All Saints High School, Hyderabad Vs. Government of Andhra Pradesh & Ors [1980] INSC 18 (4 February 1980)
CHANDRACHUD, Y.V. ((CJ) CHANDRACHUD, Y.V. ((CJ) FAZALALI, SYED MURTAZA KAILASAM, P.S.
CITATION: 1980 AIR 1042 1980 SCR (2) 924 1980 SCC (2) 478
CITATOR INFO :
RF 1984 SC1512 (2) R 1984 SC1757 (2) R 1987 SC 311 (12,17,19) RF 1987 SC1210 (4,5,7,8,9,11) R 1988 SC 37 (16,18) D 1988 SC 305 (16,17) RF 1991 SC 101 (263,271) R 1991 SC2230 (4)
ACT:
Andhra Pradesh Recognised Private Educational Institutions Control Act 1975-Sections 3 to 7-Validity of- Provisions if violate constitutional guarantee in Art.
30(1).
Constitution of India 1950-Article 30(1)-Andhra Pradesh Recognised Private Educational Institutions Control Act, 1975-If offends against Art. 30(1).
HEADNOTE:
The purported object of the Andhra Pradesh Recognised Private Educational Institutions Control Act 1975 was to regulate the service conditions of teachers in private educational institutions and for ensuring the security of service of the teachers. Section 3(1) of the Act provides "Subject to any rule that may be made in this behalf, no teacher employed in any private educational institution shall be dismissed, removed or reduced in rank nor shall his appointment be otherwise terminated except with the prior approval of the competent authority". The proviso to this sub-section states that if any educational management etc.
contravenes the provisions of this sub-section, the teacher affected shall be deemed to be in service. Where a proposal to dismiss etc. any teacher is communicated to the competent authority, according to sub-section (2) of this section, that authority shall, if satisfied that there are adequate and reasonable grounds for such proposal approve such dismissal, removal or reduction in rank or termination of appointment. Clause (a) of sub-section (3) of this section states that no teacher employed in any private educational institution shall be placed under suspension, except when an enquiry into the gross misconduct of such teacher is contemplated. Clause (b) provides that no such suspension shall remain in force for more than a period of two months from the date of suspension and if such inquiry is not completed with that period, such teacher shall, without prejudice to the inquiry, be deemed to have been r restored as teacher. The proviso states that the competent authority may, for reasons to be recorded in writing, extend the said period of two months for a further period not exceeding two months, if in his opinion, the inquiry could not be completed within the said period of two months for reasons directly attributable to each teacher. Section 4 gives a right of appeal to teachers employed in private educational institutions against orders of punishment imposed on them.
Section 5 deals with special provisions regarding appeal in certain past disciplinary cases.
Section 6 which deals with retrenchment of teachers provides that where retrenchment of any teacher is rendered necessary consequent on any order of the Government relating to education or course of instructions or to any other matter, such retrenchment may be effected with the prior approval of the competent authority.
Section 7 provides for payment of pay and allowances to teachers in the prescribed manner.
925 The appellants who were minority educational institutions established by members of the Christian community filed writ petitions before the High Court impugning various provisions of the Act as being violative of the guarantee contained in Article 30(1) of the Constitution by permitting or compelling interference with the internal administration of their private educational institutions. In particular they challenged the provisions of sections 3 to 7 of the Act on the ground that they deprive them of their right to administer the affairs of minority institutions by vesting the ultimate administrative control in an outside authority. The contentions having been rejected by the High Court they filed appeals by special leave.
HELD s Permajority-(Chandrachud, C.J., and Fazal Ali, J.-Kailasam,J., dissenting.):
Sub-sections (1) and (2) of section 3 are invalid and cannot be applied to minority institutions.
Per majority-(Chandrachud, C.J., and Kailasam J.-Fazal Ali, J. dissenting).
Clauses (a) and (b) of section 3(3) do not offend against Art. 30(1) and are valid.
By the Court: Sections 4 & 5 are unconstitutional as being violative of Art. 30(1).
Per majority (Chandrachud, C.J., and Kailasam J-Fazal Ali, J, dissenting).
Section 6 is valid.
By the Court: Section 7 is valid.
Per Chandrachud, C.J.
Section 3(1) and 3(2) are unconstitutional in so far as they are made applicable to minority institutions since in practice these provisions are bound to interfere substantially with their right to administer institutions of their choice. [937E]
1. (a) Section 3(1) gives an unqualified mandate that no teacher shall be dismissed etc. except with the prior approval of the competent authority. Under the proviso, contravention of the section results in a total invalidation of the proposed action. If the section is contravened the teacher shall be deemed to be in service. Secondly, the sub- section applies not only to cases in which the teacher is punished by an order of dismissal etc. but to cases in which the appointment is otherwise terminated. An order of termination simply citer is also required to be submitted for the prior approval of the competent authority. All this shows that the true object of the sub-section is not that which one could liberally assume by reading down the section. [935H; 936AB] (b) In the absence of any rules furnishing guidelines on the subject, it is difficult to predicate that in practice the operation of the section would be limited to a certain class of cases only. The absence of rules on the subject makes the unguided discretion of the competent authority the sole arbiter of the question as to which cases would fall within the section and which would fall outside it. [936 E-F] (c) Section 3(2), under the guise on conferring the power of approval, confers upon the competent authority an appellate power of great magnitude. That authority is made a judge both of facts and on law by the conferment upon 926 it of a power to test the validity of the proposal on the vastly subjective touchstone of adequacy and reasonableness.
The sub-section leaves no scope for reading down the provision of section 3(1). The two sub-sections together confer upon the competent authority, in the absence of proper rules, a wide and untrammeled discretion to interfere with the proposed order whenever in its opinion the order is based on grounds which do not appear to it either adequate or reasonable. [936G-H; 937A] (d) Though the section provides that the competent authority "shall" approve the proposed order if it is satisfied that it is based on adequate and reasonable grounds, its plain and necessary implication is that it shall not approve the proposal unless it is satisfied. The conferment of such a power on an outside authority, the exercise of which is made to depend purely on subjective consideration arising out of twin formula of adequacy and reasonableness, cannot but constitute an infringement of the right guaranteed by article 30(1). [937C] State of Kerala v. Very. Rev. Mother Provincial [1971] 1 SCR 734, D.A.V. College v. State of Punjab [1971] Suppl.
