Sindhu Education Society vs State Of Maharashtra And Ors.
2005 Latest Caselaw 728 Bom

JUDGMENT

Britto N.A., J.

1. The short point for our consideration is whether the judgment of the Division Bench of this Court in this case dated 23-4-1986, as approved by the Full Bench of this Court in the case of St. Francis De Sales Education Society, Nagpur and Anr. v. State of Maharashtra and Anr. 2002(1) Bom. C.R.[F.B.]650 : 2001(3) Mh.L. J. 261, requires reconsideration in the light of the judgment of the Supreme Court in the case of T.M.A. Pai Foundation and Ors. v. State of Karnataka and Ors. , in view of the decision of that Court dated 1-4-2003 in Special W.P. No. 9501 of 1986? In other words, the issue that arose for consideration in S.F.S. Education Society (supra) was whether the reservation policy followed by the State applies to a minority educational Institutional?

2. The petitioner claiming to be a minority institution and claiming the protection of Article 30(1) of the Constitution, has been resisting the imposition of reservation policy of the State of Maharashtra as contained in Sub-rules (7), (8), (9) of Rule 9 of the Maharashtra Employees of Private Schools (Conditions of Services) Act, 1981. The petitioner in this petition challenged the said provisions of the sub-rules and also the communication dated 7-10-1981 issued by the Additional Education Officer, Z.P., Nagpur respondent No. 4. The petition was initially decided on or about 12-10-1984. But in view of the conflict of opinions between two learned Judges of the Division Bench of this Court (Sarvashree V.A. Mohta and H.W. Dhabe, JJ.) the petition was referred to the 3rd learned Judge namely Shri Puranik, J. By then it was noticed by Shri Puranik, J., that there were two judgments of two different benches, one in Appeal No. 157/85 decided on 21-3-1985 and the other in the case of Khan Abdul Hamid Abdul Razak v. Mohamed Haji Saboo Siddik Polytechnic 1986(Supp.) Bom. C.R. 616 : 1985 Mh.L.J. 400, which had expressed the view held by Shri Dhabe, J., in respect of very issues involved in the petition and, therefore, the learned 3rd Judge Shri Puranik, J., held that the view expressed by Shri Dhabe, J., was the correct view and accordingly the writ petition came to be decided finally by order dated 23-4-1986.

3. In the mean time another learned Division Bench of this Court (Sarvashree V.A. Mohta and Dr. B.P. Saraf, JJ.) doubted the correctness of the view held by the learned Division Bench of this Court in Khan Abdul Hamid Abdul Razak v. Mohamed Haji Saboo Siddik Polytechnic 1986(Supp.) Bom.C.R. 616 : 1985 Mh.L.J. 400, and in the light of subsequent Supreme Court pronouncement had. suggested it for reconsideration by a Full Bench. The Full Bench, in the case of St. Francis De Sales Education Society, Nagpur and Anr. v. State of Maharashtra and Anr. 2002(1) Bom. C.R.[F.B.]650 : 2001(3) Mh.L.J. 261 (supra) approved the view taken in Sindhu Education Society, after considering a number of judgments of the Supreme Court, by holding that judgment of the Division Bench of this Court in Khan Abdul Hamid Abdul Razak v. Mohamed Haji Saboo Siddik Polytechnic 1986(Supp.) Bom. C.R. 616, (supra) was wholly unexceptional and the view held in this case Sindhu Education Society v. State of Maharashtra and Ors. by Sarvashree H.W. Dhabe and Puranik, JJ., as well as in case of Father Anthony Mendonca v. State of Maharashtra 1986(Supp.) Bom. C.R. 384 : 1985 Mh.L.J. 148 and Rev. Sister Mary Daman and Anr. v. The Education Officer, Zilla Parishad, Nagpur and Ors. Writ Petition No. 1770 of 1980, dt. 3-2-1981 laid down the law correctly, and ultimately held that the petitioner in that case, being a minority Institution, could not be directed to appoint teachers or other staff on the basis of reservation policy followed by the State as evidenced in Rules 9(7) to 9(10) of the said rules and in case the said Rules were applied to the petitioner, they would violate the fundamental rights guaranteed to the petitioner as a Minority Institution under Article 30(1) of the Constitution.

