Frank Anthony Public School Employees
Association Vs. Union of India & Ors [1986] INSC 236 (17 November 1986)
REDDY, O. CHINNAPPA (J) REDDY, O. CHINNAPPA
(J) OZA, G.L. (J)
CITATION: 1987 AIR 311 1987 SCR (1) 238 1986
SCC (4) 707 JT 1986 861 1986 SCALE (2)805
CITATOR INFO:
RF 1987 SC1210 (3,4,5,7,8,9,11,12,13) R 1988
SC 37 (16,18) RF 1988 SC 305 (15) D 1988 SC1291 (9) R 1988 SC2005 (12) R 1990
SC1147 (7) RF 1991 SC 101 (263) R 1991 SC2230 (4)
ACT:
Equal pay for equal work, principle as
envisaged in section 10 of the Delhi School Education Act made inapplicable to
an unaided minority school by section 12, thereof--Whether section 12 is hit by
Articles 14, 21 and 23 of the Constitution--Whether sections 8 to 11 impinge on
the right of the minorities to administer educational institutions of their
choice envisaged in Article 30 of the Constitution.
HEADNOTE:
Chapter IV of the Delhi School EdUcation Act,
comprising of sections 8 to 12 deal with "Terms and conditions of service
of employees of recognised private schools". Chapter V consisting of
sections 13 to 15 contains "the provisions applicable to unaided minority
schools". Section 10(1) specifically requires that, "the scales of
pay and allowances. medical facilities, pension, gratuity, provident fund and
other prescribed benefits of the employees of a recognised private school shall
not be less than those of the employees of the corresponding status in schools
run by the appropriate authority". But section 12 provides, "Nothing
contained in this Chapter shall apply to an unaided minority school."
Chapter V contains certain provisions relating to unaided minority schools.
The effect of section 12 of the Act is to
make sections 8,9,10 and 11 inapplicable to unaided minority schools:
First, the Administrator may not make rules
regulating the conditions of service of employees of unaided minority schools.
But so far as the minimum qualifications for recruitment of employees are
concerned, Section 13 enables the Administrator to make regulations even in
respect of unaided minority schools. Second, the prior approval of the Director
need not be obtained for the dismissal. removal. reduction in rank or
termination of service otherwise than by dismissal or removal of an employee of
an unaided minority school.
Third. against such dismissal. removal or
reduction in rank, there is to be no appeal. Fourth, neither prior nor subsequent
approval of the Director need be obtained to suspend any of the employees of an
unaided minority school Fifth, the scales of pay and allowances. medical
facilities, pension. gratuity. provident fund and other 239 benefits which may
be given to employees are subject to no regulation except that they should be
contained in a written contract of service and need not conform to the scales
of pay and allowances etc. of the employees of the corresponding status in
schools run by the appropriate authority as in the case of other recognised
private schools.
Frank Anthony Public School is a recognised
unaided minority school within the meaning of sections 2(x) read with 2(e),
2(o) and 2(t) of the Act. In the matter of emoluments and conditions of service
such as leave etc., teachers and employees of the Frank Anthony Public School
lag far behind the teachers and employees of Government schools.
Several other conditions of service of
teachers and employees also comare unfavourably with the conditions of service
of teachers and employees of Government Schools. But for section 12 and if
sections 8 to 11 were applicable to them, they would at least be as well off as
teachers and other employees of Government Schools. The Petitioner association,
therefore, has filed the writ petition under Article 32 of the Constitution,
seeking equalisation of their pay scales and conditions of service with those
of their counterparts in Government Schools and for a declaration that section
12 of the Act is void and constitutionally invalid as offending Articles 14, 21
and 23 of the Constitution.
Sometime after the filing of the writ
petition and before the preliminary hearing of the writ petitions, some
developments took place. On May 9, 1986 at 10.30 A.M. during the daily school
break between 10 A.M. and 10.40 A.M. the teaching staff other than one or two
teachers who are required to be on duty, took out a "silent march"
which was joined by the Class IV Staff also. Except those on duty, all the
others took part in the "silent march". Classes were resumed at 10.40
A.M. and were not affected in any manner.
There were' no speeches, no shouting of
slogans. no violence and no disruption of studies. But even so a notice was
issued by the principal on April 10, 1986 warning the members of the staff.
Despite the warning a similar silent march was taken out on April 10, 1986
also. The management issued orders of suspension against Mrs. Malik, Mrs. Dhar,
Mrs. Balman and Mr. Bush. The Petitioner Association challenged the said
suspension orders as well and sought stay of the operation of the orders of
suspension of the four teachers.
The respondents in response to the "Rule
Nisi" contended;
i
that
the classification made by section 12 was perfectly valid;
ii
that
but. for section 12, sections 8 to 11 would have to be held to interfere with
the right guaranteed by Article 30 of the Constitution to religious 240 and
linguistic minorities to administer educational institutions of their choice;
iii
the
petitioner school was an educational institution of great repute whose
excellence spoke for itself and therefore it did not necessitate any regulation
by any other authority; (iv) that the scale of fee should continue to be low so
that it may be within the reach of the ordinary people whom it was intended to
reach.
It was because of this desire of the
management to keep the scale of fee low that the management could not pay
higher salaries and allowances; and (v) that if section 12 was struck down and
the management was compelled to pay the same scale of salary and allowances as
was paid to employees of Government schools, the Frank Anthony Public School
would have to be closed down.