S.C.R. 688 and Ahmedabad st. Xaviers College Society v. State of Gujarat [1975] 1 S.C.R. 173; referred to.
2. (a) Section 3(3)(a) and 3(3)(b) of the Act do not offend against the provisions of article 30(1) and are valid. [939B-C] (b) Clause (a) contains but an elementary guarantee of freedom from arbitrariness to the teachers. The provision is regulatory in character since it neither denies to the management the right to proceed against an earring teacher nor does it place an unreasonable restraint on its power to do so. It assumes the right of the management to suspend a teacher but regulates that right by directing that a teacher shall not be suspended unless an inquiry into his conduct is contemplated and unless the inquiry is in respect of a charge of gross misconduct. These restraints which bear a reasonable nexus with attainment of educational excellence cannot be considered to be violative of the right given by article 30(1). The limitation of the period of suspension initially to two months, which can in appropriate cases be extended by another two months, as provided in clause (b) and its proviso, partakes of the same character as the provisions contained in clause (a). A provision founded so patently on plain reason is difficult to construe as an invasion of the right to administer an institution unless that right carried with it the right to maladminister. [938 G-H]
3. Section 4 is unconstitutional as being violative of article 30(1) of the constitution. The section confers upon the government the power to provide by rules that an appeal might lie to such authority or officer as it designates, regardless of the standing or status of that authority or officer. Secondly an appeal is provided for on all questions of fact and law, thereby throwing open the order passed by the management to the unguided scrutiny and unlimited review of the appellate authority, which would mean that, in the exercise of the appellate power, the prescribed authority or officer can substitute his own view for that of the management even in cases in which two views are reasonably possible. Lastly, while a right of appeal is given to the aggrieved teacher against the order passed by the management, no corresponding right is conferred on the management against the order passed by the competent authority under section 3(2) of the Act. In the absence of a provision for appeal against the order of the competent autho- 927 rity refusing to approve the action proposed by the management, the management is pleased in a gravely disadvantageous position vis-a-vis the teacher who is given the right of appeal by section 4. [939D-H] Section 5 must fall with section 4. [940B]
4. Section 6 is valid. The section aims at affording a minimal guarantee of security of tenure to teachers by eschewing the passing of mala-fide orders in the garb of retrenchment. It is implicit in the provisions of this section that the limited jurisdiction which it confers upon the competent authority is to examine whether, in cases where the retrenchment is stated to have become necessary by reason of an order passed by the Government, it has in fact so become necessary. The conferment of a guided and limited power on the competent authority for the purpose of finding out whether, in fact the retrenchment has become necessary by reason of a Governmental order cannot constitute an interference with the right of administration conferred by article 30(1). [940D-F] Section 7 is regulatory in its character and is valid.
[940H] Per Fazal Ali, J.
On an exhaustive analysis of the authorities of this Court on the various aspects of the fundamental right enshrined in article 30(1) of the Constitution the following propositions of law emerge:- (i) Article 30(1) enshrines the fundamental right of the minority institutions to manage and administer their educational institutions.
[967H] (ii) Although, the right conferred by this article is absolute, unfettered and unconditional, it does not mean that it gives a licence for maladministration so as to defeat the avowed object of the article, namely to advance excellence and perfection in the field of education. [968B] (iii)While the State or any other statutory authority has no right to interfere with the internal administration of the minority institution, it could take regulatory measures to promote the efficiency and excellence of educational standards and issue guidelines for ensuring the security of the services of the teachers and other employees of the institution. [968C] (iv) Under the garb of adopting regulatory measures, the State or any other authority cannot destroy the administrative autonomy of the institution or interfere with the management of the institution so as to render the right of administration of the management of the institution illusory. [968E] (v) By its very nature article 30 implies that where an affiliation is asked for, the university cannot refuse the same without sufficient reason or try to impose such conditions as would completely destroy the autonomous administration of the educational institution. [968G] (vi) Induction of an outside authority in the governing body of the minority institution to conduct the affairs of the institution would be completely destructive of the fundamental right under article 30(1), where a high authority like the Vice-Chancellor or his 928 nominee is appointed in the administration, such authorities should not be thrust so as to have a controlling voice in the matter overshadowing the powers of the managing committee. [968H] (vii)It is open to the Government or the University to frame rules and regulations governing the conditions of service of teachers in order to secure their tenure of service and to appoint a high authority to see that the rules are not violated or the members of the staff are not victimised. In such cases the purpose is not to interfere with the autonomy of the institution but merely to improve the excellence and efficiency of education. Even so, an authority should not be given a blanket uncanalised and arbitrary powers. [969E-F] (viii)Where a minority institution affiliated to a university is enjoined to adopt courses of study of the syllabi or the nature of books prescribed and the holding of examination to test the ability of the students of the institution, it does not follow that the freedom contained in article 30(1) of the Constitution is violated. [970A] (ix) Where a high authority is appointed to exercise vigilance on the work of the teachers and to ensure security of tenure for them the authority must be given proper guidelines. Before coming to any decision which may be binding on the managing committee the head of the institution or the senior member of the managing committee must be associated and they should be allowed to have a say in the matter. [970C] Kerala Education Bill, 1957, [1957] SCR 995; Sidhajbhai Sabhai and Ors. v. State of Bombay and Anr. [1963] 3 SCR 837; Rev. Father W. Proost & Ors. v. State of Bihar [1969] 2 SCR 73; State of Kerala etc. v. Veru Rev. Mother Provincial etc. [1971] 1 SCR 734; D.A.V. College etc. v. State of Punjab & Ors. [1971] Suppl. SCR 688 and The Ahmedabad St. Xaviers College Society & Anr. etc. v. State of Gujarat [1975] 1 SCR 173; referred to.
