Sindhi Education Society & ANR. Vs. Chief Secretary,Govt. of Nct of Delhi & Ors [2010] INSC 495 (8 July 2010)
2010 Latest Caselaw 481 SC

Sindhi Education Society & ANR. Vs. Chief Secretary, Govt. of NCT of Delhi & Ors [2010] INSC 495 (8 July 2010)

Judgment

CIVIL APPELLATE JURISDICTION CIVIL APPEAL No.5489 OF 2007 Sindhi Education Society & Anr. ...Appellants Versus The Chief Secretary, Govt. of NCT of Delhi & Ors. ...Respondents

Swatanter Kumar, J.

1. The Bench hearing the letters patent appeal in the High Court of Delhi at New Delhi, while setting aside the judgment/order passed by the learned Single Judge dated 14th September, 2005 in Writ Petition (C) No.2426 of 1992, issued a certificate of leave to appeal under Article 133 read with Article 134-A of the Constitution of India, 1950 (for short `the Constitution') in its judgment dated 30th November, 2006 and considered it appropriate to frame the following questions to be decided by this Court :- (a) Whether Rule 64(1)(b) of the Delhi School Education Rules 1973 and the orders/instructions issued thereunder would, if made applicable to an aided minority educational institution, violate the fundamental right guaranteed under Article 30(1) of the Constitution and are the respondents herein entitled to a declaration and consequential directions to that effect ? (b) Have the judgments of the learned Single Judge of the High Court in Sumanjit Kaur v. NCT of Delhi [2005 III AD (Delhi) 560], as affirmed by the decision dated 1.2.2006 of the Division Bench of the High Court in (LPA Nos.445-446/2005) Govt. of National Capital of Territory of Delhi v. Sumanjit Kaur been correctly decided ? 2

1. It is useful to notice at this juncture itself that the Division Bench doubted the correctness of judgment of another Division Bench of that Court in the case of Govt. of NCT of Delhi v. Sumanjit Kaur in LPA Nos. 445-446 of 2006 dated 1.2.2006. The Division Bench had affirmed the view taken by the Single Judge in Sumanjit Kaur (supra). The learned Single Judge had expressed the view that such circulars and regulations issued by the Directorate of Education, would be unconstitutional since they are likely to interfere with the choice of the medium of instruction as well as minority character of the institution by compelling the appointment to the teaching faculty of persons, who may be inimical towards that minority community. The Court further held that since the approval in the facts of the case would be deemed to have been granted, the Court was not expected to discuss or pass further orders in the writ petition. The Division Bench, which passed the impugned judgment expressed the view contra to the view taken by the learned Single Judge in the Case of Sumanjit Kaur (supra), as affirmed by the Division Bench. While noticing that the Government of NCT of Delhi had filed the Special Leave Petition (C) No. 16374 of 2006 in this Court in that case, the 3 Division Bench in the present case thought it fit to grant the certificate for leave to appeal to this Court.

1. This is how we have been called upon to examine the constitutionality and legality or otherwise of the above questions framed by the High Court of Delhi. We are also of the considered view that besides the above question, it will have to be examined that even if the relevant provisions of the Delhi School Education Act, 1973 (for short the `DSE Act') are not unconstitutional, would they still apply with their rigors to the linguistic minority schools receiving grant-in-aid from the Government. Before we enter upon the aspects relating to law on the above issues, reference to the basic facts would be necessary.

Facts :-

1. The appellant - Sindhi Education Society (hereinafter referred to as `the Society') is a Society established and duly registered under the provisions of the Societies Registration Act, 1860. The Society is running, inter alia, a school known as S.E.S. Baba Nebhraj Senior Secondary School at Lajpat Nagar, New Delhi.

1. According to the Society, Sindhi language is one of the languages included in VIII Schedule of the Constitution and the people speaking Sindhi language are scattered in various parts of the country. As Sindhi language is not spoken by the majority of people in Delhi, therefore, the Sindhi community in Delhi is and has been held to be a linguistic minority by virtue of Article 30(1) of the Constitution. The Society, therefore, has a constitutional right to establish and administer educational institutions of its choice. In furtherance of such an object, the school was established for preservation of Sindhi language and managing the affairs of the school as per its constitution and under the provisions of the relevant laws.

1. In the year 1973, the DSE Act came into force with a view to provide better organization and development of the school education in Union Territory of Delhi and for matters connected therewith and incidental thereto. Soon after coming into force of the provisions of the DSE Act, 1973, the Society felt that certain provisions of the DSE Act infringed the minority character of the Society, particularly, in matters related to administration and management of the school.

1. It appears that the society filed a writ petition in the High Court of Delhi being Writ Petition (C) No. 940 of 1975, titled Sindhi Education Society (Regd.) v. Director of Education and others, which came to be disposed of by a detailed judgment of the Delhi High Court dated 14th July, 1982. In that judgment, the Court specifically held that the Society was a linguistic minority and the provisions of the DSE Act as specified in the judgment would not be applicable to the Society. In order to put the matters with clarity, it will be useful to refer to the findings recorded by the Court which read as under :- "In the present case the Delhi School Education Act is applicable only to the Union territory of Delhi. It is with reference to this Territory that one has to consider as to whether Sindhi is a language spoken by the majority or minority of the people. On this there can be no doubt. Sindhi is not spoken by majority of the people in Delhi and, therefore, the Sindhi community in Delhi can legitimately be regarded as a linguistic minority. Just as a religious minority may be composed of persons whose mother-tongue may not be the same, similarly a linguistic minority may not necessarily be composed of people who belong to a religious minority of the State. As such, every person, who is a Sindhi, would be regarded as belonging to a linguistic minority irrespective of the fact as to 6 whether he is a Hindu, or a Muslim or a Christian to the effect that some of the provisions of the Act and the Rules would not apply to minority institutions, while some other provisions could be made applicable only with certain modifications or in accordance with the observations made by the Court. We may now summarise the decision of this Court with regard to those provisions of the Act and the Rules which it held as not being applicable, or being applicable as per the directions contained therein, because the learned counsel for the petitioner states that a similar direction should be issued in this case also.