Allowing the writ petition, the Court,
HELD: 1. Section 12 of the Delhi School
Education Act which makes the provisions of Chapter IV inapplicable to minority
institutions is discriminatory and void not only because it makes section 10
inapplicable to minority institutions, but also because it makes sections 8(1),
8(3), 8(4), 8(5), 9 and 11 inapplicable to unaided minority institutions. That
the Parliament did not understand sections 8 to 11 as offending the fundamental
right guaranteed to the minorities under Article 30(1) is evident from the fact
that Chapter IV applies to aided minority institutions and it cannot for a
moment be suggested that surrender of the right under Article 30(1) is the
price which the aided minority institutions have to pay to obtain aid from the
Government.
[272G-273A]
2.1 From the decided cases, it is clear, that
there is a general and broad consensus about the content and dimension of the
Fundamental Right guaranteed by Article 30(1) of the Constitution. The right
guaranteed to religious and linguistic minorities by Article 30(1) is two fold,
to establish and to administer educational institutions of their choice. The
key to the Article lies in the words "of their own choice". These
words indicate that the extent of the right is to be determined, not with
reference to any concept of State necessity and general societal interest but
with reference to the educational institutions themselves, that is, with
reference to the goal of making the institutions "effective vehicles of
education for the minority community or other persons who resort to them".
It follows that regulatory measures which are designed towards the achievement
of the goal of making the minority educational institutions effective
instruments for imparting education cannot be considered to impinge upon the
right guaranteed by Article 30(1) of the Constitution. The question in each
case is whether the particular mea241 sure, it in the ultimate analysis,
designed to achieve such goal, without of course nullifying any part of the
right of management in substantial measure. [267C-E] In re Kerala Education
Bill, 1957 [1958] SCR 995; Rev.
Sidhajbhai School and Ors., v. State of
Bombay and Anr., [1963] 3 SCR 837; State of Kerala etc. v. Mother Provincial
etc., [1971] 1 SCR 734; The Ahmedabad St. Xaviors College Society & Anr.,
v. State of Gujarat and Anr., [1975] 1 SCR 173; All Saints High School etc., v.
The Government of Andhra Pradesh AIR 1960 SC 1042 discussed.
2.2 What was decided by the Supreme Court in
In re Kerala Educational Bill, 1957 was that Anglo-Indian Schools which were
entitled to receive grants under the Constitution and which received no more
aid than that to which they were entitled under the Constitution could not be
subjected to stringent terms as fresh or additional conditions precedent to
enable them to obtain the grant. Such conditions would infringe their rights
under Article 337 and violate their rights under Article 30(1). To place an
interpretation that any conditions imposed for granting recognition to unaided
minority educational institutions would infringe on the right of administration
granted to them by Article 30(1) of the Constitution would be subversive of the
right guaranteed by Article 30(1) since it would make the extent of the right
depend on the receipt or non-receipt of aid. If one thing is clear, it is this
that the Fundamental Right guaranteed by Article 30(1) cannot be surrendered,
wholly or partly, and the authorities cannot make the grant of aid conditional
on the surrender of a part of the Fundamental Right. [253D-E]
2.3 Sections 8(1), 8(3). 8(4) and 8(5) do not
encroach upon any right of minorities to administer their educational
institutions. Section 8(2), however does interfere with such right and,
therefore, inapplicable to minority institutions section 4 is again innocuous
since section 9 which applies to unaided minority schools is virtually on the
same lines as section 9. [272F-G]
2.4 Section 8(1) merely empowers the Administrator
to make rules regulating the minimum qualifications for recruitment, and the
conditions of service of recognised private schools. Section 8(1) is innocuous
and in fact section 13 which applies to unaided minority schools is almost on
the same lines as section 8(1). Section 8(2) which requires the prior approval
of the Director for the dismissal, removal, reduction in rank or other
termination of the services of an employee of 242 a recognised private school
is objectionable. Section 8(3) provides for an appeal to the Tribunal
constituted under s. 11, that is, a Tribunal consisting of a person who has
hold office as a District Judge or any equivalent judicial office. The appeal
is not to any departmental official but to a Tribunal manned by a person who
has held off`ice as a District Judge and who is required to exercise his powers
not arbitrarily but in the same manner as a court of appeal under the Code of
Civil Procedure. The right of appeal itself is confined to a limited class of
cases, namely, those of dismissal, removal or reduction in rank and not to
every dispute between an employee and the management. The limited right of
appeal, the character of the authority constituted to hear the appeal and the
manner in which the appellate power is required to be exercised make the provision
for an appeal perfectly reasonable. [270E-G, 271D-F]
2.5 Section 8(4) would be inapplicable to
minority institutions if it had conferred blanket power on the Director to
grant or withhold prior approval in every case where a management proposed to
suspend an employee but it is not so. The management has the right to order
immediate suspension of an employee in case of gross misconduct but in order to
prevent an abuse of power by the management a safeguard is provided to the
employee that approval should be obtained within 15 days. The Director is also
bound to accord his approval if there are adequate and reasonable grounds for
such suspension. The provisions is eminently reasonable and sound. [271H -272B]
The Ahmedabad St. Xaviers College Society & Anr. v. State of Gujarat and
Anr., (1975) 1 SCR 173; All Saints High School etc. v. The Government of Andhra
Pradesh AIR 1960 SC 1042 referred to.
2.6 The excellence of the instruction
provided by an institution would depend directly on the excellence of the
teaching staff, and in turn, that would depend on the quality and the
contentment of the teacher. Conditions of service pertaining to minimum
qualifications of teachers, their salaries, allowances and other conditions of
service which ensure security, contentment and decent living standards to
teachers and which will consequently enable them to render better service to
the institution and the pupils cannot surely be said to he violative of the
fundamental right guaranteed by Article 30(1) of the Constitution. The management
of a minority Educational institution cannot be permitted under the guise of
the fundamental right guaranteed by Article 30(1) of the Constitution, to
oppress or exploit its employees any more than any other private employee.