1. (a) Section 3 in its entirety is ultra-vires as being violative of article 30(1) and is wholly inapplicable to the appellants who are minority institutions. [975B] (b) The proviso enjoins that any contravention of the provisions would not affect the teachers who would be deemed to be in service. It is manifest that in the absence of any rules the proviso would have no application and even if it applied it would amount to a serious inroad on the fundamental right of the minority institutions to administer or manage their own affairs. [971H] (c) Sub-section 2 of section 3 is unconstitutional as being violative of article 30(1). It suffers from the vice of excessive delegation of powers and confers undefined, absolute and arbitrary powers to grant or to refuse sanction to any action taken by the managing committee and almost reduces the institution to a helpless position. [973B-C] (d) If the State wanted to regulate the conditions of service of the teachers, it should have taken care to make proper rules giving sufficient 929 powers to the management in the manner in which it was to act. Induction of an outside authority into the institution and making his decision final was a blatant interference with the autonomy of the institution. The words "adequate and reasonable" are too vague and do not lay down any objective standard to judge the discretion to be exercised by the competent authority whose order would be binding on the institution. [972F-G] (e) While section 4 gives a right of appeal to the aggrieved teacher no such right has been given to the management to file an appeal against the order of the competent authority if it refuses to grant sanction to the order of the Managing Committee of the institution. The competent authority is only the District Educational Officer who is not a very high authority such as a Director of Public instruction or Vice-Chancellor of a University. No time limit has been fixed by the statute within which the competent authority is to give its approval. The cumulative effect of clause (a) and (b) of section 3(3) and the proviso is to interfere with the internal administration of the minority institutions and curb the power of suspension. It deprives the institution of the right of taking any disciplinary action against a teacher. The adjective "gross" before the term "misconduct in clause (a) destroys the power of suspension which the minority institution possesses. The provision contained in clause (b) of section 3(3) providing that no suspension shall remain in force for a period of more than two months from the date of suspension and if no inquiry is completed within this period the teacher would have to be reinstated, gives an unqualified right to a teacher in the matter of suspension which even a government servant does not enjoy. [973A, 974D-E]
2. Section 4 is ultra-vires and is violative of article 30 of the Constitution. It does not contain any guidelines as to the manner in which the power could be exercised, nor does it contain any provision which may entitle the minority institution to be heard by the appellate authority. The conferment of an absolute and unguided power on the appellate authority would amount to a direct interference with the right enshrined in article 30(1) and makes the minority institution a powerless body. [976B; 975G]
3. If section 4 is inapplicable to the minority institution Section 5 also follows the same fate. [976C]
4. Section 6 which contains an un-canalised and unguided power suffers from the same vice as in the case of section 3. The words "administer educational institutions of their choice" in article 30 clearly indicate that the institution has an absolute right to select teachers, retain them or retrench them at its sweet will according to the norms prescribed by the institution or by the religious order which has founded the institution. [976H] 5. Section 7 is an innocuous provision and is valid. [977C]
6. Sections 8, 9, 12 and 13 are inapplicable to the minority institutions. [977D, 978B]
7. Section 16 suffers from a serious defect namely that the provision regarding appeal to the appellate authority was valid then it completely bars the right of the management to file a suit to challenge the validity of the order of the appellant. To this extent the section makes serious inroad on the fundamental right of the minority institutions and is inapplicable to the minority institutions. [978G] Section 17 is inapplicable. [978F] 930 Per Kailasam, J.
1. A reading of the various decisions rendered by this Court on the interpretation of article 30(1) of the Constitution makes it clear that while the right 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 standards 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 are 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. Regulations can be made by the government for ensuring the proper conditions of service of the teachers and for securing fair procedure in the matter of disciplinary action against them. Prescribing uniformity in the conditions of service and conduct of teachers in all non-governmental colleges would promote harmony, avoid frustration and, therefore, is permissible.
Rules prescribed by the university or other authority may require that no member of the teaching or non-teaching staff of a recognised or approved institution shall be dismissed etc., except after a proper enquiry. If the regulations require the approval of the competent authority for safeguarding the rights of the teachers and for securing the procedure there can be no objection. Such authority can also interfere with the decision of the private institutions when the punishment awarded is malafide or by way of victimisation or for similar causes. [989B; 993D-G] Kerala Education Bill [1959] SCR, 995, Rev. Sidhajbhai Sabhai & Ors. [1963] 3 SCR 837, Rev. Father W. Proost and Ors. v. State of Bihar & Ors. [1969] 2 SCR 73, State of Kerala v. Very. Rev. Mother Provincial [1971] 1 SCR 734, D.A.V. College etc. v. State of Punjab & Ors. [1971] Suppl.
S.C.R. 688 and Ahmedabad St. Xaviers College Society and Anr. etc. v. State of Gujarat [1975] 1 S.C.R. 173, referred to.
2. It is not only reasonable but proper that a restricted meaning is given to the power of prior approval conferred on the competent authority under section 3 of the Act. It is a well established principle of interpretation that the statement of objects and reasons could be referred to for the limited purpose of ascertaining the conditions prevalent at the time which actuated the sponsor of the Bill to introduce the same and the extent of urgency and the evil sought to be remedied. Clearly the legislation was intended to regulate the service conditions of teachers employed in the private educational institutions and for the security of service of the teachers. The power contained in section 3(1) and 3(2) is restricted to regulating the service conditions of teachers and for ensuring their security of service.
