matters which were : (1) willingness to conclude a treaty with His Majesty's Government to cover matters arising out of transfer of power, and (2) adequate provisions for the protection of the minorities. Pursuant to the above and Paras 5 and 6 of the Objectives Resolution the Constituent Assembly set up an Advisory Committee on 24-1-1947. The Committee was to consist of representatives of Muslims, the depressed classes or the Scheduled Castes, the Sikhs, Christians, Parsis, Anglo-Indians, tribals and excluded areas besides the Hindus [Constituent Assembly Debates, Vol. 2, pp. 330- 349.]. As a historical fact it is safe to say that at a meeting held on 11-5-1949 a resolution for the abolition of all reservations for minorities other than the Scheduled Castes found whole-hearted support from an overwhelming majority of the members of the Advisory Committee. So far as the Scheduled Castes were concerned it was felt that their peculiar position would necessitate special reservation for them for a period of ten years. It would not be wrong to say that the separate representation of minorities which had been the feature of the previous Constitutions and which had witnessed so much of communal tension and strife was given up in favour of joint electorates in consideration of the guarantee of fundamental rights and minorities' rights which it was decided to incorporate into the new Constitution."
(Emphasis supplied)
"21. This was further flashed out in the judgment of Khanna, J. in Ahmedabad St. Xavier's (1974) 1 SCC 717 : AIR 1974 SC 1389 (1) as follows : (SCC pp. 770-71 & 781, paras 75 & 89)
"75. Before we deal with the contentions advanced before us and the scope and ambit of Article 30 of the Constitution, it may be pertinent to refer to the historical background. India is the second-most populous country of the world. The people inhabiting this vast land profess different religions and speak different languages. Despite the diversity of religion and language, there runs through the fabric of the nation the golden thread of a basic innate unity. It is a mosaic of different religions, languages and cultures. Each of them has made a mark on the Indian polity and India today represents a synthesis of them all. The closing years of the British rule were marked by communal riots and dissensions. There was also a feeling of distrust and the demand was made by a section of the Muslims for a separate homeland. This ultimately resulted in the partition of the country. Those who led the fight for independence in India always laid great stress on communal amity and accord. They wanted the establishment of a secular State wherein people belonging to the different religions should all have a feeling of equality and non-discrimination. Demand had also been made before the partition by sections of people belonging to the minorities for reservation of seats and separate electorates. In order to bring about integration and fusion of the different sections of the population, the framers of the Constitution did away with separate electorates and introduced the system of joint electorates, so that every candidate in an election should have to look for support of all sections of the citizens. Special safeguards were guaranteed for the minorities and they were made a part of the fundamental rights with a view to instil a sense of confidence and security in the minorities. Those provisions were a kind of a Charter of rights for the minorities so that none might have the feeling that any section of the population consisted of first-class citizens and the others of second-class citizens. The result was that minorities gave up their claims for reservation of seats. ...
* * *
89..........xxx..........xxx..............xxx...............xxx.........xxx.............xxx...........xxx...............xxx...........xxx....
The minorities are as much children of the soil as the majority and the approach has been to ensure that nothing should be done as might deprive the minorities of a sense of belonging, of a feeling of security, of a consciousness of equality and of the awareness that the conservation of their religion, culture, language and script as also the protection of their educational institutions is a fundamental right enshrined in the Constitution. The same generous, liberal and sympathetic approach should weigh with the courts in construing Articles 29 and 30 as marked the deliberations of the Constitution- makers in drafting those articles and making them part of the fundamental rights. The safeguarding of the interest of the minorities amongst sections of population is as important as the protection of the interest amongst individuals of persons who are below the age of majority or are otherwise suffering from some kind of infirmity. The Constitution and the laws made by civilised nations, therefore, generally contain provisions for the protection of those interests. It can, indeed, be said to be an index of the level of civilisation and catholicity of a nation as to how far their minorities feel secure and are not subject to any discrimination or suppression."
(Emphasis supplied)
22. This was reiterated in the concurring judgment of Quadri, J. in T.M.A. Pai Foundation 2002 (8) SCC 481 as follows : (SCC p. 640, para 301)
"301. ... The Founding Fathers of the Constitution were alive to the ground realities and the existing inequalities in various sections of the society for historical or other reasons and provided for protective discrimination in the Constitution with regard to women, children, socially and educationally backward classes of citizens, Scheduled Castes and Scheduled Tribes by enabling the State to make special provision for them by way of reservation as is evident from clauses (3) and (4) of Article 15 and clauses (4) and (4-A) of Article 16 of the Constitution. The apprehensions of religious minorities and their demand for separate electorates, were settled by providing freedom of conscience and free profession, practise and propagation of religion for all the citizens under Articles 25, 26 and 28 which take care of the religious rights of minorities equally; by special provisions their right to conserve a distinct language, script or culture is guaranteed as a fundamental right in Article 29; further, all minorities, whether based on religion or language, are conferred an additional fundamental right to establish and administer educational institutions of their choice as enshrined in Article 30 of the Constitution. The right under Article 30(1) is regarded so sacrosanct by Parliament in its constituent capacity that when by operation of the law of the land - Land Acquisition Act - compensation awarded for acquisition of a minority educational institution was to result in restricting or abrogating the right guaranteed under clause (1) of Article 30, it by the Constitution (Forty-fourth) Amendment Act inserted clause (1-A) in Article 30. It provides that Parliament in the case of a Central legislation or a State Legislature in the case of State legislation shall make a specific law to ensure that the amount payable to the minority educational institutions for the acquisition of their property will not be such as will in any manner impair their functioning. A Constitution Bench of this Court in interpreting clause (1-A) of Article 30 in Society of St. Joseph's College v. Union of India (2002) 1 SCC 273, observed thus : (SCC p. 278, para 7)
'7. Plainly, Parliament in its constituent capacity apprehended that minority educational institutions could be compelled to close down or curtail their activities by the expedient of acquiring their property and paying them inadequate amounts in exchange. To obviate the violation of the right conferred by Article 30 in this manner, Parliament introduced the safeguard provision in the Constitution, first in Article 31 and then in Article 30.'"
(iv) Placing reliance on the observations in paragraphs "23" to "27" of this decision (in Chandana Das (2020) 13 SCC 411), it was vehemently argued by Mr. Mihir Thakore, learned senior counsel for the petitioners that the majority view of the 9 judges Bench in Ahmedabad St. Xavier's (1974) 1 SCC 717 : AIR 1974 SC 1389 (1) in holding that the right to administer includes right of minority institutions to choose its teachers and any provision taking away a minority's choice of qualified teachers or its disciplinary control over the teachers and other members of the staff of the institution would be violative of Article 30(1) of the Constitution, inasmuch as, right to choose its teachers is at the core of the fundamental right to Article 30 - the right to administer, has been recited with approval. The relevant observations in paragraphs '24' to '27' placed before us to substantiate the said point are noted hereinunder :-
"24. Ray, C.J. adverted to the aforesaid provision and stated that at the core of the fundamental right of Article 30 is the right to administer which includes the right of the minority institutions to choose its teachers (see SCC pp. 745-48, paras 18-19 & 27-30 : SCR pp. 194 and 196). Having held this, the learned Chief Justice set out the argument of the intervenors thus : [Ahmedabad St. Xavier's (1974) 1 SCC 717 : AIR 1974 SC 1389 (1)], SCC p. 751, para 42)
"42.....xxx.........xxx............xxx...........xxx.............
25. This view was concurred in by Khanna, J. as follows : [Ahmedabad St. Xavier's (1974) 1 SCC 717 : AIR 1974 SC 1389 (1)], SCC p. 789, para 103)
"103........xxx.....xxx........xxx..........xxx......xxx"
26. Likewise, Jagan Mohan Reddy, J. also held Section 33-A(1)(b) inapplicable to minority institutions. The concurring judgment of Mathew, J. and Chandrachud, J. agreed with the learned Chief Justice that the aforesaid provision could not possibly apply to a minority institution as follows : (St. Xavier case (1974) 1 SCC 717 : AIR 1974 SC 1389 (1), SCC pp. 815-16, para 182)
"182........xxx.....xxx........xxx..........xxx......xxx"
27. A reading of the aforesaid judgment would leave no manner of doubt that if Respondent 4 is a minority institution, Rule 28 of the Rules for Management of Recognised Non-Government Institutions (Aided and Unaided) 1969, cannot possibly apply as there would be a serious infraction of the right of Respondent 4 to administer the institution with teachers of its choice."
(i) The last judgment which was placed before us for consideration by the learned senior counsel is S.K. Mohd. Rafique v. Contai Rahamania High Madrasah (2020) 6 SCC 689.
(i) While placing the said decision, it was argued by Mr. Mihir Thakore, the learned Senior counsel that the deviation in the said decision about the statement of law reiterated from time to time in the previous judgments of the Apex Court noted herein above, was on a wrong notion that in two earlier decisions, viz. Secy., Malankara Syrian Catholic College (2007) 1 SCC 386 and Sindhi Education Society (2010) 8 SCC 49 of the Apex Court, the dispute was pertaining to selection and appointment of Principal and teachers of unaided minority educational institutions. Placing paragraphs '44.3' and '44.4' of the judgment in S.K. Mohd. Rafique (2020) 6 SCC 689, it was vehemently argued by the learned Senior counsel that the principle of law stated in the aforesaid two decisions, viz. Secy., Malankara Syrian Catholic College (2007) 1 SCC 386 and Sindhi Education Society (2010) 8 SCC 49 was appreciated by the Apex Court on a wrong premise that the statement of law therein was pertaining to unaided minority institutions. The consistent view of the Apex Court about the right of minority to choose principal and teachers being the core of right to administer beginning from Ahmedabad St. Xavier's (1974) 1 SCC 717 : AIR 1974 SC 1389 (1) has been upheld from time to time and the said position of law has not been diluted even in TMA Pai Foundation 2002 (8) SCC 481, which approved the twin test laid down by Khanna, J. in Ahmedabad St. Xavier's (1974) 1 SCC 717 : AIR 1974 SC 1389 (1) that a balance be kept between two objectives - one to ensure the standard of excellence of institution and the other observing the right of minorities to establish and administer their educational institutions.
(ii) The submission is that the view taken by the Apex Court in S.K. Mohd. Rafique (2020) 6 SCC 689 with respect to the right of minority to appoint teachers in terms of the law laid down in TMA Pai Foundation 2002 (8) SCC 481 in no way affect the rights of the minority to select and appoint the teacher of their choice, so long as the selection is made of persons with minimum requisite qualifications.
(i) Summary of the arguments of Mr. Mihir Thakore, the learned senior advocate for the petitioners :-
(iii) It was then argued that in the name of excellence of education, it is not permissible to the State to provide such regulatory measures which interfere with the choice of minority institutions to select the teachers who believe in the religious ideology or the special characteristics of the concerned minority which would alone be able to imbibe in the students admitted in such educational institutions, what the minorities would like to preserve, profess and propagate. It was vehemently argued that as per the law stated by the Apex Court, maximum latitude shall have to be given to the management of the concerned minority institutions as they would normally be considered to be the best judges of what would help them in protecting and preserving the heritage, culture, script or such special features or characteristics of the concerned minorities. It was argued that even if subjects in the curriculum in aided minority institutions are purely secular in nature, 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.
(iv) It was submitted that the said view has been stated with affirmation by the Apex Court in Sindhi Education Society (2010) 8 SCC 49 where the dispute was with regard to the applicability of a rule of the Delhi School Education Rules, 1973 in the matter of selection of teachers to an aided minority educational institution. It was a linguistic minority institution and the Apex Court has categorically stated therein that the minority institutions who have faith and confidence in their committee or body consisting of persons selected by them should be given a right to choose their teachers. It was submitted that the only leverage for the State is to provide regulations which prevents maladministration.
(v) Regulatory measures are necessary for maintaining the educational character and content of minority institutions, which are necessary for ensuring orderly, efficient and sound administration. However, every linguistic minority may have its own socio economic cultural limitations. It is their constitutional right to conserve such culture and language and, thus, they would have a right to choose teachers who possess the eligibility and qualifications, as provided, without really being impressed by the fact of their religion and community. Its own limitations may not permit, for cultural, economic or other good reasons, to induct teachers from a particular class or community. The regulations though could be enforced against the general or majority category of the government-aided schools, but it may not be appropriate to enforce such condition against linguistic minority schools. This may amount to interference to the right of their 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.
(vi) By placing the above noted observations of the Apex Court in Sindhi Education Society (2010) 8 SCC 49, it was vehemently argued by the learned Senior counsel appearing for the petitioners that the statement of law in S.K. Mohd. Rafique (2020) 6 SCC 689 is on a wrong premise as noted in paragraph '44.4' that the issue whether the instructions could be issued to fill up the post of teachers in Sindhi Education Society (2010) 8 SCC 49 was with respect to an unaided minority institution.
(vii) The learned Senior counsel, thus, vehemently argued that in view of the statement of law restated and reaffirmed as laid down by the Apex Court beginning from Ahmedabad St. Xavier's (1974) 1 SCC 717 : AIR 1974 SC 1389 (1), Chandana Das (Malankar) (2020) 13 SCC 411, there is consistency in the view that any law made by the state which interferes in the right of the minority institutions to choose principal and teaching staff for their institution would be violative of Article 30(1) of the Constitution, inasmuch as, the exception providing power to regulate by the State for excellence of education would not be attracted in the case of selection of principal/teacher or teaching of a minority institution. It was, thus, submitted that TMA Pai Foundation 2002 (8) SCC 481 has not overruled Ahmedabad St. Xavier's (1974) 1 SCC 717 : AIR 1974 SC 1389 (1) and Very Rev. Mother Provincial (1970) 2 SCC 417 and it was a decision rendered in the matter of admission of students in aided minority providing professional education. S.K. Mohd. Rafique's (2020) 6 SCC 689 case cannot be read in any manner overriding Ahmedabad St. Xavier's (1974) 1 SCC 717 : AIR 1974 SC 1389 (1) or any subsequent judgment of the Apex Court on the issue.
18. With these contention, it was vehemently argued that in the instant case, the amendment of Section 40A inserted by Gujarat Act No. 25 of 1973 with effect from 08.11.1973 which exempted minority institutions from various provisions such as Sections 17(26), 34(2) & Section 35 by Gujarat Amendment Act No. 16 of 2021, resulting in applying the exempted provisions of the Act, 1972 to the minority institutions is in breach of Article 30(1) of the Constitution. The amended Section 40-A brought into force with effect from 23.03.2021 whereby the Gujarat Secondary Education Board constituted under the Act, 1972 and the State Government have been empowered to lay down procedure of appointment and termination of teaching and non-teaching staff of minority institutions, cannot be said to be compliant of Article 30(1) of the Constitution of India.
19. It is submitted that the Act no.16 of 2021 brought into force on 23.03.2021 has been enacted with the Statement and objects and reasons to substitute original Section 40-A referring to the judgment of the Apex Court in TMA Pai Foundation 2002 (8) SCC 481 stating that the regulations can be framed governing service conditions for teaching and other staff of minority education institution where the aid is provided by the State without interfering with the overall control over the management of the staff. The submission is that this Statement of Object and Reasons for bringing amendments in the year 2021 on the principles of law stated by the Apex Court in the decision rendered in the year 2002, is nothing but a misnomer and is an effort to cover-up the issue where the State Government is bent upon to destroy the minority character of the educational institutions in the State of Gujarat. It was vehemently argued that the Statement of Objects and reasons if read and understood carefully, would convey the intention of the State Government in providing regulations to control minority institutions on a wrong premise that by providing aid, it can frame regulations to govern the selection process of teaching and non-teaching staffs of minority educational institutions.
20. It was argued that in the fact situation of the present case, the nature of the impugned provisions demonstrates the effort of the State Government to control the process of selection and appointment of principal and teachers in the minority educational institutions by way of regulations framed under Section 35 of the Act 1972, which itself results in making the entire amended Section 40-A of the Act' 1972, and Regulations 2021 framed under Section 35 of the Act' 1972 by the State Government, as being void, being violative of Article 30(1) of the Constitution of India. A Writ to declare the same accordingly be issued while allowing the present Bunch of Writ petitions.
(ii) Summary of the arguments of Mr. Shalin N. Mehta, the learned senior advocate for the petitioners :-
21. Mr. Shalin N. Mehta, learned Senior counsel referring to the status of the petitioner in Writ petition No. 8896 of 2021 would submit that the petitioner institution therein is a linguistic minority being a Hindi Medium School as per the notification of the State Government. The Rules framed by the State Government in exercise of the powers under Section 35 of the Act' 1972 provided for inclusion of outsiders in the Scrutiny Committee and minority school selection committee, as per Rules 3 and 7 of the Selection Rules 2021 for Principal and teachers both. The constitution of Scrutiny Committee for Minority school as provided in Rule 3 has been placed before us to assert that out of total 11 members of the scrutiny committee, only 5 are insiders, that too they are to be nominated by the State Government. Remaining six members of the Scrutiny Committee are officials of the State Government and the Chairman is the Director of Schools, State of Gujarat. This provision of Scrutiny Committee in the selection rules per se is a proof of interference of the State Government in the rights of minority to choose teachers for their institutions.
22. It was argued that the stand of the petitioners is not that the State Government cannot frame Rules, if it wants to maintain the standards of education. However, there will be less restrictive alternatives by which same results may be achieved. The requirement of qualification, experience, aptitude test, manner of appointment has been laid down by the State Government, but providing constitution of selection committee who will make the selection, results in undue interference in the day-to-day affairs of the minority institution. Reasonableness test is to be cleared to save the selection rules. Rule 13 of the Rules, 2021 provides selection procedure which leaves a very limited choice to the minority schools to select teachers from the pool of eligible candidates. Instead of prescribing that only candidate placed at Sr. No. 1 in the final select list shall be issued appointment letter by the minority school trust/management, liberty should have been reserved with the management to choose a better candidate, who may not be at Sr. No. 1 in the select list but better suited to the minority character of the institution. Disqualification of candidates from selection by taking disciplinary action by the Scrutiny committee constituted under Rule 3, as provided in Rule 17, is a glaring example of interference in the selection process for the principal and teachers in a minority school. The provisions of Rules 20 and 21 providing for procedure of selection to the post of principal and teachers of minority institution are such that the State and District level officers of the Education Department of the State have been put in complete control of the process of selection. These provisions, thus, results in interference in the day to day affairs of the functioning of minority institutions. Much emphasis has been laid to the words used in para '50' of the judgment in the TMA Pai Foundation 2002 (8) SCC 481 wherein it is observed that the right to establish and administer comprises of the rights to appoint staff (teaching and non-teaching); and to take action if there is dereliction of duty on the part of any of the employee.
23. We may note, at this juncture, that the observations in paragraph '50' in TMA Pai Foundation 2002 (8) SCC 481, as placed before us, was with reference to private unaided non- minority educational institutions, where the Apex Court was considering the core components of the rights under Articles 19 and 26(a). While considering the issue of the autonomy of the private unaided educational institutions it was observed that the educational institutions soaring to great heights in pursuit of intellectual excellence should be kept free from unnecessary governmental controls. However, while saying so, at the same time, it was observed in paragraph '54' that the right to establish an educational institution can be regulated, but such regulatory measures must, in general, be to ensure the maintenance of proper academic standards, atmosphere and infrastructure (including qualified staff) and the prevention of mal-administration by those in charge of the management. It was held therein that in the case of private unaided educational institutions, authority granting recognition or affiliation can certainly lay down conditions for the grant of recognition or affiliation; these conditions must pertain broadly to academic and educational matters and welfare of students and teachers - but how the private unaided institutions are to run is a matter of administration to be taken care of by the Management of those institutions.
24. It was submitted before us that taking aid from the State though alter the above equation, but the extent to which the autonomy of an aided institution can be compromised or the difference in the extent of control between the unaided and aided institution can be culled out from the observations in paragraphs '71 to 73', wherein it is stated that while giving aid to private institutions, it will be permissible for the authority giving aid to prescribe by rules or regulations, the conditions on which the admission to private aided professional institutions (non-minority) can be controlled coupled with the reservation policy of the State. In such institutions, though by providing aid, the State Government or the State agency as a condition of the grant of aid, can put fetters on the freedom in the matter of administration and management of the institution. However, the principle stated therein that the autonomy of private aided institution would be less than that of an unaided institution cannot be applied in the case of the minority aided institutions.
25. The answer to question no.5(c) in paragraph 162-G of the majority decision in T.M.A. Pai Foundation 2002 (8) SCC 481 has been placed before us to submit that while answering the said question, it was provided as to what extent the statutory regime can regulate the facets of administration of a minority institution, both unaided and aided.
26. It was, thus, argued by the learned Senior counsel that the Rules 2021 framed for selection of principal and teachers of minority institutions under Section 35 of the Act' 1972, will have to satisfy the dual test as laid down in paragraph '122' in T.M.A. Pai Foundation 2002 (8) SCC 481 noted hereinbefore. The regulations will have to be meeting the criteria laid down in T.M.A. Pai Foundation 2002 (8) SCC 481 showing the necessity of the State to protect what in its view is in the interest of the State.
27. Referring to the observations in paragraph '175' of the Apex Court in Ahmedabad St. Xavier's (1974) 1 SCC 717 : AIR 1974 SC 1389 (1), it was submitted that the necessity of the State to protect what in its view is in the interest of the State cannot be perceived as the permissible criteria, because the State feel it necessary. As observed by the Apex Court therein if a legislature is left free to impose any regulation, which it thinks necessary to protect what in its view is in the interest of the State or Society, the right under Article 30(1) will cease to be a fundamental right.
28. It was further argued that the constitution of the Committees, in a two-tier system, provided for selection to the post of principal and teachers of a minority institution by impugned Rules of 2021 is pari materia to the general rules framed pertaining to majority institutions, namely : 2017 Rules for Principal and 2011 Rules for teachers. The contention is that the constitution of the committees in the Selection Rules' 2021 cannot be termed as a mere regulation, but it per se demonstrates actual active participation of the State in the exercise of the fundamental rights of the petitioners to appoint teachers in their institutions. Nothing in the Constitution or the judicial pronouncements pertaining to the field, permitted this kind of joint venture or active participation of the State in the selection resulting in interference in the day-to- day affairs of the institution. Policy makers though have been permitted to regulate, but they cannot control the selection process. Interference, in the instant case, is writ large on the face of the record as it starts at the stage of requisition of the applications and ends with the appointment letter. The entire power sharing of the State officers with the management in the selection process as per the Selection Rules 2021 makes them vulnerable, inasmuch as, they cannot pass the dual test of reasonableness/balancing test. Normally the regulation has to work only from outside, as a watchdog and not by power sharing by being part of the selection committee. This act of the State in framing Rules under Section 35 of the Act' 1972 is nothing but fraud on the constitution/being in excess of the statutory regulatory powers of the State.
29. It was argued that the observations in paragraph '21' in Malankara Syrian Catholic College (2007) 1 SCC 386 and paragraphs '63' in Sindhi Education Society (2010) 8 SCC 49 are the standards to test the extent of regulations by the State permissible in respect of the employees of minority educational institutions receiving aid from the State. The Rules 2021, subject matter of challenge herein, are crossing the lines drawn by the Apex Court in the said decisions and the offending provisions cannot be severed or reading down of the Rules is not possible; inasmuch as, the Rules on the face of it are infringement of the fundamental rights of the minorities enshrined in Article 30(1) of the Constitution of India.
30. Insofar as the judgment of the Apex Court in S.K. Mohd. Rafique (2020) 6 SCC 689 is concerned, it was argued that the said decision was rendered in the facts and circumstances of that case itself, wherein after exhaustive consideration of the statutory provisions in paragraphs '54' and '55', the Apex Court has reached at the conclusion that the constitution of the commission serves the objects and purpose of the establishment of minority institutions aided Madrasahs in the Madrasah Education System in the State. It was said in the facts of the said case that only those teachers who would be best suited to impart education in Madrasah Education System would be selected as a result of the said exercise, inasmuch as, predominant composition of the Commission is of educationists and persons having profound knowledge in Islamic Culture and Islamic Theology. The principles laid down therein cannot be applied to save the impugned selection rules for principal and teachers of minority institutions framed by the State of Gujarat.
(iii) Summary of the arguments of Mr. Mihir Joshi, the learned senior counsel :-
31. Mr. Mihir Joshi, leaned senior counsel for the petitioners adding to the above-noted arguments made by Mr. Mihir Thakore and Mr. Shalin N. Mehta, focused on the amendment in the Act' 1972 brought for application of Section 34(2) and Section 35 of the Act' 1972, and would submit that the minority and non-minority institutions are to be kept at par as far as reasonable restrictions within the parameters of Article 19(1)(g) are concerned. Minority and non-minority or the majority institutions form two separate classes. Autonomy of minority institutions though is not absolute and subject to reasonable restrictions permitted within the scope of Article 19(1)(g) of the Constitution, but the right of minorities to maintain the minority character of the institutions established by it is absolute in view of Article 30 and cannot be interfered with. Autonomy is an important aspect of the right to make its decision by the body constituted by the minority to manage the institutions established by it. The decision making authority, i.e. management of minority institutions though can be regulated by permissible means, but it cannot be replaced.