xxx xxx xxx xxx xxx The aforesaid provisions are not to apply to the school but the Director of Education, Delhi should be kept informed of any order of dismissal, removal, reduction in rank or termination of service of an employee by the management. If the Administration receives information that the disciplinary powers are being abused by the school then the Administration will have a right to suspend, reduce or stop the grant-in-aid to the School after giving a hearing to the school.

Section 27A and B :- The said provisions are not to apply to the minority school.

The writ petition is accordingly allowed in the aforesaid terms and, like in Jain Sabha's case (supra), it is directed that the aforesaid provisions of the Delhi School Education Act, 1973 and the Rules framed there under will 7 not apply to the petitioner or would apply only in the manner in which they have been interpreted by this Court. The petitioner will be entitled to costs. Counsel's fee Rs.550/-."

1. The aforesaid judgment appears to have attained finality and, in fact, was not impugned before this Court. The Division Bench, while deciding the above case, clearly held that certain Rules would not be applicable and it specifically noticed the provisions relating to the constitution of the Managing Committee under Rule 59, Rule 64, different Clauses under Rule 96(3), Rule 98, Rule 105 and Rule 120 of Delhi School Education Rules, 1973 (for short `DSE Rules') in that behalf. The Court held that Rule 64 of the DSE Rules is to be construed in respect of minority schools to require compliance only if those provisions of the Act and the Rules and instructions there under are in consonance with the provisions of the Constitution, particularly, with Article 30(1) of the Constitution.

1. Rule 64, primarily, deals with the conditions of providing grant-in- aid and further states that no aid is to be granted unless suitable undertaking is given by the Managing Committee. Rule 64 came to be amended by Notification Nos. 1340-2340 dated 23rd 8 February, 1990. This Rule prescribe certain limitation which the Competent Authority can impose in exercise of its powers. Even before amendment of this Rule, on 12th March, 1985, instructions were issued by the Deputy Director of Education, addressed to the appellant stating, inter alia, that in accordance with provision of Rule 64 of the DSE Rules, the Managing Committee of the Society was required to furnish an undertaking that they would make reservation in the appointments of teachers for the Scheduled Castes and Scheduled Tribes. The reference was also made to the instructions issued by the Department of Personnel, Government of India, wherein reservation for Scheduled Castes and Scheduled Tribes in the Institutions/Organisations was ordered. The relevant part of the said letter reads as under :- "4. Since the schools are required to apply for grants-in-aid every years on the prescribed proforma as provided under the Act, they are also required to given undertaking to make reservation in the services and posts for scheduled castes and scheduled tribes accordingly. A specimen of the declaration is sent herewith the request that the same be sent to this office duly filled in and signed with stamp of the Authority signing.

5. It may be noted that the future grants-in-aid shall be released on giving the aforesaid undertaking on the enclosed proforma."

The appellant Society responded to that letter vide reply dated 15th April, 1985, inviting attention of the authorities to the judgment of the High Court dated 14.7.1982, in Writ Petition No. 940 of 1975, deciding, inter alia, that the school in question, has been held to be a minority institution and that Rule 64 of the DSE Rules is to be accordingly construed in respect of minority school(s) that they require compliance, only, if the same is in consonance with the provisions of Article 30(1) of the Constitution.

1. The Secretary (Education), Govt. of NCT of Delhi, Respondent No.3, thereafter vide his communication dated 21st March, 1986, informed the appellant that the undertaking, which was required to be given by all the Government aided schools in the matter of compliance with the provisions relating to reservation for Scheduled Castes and Scheduled Tribes in the institutions, is not applicable to the minority institutions. Thus, they were not required to adhere to the same. It will be useful to refer to the 10 communication of the Government at this stage itself, which reads as follow :- "In connection with circular letter issued vide even number dated 12.3.85, this is hereby clarified that an undertaking in writing which was required to be given by all the Govt.

Aided Schools in the matter of compliance with the provisions relating to reservation for SC/ST in the institutions is not applicable to the minority institutions. As such the managements of the institutions are at the discretion to adhere or not to adhere to the instructions issued by the Govt. of India regarding reservation of SC/ST."

1. The aforesaid letter was issued after the judgment of the Court had been pronounced, however, according to the appellant, in violation of all the principles and the law laid down by that Court, they still received another communication from the authorities in September, 1989, addressed to all the schools that appointment of the Scheduled Castes and Scheduled Tribes candidates is a precondition for all the agencies receiving grant-in-aid from the Government and while referring to Rule 64 of the DSE Rules and its amendment, they were required by the authorities to comply with this condition. The correctness of this action of the respondent was questioned by appellants by filing a writ petition in 11 the High Court, which came to be registered as Writ Petition (C) No.2426 of 1992 titled as Sindhi Education Society v. Union of India and Others. This writ petition was allowed by the learned Single Judge vide his Order dated 14.9.2005. The learned Single Judge felt that the case was entirely covered by the judgment of that Court in the case of Sumanjit Kaur (supra). That was the primary and only reason, stated by the learned Single Judge, for allowing the writ petition.