[1001C; 998A-B]
3. While interpreting a provision of law the Court will presume that the legislation was intended to be intra vires and also reasonable. The section ought to be interpreted consistent with the presumption which imputes to the legislature an intention of limiting the direct operation of its enactment to the extent that is permissible. A reading down of a provision of a statute puts into operation the principle that so far as it is reasonably possible to do so, the legislation should be construed as being within its power. It has the principle effect 931 that where an Act is expressed in language of generality, which makes it capable, if read literally, of applying to matters beyond the relevant legislative powers, the Court will construe it in a more limited sense so as to keep it within power. [998E-F] The State of West Bengal v. Subhodh Gopal Bose and Ors. SCR 587, Att. Genl. v. HRH Prince Earnest Augstas of Hanover, [1957] A.C. 436, Keshavananda Bharti v. State of Kerala [1973] Suppl. S.C.R. 1, 101, Towns v. Bigner 245 U.S. 413-62 L.ed. 372, 376 and Kedar Nath Singh v. State of Bihar [1962] 2 Suppl. SCR 769; referred to.
In the instant case it must be presumed that the legislature was conscious of the limitations of the power which the competent authority can have in granting or withholding approval in the case of disciplinary proceedings conducted by private institutions. The object of the legislation in this case was very different from other cases in which the legislation was aimed at depriving the minority institutions of all their powers. Its only aim is to provide security of service. There are sufficient guidelines in the objects and reasons as well as in the preamble. [1001 B-C]
4. (a) The contention that section 3(1) and (2) lack guidelines and have conferred a blanket power cannot be accepted. Section 3(1) and (2) must be read together. The words "adequate and reasonable" should be given a restricted meaning so as to validate the provisions of the section. The approval of an order contemplated by sub-section (2) will have to be read with sub-section (1). Sub-section (2) required the competent authority to approve such a proposal if it is satisfied that there are adequate and reasonable grounds for such proposal. The words "adequate and reasonable" furnish sufficient guidelines. The competent authority can interfere if there are no materials at all for sustaining the order of punishment or when on the materials found the charge is completely baseless and preserve. The word "adequate" will have to be understood as being confined to such examination of the proposal. The word "reasonable" would indicate that the power of the competent authority is confined to the power of an authority to interfere with the enquiry and the conclusions arrived at by the domestic tribunal. It cannot be understood as conferring absolute power to interfere with the enquiry by the tribunal as a Court of appeal on merits. [1002E; 1001G-H] (b) The plea that the "competent authority" may be any petty officer cannot be upheld because it is defined in section 2(1) to mean "any authority, officer or person authorised by notification performing the functions of competent authority". The officers of the educational department who are incharge of the administration of educational institutions in the area cannot be called petty officers. [1002H] (c) Clauses (a) and (b) of sub-section (3) cannot be said to interfere with the right of administration of the private institutions. The two clauses are regulatory in nature and are intended to safeguard the teachers from being suspended for unduly long periods without there being an enquiry into "gross mis-conduct." [1003C] (d) Sub-section (4) of section 3 which states that every teacher placed under suspension shall be paid subsistence allowance at such rates as may be 932 prescribed during the period of his suspension is purely regulatory in nature and, therefore, unobjectionable.
[1003D]
5. Section 4 is invalid. The vice contained in this section is that the right of appeal which is confined only to the teachers is not available to institutions. [1003F]
6. Section 5 which confers power on the competent authority to hear appeals in certain past disciplinary cases will have to fall along with section 4. [1003G]
7. Section 6 is also regulatory in nature and its validity cannot be questioned. [1003H]
8. Section 7 is regulatory in nature and is intended for securing regular payment to the teachers. [1004A]
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1280, 1279, 1327-1330 of 1978 and 35 of 1979.
Appeals by special leave from the Judgment and Order dated 2-8-1978 of the Andhra Pradesh High Court in Writ Petition Nos. 718, 5505, 3618, 5506, 5518, of 1975 and 604/78 and 4814/1975.
L. N. Sinha, K. Srinivasa Murthy, Naunit Lal and M.
Panduranga for the Appellants in CA Nos. 1279, 1280, 1327- 1330/78.
S. N. Kackar, Sol. Genl., Venkatarao and G. N. Rao for R. 1 in CA 1280, RR 1-3 in CAs. 1327 & 1329 and RR 1 & 2 in 1328 & 1330.
H. S. Gururaja Rao and S. Markendaya for RR 2-3 in CA 1280 and R. 4 in CA 1279.
K. M. K. Nair for R. 4 in CA 1329 S. Balakrishnan for R. 8 in CA 1329 G. Narasimhulu for R. 3 in CA 1330 B. Parthasarthi for the Appellant in CA 35/79.
B. Kanta Rao for the RR 4-5 in CA 35/79.
The following Judgments were delivered CHANDRACHUD, C.J.-Article 30(1) of the Constitution provides:
All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.
The question which arises in these appeals is whether certain provisions of the Andhra Pradesh Recognised Private Educational Institutions Control Act, 11 of 1975, offend against the fundamental right 933 conferred on minorities by Art. 30 (1). The appellants are unquestionably minority educational institutions, having been established by members of the Christian community.
My learned Brothers, Murtaza Fazal Ali and Kailasam, have examined the authorities bearing on the question before us. The reasons which impelled me to write a separate judgment are my inability to agree wholly with the various observations made by Justice Fazal Ali and with some of the propositions which he has formulated as emerging from the decisions referred to by him, as also with the conclusion to which Justice Kailasam has come. I do not consider it necessary to examine all the decisions of this Court in which Art. 30(1) has received a full and careful consideration. These decisions are reported in Re Kerala Education Bill 1957, Rev. Sidhajbhai Sabhai v. State of Bombay Rev. Father W. Proost v. The State of Bihar State of Kerala v. Very Rev. Mother Provincial D. A. V. College v.
State of Punjab The Ahmedabad St. Xaviers College Society v. State of Gujarat Gandhi Faizeam College Shahajahanpur v. University of Agra and Lilly Kurian v. Sr. Lewina Almost each succeeding judgment has considered and analysed the previous judgment or judgments. I regard the matter arising before us as well-settled, especially after the 9-Judge Bench decision in Ahmedabad St. Xaviers College Society (supra) and the recent judgment of the Constitution Bench in Lilly Kurian, All that we have to do in this case is to apply the law laid down in these decisions.