Oppression or exploitation of the teaching staff of an educational institution
is bound 243 to lead, inevitably, to discontent and deterioration of the
standard of instruction imparted in the institution affecting adversely the
object of making the institution an effective vehicle of education for the
minority community or other persons who resort to it. The management of
minority institution cannot complain of invasion of the fundamental right to
administer the institution when it denies the very object of Article 30(1)
which is to make the institution an effective vehicle of education. Therefore,
section 10 of the Delhi Education Act which requires that the scales of pay and
allowances, medical facilities, pension, gratuity, provident fund and other
prescribed benefits of the employees of a recognised private school shall not
be less than those of the employees of the corresponding status in schools run
by the appropriate authority and which further prescribes the procedure for
enforcement of the requirement is a permissible regulation aimed at attracting
competent staff and consequently at the excellence of the educational
institution. It is a permissible regulation which in no way detracts from the
fundamental right guaranteed by Article 30(1) to the minority institution to
administer their educational institutions. Therefore to the extent that section
12 makes section 10 inapplicable to unaided minority institutions, it is
clearly discriminatory. [269B-E, 270C-D] The Ahmedabad St. Xaviers College
Society & Anr., v. The State of Gujarat & Anr., [1975] 1 SCR 173; In re
Kerala Education Bill, 1957, [1958] SCR 995; The State of Kerala v.
Mother Provincial [1971] 1 SCR 734; All
Saints High School v. Government of Andhra Pradesh AIR 1960 SC 1042 relied on.
ORIGINAL JURISDICTION: Writ Petition
(Civil) No. 587 of 1986 Under Article 32 of the Constitution of India.
C.S. Vaidyanathan, M.K.S. Menon and S.R.
Bhatt for the Petitioner.
G. Ramaswamy, Additional Solicitor General,
Miss Sushma Relan and R.D. Agarwala for the Respondent.
Frank Anthony, Sushil Kumar and S.P. Mitra
for Respondent No. 3.
The Judgment of the Court was delivered by
244 CHINNAPPA REDDY, J. The scales of pay and other conditions of service of
teachers and other employees of the Frank Anthony Public School New Delhi
compare very unfavourably with those of their counterparts of the Delhi Administration
Schools. The scales of pay of teachers, primary, T.G.T. or middle, and senior
or P.G.T. of Government schools (that is, schools run by the Delhi
Administration), as of today, are 1200-30-1560-EB-40-2000,
1400-40-1600-50-2300-EB-60-2600 and 1640-60-2600-EB-75-2900 respectively.
Primary and middle school teachers are entitled to House Rent Allowance of
Rs.250. City Compensatory Allowance of Rs.75 and Medical Allowance of Rs.25
while, Senior school teachers are entitled to House Rent Allowance of Rs.450,
City Compensatory Allowance of Rs.100 and Medical Allowance of Rs.25. At the
starting point a primary school teacher gets a total sum of Rs.1540 per month
by way of salary and allowances, a middle school teacher gets a total sum of
Rs.1750 and a senior school teacher a total sum of Rs.2215. The scales of pay
of primary, middle and senior school teachers of the Frank Anthony Public
School are 27520-475-25-600-25-725,300-25-550-30-770-30-850 and
400-30-700-35-875-35-1050. They get allowances of Rs.702.50, 715 and 765
respectively. At the starting point the salary and allowances together come to
Rs.977.50, 1015 and 1165 respectively. In the case of teachers of Government
schools they are entitled to gratuity of 15 days' pay for every year of
service, Provident Fund at the rate of 8.33% and Leave Travel Concession once
every two years to their home town.
In the case of 'teachers of the Frank Anthony
Public School there is provision for Contributory Provident Fund and Family
Pension only. Teachers of Government schools are entitled to Casual Leave of 12
days, Earned Leave of 10 says, Sick Leave of 10 days and Maternity Leave of 90
days, whereas, teachers of the Frank Anthony Public School are entitled to
Casual Leave of 10 days, no Earned Leave, Sick Leave of 14 days and Maternity
Leave of 30 days. In the case of Class IV employees, in Government schools, the
scale of pay is 750-8-790-EB-10-940 with House Rent Allowance of Rs.150, City
Compensatory Allowance of Rs.30 and Medical Allowance of Rs.25. The scale of
pay of Class IV employees of the Frank Anthony Public School is
70-5-120-7.50-195 with allowances of Rs.473. The total starting salary and
allowances of Class IV employees in Government Schools and the Frank Anthony
Public School are Rs.955 and Rs.543 respectively. It is evident that in the
matter of emoluments and conditions of service such as leave etc. teachers and
employees of the Frank Anthony Public School lag far behind the teachers and
employees of Government schools. There are other conditions of service of
teachers and employees of the Frank Anthony Public School which also com245
pare unfavourably with the conditions of service of teachers and employees of
Government Schools. The Frank Anthony Public School employees Association seeks
equalisation of their pay scales and conditions of service with those of
teachers and employees of Government Schools. Sections 8 to 12 of the Delhi
School Education Act together comprise Chapter IV of that Act which deals with
"Terms and conditions of service of employees of recognised private
Schools." If Sections 8 to 11 were applicable to the teachers and other
employees of the Frank Anthony Public School, they would at least be as well
off as teachers and other employees of Government Schools. But section 12
provides, "Nothing contained in this Chapter shall apply to an unaided
minority school." The Frank Anthony Public School is an unaided minority
school. By the force of Section 12 of the Act, the provisions of Sections 8 to
11 do not apply to the Frank Anthony Public School. Therefore, the Frank
Anthony Public School Employees Association has sought from this Court a
declaration that section 12 of the Delhi School Education Act is
unconstitutional as being violative of Articles 14, 21 and 23 of the
Constitution. A similar declaration is sought in regard to Section 21 of the
Act also but is not pressed before us. A direction is also sought to the
respondents, the Union of India and the Delhi Administration to enforce all the
provisions of the Delhi School Education Act, other than Sections 12 and 21,
and "to fix the pay, allowances, benefits etc. to persons employed in the
schools governed by the Act in relation to unaided minority schools at par with
the persons employed in other schools." It appears that sometime after the
filing of the writ petition and before the preliminary heating of the writ
petition some developments took place to which it is necessary to refer here.
