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TMI Blog1986 (11) TMI 386X X X X Extracts X X X X X X X X Extracts X X X X ..... 8377; 25 while, Senior school teachers are entitled to House Rent Allowance of ₹ 450, City Compensatory Allowance of ₹ 100 and Medical Allowance of ₹ 25. At the starting point a primary school teacher gets a total sum of ₹ 1540 per month by way of salary and allowances, a middle school teacher gets a total sum of ₹ 1750 and a senior school teacher a total sum of ₹ 2215. The scales of pay of primary, middle and senior school teachers of the Frank Anthony Public School are 275-20-475-25-600-25-725, 300-25-550-30-770-30-850 and 400-30-700-35-875-35-1050. They get allowances of ₹ 702.50, 715 and 765 respectively. At the starting point the salary and allowances together come to ₹ 977.50, 1015 and 1165 respectively. In the case of teachers of Government schools they are entitled to gratuity of 15 days' pay for every year of service, Provident Fund at the rate of 8.33% and Leave Travel Concession once every two years to their home town. In the case of teachers of the Frank Anthony Public School there is provision for Contributory Provident Fund and Family Pension only. Teachers of Government schools are entitled to Casual Leave of 12 day ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us. A direction is also sought to the respondents, the Union of India and the Delhi Administration to enforce all the provisions of the Delhi School Education Act, other than Sections 12 and 21, and "to fix the pay, allowances, benefits etc. to persons employed in the schools governed by the Act in relation to unaided minority schools at par with the persons employed in other schools." 2. It appears that sometime after the filing of the writ petition and before the preliminary hearing of the writ petition some developments took place to which it is necessary to refer here. On May 9, 1986 at 10.30 a.m. the teaching staff other than those on duty took out 'a silent march' which was joined by the Class IV staff also. The school hours have a break between 10.00 a.m. and 10.40 a.m. During the break only one or two teachers are on duty. Except those on duty, all the others took part in the 'silent march'. Classes were resumed at 10.40 a.m. and were not affected in any manner. There were no speeches, no shouting of slogans, no violence and no disruption of studies. But even so a notice was issued by the principal on April 10, 1986 warning the members of the staf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be recognised by the Delhi Administration, the Administrator or any other officer authorised by him in this behalf; (iii) in the case of a school recognised or to be recognised by the Municipal Corporation of Delhi, that Corporation; We may state here that in the case of the Frank Anthony Public School the appropriate authority is the Delhi Administration. Section 2(h) defines 'employee' to mean "a teacher and includes every other employee working in a recognised school". "Minority school" is defined by Section 2(o) to mean "a school established and administered by a minority having the right to do so under Clause (1) of Article 30 of the Constitution". Section 2(x) defines "unaided minority school" to mean "a recognised minority school which does not receive any aid." It is undisputed that the Frank Anthony Public School is an unaided minority school. Chapter II of the Act deals with "establishment, recognition, management of and aid to schools." Chapter III deals with school property. Chapter IV consisting of Sections 8 to 12, deals with "Terms and Conditions of service of employees of recognised priva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oyee with immediate effect and without the prior approval of the Director if it is satisfied that such immediate suspension is necessary by reason of the gross misconduct of the employee, within the meaning of the Code of Conduct. Such immediate suspension will cease to have effect after fifteen days if approval of the Director is not obtained in the mean while. Section 8(5) authorises the Director to accord his approval to suspension of an employee if he is satisfied that there are adequate and reasonable grounds for such suspension. Section 9 prescribes that every employee of a recognised school shall be governed by the prescribed Code of Conduct and that the employee shall be liable to the prescribed disciplinary action for violation of any provision of Code of Conduct. Section 10(1) requires that "the scales of pay and allowances, medical facilities, pension, gratuity, provident fund and other prescribed benefits of the employees of a recognised private school shall not be less than those of the employees of the corresponding status in schools run by the appropriate authority." The proviso to Section 10(1) requires the appropriate authority to direct in writing the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owances to which he shall be entitled; (b) the leave of absence, age of retirement, pension and gratuity or contributory provident fund in lieu of pension and gratuity, and medical and other benefits to which the employee shall be entitled; (c) the penalties which may be imposed on the employee for the violation of any Code of Conduct or the breach of any term of the contract entered into by him; (d) the manner in which disciplinary proceedings in relation to the employee shall be conducted and procedure which shall be followed before any employee is dismissed, removed from service or reduced in rank; (e) arbitration of any dispute arising out of any breach of contract between the employee and the managing committee with regard to-(i) the scales of pay and other allowances, (ii) leave of absence, age of retirement, pension, gratuity, provident fund, medical and other benefits, (iii) any disciplinary action leading to the dismissal or removal from service or reduction in rank of the employee, (f) any other matter which, in the opinion of the managing