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1987 (11) TMI 391 - SUPREME COURT

1987 (11) TMI 391 - SUPREME COURT - 1988 AIR 305, 1988 SCR (2) 49, (1988) 1 SCC 266 - Writ Petition (Civil) Nos. 4588-89 of 1983 - Dated:- 26-11-1987 - SINGH, K.N. AND MISRA RANGNATH JJ. F.S. Nariman, Jose P. Vergheese and U.S. Prasad for the Petitioners. Jai Narain and Pramod Swarup for the Respondents. JUDGMENT: The Judgment of the Court was delivered by SINGH, J. These petitions under Article 32 of the Constitution of India challenge the constitutional validity of the Bihar Non-Government Sec .....

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to promote education including science, literature, fine arts and libraries according 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/societ .....

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rol) 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 contained in Section 3 and Section 18 of the Act which according to them interfere with their fundamental right guaranteed by Article 30(1) of the Constitution. In the State of Bihar a number of private secondary schools w .....

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.1981. The State legislature converted the ordinance into the Bihar Non-Government Secondary Schools (Taking over of Management and Control) Act, 1981. The Act as indicated by the preamble is to provide for the taking over or management and control of the Non-Government Secondary Schools by the State Government, for improvement, better organisation and development of Secondary Education in the State of Bihar. "Non-Government Secondary School" as defined by Section 2 means a secondary s .....

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d declared and recognised as minority school by the State Government. Section 3 provides for taking over of the management and control of recognised Non-Government secondary schools by the State Government. Sub-section (1) lays down that all recognised nongovernment secondary schools other than the minority secondary schools based on religion or language, shall be deemed to have been taken over by the State Government with effect from October 2 1980. Sub-section (2) provides that the State Gover .....

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ment. 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 .....

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the State Government. Section S provides that the management and control of the nationalised schools shall be under the Director and his subordinate officers in the manner as prescribed by the State Government. The management of every secondary school shall be under a committee constituted in accordance with the provisions of Section 6 of the Act. Section 7 enumerates powers and functions of the Managing Committee. Section 8 prescribed duties of the Headmaster. Section 9 provides that the servi .....

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irector of Education. Section 11 creates a District Secondary Education Fund Section 12 provides that the fund shall be used for payment of salary and allowances to the Headmaster, teachers and other employees of schools including the minority secondary schools and grants for other expenditure of schools. Section 14 provides for the constitution of a Secondary Education Committee for making recommendation to the State Government on the questions relating to the taking over of management of the s .....

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ary school already declared a minority school under the provisions of Bihar Secondary Education Board Act, 1976 shall be deemed to have been recognised under the provisions of the Act. It further provides that the State Government may by notification recognise a minority secondary school, if the same 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 .....

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f 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 sc .....

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s Act, it appears that there were five classes of secondary schools functioning in the State of Bihar; they were; (i) non-Government secondary schools maintained and established and administered by private individuals and societies, (ii) secondary schools established and managed by minorities community and recognised as minority schools by the State Government, (iii) proprietory secondary schools established and maintained entirely by trusts, associations or a corporate bodies declared as propri .....

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ed by the State Government. All these five categories of secondary schools had been imparting education to students in the State of Bihar. While the impugned Act provides for taking over the management and control of the non-government secondary schools, the management and control of the remaining categories of schools have not been taken over. Although the Act contains provisions for taking over of other secondary schools if and when circumstances as contemplated by the Act are found to exist, .....

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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 Artic .....

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mic excellence and good management. The managements of the minority institutions have been given free hand in managing their institutions but in order to maintain educational excellence and discipline in their institutions, regulatory provisions have been made in Section 18 of the Act and the purpose of regulatory provisions is to ensure that the minority schools are managed by properly constituted managing committees, that the members of the staff of the minority institutions are paid proper sa .....

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s t-o establish and administer educational institutions-(1), All minorities, on the ground that it is under the management of a minority, whether based on religion or language." In plain terms Article 30(1) protect the right of the minorities whether based on religion or language to establish and administer educational institutions of their choice. The Article confers a fundamental right on the minorities to protect their interest. Clause (1A) provides that the Legislature while making law .....

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rticle 30(1) of the Constitution has been considered by this Court in detail in a number of cases. In Re. The Kerala Education, Bill, 1957, [1959] SCR 995 this Court construed Article 30(1) of the Constitution of India and held as under:- "The first point to note is that the Article gives certain rights not only to religious minorities but also to linguistic minorities. In the next place, the right conferred on such minorities is to establish educational institutions of their choice. It doe .....