32. Elaborating these submissions, the learned senior counsel has taken us through the legislative history of the principal enactment viz. Gujarat Secondary Education Act, 1972 (Gujarat Act 18 of 1973). Placing the judgment of the Apex Court in Bharat Sevashram Sangh v. State of Gujarat (1986) 4 SCC 51, wherein the constitutional validity of the principal Act of 1972 was subjected to challenge, it was submitted before us that one of the issues before the Apex Court was about the Presidential assent. While examining the same, it was noted in paragraph '6' thereof that when the Bill was presented to the Governor of Gujarat after it was passed by the State Assembly, the Governor reserved it for the consideration of the President under Article 200 of the Constitution and, accordingly, the Bill was referred to the President. During discussion on the Bill, it was transpired that the Bill did not exclude institutions established or administered by the minorities from their scope and hence, the provisions were repugnant to Article 30 of the Constitution. Consequently, the bill was suitably amended by promulgating of an Ordinance No. 6 of 1973, which was forwarded for the instructions of the President under Article 213(1) of the Constitution. The draft of the Ordinance and the Bill were both considered by the President and the assent was, thereafter, granted to the Bill and the instructions as required by the proviso to Article 213 of the Constitution were issued for the promulgation of the said Ordinance, whereafter the Bill became law on its promulgation.
33. With these facts, with the aid of the observations of the Apex Court in Bharat Sevashram Sangh (1986) 4 SCC 51, it was vehemently argued by Mr. Mihir Joshi, the learned Senior counsel, that the proposed law as was understood by the President and was not accepted, as it would have resulted into interference in the rights of the minorities and hence modified, is now being promulgated in the year 2021 with the amendment of Section 40A. The provisions of Section 17(26), Section 34(2) and Section 35, which were expressly excluded from being applicable to an educational institution established and administered by a minority (religious and linguistic), have been brought in by the legislature with the impugned amendment.
34. The submission is that the legislative history indicates that the provisions of the Act' 1972 were enacted with the clear idea by the legislature that there shall be no fetters on the right of the minority. This historical fact was required to be looked into to understand and note from the legislative history that the legislative enactment cannot be permitted to treat two separate classes as being similar. By bringing in the Section 17(26), Section 34(2) and Section 35 with the amendment of Section 40A vide Amendment Act 16 of 2021, it is evident that the constitutional protection granted to the minority institutions under Article 30(1) is sought to be infringed. Treating two separate classes as same by the impugned amendment resulted in violation of Article 14, inasmuch as, for minorities the provisions of the Act, 1972 enacted for the majority/non-minority could not have been implemented.
35. The further submissions is that enabling power of the State under Article 15(5) to make any law prescribing special provisions for advancement of socially and educationally backward class of citizens or for Scheduled Castes or Scheduled Tribes cannot be extended to minority institutions. The Apex Court in Pramati Educational & Cultural Trust v. Union of India (2014) 8 SCC 1, has stated in categorical terms that minority character of the minority educational institutions referred to in Article 30(1) of the Constitution, whether aided or unaided, would be affected by admission of candidates belonging to reserved category and, hence, they are kept outside the enabling power of the State under Article 15(5) with a view to protect the minority institutions from the law made by the majority. The Constitution Bench in Ashoka Kumar Thakur v. Union of India & Ors. (2008) 6 SCC 1, has held that the minority educational institutions, by themselves, are a separate class and therefore, the exclusion of minority educational institutions from Article 15(5) falls within the scope of Article 14 of the Constitution of India.
36. Placing the Judgment of the Apex Court in P.A. Inamdar (2005) 6 SCC 537, it was argued that while clarifying the decision in T.M.A. Pai Foundation 2002 (8) SCC 481 that the State or other controlling authorities can 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, it was categorically stated that 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.
37. T.M.A. Pai Foundation 2002 (8) SCC 481 judgment explained in Islamic Academy of Education v. State of Karnataka (2003) 6 SCC 697, is reiteration of law that there is a clear distinction between minority and non-minority educational institutions made by Article 30(1), in the fundamental rights conferred by Article 19(1)(g) of the Constitution. In the opinion of S.B. Sinha, J. in Islamic Academy of Education (2003) 6 SCC 697, minority educational institutions has been conferred by Article 30(1) of the Constitution "certain additional protection" with the object of bringing the minorities on the same platform as that of non- minorities, so that the minorities are protected by establishing and administering educational institutions for the benefit of their own community, whether based on religion or language.
38. The Apex Court in P.A. Inamdar (2005) 6 SCC 537 has considered the interrelationship of Articles 19(1)(g), 29 and 30 of the Constitution of India and has considered the difference, if any, in the context of minority educational institutions, if they are aided or unaided or if they seek recognition or affiliation. The answer to the said issue in paragraphs '91' to '93' have been placed before us, which may be noted hereinunder for ready reference :-
"91. The right to establish an educational institution, for charity or for profit, being an occupation, is protected by Article 19(1)(g). Notwithstanding the fact that the right of a minority to establish and administer an educational institution would be protected by Article 19(1)(g) yet the founding fathers of the Constitution felt the need of enacting Article 30. The reasons are too obvious to require elaboration. Article 30(1) is intended to instil confidence in minorities against any executive or legislative encroachment on their right to establish and administer educational institution of their choice. Article 30(1) though styled as a right, is more in the nature of protection for minorities. But for Article 30, an educational institution, even though based on religion or language, could have been controlled or regulated by law enacted under clause (6) of Article 19, and so, Article 30 was enacted as a guarantee to the minorities that so far as the religious or linguistic minorities are concerned, educational institutions of their choice will enjoy protection from such legislation. However, such institutions cannot be discriminated against by the State solely on account of their being minority institutions. The minorities being numerically less qua non-minorities, may not be able to protect their religion or language and such cultural values and their educational institutions will be protected under Article 30, at the stage of law- making. However, merely because Article 30(1) has been enacted, minority educational institutions do not become immune from the operation of regulatory measures because the right to administer does not include the right to maladminister. To what extent the State regulation can go, is the issue. The real purpose sought to be achieved by Article 30 is to give minorities some additional protection. Once aided, the autonomy conferred by the protection of Article 30(1) on the minority educational institution is diluted as provisions of Article 29(2) will be attracted. Certain conditions in the nature of regulations can legitimately accompany the State aid.
92. As an occupation, right to impart education is a fundamental right under Article 19(1)(g) and, therefore, subject to control by clause (6) of Article 19. This right is available to all citizens without drawing a distinction between minority and non- minority. Such a right is, generally speaking, subject to the laws imposing reasonable restrictions in the interest of the general public. In particular, laws may be enacted on the following subjects : (i) the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business; (ii) the carrying on by the State, or by a corporation owned or controlled by the State of any trade, business, industry or service whether to the exclusion, complete or partial of citizens or otherwise. Care is taken of minorities, religious or linguistic, by protecting their right to establish and administer educational institutions of their choice under Article 30. To some extent, what may be permissible by way of restriction under Article 19(6) may fall foul of Article 30. This is the additional protection which Article 30(1) grants to the minorities.
93. The employment of expressions "right to establish and administer" and "educational institution of their choice" in Article 30(1) gives the right a very wide amplitude. Therefore, a minority educational institution has a right to admit students of its own choice, it can, as a matter of its own free will, admit students of non-minority community. However, non-minority students cannot be forced upon it. The only restriction on the free will of the minority educational institution admitting students belonging to a non-minority community is, as spelt out by Article 30 itself, that the manner and number of such admissions should not be violative of the minority character of the institution."
39. It was held in P.A. Inamdar (2005) 6 SCC 537 that Articles 29 and 30 can be read as a protection and/or a privilege to a minority. The law laid down in T.M.A. Pai Foundation 2002 (8) SCC 481 has been reiterated by stating that the State may prescribe a reasonable regulations to ensure the excellence of the educational institutions to be granted aid or to be recognized and 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, but there is a dividing line and that is 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 of their choice. 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. The recognition of a minority institution by the State and the regulations can neither aimed at nor has the effect of depriving institution of its minority status.
40. The submission, thus, is that the legal position from the judicial pronouncements about the rights of minority institutions protected under Article 30(1) of the Constitution is clear that the aided minority institutions and aided non-minority educational institutions cannot be treated at par and the same standards of control or regulation cannot be applied to them, inasmuch as, the special rights or "certain additional protection" granted with the object of protection of minority character of the educational institutions shall have to be given due consideration. The management of the minority institution has to be given due leverage or freedom to administer educational institutions for the benefit of their own community and there cannot be any external controlling agency regulating day-to-day affairs of the minority institutions.
41. It was, thus, argued by Mr. Joshi, learned Senior counsel for the petitioners that in the above legal perspective, the enabling provisions under Section 34(2) and Section 35 of the Act' 1972 which have been made applicable to the minority institutions by virtue of amendment of Section 40-A, when analyzed, it is clear that these provisions are sought to be applied uniformly to two different classes, viz. minority and non-minority or majority institutions. The legislative history of principal enactment of the Act' 1972 indicates that the legislature was conscious that same policy principles cannot apply to both minority and majority and hence, recommended for amendment in the Bill to exclude minority educational institutions from the purview of the provisions regulating the affairs of educational institutions such as selection and appointment of teachers and non-teaching staffs. The amendment of Section 40A, to bring in the educational minority institutions within the purview of the enabling provisions under Section 34(2) and Section 35 conferring controlling powers to the State, is, thus, clearly hit by Article 30(1) of the Constitution and is to be declared as ultra vires to the Constitution.
42. Adding to the above, it was argued that the rule making powers conferred on the State by Section 35 of the Act' 1972 extended to minority institutions is unfettered, uncontrolled or unguided. The Act does not provide any guidance or instructions to the State Government, the executive authority, as to how and in what manner rule making power will be exercised by the State Government. The language of Section 35 conferring very wide powers to the State Government to legislate in the matter of minority educational institutions suffers from the vice of excessive delegation of power. The discretion should not be so wide that it is impossible to discern its limits. The boundaries within which the power can be exercised is indefinite conferring powers on the administrative authority to make rules in an unguarded manner. The rule making power, if delegated to the administrative authority, must sub-serve the object and purpose of the Act. The power to prescribing rules to regulate the minority educational institutions as provided in Section 35 being vague is prone to be exercised or transgressed beyond permissible boundaries of valid delegation.
43. The observation in paragraph '8' of the Apex Court in Hamdard Dawakhana v. Union of India 959 SCC OnLine SC 38 has been placed before us to submit that the mischief rules in the said decision provides a guideline as to how to examine the validity of an enactment, and reads as under :-
"8. Therefore, when the constitutionality of an enactment is challenged on the ground of violation of any of the articles in Part III of the Constitution, the ascertainment of its true nature and character becomes necessary i.e. its subject-matter, the area in which it is intended to operate, its purport and intent have to be determined. In order to do so it is legitimate to take into consideration all the factors such as history of the legislation, the purpose thereof, the surrounding circumstances and conditions, the mischief which it intended to suppress, the remedy for the disease which the legislature resolved to cure and the true reason for the remedy; Bengal Immunity Company Ltd. v. State of Bihar [(1955) 2 SCR 603, 632 & 633]; R.M.D. Chamarbaughwala v. Union of India [(1957) SCR 930, 936]; Mahant Moti Das v. S.P. Sahi [AIR (1959) SC 942, 948]."
44. Further, the decision of the Apex Court in the State of W.B. v. Anwar Ali Sarkar AIR (39) 1952 SC 75, has been placed before us to argue that the Apex Court has frowned on the enactment therein which has completely ignored the principle of classification under the Criminal Procedure Code by providing a procedure, which is less advantageous to the accused than the ordinary procedure. The discrimination was quite evident and the enactment in implementation, execution of which resulted in discriminatory treatment to a particular case or classes of persons or cases was not allowed to stand. It was observed therein that it was a case of insidious discrimination incorporated in the Act itself.
45. It was argued by the learned Senior counsel that the Apex Court has clarified therein that the discrimination may not appear in the statute itself, but may be evident in the administration of law. If uncontrolled or unguided power is conferred without any reasonable or proper standards or limits being laid down in the enactment, the statute itself may be challenged and not merely the particular administrative act. The validity or invalidity of a statute often depends on how it is construed and applied. It may be valid when given a particular application and invalid when given another. In the instant case, the fact that Section 35 of the Act, 1972 is a general provision applicable to all class of persons, it cannot be said or expected that it cannot discriminate in favour of or against any particular case or classes of persons or cases. The unfettered discretion given to the executives without laying down any standard or rules of guidance to make use of the provisions, itself resulted in infringement of the equality doctrine enshrined in Article 14 of the Constitution of India.
46. On this principle, it was argued that the provisions of Section 35 of the Act, 1972 applied by the amendment of Section 40-A by the Amendment Act 16 of 2021 being a general provision without any guidance conferring unfettered discretion on the State executives to frame rules providing procedure for selection of principal and teachers of minority institutions, suffers from excessive delegation of legislative authority amounting to its abdication, inasmuch as, it gives unfettered discretion to the executive to make use of the provision itself, and, thus, an infringement of Article 14 of the Constitution. On this ground as well, the said provisions of the Act' 1972 applied to the minority institutions by way of the impugned amendment of 2021, cannot withstand the twin test of reasonableness laid down in T.M.A. Pai Foundation 2002 (8) SCC 481.
47. The next argument is to challenge the validity of the Rules, 2021 framed for recruitment of principal/teachers in the minority educational institutions in the State of Gujarat. It was submitted that the Scrutiny committee prescribed in Rule 3(2) comprised completely of outsiders and a Government body prescribed at the stage of scrutiny to decide the pool for selection of teachers itself impinges the minority right. Prescribing total marks allocated for preparation of pool of eligible teachers by the scrutiny committee and selection of teacher by the Minority school selection committee is the proof of control of the State in the whole selection process, inasmuch as, there is nothing left actually to the discretion of the minority institutions in the matter of making selection of principal and teachers of their choice, to upkeep the ethos, culture and tradition of the minority (both religious and linguistic). The provision of the Rules leaving only 40 marks to the discretion of the minority school selection committee has further been distributed amongst the members of the committee, which includes outsiders. Further, there is a mandate in the rule that only the first placed candidate in the merit list would be appointed which itself is a step beyond the permissible limit of reasonable restrictions as it results in completely displacing the decision making authority thereby affecting the autonomy of minority institutions.
48. It was vehemently argued that the provisions for making selection prescribed in impugned Rules' 2021, affects the decision making process, i.e. the actual decision and, thus, infringing the rights of the minorities. There is a fine distinction between the infringement and regulation. What affects the decision making process or actual decision is an infringement, whereas anything which would strengthen the decision making process would be valid as regulation with reasonable restriction.
49. In support of this submission, reliance is placed on the judgment of the Apex Court in Rev. Father W. Proost (1969) 2 SCR 73, to submit that Section 48A of the Bihar Universities Act, 1962 which provided for establishment of University Service Commission for affiliated colleges not belonging to the State Government has been held to be a provision, which completely took away the autonomy of the governing body of the college and virtually vested the control of the college in the University Service Commission and, thus, was held to be violative of the protection guaranteed to the minorities educational institutions under Article 30(1) of the Constitution. It was held therein that the language of Article 30(1) is wide and must receive full meaning. Any attempts to whittle down the protection granted therein cannot be allowed to sustain. The Court may not enlarge the protection but it cannot reduce a protection naturally flowing from the words of the Constitution in Article 30(1) thereof.
50. The decision of the Apex Court in D.A.V. College v. State of Punjab (1971) 2 SCC 269 has been placed to submit that noticing the above observation in Rev. Father W. Proost (1969) 2 SCR 73, it was stated by the Apex Court therein that while the university was empowered to prescribe by regulations governing the service and conduct of teachers which was enacted in the larger interests of the Institutions to ensure their efficiency and excellence; the nature of the infringement of the right, if any, under Article 30(1) will depend on the actual purpose and import of the ordinance/regulations when made and the manner in which it is likely to affect the administration of the educational institution.
51. Placing the decision in Gandhi Faiz-e-am-College v. University of Agra (1975) 2 SCC 283, wherein the Apex Court considered the validity of the statute 14-A framed by the University being an invasion of the fundamental right guaranteed to the minority community under Art. 30 of the Constitution of India, it was argued that it was observed therein referring to previous decisions in Ahmedabad St. Xavier's (1974) 1 SCC 717 : AIR 1974 SC 1389 (1), Rev. Father W. Proost (1969) 2 SCR 73 and D.A.V. College (1971) 2 SCC 269 that in all those cases, the administrative autonomy was imperilled transgressing purely regulatory limits. Mathew, J. in his dissenting voice, has observed that the determination of the composition of the body to administer the educational institution established by a religious minority must be left to the minority as that is the core of the right to administer. Regulations to prevent maladministration by that body are permissible. As the right to determine the composition of the body which will administer the educational institution is the very essence of the right to administer guaranteed to the religious or linguistic minority under Article 30(1), any interference in that area by an outside authority cannot be anything but an abridgment of that right. The religious or linguistic minority must be given the freedom to constitute the agency through which it proposes to administer the educational institutions established by it as that is what Article 30(1) guarantees. The observations in paragraph '182' Ahmedabad St. Xavier's (1974) 1 SCC 717 : AIR 1974 SC 1389 (1) was noted to record therein that the said observations cannot be interpreted to mean that the Principal and the Senior-most member of the staff are required to be included in the managing committee of the college in question.
52. It was, thus, argued vehemently that inclusion of outsiders in the selection committee for appointment to the post of Principal/teacher of the minority institutions in the State of Gujarat is a clear case of invasion in the rights of the minorities to administer their institution.
53. With respect to the judgment of the Apex Court in S.K. Mohd. Rafique (2020) 6 SCC 689, it was argued that the said decision was rendered in the facts of that case before the Apex Court and cannot be read and applied herein as a statement of law of the Apex Court. It is submitted that even in S.K. Mohd. Rafique (2020) 6 SCC 689, the Apex Court has noted the law discussed in D.A.V. College (1971) 2 SCC 269 in paragraph '22' and the judgment in Rev. Father W. Proost (1969) 2 SCR 73 in paragraph '20' without any dissent. Both these decisions are five (5) Judge's Bench whereas S.K. Mohd. Rafique (2020) 6 SCC 689 is a two (2) Judge's judgement, wherein the law stated in D.A.V. College (1971) 2 SCC 269 and Rev. Father W. Proost (1969) 2 SCR 73 have been restated with approval with the discussion in paragraph '54'. Looking to the nature of the statutory provision under challenge therein, the Apex Court has, however, upturned the challenge. The decision in S.K. Mohd. Rafique (2020) 6 SCC 689 in no way can be read against the petitioners herein.
54. Much emphasis has further been laid on the observations of Fazal Ali, J. in All Saints High School v. Govt. of A.P. (1980) 2 SCC 478 to argue that the terms in which Article 30 is couched are absolute and unconditional as compared to Article 19 which is hedged in by reasonable restrictions which may be imposed by the State in public interest. In a way, the fundamental right contained in Article 30 is more effective and wider than the fundamental rights contained in Part III of the Constitution. Three important tests which would determine whether or not the action of the government amounts to interference with the management of the institution as laid down in Very Rev. Mother Provincial (1970) 2 SCC 417 have been noted in paragraph '34' therein.
55. The submission is that the validity of the Rules'2021 framed by the State, in the instant case, if decided on the anvil of the test prescribed in the above decisions, it cannot withstand the scrutiny and would fall foul of Article 30(1) of the Constitution.
56. The observations in paragraphs '64' and '65' of the decision in All Saints High School (1980) 2 SCC 478 have been pressed into service to argue that the impugned Act' 2021 passed by the State herein, which took within its sweep even the minority institutions, without laying down any rules, regulations governing the conditions of service of the teachers of such institution providing any guidelines on the basis of which the rules could be made, is found to be suffering from a serious lacuna, which makes it completely violative of Article 30 of the Constitution. It was, thus, argued that on the same analogy, the validity of Section 40A by which the general provisions of Section 35 of the Act, 1972 have been applied, in the case of minority institutions, is to be decided and once it is demonstrated that the legislature while empowering the State to frame Rules, has not prescribed any guidelines or the power of the State to delegate is not circumscribed by constitutional limits, the impugned provision would result in causing infringement of the rights of minority. The enabling enactment must provide what could be the extent of restrictions permissible in case of minority by prescribing area within which the State Government can frame regulations.
57. Moreover, the application of same enactment which governs educational institutions run by the majority to regulate the minority institutions is itself a ground of holding the amended Section 40-A by Gujarat Act No. 16 of 2021 and the Rules' 2021 framed thereunder for recruitment of principal and teachers in minority educational institutions, being ultra vires to Articles 29 and 30 of the Constitution.
(iv) Summary of the arguments of Mr. N.K. Majmudar, the learned counsel :-
58. Shri N.K. Majmudar, learned advocate adding to the abovenoted submissions made by the learned senior counsels would submit that he has perused the provisions of the Intermediate Education Act, 1921 framed by the State of U.P. wherein Section 16-F provides for constitution of selection committee for the selection of candidates for appointment as Head of an institution. Section 16-E prescribes the manner in which the Head of the institution and teachers of the institution shall be appointed by the Committee of management. However, Section 16FF is the specific provision saving the rights of the minority institutions by providing a separate constitution of the selection committee for appointment of a Head of the institution or a teacher of an institution established and administered by the minority as referred to in Article 30(k)(1) of the Constitution of India. This provision leaves discretion to the Committee for management of minority institutions by providing that the selection committee shall consist of five persons including its Chairman nominated by the Committee of management. Only with respect to one of the members of the selection committee, in the case of appointment of Head of an institution, it is provided therein that an expert be selected by the Committee of management from the panel of experts prepared by the Director and in the case of appointment of a teacher, one member shall be the Head of the institution concerned.
59. Referring to the judgment of the Apex Court in T.M.A. Pai Foundation 2002 (8) SCC 481, it was argued that though the right conferred under Article 30(1) is not absolute and the regulations can be laid down in national interest, however, day to day management of the institution cannot be related to national interest. For selection of teachers, the minimum qualification, etc. can be prescribed, but the Rules prescribing the criteria as to how to judge a candidate; who is the most suitable; whom to select; how to select; who will select, etc. should be left to the management of the institution.
60. With the amendment of Section 40A, by application of Sections 17, 26, 34(2) and 35, the earlier excluded provisions have now been made applicable conferring power on the Education Board constituted under the Act' 1972 of the State to prescribe regulations and rules to interfere in the day to day management of the minority institution. There is no justification for inclusion of the said provisions in the garb of the decision of the Apex Court in T.M.A. Pai Foundation 2002 (8) SCC 481 after 39 years. The amendments are aimed at taking away all the rights of the minority institutions and, therefore, cannot be sustained.
(v) Further arguments :-
61. Mr. Mihir Thakore, learned senior counsel for the petitioners further adding to the grounds of challenge would argue that the provisions prescribing Teachers Aptitude Test as one of the qualification of eligibility for appointment to the post of Principal and teachers in the minority institutions in the State of Gujarat, is another reason to hold the selection Rules' 2021 unconstitutional. In support of this submission, much emphasis has been laid to the observations in paragraph '55' in Pramati Educational & Cultural Trust (2014) 8 SCC 1 to contend that the Right to Education Act, 2009 has been held inapplicable to the minority schools, aided or unaided, by holding that the right of the minorities under Article 30(1) of the Constitution will be abrogated. Insofar as, the Act 2019, if it is made applicable to the minority schools referred in Article 30(1) of the Constitution it has to be held to be ultra vires the Constitution.
62. Subsequent thereto, the Bombay High Court in the judgment and order dated 02.11.2023 in Writ petition No. 6894 of 2023 has held that the requirement of Teachers Eligibility Test (TET) as a pre- condition for appointment of teachers in the school cannot be imposed in respect of teachers appointed in the minority institutions as it would impose an embargo on the rights of the minority institutions to appoint teachers of their choice. It was argued that the Bombay High Court has also taken note that once the RTI Act, 2009 itself is not applicable, there is no question of applicability of the guidelines framed under the said Act to restrict the choice of the minority to choose teachers who would be found eligible in the Teachers Eligibility Test. Same view has been taken by the Madras High Court in Writ petition No. 32873 of 2017 decided on 21.04.2022.
63. A judgment of the Madras High Court dated 25.09.2024 has been placed before us to argue that the UGC Regulations, 2010 prescribing selection of faculties in the cadre of Asst. Professor to minority institutions has been held to be inapplicable to such institutions, for two reasons; one by virtue of their minority status and another in view of their autonomous character.