committee, out to be, or may be, specified in such contract." Section 16, which occurs in Chapter VI, is applicable to unaided mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstitutions because of Section 12 are no more than regulatory measures aimed at the excellence of the institution and in no way impinge on the Fundamental Right of the minorities, religious or linguistic, to administer educational institutions of their choice. On the other hand, it was the contention of the learned Additional Solicitor General that these provisions are inapplicable to minority institutions since they interfere with the right of management vested in the minorities. According to him, payment of salary, allowances etc. is part of the right of the management to appoint members of the staff. The economics of an unaided institution is entirely in the hands of its management and the right of the management to pay such salaries and allowances as the management deems fit is a part and parcel of the right to administer the institution. More so the right to take disciplinary action which cannot be the subject of any supervision by any other authority. But for Section 12, Sections 8 to 11 would impinge on the right of the minorities to administer Educational Institutions of their choice and would therefore, be inapplicable to minority Educational Institutions. Shri Frank Antho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticle says and means is that the religious and the linguistic minorities should have the right to establish educational institutions of their choice. There is no limitation placed on the subjects to be taught in such educational institutions. As such minorities will ordinarily desire that their children should be brought up properly and efficiently and be eligible for higher university education and go out in the world fully equipped with such intellectual attainments as will make them fit for entering the public services, educational institutions of their choice will necessarily include institutions imparting general secular education also. In other words, the article leaves it to their choice to establish such educational institutions as will serve both purposes, namely, the purpose of conserving their religion, language or culture, and also the purpose of giving a thorough, good general education to their children. 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. The key to the understanding of the tru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nistration granted to them by Article 30(1) of the Constitution. We do not read the decision as laying down any such proposition. What was decided was that Anglo-Indian Schools which were entitled to receive grants under the Constitution and which received no more aid than that to which they were entitled under the Constitution could not be subjected to stringent terms as fresh or additional conditions precedent to enable then to obtain the grant. Such conditions would infringe their rights under Article 337 and violate their rights under Article 30(1). To place an interpretation as that suggested by Shri Anthony would be subversive of the right guaranteed by Article 30(1) since it would make the extent of the right depend on the receipt or non-receipt of aid. If one thing is clear, it is this that the Fundamental Right guaranteed by Article 30(1) cannot be surrendered, wholly or partly, and the authorities cannot make the grant of aid conditional on the surrender of a part of the Fundamental Right. In the very case it was observed: Recognition and grant of aid, says Shri G.S. Pathak, is the governmental function and, therefore, the State cannot impose terms as condition preceden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ily 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. 10. Proceeding to consider whether the various clauses of the Bill merely prescribed reasonable regulations or conditions for the grant of aid, the Court observed that Clauses 7, 10, 11(1), 12(1)(2)(3) and (5) might easily be regarded as reasonable regulations or conditions for the grant of aid. We may mention here that Clause 10 of the Bill required the Government to prescribe the qualifications to be possessed by persons for appointments as teachers in Government schools and in private schools. The procedure for selection of teachers in Government schools and aided schools was laid down in Clause 11. Clause 12 prescribed the conditions of service of the teachers of aided schools, obviously intended to afford some security of tenure to the teachers of aided schools. It provided that the scales of pay applicable to the teachers of Government schools shall apply to all the teachers of aided schools. Sub-clause (4) of Clause 12 which was not mentioned by the Court as a clause which could easily be re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution effective as an educational institution. Such 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. In State of Kerala etc. v. Mother Provincial etc. [1971]1SCR734 . It was conceded by the petitioners representing the minority communities (as indeed they were bound to do having regard to the authorities of the Court) that the State or the University to which these institutions were affiliated may prescribed standards of teaching and the Scholastic efficiency expected from colleges. It was also conceded that to a certain extent conditions of employment of teachers, hygiene and physical training of students can be regulated. While administration was explained "management of the affairs" of the institution and it was said that this management should be free of control so that the institution could be moulded in accordance with the management's ideas of how the interests of the community in general and the institution in particular would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Section 51A of the Act which was impugned in that case provided that no member of the teaching and non-teaching staff of an affiliated college shall be dismissed, removed or reduced in rank except with the approval of the Vice-Chancellor. Ray, C.J. held that the provision could not be said to be permissive regulatory measure inasmuch it conferred arbitrary power on the Vice-Chancellor to take away the right of the minority institutions. It could not, therefore, be applied to minority institutions. Section 52A of the Act contemplated reference of any dispute connected with the conditions of service, between the governing bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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. They have to be so designed as to make it an effective vehicle for imparting education. 