2. Aggrieved from the judgment of the learned Single Judge, the NCT of Delhi filed a letter patent appeal being L.P.A. Nos. 33 to 36 of 2006 and 40-43 of 2006, and the same was not only accepted but the Division Bench had felt it proper to grant certificate of leave to appeal to this Court, vide judgment dated 30.11.2006. While setting aside the judgment of the learned Single Judge and also expressing a dissent to the Division Bench Judgment in the case of Sumanjit Kaur (supra), the Division Bench, primarily, recorded the reasons as [a] that Rule 64(1)(b) does not infringe any right of the minority institution, [b] Clause 11 of the Kerala Education Bill, 1957, which was the subject matter of consideration before the Supreme Court in the case of In Re. 12 Kerala Education Bill, 1957, [(1959) SCR 995], was pari materia to Rule 64(1)(b) of DSE Rules, and as such was in conformity with law and lastly, implementation of roster of reservation was in consonance with the stated principle and the fundamental rights are not infringed. For these reasons, the High Court passed the order afore-noticed, resulting in filing of the present appeal.

1. We have already noticed the questions of law of general public importance, which had been framed by the High Court at the time of issuance of certificate. The appellants herein succeeded before the learned Single Judge, which order in turn, was set aside by the Division Bench of the High Court. The appellants in writ petition had raised a specific challenge to the provisions of Rule 64(1)(b) of the DSE Rules which had been accepted by the learned Single Judge as the matter was stated to be covered by the judgment of that Court in Sumanjit Kaur's case (supra). The respondents vide their letter dated 12th March, 1985, and, thereafter, while referring to the Department of Personnel and Administration, letter dated 7th October, 1974, pressed upon the Managing Committee of the institutions, which were Government aided including minority institutions, to furnish an undertaking that 13 they would abide by the rule promoting reservation while making appointment of teachers in the school. Thus, the question that clearly arise for consideration before this Court is whether the provisions of Rule 64(1)(b) of the DSE Rules is ultra-vires or violative of Article 30(1) of the Constitution. In the alternative, whether the said Rule, as framed, can be enforced against the Government aided institutions belonging to linguistic minorities.

In order to examine this aspect in some elaboration, we would have to dissect it into two different sections. Firstly, the law in relation to such minorities, as has been settled by catena of judgments of this Court, and their correct application to the present case, secondly, analysis of the scheme of the DSE Act and the Rules framed there under, in relation to minority institutions. Depending upon the answer to these two aspects, lastly, whether the Rule is enforceable against the minority institutions to the extent that the authorities can deny grant-in-aid for non-compliance.

Scheme under the Delhi School Education Act, 1973 and the Rules framed thereunder in relation to the Minority Institutions :- 14

1. As already noticed, there is no dispute to the fact that appellant is a minority institution and the Society is one which enjoys the status of a linguistic minority and thus is entitled to all the constitutional benefit and protection under Articles 29 and 30 of the Constitution. Firstly, one has to examine what is a minority.

`Minority', would include both religious and linguistic minorities.

Section 2(o) of the DSE Act defines `minority school' as follows:- "minority school" means a school established and administered by a minority having the right to do so under clause (1) of Article 30 of the Constitution Once an institution satisfies the above ingredients, it has to be given the status of a minority institution. The High Court in its judgment in Sindhi Education Society (Writ Petition No.940 of 1975) (supra) had clearly declared that the appellant is a linguistic minority and that judgment has attained finality.

1. There is hardly any dispute in regard to status of this Society.

Prior to coming into force of DSE Rules, the Society was obviously free to carry on its activity of running the educational institution, free from any restriction and in accordance with law. DSE Act 15 was enacted to provide better organization and development of school education in Union Territory of Delhi and for matters connected therewith or incidental thereto. The very object of this Act was, therefore, to improve the organization and school education in Delhi. The primary object, thus, was to aid and develop the education system at the school level. In order to achieve this purpose, power is vested in the Administrator to regulate education in all schools in Delhi in accordance with the provisions of the DSE Act and Rules made there under. Section 3(3) of the DSE Act makes it abundantly clear that on and from the commencement of DSE Act, and subject to the provisions of Clause 1 of Article 30 of the Constitution, the establishment of a new school or opening of a higher class or even closing of existing classes shall have to be in accordance with the provisions of the DSE Act, but for such compliance, the recognition shall be denied to such institution by the appropriate authority. The school is required to have a scheme of management in terms of Section 5 of the DSE Act, but such scheme insofar as it relates to the previous approval of the appropriate authority, will not be applicable to the scheme for an unaided school.