64. It was, thus, argued vehemently that the question is as to whether the State can provide for requirement of passing a test of eligibility for selection of teachers and principal of minority institutions, when the Apex Court in Pramati Educational & Cultural Trust (2014) 8 SCC 1 has clarified that the provisions of the RTI Act, 2009 cannot apply to the minority institutions. It was submitted that the concept of Teachers Aptitude Test (TAT) has been brought in by the regulations framed by the National Council for Teachers, a regulatory body constituted to ensure strict implementation of the RTI Act, 2009. The selection rules prescribing eligibility qualification by including Aptitude test [(HMAT & TAT), in the instant case] further impinges the rights of minorities. To sum- up, it was argued that the law laid down in Ahmedabad St. Xavier's (1974) 1 SCC 717 : AIR 1974 SC 1389 (1) has not been whittled down or diluted in T.M.A. Pai Foundation 2002 (8) SCC 481, which mainly deals with admissions and not appointment though certain observations therein are pertaining to appointment of teachers.
65. To sum up, it was vehemently argued that the Nine (9) Judges Bench judgement in Ahmedabad St. Xavier's (1974) 1 SCC 717 : AIR 1974 SC 1389 (1) lays down the guidelines as to how the provisions of Regulations will be tested. In Ahmedabad St. Xavier's (1974) 1 SCC 717 : AIR 1974 SC 1389 (1), the provisions of the Gujarat University Act whereby the representative(s) of the University was/were included in the selection committee, was struck down. T.M.A. Pai Foundation 2002 (8) SCC 481 is in fact in approval of the law laid down in Ahmedabad St. Xavier's (1974) 1 SCC 717 : AIR 1974 SC 1389 (1) and the observations in T.M.A. Pai Foundation 2002 (8) SCC 481 of "public interest" or "national interest" cannot be applied, out of the context, to dilute the principles in Ahmedabad St. Xavier's (1974) 1 SCC 717 : AIR 1974 SC 1389 (1). Aided and unaided institutions have the same rights and autonomy and aided institutions cannot be discriminated by conferring power upon the State to regulate beyond the circumscribed limits laid down in T.M.A. Pai Foundation 2002 (8) SCC 481 and Ahmedabad St. Xavier's (1974) 1 SCC 717 : AIR 1974 SC 1389 (1). Any contrary observations in S.K. Mohd. Rafique (2020) 6 SCC 689 would be distinguishable.
E. ARGUMENTS OF LEARNED ADVOCATE GENERAL :-
66. The learned Advocate General has taken us through the Statement of Objects and Reasons in bringing the Gujarat Act No. 16 of 2021, the amended Section 40A, and the Rules framed under Section 35 of the Act' 1972, to submit that if the Rules 3, 6, 10 and 11 of the Rules' 2021, are read in juxtaposition to each other, it is clear that the Rules only prescribe the selection criteria and procedure to be adopted by the Scrutiny committee under Rule 3 and the Minority school selection Committee constituted under Rule 7. A reading of Rule 7 and Rule 13 together with Appendix - I and Appendix - II to the Rules make it clear that in scrutinizing, the scrutiny committee constituted under Rule 3 is only required to ensure that the candidates placed in the eligibility list fulfill the requisite eligibility criteria of educational qualification in accordance with the Act, 1972 and the Gujarat Secondary and Higher Secondary Education Regulations, 1974 as amended from time to time, as is clear from Rule 5 read with Appendix - I. The choice to select a suitable candidate for the post of principal or teacher from amongst the list of eligible candidates prepared by the scrutiny committee is left entirely to the Minority schools selection committee, which comprises of the majority of members from the institution concerned and chaired by the nominee of the Management of the concerned school.
67. It was urged that the provisions of Rules, 2021 for selection to the post of principal and teachers became imperative for the problems found by the State in the inspections carried out of the educational institutions where ghost teachers were appointed to defray the public money.
68. The Rules of 2021 framed by the State Government in exercise of the powers conferred upon it under Section 35 of the Act, 1972 are aimed at prescribing fair and transparent process for effecting merit based selection; facilitation of smooth administration of the institution by a Principal/teacher selected through such process; for prevention of mal-administration. The submission is that the regulations are in the interest of both the teachers and the students with the aim to achieve excellence and uniformity in the standards of education. All these aspects of making the provisions are in the National interest. The provision for Scrutiny committee in Rule 3 has been incorporated to ensure a fair and transparent process by ensuring that the advertisement of the vacancy is made in a proper manner. Out of 100 marks, weightage to be allocated by the Scrutiny committee, for preparation of school-wise eligibility list of 15 candidates, the criteria of marks for which has been provided in Appendix I and II, which is to be adhered to.
69. The Scrutiny committee upon preparation of the eligibility list of 15 candidates, is required to forward the same to the Minority school selection committee for personal interview, which comprises of total 40 marks. The final selection list is to be prepared by the Minority School Selection Committee for the purpose of appointment after personal interview, for which, standard norms provided in Rule 13(3) are to be followed by the Minority school selection committee, which has been prescribed to bring uniformity and transparency in the selection process. In the constitution of the Minority school selection committee, in case of appointment of principal, only two are outsiders, viz. an Academician outside of Taluka and one principal of any grant-in-aid registered institution, which too are to be suggested or nominated by the Management of the concerned minority school. Only one Academician outside of Taluka that too suggested by the concerned Minority School Management is to be included, for selection of teacher.
70. It was, then, submitted by the learned Advocate General that the Member Secretary of the Minority school selection committee, whose presence is compulsory for the meeting of the said committee for the purpose of selection only plays the role of an Observer and has no say in the selection process. With this arrangement in the Rules, 2021, the State has struck a balance between the rights of the minority institutions and its power to regulate in the interest of teachers and students, in order to achieve excellence and uniformity in the standards of education in the State of Gujarat. The constitution of Minority school selection committee prescribed in the Rules 2021 for recruitment of principal and teachers in minority institutions is nothing but an alter ego of the Committee of Management of concerned minority institution.
71. Coming to the legal principles pertaining to the field, the learned Advocate General has referred to the decision of the Apex Court in T.M.A. Pai Foundation 2002 (8) SCC 481 to refute the arguments of the learned counsels for the petitioners noted hereinbefore to submit that the amended provision of the Act' 1972 and the Rules' 2021 framed by the State thereunder cannot withstand the test of scrutiny laid down therein, are misplaced.
72. With reference to the decision of the Apex Court in S.K. Mohd. Rafique (2020) 6 SCC 689, Jesus and Mary College, Delhi v. University of Delhi 2006 SCC OnLine Del 1482 and Archdiocesan Board of Education v. Goa University 2022 SCC OnLine Bom 1196, it was argued that the selection committee consisting of outsiders even if appointed by the State Government for the purpose of maintaining transparency in the matter of appointment of principal and teachers in aided minority schools is legal and proper and the same in no way tinkers with the minority character of the institution and/or does not interfere with the day to day management of such institutions.
73. Placing reliance on the judgment of the Apex Court in the State of U.P. v. Abhay Nandan Inter College (2021) 15 SCC 600, it was argued that there is no distinction between the minority and non-minority institutions receiving aid and both category of institutions are bound by the conditions imposed for grant of aid. The Apex Court while observing so in Abhay Nandan Inter College (2021) 15 SCC 600, has taken note of its previous decision in S.K. Mohd. Rafique (2020) 6 SCC 689 that "Regulations framed in the pursuit of excellence of education in National interest", cannot be struck down.
74. Replying to the arguments of Mr. Mihir Joshi that the provisions of the Act, specifically Section 35 of the Act' 1972 suffers from excessive delegation of power, with the aid of the decision of the Apex Court in Kathi Raning Rawat v. State of Saurashtra (1952) 1 SCC 215, Jyoti Pershad v. Administrator for Union Territory of Delhi 1961 SCC OnLine SC 127, Consumer Action Group v. State of T.N. (2000) 7 SCC 425 and Vivek Narayan Sharma (Demonetisation Case-5 J.) v. Union of India (2023) 3 SCC 1 it was argued that there is a clear distinction between the provision to be ultra vires as delegation of power being excessive and the exercise of power by such delegatee to be arbitrary or illegal. The apprehension that the delegatee may exercise powers entrusted with it in an arbitrary manner cannot be a reason to hold the delegation of power itself being excessive.
75. It was submitted that the Apex Court in Consumer Action Group (2000) 7 SCC 425, while considering a catena of previous decisions has concluded that in spite of very wide power being conferred on the delegatee, a Section (Statutory provision) would still not be ultra vires, if guidelines could be gathered from the Preamble, Object and Reasons and other provisions of the Acts and Rules. In testing the validity of such provision, the Courts have to discover, whether there is any legislative policy, purpose of the statute or indication of any clear will through its various provisions, if there be any, then that by itself would be a guiding factor to be exercised by the delegatee. In such case, the exercise of power of such a delegatee is controlled through such policy and then it cannot be held that such a power is unbriddled or uncanalised. It was observed, thus :-
"18. The fast-changing scenario of economic, social order with scientific development spawns innumerable situations which the legislature possibly could not foresee, so the delegatee is entrusted with power to meet such exigencies within the inbuilt check or guidance and in the present case to be within the declared policy. So the delegatee has to exercise its powers within this controlled path to subserve the policy and to achieve the objectives of the Act. A situation may arise, in some cases where strict adherence to any provision of the statute or rules may result in great hardship, in a given situation, where exercise of such power of exemption is to remove this hardship without materially affecting the policy of the Act, viz., development in the present case then such exercise of power would be covered under it. All situations cannot be culled out, which have to be judiciously judged and exercised, to meet any such great hardship of any individual or institution or conversely in the interest of the society at large. Such power is meant rarely to be used. So far as decisions relied on by the petitioner, where the provisions were held to be ultra vires, they are not cases in which the Court found that there was any policy laid down under the Act. In A.N. Parasuraman (1989) 4 SCC 683 the Court held Section 22 to be ultra vires as the Act did not lay down any principle or policy. Similarly, in Kunnathat Thathunni Moopil Nair AIR 1961 SC 552 : (1961) 3 SCR 77. Section 7 was held to be ultra vires as there was no principle or policy laid down."
76. Further observations in paragraphs '19' to '21' of the said decision are also to be noted herein-under :-
"19. In this background we find the Preamble of the Act laid down:
"An Act to provide for planning the development and use of rural and urban land in the State of Tamil Nadu and for purposes connected therewith."
20. The Preamble clearly spells out the policy which is for planning and development of the use of the rural and urban land in the State. The Statement of Objects and Reasons also indicates towards the same, the relevant portion of which is quoted hereunder: "The Tamil Nadu Town Planning Act, 1920 (Tamil Nadu Act 7 of 1920) which is based on the British Town and Country Planning and Housing Act, 1909, has been in force in the State for nearly five decades. The said Act provides for matters relating to the development of towns to secure to their present and future inhabitants, sanitary conditions, amenity and convenience. It was felt necessary to make comprehensive amendments to the Act as the Act had several shortcomings and defects."
21. Not only "Preamble" and "Objects and Reasons" of the Act clearly indicate its policy but it is also revealed through various provisions of the enactment. Sub-section (13) of Section 2 defines "development" for carrying out any of the works contemplated in the regional and master plan etc. Section 9-C defines functions and powers of Metropolitan Development Authority, Section 12 refers to functions and powers of the appropriate planning authorities, Section 15 refers to regional planning. Section 16 is for preparation of land and building map, Section 17 refers to the master plans, Section 18 refers to new town development plan, Section 19 refers to the declaration of intention to make or adopt a detailed development plan, Section 20 refers to the contents of detailed development plan, Section 47 refers to use and development of land to be in conformity with the development plan, Section 48 refers to the restrictions on building and lands in the area of the planning authority. Each of them contributes for subserving the policy of the Act, and clearly declares the purpose of the Act. Hence Section 113 cannot be held to be unbridled, as the Government has to exercise its power within this guideline. Hence we hold Section 113 to be valid."
77. The observations in the decision of the Apex Court in Vivek Narayan Sharma (Demonetisation Case-5 J.) (2023) 3 SCC 1 (popularly known as "demonitisation judgement"), on the question answered by the majority on the power conferred under Sub-section (2) of Section 6 of the RBI Act being suffering from excessive delegation upon the Central Government, was placed before us to argue that there are various factors to be evaluated by the Court in a case of challenge to the statutory provisions from the vice of excessive delegation and the one is that if the legislative policy is enunciated with sufficient clearness or a standard is laid down, the courts should not interfere. No straitjacket formula can be laid down as to what guidance should be given or to what extent. The guidance given in a particular case will depend upon a consideration of the provisions of a particular Act with which the Court has to deal including its preamble. Thus, it will depend upon the circumstances of each Statute under consideration.
78. The broad guidelines noted in paragraphs '178 to 194' have been placed before us which is being extracted hereinunder :-
"178. This Court after considering various earlier cases including Hamdard Dawakhana (1968) 3 SCR 251 : AIR 1968 SC 1232 observed thus : (Birla Cotton, Spg. & Wvg. Mills case [MCD v. Birla Cotton, Spg. & Wvg. Mills (1968) 3 SCR 251 : AIR 1968 SC 1232], AIR p. 1244, paras 28-29)
"28. A review of these authorities therefore leads to the conclusion that so far as this Court is concerned the principle is well established that essential legislative function consists of the determination of the legislative policy and its formulation as a binding rule of conduct and cannot be delegated by the legislature. Nor is there any unlimited right of delegation inherent in the legislative power itself. This is not warranted by the provisions of the Constitution. The legislature must retain in its own hands the essential legislative functions and what can be delegated is the task of subordinate legislation necessary for implementing the purposes and objects of the Act. Where the legislative policy is enunciated with sufficient clearness or a standard is laid down, the courts should not interfere. What guidance should be given and to what extent and whether guidance has been given in a particular case at all depends on a consideration of the provisions of the particular Act with which the Court has to deal including its Preamble. Further it appears to us that the nature of the body to which delegation is made is also a factor to be taken into consideration in determining whether there is sufficient guidance in the matter of delegation. 29. What form the guidance should take is again a matter which cannot be stated in general terms. It will depend upon the circumstances of each statute under consideration; in some cases guidance in broad general terms may be enough; in other cases more detailed guidance may be necessary."
(emphasis supplied)
179. K.N. Wanchoo, C.J., speaking for himself and J.M. Shelat, J. held in Birla Cotton, Spinning and Weaving Mills (1968) 3 SCR 251 : AIR 1968 SC 1232 that where the legislative policy is enunciated with sufficient clarity or a standard is laid down, the courts should not interfere. What guidance should be given and to what extent and whether guidance has been given in a particular case at all depends on a consideration of the provisions of the particular Act with which the Court has to deal, including its Preamble. They further held that the nature of the body to which delegation is made is also a factor to be taken into consideration in determining whether there is sufficient guidance in the matter of delegation. The Court further held that what form the guidance should take is again a matter which cannot be stated in general terms. It will depend upon the circumstances of each statute under consideration. It further held that in some cases guidance in broad general terms may be enough, in other cases more detailed guidance may be necessary.
180. The Court further observed thus : Birla Cotton, Spinning and Weaving Mills (1968) 3 SCR 251 : AIR 1968 SC 1232, AIR p. 1245, para 33)
"33. The first circumstance which must be taken into account in this connection is that the delegation has been made to an elected body responsible to the people including those who pay taxes. The Councillors have to go for election every four years. This means that if they have behaved unreasonably and the inhabitants of the area so consider it they can be thrown out at the ensuing elections. This is in our opinion a great check on the elected Councillors acting unreasonably and fixing unreasonable rates of taxation. This is a democratic method of bringing to book the elected representatives who act unreasonably in such matters."
(Emphasis supplied)
181. It was thus found in Birla Cotton, Spinning and Weaving Mills (1968) 3 SCR 251 : AIR 1968 SC 1232 that the delegation was made to an elected body responsible to the people including those who pay taxes. It has been observed that if the Councillors behave unreasonably and the inhabitants of the area so consider it, they can be thrown out at the ensuing elections. As such, there is a great check on the elected Councillors acting unreasonably and fixing unreasonable rates of taxation. This is a democratic method of bringing to book the elected representatives who act unreasonably in such matters.
182. The Court further found that another guide or control on the limit of taxation is to be found in the purposes of the Act. After careful consideration of the various provisions of the Delhi Municipal Corporation Act, 1957, the Court held that the power conferred by Section 150 thereof on the Corporation is not unguided and cannot be said to be amounting to excessive delegation.
183. It will also be apposite to refer to the concurring judgment of S.M. Sikri, J., wherein he observed thus : Birla Cotton, Spinning and Weaving Mills (1968) 3 SCR 251 : AIR 1968 SC 1232, AIR p. 1266, para 111) "111. But assuming I am bound by authorities of this Court to test the validity of Section 113(2)(d) and Section 150 of the Act by ascertaining whether a guide or policy exists in the Act, I find adequate guide or policy in the expression "purposes of the Act" in Section 113. The Act has pointed out the objectives or the results to be achieved and taxation can be levied only for the purpose of achieving the objectives or the results. This, in my view, is sufficient guidance especially to a self-governing body like the Delhi Municipal Corporation. It is not necessary to rely on the safeguards mentioned by the learned Chief Justice to sustain the delegation."
(Emphasis supplied)
184. S.M. Sikri, J. in his concurring judgment in Birla Cotton, Spinning and Weaving Mills (1968) 3 SCR 251 : AIR 1968 SC 1232 also held that he found adequate guide or policy in the expression "purposes of the Act" in Section 113. He observed that the Act has pointed out the objectives or the results to be achieved and taxation can be levied only for the purpose of achieving the objectives or the results. In the view of his Lordship, this was sufficient guidance especially to a self-governing body like Delhi Municipal Corporation.
185. It will also be apposite to refer to the following observations of M. Hidayatullah, J., in his concurring judgment : Birla Cotton, Spinning and Weaving Mills (1968) 3 SCR 251 : AIR 1968 SC 1232, AIR pp. 1253-54, paras 56 & 58)
"56. ... The question always is whether the legislative will has been exercised or not. Once it is established that the legislature itself has willed that a particular thing be done and has merely left the execution of it to a chosen instrumentality (provided that it has not parted with its control) there can be no question of excessive delegation. If the delegate acts contrary to the wishes of the legislature the legislature can undo what the delegate has done. Even the courts, as we shall show presently, may be asked to intervene when the delegate exceeds its powers and functions. ...
***
58. ... To insist that the legislature should provide for every matter connected with municipal taxation would make municipalities mere tax collecting departments of the Government and not self-governing bodies which they are intended to be. The Government might as well collect the taxes and make them available to the municipalities. That is not a correct reading of the history of Municipal Corporations and other self-governing institutions in our country."
(Emphasis supplied)
186. Observing thus, M. Hidayatullah, J. also rejected the contention that provisions of Section 150 suffer from excessive delegation. His Lordship has observed that once it is established that the legislature itself has willed that a particular thing be done and has merely left the execution of it to a chosen instrumentality, there can be no question of excessive delegation. This is, however, subject to the proviso that the legislature has not parted with its control. It is observed that if the delegatee acts contrary to the wishes of the legislature, the legislature can undo what the delegate has done.
187. Another Constitution Bench of this Court in Gwalior Rayon Silk Mfg. (Wvg.) Co. [Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd. v. CST (1974) 4 SCC 98 : 1974 SCC (Tax) 226] was considering the validity of Section 8(2)(b) of the Central Sales Tax Act, 1956 on the ground that it suffered from the vice of excessive delegation. In the said case, H.R. Khanna, J., speaking for the majority, after surveying the earlier judgments of this Court including that in Birla Cotton, Spinning and Weaving Mills (1968) 3 SCR 251 : AIR 1968 SC 1232, observed thus : Gwalior Rayon Silk Mfg. (Wvg.) Co. (1974) 4 SCC 98 : 1974 SCC (Tax) 226, SCC pp. 108-09, para 13)
"13. It may be stated at the outset that the growth of the legislative powers of the Executive is a significant development of the twentieth century. The theory of laissez faire has been given a go-by and large and comprehensive powers are being assumed by the State with a view to improve social and economic well-being of the people. Most of the modern socio-economic legislations passed by the Legislature lay down the guiding principles and the legislative policy. The Legislatures because of limitation imposed upon by the time factor hardly go into matters of detail. Provision is, therefore, made for delegated legislation to obtain flexibility, elasticity, expedition and opportunity for experimentation. The practice of empowering the Executive to make subordinate legislation within a prescribed sphere has evolved out of practical necessity and pragmatic needs of a modern welfare State. At the same time it has to be borne in mind that our Constitution-makers have entrusted the power of legislation to the representatives of the people, so that the said power may be exercised not only in the name of the people but also by the people speaking through their representatives. The rule against excessive delegation of legislative authority flows from and is a necessary postulate of the sovereignty of the people. The rule contemplates that it is not permissible to substitute in the matter of legislative policy the views of individual officers or other authorities, however competent they may be, for that of the popular will as expressed by the representatives of the people."
188. The Court in Gwalior Rayon Silk Mfg. (Wvg.) Co. (1974) 4 SCC 98 : 1974 SCC (Tax) 226 observed that the growth of the legislative powers of the Executive is a significant development of the twentieth century. The theory of laissez faire has been given a go-by and large and comprehensive powers are being assumed by the State with a view to improve social and economic well-being of the people. It has been held that most of the modern socio-economic legislations passed by the Legislature lay down the guiding principles and the legislative policy. It is not possible for the Legislatures to go into matters of detail. Therefore, a provision has been made for delegated legislation to obtain flexibility, elasticity, expedition and opportunity for experimentation. It has been held that the practice of empowering the Executive to make subordinate legislation within a prescribed sphere has evolved out of practical necessity and pragmatic needs of a modern welfare State. It has been observed that the rule against excessive delegation of legislative authority flows from and is a necessary postulate of the sovereignty of the people. It has been held that the rule contemplates that it is not permissible to substitute in the matter of legislative policy the views of individual officers or other authorities, however competent they may be, for that of the popular will as expressed by the representatives of the people.
189. It has further been observed thus : Gwalior Rayon Silk Mfg. (Wvg.) Co. (1974) 4 SCC 98 : 1974 SCC (Tax) 226, SCC p. 109, para 15) "15. The Constitution, as observed by this Court in Devi Dass Gopal Krishnan v. State of Punjab AIR 1967 SC 1895 : (1967) 20 STC 430 [Devi Dass Gopal Krishnan v. State of Punjab] confers a power and imposes a duty on the legislature to make laws. The essential legislative function is the determination of the legislative policy and its formulation as a rule of conduct. Obviously it cannot abdicate its functions in favour of another. But in view of the multifarious activities of a welfare State, it cannot presumably work out all the details to suit the varying aspects of a complex situation. It must necessarily delegate the working out of details to the executive or any other agency. But there is danger inherent in such a process of delegation. An over-burdened legislature or one controlled by a powerful executive may unduly overstep the limits of delegation. It may not lay down any policy at all; it may declare its policy in vague and general terms; it may not set down any standard for the guidance of the executive; it may confer an arbitrary power on the executive to change or modify the policy laid down by it without reserving for itself any control over subordinate legislation. This self-effacement of legislative power in favour of another agency either in whole or in part is beyond the permissible limits of delegation. It is for a court to hold on a fair, generous and liberal construction of an impugned statute whether the legislature exceeded such limits."
(Emphasis supplied)
190. It has been held in Gwalior Rayon Silk Mfg. (Wvg.) Co. (1974) 4 SCC 98 : 1974 SCC (Tax) 226 that the essential legislative function is the determination of the legislative policy and its formulation as a rule of conduct. The legislature cannot abdicate its functions in favour of another. However, in view of the multifarious activities of a welfare State, it cannot presumably work out all the details to suit the varying aspects of a complex situation. It must, therefore, necessarily delegate the working out of details to the executive or any other agency. The Court also cautions about the danger inherent in the process of delegation. It observed that an overburdened legislature or one controlled by a powerful executive may unduly overstep the limits of delegation. It may not lay down any policy at all; it may declare its policy in vague and general terms; it may not set down any standard for the guidance of the executive; it may confer an arbitrary power on the executive to change or modify the policy laid down by it without reserving for itself any control over subordinate legislation. It has been held that it is for the court to hold on a fair, generous and liberal construction of an impugned statute to examine whether the legislature exceeded such limits.