On May 9, 1986 at 10.30 a.m. the teaching staff other than those on duty took
out 'a silent march' which was joined by the Class IV staff also. The school
hours have a break between 10.00 a.m. and 10.40 a.m. During the break only one
or two teachers are on duty. Except those on duty, all the others took part in
the 'silent march'.
Classes were resumed at 10.40 a.m. and were
not affected in any manner. There were no speeches, no shouting of slogans, no
violence and no disruption of studies. But even so a notice was issued by the
principal on April 10, 1986 warning the members of the staff. Despite the
warning a similar 'silent march' was taken out on April 10, 1986 also. The
management issued orders of suspension against Mrs. Malik, Mrs. Dhar, Mrs.
Balman and Mr. Bush. While granting 'Rule Nisi' in the main writ petition, this
Court also granted stay of operation of the orders of suspension of the four
teachers. The inquiries against them were also stayed.
246 The attack of the petitioner against
Section 12 of the Delhi Education Act was based on Art. 14 while the provisions
were sought to be sustained by the respondents on the basis of Article 30 of
the Constitution. While it was argued by Mr. Vaidyanathan, learned counsel for
the petitioner that Section 12 was hit by Art. 14 and that Sections 8 to 11 did
not, in any manner, impinge upon Article 30 of the Constitution, it was argued,
on behalf of the respondents, by the learned Additional Solicitor-General and
by Shri Frank Anthony, that the classification made by Section 12 was perfectly
valid and that, but for Section 12, Sections 8 to 11 would have to be held to
interfere with the right guaranteed by Art. 30 to religious and linguistic
minorities to administer educational institutions of their choice and Sections
8 to 11 would consequently be inapplicable to such minority educational
institutions.
In order to appreciate the controversy
between the parties, it is necessary to refer to the scheme and the important
provisions of the Delhi School Education Act. The long title of the Act recites
that it is "An act to provide for better organisation and development of
school education in the Union Territory of Delhi and for matters connected
therewith or incidental thereto." Section 2(d) defines "Aided
School" as meaning "a recognised private school which is receiving
aid in the form of maintenance great from the Central Government, Administrator
or local authority or any other authority designated by the Central Government,
Administrator or a local authority." "Recognised School" is
defined by Section 2(t) to mean "a school recognised by the appropriate
authority.': Section 2(e) defines "appropriate authority" to mean:
"(i) in the case of a school recognised
or to be recognised by an authority designated or sponsored by the Central
Government, that authority;
(ii) in the case of a school recognised or to
be recognised by the Delhi Administration, the Administrator or any other
officer authorised by him in this behalf;
(iii) in the case of a school recognised or
to be recognised by the Municipal Corporation of Delhi, that Corporation;"
We may state here that in the case of the Frank Anthony Public School the
appropriate authority is the Delhi Administration. Section 2(h) defines
'employee' to mean "a teacher and includes every other em247 ployee
working in a recognised school". "Minority school" is defined by
section 2(o) to mean "a school established and administered by a minority
having the right to do so under clause (1) of Art. 30 of the
Constitution". Section 2(x) defines "unaided minority school" to
mean "a recognised minority school which does not receive any aid."
It is undisputed that the Frank Anthony Public School is an unaided minority
school. Chapter II of the Act deals with "establishment, recognition,
management of and aid to schools." Chapter III deals with school property.
Chapter IV consisting of sections 8 to 12, deals with "Terms and Conditions
of service of employees of recognised private schools". Chapter V,
consisting of Sections 13 to 15, contains "the provisions applicable to
unaided minority schools." We are concerned with Chapters IV and V.
Chapter VI deals with "admission to schools and fees", Chapter VII
deals with "Taking over the management of schools" and Chapter VIII
with miscellaneous provisions. Going back to Chapter IV, Sections 8(1) empowers
the Administrator to make rules regulating 'the minimum qualifications for
recruitment, and the conditions of service, of employees of recognised private
schools'. The first proviso to Section 8(1) stipulates that salary and rights
in respect of leave of absence, age of retirement and pension of an employee of
an existing school at the commencement of the Act may not thereafter be varied
to his disadvantage.
The proviso gives an indication that salary
and rights in respect of leave of absence, age of retirement and pension of an
employee are covered by the expression "the conditions of service".
We mention this because in the course of the argument it was suggested that
salary is not a condition of service. Sub-section(2) of Section 8 stipulates
that, subject to any rule that may be made, "no employee of a recognised
private school shall be dismissed, removed or reduced in rank nor shall his
service be otherwise terminated except with the prior approval of the
Director." Section 8(3) enables an employee of a recognised private school
who is dismissed, removed or reduced in rank to prefer an appeal to the
Tribunal constituted under Section 11 against the order of such dismissal,
removal or reduction in rank. What is of importance and requires to be noticed
is that the prior approval of the Director contemplated by Section 8(2) and the
appeal for which provision is made by Section 8(3) are confined to dismissal,
removal and reduction in rank and not to other cases of disciplinary action or
other administrative orders of the management. Section 8(2) also provides for
the prior approval of the Director in the case of termination of service
otherwise then dismissal or removal also.