1. Powers of wide dimensions and authority are vested in the Administrator under Section 20 of the DSE Act, which forms part of Chapter VII relating to taking over of the management of the schools under the provisions of the Act. Whenever the Administrator is satisfied that the managing committee or the manager of the school has failed or neglected to perform their duties and carry on the management of the school in accordance with the provisions of the Act, the Administrator can take over the management of the school whether such school is recognized or not. But, such action can be taken only in accordance with the prescribed procedure. However, where the Administrator feels that it is expedient to take over the management of the school, it could pass orders from time to time, outer limit being 3 years which again could be extended for further period, if the Administrator is of that opinion for valid reasons but, in any case, it cannot exceed the period of 5 years in its entirety. These powers of the Administrator indicate the legislative intent to ensure that the object of the DSE Act is not defeated and every recognized or unrecognized institution, without classification on the basis of receiving Government aid, should function and be managed in 17 accordance with the provisions of the DSE Act and the Rules framed thereunder. It is of great significance to notice here that the legislature in its wisdom by a specific provision under Section 21 of the DSE Act has kept minority schools outside the ambit and scope of Section 20. In other words, the power of control and management vested in the authority even on the basis of alleged breach of conditions would not enable the authorities to take over the management of any minority school. Section 21, thus, is an absolute exception to the applicability of Section 20 of the DSE Act. Section 28 of the DSE Act empowers the Administrator to frame Rules with the previous approval of the Central Government. The Administrator has been empowered under Section 28(2), in particular and without prejudice to the generality of the stated powers, to frame Rules in relation to the matters specified in that sub-section.

1. It will not be necessary for us to notice in detail the purposes for which Rules can be framed but reference to few of them would be useful. Under Section 28(2)(b), Rules can be framed in regard to the condition which every existing school shall be required to comply. While, Section 28(2)(g) contemplate framing of minimum 18 qualifications for, and method of recruitment, and the terms and conditions of service of employees, Section 28(2)(k) empowers the Administrator to frame Rules in regard to the conditions under which aid may be granted to recognized schools and on violation of which, aid may be stopped, reduced or suspended and Section 28(2)(q) relates to faming of Rules for admission to a recognized school and lastly under Section 28(2)(u), Rules can be framed in regard to financial and other returns to be filed by the managing committee of recognized private school. It has to be noticed that all these Rules can be framed and have only one purpose `make rules to carry out the provisions of the Act''. In other words, the framing of Rules does not empower the Administrator to go beyond the purpose of object of the Act and all these Rules so framed should be intended only to further the cause of the Act and bring nothing into existence, which is specifically or by necessary implication impermissible under the provisions of the DSE Act.

1. At this point reference to some of the DSE Rules can be of some assistance. Under Chapter-II - Regulation of Education - The freedom of minority institutions to establish educational institutions for advancement of their own language and culture is a protected 19 freedom. Rule 10 of the DSE Rules recognizes such mandate. It is provided there that any linguistic minority which intends to set up school with the object of imparting education in the mother- tongue of such linguistic minority, shall be entitled to do so and shall be entitled to receive grant-in-aid, if other conditions for that purpose are satisfied. However, second proviso to this rule states that linguistic minority can decide to impart education at the school in a language other than the language of such linguistic minority.

In that event, it shall not be obligatory upon the Administrator to give grant-in-aid to such schools. In other words, this rule recognizes two aspects - firstly, the extent of freedom available to the linguistic minority for educational purposes and secondly, an obligation on the part of the Administrator to give grant-in-aid unless the linguistic minority was covered by the second proviso.

The indication that such institution would normally be entitled to receive grant-in-aid, if they satisfy the conditions, is clear in terms of Rule 10.

1. Chapter-III deals with Opening of New Schools or Classes or Closure of Existing Schools or Classes. Rule 44 provides that every individual, association of individuals, society or trust which 20 desires to establish a new school, not being a minority school, is required to give intimation in writing to the Administrator of their intention to establish such school. The details of the intention/intimation required have been stated in Rule 44(2).

Amongst others, it requires details to be submitted in respect of managing committee of the proposed new school and the proposed procedure until its recognition under the DSE Act for selection of the Head of the School and the teachers as well as the non-teaching staff etc. It is noteworthy that this rule is applicable to the institutions not being a minority school. The minority institution, therefore, has specifically been kept out of the application of this rule, the purpose being that the administration and management of a minority school will remain outside the rigors of compliance of Rule 44.

1. Chapter-IV of the DSE Rules deals with Recognition of Schools.

Rule 50 states the condition which an institution is required to satisfy before it can be granted recognition. Rule 56 empowers the competent authority to suspend or withdraw the recognition granted.

1. Chapter-V deals with the Scheme of Management of the recognized schools. Rule 59 is one other provision which, primarily, indicates the limitations of the schools in regard to furnishing of scheme of the management of the recognized schools. All the recognized schools are expected to submit to the authority the scheme of management and comply with the requirements of formation of managing committee of the school and total number of the members in terms of that rule. The managing committee would include two members to be nominated by the Director, and other members to be nominated or elected, as the case may be, in accordance with the rules and regulations of the society in terms of Section 590(1)(iv), (v) and (vi) respectively. The members, who are nominated by the Director and the persons nominated by the Advisory Board, in the case of schools other than the minority schools, have an effective role to play in decisions of management as well as they have right of voting. However, in regard to minority school the framers of the rule have added five provisos to Rule 59(1). They specifically provided that in a minority school, the members, instead of being elected, would be the one nominated by the society or the trust by 22 which such unaided minority school is run. The educationist, to be nominated by the Director, shall be a non-official belonging to the minority by which the school is established and run, and the managing committee shall co-opt two senior-most teachers out of a panel of ten senior-most teachers of the school by rotation and in case the school works in two shifts, then one senior-most teacher shall be co-opted from a panel of five senior most teachers in each shift by rotation. Sub-rule (iv) of Rule 59 which gives powers to the Advisory Board to nominate two persons will not apply in the case of the minority school. Furthermore, the members nominated by the Director, Education in exercise of its powers under Sub-rule (v) of Rule 59 shall not be entitled to take part in the management of the minority school and shall function as advisers and observers to put forward the views of the Government in the meeting. This reflects the kind of control, the framers of the rule desired, that the authorities should exercise over the aided minority schools in comparison to the Government aided non-minority schools. There is clear line of distinction which gets more and more prominent with further reference to the 23 various provisions of the DSE Act and the Rules framed thereunder.