191. We may gainfully refer to the following observations in the concurring judgment of K.K. Mathew, J. : Gwalior Rayon Silk Mfg. (Wvg.) Co. (1974) 4 SCC 98 : 1974 SCC (Tax) 226, SCC pp. 121-22, para 57) "57. Delegation of "law- making" power, it has been said, is the dynamo of modern Government. Delegation by the legislature is necessary in order that the exertion of legislative power does not become a futility. Today, while theory still affirms legislative supremacy, we see power flowing back increasingly to the executive. Departure from the traditional rationalisation of the status quo arouses distrust. The legislature comprises a broader cross-section of interests than any one administrative organ; it is less likely to be captured by particular interests. We must not, therefore, lightly say that there can be a transfer of legislative power under the guise of delegation which would tantamount to abdication. At the same time, we must be aware of the practical reality, and that is, that Parliament cannot go into the details of all legislative matters. The doctrine of abdication expresses a fundamental democratic concept but at the same time we should not insist that law-making as such is the exclusive province of the legislature. The aim of Government is to gain acceptance for objectives demonstrated as desirable and to realize them as fully as possible. The making of law is only a means to achieve a purpose. It is not an end in itself. That end can be attained by the legislature making the law. But many topics or subjects of legislation are such that they require expertise, technical knowledge and a degree of adaptability to changing situations which Parliament might not possess and, therefore, this end is better secured by extensive delegation of legislative power. The legislative process would frequently bog down if a legislature were required to appraise beforehand the myriad situations to which it wishes a particular policy to be applied and to formulate specific rules for each situation. The presence of Henry VIII clause in many of the statutes is a pointer to the necessity of extensive delegation. The hunt by Court for legislative policy or guidance in the crevices of a statute or the nook and cranny of its Preamble is not an edifying spectacle. It is not clear what difference does it make in principle by saying that since the delegation is to a representative body, that would be a guarantee that the delegate will not exercise the power unreasonably, for, if ex hypothesi the legislature must perform the essential legislative function, it is certainly no consolation that the body to which the function has been delegated has a representative character. In other words, if, no guidance is provided or policy laid down, the fact that the delegate has a representative character could make no difference in principle."
(Emphasis supplied)
192. Though the learned Judge in Gwalior Rayon Silk Mfg. (Wvg.) Co. (1974) 4 SCC 98 : 1974 SCC (Tax) 226 cautions against abdication under the guise of delegation, he also emphasises a necessity to be aware about the practical reality i.e. Parliament cannot go into the details of all legislative matters. The learned Judge observed that the aim of the Government is to gain acceptance for objectives demonstrated as desirable and to realise them as fully as possible. The learned Judge observed that there are many topics or subjects of legislation which are such that they may require expertise, technical knowledge and a degree of adaptability to changing situations which Parliament might not possess and, therefore, this end is better secured by extensive delegation of legislative power. It has been held that the legislative process would frequently bog down if a legislature were required to appraise beforehand the myriad situations to which it wishes a particular policy to be applied and to formulate specific rules for each situation. The Court further emphasised for a guidance for the delegate to exercise the delegated power.
193. This Court, in Registrar of Coop. Societies v. K. Kunjabmu (1980) 1 SCC 340 [Registrar of Coop. Societies v. K. Kunjabmu], while reversing the judgment [K. Kunhambu v. Registrar of Coop. Societies 1969 SCC OnLine Ker 20] of the Kerala High Court, which had held Section 60 of the Madras Cooperative Societies Act, 1932 to be unconstitutional on the ground of vice of excessive delegation, observed thus : (SCC pp. 342-43, para 3)
"3. ... Executive activity in the field of delegated or subordinate legislation has increased in direct, geometric progression. It has to be and it is as it should be. Parliament and the State Legislatures are not bodies of experts or specialists. They are skilled in the art of discovering the aspirations, the expectations and the needs, the limits to the patience and the acquiescence and the articulation of the views of the people whom they represent. They function best when they concern themselves with general principles, broad objectives and fundamental issues instead of technical and situational intricacies which are better left to better equipped full time expert executive bodies and specialist public servants. Parliament and the State Legislatures have neither the time nor the expertise to be involved in detail and circumstance. Nor can Parliament and the State Legislatures visualise and provide for new, strange, unforeseen and unpredictable situations arising from the complexity of modern life and the ingenuity of modern man. That is the raison d'etre for delegated legislation. That is what makes delegated legislation inevitable and indispensable. The Indian Parliament and the State Legislatures are endowed with plenary power to legislate upon any of the subjects entrusted to them by the Constitution, subject to the limitations imposed by the Constitution itself. The power to legislate carries with it the power to delegate. But excessive delegation may amount to abdication. Delegation unlimited may invite despotism uninhibited. So the theory has been evolved that the legislature cannot delegate its essential legislative function. Legislate it must by laying down policy and principle and delegate it may to fill in detail and carry out policy. The legislature may guide the delegate by speaking through the express provision empowering delegation or the other provisions of the statute, the Preamble, the scheme or even the very subject-matter of the statute. If guidance there is, wherever it may be found, the delegation is valid. A good deal of latitude has been held to be permissible in the case of taxing statutes and on the same principle a generous degree of latitude must be permissible in the case of welfare legislation, particularly those statutes which are designed to further the directive principles of State policy."
(Emphasis supplied)
194. This Court has observed in K. Kunjabmu [Registrar of Coop. Societies v. K. Kunjabmu41] that the executive activity in the field of delegated or subordinate legislation has increased in direct, geometric progression. The Court observed that Parliament and the State Legislatures are not bodies of experts or specialists. It is observed that the legislative bodies function best when they concern themselves with general principles, broad objectives and fundamental issues instead of technical and situational intricacies which are better left to better equipped full-time expert executive bodies and specialist public servants. It has been held that Parliament and the State Legislatures cannot visualise and provide for new, strange, unforeseen and unpredictable situations arising from the complexity of modern life and the ingenuity of modern man. It has been further reiterated that guidance could be found from various factors and once it is found, the delegation is valid. It has been held that a good deal of latitude has to be held to be permissible in the case of taxing statutes and welfare legislations.
79. Proceeding further, the learned Advocate General has given a comparison of the statutory provisions under challenge in almost all the above noted judgments of the Apex Court relied by the learned Senior counsels for the petitioners with the statute impugned herein, to argue that the statement of law in the said cases holding that there was an interference in the management of the minority institutions because of the statutory provisions, was in the nature of the provisions, subject matter of challenge therein.
80. As to the decisions in Very Rev. Mother Provincial (1970) 2 SCC 417; Ahmedabad St. Xavier's (1974) 1 SCC 717 : AIR 1974 SC 1389 (1); Rev. Father W. Proost (1969) 2 SCR 73; D.A.V. College (1971) 2 SCC 269; Gandhi Faiz-e-am-College (1975) 2 SCC 283, it was argued that all these decisions can be grouped together to understand that the statutory provisions under challenge therein were for altering the constitution of Governing body or the Managing Council and the decision of the Governing body were made subject to approval of the external agency. Insofar as the judgment of the Apex Court in All Saints High School (1980) 2 SCC 478, there the provision had empowered an external competent authority appointed by the State Government to take final decision on the dismissal, removal or reduction in rank or termination of teachers. In the decisions in N. Ammad (1998) 6 SCC 674, Board of Secondary Education and Teachers Training (1998) 8 SCC 555 and Secy., Malankara Syrian Catholic College (2007) 1 SCC 386, the issue was about imposing a candidate as a principal or teacher, by providing appointment on the basis of seniority. In Sindhi Education Society (2010) 8 SCC 49, the statutory provision mandated for appointment of a candidate applying reservation to minority institution. In Chandana Das (2020) 13 SCC 411, the controversy was whether the petitioner institution therein had impliedly surrendered its minority status because of grant by the State.
81. All these judgments, however, proceeded on the core principle that the State has power to regulate, which must be circumscribed by the rights guaranteed under Article 30(1) of the Constitution of India.
82. It was then argued that insofar as the impugned Rules' 2021 herein framed by the State Government under Section 35 of the Act' 1972 are concerned, these rules do not deal with the constitution of the Governing body of the minority educational institutions and the management has been left to completely govern their own institutions. The plea of control by outside authority in the selection of principal and teachers by providing constitution of Minority selection committee under Rule 7 of the Rules, 2021 is without any basis as demonstrated herein-before. These rules do not encroach upon any area which can be said to be an interference with the day-to-day management of minority institutions or their right to administer protected under Article 30. Tested on the anvil of Article 30 of the Constitution of India, a balance has to be kept between the two objectives; that of ensuring standards of excellence of the institution and preserving the rights of the minorities to establish and administer their educational institutions. Regulations that embraced and reconciled the two objectives cannot be said to be unreasonable.
83. It must be held that the right to administer, which is not absolute, but subject to reasonable regulations for the benefit of the institutions making them the vehicles of education consistent with the National interest has been guaranteed and not infringed with by the State of Gujarat with the amendment of Section 40-A and the recruitment rules framed under Section 35 of the Act' 1972.
84. In rejoinder, the learned Senior counsels appearing for the parties have reiterated the submissions noted hereinbefore and further urged that the court has to read the rules under challenge holistically to examine as to whether a case of substantial interference or inroad is made out. The State though can regulate by prescribing regulations which may withstand the test of scrutiny under Article 30(1), but the State cannot be the watchdog throughout. The present is an open and shut case of inroad into the affairs of the minority institution and the impugned legislation, therefore, cannot withstand the dual test of reasonableness and the need to regulate.
F. DISCUSSION AND ANALYSIS
85. It may be pertinent to note, before proceeding further that there is no dispute before us that the petitioners institutions are recognized minority institutions (religious and linguistic) entitled to the protection of Clause (1) of Article 30 of the Constitution of India. They are receiving grant-in-aid from the State Government. The dispute revolves around the right of minority educational institutions to administer or manage the affairs of the institutions of their choice. The question esentially is about the extent of the power of the State to frame regulations which may not interfere in the fundamental right of the minorities and the expanse of the freedom of minorities to choose the teachers and Principals for the minorities institutions of their choice. The question is whether the regulations framed by the State of Gujarat, in any manner, curtail or impinge upon the rights of management or the governing body of the minority educational institutions to manage their own institutions.
86. On an exhaustive discussion on the arguments of the learned Senior Counsels for the parties and having gone through the judicial pronouncements on the subjects, we find that the law developed by the Apex Court, for better understanding, can be categorised in three regimes beginning from the year 1969:-
(i) Pre TMA Pai Foundation regime. (from 1969 - 1998)
(ii) TMA Pai Foundation regime. (from 2002 - 2003)
(iii) Post TMA Pai Foundation regime. (from 2004 - until the date)
87. The principles governing the rights of minorities to administer their institutions enshrined in Article 30(1), the nature and extent of the same, have been elaborated with the basic principles stated by the Apex Court, which can be summarised as under:-
(i) The fundamental concept of equality under Article 30(1): particularly in the matter of recognition, affiliation and grant-in-aid from the State;
(ii) The autonomy of recognized private educational institutions: aided and unaided;
(iii) The concept of standards/excellence of education: freedom to administer vis- -vis: National interest;.
(iv) The test of reasonableness : permissible fetters on the minorities rights under Article 30(1) under regulations framed by the State;
(v) Right to administer: Right to choose Principals / Headmaster / Teachers by minority institutions;
(i) The Equality Principle
(A) Rev Father W. Proost (1969) 2 SCR 73:-
88. In the year 1969, five judges Bench of the Apex Court in Rev Father W. Proost (1969) 2 SCR 73 had rejected the argument of the State that the protection granted by Article 30(1) is a corollary taken from Article 29 (1) and the protection to minorities under Section 30 (1) is confined to the right to conserve a distinct language, script or culture of its own, within the contours of the protection granted in Article 29 (1); only such educational institutions, which are furthering the rights mentioned in Article 29(1) be entitled to protection granted by Article 30(1). It was stated therein in Paragraph Nos. '8' and '11' as under:-
"8. In our opinion the width of Article 30(1) cannot be cut down by introducing in it considerations on which Article 29(1) is based. The latter article is a general protection which is given to minorities to conserve their language, script or culture. The former is a special right to minorities to establish educational institutions of their choice. This choice is not limited to institution seeking to conserve language, script or culture and the choice is not taken away if the minority community having established an educational institution of its choice also admits members of other communities. That is a circumstance irrelevant for the application of Article 30(1) since no such limitation is expressed and none can be implied. The two articles create two separate rights, although it is possible that they may meet in a given case."
"11. In our judgment the language of Article 30(1) is wide and must receive full meaning. We are dealing with protection of minorities and attempts to whittle down the protection cannot be allowed. We need not enlarge the protection but we may not reduce a protection naturally flowing from the words. Here the protection clearly flows from the words and there is nothing on the basis of which aid can be sought from Article 29(1)."
(B) Ahmedabad St. Xavier's (1974) 1 SCC 717 : AIR 1974 SC 1389 (1) :-
89. Nine Judges Constitution bench of the Apex Court, by majority, discussed on all aspects of equality under Article 30(1) while deliberating on the right to establish and administer educational institutions by the minorities. Reiterating the abovenoted law stated in Rev Father W. Proost (1969) 2 SCR 73. A.N. Ray CJ, speaking for himself and D.G. Palekar J. discussed the scope of Article 30(1) whether circumscribed by Article 29(1) in the following manner:-
"6. It will be wrong to read Article 30(1) as restricting the right of minorities to establish and administer educational institutions of their choice only to cases where such institutions are concerned with language, script or culture of the minorities. The reasons are these. First, Article 29 confers the fundamental right on any section of the citizens which will include the majority section whereas Article 30(1) confers the right on all minorities. Second, Article 29(1) is concerned with language, script or culture, whereas Article 30(1) deals with minorities of the nation based on religion or language. Third, Article 29(1) is concerned with the right to conserve language, script or culture, whereas Article 30(1) deals with the right to establish and administer educational institutions of the minorities of their choice. Fourth, the conservation of language, script or culture under Article 29(1) may be by means wholly unconnected with educational institutions and similarly establishment and administration of educational institutions by a minority under Article 30(1) may be unconnected with any motive to conserve language, script or culture. A minority may administer an institution for religious education which is wholly unconnected with any question of conserving a language, script or culture.
7. If the scope of Article 30(1) is to establish and administer educational institutions to conserve language, script or culture of minorities, it will render Article 30 redundant....
"8. The right to establish and administer educational institutions of their choice has been conferred on religious and linguistic minorities so that the majority who can always have their rights by having proper legislation do not pass a legislation prohibiting minorities to establish and administer educational institutions of their choice. If the scope of Article 30(1) is made an extension of the right under Article 29(1) as the right to establish and administer educational institutions for giving religious instruction or for imparting education in their religious teachings or tenets, the fundamental right of minorities to establish and administer educational institutions of their choice will be taken away.
9. Every section of the public, the majority as well as minority has rights in respect of religion as contemplated in Articles 25 and 26 and rights in respect of language, script, culture as contemplated in Article 29. 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."
90. Referring to the decision in Re:The Kerala Education Bill, 1957 AIR 1958 SC 956, wherein it is said that Article 30(1) covers institutions imparting general secular education, it was noted in Paragraph '10' therein that:-
"10.In Re The Kerala Education Bill, 1957 AIR 1958 SC 956, this Court said that Article 30(1) covers institutions imparting general secular education. The object of Article 30 is to enable children of minorities to go out in the world fully equipped. All persons whether in the majority or in the minority have the right under Article 25 freely to profess, practise and propagate religion. Any section of citizens which includes the majority as well as the minority shall have under Article 29 the right to conserve their distinct language, script or culture. That is why the minorities are given a specific right in respect of educational institutions under Article 30. Article 30(1) gives the right to linguistic minorities as well where no question of religion arises. It is, therefore, not at all possible to exclude secular education from Article 30. Since the Kerala Education Bill case in 1959 this Court has consistently held that general secular education is covered by Article 30."
91. It was stated in Paragraph No. '12' that:-
"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 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 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."
92. Justice Khanna, in his concurring judgment, impressed upon with the idea of equality in the following manner:-
"77.The idea of giving some special rights to the minorities is not to have a kind of a privileged or pampered section of the population but to give to the minorities a sense of security and a feeling of confidence. The great leaders of India since time immemorial had preached the doctrine of tolerance and catholicity of outlook. Those noble ideas were enshrined in the Constitution. Special rights for minorities were designed not to create inequality. Their real effect was to bring about equality by ensuring the preservation of the minority institutions and by guaranteeing to the minorities autonomy in the matter of the administration of those institutions. The differential treatment for the minorities by giving them special rights is intended to bring about an equilibrium, so that the ideal of equality may not be reduced to a mere abstract idea but should become a living reality and result in true, genuine equality, an equality not merely in theory but also in fact. The majority in a system of adult franchise hardly needs any protection. It can look after itself and protect its interests. Any measure wanted by the majority can without much difficulty be brought on the statute book because the majority can get that done by giving such a mandate to the elected representatives. It is only the minorities who need protection, and Article 30, besides some other articles, is intended to afford and guarantee that protection.
89.......The minorities are as much children of the soil as the majority and the approach has been to ensure that nothing should be done as might deprive the minorities of a sense of belonging, of a feeling of security, of a consciousness of equality and of the awareness that the conservation of their religion, culture, language and script as also the protection of their educational institutions is a fundamental right enshrined in the Constitution.......The safeguarding of the interest of the minorities amongst sections of population is as important as the protection of the interest amongst individuals of persons who are below the age of majority or are otherwise suffering from some kind of infirmity. The Constitution and the laws made by civilised nations, therefore, generally contain provisions for the protection of those interests. It can, indeed, be said to be an index of the level of civilisation and catholicity of a nation as to how far their minorities feel secure and are not subject to any discrimination or suppression."
(Emphasis supplied)
93. Mathew J., while deliberating on the real reason for protection of minorities in a democratic policy noted in Paragraphs '131' to '133' as under:-
"131.It is necessary in the interest of clarity of thought to begin with an understanding of the real reason for protection of minorities in a democratic polity.
"Protection of minorities is the protection of non-dominant groups, which, while wishing in general for equality of treatment with the majority, wish for a measure of differential treatment in order to preserve basic characteristics which they possess and which distinguish them from the majority of the population. The protection applies equally to individuals belonging to such groups and wishing the same protection. It follows that differential treatment of such groups or of individuals belonging to such groups is justified when it is exercised in the interest of their contentment and the welfare of the community as a whole."
132. The problem of the minorities is not really a problem of the establishment of equality because if taken literally, such equality would mean absolute identical treatment of both the minorities and the majorities. This would result only in equality in law but inequality in fact. The distinction need not be elaborated for it is obvious that "equality in law precludes discrimination of any kind; whereas equality in fact may involve the necessity of differential treatment in order to attain a result which establishes an equilibrium between different situations."
133. It may sound paradoxical but it is nevertheless true that minorities can be protected not only if they have equality but also, in certain circumstances, differential treatment."
94. Beg' J, though wrote a dissenting judgment on the main challenge but on the question whether the rights guaranteed by Article 30 are, in any way, circumscribed by Article 29, stated that:-
"198....I am in entire agreement with the view that, although, Articles 29 and 30 may supplement each other so far as certain rights of minorities are concerned, yet, Article 29 of the Constitution does not, in any way, impose a limit on the kind or character of education which a minority may choose to impart through its Institution to the children of its own members or to those of others who may choose to send their children to its schools. In other words, it has a right to impart a general secular education....."
95. The next question which arose in the Ahmedabad, St. Xavier's (1974) 1 SCC 717 : AIR 1974 SC 1389 (1) was whether religious and linguistic minorities, who have the right to establish and administer educational institutions of their choice, have a fundamental right to affiliation. Another ancillary question was that, where a minority institution has, of its own free will, opted for affiliation under the terms of a statute. it must be deemed to have chosen to give up, as a price for the benefits resulting from affiliation, the exercise of certain rights which may in another context, appear to be unwarranted impairments of its fundamental rights. In other words, the questions were whether there is a fundamental right of a minority institution to affiliation and further whether the price of affiliation can be a total abandonment of the right to establish and administer a minority institution conferred by Article 30(1) of the Constitution. Considering the purpose of affiliation while taking the view that there is no fundamental right of a minority institution to affiliation, it was observed in Paragraph Nos. '14, 15, 16 and 17' as under:-
14. The consistent view of this Court has been that there is no fundamental right of a minority institution to affiliation. An explanation has been put upon that statement of law. It is that affiliation must be a real and meaningful exercise for minority institutions in the matter of imparting general secular education. Any law which provides for affiliation on terms which will involve abridgement of the right of linguistic and religious minorities to administer and establish educational institutions of their choice will offend Article 30(1). The educational institutions set up by minorities will be robbed of their utility if boys and girls cannot be trained in such institutions for University degrees. Minorities will virtually lose their right to equip their children for ordinary careers if affiliation be on terms which would make them surrender and lose their rights to establish and administer educational institutions of their choice under Article 30. The primary purpose of affiliation is that the students reading in the minority institutions will have qualifications in the shape of degrees necessary for a useful career in life. The establishment of a minority institution is not only ineffective but also unreal unless such institution is affiliated to a University for the purpose of conferment of degrees on students.
15. Affiliation to a University really consists of two parts. One part relates to syllabi, curricula, courses of instruction, the qualifications of teachers, library, laboratories, conditions regarding health and hygiene of students. This part relates to establishment of educational institutions. The second part consists of terms and conditions regarding management of institutions. It relates to administration of educational institutions.
16. With regard to affiliation a minority institution must follow the statutory measures regulating educational standards and efficiency, the prescribed courses of study, courses of instruction and the principles regarding the qualification of teachers, educational qualifications for entry of students into educational institutions etc.
17. 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 instruction prescribed by that University. Affiliation is regulating courses of instruction in institutions for the purpose of coordinating and harmonising the standards of education. With regard to affiliation to a University, the minority and non-minority institutions must agree in the pattern and standards of education. Regulatory measures of affiliation enable the minority institutions to share the same courses of instruction and the same degrees with the non- minority institutions."
96. It was held by Ray' CJ that any law which provides for affiliation on terms which will involve abridgement of the right of linguistic and religious minorities to administer and establish educational institutions of their choice will offend Article 30(1). It was observed that minorities will virtually loose their right to equip their children for ordinary careers if affiliation be on terms which would make them surrender and loose their rights to establish and administer educational institutions of their choice under Article 30. The primary purpose of affiliation is that the students studying in the minority institutions will have qualifications in the shape of degrees necessary for a useful career in life. The establishment of a minority institution is not only be ineffective but also unreal unless such institution is affiliated to a University for the purpose of conferment of degrees on students.
97. Noticing the observations of the Apex Court in Very Rev. Mother Provincial (1970) 2 SCC 417, it was noted that the affiliation of minorities institutions is intended to ensure the growth and excellence of their children and other students in the academic field. It was, further, noted that (Para 18) :-
"18......Affiliation mainly pertains to the academic and educational character of the institution. Therefore, measures which will regulate the courses of study, the qualifications and appointment of teachers, the conditions of employment of teachers, the health and hygiene of students, facilities for libraries and laboratories are all comprised in matters germane to affiliation of minority institutions. These regulatory measures for affiliation are for uniformity, efficiency and excellence in educational courses and do not violate any fundamental right of the minority institutions under Article 30."
98. The observations of Das' CJ in the first case of 1958 in Re: Kerala Education Bill AIR 1958 SC 956 were noted in paragraph No.'56', wherein it was held that:-
"56....."There is, no doubt, no such thing as fundamental right to recognition by the State but to deny recognition to the educational institutions except upon terms tantamount to the surrender of their constitutional right of administration of the educational institutions of their choice is in truth and in effect to deprive them of their rights under Article 30(1)......."
99. It was, thus, held that without recognition, the educational institutions established or to be established by the minority communities cannot fulfill real object of their choice and that the right under Article 30(1) cannot be effectively exercised. The right to establish educational institutions of their choice means the right to establish real institutions which will effectively serve the needs of their community and the scholars, who resort to their educational institutions.
100. On the question of recognition, in the context of the rights conferred by Article 30, it was held by Khanna' J in Paragraph No.'98' as:-
"98......So far as this aspect is concerned, I am of the view that it is permissible for the State to prescribe reasonable regulations like the one to which I have referred earlier and make it a condition precedent to the according of recognition or affiliation to a minority institution. It is not, however, permissible to prescribe conditions for recognition or affiliation which have the effect of impairing the right of the minority to establish and administer their educational institutions. Affiliation and recognition are, no doubt, not mentioned in Article 30(1), the position all the same remains that refusal to recognize or affiliate minority institutions unless they (the minorities) surrender the right to administer those institutions would have the effect of rendering the right guaranteed by Article 30(1) to be wholly illusory and indeed a teasing illusion. It is, in our opinion, not permissible to exact from the minorities in lieu of the recognition or affiliation of their institutions a price which would entail the abridgement or extinguishment of the right under Article 30(1). An educational institution can hardly serve any purpose or be of any practical utility unless it is affiliated to a University or is otherwise recognised like other educational institutions. The right conferred by Article 30 is a real and meaningful right. It is neither an abstract right nor is it to be exercised in vacuum. Article 30(1) was intended to have a real significance and it is not permissible to construe it in such a manner as would rob it of that significance....."