Section 8(4) requires the managing committee
of a recognised private school to communicate to the Director and to obtain his
prior approval before suspending any of its employees.
However, the provision 248 enables the
managing committee to suspend an employee with immediate effect and without the
prior approval of the Director if it is satisfied that such immediate
suspension is necessary by reason of the gross misconduct of the employee,
within the meaning of the Code of Conduct. Such immediate suspension will cease
to have effect after fifteen days if approval of the Director is not obtained
in the mean while. Section 8(5) authorises the Director to accord his approval
to suspension of an employee if he is satisfied that there are adequate and
reasonable grounds for such suspension. Section 9 prescribes that every
employee of a recognised school shall be governed by the prescribed Code of
Conduct and that the employee shall be liable to the prescribed disciplinary
action for violation of any provision of Code of Conduct. Section 10(1)
requires that "the scales of pay and allowances, medical facilities,
pension, gratuity, provident fund and other prescribed benefits of the
employees of a recognised private school shall not be less than those of the
employees of the corresponding status in schools run by the appropriate
authority." The proviso to Section 10(1) requires the appropriate
authority to direct in writing the managing committee of any recognised private
school to bring the scales of pay and allowances etc. of all the employees of
such schools to the level of those of the employees of the corresponding status
in schools run by the appropriate authority. A further proviso to Section 10(1)
contemplates 'withdrawal of recognition if such direction is not complied with.
Section 10(2) requires the managing committee of every aided school to deposit
every month its share towards pay and allowances, medical facilities etc.
with the Administrator and requires the
Administrator disburse, or cause to be disbursed, the salaries and allowances
to the employees of aided schools. Section 11 provides for the constitution of
a Tribunal consisting of one person who shall have held the office of a
District Judge or any equivalent judicial office. Section 11(6) provides that
the Tribunal shall, for the purpose of disposal of an appeal, have the same
powers as are vested in a court of appeal by the Code of Civil Procedure. Then
comes Section 12 which says "Nothing contained in this Chapter shall apply
to an unaided minority school." It is because of this provision that
Sections 8, 9, 10 and 11 become inapplicable to unaided minority schools.
Chapter V consists of Section 13 to 15 and these are the provisions of the Act
which are applicable to unaided minority schools only. Section 13 enables the
Administrator to make rules regulating the minimum qualifications for and
method of, recruitment of employees of unaided minority schools. Section 14
prescribes that every employee of an unaided private school shall be governed
by such Code of Conduct as may be prescribed. Except in the matter of
disciplinary action the 249 Code of Conduct prescribed for employees of unaided
minority schools under Section 14 is virtually the same as the Code of Conduct
prescribed for all recognised schools under Section 9. Section 15(1) requires
the managing committee of every unaided minority school to enter into a written
contract of service with every employee of such school. Section 15(2) provides
that a copy of every contract of service shah be forwarded by the managing
committee to the Administrator who shah, on receipt of such copy register it.
Section 15(3) provides that every contract of service shah provide for
"(a) the terms and conditions of service of the employee, including the
scale of pay and other allowances to which he shah be entitled; (b) the leave
of absence, age of retirement, pension and gratuity or contributory provident
fund in lieu of pension and gratuity, and medical and other benefits to which
the employee shah be entitled; (c) the penalties which may be imposed on the
employee for the violation of any Code of Conduct or the breach of any term of
the contract entered into by him; (d) the manner in which disciplinary
proceedings in relation to the employee shall be conducted and procedure which
shall be followed before any employee is dismissed, removed from service or
reduced in rank; (e) arbitration of any dispute arising out of any breach of
contract between the employee and the managing committee with regard to-(i) the
scales of pay and other allowances, (ii) leave of absence, age of retirement,
pension, gratuity, provident fund, medical and other benefits, (iii) any
disciplinary action leading to the dismissal or removal from service or
reduction in rank of the employee, (f) any other matter which, in the opinion
of the managing committee, out to be, or may be, specified in such
contract." Section 16, which occurs in Chapter VI, is applicable to
unaided minority schools also and deals with admission to recognised schools.
Section 17 and 19 are applicable to both aided and unaided schools. Section
19(1) requires that every recognised higher secondary school shall be
affiliated to one or more of the Boards or Councils conducting such examination
and shall fulfil the conditions prescribed by the Board or Council. Chapter VII
consists of two sections. Section 20 deals with taking over the management of
schools and Section 21 provides that Section 20 shall not apply to a minority
school. As already mentioned by us, though the question of the vires of Section
21 was also raised in the petition, the point was not pressed before us.
The effect of Section 12, as already
mentioned by us, is to make Sections 8, 9, 10 and 11 inapplicable to unaided
minority schools; First, the Administrator may not make' rules regulating the
conditions of service of employees of unaided minority schools. But so far as
the 250 minimum qualifications for recruitment of employees are concerned,
Section 13 enables the Administrator to make regulations even in respect of
unaided minority schools.
Second, the prior approval of the Director
need not be obtained for the dismissal, removal, reduction in rank or
termination of service otherwise then by dismissal or removal of an employee of
an unaided minority school. Third, against such dismissal, removal or reduction
in rank, there is to be no appeal. Fourth, neither piror nor subsequent approval
of the Director need be obtained to suspend any of the employees of an unaided
minority school. Fifth, the scales of pay and allowance, medical facilities,
pension, gratuity, provident fund and other benefits which may be given to
employees are subject to no regulation except that they should be contained in
a written contract of service and need not conform to the scales of pay and
allowances etc. of the employees of the corresponding status in schools run by
the appropriate authority as in the case of other recognised private schools.
To recall the contentions of the learned
counsel for either side, on the one hand it was submitted by Shri C.S.