4. The petitioner is a duly registered society, registered both under Societies Registration Act, 1860 and the Bombay Public Trust Act, 1950. The status of the petitioner as a linguistic minority institution was not seriously disputed and in fact it was held to be so by both the learned Judges of the Division Bench. The petitioner runs certain Educational Institution including a Primary School, High School and a Junior College. The petitioner society was founded by twelve persons who migrated from Sindh, ten belonging to Sindhi community and speaking Sindhi language and its first General Body Meeting was held on 24-8-1952. Out of 12 members, two were from the Sikh Community, but they also migrated from Sindh and spoke Sindhi language. This Court (Shri H.W. Dhabe, J.) referred to the case of presidential referred in (Kerala Education Bill 1957) A.I.R. 1958 S.C. 956, for the purpose of determining the minority character of the institution, and observed that the Supreme Court in para No. 21 of the said judgment had stated that the question of minority character of the institution is to be determined either on the basis of language or religion with reference to the territorial limits to which the Act in question was applicable and if the Act was applicable to the whole of the State, as in the instant case, the question of minority, character or the Institution should be determined with reference to the territorial limits of the State and if the population of the State shows that particular linguistic or religious community is the minority in the said State, in the sense that its population is less than 50 per cent of the total population of the State, the Institutions established by said linguistic or religious minority in the said State were entitled to enforce the fundamental right guaranteed to them under Article 30(1) of the Constitution. This Court, therefore, held that the petitioner society, which was founded by members speaking Sindhi language was the minority community in the State of Maharashtra. Nothing different has been stated by the Supreme Court in the case of T.M.A. Pai Foundation and Ors. (supra). In para No. 75 of the judgment the Supreme Court has stated that Article 30(1) deals with a religious minorities and linguistic minorities. The opening words of Article 30(1) make it clear that religious and linguistic minorities have been put on par, insofar as that article is concerned. Therefore, whatever the unit whether the State or the whole of India for determining the linguistic minority, it would be the same in relation to religious minority. India is divided into different linguistic States. The States have been carved out on the basis of the language of majority of the persons of that region. For example A.P. was established on the basis of the language of that region i.e. Telgu. Linguistic Minority can, therefore, logically only be in relation to a particular State. If determination of "Linguistic Minority" for the purpose of Article 30 is to be in relation to the whole of India, then within the State of A.P. Telgu speakers will have to be regarded as a linguistic minority. This will clearly be contrary to the concept of linguistic States. In para 76 the Supreme Court stated that the State has to be regarded as a unit for determining linguistic minority viz. Article 30, than that of a religious minority being on the same footing. It is the State in relation to which the majority or minority status will have to be determined.

5. His Lordship Shri Khare, J., adding to the aforesaid view of the majority, in the said case of T.M.A. Pai Foundation, stated that the person or persons establishing an Education Institution, who belong to either religious or linguistic group who are less than 50 per cent of the total population of the State in which the Educational Institution is established would be linguistic or religious minorities. In the words of His Lordship S.S.M. Quadri in para 244.

The word minority means a non-dominant group. It is a relative term and is referred to, to represent a smaller of two numbers sections or group or called majority and in that sense, there may be political minority, religious minority, linguistic minority, etc.

6. As said before there is no change in law as declared by this Court after T.M.A. Pai Foundation (supra).

7. This Court (Shri H.W. Dhabe, J.) as regards to the merits of the case noted that a conflict of interest of the backward classes with the right of the minorities had posed for consideration a sensitive problem about the extent of protection granted to them under the Constitution of India and proceeded to frame the question as to the extent of protection granted to the backward class by Article 15(4) and Article 46 of the Constitution viz-a-viz. fundamental right of the minorities, whether linguistic or religious, to establish and administer the Educational Institutions of their own choice guaranteed under Article 30(1) of the Constitution and after considering all aspects of the matter and various decisions of the Supreme Court proceeded to answer the said question by stating that the impugned Rules could not be enforced against the petitioners since they resulted in infringement of the fundamental right of the petitioner under Article 30(1) of the Constitution. Examining the impugned Rules in this case, the Court noted that there was 34 per cent reservation of the total of posts of backward classes in the appointment of teachers in the Educational Institution to which they were applicable. The reservation to the extent of 34 per cent may not be a substantial from the point of view of challenge under Article 15(4) or for that the matter under Article 16(4) in case of employment under the State, but it is certainly substantial under Article 30(1) which guarantees autonomy in the administration of Educational Institution of the minorities. Looking to the extent of the reservation permitted under the Rules and also looking further requirement instances of the State to fill up the backlog, there could not be no doubt that the impugned Rules and action taken thereunder, by the State Government severely curbed the autonomy of the minority Institution, which in the wisdom of the makers of the Constitution is protected by raising it to the status of fundamental right under Article 30(1) of the Constitution. However, looking to the Educational and economical problems of the weaker sections of the community and in particular the Scheduled Caste and Scheduled Tribes, it is desirable that the minority institutions of their own should give employment to the persons belonging to these categories, particularly in the institutions like those of the petitioner where secular education is imparted, if they are fully qualified and satisfy the norms of excellence for being appointed as teachers and if it would not otherwise interfere with their own ideas in administering their Educational Institutions. However, as already stated, there could not be any compulsion in this matter.