101. Mathew' J, dealt with the arguments that there is no fundamental right to recognition or affiliation, the Government may withhold recognition or affiliation for any reason or impose any condition for the same, and consequently, it may withhold or revoke it even though the reason for doing so may be the minorities' refusal to surrender its constitutional right to administer the institution. The argument was that the religious or linguistic minorities being recipient of the benefit or facility, may simply reject the proffered benefit or facility, it if deprive of its fundamental rights. It was answered in paragraph No. '163' that:-
"163. It is doubtful whether the fundamental right under Article 30(1) can be bartered away or surrendered by any voluntary act or that it can be waived. The reason is that the fundamental right is vested in a plurality of persons as a unit or if we may say so, in a community of persons necessarily fluctuating. Can the present members of a minority community barter away or surrender the right under the article so as to bind its future members as a unit The fundamental right is for the living generation. By a voluntary act of affiliation of an educational institution established and administered by a religious minority the past members of the community cannot surrender the right of the future members of that community. The future members of the community do not derive the right under Article 30(1) by succession or inheritance."
102. It was further held in Paragraph No.'176' as under:-
"176. Recognition or affiliation is granted on the basis of the excellence of an educational institution, namely, that it has reached the educational standard set up by the university. Recognition or affiliation is sought for the purpose of enabling the students in an educational institution to sit for an examination to be conducted by the university and to obtain a degree conferred by the university.. For that purpose, the students should have to be coached in such a manner so as to attain the standard of education prescribed by the university. Recognition or affiliation creates an interest in the university to ensure that the educational institution is maintained for the purpose intended and any regulation which will subserve or advance that purpose will be reasonable and no educational institution established and administered by a religious or linguistic minority can claim recognition or affiliation without submitting to those regulations. That is the price of recognition or affiliation: but this does not mean that it should submit to a regulation stipulating for surrender of a right or freedom guaranteed by the Constitution, which is unrelated to the purpose of recognition or affiliation. In other words, recognition or affiliation is a facility which the university grants to an educational institution, for the purpose of enabling the students there to sit for an examination to be conducted by the university in the prescribed subjects and to obtain the degree conferred by the university, and therefore, it stands to reason to hold that no regulation which is unrelated to the purpose can be imposed. If, besides recognition or affiliation, an educational institution conducted by a religious minority is granted aid, further regulations for ensuring that the aid is utilized for the purpose for which it is granted will be permissible....."
103. It was, thus, concluded that the meaningful exercise of the right under Article 30(1) would and must necessarily involve recognition of the secular education imparted by the minority institutions without which the right would be wholly illusory and indeed a teasing illusory. All attempts to make affiliation or recognition on terms tantamount to surrender of its rights under Article 30(1) as abridging or taking away those rights, have to be struck down. As without affiliation, there can be no meaningful exercise of the right under Article 30 (1), the affiliation to be given should be consistent with that right. It cannot be, indirectly, tried to achieve when it cannot directly do. Paragraph No. '29' in the judgment of Ray' J, be noted as under:-
"29. The decision of this Court in Rev. Siddhajbhai Sabhai v. State of Bombay AIR 1963 SC 540 illustrates as to how the right of the minority institution is violated by the State order requiring the minority institution to reserve under orders of Government 80 per cent of the seats on threat of withholding grant-in-aid for non-compliance with the order. This Court in Kerala Education Bill case said that the State cannot do indirectly what it cannot do directly. Withholding aid on terms which demand the surrender of the right of the minority to administer the institution is an infringement of the right under Article 30."
104. The equality principle stated be noted hereinunder:-
138. As we look at it, Article 30(1) is a sort of guarantee or assurance to the linguistic and religious minority institutions of their right to establish and administer educational institutions of their choice. Secularism and equality being two of the basic features of the Constitution, Article 30(1) ensures protection to the linguistic and religious minorities, thereby preserving the secularism of the country. Furthermore, the principles of equality must necessarily apply to the enjoyment of such rights. No law can be framed that will discriminate against such minorities with regard to the establishment and administration of educational institutions vis- -vis other educational institutions. Any law or 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 also cannot be any reverse discrimination. It was observed in St. Xavier's College case : (1974) 1 SCC 717 : AIR 1974 SC 1389 (1) at SCR p. 192 that : (SCC p. 743, para 9)
"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."
In other words, the essence of Article 30(1) is to ensure equal treatment between the majority and the minority institutions. No one type or category of institution should be disfavoured or, for that matter, receive more favourable treatment than another. Laws of the land, including rules and regulations, must apply equally to the majority institutions as well as to the minority institutions. The minority institutions must be allowed to do what the non-minority institutions are permitted to do."
(ii) The Autonomy of recognized institutions: Aided and Unaided:-
(a) Ahmedabad St. Xavier's (1974) 1 SCC 717 : AIR 1974 SC 1389 (1) :-
105. The autonomy in administration was explained by A.N. Ray' C.J. in the Ahmedabad St. Xavier's (1974) 1 SCC 717 : AIR 1974 SC 1389 (1), in Paragraph No.'41' as under:-
"41. Autonomy in administration means right to administer effectively and to manage and conduct the affairs of the institutions. The distinction is between a restriction on the right of administration and a regulation prescribing the manner of administration. The right of administration is day to day administration. The choice in the personnel of management is a part of the administration. The university will always have a right to see that there is no mal-administration. If there is mal- administration, the university will take steps to cure the same. There may be control and check on administration in order to find out whether the minority institutions are engaged in activities which are not conducive to the interest of the minority or to the requirements of the teachers and the students. In State of Kerala v. Very Rev. Mother Provincial, this Court said that if the administration goes to a body in the selection of whom the founders have no say, the administration would be displaced. This Court also said that situations might be conceived when they might have a preponderating voice. That would also effect the autonomy in administration. The provisions contained in Section 33-A(1)(a) of the Act have the effect of displacing the management and entrusting it to a different agency. The autonomy in administration is lost. New elements in the shape of representatives of different types are brought in. The calm waters of an institution will not only be disturbed but also mixed. These provisions in Section 33-A(1)(a) cannot therefore apply to minority institutions."
106. In TMA Pai Foundation 2002 (8) SCC 481, the question before the Constitution Bench was about the right to establish and administer about the autonomy to provide educational institution (both aided and unaided), established by minorities and non-minorities to administer their educational institutions unhampered by rules and regulations that unnecessarily impinge upon their autonomy. The Apex Court had examined the nature and extent of the regulations that can be framed by the State university or the affiliating body, while granting recognition or affiliation to private educational institutions (both aided and unaided) established and administered by religious and linguistic minorities, as well as non-minorities.
107. While it was held that the conditions of affiliation or recognition, which pertains to the academic and educational character of the institution and ensure uniformity, efficiency and excellence in educational courses are valid, and that they do not violate even the provisions of Article 30 of the Constitution; but conditions that are laid down for granting recognition should not be such as may lead to governmental control of the administration of the private institution. With respect to private aided non-minority institution, it was held that while giving aid, it would be permissible for the authority giving aid to prescribe by rules or regulations, as a condition of grant of aid for the proper maintenance of the high standards of education as the financial freedom is shared by the State.
108. The State, in the case of such aided institutions, has ample power to provide rules and regulations that promote good administration and prevent maladministeration, so as to promote efficiency of teachers, discipline and fairness in administration and to preserve harmony among the affiliated institution, but even such an aided institution does not become a government owned and controlled institution.
109. The autonomy of a private aided institution, however, would be less than that of an unaided institution, inasmuch as, the Government would be entitled to make regulations relating to the terms and conditions of employment of the teaching and non-teaching staff whenever the aid for the posts is given by the State. Such rules and regulations can also provide for the reasons and the manner in which the teacher or any other member of the staff can be removed.
110. The question whether Article 30 gives a right to ask for grant or aid from the State and further, to what extent its autonomy in administration can be curtailed or regulated had been considered in TMA Pai Foundation 2002 (8) SCC 481, specifically in the matter of admission to educational institutions established by minority community. While answering, it was said that the grant of aid is not a constitutional imperative. Article 30 (1) would not justify a demand for aid, and it cannot be said that the absence of aid makes the right under Article 30(1) illusory. However, a minority institution shall not be discriminated against when aid to educational institution is granted. When the State chooses to grant aid to educational institutions, it cannot deny aid to a religious or linguistic minority institution only on the ground that the management of that institution is with the minority.
111. It was held 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. The relevant observations of the Apex Court in the Paragraph Nos. 142, 143 and 144 in the judgment of TMA Pai Foundation 2002 (8) SCC 481 are extracted herein under:-
"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 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...."
112. The balance struck by the Apex Court in the matter of grant of recognition, affiliation and grant-in-aid from the State to the minority institutions covered under Article 30 (1) is, thus, on the fundamental principle that the minority institution cannot be discriminated. The conditions for affiliation, recognition and for grant-in-aid to educational institutions have to be uniformly applied whether it is a majority run institution or minority run institution.
113. On the one hand, the minority institution cannot be denied such privilege on the ground that the educational institution is under the management of a minority, on the other, the State cannot be compelled to grant aid. The receipt of aid or grant of recognition or affiliation cannot be a reason for altering the nature or character of the recipient educational institution. The conditions for grant of recognition, affiliation or grant-in-aid, if such, which abridge the right of minority to run the educational institution of their choice or to barter away or surrender their right under Article 30 (1), shall be violative of the said provision.
114. The principle laid down by the Apex Court in the Ahmedabad St. Xavier's (1974) 1 SCC 717 : AIR 1974 SC 1389 (1) of the right of minorities to seek recognition or affiliation and in the matter of grant of aid has been reiterated and reaffirmed in TMA Pai Foundation 2002 (8) SCC 481, while answering the question as to the extent of interference by the State in the autonomy in administration of minority and educational institutions receiving grant-in-aid. It is, thus, well established principle of law that no educational institution established by religious or linguistic minority can claim total immunity from the regulations by the legislature or uniformity, if it wants affiliation or recognition; but the character of the permissible regulations must depend upon their purpose. Such regulations will be permissible if they are relevant to the purpose of securing or promoting the object of recognition or affiliation. While granting aid, the State cannot have such conditions attached to it, which will, in any way, dilute or abridge the rights of minorities institutions to establish and administer that institution.
115. The regulations, which sub-serve the purpose of recognition or affiliation, namely the excellence of an institute as a vehicle for general secular education to the minority community and to other persons, who resort to it, will be saved. The regulations, which may lawfully be imposed either by legislative or executive action as a condition of receiving grant or of recognition must be attracted to making institution while retaining its character as a minority institution effective as an educational institution. It was clarified by the Apex Court in Ahmedabad St. Xavier's (1974) 1 SCC 717 : AIR 1974 SC 1389 (1) that the question whether a particular regulation is calculated to advance the general public interest is of no consequence if it is not conducive to the interests of the minority community and those persons who resort to it. The only permissible regulations are those, which secure the effectiveness of the purpose of the facility namely the excellence of the educational institutions in respect of their educational standards.
(iii) Standards/Excellence of Education vis- -vis freedom to administer:-
116. Elaborating on the concept of excellence in education, a view was expressed by Ray' CJ in Ahmedabad St. Xavier's (1974) 1 SCC 717 : AIR 1974 SC 1389 (1) that the right implies the obligation and duty of the minority institutions to render the very best to the students. The educational institutions are temples of learning. The virtues of human intelligence are mastered and harmonized by education. Where there is complete harmony between the teacher and the taught, where the teacher imparts and the student receives, where there is complete dedication of the teacher and the taught in learning, where there is discipline: between the teacher and the taught, where both are worshipers of learning, no discord or challenge will arise. An educational institution runs smoothly when the teacher and the taught are engaged in the, common ideal of pursuit of knowledge. It is, therefore, manifest that the appointment of teachers is an important part in educational institutions. The, qualifications and the character of the teachers are really important. The minority institutions have the right to administer institutions. In the right of administration, checks and balances in the shape of regulatory measures 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. It was observed that (Para. '31 and 32'):-
"31.Regulations which will serve the interests of the students, regulations which will serve the interests of the teachers are of paramount importance in good administration. Regulations in the interest of efficiency of teachers, discipline and fairness in administration are necessary for preserving harmony among affiliated institutions.
32.Education should be a great cohesive force in developing integrity of the nation. Education develops the ethos of the nation. Regulations are, therefore, necessary to see that there are no divisive or disintegrating forces in administration."
117. While deliberating on the autonomy in administration vis- -vis excellence and uniformity in standards of education, it was further observed in Paragraph Nos. '46, 47 and 48' as under:-
"46.The ultimate goal of a minority institution too imparting general secular education is advancement of learning. This Court has consistently held that it is not only permissible but also desirable to regulate everything in educational and academic matters for achieving excellence and uniformity in standards of education.
47. In the field of administration it is not reasonable to claim that minority institutions will have complete autonomy. Checks on the administration may be necessary in order to ensure that the administration is efficient and sound and will serve the academic needs of the institution. The right of a minority to administer its educational institution involves, as part of it, a correlative duty of good administration.
48. The teachers and the taught form a world of their own where everybody is a votary of learning. They should not be made to know any distinction. Their harmony rests on dedicated and disciplined pursuit of learning. The areas of administration of minorities should be adjusted to concentrate on making learning most excellent. That is possible only when all institutions follow the motto that the institutions are places for worship of learning by the students and the teachers together irrespective of any denomination and distinction."
118. While dealing with the scope and ambit of the right guaranteed by Clause (1) of Article 30, Khanna' J had stated in categorical terms that the right conferred by the provision is in absolute terms and is not subject to restrictions, as in the case of rights conferred by Article 19 of the Constitution, however, the right of minorities to administer educational institutions does not prevent the making of reasonable regulations in respect of those institutions. Rather, the regulations have, necessarily to be made in the interest of the institution as a minority educational institution. They have to be so designed as to make it an effective vehicle for imparting education. It was, thus, observed in Paragraph No.'90' as under:-
"90.....The right to administer educational institutions can plainly not include the right to maladminister. Regulations can be made to prevent the housing of an educational institution in unhealthy surroundings as also to prevent the setting up or continuation of an educational institution without qualified teachers. The State can prescribe regulations to ensure the excellence of the institution. Prescription of standards for educational institutions does not militate against the right of the minority to administer the institutions. Regulations made in the true interests of efficiency of instruction, discipline, health, sanitation, morality, public order and the like may undoubtedly be imposed. Such regulations are not restrictions on the substance of the right which is guaranteed: they secure the proper functioning of the institution, in matters educational..."
119. The observation of Shah' J in Rev. Sidhrajbhai Sabhai AIR 1963 SC 540, has further been noted in Paragraph No. 90 to record that the State may also regulate the conditions of employment of teachers and the health and hygiene of students. The right of the State to regulate educational standards and allied matters, cannot be denied. The minority institutions cannot be allowed to fall below the standards of excellence expected of educational institutions, or under the guise of exclusive right of management, to decline to follow the general pattern. While the management must be left to them, they may be compelled to keep in step with others.
120. Mathew' J, while dealing with the concept of "Secular State" and the meaning of secularism in the context of our constitution has noted that in short, secularism only means "an attitude of live and let live developing into the attitude of live and help live.(Reference to paragraph No. 140) Balancing the State's interest in secular education and the parental right in education in a democratic system, it is said that it is a touchstone of difference between democratic education and monolithic system of cultural totalitarianism. When the modern State with its immense power embarks upon the mission of educating its children, the whole tendency is towards State monopoly. The fundamental right of the religious and linguistic minorities to establish and administer educational institutions of their choice is the only legal barrier to confine the bursting expansionism of the new Educational Leviathan. Great diversity of opinion exists among the people of this country concerning the best way to train children for their place in society. Because of these differences and because of reluctance to permit a single iron cast system of education to be imposed upon a nation compounded of several strains, the Constitution has provided this right to religious and linguistic minorities.
121. It was further said that education is an important function of State and local governments. It is a principal instrument in awakening the child to cultural values, in preparing him for later professional training and in helping him to adjust normally to his environment. If there is a symbol of democracy in education, it is not the public school as the single democratic school. Rather it is the co-existence of several types of schools and colleges including affiliated colleges on a footing of juridical equality with a consequent proportionately equal measure of State encouragement and support. Juridical equality postulates that the religious minority should have a guaranteed right to establish and administer its own educational institutions where it can impart secular education in a religious atmosphere. It was observed in paragraph No.'145' as under:-
"145. The State's interest in secular education may be defined broadly as an interest in ensuring that children within its boundaries acquire a minimum level of competency in skills, as well as a minimum amount of information and knowledge in certain subjects. Without such skill and knowledge, an individual will be at a severe disadvantage both in participating in democratic self-Government and in earning a living. No one can question the constitutional right of parents to satisfy their State- imposed obligation to educate their children by sending them to schools or colleges established and administered by their own religious minority so long as these schools and colleges meet the standards established for secular education."
122. Beg' J, referring to the decision of the Apex Court in the case of Kerala Education Bill AIR 1958 SC 956, noted that the Apex Court therein had equated the right of administration with management of affairs of the institution and observed that the freedom of management to control is the exception and it is that the standards of education are not a part of management as such. While saying that these standards concern the body politic and are dictated by considerations of the advancement of the country and its people, evidently, what was meant was that the right to exclusive management of the institution is separable from the right to determine the character of education and its standards. Speaking for himself, Beg' J observed that it is it very difficult to separate the objects and standards of teaching from a right to determine who should teach and what their qualifications should be. Moreover, if the "standards of education" are not part of management, it is difficult to see how they are exceptions to the principle of freedom of management from control. Again, if what is aimed at directly is to be distinguished from an indirect effect of it, the security of tenure of teachers and provisions intended to ensure fair and equitable treatment for them by the management of an institution would also not be, directly aimed at interference with its management. They could more properly be viewed as designed to improve and ensure the excellence, of teachers available at the institution, and, therefore, to raise the general standard of education.
(b) TMA Pai Foundation 2002 (8) SCC 481:-
123. Referring to these decisions, the Apex Court in TMA Pai Foundation 2002 (8) SCC 481 has culled out the principles to note that the decisions of the Apex Court have held that the right to administer does not include the right to maladminister. It has also been held therein that the right to administer is not absolute, but must be subject to reasonable regulations for the benefit of the institution as a vehicle for education, consistent with national interest. General laws of land applicable to all persons have been held to be applicable to the minority institutions such as the laws relating to taxation, sanitation, social welfare, economic regulations, public order and morality. It, thus, follows from the aforesaid decisions that even though words of Article 30 (1) are qualified, the Apex Court has held that atleast certain other laws of the land pertaining to health, morality and standards of education apply. The right under Article 30 (1) of the Constitution of India has, therefore, not been held to be absolute or above other provisions of the law.
124. Reiterating the same principle, it was observed in Paragraph Nos. '137' that :-
"137. .......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)."
125. The question No. 5(c) in Paragraph 162-G as noted hereinbefore is relevant to be reiterated herein :-
"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", it was held that:-
"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 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."
(iv) Test of reasonableness; Permissible fetters by the State Regulations:-
126. Coming to the test of reasonableness propounded in the Ahmedabad St. Xavier's (1974) 1 SCC 717 : AIR 1974 SC 1389 (1), we may note that it is now a settled principle that the State can prescribe regulations to ensure the excellence of the institution. A regulation, which is designed to prevent maladministration of educational institution cannot be said to offend Clause (1) of Article 30. The further question is as to how to ensure that the regulations are made in the true efficiency and instructions, discipline, for achieving the excellence and uniformity in standards of education. The dual test laid down by the Apex Court in Rev. Sidhrajbhai Sabhai AIR 1963 SC 540, noted by the Apex Court in paragraph No. 92 in the Ahmedabad St. Xavier's (1974) 1 SCC 717 : AIR 1974 SC 1389 (1), which has withstood the test of time; is that such regulation must satisfy a dual test; (i) the test of reasonableness, (ii) and the test that it is regulative of the educational character of the institution and is conducive to making the institution an effective vehicle of education for the minority community or other persons who resort to it. As held by the Apex Court in paragraph No.'94' in the Ahmedabad St. Xavier's (1974) 1 SCC 717 : AIR 1974 SC 1389 (1) balance has to be kept between the two objectives, that of ensuring the standard of excellence of the institution and that of preserving the right of' the minorities to establish and administer their educational institutions. Regulations which embrace and reconcile the two objectives can be considered to be reasonable.
127. For applying the test, the arguments of the respondents in the Ahmedabad, St. Xavier's (1974) 1 SCC 717 : AIR 1974 SC 1389 (1) that unless a law or regulation is wholly destructive of the right of minorities under Article 30(1), the same would not be liable to be struck down, was held untenable as it runs contrary to the plain language of Article 13.
128. It was held in paragraph No.'99' (by Khanna' J in the Ahmedabad St.Xavier's (1974) 1 SCC 717 : AIR 1974 SC 1389 (1) that according to Article 13, a law would be void even it it merely abridges a fundamental right guaranteed by Part III and does not wholly take away that right. The argument that a law or regulation could not be deemed to be unreasonable unless it is totally destructive of the right of the minority to administer educational institutions was found to be expressly negatived by this Court in the case of Rev. Sidhrajbhai Sabhai AIR 1963 SC 540. It was, thus, held in paragraph No. 101 as under:-
"101. In the light of the above principles, it can be stated that law which interferes with the minorities choice of a governing body or management council would be violative of the right guaranteed by Article 30(1). This view has been consistently taken by this Court in the cases of Rt. Rev. Bishop S.K. Patro, Mother Provincial and D.A.V. College (affiliated to the Guru Nanak University)."
(v) Right to Administer: Right to choose Principals/Teachers:-
129. The observation of the Apex Court in paragraph No.'103' of Ahmedabad St.Xavier's (1974) 1 SCC 717 : AIR 1974 SC 1389 (1) that the law which interferes with a minority's choice of qualified teachers or its disciplinary control over teachers and other members of the staff of the institution is void as being violative of Article 30(1) be noted herein to understand the scope of interference vis- -vis autonomy of the management of the minority institution to choose its teachers :-
"103. Another conclusion which follows from what has been discussed above is that a law which interferes with a minority's choice of qualified teachers or its disciplinary control over teachers and other members of the staff of the institution is void as being violative of Article 30(1). It is, of course, permissible for the State and its educational authorities to prescribe the qualifications of teachers, but once the teachers possessing the requisite qualifications are selected by the minorities for their educational institutions, the State would have no right to veto the selection of those teachers. The selection and appointment of teachers for an educational institution is one of the essential ingredients of the right to manage an educational institution and the minorities can plainly be not denied such right of selection and appointment without infringing Article 30(1). In W. Proost (1969) 2 SCR 73, this Court while dealing with Section 48-A of the Bihar Universities Act observed that the said provision completely took away the autonomy of the governing body of the college and virtually vested the control of the college in the University Service Commission. The petitioners in that case were, therefore, held entitled to the protection of Article 30(1) of the Constitution. The provisions of that section have been referred to earlier. According to the section, subject to the approval of University appointment, dismissals, removals, termination of service or reduction in rank of teachers of an affiliated college not belonging to the State Government would have to be made by the governing body of the college on the recommendation of the University Service Commission. The section further provided that the said Commission would be consulted by the governing body of a college in all disciplinary matters affecting teachers of the college and no action would be taken against or any punishment imposed upon a teacher of a college otherwise than in conformity with the findings of the Commission."
130. We may note that referring to the decision of the Apex Court in DAV College (1971) 2 SCC 269, wherein Statute 17 framed under the Guru Nanak University (Amritsar) Act interalia provided that staff initially appointed shall be approved by the Vice-Chancellor and all subsequent changes shall be reported to the University for the Vice- Chancellor's approval, the Apex Court held that the statute interfered with the right of management of the petitioner's college and as such, offended Article 30(1). In paragraph No.'105' of Ahmedabad, St. Xavier's (1974) 1 SCC 717 : AIR 1974 SC 1389 (1), Khanna' J had further observed that :-
"105. Although disciplinary control over the teachers of a minority educational institution would be with the governing council, regulations, in my opinion, can be made for ensuring proper conditions of service of the teachers and for securing a fair procedure in the matter of disciplinary action against the teachers. Such provisions which are calculated to safeguard the interest of teachers would result in security of tenure and thus inevitably attract competent persons for the posts of teachers. Such a provision would also eliminate a potential cause of frustration amongst the teachers. Regulations made for this purpose should be considered to be in the interest of minority educational institutions and as such they would not violate Article 30(1)."
