TMI Blog1987 (11) TMI 391X X X X Extracts X X X X X X X X Extracts X X X X ..... ing to Christian ideals in the interest of national development; to foster moral and spiritual values in education; to assist and strengthen the work of Christian schools in Bihar; to promote the welfare of teachers and other staff of the member-institutions. The petitioner association has set up a number of secondary schools in the State of Bihar which are managed and administered by the Christian dioceses/societies and these institutions are recognised by the Education Department of the State of Bihar. The petitioners aver that they have fundamental right under Article 30 of the Constitution to administer the institutions established by them, according to their choice and no interference in the administration of the educational institution is permissible under the Constitution. The petitioners alleged that the provisions of the Bihar Non- Government Secondary Schools (taking over of Management and Control) Act, 1981 (hereinafter referred to as the Act) make serious inroad on the petitioners' right to establish and administer educational institutions of their choice. They have challenged constitutional validity of the provisions of the Act and particularly the provisions conta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tarily makes an unconditional offer to hand over the school with all moveable or immovable assets and properties owned or possessed by the school. Section 4 provides for the consequences which ensue on the taking over of management and control of non-government secondary schools by the Government. It provides that on the taking over of the management and control of the non-government secondary schools by the Government all the movable and immovable assets and 1) properties owned and possessed by secondary schools including land, building, documents, books and registers, shall stand transferred to the State Government and deemed to have come into its possession and ownership. The services of every Headmaster, teacher or other employees of the school taken over by the State Government shall be deemed to have been transferred to the State Government with effect from the date of taking over the school and they become employees of the State Government The age of superannuation of Headmasters, teachers and other employees of the schools taken over by the State Government shall be 58 years. However, other terms and conditions of their services shall continue to be the same as they existed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been established by a minority community on the basis of religion or language for the purposes of meeting the educational requirement and for the protection of culture of their section, provided it fulfils conditions prescribed for recognition. A minority secondary school shall be accorded recognition if it is managed and controlled in accordance with the provisions set out in Clauses (a) to (k) of Section 18(3). It requires every minority secondary school to have a managing committee and written bye laws. The managing committee is required to appoint teachers with the concurrence of the School Service Board The managing committee shall prescribe rules regarding the service condition of teachers based on natural justice and prevailing law and it shall have powers to remove, dismiss, terminate or discharge a teacher from service with the approval of School Service Board. The managing committee shall charge only such fees from the students as are prescribed by the State Government. No higher fees shall be charged unless prior approval of the State Government is obtained. The scheme of the Act as analysed shows that the State Government has taken over non-Government secondary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... far as minority secondary schools are concerned under section 18 contained special provisions for their recognition and management. Learned counsel for the petitioners contended that the provisions of the Act directly interfere with the management and control of the Christian minority schools. He urged that Section 3(2) of the Act which provides for the taking over of minority secondary schools by the Government interferes with the petitioners' fundamental right under Article 30(1) of the Constitution The learned counsel further submitted that provisions of Section 18(2) are violative of Articles 30 and 14 of the Constitution of India. The learned counsel further urged that clauses (a) to (k) of Section 18(3) of the Act interfere with the management of the minority secondary schools in violation of Article 30 (1) of the Constitution. On behalf of the State of Bihar it was urged that the State Government has no intention to interfere with the fundamental rights of the minority community to establish schools of its choice. The provisions of the impugned Act are directed to ensure academic excellence and good management. The managements of the minority institutions have b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hoice. It does not say that minorities based on religion should establish educational institutions for teaching religion only, or that linguistic minorities should have the right to establish educational institutions for teaching their language only. What the Article says and means is that the religious and the linguistic minorities should have the right to establish educational institutions of their choice. (Pages 1052-1053). The next thing to note is that the Article, in terms, gives all minorities, whether based on religion or language, two rights, namely, the right to establish and the right to administer educational institutions of their choice. (page 1053). Considering the extent of State's power to regulate educational standards, service conditions and discipline in the minority institutions the Court observed: We have already observed that Article 30(1) gives