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r 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 .....

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tion of their choice does not necessarily militate against the claim of the State to insist that in order to grant aid the State may prescribe reasonable regulations to ensure the excellence of the institutions to be aided. " In Rev. Sidhajbhai Sabhai and others v. State of Bombay, [1963] 3 SCR 837 a Constitution Bench of this Court observed: "All minorities, linguistic or religious have by Article 30( l) an absolute right to establish and administer educational institutions of their c .....

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sections thereof. Regulation made in the true interests of efficiency of instruction, discipline, health, sanitation, morality, public order and the like may undoubtedly be imposed. Such regulations are not restrictions on the substance of the right which is guaranteed: they secure the proper functioning of the institution, in matters educational." (Underlining by us) In State of Kerala v. Very Rev. Mother Provincial, [1971] 1 SCR 734 a Constitution Bench of this Court again considered the .....

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ranteed right. This right is, however, not an absolute right. It is open to the State to regulate 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, i .....

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inority 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. These propositions have been firmly established in State of Bombay v. Bombay Education Society, The State of Madras v. S. C. Dorairajan, In re the Kerala Education a Bill, 1957, Sidharajbahi v .....

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by a nine Judges Constitution Bench of this Court in the Ahmedabad St. Xavier's College Society & Anr. etc. v. State of Gujarat & Anr., [1975] 1 SCR 173. Ray, C.J. Observed thus:- "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 appoi .....

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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 (Pages 196- 197). 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 ad .....

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' 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 h .....

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n in issue has an effect which constitutes an abridgement 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)(1). 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 abridgement. So, even if an educational institu .....

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tivity, the similar impact on the right seems clearly insufficient to constitute an abridgement. 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." In Lilly Kurian v. Sr. Lewine & Ors., [1979] SCR 820 another Constitution Bench of this Court considered the scope, ambit and the nature of right of linguistic and religious minoriti .....

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ister may be better exercised for the benefit of the-institution is permissible; but the moment one goes beyond that and imposes, what is in truth, not a mere regulation but an impairment of the right to administer, the Article comes into play and in the interference cannot be justified by pleading the interest of the general public; 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 ba .....

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n 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 inst .....

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ition but not aid. Minority institutions which fall in the first category are free to administer their institution in the manner they like, the State has no power under the Constitution to place any restriction on their right of administration This does not mean that an unaided minority institution is immune from operation of general laws of the land. A minority institution cannot claim immunity from contract law tax measures, economic regulations, social welfare legislation, labour and industri .....

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students and allied matters. The object and purpose of prescribing regulations is to ensure that minority institutions do not fall below the standard of excellence expected of an educational institution and that they do not fall outside the main stream of the nation. A minority institution must also be fully equipped with educational excellence to keep in step with others in the State; otherwise the students coming out of such institutions will not be fully equipped to serve the society of the .....

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sonality 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 provisi .....

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ent and control of Non- Government secondary schools by the state government: (1) All non-government secondary schools other than the minority secondary schools based on religion or language declared as such by the State Government and Centrally sponsored, autonomous and proprietary secondary schools recognised by the State Government, recognised permanently, provisionally or partially by the Board of Secondary Education under the Bihar Secondary Education. Board Act, 1976 (Bihar Act 25 of 1976) .....

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naging committee, trust, association or corporate body of which voluntarily makes an unconditional offer to make over the schools with all movable or immovable assets and properties owned or possessed by the school which include land, building, documents, books and registers also. The State Government may lay down its conditions for taking over management and control of schools, and before making over the management and control it shall be binding for the managing committee, trust association or .....

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the said Board immediately before the date of promulgation of this Act and the utility of such school is proved in the eye of the government and which fulfil within 3 years of the promulgation of the ordinance, the conditions lay down by the State Government with regard to land, building, furniture, equipments and enrollment. The qualification and suitability of teachers working against 9 posts of the school, one clerk and two orderlies of such school before the promulgation of this ordinance, s .....

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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. .....

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ber of sanctioned posts, the managing committee of the minority secondary schools shall appoint the teacher with the concurrence of the school service board constituted under section 10 of this Act. Provided that while considering the question of giving approval to appointment of any teacher under this sub-section the board shall only scrutinise as to whether the proposed appointment is in accordance with the rules laying down the qualification and the manner of making appointment framed by the .....