8. Before proceeding to approve the said judgment of the Division Bench of this Court in this case (per : H.W. Dhabe, J. and Puranik, J.) and other judgments already referred to herein above, the Full Bench of this Court in the case of St. Fronds De Sales Education Society, Nagpurand Anr. (supra) took note of several decisions of the Supreme Court, particularly Re: The Kerala Education Bill 1957 A.I.R. 1958 S.C. 956, (supra) Shedhrajbhai Sabbai v. State of Gujarat A.I.R. 1963 S.C. 540, St. Xavier College, Ahmadabad v. State of Gujarat , St. Stefens College v. The University of Delhi A.I.R. 1992 S.C. 1613 and N. Ammad v. Manager, Emjay High School and Ors. and observed that right from the Kerla Education Bill (supra) to Shedharajbhai (supra) to St. Xavier College to St. Stefen College (supra) to N. Ammad (supra), the law has been enumerated to the following effect-

(A) The fundamental right guaranteed under Article 30(1) of the Constitution is absolute and not subject to reasonable restrictions as under Article 19.

(B) Notwithstanding the absolute character of the fundamental right under Article 30(1), it is permissible for the State to make regulations in the interest of a efficiency, instruction, discipline, health, sanitation, public order and like such regulations are not restrictions on the substance of the right guaranteed by the Constitution, but are indeed to advance that right;

(C) The right of selection of the head of the minority Education Institution or teachers therein in the rights of admission of students thereto is a facit of a right to administer the minority educational Institution. Consequently, any restriction thereupon would infringe on the fundamental right guaranteed under Article 30(1) of the Constitution.

9. Here, we may note that in St. Stefhen's case (supra), what was concerned was Article 29(2), in relation to Article 30(1) of the Constitution and the Supreme Court had observed that :

The collective minority right is required to be made functional and is not to be reduced to useless lumber. A meaningful right must be shaped, moulded and created under Article 30(1) of the Constitution, while at the same time affirming the rights of the individual under Article 29(2). There is need to strike a balance between the two competing rights. It is necessary of mediate between Articles 29(2) and 30(1) of the Constitution between letter and spirit of these Articles, between traditions of the past and the convenience of the present, between society's need for stability and its need for change.

The Supreme Court stated that in view of the importance which the Constitution attaches to protective measures to minorities under Article 30(1), the minority aided Educational institutions are entitled to prefer their community candidates to maintain the minority character of the Institutions subject of course in conformity with the University standard. The State may regulate the intake in this category with due regard to the need of the community in the area which Institution is indeed to serve. But in no case such intake shall exceed 50 per cent of the annual admission. The minority Institution shall make available at least 50 percent of the annual admission to members of communities other than the minority community. The admission of other community candidates shall be done purely on the basis of merit.

10. Now, in T.M.A. Pai Foundation case (supra) the Supreme Court has recognised the basic ratio laid down by that Court in St. Stethen College case (supra) with a rider that a rigid percentage could not be stipulated and that it has to be left to the authorities to prescribe reasonable percentage having regard to the type of institution, population and educational needs of minorities. The Court has further held that once State aid is taken, there is no question of balancing Articles 29(2) and Article 30(1) of the Constitution and Article 29(2) must be given the full effect. We must hasten to add that. Ours is not a case concerned with admissions to minority institutions.

11. Indeed, the Supreme Court in the case of Sidharajbhai Sabbai and Ors. v. State of Gujarat (supra), speaking through six of its learned Judges stated in para 15 that -

The right established by Article 30(1) is a fundamental right declared in terms absolute. It is indeed to be a real right for the protection of the minorities in the matter of setting up of educational institutions of their own choice. The right is intended to be effective and is not to be whittled down by so called regulative measures conceived in the interest not of the minority educational institution but of the public or the nation as a whole. If every order which while maintaining the formal character of a minority institution destroys the power of administration is held justifiable because it is in the public or national interest, though no in its interest as an educational institution the right guaranteed by Article 30(1) will be put a "teasing illusion", a promise of unreality Regulations which may lawfully be imposed either by legislative or executive action as a condition of receiving while retaining its character as a minority institution 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/or the minority community or other persons who resort to it.