two rights to the minorities, (i) to establish and (ii) to administer, educational institutions of their choice. The right to administer cannot obviously include the right to maladministration. The minority cannot surely ask for aid or recognition for an educational institution run by them in unhealthy sur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the syllabus of the examination and discipline in the institution and allied matters. Hidayatullah, C.J. speaking for the Court observed: There is, however, an exception to this and it is that the standards of education are not a part of management as such. These standards concern the body politic and are dictated by considerations of the advancement of the country and its people. Therefore, if universities establish syllabi for examinations they must be followed, subject however to special subjects which the institutions may seek to teach, and to a certain extent the State may also regulate the conditions of employment of teachers and the health and hygiene of students. Such regulations do not bear directly upon management as such although they may indirectly affect it. Yet 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation. (Page 200) (Underlining by us) Mathew, J. discussing what type of action by the State would amount to the abridgement of the right guaranteed under Article 30(1) of the Constitution of India observed at pages 265-266 thus:- 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 direct 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 education ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ublic; the interests justifying interference can only be the interest of the minority concerned. In view of these decisions it is now well-settled that minorities based on religion or language, have fundamental freedom to establish and manage educational institutions of their own choice, but the State has right to provide regulatory provisions for ensuring educational excellence, conditions of employment of teachers, ensuring health, hygiene and discipline and allied matters. Such regulatory provisions do not interfere with the minorities' fundamental right of administering their educational institutions; instead they seek to ensure that such institution is administered efficiently, and that students who come out of minority institution after completion of their studies are well equipped with knowledge and training so as to stand at par in their avocation in life without any handicap. If regulatory provisions indirectly impinge upon minorities' right of administration of their institution, it would not amount to interference with the fundamental freedom of the minorities as the regulatory provisions are in the interest of the minority institutions themselves. If the min ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ociety and according to standards which ensure the development of personality of the students in turning out to be civilized, useful members of the society, and to ensure that the public funds disbursed to the minority institutions are properly utilised for the given purpose. On the other hand the State has to respect and honour minority rights under Article 30(1) in the matter of establishing and carrying of administration of institution of their choice. In order to reconcile these two conflicting interests the State has to strike a balance and statutory provisions should serve both the objects and such statutory provisions have to withstand the test of Article 30(1) of the Constitution. These principles have to be borne in mind in considering the question of validity of statutory provisions relating to minority educational institutions. Since the petitioners challenge the Constitutional validity of Sections 3 and 18 of the Act we consider it necessary to reproduce the same. 3. Taking over of the management and control: Taking over of the management and control of Non- Government secondary schools by the state government: (1) All non-government secondary schools oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by a Committee constituted by the State Government for the purpose and if found suitable for appointment in government service they shall be appointed in the government service along with taking over the management and control of the school. Section 18: Recognition of minority Secondary schools: (1) The schools declared a minority school under the provision of the Bihar Secondary Education Board Act, 1976 (Bihar Act 25 1976) and the Bihar Secondary Education Board (Second Amendment) ordinance 1980 (Bihar ordinance 82 of 1980) shall be deemed to have been recognised under the provisions of this Act. (2) The State Government may, by notification, recognise as a minority secondary school, such secondary school which has been established by a minority community on the basis of religion or language for the purposes of meeting the educational requirement and for the protection of culture of their section and which fulfils the prescribed condition of recognition. (3) The minority Secondary school accorded recognition under sub-sections (1) and (2) shall be managed and controlled under the following provisions:- (a) Every minority secondary school shall have a managing comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The State Government shall have powers to issue instructions not inconsistent with the provisions of Articles 29 and 30 of the Constitution for efficient management and for improving and standard of teaching and it shall be obligatory for the recognised minority schools to comply with them. (k) In the event of violation of this section and the rules made thereunder and the instruction issued under it, the said managing committee may make an application within sixty days of the date of the order to the officer authorised by the State Government, against the withdrawal of recognition or withholding or stopping grants and