These decisions show that while the right of the religious and linguistic minorities 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 the excellence thereof can be validly prescribed. For maintaining educational standards of an institution, it is necessary to ensure that it is competently staffed. Conditions of service which prescribe minimum qualifications for the staff, their pay scales.
their entitlement to other benefits of service and the laying down of safeguards which must be observed before they are removed or dismissed from service or their services are terminated are all permissible measures 934 of a regulatory character. As observed by Das C.J., in Re:
Kerala Education Bill, (supra) "Right to administer cannot obviously include the right to mal-administer", and in the words of Shah J., in Rev. Sidhajbhai, (supra) "The right is subject to reasonable restrictions in the interest of efficiency of instruction, discipline, health, sanitation, morality, public order and the like". Hidayatullah C.J. said in Very Rev. Mother Provincial (supra) that "Standards of education are not a part of management as such", that the "minority institutions cannot be permitted to fall below the standard of excellence expected of educational institutions" and that "the right of the State to regulate education, educational standards and the allied matters cannot be denied". Justice Jaganmohan Reddy, in D. A. V. College (supra) reiterated while upholding clause 18 of the Guru Nanak University, Amritsar Act, 1961 that regulations governing recruitment and service conditions of teachers of minority institutions, which are made in order to ensure their efficiency and excellence do not offend against their right to administer educational institutions of their choice.
In the case of institutions that receive State aid, it is the duty and obligation of the Government which grants aid to see that public funds are usefully and properly expended. If the expenditure incurred for paying the emoluments of the staff is subsidised or financed from out of State funds, it becomes the duty of the State to see that no one who does not possess the minimum qualifications is appointed on the staff, the pay and other emoluments of the staff are guaranteed and their service conditions secured.
Minority institutions which receive State aid cannot complain of conditions subject to which the aid is granted, so long as such conditions do not amount to discrimination against them on the ground of language or religion and so long as the aid is not made to depend upon the performance or observance of conditions which amount to deprivation of the right guaranteed by article 30(1). There is also no doubt that minority institutions cannot be discriminated against in the matter of granting State aid.
No institution, minority or majority, has a fundamental right to recognition by the State or affiliation to the University, but since recognition and affiliation are indispensable for an effective and fruitful exercise of the fundamental right of minorities to establish and administer educational institutions of their choice, they are entitled to recognition and affiliation if they agree to accept and comply with regulatory measures which are relevant for granting recognition and affiliation, which are directed to ensuring educational excellence of 935 the institution concerned and which, largely and substantially, leave unimpaired the right of administration in regard to internal affairs of the institution.
The impugned Act, by reason of section 1 (3), applies to all private educational institutions, whether or not they are established by minorities. The appellants' contention is that several provisions of the Act violate the guarantee contained in Art. 30(1) by permitting or compelling interference with the internal administration of private educational institutions established by minorities. The appellants are particularly aggrieved by the provisions of sections 3 to 7 of the Act, the validity whereof in challenged on the ground that they deprive the appellants of their right to administer the affairs of minority institutions by vesting the ultimate administrative control in an outside authority. These contentions having been rejected by the High Court of Andhra Pradesh, the appellants have filed these appeals by special leave.
Section 3 (1) of the Act provides that, subject to any rule that may be made in this behalf, no teacher employed in any private educational institution shall be dismissed, removed or reduced in rank nor shall his appointment be otherwise terminated, except with the prior approval of the competent authority. The proviso to the section says that if any educational institution contravenes the aforesaid provision, the teacher affected by the contravention shall be deemed to be in service. Section 3 (2) requires that where the proposal to dismiss, remove or reduce in rank or otherwise terminate the appointment of any teacher employed in any private educational institution is communicated to the competent authority, that authority shall approve the proposal, if it is satisfied that there are adequate and reasonable grounds for the proposal.
For appreciating their true meaning and effect, sections 3 (1) and 3 (2) have to be read together. The requirement of prior approval of the competent authority to an order of dismissal, removal, etc. may not by itself be violative of article 30 (1) because it may still be possible to say, on a reasonable construction of the provision laying down that requirement, that its object is to ensure compliance with the principles of natural justice or the elimination of mala fides or victimisation of teachers. But I find it difficult to read down section 3 (1) so as to limit its operation to these or similar considerations. In the first place, the section does not itself limit its operation in that manner; on the contrary, it gives an unqualified mandate that no teacher shall be dismissed, removed, etc. except with 936 the prior approval of the competent authority. Under the proviso contravention of the section results in a total invalidation of the proposed action. If the section is contravened the teacher shall be deemed to be in service.
Secondly, section 3 (1) not only applies to cases in which a teacher is, what is generally termed as 'punished', by an order of dismissal, removal or reduction in rank, but it also applies to cases in which an appointment is otherwise terminated. An order of termination simpliciter which involves no stigma or aspersion and which does not result in any evil consequences is also required to be submitted for the prior approval of the competent authority. The argument that the principles of natural justice have not been complied with or the argument of mala fides and victimisation has seldom any relevance if the services are terminated in accordance with the terms of a contract by which the tenure of the employment is limited to a specified period. This shows that the true object of section 3 (1) is not that which one could liberally assume by reading down the section.
Section 3 (1) is subject to any rules that may be made in behalf of the matter covered by it. If the State Government were to frame rules governing the matter, there would have been some tangible circumstances or situations in relation to which the practical operation of section 3(1) could have been limited. But in the absence of any rules furnishing guidelines on the subject, it is difficult to predicate that, in practice, the operation of the section will be limited to a certain class of cases only. The absence of rules on the subject makes the unguided discretion of the competent authority the sole arbiter of the question as to which cases would fall within the section and which would fall outside it.