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 (see observations of Shah J. in Rev. Sidhajbhai Sabhai, supra p. 850 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional interests. Regulations to prevent anti-national activities in educational institutions can, therefore, be considered to be reasonable. A regulation which is designed to prevent maladministration of an educational institution cannot be said to offend Clause (1) of Article 30. At the same time it has to be ensured that under the power of making regulations nothing is done as would detract from the character of the institution as a minority educational institution or which would impinge upon the rights of the minorities to establish and administer educational institutions of their choice. The right conferred by Article 30(1) is intended to be real and effective and not a mere pious and abstract sentiment; it is a promise of reality and not a teasing illusion. Such a right cannot be allowed to be whittled down by any measure masquerading as a regulation. As observed by this Court in the case of Rev. Sidhajbhai Singh (supra, 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 minority institution effective as an education ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en the governing body and the member of the staff connected with the latter's conditions of service. The governing body would thus be hardly in a position to take any effective disciplinary action against a member of the staff. This must cause an inroad in the right of the governing body to administer the institution. Section 52A should, therefore, be held to be violative of Article 30(1) so far as minority educational institutions are concerned. Mathew, J. speaking for himself and Chandrachud, J. observed: In considering the question whether a 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 to 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it from the reach of the majority. To subject the right today to regulations dictated by the protean concept of state necessity as conceived by the majority would be to subvert the very purpose for which the right was given. The learned Judge also pointed out that where 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 would be permissible. "The heart of the matter" said the learned Judge, "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." Referring to Section 51A Mathew, J. said that uncanalized power without any guideline to withhold approval would be a direct abridgement of the right of the management to dismiss or remo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the management's right to dismiss, remove, reduce in rank or otherwise terminate the teacher's services. However Section 3(3) (which provided that no teacher shall be placed under suspension except when an inquiry into the gross misconduct of such teacher was contemplated) was upheld as not violative of Article 30(1) of the Constitution. Chandrachud, C.J. observed that the provision was founded so patently on plain reason that it was impossible to construe it as an invasion of the right to administer an institution, unless that right carried with it the right to maladminister. Section 4 of the Act made a provision for an appeal against an order of dismissal, removal, reduction in rank or otherwise termination of appointment or alteration to the teacher's disadvantaged of pay or allowances or any other conditions of service. This provision was also struck down as unconstitutional as it gave a right of appeal both on fact and law thereby throwing open the order of the management to the unguided scrutiny and unlimited review of the appellate authority. Section 6 required the management to obtain prior approval of the competent authority if retrenchment of teacher rendere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght to establish and administer a minority institution cannot be interfered with restrictions by way of regulations for the purpose of maintaining the educational standards of the institution can be validly imposed. For maintaining the educational standard of the institution as a whole it is necessary to ensure that it is properly staffed. Conditions imposing the minimum qualifications of the staff, their pay and other benefits, their service conditions, the imposition of punishment will all be covered and regulations of such a nature have been held to be valid. In the case* of institutions that receive aid it is the duty of the Government who grants aid to see that the funds are properly utilised. As the Government pays for the staff it is their bounden duty to see that well-qualified persons are selected, their pay and other emoluments are guaranteed and service conditions secured. So far as the institutions receiving aid are concerned if the regulations are made for the purpose of safeguarding the rights of the staff the validity cannot be questioned as long as the regulations do not discriminate the minority institution on the ground of religion or language. Kailasam, J. was o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rse to the other decisions. 