the authorised officer shall, after hearing the case, take his decision and it shall be binding. Section 3 of the impugned Act provides for compulsory acquisition or taking over of the administration or assets of non-Government secondary schools. Section 3(1) lays down that all government secondary schools other than minority secondary schools shall be deemed to have been taken over by the State Government with effect from 2nd October, 1980. There were five categories of secondary schools P functioning in the State of Bihar, and out of them, the management and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... management and control of such schools on terms and conditions which the Government may deem proper. These schools include those which may have received permission for establishment of the school from the Bihar Secondary Education Board or schools which may have applied for permission of establishment immediately before the date of the promulgation of the ordinance provided the State Government is satisfied with regard to the utility of such schools. Section 3(3) relates to the taking over of management and control of unrecognised schools other than minority schools. These provisions do not affect the fundamental right of minority institution. In this view Section 3 which provides for taking over of management and control of non-government secondary schools does not in any manner encroach upon the fundamental right of a minority institution. This brings us to the question as to whether the provisions of Section 18 violate Article 30(1). Section 18(1) provides that a school declared as a minority institution under the provisions of the Bihar Secondary Education Act 1976 or under the Bihar Secondary Education Board (Second Amendment) ordinance 1980 shall be deemed to have been re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the minority institution itself, as no outsider is imposed as a member of the Managing Committee, there is no interference with the minorities right to administer its school. Clause (b) provides for two things, firstly it requires the managing committee of a minority school to appoint teachers possessing requisite qualifications as prescribed by the State Government for appointment of teachers of-other nationalised schools, secondly, the managing committee is required to make appointment of a teacher with the concurrence of the School Service Board constituted under Section 10 of the Act. Proviso to clause (b) lays down that the School Service Board while considering the question of granting approval to the appointment of a teacher, shall ascertain if the appointment is in accordance with the rules laying down qualifications, and manner of making appointment framed by the State Government. The proviso makes it clear that the School Service Board has no further power to interfere with the right of managing committee of a minority school in the appointment of a teacher. Under clause (b) the managing committee is required to make appointment of a teacher with the concurrence of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to administer a minority school. Learned counsel for the petitioner took serious objection to the provisions contained in clause (d) of Section 18(3) which lays down that the managing committee of a minority institution shall have power to remove, terminate, dismiss or discharge a teacher with the approval of the School Service Board. It was urged that School Service Board has been imposed as a higher authority over the management, if the Board refused to grant approval to the disciplinary action taken by the management against a teacher, the management's right of administration would be affected adversely. The School Service Board enjoys blanket power on the management's right to take disciplinary action against its employees and therefore clause (d) infringes with the minority's right of management. We do not find any substance in the submissions. Indisputably power to remove, dismiss, terminate or discharge a teacher from service is an essential attribute of management's right but clause (d) does not invest that power on any outside agency. The power to take disciplinary action vests in the managing committee of the minority school, it is required to exercis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n rendering service to the nation and were permissible regulations which the State could impose on the minorities as a condition for granting aid to their educational institutions. The court further held that since these aforesaid clauses of the Bill were regulatory, they do not violate Article 30(1) of the Constitution. Section 8(4) of the Delhi School Education Act 1973 which require a managing committee of recognised private school to obtain approval of the Director for suspending an employee was upheld in its application to the minority institutions by this Court in Frank Anthony Public School Employees' Association, [1986] 4 SCC 707 case and Mrs. Y. Theclamma's [1987] 2 SCC 516 case. In the latter case this Court observed that while the right of the minority to establish and administer educational institutions of their choice cannot be interfered with, restrictions by way of regulations for the purpose of ensuring educational standards and maintaining excellence thereof can validly be prescribed. Regulations can be made for ensuring proper conditions of service for the teacher and also for ensuring a fair procedure in the matter of disciplinary action. Section 8(4) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the aforesaid provisions no punishment could be inflicted by the management of an affiliated college on a member of the staff unless it obtained approval of the Vice- Chancellor or an officer authorised by him. The Court held that the provision relating to grant of approval conferred blanket power on an outside authority without laying down any guidelines, it