Any doubt as to the width of the area in which section 3(1) operates and is intended to operate, is removed by the provision contained in section 3 (2), by virtue of which the competent authority "shall" approve the proposal, "if it is satisfied that there are adequate and reasonable grounds" for the proposal. This provision, under the guise of conferring the power of approval, confers upon the competent authority an appellate power of great magnitude. The competent authority is made by that provision the sole judge of the propriety of the proposed order since it is for that authority to see whether there are reasonable grounds for the proposal. The authority is indeed made a judge both of facts and law by the conferment upon it of a power to test the validity of the proposal on the vastly subjective touch- stone of adequacy and reasonableness. Section 3 (2), in my opinion, leaves no scope for reading down the provisions of section 937 3 (1). The two sub-sections together confer upon the competent authority, in the absence of proper rules, a wide and untrammeled discretion to interfere with the proposed order, whenever, in its opinion, the order, is based on grounds which do not appear to it either adequate or reasonable.
The form in which Section 3 (2) is couched is apt to mislead by creating an impression that its real object is to cast an obligation on the competent authority to approve a proposal under certain conditions. Though the section provides that the competent authority "shall" approve the proposed order if it is satisfied that it is based on adequate and reasonable grounds, its plain and necessary implication is that it shall not approve the proposal unless it is so satisfied. The confernment of such a power on an outside authority, the exercise of which is made to depend on purely subjective considerations arising out of the twin formula of adequacy and reasonableness, cannot but constitute an infringement of the right guaranteed by Art.
30 (1).
I find it difficult to save sections 3 (1) and 3 (2) by reading them down in the light of the objects and reasons of the impugned Act. The object of the Act and the reasons that led to its passing are laudable but the Act, in its application to minority institutions, has to take care that it does not violate the fundamental right of the minorities under Art. 30(1). Sections 3(1) and 3(2) are in my opinion unconstitutional in so far as they are made applicable to minority institutions since, in practice, these provisions are bound to interfere substantially with their right to administer institutions of their choice. Similar provisions were held to be void in Very Rev. Mother Provincial, D. A. V. College and Lilly Kurian. (supra) There is no distinction in principle between those provisions and the ones contained in sections 3 (1) and 3 (2).
For these reasons, I am in agreement with Brother Fazal Ali that Sections 3 (1) and 3 (2) of the impugned Act cannot be applied to minority institutions, since to do so will offend against Article 30 (1).
Section 3 (3) (a) provides that no teacher employed in any private educational institution shall be placed under suspension except when an inquiry into the gross misconduct of such teacher is contemplated. Section 3 (3) (b) provides that no such suspension shall remain in force for more than a period of two months and if the inquiry is not completed within that period the teacher shall, without prejudice to the inquiry, be deemed to have been restored as 938 a teacher. The proviso to the sub-section confers upon the competent authority the power, for reasons to be recorded in writing, to extend the period of two months for a further period not exceeding two months if, in its opinion, the inquiry could not be completed within the initial period of two months for reasons directly attributable to the teacher.
With respect, I find it difficult to agree with Brother Fazal Ali that these provisions are violative of article 30 (1). The question which one has to ask oneself is whether in the normal course of affairs, these provisions are likely to interfere with the freedom of minorities to administer and manage educational institutions of their choice. It is undoubtedly true that no educational institution can function efficiently and effectively unless the teachers observe at least the commonly accepted norms of good behaviour. Indisciplined teachers can hardly be expected to impress upon the students the value of discipline, which is a sine qua non of educational excellence. They can cause incalculable harm not only to the cause of education but to the society at large by generating a wrong sense of values in the minds of young and impressionable students. But discipline is not to be equated with dictatorial methods in the treatment of teachers. The institutional code of discipline must therefore conform to acceptable norms of fairness and cannot be arbitrary or fanciful. I do not think that in the name of discipline and in the purported exercise of the fundamental right of administration and management, any educational institution can be given the right to 'hire and fire' its teachers. After all, though the management may be left free to evolve administrative policies of an institution, educational instruction has to be imparted through the instrumentality of the teachers; and unless, they have a constant assurance of justice, security and fair play it will be impossible for them to give of their best which alone can enable the institution to attain the ideal of educational excellence. Section 3 (3) (a) contains but an elementary guarantee of freedom from arbitrariness to the teachers. The provision is regulatory in character since it neither denies to the management the right to proceed against an erring teacher nor indeed does it place an unreasonable restraint on its power to do so. It assumes the right of the management to suspend a teacher but regulates that right by directing that a teacher shall not be suspended unless an inquiry into his conduct is contemplated and unless the inquiry is in respect of a charge of gross misconduct. Fortunately, suspension of teachers is not the order of the day, for which reason I do not think that these restraints which bear a reasonable nexus with the attainment of educational excellence can be considered to be violative of the right given 939 by Art. 30 (1). The limitation of the period of suspension initially to two months, which can in appropriate cases be extended by another two months, partakes of the same character as the provision contained in section 3 (3) (a).
In the generality of cases, a domestic inquiry against a teacher ought to be completed within a period of two months or say, within another two months. A provision founded so patently on plain reason is difficult to construe as an invasion of the right to administer an institution, unless that right carried with it the right to maladminister. I therefore agree with Brother Kailasam that sections 3 (3) (a) and 3 (3) (b) of the Act do not offend against the provisions of Art. 30 (1) and are valid.
Section 4 of the Act provides that any teacher employed in a private educational institution (a) who is dismissed, removed or reduced in rank or whose appointment is otherwise terminated; or (b) whose pay or allowances or any of whose conditions of service are altered or interpreted to his disadvantage, may prefer an appeal to such authority or officer as may be prescribed. This provision in my opinion is too broadly worded to be sustained on the touchstone of the right conferred upon the minorities by Art. 30 (1). In the first place, the section confers upon the Government the power to provide by rules that an appeal may lie to such authority or officer as it designates, regardless of the standing or status of that authority or officer. Secondly, the appeal is evidently provided for on all questions of fact and law, thereby throwing open the order passed by the management to the unguided scrutiny and unlimited review of the appellate authority. It would be doing no violence to the language of the section to interpret it to mean that, in the exercise of the appellate power, the prescribed authority or officer can substitute his own view for that of the management, even in cases in which two views are reasonably possible. Lastly, it is strange, and perhaps an oversight may account for the lapse, that whereas a right of appeal is given to the aggrieved teacher against an order passed by the management, no corresponding right is conferred on the management against an order passed by the competent authority under section 3 (2) of the Act. It may be recalled that by section 3 (1), no teacher can be dismissed, removed, etc. except with the prior approval of the competent authority. Section 3 (2) confers power on the competent authority to refuse to accord its approval if there are no adequate and reasonable ground for the proposal. In the absence of the provision for an appeal against the order of the competent authority refusing to approve the action proposed by the management, the management is placed in a gravely disadvantageous position vis-a-vis 940 the teacher who is given the right of appeal by section 4.