1. Chapter-VI is the basic chapter, with which, we may be concerned in the present case, as it deals with grant-in-aid. Under Rule 60, every aided school, which was receiving aid, will continue to receive such aid, so long as it fulfills the conditions of receiving the aid, in terms of Rule 64. Rule 64 deals with the condition that an undertaking in writing has to be filed by the institution to receive the grant-in-aid allowed by the competent authority under the provisions of the DSE Act. The Rule reads as under :

"(1) No school shall be granted aid unless its managing committee gives an undertaking in writing that:

(a) it shall comply with the provisions of the Act and these rules;

(a) it shall fill in the posts in the school with the Scheduled Castes and the Scheduled Tribes candidates in accordance with the instructions issued by the Central Government from time to time and also maintain the roster and other connected returns in this behalf;"

Rule 65 details the conditions which a school, applying for grant-in-aid, should satisfy. The grant-in-aid is required to be given 24 only for the qualified staff as Rule 66 imposes no obligation upon the State to release grant-in-aid in relation to unqualified staff. The management of the school must employ adequate number of qualified teachers and other staff which is approved by the Director under the norms prescribed for such post or which may be prescribed from time to time.

1. Rule 96 under Chapter VIII relates to the Recruitment and Terms and Conditions of Service of the Employees of the Private Schools other than the Unaided Minority Schools. This chapter itself will not apply to unaided minority schools but would apply to other schools. The chapter deals with how a selection committee will be constituted and how the employees including the teachers would be appointed to the schools. DSE Rules 96(1) to 96(3) deals in some detail with reference to appointment, constitution of the selection committee, methodology of selection and appointment to the post of teacher as well as Group-D employees. Significantly, DSE Rules 96(3A) and 96(3B) are exceptions to the earlier part of the DSE Rules. The said DSE Rule 96(3A) refers to various nominations which makes it clear that in the case of aided minority schools, such nominated persons, under different clauses stated 25 therein, shall act only as advisers and will not have the power to vote or actually control the selection of an employee. Rule 96(3B) states that notwithstanding anything contained in sub-rule (3), the Selection Committee of a minority school shall not be limited by the number specified in the said sub-rule and its managing committee may fix such number. Obviously, all these provisions have been framed with the emphasis on the fact that authorities like the Administrator, Director and other officers do not have a direct, and in some cases, even indirect participation in the management and administration of the minority school which includes the selection and appointment of teachers. It attains a greater significance, once these provisions along with restrictions stated in the DSE Act are read in conjunction with Articles 29 and 30 of the Constitution.

1. Chapter-XI of the DSE Rules deal with Unaided Minority School.

It requires that recruitment of employees of each recognized unaided minority school shall be made on the recommendation of a Selection Committee to be constituted by the managing committee of that school. Rule 128(1) requires the minimum qualifications for appointment as a teacher of an unaided minority 26 school shall not be less than those as are prescribed by the Affiliating Board. In the event, no minimum qualifications have been specified by the Affiliating Board, in respect of the post of any teacher, the minimum qualifications for recruitment to the such post be made by the Administrator after considering such recommendations or suggestions as may be made by the unaided school in this behalf. In terms of Rule 129, the appropriate Authority has been empowered to relax the minimum qualification for such period as it may deem fit and proper.

Chapter XII deals with `Admissions to Recognized Schools'.

1. Thus, the scheme of the DSE Act, in particular, is to give greater freedom to the aided minority institutions and not to impinge upon their minority status as granted under Article 30(1) of the Constitution. We shall shortly discuss the constitutional mandate and effect thereof with reference to the facts of the present case.

On the analysis of the above, it is clear that Section 21 of the DSE Act has to be given its true meaning and permitted to operate in the larger field. The stringent power vested in the appropriate Authority in terms of the Section 20 cannot be enforced against a 27 minority institution. It is the consequence flowing from the violations committed by management of a school that empowers the authorities to take over the management of the school within the scope of Section 21 of the DSE Act. Minority Institutions being an exception to these rules have been given a distinct and definite status under the Act and the Rules framed thereunder.

Discussion on law particularly with reference to the judgments relied upon by the respective parties.

1. Mr. P.P. Malhotra, the learned Additional Solicitor General of India, with great emphasis, argued that by providing and enforcing the intent of Rule 64(1)(b) of the DSE Rules, the Government is not causing any discrimination. The said DSE Rule relating to reservation is uniformly applied to all schools. It was fairly stated that there is no dispute to the fact that the appellant institution is a linguistic minority institution. It is also contended that the controversy in the present case is covered by Kerala Education Bill, 1957, case (supra) and the appeal deserves to be dismissed.