directly interfered with the minorities right to administer their institution. In Lilly Kurian v. Sr. Lewina Ors., this Court again held that ordinance 33 framed under the Kerala University Act 1969 conferring right of appeal against the disciplinary action taken by a minority institution to the Vice-Chancellor was constitutionally invalid as it interfered with the disciplinary power of a minority educational institution. The Court further held that ordinance 33 conferred a right of veto in disciplinary matters of minority institution, it did not lay down any guidelines instead, it conferred an uncanalised and unguided power on the appellate authority. The Court held that conferment of uncanalised and unguided appellate power on the Vice-Chancellor resulted into grave encroachment on the right of the minority institut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as a limited power to ascertain whether the disciplinary proceedings have been taken in accordance with the rules framed by the management itself, the School Service Board has no. Other power in the matter. These provisions do not suffer from the legal infirmities as pointed out in the aforesaid decisions. Clause (e) of Section 18(3) merely provides that mentally and physically in-capacitated person shall not be appointed as teacher or non-teaching staff of the school. If mentally and physically incapacitated person are appointed to a minority institution it will serve no useful purpose instead the institution will suffer, therefore appointment of disabled persons will not be. in the interest of the administration of a minority school itself. Clause (f) of Section 18(3) provides that the State shall not pay any grant towards the payment of salary of a teacher or other employee of a minority institution if he is appointed or permitted to be retained beyond 58 years of age. In 1) the State of Bihar the age of superannuation is fixed at 58 years for its employees. Consistent with that policy this clause provides that public funds of the State shall not be used for the employment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... line and punishment, records and accounts, curricular and co- curricular activities, rules regarding health and cleanliness issued or made by the Government. This clause is wide and general in nature, it contemplates framing of rules by the State Government regarding health, cleanliness, and accounts. It further requires the minority institution to obey instructions issued by the State regarding admission and transfer of students, discipline, and maintenance of accounts. The instructions which may be issued under this clause relating to admission, transfer of students and discipline, punishment or maintenance of accounts must be in confirmity with the minorities freedom under Article 30( I) of the Constitution. Under the guise of this power the State Government cannot trespass on the forbidden field of minorities right of administration of their schools. These instructions must relate to secure the efficiency in educational standard, and should be regulatory in nature to achieve efficiency in the administration. Laying down principles and methods relating to admission and transfer of students and discipline and punishment and maintenance of record and accounts and essential to main ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter its educational institution but it has no right to maladministration. Any rule or instruction issued by the Government to prevent mal- administration would be valid. Clause (k) provides that if any instructions are issued by the State or any of its authority or rules are framed, or if any officer authorised by the State Government issues any order for the withdrawal or recognition or withholding or stopping of grants to a minority school the managing committee of the minority school has right to raise a grievance before an officer authorised by the State Government within sixty days. It further provides that the authorised officer shall after hearing the case take his decision which shall be binding on the parties. This clause confers a right on the management of the minority school to challenge any arbitrary exercise of power by an authority of the State in withdrawing recognition or with-holding or stopping the disbursement of aid to the institution. Apparently clause (k) has been enacted by the Legislature to safeguard the interest of the minority school and it does not in any manner violate Article 30(1) of the Constitution Clauses (a) to (k) of Section 18(3) lay down terms ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich is under consideration in this case which are brought into force in the country. Due obedience to those laws would assist is the smooth working of the educational institutions and would facilitate proper administration of such educational institutions. If such laws are made inapplicable to minority educational institutions, there is every likelihood of such institutions being subjected to mal-administration. Merely because an impartial tribunal is entrusted with the duty of resolving disputes relating to employment, unemployment, security of work and other conditions of workmen it cannot be said that the right guaranteed under Article 30(1) of the Constitution of India is violated. If a creditor of a minority educational institution or a contractor who has built the building of such institution is permitted to file a suit for recovery of the money or damages as the case may be to him against such institution and to bring the properties of such institution to sale to realise the decretal amount due under the decree passed in such suit is Article 30(1) violated? Certainly not. Similarly the right guaranteed under Article 30(1) of the Constitution is not violated, if a minority s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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