15. The principal controversy between the parties centered around Section 10 which requires that "the scales of pay and allowances, medical facilities, pension, gratuity, provident fund, and other prescribed benefits of the employees of the recognised private school shall not be less than these of the corresponding status run by the appropriate authority". The submission on behalf of the respondents was that the right to appoint members of staff being an undoubted right of the management and the right to stipulate their salaries and allowances etc. being part of their right to appoint, such right could not be taken away from the management of a minority institution. The learned Solicitor-General very fairly stated before us that there was no case in which it had been held that the right to pay whatever salaries and allowances they liked and stipulate whatever conditions they liked was part of the right to administer the minority institutions under Article 30(1) of the Constitution. On the other hand as we shall immediately point out there are observations to the contrary. 16. In the Nine Judge Bench case, Ray, CJ. and Palekar, J. as we have a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... choice. 17. The excellence of the instruction provided by an institution would depend directly on the excellence of the teaching staff, and in turn, that would depend on the quality and the contentment of the teachers. Conditions of service pertaining to minimum qualifications of teachers, their salaries, allowances and other conditions of service which ensure security, contentment and decent living standards to teachers and which will consequently enable them to render better service to the institution and the pupils cannot surely be said to be violative of the fundamental right guaranteed by Article 30(1) of the Constitution. The management of a minority Educational institution cannot be permitted under the guise of the fundamental right guaranteed by Article 30(1) of the Constitution, to oppress or exploit its employees any more than any other private employee. Oppression or exploitation of the teaching staff of an educational institution is bound to lead, inevitably, to discontent and deterioration of the standard of instruction imparted in the institution affecting adversely the object of making the institution an effective vehicle of education for the minority community or o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the fundamental right guaranteed by Article 30(1), to the minority institutions to administer their educational institutions. Therefore, to the extent that Section 12 makes Section 10 inapplicable to unaided minority institutions, it is clearly discriminatory. 19. Section 8(1) merely empowers the Administrator to make rules regulating the minimum qualifications for recruitment, and the conditions of service of recognised private schools. Section 8(1) is innocuous and in fact Section 13 which applies to unaided minority schools is almost on the same lines as Section 8(1). The objection of the respondents is really to Section 8(2), 8(3), 8(4) and 8(5) whose effect is (1) to require the prior approval of the Director for the dismissal, removal, reduction in rank or other termination of service of an employee of a recognised private school, (2) to give a right of appeal to a Tribunal consisting of a single member who shall be a District Judge or who has held an equivalent judicial office, (3) to require prior approval of the Director if it is proposed to suspend an employee unless immediate suspension is necessary by reason of the gross misconduct of the employee in which case the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ass of cases, namely, those of dismissal, removal or reduction in rank and not to every dispute between an employee and the management. The limited right of appeal, the character of the authority constituted to hear the appeal and the manner in which the appellate power is required to be exercised make the provision for an appeal perfectly reasonable, in our view. The objection to the reference to an Arbitration Tribunal in the Nine Judge Bench case was to the wide power given to the Tribunal to entertain any manner of dispute and the provision for the appointment of umpire by the Vice-Chancellor. Those defects have been cured in the provisions before us. Similarly, the provision for an appeal to the Syndicate was considered objectionable in State of Kerala. v Mother Provincial, (supra), as it conferred the right on the university. 20. Section 8(4) would be inapplicable to minority institutions if it had conferred blanket power on the Director to grant or withhold prior approval in every case where a management proposed to suspend an employee but we see that it is not so. The management has the right to order immediate suspension of an employee in case of gross misconduct but in o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es Sections 8(1), 8(3), 8(4), 8(5), 9 and 11 inapplicable to unaided minority institutions. That the Parliament did not understand Sections 8 to 11 as offending the fundamental right guaranteed to the minorities under Article 30(1) is evident from the fact that Chapter IV applies to aided minority institutions and it cannot for a moment be suggested that surrender of the right under Article 30(1) is the price which the aided minority institutions have to pay to obtain aid from the Government. 22. The result of our discussion is that Section 12 of the Delhi School Education Act which makes the provisions of Chapter IV inapplicable to unaided minority institutions is discriminatory and void except to the extent that it makes Section 8(2) inapplicable to unaided minority institutions. We, therefore, grant a declaration to that effect and direct the Union of India and the Delhi Administration and its officers, to enforce the provisions of Chapter IV (except Section 8(2)) in the manner provided in the Chapter in the case of the Frank Anthony Public School. The management of the school is directed not to give effect to the orders of suspension passed against the members of the staff. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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