131. While saying so, it was further observed in paragraph No. 105 itself that the provisions of Section 51 A (b) in the Ahmedabad, St. Xavier's (1974) 1 SCC 717 : AIR 1974 SC 1389 (1), authorized the Vice chancellor or other officer authorized by him as a blanket power. The conferment of such a blanket power on the Vice-Chancellor or other officer authorised by him for vetoing the disciplinary action of the managing body of an educational institution was a serious inroad on the right of the managing body to administer an educational institution. The said provision was, thus, held to be violative of Article 30 insofar as minority institutions are concerned. Other provisions impugned in the said case were also tested on the dual test laid down in Rev. Sidhrajbhai Sabhai AIR 1963 SC 540.
132. In a similar fashion, while applying the dual test of reasonableness, it was observed by Mathew' J (in paragraph 174) that in every case, the court must undertake to define and give content to the word 'abridge' in Article 13 (2). The question to be asked and answered is whether the particular measure is regulatory or whether it crosses the zone of permissible regulation and enters the forbidden territory of restrictions or abridgment.
133. Referring to the above noted test of permissible regulations, it was held therein that Sub-sections (1)(a) and (1)(b) of Section 33A abridge the right of the religious minority to administer educational institutions of their choice. It was held that the requirement that the college should have a governing body which shall include persons other than those who are members of the governing body of the Society of Jesus, would take away the management of the college from the governing body constituted by the Society and vest it in a different body. It was held that the right to administer the educational institution established by a religious minority is vested in the governing body of the society, in which the religious minority which established the college has vested the right to administer the institution and that body alone has the right to administer the same.
134. Referring to the decision of the Apex Court in Very Rev. Mother Provincial (1970) 2 SCC 417, it was noted that the law which interferes with the composition of the governing body or the managing council as constituted by the religious or linguistic minority is an abridgement of the right of the religious minorities to administer the educational institution established by it. It is in this context, it was observed in paragraph No. 183 by Mathew' J, which was heavily relied by the learned Senior Counsel for the petitioner, as noted in the foregoing paragraph of this judgment.
135. With this view, Mathew' J had concurred with the opinion drawn by Khanna' J and had struck down the provision, which require a subsequent approval of the Vice Chancellor or other officers for dismissing or terminating the service of the teachers being bad, as offending Article 30 (1). The provision was held as abridgement of the right to administer the educational institutions established by the minority. It was held that the provisions of Sections 51A and 52A, subject matter of challenge therein, subserve no purpose except that it will needlessly interfere with the day to day management of the institution.
136. The requirement of referring the dispute of teaching or non-teaching staff therein to a tribunal of arbitration as provided in Section 52A, has been held to be interference with the day to day management of the institution, inasmuch as, it has no relevance to the standards of imparting education rather pertaining to business of educational institutions.
137. Keeping in mind the above principles, we are required to examine as to whether the regulations framed by the State Government in the matter of selection and appointment of teachers in minority educational institutions in the State of Gujarat (aided minority institutions), in any way, interferes with the choice of the management of minority institution to choose their teachers after an overall assessment of their outlook and philosophy or they fall within the scope of permissible fetters on the minorities right to administer (manage) their institution and to their choice of selection of principal/headmaster/teachers.
138. We are further required to make an analysis of the decisions of the Apex Court in three regime relied by the learned Senior Counsels for the rival parties, wherein the above noted principles in the Ahmedabad St. Xavier's (1974) 1 SCC 717 : AIR 1974 SC 1389 (1) and TMA Pai Foundation 2002 (8) SCC 481 have been applied to test the validity of the provisions challenged therein.
139. We may note, at this juncture, that we do agree with the submission of Mr. Mihir Thakore, learned Senior Counsel for the petitioners that the tests laid down by the Apex Court in the Ahmedabad St.Xavier's (1974) 1 SCC 717 : AIR 1974 SC 1389 (1), to examine the validity of regulations framed by the State on the anvil of Article 30(1) has not been diluted in the subsequent decision in TMA Pai Foundation 2002 (8) SCC 481.
140. On a conjoint reading of both the decisions (the Ahmedabad St. Xavier's (1974) 1 SCC 717 : AIR 1974 SC 1389 (1) and TMA Pai Foundation 2002 (8) SCC 481 as noted hereinabove), we find that the consistent view has been on the concept of equality under Article 30 (1) in the matter of recognition, affiliation and grant-in-aid; autonomy of recognized private educational institutions whether aided and unaided and both the decisions are directly aimed towards one fundamental principle of the right of the State to regulate by making such regulations, which do not impinge upon the right of minorities under Article 30(1) of the Constitution. While making regulations, balance is to be kept between the two objectives; that of ensuring the standard of excellence of the institution and that of preserving the right of the minorities to establish and administer their educational institutions. The principle that regulations which embrace and reconcile the two objectives, can be considered to be reasonable as sacrosanct.
Decisions in Pre-TMA Pai Regime :- judgement following Ahmedabad St. Xavier's (1974) 1 SCC 717 : AIR 1974 SC 1389 (1) :-
141. Coming to the decisions immediately following Ahmedabad St.Xavier's (1974) 1 SCC 717 : AIR 1974 SC 1389 (1), in Gandhi Faizeam College (1975) 2 SCC 283 the challenge therein was to Statute 14A of the statute framed by the affiliating university, which provided that each affiliated college maintained exclusively by Government, must be under the Management of a regular constituted Governing Body (Managing Committee) which included the principal of the College and at least one representative of the teachers of the college to be appointed by rotation in order of seniority, as a representative of the staff of the college.
142. In a split verdict, speaking for the majority, Krishna Aiyer' J, referring to the opinion of Justices Beg and Dwivedi has observed in Paragraph No.'15' as under:-
"15. Justices Beg and Dwivedi have stretched the regulatory power further than the majority, holding that it is an illusion for a minority to claim absolute immunity. The thrust of the case is that real regulations are desirable, necessary and constitutional but, when they operate on the "administration" part of the right, must be confined to chiselling into shape, not cutting down out of shape, the individual personality of the minority."
143. It was held therein that on a careful reflection and conscious of the constitutional dilemma, a fine distinction line may be drawn, to keep regulations which facilitates is good on the valid side of the delicate line. No rigid formula is possible but a flexible test is feasible. The observations in Paragraph Nos. 16 and 17, which guide us in this matter are relevant to be noted hereinunder:-
"16......Where the object and effect is to improve the tone and temper of the administration without forcing on it a stranger, however superb his virtues be, where the directive is not to restructure the governing body but to better its performance by a marginal catalytic induction, where no external authority's fiat or approval or outside nominee is made compulsory to validate the Management Board but inclusion of an internal key functionary appointed by the autonomous management alone is asked for, the provision is salutary and saved, being not a diktat eroding the freedom of the freedom.
17. A dichotomy is sometimes drawn in this branch of juridical discussion. More plainly, the difference drawn is between creating a managing body by the minority community and regulation of the manner of its functioning to obviate maladministration. The former is ordinarily beyond the pale of legislative prescription while the latter is permissible as a preservative. Broadly, this is sound, but as a rigid logical formula, it breaks down. For, some regulations may impinge marginally upon the composition of the administrative organ though manifestly meant to save the institution from mismanagement "
144. Mathew' J, referring to his opinion in the Ahmedabad St.Xavier's (1974) 1 SCC 717 : AIR 1974 SC 1389 (1), while recorded his dissenting opinion therein by stating that the minority community has the exclusive right to vest the administration of the college in the body of its own choice and any compulsion from an outside authority to include any other person in that body is an abridgement of its fundamental right to administer the educational institution. Testing the law under challenge therein namely the Statute 14A while reiterating his opinion in paragraph No. 182 (hereinabove), it was observed in Paragraph No.'43' that:-
"43. It is, no doubt, true that it is upon the principal and the teachers that the whole temper and the tone of a college depend. But that does not mean that the principal and the teachers should be members of the governing council of a college....."
145. In All Saints High School (1980) 2 SCC 478, three Judges of the Apex Court constituting the bench wrote separate judgments giving split verdict on the validity of each provision of the regulatory Act challenged therein. However, the law laid down by the majority in the Ahmedabad St. Xavier's (1974) 1 SCC 717 : AIR 1974 SC 1389 (1) was analyzed and principles and prepositions therein were summarized in Paragraph No.'63' in the following manner:-
"63......**
(6) The introduction of an outside authority however high it may be either directly or through its nominees in the governing body or the managing committee of the minority institution to conduct the affairs of the institution would be completely destructive of the fundamental right guaranteed by Article 30(1) of the Constitution and would reduce the management to a helpless entity having no real say in the matter and thus destroy the very personality and individuality of the institution which is fully protected by Article 30 of the Constitution..........Where educational institutions have set up a particular governing body or the managing committee in which all the powers vest, it is desirable that such powers should not be curbed or taken away unless the Government is satisfied that these powers are grossly abused and if allowed to continue may reduce the efficacy or the usefulness of the institution.
(7) It is, therefore, open to the government or the university to frame rules and regulations governing the conditions of service of teachers in order to secure their tenure of service and to appoint a high authority armed with sufficient guidance to see that the said rules are not violated or the members of the staff are not arbitrarily treated or innocently victimised........It would be better if the authority concerned associates the members of the governing body or its nominee in its deliberation so as to instil confidence in the founders of the institution or the committees constituted by them.
(8) Where a minority institution is affiliated to a university the fact that it is enjoined to adopt the courses of study or the syllabi or the nature of books prescribed and the holding of examination to test the ability of the students of the institution concerned does not violate the freedom contained in Article 30 of the Constitution.
(9) While there could be no objection in setting up a high authority to supervise the teaching staff so as to keep a strict vigilance on their work and to ensure the security of tenure for them, but the authority concerned must be provided with proper guidelines under the restricted field which they have to cover. Before coming to any decision which may be binding on the managing committee, the head of the institution or the senior members of the managing committee must be associated and they should be allowed to have a positive say in the matter...."
146. The salient features of the bill therein as stated in the statement of objects and reasons was to regulate the service conditions of the teachers in the private educational institutions and for ensuring the security of service of the teachers, restrain from punishing teachers on flimsy grounds without framing charges and without giving an opportunity to explain. The preamble stated that the Act is to provide for terms and conditions of service of teachers and to control over the recognized private educational institution. Noticing the object stated for bringing the legislation, Fazalali' J considering the provision of Section 3 (2) of the Andhra Pradesh Recognized Private Educational Institutions Control Act' 1975, which stated that any action taken against the teacher in the matter of dismissal, removal or reduction in rank or termination will be of no consequence unless it is approved by the competent authority, has observed in Paragraph No.'68' as under:-
"68....If the State wanted to regulate the conditions of service of the teachers it should have taken care to make proper rules giving sufficient powers to the management in the manner in which it was to act. Secondly, the induction of an outside authority over the head of institution and making its decision final and binding on the institution was a blatant interference with the administrative autonomy of the institution. Sub-section (2) does not contain any provision that while giving approval the competent authority was to ascertain the views of the governing body or the managing committee so as to know their viewpoint and the reason why action has been taken against a particular teacher or teachers....."
147. Two other decisions cited before us of the year 1996 - 1998 (reported in 1998 Supreme Court Cases) in Pre TMA Pai regime are N.Ammad (1998) 6 SCC 674 and Board of Secondary Education (1998) 8 SCC 555, wherein the challenge was to the statutory provisions regulating the selection of Headmaster/Principal of minority institution. In N.Ammad (1998) 6 SCC 674, the institution was an aided school governed by the provisions of the Kerala Education Bill' 1958. The challenge therein was to the decision of the management of appointment of the teacher transferred from another school to the post of headmaster of the minority school. The appellant, who claimed to be the senior most graduate teacher of the minority school had challenged the appointment taking plea of the rules recording conditions of service of aided school teachers framed under the Kerala Education Act to argue that when a teacher is transferred from one school to another his rank in the new school shall be fixed next below the juniormost teacher in the school in the particular grade. Another rule, which prescribed minimum service qualification for appointment as Headmaster was pressed into service to argue that the appointment of Headmaster shall ordinarily be according to the seniority from the seniority list prepared and maintained under the rules.
148. The Apex Court, while considering the decisions in Kerala Education Bill AIR 1958 SC 956; the Ahmedabad St. Xavier's (1974) 1 SCC 717 : AIR 1974 SC 1389 (1); Gandhi Faiz-e-am (1975) 2 SCC 283, has observed in paragraph No. '24', as noted in the foregoing paragraphs of this judgment (in the discussion of argument of the learned Senior Counsels for the parties) and held that the management's right to choose a qualified person as the Headmaster of the school will insulate by the protective cover of Article 30 (1) of the Constitution. The management has the right and freedom to choose a qualified teacher as the Headmaster of the institution, even by bringing him down from another school or even from outside the State. This decision, evidently, was given in the facts and circumstances of that case.
149. Similarly, in Board of Secondary Education (1998) 8 SCC 555, the management chose one of the teachers working in the institution, who was otherwise eligible according to the rules prescribed by Madhya Pradesh Government, for the post of principal. The third respondent therein working in the school, who was also qualified according to the rules of appointment raised the challenge. The educational authorities refused to approve the appointment of teacher chosen by the management and approved the appointment of third respondent therein. In light of the said fact, the Apex Court has clarified that in the matter of the appointment of the Principal, management of minority educational institution has a choice, inasmuch as, one of the incident of the right to administer a minority educational institution is the selection of the Principal. It was held in the facts of the case that both the teachers selected by the management and the third respondent therein were qualified and eligible for appointment as Principal according to the rules, the choice of management of the school cannot be interfered with by the State.
RATIO OF THE DECISIONS IN POST-TMA PAI REGIME
150. In Brahmo Samaj Education Society v. State of W.B. (2004) 6 SCC 224, the challenge was to the regulations providing the manner of selection of persons for appointment of teachers through the College Service Commission constituted under the College Service Commission Act. By virtue of the provisions of Section 7 of the College Service Commission Act, the power of appointment of a teacher in the college or institution affiliated to university in West Bengal vested in the Government appointed College Service Commission. The petitioner society claimed that they being religious minority protected by Article 30 (1) of the Constitution cannot be regulated in the matter of appointment of teachers and the requirement of selection through the College Service Commission cannot be thrust upon them. In light of the above nature of the Statute, the Apex Court following TMA Pai Foundation (supra) has held in Paragraph No. 7 in the following manner:-
"7. But that control cannot extend to the day-to-day administration of the institution. It is categorically stated in T.M.A. Pai 2002 (8) SCC 481 (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 qualification for a teacher. The petitioners' right to administer includes the right to appoint teachers of their choice among the NET-/SLET-qualified candidates."
151. In the year 2007, the seven Judges Bench in the decision of PA Inamdar (2005) 6 SCC 537 was constituted to clarify unsettled questions in TMA Pai 2002 (8) SCC 481. Considering the inter- relationship between Article 19 (1)(g), 29(2) and 30(1) of the Constitution, it was held therein that:-
(i) to some extent what may be permissible by way of restriction under Article 19 (g) may fall foul of Article 30. The right to establish and administer national institutions of their choice is an additional protection, which Article 30(1) grants to the minorities.
(ii) aid and affiliation and recognition, both by the State, bring in some amount of regulation as a condition of receiving grant and regulation.
(iii) the regulation must satisfy the test of reasonableness and being rationale; regulative of the essential character of the institution and is conducive to making the institution an effective vehicle of education for the minority or other person, who resort to it. (Referring to the test laid down in Rev.Sidhajbhai Sabhai (supra). It is directed towards maintaining excellence of education and efficiency on administration so as to prevent it from falling in standards.
(iv) It was noted in PA Inamdar (2005) 6 SCC 537 that in TMA Pai Foundation 2002 (8) SCC 481, speaking for the majority, Kirpal' CJ, while dealing with the tests laid down in Rev.Sidhrajbhai Sabhai AIR 1963 SC 540 and spelt out in the Ahmedabad St.Xavier's (1974) 1 SCC 717 : AIR 1974 SC 1389 (1), that no regulation can be cast in 'the interest of the Nation' if it does not serve 'the interest of the minority' as well. The observations in Paragraph No. 107 of TMA Pai Foundation 2002 (8) SCC 481 noted therein speaks that:-
"107....Any regulation framed in the national interest must necessarily apply to all educational institutions, whether run by the majority or the minority. Such a limitation must necessarily be read into Article 30. The right 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 was, thus, clarified in PA Inamdar (2005) 6 SCC 537 that no right can be absolute. Whether a minority or a non- minority, no community can claim its interest to be above National interest.
(v) It was stated that 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. The opinion of S.P. Sinha' J in Islamic Academy clarifies this aspect with meticulous precision coupled with brevity, was noted therein (in Paragraph No. 103):-
"103......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."
152. In Secy., Malankara Syrian Catholic College (2007) 1 SCC 386, rendered in the year 2007, there were two colleges, which were aided private minority institutions affiliated to Kerala University under the Kerala University Act, 1974. The college management undertook the process of selection to the post of principal of the college concerned. In a challenge to the selection before the Kerala University Appellate Tribunal, the tribunal directed the management of both the colleges to make a fresh selection. The High Court relied on the decision of the 11 Judges Bench of the Apex Court in TMA Pai Foundation 2002 (8) SCC 481 to hold that receiving of aid by a minority institution resulted in removal of the protection under Article 30 (1), by taking away its right to claim immunity from interference, and therefore, all regulations made by the State governing the manner of making appointments and removal as also the conditions of service of Principals and Lecturers, will be binding on such aided institution. The High Court held that aid carries the 'price' of surrender of a part of its freedom and independence in matters of administration. As a consequence, it held that Section 57(3) of the Kerala University Act providing that appointments of Principal should be on the basis of seniority- cum-fitness was valid and binding on minority institutions.
153. It is in this context, in the facts of that case, the Apex Court has examined the applicability of Section 57 (3) of the Act to minority-run educational institutions and held that Section 57 (3), which insist on selection by promotion on the basis of seniority-cum-fitness, trammels the right of the management to take note of merit of the candidate, or the outlook and philosophy of the candidate which will determine whether he is supportive of the objects of the institution. Such a provision clearly interferes with the right of the minority management to have a person of their choice as Head of the institution and, thus, violates Article 30(1) and hence, cannot apply to minority institutions even if they are aided.
154. The abovenoted observations in pargraph No. '27' [in Secy, Malankara Syrian Catholic College (2007) 1 SCC 386] have been heavily relied by Mr. Mihir Thakore, learned Senior advocate for the petitioner, to vehemently argue that the freedom to choose a person to be appointed as a Principal, has always been recognized as a vital facet of the right to administer the educational institution. This principle of law stated in the Ahmedabad St. Xavier's (1974) 1 SCC 717 : AIR 1974 SC 1389 (1) has not been, in any way, diluted or altered in TMA Pai Foundation 2002 (8) SCC 481. We may hold that the said statement in Secy, Malankara Syrian Catholic College (2007) 1 SCC 386 is the statement of law, which withstood the test of time, but the same is to be applied taking into consideration of the nature of regulations, in light of the test noted hereinabove as to whether the regulations is aimed at or has an effect of depriving the institution of control on its day to day affairs, with respect to the choice of the management to select Principal, who is most suited to head the institution with the caveat that "provided he possess the qualifications prescribed for the post."
155. In Sindhi Education Society (2010) 8 SCC 49, heavily relied by the learned Senior Counsel for the petitioner, the question was as to whether Rule 64 (1)(b) of the Delhi School Education Rules, 1973 and the orders / directions issued therein, would, if made applicable to an aided minority educational institution violate the fundamental right guaranteed under Article 30 (1) of the Constitution. The aforesaid rules and the directions issued therein by the Deputy Director of Education required the Managing Committee of the Society to implement reservation for the Scheduled Castes and the Scheduled Tribes for the appointment of teachers. The observations in paragraph Nos. '79 to 85' of the said decision as noted in the foregoing paragraphs of this judgment about the applicability of Article 16 of the Constitution of India, (which enshrines equality of opportunity in matters of public employment so as to prohibit discrimination in relation to the service under the State), had been made in the above context. It was held that the minority institutions, by receiving grant-in-aid per se would not become "State" within the meaning of Article 12 of the Constitution of India. We may simply note that the deliberation in the said judgment of the right of the management of minority institution to appoint a teacher being part of the regular administration and management of the school cannot be read out of the context. We may simply say that the statement of law in Sindhi Education Society (supra) about the right of minorities to administer their institution and the power of the State to regulate, is nothing but reiteration of the law laid down in the decisions of the Apex Court in the Ahmedabad St.Xavier's (1974) 1 SCC 717 : AIR 1974 SC 1389 (1), TMA Pai Foundation 2002 (8) SCC 481 and PA Inamdar (2005) 6 SCC 537 and reiterated in the abovenoted decisions and thereafter from time to time in post TMA
Pai Regime.
156. In Chandana Das (2020) 13 SCC 411, the main dispute was about the status of the institute known as Khalsa Girls High School, Paddapukur Road, Calcutta being the minority institution. The argument was that the school having accepted the special constitution of Managing Committee in terms of Rule 8 (3) of the Rules for Management of Recognized Non-Government Institution (Aided and Unaided), 1969 was estopped from contending that it is a minority institution covered by the Rule 32 therein, which provided that nothing in the Rules' 1969 shall apply to non-government aided educational institutions established and administered by a minority, referred to in Clause (c) of Section 2 of the West Bengal Minority Commission Act' 1996.
157. It is in this context, while reading the definition of minorities under Section 2(c) of the West Bengal Minority Commission Act' 1996, and considering the other relevant material on record, it was held by the Apex Court therein that there cannot be a dispute about the minority character of the institution, which was established by a linguistic minority namely the Sikhs in the State of West Bengal. Merely because Rule 8 (2) of the Rules' 1969 was purportedly applied and the institution accepted a special constitution of the managing committee of the School, circulated vide letter from the Secretary, West Bengal Board of Secondary Education, it cannot be said that it has waived its right to be treated as linguistic minority institution. While setting out the scope and ambit of Article 30 (1) of the Constitution, noticing the previous decisions, it was held therein that the institution, in no manner, can be stopped from claiming its minority status. It was noted that it is a settled law that the fundamental right under Article 30 cannot be waived.
158. We may record that all the statements made by the Apex Court in the said decision, spelled out in the facts of the case, are again reiteration of the law stated by the Apex Court in its previous decisions noted hereinbefore. Rule 28 of the Rules' 1969 therein provided that in an aided institution, the committee shall, subject to the provisions of any grant in aid scheme or pay revision scheme or any order or direction or guide-lines issued by the State Government or the Director in connection therewith and in force for the time being, have the power to appoint teachers on permanent or temporary basis against permanent or temporary vacancies, on the recommendation of the West Bengal Regional School Service Commission. The provision for selection of teachers by the West Bengal Regional School Service Commission was, held to be a serious infraction of the right of minority institution to administer the institution with teachers of its choice. We may simply note that there is no quarrel about the legal proposition laid down therein, which was stated in the facts and circumstances of that case.
159. We may now come to the decisions heavily relied by the learned Advocate General to put forth the stand of the State that the regulations under challenge herein, in no way, are encroachment on the right of the minorities to administer their educational institutions.
160. One of the decisions, which is the bone of contention of the submission of the learned Advocate General is S.K. Mohd. Rafique (2020) 6 SCC 689, wherein the Apex Court had examined the validity of provisions of the West Bengal Madrasah Service Commission, 2008 (for short, "the Commission Act' 2008"). The challenge was raised therein on the premise that by prescribing the process of appointment of teachers in aided Madrasah, which was recognised as a Minority Institution, the right of management was taken over and entrusted to the Commission. It was submitted that the provisions of the Commission Act' 2008 transgressed the right of the minority institution of choosing its own teachers.
161. The Apex Court therein, on detail deliberation of all the previous (above noted) decisions (in 'discussion and conclusion' beginning from paragraph No. 41) had concluded the principles stated therein to record in paragraph No. 45 that, "going by the decision of eleven Judges of this Court in TMA Pai Foundation, so long as the principles laid down therein, as culled out hereinabove, are satisfied, it is permissible if any regulations seek to ensure the standard of excellence of the institutions while preserving the right of the minorities to establish and administer their educational institutions."
162. Referring to both the decisions in TMA Pai Foundation 2002 (8) SCC 481 and P.A. Inamdar (2005) 6 SCC 537, it was noted in paragraph No.'46' that:-
"46. .....A minority institution cannot in the name of right under Article 30(1) of the Constitution, disregard merit or merit-based selection of students as regards professional and higher education....."
163. With respect to the right to appoint teachers, it was stated in paragraph No.'47' referring to the TMA Pai Foundation 2002 (8) SCC 481 that:-
"47. .....a regulation framed in the national interest must necessarily apply to all institutions regardless of whether they are run by majority or minority as the essence of Article 30(1) is to ensure equal treatment between the majority and minority institutions. An objection can certainly be raised if an unfavourable treatment is meted out to an educational institution established and administered by minority. But if ensuring of excellence in educational institutions is the underlying principle behind a regulatory regime and the mechanism of selection of teachers is so designed to achieve excellence in institutions, the matter may stand on a completely different footing."