Vaidyanathan, learned counsel for the
petitioner that these drastic departures which result from giving effect to s.
12, make Section 12 discriminatory and offensive to Art. 14 of the
Constitution. The provisions which are made inapplicable to aided minority
institutions because of Section 12 are no more than regulatory measures aimed
at the excellence of the institution and in no way impinge on the Fundamental
Right of the minorities, religious or linguistic, to administer educational
institutions of their choice. On the other hand, it was the contention of the
learned Additional Solicitor General that these provisions are inapplicable to
minority institutions since they interfere with the right of management vested
in the minorities. According to him, payment of salary, allowances etc. is part
of the right of the management to appoint members of the staff. The economics
of an unaided institution is entirely in the hands of its management and the
right of the management to pay such salaries and allowances as the management
deems fit is a part and parcel of the right to administer the institution. More
so the right to take disciplinary action which cannot be the subject of any
supervision by any other authority. But for Section 12, Sections 8 to 11 would
impinge on the right of the minorities to administer Educational Institutions
of their choice and would therefore, be inapplicable to minority Educational
Institutions. Shri Frank Anthony made submissions on the same lines as the
learned Additional Solicitor General and in addition pointed out that the Frank
Anthony Public School was an Educational Institution of great repute and that
the excellence of the 251 institution was such that it did not necessitate any
regulation by any other authority. The excellence of the institution spoke for
itself. He submitted that the scale of fee charged by the institution was low
compared with other private institutions and it was the desire of the
management that the scale of fee should continue to be low so that it may be
within the reach of the ordinary people whom it was intended to reach. It was
because of this desire of the management to keep the scale of fee low that the
management could not pay higher salaries and allowances and we were repeatedly
told that if Section 12 was struck down and the management was compelled to pay
the same scale of salary and allowances as was paid to employees of Government
schools, the Frank Anthony Public School would have to be closed down.
At this juncture, we may refer to Art. 30(1)
and 30(2) of the Constitution which are as follows:-"30(1) All minorities,
whether based on religion or language, shall have the right to establish and
administer educational institutions of their choice.
( 1 A )
................................................
(2) The State shall not, in granting aid to
educational institutions, discriminate against any educational institution on
the ground that it is under the management of a minority, whether based on
religion or language." The content of the Fundamental Right guaranteed by
Art.
30(1) of the Constitution has been the
subject of several decisions of this Court. The leading case is that a Constitution
bench of seven judges, In re The Kerala Education Bill [1957] SCR 995. In an
oft quoted passage S.R. Das, Chief Justice, explained the content of Art. 30(1)
as follows:
"The first point to note is that the
article gives certain rights not only to religious minorities but also to
linguistic minorities.
In the next place, the right conferred on
such minorities is to establish educational institutions of their choice. It
does not say that minorities based on religion should establish educational
institutions for teaching religion only, or that linguistic minorities should
have the right to establish educational institutions for teaching their 252
language only. What the article says and means is that the religious and the
linguistic minorities should have the right to establish educational
institutions of their choice.
There is no limitation placed on the subjects
to be taught in such educational institutions.
As such minorities will ordinarily desire
that their children should be brought up properly and efficiently and be
eligible for higher university education and go out in the world fully equipped
with such intellectual attainments as will make them fit for entering the
public services, educational institutions of their choice will necessarily
include institutions imparting general secular education also. In other words,
the article leaves it to their choice to establish such educational
institutions as will serve both purposes, namely, the purpose of conserving
their religion, language or culture, and also the purpose of giving a thorough,
good general education to their children. The next thing to note is that the
article, in terms, gives all minorities whether based on religion or language,
two rights, namely, the right to establish and the right to administer
educational institutions of their choice. The key to the understanding of the
true meaning and implication of the article under consideration are the words
"of their own choice". It is said that the dominant words is
"choice" and the content of that article is as wide as the choice of
the particular minority community may make it. The ambit of the rights
conferred by Art. 30(1) has, therefore, to be determined on a consideration of
the matter from the points of view of the educational institutions
themselves." Educational Institutions, it was said, could be classified
into three categories(1) those which did not seek aid or recognition from the
State (2) those which sought aid and (3) those which wanted recognition only
but not aid. It was said that the institutions of the first category were outside
the scope of the Kerala Education Bill the question of vires of whose
provisions was referred to the court in the reference. In the second category
of schools, it was pointed out, there were two classes, those entitled to
receive grants under the Constitution and those which were not entitled to any
grant under any provision of the Constitution. but, nevertheless, sought aid.
Under Art. 337 of the Constitution. Anglo-Indian Schools which were receiving
the grant upto March, 31, 1948 were entitled to receive the grants for a period
of ten years subject to a graded triennial diminution. Anglo253 Indian Schools
which were receiving grants. but not more than what they were entitled to
receive under Art. 337 of the Constitution. came within the first class of the
second category and it was held that their Constitutional right to receive the
grant could not be subjected to any restrictions as those sought to be imposed
by the provisions of the Kerala Education Bill. Any attempt to impose any such
restrictions on Anglo-Indian Schools which received no more aid than that to
which they were entitled to receive under the Constitution would infringe their
fights under Art. 337 and under Art. 30(1) of the Constitution. We may straight
away mention here that the period of ten years stipulated by Art. 337 having
expired there is now no question of AngloIndian Schools being entitled to any
special protection.
Shri Frank Anthony sought to argue that what
was truly decided by the Court was that any condition imposed for granting
recognition to unaided minority Educational Institutions would infringe on the
right of administration granted to them by Art. 30(1) of the Constitution. We
do not read the decision as laying down any such proposition. What was decided
was that Anglo-Indian Schools which were entitled to receive grants under the
Constitution and which received no more aid than that to which they were
entitled under the Constitution could not be subjected to stringent terms as
fresh or additional conditions precedent to enable then to obtain the grant.