1. The direction issued by the Directorate of Education for furnishing of such an undertaking is contemplated under Rule 64(1)(b) and 28 its implementation is in consonance with the principle of equality before law and also within the ambit of Article 15 of the Constitution. The right is vested in the Government to make reservation, as such the grant-in-aid is to be used for a social object, namely, upliftment of reserved category, even by providing employment in minority institutions, like the appellant. This shall be the true spirit of the preamble of the Constitution, which requires attainment of the goal, to secure to all citizens, justice, social, economic and political. These expressions are of wide magnitude and the authorities are well within their competence to require minority institutions as well to comply with the rule of reservation and file undertakings as contemplated under Rule 64(1)(b) of the DSE Rules. The reliance has primarily been placed upon the judgment of this Court in the case of Kerala Education Bill, 1957 (supra); T.M.A. Pai Foundation v. State of Karnataka [(2002) 8 SCC 481]; Kanya Junior High School, Bal Vidya Mandir v. U.P. Basic Shiksha Parishad [(2006) 11 SCC 92], Secy. Malankara Syrian Catholic College v. T. Jose [(2007) 1 SCC 386] and Brahmo Samaj Education Society v. State of W.B.

[(2004) 6 SCC 224].

1. On the contra, the submission made by Mr. K.L. Janjani, the learned counsel appearing on behalf of the appellant is that merely because the State is providing grant-in-aid to a minority institution, it will not clothe the authority with the power to interfere in the administration and management of a minority institution.

Right to appoint a teacher is a part of the management and, thus, is free from any restriction. In terms of Article 30 of the Constitution, the right of minority to establish and administer educational institutions of their own choice, is incapable of being interfered with by the authorities and the language of Rule 64(1)(b), as well as the directives issued by the respondents violates the constitutional protection available to the appellants in accordance with law. It is the contention of the appellant that the law enunciated in Kerala Education Bill case,1957 (supra) has been watered down suitably by this Court in T.M.A. Pai's case (supra) and also that the provisions of DSE Act are not pari materia, much less, identical to that of Kerala Education Bill, 1957 case (supra). There are specific provisions in the DSE Act and the Rules exempting linguistic minority institutions and, as such, the State cannot derive any benefit from the said judgment. The 30 purpose of allowing grant-in-aid is to create equality and parity with other institutions. But this does not mean that the authorities under the pretext of granting to the minority institutions additional protections impose conditions which would frustrate the very purpose and object of minority institution and for non-compliance thereof, deny the grant-in-aid. On the simple interpretation of Articles 15, 29 and 30 of the Constitution, it is crystal clear that the linguistic minority institution has the right to make appointments, free of restriction or reservation, as that alone will be in the interest of the linguistic minority. The learned counsel for the appellants relied upon the dictum of order in T.M.A. Pai's case (supra), in addition to the Ahmedabad St. Xaviers College Society v. State of Gujarat [AIR 1974 SC 1389]; Father Thomas Shingare v. State of Maharashtra [(2002) 1 SCC 758]; T. Devadasan v. Union of India [AIR 1964 SC 179], Brahmo Samaj Education Society (supra) and Lt. Governor of Delhi v. V.K. Sodhi & Ors. [AIR 2007 SC 2885] in support of his contentions.

1. In the light of the submissions made before us, it will be pertinent for us to examine how the law has travelled for all these years in relation to the right of minority to run their institutions and the 31 extent to which they can be subjected to control by the appropriate authorities, in accordance with law. The seven-Judge Bench of this Court in the case of Kerala Education Bill, 1957 (supra) was concerned with constitutionality or otherwise of certain clauses of the Kerala Education Bill, 1957. While, discussing the scope of rights available to the minority institutions in relation to running of educational courses, the Court dealt with different aspects of the matter and discussed the constitutional provisions construed in light of the Kerala Education Bill. The Bill had provided different clauses which the institution was required to satisfy to receive the grant-in-aid. In para 29 of the judgment, the Court noticed various clauses of the Kerala Education Bill, the validity of which was challenged before this Court. The argument advanced before the Court, inter alia, was also with reference to the Anglo Indian Education Institutions, that they were entitled to receive the grant under Article 337 of the Constitution and the provisions of the said Bill, which legitimately come within the provisions which infringe their right not only under Article 337 of the Constitution, but also violate Article 30(1) of the Constitution. In that case they are prevented from effectively exercising its rights. A Bench 32 noticed the grievances of the minorities in para 29 of the judgment and discussed the same in para 31 before arriving at the final conclusion.

1. The Court in that case was dealing with the Presidential Reference, in terms of Article 143 of the Constitution. While referring to the questions framed for the opinion of the Court, the Court noticed that the width of power of control thus sought to be assumed by the State evidently appeared to the President to be calculated to raise doubts as to the constitutional validity of some of the clauses of the said Bill on the ground of prohibited infringement of some of the fundamental rights granted to the minority communities by the Constitution. The Bench in Para 10 noticed the questions which are as under :- (1) "Does sub-clause 5 of clause 3 of the Kerala Education Bill read with clause 36 thereof or any of the provisions of the said sub-clause 36 thereof or any of the provisions of the said sub-clause, offend article 14 of the Constitution in any particulars or to any extent? (1) Do sub-clause (5) of clause (3), sub-clause (3) of clause 8 and clause 9 to 13 of the Kerala Education Bill or any provisions 33 thereof, offend clause 91) of article 30 of the Constitution in any particulars or to any extent? (1) Does clause 15 of the Kerala Education Bill or any provisions thereof, offend article 14 of the Constitution in any particulars or to any extent? (1) Does clause 33 of the Kerala Education Bill, or any provisions thereof, offend article 226 of the Constitution in any particulars or to any extent?"