164. It was noted that the test laid down in The Ahmedabad, St. Xaviers (1974) 1 SCC 717 : AIR 1974 SC 1389 (1) that the balance between the two objectives that; of ensuring the standard of excellence of the institution and that of preserving the right of minorities to establish and administer their educational institutions, had been accepted in TMA Pai Foundation 2002 (8) SCC 481 in the context of two categories of institutions:-
(i) One imparting education, which is directly aimed at or dealing with preserving and protection of the heritage, culture, script and special characteristics of a religious or a linguistic minority;
(ii) While the second category of institution can be those, which are imparting what is commonly known as 'secular education'.
165. It was observed that in the first category, maximum latitude may be given to the management of the minority institutions concerned as they would normally be considered to be the best judges of what would help them in protecting and preserving the heritage, culture or script or such special features or characteristics of the minorities concerned. However, when it comes to the second category of institutions, "the governing criteria must be to see to it that the most conducive atmosphere is put in place where the institution achieves excellence and imparts best possible education."
166. The observations in paragraph Nos. '49 to 53' in S.K. Mohd Rafique (2020) 6 SCC 689 are to be noted herein for a better appreciation of the law laid down therein:-
"49. As laid down in the leading judgment in Ahmedabad St. Xavier's College case, regulations which will serve the interest of the students so also regulations which will serve the interest of the teachers are of paramount importance in good administration; that regulations in the interest of efficiency of teachers are necessary for preserving harmony amongst the institutions; and that the appointment of teachers is an important part in educational institutions. It is quite natural that qualitatively better teachers will ensure imparting of education of the highest standard and will help in achieving excellence. As accepted in Frank Anthony Public School case, the excellence of the instruction provided by an institution would depend directly on the excellence of the teaching staff and would in turn depend inter alia on the quality of teachers.
50. Thus, if the intent is to achieve excellence in education, would it be enough if the educational institutions concerned were to employ teachers with minimum requisite qualifications in the name of exercise of right under Article 30 of the Constitution, while better qualified teachers are available to impart education in the second category of institutions as stated hereinabove. For example, if the qualifying percentile index for a teacher to be appointed in an educational institution, considering his educational qualifications, experience and research, is required to be 50, and if teachers possessing qualifications far greater and higher than this basic index are available, will it be proper exercise for a minority educational institution to select teachers with lower index disregarding those who are better qualified Will that subserve pursuit of excellence in education One can understand if under the regulatory regime candidates who are otherwise less qualified are being nominated in the minority educational institution and the minority educational institution is forced to accept such less meritorious candidates in preference to better qualified candidates. In such cases, the minority educational institution can certainly be within its rights to agitate the issue and claim a right to choose better teachers. But if the candidates who are selected and nominated under the regulatory regime to impart education which is purely secular in character, are better qualified, would the minority institution be within its rights to reject such nomination only in the name of exercise of a right of choice The choice so exercised would not be in pursuit of excellence. Can such choice then be accepted
51. If the right is taken to be absolute and unqualified, then certainly such choice must be recognised and accepted. But, if the right has not been accepted to be absolute and unqualified and the national interest must always permeate and apply, the excellence and merit must be the governing criteria. Any departure from the concept of merit and excellence would not make a minority educational institution an effective vehicle to achieve what has been contemplated in various decisions of this Court. Further, if merit is not the sole and governing criteria, the minority institutions may lag behind the non-minority institutions rather than keep in step with them.
52. Going back to the example given above, as against index of 50 i.e. the minimum qualifying index, if a candidate nominated under the regulatory regime is at an index of 85, selection by a minority educational institution of a candidate at an index 55 may certainly be above the minimum qualifying mark, but in preference to the one at the index of 85 who is otherwise available, the appointment of a person at the index level of 55, will never give the requisite impetus to achieve excellence. A meritorious candidate at the index level of 85 in the above example, if given the requisite posting will not only help in upholding the principle of merit but will in turn generate an atmosphere of qualitative progress and sense of achievement commensurate with societal objectives and ideology and such posting will, therefore, be in true national interest.
53. At the cost of repetition, it needs to be clarified that if the minority institution has a better candidate available than the one nominated under a regulatory regime, the institution would certainly be within its rights to reject the nomination made by the authorities but if the person nominated for imparting education is otherwise better qualified and suitable, any rejection of such nomination by the minority institution would never help such institution in achieving excellence and as such, any such rejection would not be within the true scope of the right protected under Article 30(1) of the Constitution."
167. We may note that placing the discussion in paragraph No. 55 in S.K. Mohd. Rafique (2020) 6 SCC 689 it was argued by the learned Senior Counsels for the petitioners that the law laid down therein cannot come to the rescue of the State. The Apex Court had held therein that there was no defect in the composition of the Commission therein, which had been entrusted with the task to recommend teachers for Madrasah, inasmuch as, predominant composition of the Commission was that of educationist and persons with profound knowledge in Islamic culture and Islamic theology. It was noted that the provisions of the Commission Act' 2008 was specially designed for Madrasah and Madrasah education system in the State. It was, therefore, held that when the State legislature had taken care to see that the composition of the Commission would ensure compatibility of the teachers, who would be selected to impart education in Madrasah education system, there was no reason to interfere.
168. The submission is that no analogy can be drawn from the said decision to save the constitution of the Scrutiny committee and Minority schools selection committee, prescribed in the impugned rules framed by the State under Section 35 of the Act' 1972. The rationale, which was applied in S.K. Mohd Rafique (2020) 6 SCC 689 to save the provision challenged therein, cannot be applied to the facts and circumstances of the present case.
169. The question, thus, to be examined by us in the facts and circumstances of the present case, is whether the procedure prescribed in the rules for recruitment of Principal and Teachers of the minority educational institutions aimed towards a fair and transparent process of merit based selection, to ensure that only those teachers, who would be best suited to impart education in minority institutions would be selected; or by prescribing methodology of recruitment in the rules, the State has crossed the delicate line to reach on its negative side, making the rules vulnerable and they are required to be held as encroaching upon the right of the minorities to administer their institutions by exercising their choice to select teachers and, thus, impinge Article 30 (1). We are, thus, required to examine as to whether the rules under challenge can withstand the time tested dual stated down in the Ahmedabad, St. Xaviers (1974) 1 SCC 717 : AIR 1974 SC 1389 (1).
170. We have to test the validity of the rules under challenge keeping in mind of the basic principles that the regulation, which:-
(i) does not tinker with the minority character of the institution; and
(ii) does not interfere with the day to day management of such institutions and has been enacted for the purpose of maintaining standards and excellence of education;
cannot be held to be bad, inasmuch as, the right of the State to regulate education, educational standards and allied matters cannot be disputed since the minority institution cannot be allowed to fall below the standards.
Findings and conclusion on the impugned Provisions:-
171. We shall now proceed to record our findings on a careful reading of the Rules, 2021 framed by the State prescribing procedure for selection of principal and teachers in the registered private secondary and higher secondary minority schools in the State.
172. We may clarify, at this stage, that we are concerned here with the aided minority institutions registered in the State of Gujarat, who are before us as the petitioners. We may also note that there is no quarrel about the prescription of the eligibility qualifications under the regulations framed by the State Government namely the Secondary Education Regulations' 1974. Regulation 20 as referred in Appendix I and II of the Rules, 2021 for selection of Principal and Teachers is the provision which prescribes qualifications for the appointment of a Headmaster and Teachers of a registered school in the State. With respect to the prescription of the eligibility qualification, only dispute raised herein is about the prescription of "Head Master Aptitude Test" (HMAT) and "Teachers Aptitude Test" (TAT), incorporated for selection of Principal and teachers, by giving weightage of marks obtained in the said test for the purpose of preparation of the "list of 'eligible candidates' in the order of merit."
173. Proceeding with the challenge, we may record Section 40-A, saving clause in the Principal Act of 1972, amended by the Gujarat Secondary and Higher Secondary Education (Amendment) Bill, 2021 for exclusion of the exceptions in the principal section or in other words, for application of the provisions contained in Clause (26) of Section 17, Section 34 (2) and Section 35 to any educational institutions established and administered by a minority (religious and linguistic).
174. As noted hereinbefore, Section 17(26) confers powers on the Board (Gujarat Secondary and Higher Secondary Education Board) to lay down qualifications, methods of selection of conditions of appointment, promotion and termination of employment and providing for rules for conduct and discipline of headmaster and the teaching and non-teaching staff of registered private secondary and higher secondary schools.
175. The Gujarat Secondary and Higher Secondary Education Act, 1972 had been enacted to streamline the pattern of education in the State of Gujarat at the secondary and higher secondary level institutions, so as to bring uniformity and to achieve excellence in education. The First regulations to carry out the purposes of the Act have to be framed by the State Government in light of the provisions contained in Section 54 of the Act' 1972 and they continue to remain in force until new regulations are framed and sanctioned.
176. The 'Board' defined under Section 2 (b) is the 'Gujarat Secondary and Higher Secondary Education Board' established under Section 3, which is constituted of experts in the field of education (specifically secondary and higher secondary), as can be seen from the said section. Amongst various powers and duties of the Board prescribed in Section 17, the primary duty of the Board is to advice the State Government on matters of policy relating to secondary and higher secondary education in general. The Board enjoys power and has a duty amongst others; to prescribe for maintenance of educational standards such as patterns of secondary and higher secondary education; pertaining to educational planning, program and organization; integration of national and state policy with respect of secondary and higher secondary education; to recommend to the State Government the curricula and detailed syllabi relating to secondary and higher secondary education and to approve and to recommend to the State Government the textbooks prepared by the Gujarat State Board of School Textbooks for the use in the registered schools; to guide and help registered schools in their search in talent and in their endevour to lead them to peaks of excellence; to lay down the standards, including qualifications, methods of selection and conditions of appointment, promotion and termination of employment and rules for conduct and discipline of the headmaster and the teaching and non-teaching staff of the registered private secondary and higher secondary schools; to conduct the secondary and higher secondary school certificate examinations and other examinations and award certificates to candidates passing the said examination.
177. The Board is empowered to regulate private secondary and higher secondary schools from registration of the school to admission of students, selection of teaching and non-teaching staff, conduct of examinations, all aimed at achieving excellence of education.
178. Section 53 of the Act' 1972 empowers the Board to make regulations to carry out the purposes of the Act by giving effect to the provisions of the Act, generally and particularly relating to examinations and awarding certificates as well as providing the Constitution, powers and functioning of the Committee appointed under Section 18.
179. We may note that Clause (26) of Section 17, which was initially excluded by virtue of original Section 40-A (saving clause) from its application to minority institutions, has now been made applicable to the minority institutions. However, it only empowers the Board to lay down qualifications, method of selection and conditions of appointment, promotion and termination of employment and rules for conduct of discipline of Headmaster and teaching and non-teaching staff of registered minority institution in the State of Gujarat, which cannot be said to be transgression to the right of the minority to administer their institutions guaranteed under Article 30 (1) of the Constitution of India.
180. We may simply record that Clause (26) of Section 17 only empowers the Board, which is an expert body in the field of secondary and higher secondary institution to regulate minority institutions by providing prescription of qualifications etc. for the teaching and non-teaching staff, in its power delegated by the Statute framed by the State Government which can, in no manner, be said to be beyond the jurisdiction of the State to regulate the functioning of the minority institutions.
181. As regards Section 34 (2), which has now been applied to minority institutions by the Amendment Act of 2021, it only provides for empowering the Board to regulate the recruitment and conditions of service including conduct and discipline of persons appointed as headmasters, teachers and members of the non-teaching staff of the registered private secondary and higher secondary schools in the State.
182. We may note that the second proviso to Sub-section (2) of Section 34 even empowers the private secondary and higher secondary schools to make additional regulations with the previous provision of the Board, consistent with the basic nature and concept of basic education and not inconsistent with the regulations made by the State in the field. The power conferred upon the Board by virtue of Sub-section (2) of Section 34 to make regulations regulating the appointment and conditions of service including conduct and discipline of teaching and non- teaching staff of minority institution, in no manner, can be said to be violative of Article 30 (1) of the Constitution, for the settled legal position pertaining to the power of the State to regulate as discussed above.
183. The third provision, which has now been applied to minority institutions is Section 35 of the Act, 1972, which confers power upon the State Government to make rules prescribing for selection of teachers and headmasters of registered private secondary and higher secondary schools.
184. In light of the law laid down of the Constitution Bench of the Apex Court in the Ahmedabad St. Xavier's (1974) 1 SCC 717 : AIR 1974 SC 1389 (1) and TMA Pai Foundation 2002 (8) SCC 481 the right conferred on the religious and linguistic minorities to administer educational institutions of their choice is not an absolute right and is not free from regulations, we find that by mere application of the provisions of Section 17 (26), Section 34 (2) and Section 35 to the registered aided minority institutions in the State, it cannot be said that the State has crossed the line to encroach upon the rights of the minorities to run and administer their institutions. The power of the State to regulate, though, is not unfettered or unlimited but mere conferment of power by enabling provisions itself, cannot be perceived as infringement of the protection of Article 30 (1) of the Constitution.
185. The language of the above provisions is not such, which can be said to be unfettered, uncannalized or unlimited power of the State to make regulations as while framing regulations, the State legislature or the Board are expected to be alive of the constraint on their powers in the matter of making law regulating minority institutions put forth by the Constitution [Article 30(1)], which do not interfere with the right of minorities management to administer their institutions.
186. Mr. Mihir Joshi, the learned Senior Counsel, for the petitioners, in support of his contentions to challenge the validity of the provisions, would argue that the legislative history of the enactment of the Principal Act' 1972 show that the President of India had shown deference while evaluating the original bill for the Act, 1972, and the bill was suitably amended by promulgation of the Ordinance No. 6 of 1972 to exclude the provisions of Section 17 (26), Section 34 (2) and Section 35 from its applicability to the minority institutions with the clear idea, by the legislature, that there shall be no fetters on the right of the minority. To answer this, suffice it to say that, in the present scenario, when with the judicial pronouncements of the Apex Court clout on the power of the State to regulate the minority institutions has been cleared, the reference to the incident occurred at the time of enactment of the principal Act' of 1972, the original enactment, would be wholly irrelevant being prior to the Ahmedabad St. Xavier's (1974) 1 SCC 717 : AIR 1974 SC 1389 (1). With the development of the law holding the field, as deliberated above, it cannot be argued that the power conferred upon the State to make regulations by bringing amendment in the Statute incorporating enabling provision is itself hit by Article 30 (1) of the Constitution of India.
187. Suffice it to record that three provisions in the Statute namely Section 17 (26), Section (2) and Section 35, brought into force by the Amendment Act' of 2021, are merely enabling provisions, empowering the State Government and the Board, as the case may be, to make regulations, to regulate the minority institutions, so as to carry out the purposes of the Act' 1972, the object of which is to achieve excellence in education by maintaining standards of minority institutions. There can be no quarrel about the enabling power of the State to regulate, which obviously is circumscribed by the Constitutional framework in Article 30(1).
188. The point pressed by the learned Senior Counsel that the Amendment Act, 2021 was brought ignoring the legislative history of exclusion of the aforesaid provisions to minority institutions in the State, at the time of enactment of the principal Act' 1972 therefore, does not have any force.
189. Further submission of Mr. Mihir Joshi, learned Senior Counsel that is that Section 35 of the Act, 1972 applied by the amendment of Section 40-A by the Amendment Act 16 of 2021 being a general provision without any guidance conferring unfettered discretion upon the State executives to frame rules providing procedure for selection of Principal and teachers of minority institutions suffers from excessive delegation of legislative authority amounting to its abdication. Dealing with the same, suffice it to note that Section 35 of the Act, 1972 is an enabling provision conferring power on the State to regulate. As to how and to what extent the power to regulate is to be exercised by framing rules or regulations by the State executives is guided by the Supreme law of land, which is the Constitution of India under Article 30 (1), which confers right on the minorities (religious and linguistic) to establish and administer educational institutions of their choice. The restraint on the power of the State to frame rules, thus, being a constitutional mandate, is to be adhered to while making laws / rules, which seek to regulate minority institutions. This restraint can also be found in Article 13(2) of the Constitution, which prohibits the State from making any law, which takes away or abridges the rights guaranteed by Part - III of the Constitution of India.
190. Saving such law, which is totally destructive or abridges the guaranteed right in Part III in any form which have a secondary or indirect or incidental effect, where it crosses the line of permissible regulations and enters the forbidden territory of restriction or abridgment, would not be possible as it would have to be struck down being violative of Article 30 (1).
191. To moot the point, we may take guidance from the observations of the Apex Court in the Ahmedabad, St. Xavier's (1974) 1 SCC 717 : AIR 1974 SC 1389 (1) in Paragraph Nos. '99' and '174', which state as under:-
@"99. Argument has been advanced on behalf of the respondents that unless a law or regulation is wholly destructive of the right of minorities under Article 30(1), the same would not be liable to be struck down. This argument is untenable and runs counter to the plain language of Article 13. According to that article, a law would be void even if it merely abridges a fundamental right guaranteed by Part III and does not wholly take away that right. The argument that a law or regulation could not be deemed to be unreasonable unless it was totally destructive of the right of the minority to administer educational institutions was expressly negatived by this Court in the case of Rev. Sidhajbhai Sabhai AIR 1963 SC 540. After referring to the case of Re Kerala Education Bill AIR 1958 SC 956 this Court observed in the case of Rev. Sidhrajbhai Sabhai
AIR 1963 SC 540......"
"174. The application of the term "abridge" may not be difficult in many cases but the problem arises acutely in certain types of situations. The important ones are where a law is not a direct restriction of the right but is designed to accomplish another objective and the impact upon the right is secondary or indirect. Measures which are directed at other forms of activities but which have a secondary or indirect or incidental effect upon the right do not generally abridge a right unless the content of the right is regulated. As we have already said, such measures would include various types of taxes, economic regulations, laws regulating the wages, measures to promote health and to preserve hygiene and other laws of general application. By hypothesis, the law, taken by itself, is a legitimate one, aimed directly at the control of some other activity. The question is about its secondary impact upon the admitted area of administration of educational institutions. This is especially a problem of determining when the regulation in issue has an effect which constitutes an abridgment of the constitutional right within the meaning of Article 13(2). In other words, in every case, the Court must undertake to define and give content to the word 'abridge' in Article 13(2). [See generally the Judgment of one of us (Mathew, J.) in Bennett Coleman & Co. v. Union of India (1972) 2 SCC 788] The question to be asked and answered is whether the particular measure is regulatory or whether it crosses the zone of permissible regulation and enters the forbidden territory of restrictions or abridgment. So, even if an educational institution established by a religious or linguistic minority does not seek recognition, affiliation or aid, its activity can be regulated in various ways provided the regulations do not take away or abridge the guaranteed right. Regular tax measures, economic regulations, social welfare legislation, wage and hour legislation and similar measures may, of course have some effect upon the right under Article 30(1). But where the burden is the same as that borne by others engaged in different forms of activity, the similar impact on the right seems clearly insufficient to constitute an abridgment. If an educational institution established by a religious minority seeks no recognition, affiliation or aid, the state may have no right to prescribe the curriculum, syllabi or the qualification of the teachers."
192. The arguments advanced by the learned Senior Counsel that Section 35 of the Act, 1972 cannot be made applicable to minority institutions in its original form as it would result in excessive delegation of legislative authority to the State executives, which may result in the State executives making laws to infringe Article 30 of the Constitution, therefore, cannot be sustained. The submission that unfettered discretion conferred on the executives, by virtue of Section 35 of the Act,1972, without laying down any standards or rules of guidance to make use of it, would result in infringement of the equality doctrine enshrined in Article 14 of the Constitution of India, where positive discrimination amongst different classes of person is permissible is also to be turned down being far fetched.
193. We may only say that Section 35 is an enabling provision conferring power on the State to make rules providing procedure for selection of teachers and headmaster of registered private secondary and higher secondary schools, which itself is guided by the Constitutional provisions in Article 30 (1) read with Article 13 and no further guidelines is required to be incorporated by the legislature, as the legislature is expected to make laws, which are not inconsistent with the provisions of the Constitution, specifically Part - III. All laws of the State, in any case, have to confirm to the Constitutional mandate and there being specific mandate under Article 30 (1) about the protection of right of minority to establish and administer their institution, no more guidance is needed in the State legislation empowering the State Government (State executives) to make laws, in exercise of Section 35 of the Act'1972.
194. The above noted grounds to assail the amendment of Section 40-A to bring in the minority educational institutions under the umbrella of the enabling power of the State under Section 34 (2) and Section 35 being hit by Article 30 (1) of the Constitution and plea to declare it as ultra vires to the Constitution is, therefore, turned down.
195. The contention that the same enactment, which governs educational institutions run by the majority cannot be applied to regulate the minority institution on the plea of violation of Article 14, is also liable to be turned down for the discussion about the concept of equality, principle as culled out from the long line of decisions of the Apex Court that the whole object of conferring the special rights on minorities under Article 30 is to ensure that there will be equality between the majority and the minority.
196. The impugned provisions of the Act, 1972, conferring enabling power upon the State to make rules to regulate minority institutions in order to bring equality in the matter of administration of minority institutions keeping in mind the special protection granted to under Article 30, cannot be said to be hit by Article 14 or ultra vires to Articles 29 and 30 read with Article 14 of the Constitution.
197. Coming to the selection Rules '2021 regulating the selection of the Principal and the teachers in the registered Private Secondary and Higher Secondary Minority Schools framed by the State Government, in exercise of powers conferred under Section 35 of the Act' 1972, we may record that two separate rules have been framed in the matter of appointment of the Principal and the teachers of the schools having minority status in the State, which are pari materia in most of the aspects. The learned advocates for the petitioners have pressed common grounds of challenge to the validity of both the rules. We are, therefore, analysing both the rules together on the common aspects for dealing with the arguments of the learned Senior advocates.
198. The "Registered Private Secondary and Higher Secondary Minority Schools" as defined in Rule 2(b) of the Rules '2021 are such minority institutions (both religious and linguistic) which are receiving Grant-in-aid from the State Government. Rule 3 of the Rules '2021 for the Principal prescribed for the Constitution of the Scrutiny Committee, which has been extracted in the initial part of this judgment.
199. A perusal of the same indicates that while the Director of Schools, State of Gujarat is the Chairman, the Secretary of the Gujarat Secondary and Higher Secondary Education Board is the Ex-officio Member. Out of nine (9) Members and a Chairman of the Scrutiny Committee, five (5) are the representatives from the Minority School Management nominated by the Government. The Head Quarter of the Scrutiny Committee for the minority schools, as stated in the Rules, shall be at Gandhinagar.
200. The duties and functions of the Scrutiny Committee for the minority schools (Constituted under Rule 3) as prescribed in Rule 6, includes inter alia (1) ascertain the number of posts of the Principals/teachers, for which recruitment is to be made; (2) invite applications by an advertisement in the newspaper; (3) scrutinize the applications received and prepare the school-wise (in case of Principal) and School and subject wise (in case of Teachers) merit wise on the basis of weightage of the marks secured by the candidates in "Head Master Aptitude Test" (HMAT)/ "Teachers Aptitude Test" (TAT), as the case may be, conducted by the State Examination Board and the educational qualification as also the experience, if any, in the ratio prescribed therein [rule 6(3)], (4) prepare the list of 15 candidates in the order of merit in accordance with the Rule 6(3) and send it to the Minority Schools Selection Committee for personal interview. We may note that Rule 11 of the Rules '2021 governs the preparation of merit list for personal interview by the Scrutiny Committee and provides the criteria for consideration of the marks secured by the candidates for the Aptitude test and the weightage for preparation of the merit list, as per the Appendix I and II attached to the Rules.
201. The Appendix I & II provide for allocation of marks for educational qualifications required under Regulation 20(1) of the Gujarat Secondary and Higher Secondary Education Regulations '1974, such as Graduate, Post- Graduate degrees as well as required experience, and the methodology for calculation of weightage of aptitude test (HMAT/TAT) and educational qualification. A perusal of the Appendix I and II indicates that maximum marks have been allocated for each level of qualifications and experience of teaching on the post of Principal, for selection of Principal and as per the eligibility criteria for selection of Teachers. The criterias for calculation of weightage for the Aptitude test and weightage of qualification virtually do not leave any scope of discretion to be exercised by the Scrutiny Committee for assessment of the merit of the candidates. On assessment of eligibility criteria prescribed in Regulation 20(1) of the Regulations '1974, Rule 4 of the Rules, 2021 clearly provides that the requisite educational qualification to be eligible for appointment of a Principal/teachers under the provisions of the Act '1972, shall be as prescribed under the Regulations '1974 framed thereunder, as amended from time to time. The additional qualification of the basic knowledge of computer application, as prescribed in the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967 is not under challenge before us.