Such conditions would infringe their fights under Art. 337 and violate their
fights under Art.
30(1). To place an interpretation as that
suggested by Shri Anthony would be subversive of the right guaranteed by Art.
30(1) since it would make the extent of the
right depend on the receipt or non-receipt of aid. If one thing is clear. it is
this that the Fundamental Right guaranteed by Art. 30(1) cannot be surrendered,
wholly or partly. and the authorities cannot make the grant of aid conditional
on the surrender of a part of the Fundamental Right. In the very case it was observed:
"Recognition and grant of aid, says Shri
G.S.
Pathak. is the governmental function and.
therefore. the State cannot impose terms as
condition precedent to the grant of recognition or aid which will be violative
of Art.
30(1). According to the statement of case
filed by the State of Kerala. every Christian school in the State is aided by
the State.
Therefore. the conditions imposed by the said
Bill on aided institutions established and administered by minority
communities. like the Christians. including the Anglo-Indian community. will
lead to the closing down of all these aided schools unless they are agreeable
to surrender their fundamental right of management. No educational institution
254 can in actual practice be carried on without aid from the State and if they
will not get it unless they surrender their fights they will, by compulsion of
financial necessities, be compelled to give up their fights under Art.
30(1). The legislative powers conferred on
the legislative of the States by Arts. 245 and 246 are subject to the other
provisions of the Constitution and certainly to the provisions of Part III
which confers fundamental rights which are, therefore, binding on the State
legislature. The State legislature 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." The learned Chief Justice then proceeded to consider the
case of the Anglo-Indian Schools which received aid in excess of that granted
by Art. 337 and the other minority schools which received aid from the
Government. One of the principal submissions there was that the gist of the
right of administration of a school was the power of appointment, control and
dismissal of teachers and other staff and that under the Kerala Education Bill
such power of management was practically taken away. Dealing with the
submission the learned Chief Justice observed, "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 administer 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".
Proceeding to consider whether the various
clauses of the Bill merely prescribed reasonable regulations or conditions for
the grant of aid, the Court observed that clauses 7, 10, 11(1), 12(1)(2)(3) and
(5) might easily be regarded as reasonable regulations or conditions for the
grant of aid. We may mention here that Clause 10 of the Bill required 255 the
Government to prescribe the qualifications to be possessed by persons for
appointments as teachers in Government schools and in private schools. The
procedure for selection of teachers in Government schools and aided schools was
laid down in Clause 11. Clause 12 prescribed the conditions of service of the
teachers of aided schools, obviously intended to afford some security of tenure
to the teachers of aided schools. It provided that the scales of pay applicable
to the teachers of Government schools shall apply to all the teachers of aided
schools. Sub-Clause (4) of C1. 12 which was not mentioned by the Court as a
clause which could easily be regarded as reasonable regulation, provided that
no teacher of an aided school shall be dismissed, removed, reduced in rank or
suspended by the Manager without the previous sanction of the authorised
officer. Clause 11 subclause (2) was another clause which the court was unable
to readily identify as reasonable. In regard of Clauses 9, 11 and 12 the court
while holding that they were 'serious inroads on the right of administration'
and that they came 'perilously near violating their right', nevertheless held,
"but considering that these provisions are applicable to all educational
institutions and that the impugned parts of Cls. 9,11 and 12 are 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, we are
prepared as at present advised, to treat these 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." In Rev.
Sidhajbhai Sabhai and others v. State of Bombay and another, [1963] 3 SCR 837
the Court summarised the decision in the' reference in regard to the Kerala
Education Bill and proceeded to observe:
"The right established by Art. 30(1) is
a fundamental right declared in terms absolute.
Unlike the fundamental freedoms guaranteed by
Art. 19, it is not subject to reasonable restrictions. It is intended to be a
real right for the protection of the minorities in the matter of setting up of
educational institutions of their own choice. The right is intended to be
effective and is not to be whittled down by so-called regulative measures
conceived in the interest not of the minority educational institution, but of
the public or the nation as a whole. If every order Which while maintaining the
formal character of a minority institution destroys the power of administration
is held justifiable because it is in the public or national interest, though
not in its interest as 256 an educational institution, the right guaranteed by
Art. 30(1) will be but a "teasing illusion", a promise of unreality.
Regulations which may lawfully be imposed either by legislative or executive
action as a condition of receiving grant or of recognition must be directed to
making the institution while retaining its character as a minority institution
effective as an educational institution.
Such regulation must satisfy a dual test--the
test of reasonableness, and the test that it is regulative of the educational
character of the institution and is conducive to making the institution an
effective vehicle of education for the minority community or other persons who
resort to it." In State of Kerala etc. v. Mother Provincial etc., [1971] 1
SCR 734. It was conceded by the petitioners representing the minority
communities (as indeed they were bound to do having regard to the authorities
of the Court) that the State or the University to which these institutions were
affiliated may prescribed standards of teaching and the Scholastic efficiency
expected from colleges. It was also conceded that to a certain extent
conditions of employment of teachers, hygiene and physical training of students
can be regulated.
While administration was explained
"management of the affairs" of the institution and it was said that
this management should be free of control so that the institution could be
moulded in accordance with the management's ideas of how the interests of the
community in general and the institution in particular would be best served. It
was pointed out that there was an exception to this and it was that the
standards of education were not a part of management as such. It was said,
"These standards concern the body politic and.
are dictated by considerations of the advancement
of the country and its people. Therefore, if universities establish syllabi for
examinations they must be followed, subject however to special subjects which
the institutions may seek to teach, and to certain extent the State may also
regulate the conditions of employment of teachers and the health and hygiene of
students. Such regulations do not bear directly upon management as such
although they may indirectly affect it. Yet the right of the State to regulate
education, educational standards and allied matters cannot be denied.