By reason of these infirmities I agree with the conclusion of my learned Brothers that section 4 of the impugned Act is unconstitutional, as being violative of article 30 (1).
Section 5 is consequential upon section 4 and must fall with it.
Section 6 provides that where any retrenchment of a teacher is rendered necessary consequent on any order of the Government relating to education or course of instruction or to any other matter, such retrenchment may be effected with the prior approval of the competent authority. With respect, I find myself unable to share the view of Brother Fazal Ali that retrenchment of teachers is a purely domestic affair of minority institutions and that the decisions of the management in the matter of retrenchment of teachers is beyond the scope of statutory interference by reason of Art.
30 (1). Section 6 aims at affording a minimal guarantee of security of tenure to teachers by eschewing the passing of mala fide orders in the garb of retrenchment. As I look at the section, I consider it to be implicit in its provisions that the limited jurisdiction which it confers upon the competent authority is to examine whether, in cases where the retrenchment it stated to have become necessary by reason of an order passed by the Government, it has in fact so become necessary. It is a matter of common knowledge that Governmental orders relating to courses of instruction are used as a pretence for terminating the services of teachers.
The conferment of a guided and limited power on the competent authority for the purpose of finding out whether, in fact, a retrenchment has become necessary by reason of a Government order, cannot constitute an interference with the right of administration conferred by Art. 30 (1). Section 6 is therefore valid. I would, however, like to add that in the interests of equal justice, the legislature ought to provide for an appeal against the orders passed by the competent authority under section 6. If and when the provision for an appeal is made, care must be taken to ensure that the appeal lies to an officer not below the prescribed rank.
Section 7 provides that the pay and allowances of a teacher shall be paid on or before such day of a month, in such manner and by or through such authority, officer or person, as may be prescribed. I agree with my learned Brothers that this provision is regulatory in character and is, therefore, valid.
These are all the sections the validity of which was questioned in the Writ Petitions filed in the High Court. It is therefore not necessary to consider whether the other provisions of the Act are valid or not.
I concur in the final order proposed by Brother Kailasam that we need not go into the merits of each of the Writ Petitions filed in the High Court. Learned counsel appearing for the schools sought the decision of the High Court on the constitutional issue only. He specifically asked the High Court not to decide each case on its merits.
That may, accordingly, be left to the High Court to decide in the light of the majority opinion rendered by us. We have, by a majority, held that sections 3 (3) (a), 3 (3) (b), 6 and 7 are valid while sections 3 (1), 3 (2), 4 and 5 are invalid in their application to minority education institutions. It must follow that such institutions cannot be proceeded against for violation of provisions which are not applicable to them.
In conclusion, all the Civil Appeals before us will go back to the High Court of Andhra Pradesh for final disposal on merits in the light of our decision. There will be no order as to costs.
FAZAL ALI, J.: This batch of civil appeals by special leave is directed against the judgment of the Andhra Pradesh High Court before whom the appellants filed writ petitions under Article 226 of the Constitution challenging the constitutional validity of several sections of the Andhra Pradesh Recognised Private Educational Institutions Control Act, 1975, hereinafter referred to as the Act which contained 21 sections in five Chapters and was brought into force with effect from 5th October, 1974. This Act was also applicable to 19 Educational Institutions situated in the State of Andhra Pradesh and the appellants being admittedly minority educational institutions within the meaning of Article 30 of the Constitution of India have challenged the vires various sections of the Act which we shall indicate later.
Some of the appeals have been filed by Christian Schools established by Roman Catholic Church and some by Christian Colleges established by the Christian community:
The main grounds of challenge are that the provisions of the Act directly interfere with the internal management of the institutions and has completely curbed the constitutional freedom which has been guaranteed to them by Article 30(1) of the Constitution of India and being violative of Article 30(1) of the Constitution are ultra vires and therefore, wholly inapplicable to the appellants institutions.
It is now well settled by a long course of decisions of this Court that our Constitution which seeks to establish a secular State contains 942 sufficient checks and balances, safeguards and guarantees to protect the rights of the minorities, the establishment of educational institutions being one of them. Article 46 which contains the constitutional directive to promote educational and economic interests of the weaker sections runs thus:- "46. Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections:
The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.
Article 30(1) confers a fundamental rights on the minorities to establish and administer educational institutions of their choice. Article 30(2) enjoins on the State that in granting aid to the educational institutions it shall not discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language. Thus, it would appear that Article 30(2) extends the guarantee contained in Article 30(1) even in the matter of receiving aid by the educational institution established by the minority community. While adverting to this aspect of the matter this Court in Re: Kerala Education Bill, 1957 observed as follows:- "Nevertheless, in determining the scope and ambit of fundamental rights relied on by or on behalf of any person or body the court may not entirely ignore these directive principles of State policy laid down in Part IV of the Constitution but should adopt the principle of harmonious construction and should attempt to give effect to both as much as possible".