202. Having gone through the provisions of Rule 6 read with Rule 11 under Appendix I and II to the said rules, it is evident that the role of the Scrutiny Committee in preparation of the list of 15 candidates in the order of merit by inviting applications by an advertisement and scrutinizing the applications is to ensure that only those candidates possessing requisite qualification and meritorious amongst the eligible, are brought within the zone of consideration for selection to the post of Principal and teachers. With the specific marks provided in Appendix I and II for each criteria prescribed, no leverage remains with the Scrutiny Committee to make any deviation in the matter of preparation of the list of eligible candidates in the order of merit. The list of eligible candidates prepared by the Scrutiny Committee as per Rule 6(4) though termed as "the merit list for personal interview" in Rule 11, but as is clear from the careful reading of the Rules, the said list is only a "list of the eligible candidates in the order of merit", who meet the requisite eligibility qualification as prescribed in the Regulations '1974 as also the additional qualifications prescribed by the State Government. The list which is to be sent by the District Education Officer to the Minority School Selection Committee for personal interview as per Rule 11 is the list of eligible candidates shortlisted for the selection process, which is to be conducted by the Minority School Selection Committee by personal interview.
203. Rule 12 further only requires the District Education Officer to verify the certificates of the qualification criteria etc. of each of the candidates placed in the list of eligible candidates in the order of merits, before issuance of call letter to such candidates for personal interview. The power conferred upon the District Education Officer to verify the genuineness of the documents pertaining to the eligibility criteria of the shortlisted candidates, cannot be said to be transgression of the powers of the State into the arena of the jurisdiction of the Minority School Management Committee, to select a suitable candidate after interview.
204. Rule 13 which provides the selection procedure conducted by the Minority School Selection Committee clearly states that subject to verification of the documents by the District Education Officer after ascertaining the eligibility qualifications of each candidate placed in the list of eligible candidates, as per the rules, the Minority School Selection Committee shall make an assessment of the suitability of the candidates in the personal interview. Sub-rule(3) of Rule 13 provides the norms to be followed by the Minority School Selection Committee while allocating marks to the candidates in the interview. Sub-rule(3) of Rule 13 provides that after personal interview on the basis of the marks allocated to the candidates, final select list of not more than three candidates shall be prepared by the Minority School Selection Committee and recommendation be made to the Minority School Trust/ Management for the appointment. The order for appointment be issued to the first placed candidate out of the final select list so prepared and, in case, the candidate at sr.no.1 does not join, the second placed candidate shall be issued appointment order; in the similar fashion, in case of non-joining of the second placed candidate, the third-positioned candidate be issued appointment letter.
205. The provision prescribing for procedure of selection in Rule 13, to be adopted by the Minority School Selection Committee, providing the norms to be followed by the Selection Committee during the interview to assess the ability and knowledge of the candidate and preparation of the final selection list on the basis of marks allotted by it, cannot be said to an inroad to the rights of the minority to select a Principal or teacher according to their choice.
206. The norms prescribed in the Rule 13(3) are the guidelines to be followed by the Minority School Selection Committee to streamline the selection process by assessment of the suitability of the candidates for selection to the post of Principal/teacher, cannot be said to be an interference in the right of the minority management to choose a candidate who meets all eligibility criteria and is suitable to the expectation of the school management. The guidelines though are to be followed scrupulously, but they cannot be said to have an effect of curtailing the right of the Minority School Management or the Governing Body to choose the suitable candidates conducive to their institution directly or indirectly. The provisions in Rule 13(3) that the final merit (select) list of three candidates shall be prepared on the basis of the marks allocated in the personal interview by the committee and the first placed candidate shall be given preference in the appointment, cannot be said to be a fetter on the choice of the minority management, inasmuch as, the marks in the personal interview are to be allocated by the Selection Committee itself. The freedom to choose a candidate on assessment during the course of personal interview, who would be suitable to the culture, ethos and the minority character of the institution is left with the Minority School Management Committee.
207. The provisions of the Selection Rule prescribing that the first placed candidate should be given the appointment letter and the second and the third placed candidate will get their chance, in case of refusal to join by the candidates placed higher in the select list, are projected as the provisions interfering with the rights of the minorities to choose the Principal/teachers suitable to their institutions. In our considered opinion, the provision cannot be treated as a step of the rule making authority to cross the delicate line of permissible limit of reasonable restrictions and is liable to be rejected as misconceived, for the simple reason that the minority institutions cannot be permitted to argue that the Minority School Management or the Governing Body be given leverage to appoint a candidate lower in merit than the candidate who has obtained higher marks in the personal interview and placed higher in the final merit list. Once choice is made by the Minority School Management Committee as to who would be the most suitable candidate amongst all eligible candidates by allocation of marks in the interview, the school management cannot be permitted to deviate and choose anyone, even lower in merit, for issuance of appointment letter.
208. The submission of the learned senior counsels for the petitioners is that prescribing total marks allocated for preparation of the pool of the eligible candidates by the Scrutiny Committee and the procedure for selection of the Principal/teachers by the Minority School Selection Committee, is the proof of excessive control of the State in the whole selection process and nothing is left actually to the discretion of the minority institutions in the matter of making selection of Principal and teachers of their choice who could uphold the ethos, culture and traditions of the minority (religious and linguistic). The submission is that Rule 13 providing for selection procedure leaves a very limited choice for the Minority School Management to select the Principal/teachers from the pool of eligible candidates in the list prepared by the Scrutiny Committee. The argument is that instead of prescribing that only the first placed candidate in the final select list shall be issued appointment letter by the Minority School Trust/Management, the discretion should have been left to the management to choose a better candidate who may not be at Sr. no.1 in the final select list prepared by the Minority School Selection Committee, but is best suited to the minority character of the institution.
209. The further contention is that only 40 marks have been left to the discretion of the Minority School Selection Committee which have further been distributed amongst the members of the Minority School Selection Committee, which include outsiders, in the constitution provided under Rule 3 of the Rules '2021, which is not sufficient to make a choice. The contention is that the reading of the Rule, as a whole, makes it clear that the Minority School Management/Governing Body has been completely displaced and the decision making authority of the Governing Body of the minority management has been usurped by the Scrutiny Committee and the Selection Committee prescribed in the rules.
210. There is a challenge to the Constitution of the Minority School Selection Committee prescribed in Rule 7. It was vehemently argued by the learned senior counsel for the petitioners that the Rules '2021 prescribing the selection criteria for the Principal/Teachers have crossed the line drawn by the Apex Court and cannot withstand the dual test of reasonableness and being rationale, i.e. the regulations being conducive to the minority character of the institution.
211. It was urged that a perusal of the rule 7 indicates that the Chairman of Minority School Selection Committee for selection of Principal/Teachers though is one of the trustees nominated by the Trust/Management of the minority school, who is indisputably obviously an insider, but the provision including other three members namely, (i) an academician outside of the Taluka; (ii) one representative to be nominated by the concerned Minority School Trust/Management and (iii) a Principal of another Grant-in-aid registered private school to be nominated by the concerned Minority School Trust/Management, who are all outsiders and have been thrust upon the minority school trust/management is an interference. The choice of Members to be incorporated in the constitution of the Minority School Selection Committee under Rule 7 of the Rules '2021, is nothing but an infringement in the right of the management to make a choice. It was urged that when the selection committee itself is constituted of outsiders, how can it be assumed that the choice made by the committee is the choice of the School Management/Trust. A camouflage is created as though the academician outside of the Taluka and a Principal of another Grant-in-aid registered private schools though are to be suggested/nominated in the matter of selection of Principal by the concerned Minority School Management/Trust, but they both are rank outsiders. The regulations (rule 7) prescribing the Constitution of the Minority School Selection Committee for selection of the Principal Teachers provided in the Rules '2021 is contrary to the spirit of the statement of law made by the Apex Court in Ahmedabad St. Xavier's (1974) 1 SCC 717 : AIR 1974 SC 1389 (1).
212. Testing the above submissions, with the standards laid down in Ahmedabad St. Xavier's (1974) 1 SCC 717 : AIR 1974 SC 1389 (1), we may reiterate that a balance has to be kept between the two objectives, that of ensuring the standard of excellence of the institution and that of preserving of rights of the minorities to establish and administer their education institution. It is settled law that the regulation which embraces and reconciles the two objectives cannot be considered to be unreasonable. The submission of the learned senior counsel for the petitioners that prescription of the constitution of the Selection Committee in Rule 7 and the method and manner of preparation of final selection list after interview under Rule 13, are serious inroads on the rights of administration and appear perilously near violating their right, is not found convincing considering the law developed by the Apex Court since over 5 decades.
213. We find guidance in the statements made in S.K. Mohd. Rafique (2020) 6 SCC 689 (para Nos. '49' and '50') considering the leading judgment in Ahmedabad St. Xavier's (1974) 1 SCC 717 : AIR 1974 SC 1389 (1) and Frank Anthony Public School Employees Association45 that "excellence of the instructions provided by an institution would be dependent directly on the excellence of the teaching staff and would in turn depend inter alia on the quality of teachers. The regulations which serve the interest of the students as also the interest of the teachers are of paramount importance in good administration. The regulations in the interest of efficiency of teachers by bringing transparency in the selection process are necessary for preserving harmony amongst the institutions, inasmuch as, the appointment of the teachers is an important part of maintaining the excellence in education institutions. It is quite natural that qualitatively better teachers will ensure imparting education of highest standard and will help in achieving the excellence. The governing criteria providing for selection of better qualified teachers who impart education in recognized aided minority institutions can be said to be the most appropriate criteria to bring the most conducive atmosphere in place where the institution achieve excellence and imparts best possible education."
214. In S.K. Mohd. Rafique (2020) 6 SCC 689, the Apex Court has further proceeded to refer and examine that if the intent is to achieve the excellence in education, would it be enough if the educational institutions concerned were to employ teachers with minimum requisite qualifications in the name of exercise of right under Article 30 of the Constitution, while better qualified candidates are available to impart the education. Will it be proper for a minority education institution to select the teachers with lower qualifying percentile index disregarding those who are better qualified. It has posed a question "will that sub-serve the pursuit excellence in education ".
215. While answering the same, it was noted by the Apex Court that there may be a situation where minority education institution can agitate their right where under the regulatory regime, the candidates who are otherwise less qualified, are being nominated in the minority education institutes and the Minority Education Institutes are forced to accept such less meritorious candidates in preference to the better qualified candidates. But if in the regulatory regime, the candidates are selected and nominated to impart education are better qualified, would the minority institution be within its rights to reject such nominations only in the name of exercise of right of choice The choice so exercised would it not be in the pursuit of excellence.
216. The Apex Court has gone on to hold that right under Article 30 has not been accepted to be an absolute and unqualified and the National interest must always permeate and apply, the excellence and merit must be the governing criteria. Any departure from the concept of merit and excellence would not make any minority educational institution an effective vehicle to achieve what has been contemplated in various decisions of the Apex Court. If merit is not the sole and governing criteria, the minority institutions may lag behind non- minority institutions rather than keeping in step with them. It was observed that rejection of a better candidate available with the minority institution will never help to such institution in achieving the excellence and such rejection would not be within the scope of rights protected under Article 30(1) of the Constitution.
217. In light of the said statement of law, as noted hereinabove, the governing criteria brought in place by the Rules '2021, framed by the State Government under Section 35 of the Act '1972, is such which will help the minority institutions to choose the best available candidate out of the list of eligible candidates in the order of merit prepared by the Scrutiny Committee. The role of the Scrutiny Committee, as noted hereinabove from the careful reading of the Rules, is wholly circumscribed by the provisions in Rule 11 read with Appendix I and II of the Rules '2021 and the eligibility list in the order of merit is to be prepared by the Scrutiny Committee chaired by the Director of Schools of State of Gujarat out of those candidates who possess the eligibility criteria. The criteria of allocation of 60% weightage for the Aptitude test (HMAT & TAT) conducted by the State Examination Board is also circumscribed by the calculation prescribed in Appendix II. The criteria for allocation of 40% weightage of educational qualification is prescribed in Appendix I. As per the Appendix I, as can be seen, that 10 maximum marks are prescribed for Graduate Degree; 7 for the Post-Graduate Degree; 10 for the Graduate Degree in professional courses; 5 for Post-Graduate Degree in professional courses; 5 for experience, as per regulation 20(1) of the Gujarat Secondary and Higher Secondary Education, Regulations, 1974 which prescribes the qualifying criteria for selection to the posts. "The experience" as a Principal in a Registered Private Secondary and High Secondary School has been allocated maximum marks of (@ per year 0.5). This criteria of allocation of maximum marks to calculate 40% weightage of qualification for the purpose of preparation of the list of eligible candidate in the order of merit, to prepare a pool of meritorious candidates for placing the list before the minority school Selection Committee, in our considered opinion, is in the spirit of the law laid down by the Apex Court in 1974 in Ahmedabad St. Xavier's (1974) 1 SCC 717 : AIR 1974 SC 1389 (1) and consistently followed uptil the year 2020 in S.K. Mohd. Rafique (2020) 6 SCC 689.
218. The governing criteria prescribed in the Rules, 2021 for the post of Principal, in no manner, can be said to be hit by Article 30 of the Constitution, inasmuch as, the legislature has taken due care of the interest of the Registered Minority Institutions receiving Grant-in-aid from the State exchequer, that they may get the best qualified and suitable candidates to impart education. The provision ensures that the Scrutiny Committee adopts a fair criteria to prepare a pool of the best available talent purely on the merit from amongst the applicants by ensuring publication of vacancies in the two widely circulated newspapers, one in Gujarat language and the second in English language in the locality.
219. A fair and transparent selection is the hallmark of "excellence" in education, which would satisfy both the National interest as well as the interest of the minority institutions. It is stated by the Apex Court in S.K. Mohd. Rafique (2020) 6 SCC 689 that the minorities are as much part of the Nation as the majority, and anything which affect the interest of the majority or the minority section of the population, would be against the National interest. To promote the interest of the minority institutions to produce the best possible talent, who in the pursuit of their career would contribute in the progress of the Nation, it is imperative that the best qualified and the most suitable candidate is selected by adopting a fair selection procedure purely on merit basis where due weightage is given to the ideology of the minority community generating an atmosphere of qualitative progress and sense of achievement commensurate with societal object and ideology, which will be in true National interest. (Ref: para 52)
(Emphasis supplied)
220. The regulations, which promote such a process of selection of a candidate for the post of principal or teacher of a minority institution, cannot be said to be violative of the rights of the minority educational institution under Article 30 of the Constitution. It needs to be emphasized that in the process of selection of the best qualified and the most suitable candidate, the qualifying marks in the personal interview are allocated by the Minority School Selection Committee headed by the Nominee of the concerned Trust/Management of the minority school, to prepare the final select list. The Committee is free to choose a candidate out of the most qualified candidates from the list prepared by the Scrutiny Committee, who is the best suited to the ideology of the school management. There is absolutely no fetters on the powers of the minority school management in selection of the best suited candidate for its own school.
221. As to the Constitution of the Minority School Selection Committee, it may be noted that the Committee is chaired by one of the trustees nominated by the concerned Trust/Management of the Minority School (an insider). Amongst three members, an academician outside of the Taluka is to be chosen by the concerned Minority School Trust/Management, and to be appointed by the District Education Officer as a Member of the Committee. The second Member is a representative of the concerned Minority School Trust/Management, nominated by it. The third Member namely one Principal of another Grant-in-aid Registered Private School, is also to be nominated by the concerned Trust/ Minority School Management. It is, thus, clear that two Members namely an academician outside of the Taluka and the Principal of any other Grant-in-aid Registered Private School though are outsiders, but are chosen/nominated by the concerned Trust/Management of Minority Institutions. One member, who is a representative may be an insider as well, as nomination of their representative is left with the Minority School Trust/Management.
222. An affidavit dated 24.10.2024 has been filed by the Principal Secretary (Primary & Secondary Education) on behalf of the State Government that in the selection of an academician outside of the Taluka, the requirement of consultation with the District Education Officer as perceived, has been done away and the table in Rule-7 can be read down to the extent that the Minority Schools shall have complete discretion and any such suggestion given by the Minority School have to be carried out by the District Education Officer by issuing consequential appointment order. The appointment of the said member by the District Education Officer is a ministerial act to give legal framework to the Constitution of the committee.
223. In so far as the Education Inspector of the office of the District Education Officer of the concerned District is concerned, it is clarified in the said affidavit that he being the Member Secretary, will have no say in the selection process of a candidate by allocation of marks as his only job is to call for meetings and maintain records to ensure transparency. The entire selection process is, thus, effectively controlled by the representatives of the Minority School without any interference from the State Government. The quorum for the meeting of Minority School Selection Committee shall be three though the presence of the District Education Inspector being the Member Secretary has been made compulsory. Rule 7 (1) of the Rules, 2021 cannot be read to mean that the quoram of three would include Member Secretary as well, and he would participate in the personal interview. This submission made by the learned senior counsel for the petitioners has been clarified by the learned Advocate General and his contention is that the Member Secretary being the District Education Inspector cannot participate in the selection process for allocating the marks, which seems to be plausible and acceptable. Once the Chairman, who is the trustee nominated by the concerned Trust/Management of the Minority School and three Members are nominated by the concerned Minority School Trust/Management to constitute the Minority School Selection Committee, the Constitution of the committee prescribed in the rules can not be said to have resulted in displacement of the Minority School Management. There is no fetter on the choice of the Minority School Management in making selection of Principal and teachers for minority schools.
224. As regards the process conducted by the Scrutiny Committee (constituted under Rule 3) as provided under Rule 6 & 11, suffice it to say that the marks allocated by the Scrutiny Committee, circumscribed by the criteria provided in Appendix I and II, are not to be added for preparation of the final select list. The marks allocated by the Scrutiny Committee for the educational qualifications are as per the qualifying criteria provided under Regulation 20(1) of the Regulations '1974, which applies equally to both the minority and majority institutions recognized by the State of Gujarat. As regards the Aptitude test (HMAT) conducted by the State Examination Board and the weightage given to it, we may note from Rule 11 (b) that the marks secured by the concerned candidate in HMAT are valid for five years from the date of the result and the candidate who has secured at least 50% marks in HMAT is treated as qualified for allocation of 60% weightage. As per the guidelines of the State, a candidate is at liberty to appear in HMAT conducted by the State Examination Board for more than one time.
225. Coming to the Teachers Selection Rules '2021, as noted above, it is pari materia to the rules pertaining to the selection of the Principal. The Constitution of the Scrutiny Committee in Rule 3 of the Teachers Selection Rules '2021 is the same as that of the Principal and there is no difference in the duties and functions of the Scrutiny Committee as also the mode and manner for preparation of the list of eligible candidates in the order of merit, for personal interview by the Minority School Selection Committee. The selection procedure to be adopted by the Minority School Selection Committee is the same as that prescribed in Rule 13 for the Principal. The only difference is of the weightage of 70% for Teachers Aptitude Test (TAT) examination conducted by the State Examination Board and 30% weightage of the prescribed educational qualification for the post. The criteria for prescribing marks for calculation of 70% weightage of TAT and calculation of 30% weightage of educational qualification is circumscribed by the prescription in Appendix I & II attached to the rules. The Minority School Selection Committee is to select a candidate after interview from the pool of the eligible candidates prepared by the Scrutiny Committee. The marks allocated by the Minority School Selection Committee out of 10 (total 10 marks) in the personal interview, shall be the basis for preparation of the final select list.
226. The Constitution of the Minority School Selection Committee for selection of the teachers as provided in Rule 7 of the said Rules is the Chairman, who is one of the trustees nominated by the trust/management of the minority school and three Members, out of whom; one is the representative to be nominated by the Minority School Trust/Management and another is Principal or in- charge Principal of the concerned minority school. Only one Member of the Scrutiny Committee is an academician outside of the Taluka, who can be said to be an outsider, but he is also to be nominated by the concerned Minority School Trust/Management.
227. In light of the aforesaid affidavit filed on behalf of the State, the consultation with the District Education Officer for nomination of an academician outside the Taluka is already done away, and the appointment made by the District Education Officer is only a ministerial act so as to give a legal framework to the Constitution of the Selection Committee. The contention of the learned Senior counsels that the Minority School Selection Committee for selection of teachers, is primarily a Committee comprising of the outsiders, is, thus, not substantiated.
228. Looking to the role of two Committees, namely the Scrutiny Committee and Selection Committee in the entire selection process, we are of the considered view that the committees constituted under the Rules '2021 for two stages of selection, one for verification of the qualifying eligibility criteria specified by the State under the Regulation, 1974 and preparation of the list of eligible candidates in the order of merit, which is also comprised of the five representatives of the concerned Minority Institutions, and another to select the candidates finally after interview by allocation of marks, which comprised of the representatives of minority institutions (primarily and wholly), is an attempt of the State Government to balance the twin objectives; of achieving academic excellence while retaining minority character of the institution by giving the freedom in selection, in the spirit of the judgment of the Apex Court in Ahmedabad St. Xavier's (1974) 1 SCC 717 : AIR 1974 SC 1389 (1), T.M.A. Pai Foundation 2002 (8) SCC 481, S.K. Mohd. Rafique (2020) 6 SCC 689. Under the Rules, there is an effective representation of the concerned Minority Institutions at the stage of scrutiny and they have a complete control in the final selection process by personal interview. The Rules '2021, thus, ensure that the minority character of the institution is preserved while the best and most suitable candidate is selected through a fair and transparent procedure of selection, in conformity with the qualifying criteria provided in the Regulations '1974.
229. There is no dispute with regard to the right of the State to prescribe the qualification eligibility criteria which has been prescribed in the Regulations '1974 and the Scrutiny Committee is constituted just to ensure that the prescription in the Regulations '1974 is adhered to and out of all eligible candidates the best ones are kept in the list after due verification for making pool of the qualified candidates. Tested on the anvil of the dual test prescribed in Ahmedabad St. Xavier's (1974) 1 SCC 717 : AIR 1974 SC 1389 (1), the Rules '2021 (both for the Principal and Teachers) satisfied twin conditions, and as such, they cannot be said to be such which tinker with the minority character of the institutions registered in the State and interfere with the day-to-day management of such institutions.
230. Having said that, we also reject the contention of the learned Senior counsels for the petitioners that the prescription of the requirement of weightage of 60% for a candidate who has passed the Head Master Aptitude Test (HMAT) and the Teachers Aptitude Test (TAT) conducted by the State Examination Board, is in teeth of the decision of the Apex Court in Pramati Educational Cultural Trust (2014) 8 SCC 1, inasmuch as, the prescription of Teachers Aptitude Test (TAT) and the Right to Education Act, 2009 has been held in-applicable to the Minority School Institutions protected under Article 30(1) of the Constitution. We may note that the decisions of the Bombay High Court and the Madras high Court relied on by the learned senior counsels for the petitioners are the cases where the requirement of Teachers Eligibility Test (TET) prescribed under the regulations framed by the National Council of Teachers (NCTE), the regulatory body constituted to ensure strict implementation of the RTE Act '2009, was insisted upon.
231. In the facts and circumstances of those cases, it was held therein that the rules prescribing eligibility qualification by undertaking an Aptitude test prescribed by the Regulation framed by the National Council of Teachers (NCTE), further impinges the rights of the minority. The question therein was of the applicability of the guidelines framed under the RTE Act, 2009 and by the National Council for Teachers Education, which being the regulatory body constituted to ensure strict implementation of the RTE Act, 2009, has no power to regulate the minority institutions.
232. In the instant case, the Head Masters Aptitude Test (HMAT) and the Teachers Aptitude Test (TAT) is the requisite qualification prescribed by the State Government, examination of which is conducted by the State Examination Board, so as to achieve the standards of excellence in the field of education. The prescription of the qualification criteria of passing the Head Master Aptitude Test (HMAT) and Teachers Aptitude Test (TAT) conducted by the State Examination Board and the weightage for the Aptitude test for preparation of the list of eligible candidates under the rules, in no manner, can be said to be the transgression of the right of the Minority Institutions to select the Principal and teachers of their choice.
233. In view of the above discussion from all angles, we have no hesitation to hold that the provisions of Section 40A of the Gujarat Secondary and Higher Secondary Education (Amendment) Act, 2021 (for application of Section 17(26), 34(2) and 35 of the Act '1972, to the registered Minority Institutions) and the Principals and Teacher (procedure of selection) Rules, 2021 for the Registered Private Secondary and Higher Secondary Minority Schools, are not violative of the rights of the Minority Education Institutions guaranteed under Article 30(1) of the Constitution of India. The challenge to the validity of the said statutory provisions being violative of Articles 14 and 30(1) of the Constitution of India is, therefore, turned down.
234. All the writ petitions in this bunch, are, accordingly, dismissed.
235. Connected Civil Applications would not survive and stand disposed of, accordingly. No order as to costs.