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against the teacher by the managing committee, the Board shall scrutinise whether disciplinary proceedings have been in accordance with the rules and no more (e) Mentally and physically in-capacitated person shall not be appointed as teacher or non-teaching staff of the school (f) No grant shall be admissible for payment of salary of a teacher or a non-teaching staff if appointed or retained beyond 58 years of age. (g) only such fees shall be charged from the students as are prescribed by the St .....

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ty, rules regarding health and cleanliness issued or made by the State Government. (j) 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 .....

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ent 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 control of only non-government secondary schools have been taken over by the State. The minority secondary schools, proprietary secondary schools, centrally sponsored schools and autonomous secondary schools have not be .....

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to make over the school with all assets and properties. If the State Government accepts the offer and considers it necessary to take over the management of such a school it may lay down terms and conditions for the take over of the management and control of the school. Section 3(2) does not confer any power on the State to compulsorily acquire or take over the management of a minority school instead the management is free to maintain and carry on the administration of its school and the State ha .....

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the institution to the State. Section 3(2) does not interfere with minority's rights to maintain or administer its school, it merely enables the State to take over the control and management of a minority institution only when an unconditional offer is made to it by the management of the minority institution. There is, therefore, no question of Section 3(2) infringing the rights of minority institutions. Section 3(3) confers power on the State Government to take over the management and contr .....

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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 .....

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ion (2) provides for future recognition of a minority school, it lays down that the State Government may recognise a minority secondary school which may have been established by a minority community on the basis of religion or language for the purpose of meeting the educational requirement and for the protection of their culture provided it fulfils the prescribed conditions. Section 18(3) lays down conditions under which a recognised minority secondary school shall be managed and controlled. The .....

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herein regulate and control the administration of a minority school, which are violative of Article 30(1) of the Constitution. We would examine each of the clauses (a) to (k) in detail to determine the crucial question, whether any of these clauses violate petitioners' fundamental right guaranteed to them under Article 30 (1) of the Constitution. Section 18(3) provides that recognised minority secondary schools shall be managed and controlled in accordance with the provisions contained in cl .....

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committee. If a society running a minority institution frames written bye-laws providing for the constitution of managing committee entrusted with the function of running and administering its school it would ensure efficient administration. This clause is in the interest 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 r .....

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tment 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 the school service board. The .....

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school, there is no interference with the managerial rights of the institution. In granting approval the School Service Board has limited power. The appointment of qualified teachers in a minority school is a sine qua non for achieving educational standard and better administration of the institution. Clause (b) is regulatory in nature to ensure educational excellence in the minority school. Clause (c) requires a minority school to frame rules regulating conditions of service of its teachers, su .....

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cise of power. If Rules are framed by the management those rules would bring uniformity in administration and there would be security of employment to teachers. In a civilised society the observance of principles of natural justice is an accepted rule, these principles contain basic rules of fair play and justice and it is too late in the day to contend that while administering a minority school the management should have right to act in contravention of the principles of natural justice. Clause .....

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se (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 Sch .....

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managing committee of the minority school, it is required to exercise that power in accordance with the rules framed by it. Clause (d) requires that the managing committee shall take approval of the School Service Board in removing, terminating, dismissing or discharging a teacher from service. The managing committee is not required to obtain prior approval from the School Service Board, instead it may seek approval of the School Service Board after taking action. The School Service Board while .....

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ervice Board will be justified in refusing to accord approval. The School Service Board is not invested with any veto or blanket power without any guidance, on the other hand it has limited power and guidelines are prescribed for the exercise of such powers. Such a provision is reasonable to ensure that rules framed by the minority school are followed and security of employment of teachers, is maintained and there be no arbitrary exercise of power. Clause (d) of Section 18(3) expressly provides .....

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clauses 11 and 12(4) of the Bill. Clause 11(1) required a recognised minority institution to appoint teachers selected by the State Public Service Commission. While Clause 12(4) laid down that no teacher of an aided school shall be dismissed, removed, reduced in rank or suspended by the management without previous sanction of the authorised officer. This Court held that these clauses were designed to give protection and security to the teachers who are engaged in rendering service to the nation .....

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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. Regulatio .....