The answers to question Nos. 1 and 3 :

"That result, therefore, is that the charge of invalidity of the several clauses of the Bill which fall within the ambit of questions 1 and 3 on the ground of the infraction of Article 14 must stand repelled and our answers to both the questions 1 and 3 must, therefore, be in the negative".

Answer to question No. 2 :- "Yes, so far as Anglo Indian education institutions entitled to grant under Article 337 are concerned. (ii) As regards other minorities not entitled to grant as of right under any express provision of he constitution but are in receipt of aid or desire such aid and also as regards Anglo Indian educational institutions in so far as they are receiving aid in excess of what are due to them under Article 337 clauses 8(3) and 9 to 13 do not offend Article 30(1) but clause 3(5) in so far as it makes such educational institutions subject to clauses 14 and 15 do not offend Article 30(1).

34 (iii) Clause 7 (except sub clauses (1) and (3) which applies only to aided schools), clause10 in so far as they apply to recognized schools to be established after the said Bill comes into force do not offend Article 30(1) but clause 3(5) in so far as it makes the new schools established after the commencement of the Bill subject to clause 20 does offend Article 30(1)."

In the said case, the Court held that right of the minorities to some extent was restricted in the sense that general control still could be exercised by the authorities concerned, but in accordance with law. That is how Clause 11 of the Bill, which has been very heavily relied upon by the respondents before us, completely put an embargo on the appointment of teachers of their choice and the teachers could only be appointed out of the panel selected by the Public Service Commission. This clause was held not to be in violation of the Constitution, but clauses 14 and 15, which related to taking over of the management of an aided school for the conditions stipulated therein, were held to be unconstitutional and bad. This was in view of the law stated under the Bill and its scheme that weighed with the Court to record findings afore-noticed.

1. Still another Seven Judge Bench of this Court, in the case of the Ahmedabad St. Xavier's College Society (supra) was, primarily, concerned with the scope of Articles 29 and 30 of the Constitution, relating to the rights of minorities to impart general education and applicability of the concept of affiliation to such institutions. Of course, the Court held that there was no fundamental right of a minority institution to get affiliation from a University. When a minority institution applies to a University to be affiliated, it expresses its choice to participate in the system of general education and courses of instructions prescribed by that University, and it agrees to follow the uniform courses of study.

Therefore, measures which will regulate the courses of study, the qualifications and appointment of teachers, the conditions of employment of teachers, the health, hygiene of students and the other facilities are germane to affiliation of minority institutions.

With regard to grant of an appropriate protection of such community in terms of Article 30 of the Constitution, the Court held as under :- "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 36 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 strengthen the integrity and unity of the country The sphere of general secular education is intended to develop the commonness of the 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 feel 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.

xxx xxx xxx xxx xxx

30. Educational institutions are temples of learning. The virtues of human intelligence are mastered and harmonized by education.

Where there is complete harmony between the teacher and the taught, where the teacher imparts and the student receives, where there is compete 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, 37 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 institutions to render the very best to the students. In the right of administration, checks and balances in the shape of regulatory measure 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 color of minority. A minority institution should shine in exemplary eclectism 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."

As is evident from the above noticed dictum of the Court the emphasis had been laid on the right of the minority institutions to administer institution. Appointment of teacher is an important part of administration of educational institution and administrative freedom of the minority in that regard.

1. Now we may refer to a judgment of this Court in the case of Managing Committee, Khalsa Middle School v. Mohinder Kaur [(1993) Supp. 4 SCC 26]. In this case, the Court was concerned 38 with the amendments made in the Rules and Regulations of the Society. The date of passing of the resolution or its registration, which would be the effective date while dealing with the termination of service of a teacher without obtaining the approval of the Director of Education, could not be annulled for violating the provisions of the DSE Act. While registering the Khalsa Education Society, which was running a school known as Khalsa Primary School, belonging to a minority, it lost its status of minority, which was restored in July, 1979. The action was initiated during the interregnum period when the Society was working as non-minority institution, the Court took the view that as a non-minority institution, it was required to comply with the conditions of the DSE Act and the Rules framed thereunder, but once the character of minority institution was restored, the provisions will not be attracted. In this regard, the Court held as under :- "10...........Here we are concerned with the amendment in the Rules and Regulations of the Society. In the absence of any requirement in the Societies Registration Act that the alteration in the Rules and Regulations must be registered with the Registrar, it cannot be held that registration 39 of the amendment is a condition precedent for such an alteration to come into effect. It is, therefore, not possible to accept the contention of Shri Mehta that the amendment which was made in the Rules and Regulations by resolution dated July 1, 1979 did not come into effect till March 13, 1980 when the amended Rules and Regulations were registered with the Registrar, Firms and Societies. The said amendment should be treated to have come into effect from the date on which the resolution making the said amendment was passed, i.e. July 1, 1979.

As a result of the said amendment in the Rules and Regulations of the Society, the alterations made in the Rules and Regulations in 1963 were reversed and the position as it stood prior to the amendment of 1963 was restored. Consequently, the school which was a minority institution till the amendment of the Rules and Regulations in 1963 and had ceased to be a minority institution as a result of the amendment in 1963 regained its status as a minority institution after July 1, 1979, when the rules and regulations were amended and the original position was restored. In view of the restoration of the minority character of the institution the provisions of the Education Act and the Education Rules ceased to be applicable to the institution after July 1, 1979. The impugned order of termination order of the services of the respondent was passed on December 31, 1979, i.e., after the school had become a minority institution. The said order cannot, therefore, be held to be invalid on the ground that it was passed in contravention of Section 8 of the Education Act. The order passed by the Delhi High Court quashing the said order as well as the disciplinary 40 proceedings cannot, therefore, be upheld.