Another important factor which has to be noticed is that the terms in which Article 30 is couched are absolute and unconditional as compared to Article 19 which is hedged in by reasonable restrictions which may be imposed by the State in public interest. Thus, in a way the fundamental right contained in Article 30 is more effective and wider than the fundamental rights contained in Part III of the Constitution. This, however, does not mean that the State is completely deprived of even the right to regulate the working of the minority institutions and to make rules in order to improve the standards 943 of education imparted therein so as to achieve excellence and efficiency in the educational standards of these institutions. Regulatory measures cannot in any sense be regarded as placing restrictions or curbing the administrative autonomy of the institutions concerned. But care must be taken by the State to see that in passing regulatory measures it does not transcend its limits so as to interfere with the internal administration of the management of the institutions concerned so as to violate the spirit and policy of Article 30. The question of the scope and ambit of Article 30 of the Constitution of India was very exhaustively considered as far back as in 1959 in Re: Kerala Education Bill (Supra). This case arose when the President of India called for the opinion of the Supreme Court on a Reference being made to it under Article 143(1) of the Constitution of India. The Reference was heard by 7 Judges of this Court out of which 6 of them excepting Venkatarama Aiyar, J. gave a unanimous opinion regarding various clauses of the Bill. The provisions of the Kerala Education Bill are not pari materia with the provisions of the Act with which we are concerned in this case, but this Court while delivering its opinion has laid down a number of salutary principles which throw a flood of light on the scope and interpretation of Article 30 of the Constitution of India.
I would, therefore, like to extract certain important passages from the opinion of the Court which dealt with the scope and application of Article 30. I would, however, like to mention that some of the principles laid down by this Court in the aforesaid case may not apply to the present day conditions because there have been numerous changes in all aspects of life and even the concept of equality has undergone a revolutionary change. But the observations made by this Court would afford a very valuable guideline to determine the question in controversy in the present case.
While indicating the width of the right conferred on the minority institutions by Article 30(1) this Court pointed out that the right to administer does not envisage a right to indulge in mal-administration. In this connection, Das, C.J. speaking for the majority observed as follows:- "The right to administer cannot obviously include the right to maladminister. The minority cannot surely ask for aid or recognition for an educational institution run by them in unhealthy surroundings, without any competent teachers, possessing any semblance of qualification, and which does not maintain even a fair standard of teaching or which teaches matters subversive of the welfare of the scholars. It stands to reason, then, that the constitutional right to ad- 944 minister an educational institution 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".
Again, while sounding a note of caution to the Government that no step should be taken by it which amounts to the institution surrendering its personality merely because the institution is receiving aid from the State, said the Chief Justice thus:- "No educational institution can in actual practice be carried on without aid from the State and if they will not get it unless they surrender their rights they will, by compulsion of financial necessities, be compelled to give up their rights under Article 30(1)..................
The State Legislatures cannot, it is clear, disregard or override those provisions merely by employing indirect methods of achieving exactly the same result. Even the Legislature cannot do indirectly what it certainly cannot do directly".
Considering the provisions of the Kerala Education Bill particularly Clauses 6, 7, 9, 10, 11, 12, 14 and 15 the Court held that although these provisions constitute serious inroads on the right of administration of the institution and appear perilously near violating that right, yet in view of the peculiar facts of that case and having regard to the fact that clauses 9, 11 and 12 were designed to give protection and security to the ill paid teachers who are engaged in rendering service to the nation and protect the backward classes the Court as at present advised may treat these clauses as permissible regulations. These observations were based on the peculiar circumstances of the provisions of the Education Bill and the objects which they sought to sub-serve may not be applicable to the present case where the circumstances are quite different because admittedly most of the appellant institutions are not receiving any aid from the Government. Even so, this Court found it impossible to support clauses 14 and 15 which according to them were totally destructive of the rights guaranteed by Article 30(1).
In this connection, the Court observed as follows:- "But considering that those provisions are applicable to all educational institutions and that the impugned parts of clauses 9, 11 and 12 are designed to give protection and 945 security to the ill paid teachers who are engaged in rendering service to the nation and protect the backward classes, we are prepared, as at present advised, to treat those clauses 9, 11(2) and 12(4) as permissible regulations which the State may impose on the minorities as a condition for granting aid to their educational institutions. We, however, find it impossible to support cls. 14 and 15 of the said Bill as mere regulations. The provisions of those clauses may be totally destructive of the rights under Article 30(1)".
The Court had made it very clear that the observations extracted above applied to those categories of educational institutions which had sought not only recognition but also aid from the State. In the instant case. however, most of the appellant institutions have been established by mustering their own resources and have not been receiving substantial aid from the Government. Similarly, the Court made it clear that although the minority institutions had no fundamental right to recognition by the State yet to deny recognition on terms which may amount to complete surrender of the management of the institution to the Government would be violative of Article 30(1) of the Constitution. In this connection, Das, C.J. Observed as follows:- "There is, no doubt, no such thing as fundamental right to recognition by the State but to deny recognition to the educational institutions except upon terms tantamount to the surrender of their Constitutional right of administration of the educational institutions of their choice is in truth and in effect to deprive them of their rights under Article 30(1). We repeat that the legislative power is subject eto the fundamental rights and the legislature cannot indirectly take away or abridge the fundamental rights which it could not do directly and yet that will be the result if the said Bill containing any offending clause becomes law" Again dwelling on the special character of the minority institutions Das, C.J. speaking for the Court observed thus:
"It is obvious that a minority community can effectively conserve its language, script or culture by and through educational institutions and, therefore, the right to establish and maintain educational institutions of its choice is a necessary concomitant to the right to conserve its distinctive language, script or culture and that is what is conferred on all minorities by Article 30(1) which has hereinbefore been quoted in full." 946 Describing the nature of the fundamental rights enshrined in Article 30 the Court observed as follows:- "There can be no manner of doubt that our Constitution has guaranteed certain cherished rights of the minorities concerning their language, culture and religion. These concessions must have been made to them for good and valid reasons. Article 45, no doubt, requires the State to provide for free and compulsory education for all children, but there is nothing to prevent the State from discharging that solemn obligation through Government and aided schools and Article 45 does not require that obligation to be discharged at the expense of the minority communities.
So long as the Constitution stands as it is and is not altered, it is, we conceive, the duty of this Court to uphold the fundamental rights and thereby honour our sacred obligation to the minority communities who are of our own." Similarly, Venkatarama Aiyer, J. who gave a dissenting opinion agreed however with the scope of Article 30 as expounded by the majority opinion. In this connection, the learned