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medabad St. Xaviers College Society & Anr. v. State of Gujarat and Anr., [1975] 1 SCR 173 and Liliy Kurian v. Sr. Lewina & Ors., [1979] 1 SCR 820 and All Saints High School, Hyderabad v. Government of Andhra Pradesh & Ors., [1980] 2 SCR 924 in support of his contention that the clauses (c) and (d) of Section 18(3) interfere with the minorities right of managing their institution. On a careful consideration of the ratio of these decisions we are of the opinion that these authorities d .....

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constitution of governing body of an affiliated college in accordance with the statutes and ordinances framed by the University. The statutes and ordinances so framed designated and nominated persons to function as members of the governing body of an affiliated college. The effect of those provisions was that outside agencies were inducted into the managing committee of a minority institution. This Court held that effect of Sections 48 and 49 was to displace the administration of the college by .....

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as amended in 1972 could not be made applicable to a minority institution as 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 admini .....

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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 institution to enforce and cover its discipline in its administration. The Court emphasised that since the Vice-Chancellor's power was unlimited and undefined he could interfere with the orders of the minority institution in .....

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ies guaranteed to them under Article 30(1) of the Constitution. Section 3(1) contained an unqualified mandate that no teacher shall be dismissed except with the prior approval of the competent authority. Section 3(2) conferred appellate power on an outside authority to interfere with the disciplinary action taken by the managing committee of an educational institution. This Court (majority) held that the unqualified power conferred on an outside authority which was made a judge of both, facts an .....

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ed on any outside agency against the disciplinary action taken by the management of a minority institution. The School Service Board is vested with limited power to see that the person proposed to be appointed possesses the requisite qualifications prescribed and that the prescribed method of selection was followed by the management. The choice of the person for appointment continues to vest in the managing committee of the minority school. Similarly in disciplinary matters also the managing com .....

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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 .....

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e management of the minority institution to employ or retain a person beyond 58 years of age, the management is free to do so but if the management does so, the State shall not be responsible for paying grants towards the salary of such teacher or employee. This provision does not in any way interfere with the minorities right of administration of its institution. Clause (g) provides that only such fees shall be charged from the students as prescribed by the State Government P and the management .....

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es to charge higher fees it must seek the approval of the State Government. This provision is regulatory in nature it would not be in the interest of the minority schools to charge higher fees as that would be against the interest of the institution itself. If the managing committee finds that circumstances exist to charge higher fees to meet the need of the institution. it may place the necessary facts and circumstances before the State Government and in that event the State Government shall co .....

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titution. Clause (h) in our opinion does not in any way trespass upon the minorities fundamental right. Clause (i) of Section 18(3) provides that it shall be the duty of the minority institution to obey instructions regarding admission and transfer of the students, discipline 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 .....

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he 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 maintain the efficiency in the a .....

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ection 18(3) issues instructions or frames rules, interfering with the minorities right such instructions or rules would be violative of Article 30(1) of the Constitution but if the instructions and rules are issued with the object and purpose of securing efficiency in the administration or in securing the educational standard the same would be valid. It must be borne in mind that as the aided minority institutions receive money from public revenues the State Government is entitled to issue inst .....

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9 and 30 of the Constitution for efficient management and for improving the standard of teaching and a minority school is required to comply with those instructions. The State Government has no unrestricted power to issue instructions on the other hand these clauses expressly refer to Articles 29 and 30 and provide that instructions shall not be inconsistent with the constitutional provisions. The State Government has power to make regulatory provisions for achieving efficiency in the management .....

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nt 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 authori .....

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f the Constitution Clauses (a) to (k) of Section 18(3) lay down terms and conditions for granting recognition to a minority school. and these are regulatory in nature which seek to secure excellence in education and efficiency in management of schools. These provisions do not confer any unguided blanket or veto power on any outside agency or authority to veto the decision of the management of the school. Instead minority's right to manage its school in accordance with rules framed by it is f .....

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the rules framed by it. Guarantee of freedom to a minority institution under Article 30(1) of the Constitution does not permit the minority institution to act contrary to law and order, law of contract, industrial laws or other general laws which are enacted for the welfare of the society. If the minorities claim for immunity from the law of the land is upheld that would be unreasonable and against the interest of the minority institutions themselves. In Christian Medical College Hospital Emplo .....

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cable to the management of a minority educational institution and it observed thus:- "These rights which are enforced through the several pieces of labour legislation in India have got to be applied to every workman irrespective of the character of the management. Even the management of a minority educational institution has got to respect these rights and implement them. Implementation of these rights involves the obedience to several labour laws including the Act which is under considerat .....

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