12. In St. Xavier Society, Ahmedabad (supra], the Supreme Court speaking through its Bench of 9 learned Judges stated in para 30 that -

Educational institutions are temples of learning. The virtues of human intelligence are mastered and harmonised by education. Where there is complete harmony between the teachers 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 worshippers of learning, no discord or challenge will arise. An educational institution runs smoothly when the teacher and the taught are engaged in the common ideal of pursuit of knowledge. It is, therefore, manifest that the appointment of teachers is an important part in educational institutions. The qualifications and the character of the teachers are really important. The minority institutions have the right to administer institutions. This right implies the obligation and duty of the minority institution 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. Regulations which will serve the interest 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. In para 103 the Supreme Court observed 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). Once the teachers possessing the requisite qualifications are selected by the minorities for their educational institutions, the State would have no right to vote the selection of those teachers. The selection and appointment of teachers for an educational institution is one of the essential ingredients of the right of manage an educational institution and the minorities can plainly by not denied such right of selection and appointment without infringing Article 30(1).

Again in para No. 183 the Supreme Court has stated that -

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.

(Emphasis supplied)

12. We do not find that the ratio laid down in St. Xavier College Society, Ahmedabad (supra) has been departed or dissented from by the Supreme Court in the case of T.M.A. Pai Foundation. On the contrary in para 54 in T.M.A. Pai Foundation, the Supreme Court has stated 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 maladministration by those in charge of management. The fixing of a rigid fee structure, dictating the formation and composition of a governing body, compulsory nomination of teachers and staff for appointment or nominating students for admissions would be unacceptable restrictions.

In para 55 the Supreme Court has stated that -

There can be no doubt that in seeking affiliation or recognition, the Board or the University or the affiliating or recognising authority can lay down conditions consistent with the requirement to ensure the excellence of education. It can, for instance indicate the quality of the teachers by prescribing the minimum qualifications that they must possess, and the courses of study and curricula. It can, for the same reasons, also stipulate the existence of infrastructure sufficient for its growth, as a requisite. But the essence of a private educational institution is the autonomy that the institution must have in its management and administration.

13. In para No. 114 the Supreme Court referred to the observations of His Lordship the Chief Justice in St. Xavier College Society (supra) with reference to Article 30(1) wherein it was observed 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 strenghten 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 fee 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.

Again Supreme Court took notes of the observations of the learned the Chief Justice in St. Xavier's College Society (supra) wherein he had discussed four principal matters relating to right to administer a minority institution, one of which was a "right to choose its teachers" and thereafter in para 161 in answer to question 5-c had stated that "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-today 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.

(Emphasis supplied).

It is, therefore, very clear that the Hon'ble Supreme Court in T.M.A. Pai Foundation (supra) has upheld and approved the law laid down earlier that a right to select a teacher in a minority institution is an integral part of right to administer under Article 30(1) of Constitution and same cannot be whittled down by external regulations. The only restrictions which could be imposed would be on the merit of an individual offering himself for being appointed as a teacher or a principal and no other. In T.M.A. Pai Foundation (supra), the Supreme Court has followed and reenforced the law in St. Xavier's College Society (supra) and in other cases referred to herein above as regards the appointment of staff and teachers that it is in the sole discretion of minority institution and any tinkering with the said right would amount to whittling down and denying the right under Article 30(1) of the Constitution of India.

14. Reverting to the Full Bench decision in S.F.S. Education Society (supra) this Court has held that there is an enforceable fundamental right couched in absolute terms, guaranteed in favour of minority institutions. There is a discretion left not an obligation in the State to make reservations in favour of backward class of citizens. Even if we accept the principles of balancing, as canvassed by learned Government Pleader, we have no doubt, that in a conflict between a recommendatory principle of nature of Article 16(2) which has been expressly held not to be enforceable and not creating an obligation on the State, and a guaranteed fundamental right couched in absolute terms, the latter must prevail.

In view of the above, the Division Bench judgment of this Court in this case dated 23-4-1986 as approved by the Full Bench of this Court in the case of St. Francis De Sales Education Society (supra) does not require any reconsideration, in the light of law laid down by the Supreme Court in T.M.A Pai Foundation. The questions framed, therefore, have got to be answered in the negative.

15. Consequently we allow the petition. The impugned letter dated 7-10-1981 of the Education Officer, Z.P., Nagpur, is quashed and set aside. The respondents are directed not to enforce the impugned Sub-rules (7), (8) and (9) of Rule 9 of the Rules framed under the Act against petitioner. Rule made absolute in terms of prayer (a) of the petition.