The respondent was placed under suspension on August 11, 1972 and continued under suspension till April 9, 1973 on which date Education Act came into force. In other words she was under suspension at a time when the Education Act was not in force.

The order of suspension cannot be judged on the basis of the provisions of the Education Act and the Education Rules. We are, therefore, unable to uphold the direction of the High Court quashing her order of suspension."

The aforesaid judgment states principle of law of far reaching consequences, i.e. an institution which is run by a minority linguistic or religious would not be controlled exclusively by the provisions of the DSE Act and the Rules framed thereunder, as the grant of approval would tantamount to interfere in the internal management of a minority institution.

1. Now, we may refer to the case of T.M.A. Pai (supra) which has been strongly relied upon by learned counsel appearing from both the sides before us. In this judgment, the Court had practically discussed the entire case law on the subject and particularly, the case of Kerala Education Bill, 1957 (supra) as well as Ahmedabad St. Xavier's case (supra). It may be noticed that the law stated by 41 the Seven-Judge Bench in Kerala Education Bill, 1957 case (supra), to some extent, has been diluted. Various aspects of this case, we shall shortly proceed to discuss, but let us first examine what the Court has held and in what context. It is really not necessary for us to get into detailed factual matrix and all the principles that have been enunciated by the Eleven-Judge Bench.

It will be better for us to restrict ourselves to the discussion only in relation to the question of involvement in the present case. The learned Additional Solicitor General relied upon paras 72, 73, 107, 136, 138, 141, 144 and 450 of the judgment in support of his submissions.

1. On the contrary, the learned counsel for the appellants submitted that the paragraphs relied upon by the respondents are the minority view and not the part of the majority judgment. With this, he placed reliance upon paras 89, 116 and 123 of the judgment.

In order to avoid any ambiguity or confusion, we must clarify at the outset that till paragraph 161, it is the majority view of the T.M.A. Pai's case (supra) whereafter different Judge/Judges have expressed their views and given independent conclusions and answers to the questions framed. Thus, it will be expected from 42 us and we would only refer to the decision and finding of the majority view, which is binding on the Court.

1. The respondents have placed reliance upon the law stated by the Bench that any regulation framed in the national interest must necessarily apply to all educational institutions, whether run by majority or the minority. Such a limitation must be read into Article 30. The rule under Article 30(1) cannot be such as to override the national interest or to prevent the Government from framing regulations in that behalf. It is, of course, true that Government regulations cannot destroy the minority character of the institution or make a right to establish and administer a mere illusion, but the right under Article 30 is not so absolute as to be above the law. The appellant also seek to derive benefit from the view that the Courts have also held that the right to administer is not absolute and is subject to reasonable regulations for the benefit of the institutions as the vehicle of education consistent with the national interest. Such general laws of the land would be also applicable to the minority institutions as well. There is no reason why regulations or conditions concerning generally the welfare of the students and teachers should not be made 43 applicable in order to provide a proper academic atmosphere. As such, the provisions do not, in any way, interfere with the right of administration or management under Article 30(1). Any law, rule or regulation, that would put the educational institutions run by the minorities at a disadvantage, when compared to the institutions run by the others, will have to be struck down. At the same time, there may not be any reverse discrimination.

1. It was observed in St. Xavier's case (supra), at page 192 of the judgment that the whole object of conferring the right on minorities under Article 30 is to ensure that there will be equality between the majority and the minority. If the minorities do not have such special protection, they will be denied equality. The emphasis by the appellants is more on paragraphs 88 to 90 to say that Articles 29 and 30 are a group of articles relating to cultural and educational rights. Article 29(1) gives the right to any section of the citizens having a distinct language, script or culture of its own, to conserve the same. Article 29(2) refers to admission to a educational institution established by anyone, but which is maintained by the State or receives aid out of State funds. In other words, State-maintained or aided educational institutions, whether 44 established by the Government or the majority or a minority community cannot deny admission to a citizen on the ground of religion, race, caste or language. Article 30(1) states the right of minorities to establish and administer educational institutions of their choice, as provided under that Article. The fundamental freedom is to establish and to administer educational institutions.

It is a right to establish and administer institutions to cater the educational needs of the minorities or sections thereof.

1. Before we really analyze the dictum of this Court in its various judgments and examine the scope of their application to the facts of the present case, it would be necessary for us to refer to certain specific paragraphs of the judgment, besides the above portions which have been relied upon by the learned counsel appearing for the respective parties. The basic questions which would arise for consideration with regard to the facts of the present case are the extent of the right to establish, administer and management of institution by the linguistic minorities, the extent of control or restrictions that can be imposed by the State and obviously the right of a minority institution to receive grant-in-aid. In the case of T.M.A. Pai (supra), the Court was primarily concerned with the 45 ambit and scope of grant of admission to the students in various academic courses in the minority institutions aided or unaided. In that case, the Court was basically not concerned with the methodology to be adopted by the minority institutions and the restrictions that can be imposed by the Government with regard to the recruitment of teachers like Rule 64(1)(b) of the DSE Rules.

So to understand, the impact of the dictum in T.M. Pai's case (s