The minority institutions cannot be allowed to
fail below the standards of excellence expected of educational institutions. or
under the guise of exclusive right of management, to decline to 257 follow the
general pattern. While the management must be left to them, they may be compelled
to keep in step with others." One of the questions in the case related to
the validity of Section, 56 sub-sections (2) and (4). Section 56(2) provided
that no teacher of a private college should to dismissed, removed or reduced in
rank without the previous sanction of the Vice-Chancellor or placed under
suspension for a continuous period exceeding fifteen days without such previous
sanction. Section 56(4) provided that a teacher against whom disciplinary
action was taken shall have a right of appeal to the Syndicate. It was held
that these provisions clearly took away the disciplinary action from the
governing body and the managing council and conferred it on the University.
The view of the High Court that Subsections
(2) and (4) were ultra vires Article 30(1) of the Constitutions in respect of
minority institutions was upheld.
The Ahemedabad St. Xaviers College Society
& Anr., v. State of Gujarat & Anr., [1975] 1 SCR 173 was the decision
of a Nine Judge Constitution Bench. Ray, C.J. with whom Palekar, J. agreed
stated in his opinion, after referring to the State of Kerala v. Mother
Provincial etc. (supra) as follows:
"Affiliation of minority institutions is
intended to ensure the growth and excellence of their children and other
students in the academic field. Affiliation mainly pertains to the academic and
educational character of the institution. Therefore, measures which will
regulate the courses of study, the qualifications and appointment of teachers,
the conditions of employment of teachers, the health and hygiene of students,
facilities for libraries and laboratories are all comprised in matters germane
to affiliation of minority institutions. These regulatory measures for
affiliation are for uniformity, efficiency and excellence in educational courses
and do not violate any fundamental right of the minority institutions under
Article 30." Section 51A of the Act which was impugned in that case
provided that no member of the teaching and non-teaching staff of an affiliated
college shall be dismissed, removed or reduced in rank except with the approval
of the ViceChancellor: Ray, C.J. held that the provision could not be said to
be permissive regulatory measure inasmuch it conferred arbitrary power on the
Vice-Chancellor to take away the 258 right of the minority institutions. It
could not, therefore, be applied to minority institutions. Section 52A of the
Act contemplated reference of any dispute connected with the conditions of
service, between the governing body and any member. of the teaching and
non-teaching staff of an affiliated college to an Arbitration Tribunal
consisting of one member nominated by the governing body, one member nominated
by the affected member and an umpire appointed by the ViceChancellor. This
provision was also held to be inapplicable to minority institutions as the
references to arbitration would introduce an area of litigious controversy in
educational institutions and displace the domestic jurisdiction of the
governing body. Jaganmohan Reddy, J. speaking for himself and Alagiri Swami,
3., agreed with the conclusions of Ray, C.J. and made some observations of his
own. He observed:
"The right under Art. 30 cannot be
exercised in vacue. Nor would it be right to refer to affiliation or
recognition as privileges granted by the State. In a democratic system of
Government with emphasis an education and enlightenment of its citizens, there
must be elements which give protection to them. The meaningful exercise of the
right under Art. 30(1) would and must necessarily involve recognition of the
secular education imparted by the minority institutions without which the right
will be a mere husk. This Court has so far consistently struck down all
attempts to make affiliation or recognition on terms tentamount to surrender of
its rights under Art. 30(1) as abridging or taking away those rights. Again as
without affiliation there can be no meaningful exercise of the right under Art.
30(1), the affiliation to be given should be consistent with that right, nor
can it indirectly try to achieve what it cannot directly do." Khanna, J.
pointed out, "The idea of giving special fights to the minorities is not
to have a kind of a privileged or pampered section of the population but to
give to the minorities a sense of security and a feeling of confidence."
Later dealing with the 'scope' and 'ambit' of the right guaranteed by Art.
30(1), he said:
"The clause confers a right on all
minorities, whether they are based on religion or language, to establish and
administer educational institutions of their choice. The right conferred by the
clause is in absolute terms and is not subject 259 to restrictions as in the
case of rights conferred by Article 19 of the Constitution.
The right of the minorities to administer
educational institutions does not, however, prevent the making of reasonable
regulations in respect of those institutions, The regulations have necessarily
to be made in the interest of the institution as a minority educational
institution. They have to be so designed as to make it an effective vehicle for
imparting education. The right to administer educational institutions can
plainly not include the right to maladminister. Regulations can be made to
prevent the housing of an educational institution in unhealthy surroundings as
also to prevent the setting up or continuation of an educational institution
without qualified teachers. The State can prescribe regulations to ensure the
excellence of the institution. Prescription of standards for educational
institutions does not militate against the right of the minority to administer
the institutions. Regulations made in the true interests of efficiency of
instruction, discipline, health. sanitation, morality, public order and the
like may undoubtedly be imposed. Such regulations are not restrictions on the
substance of the right which is guaranteed: they secure the proper functioning
of the institution, in matters educational (see observations of Shah J. in Rev.
Sidhajbhai Sabhai, supra p. 850). Further, as observed by Hidayatullah CJ., in
the case of very Rev.
Mother provincial (supra) the standards concern
the body politic and are dictated by considerations of the advancement of the
country and its people. Therefore, if universities establish syllabi for
examinations they must be followed, subject however to special subjects which
the institutions may seek to teach, and to a certain extent the State may also
regulate the conditions of employment of teachers and the health and hygiene of
students. Such regulations do not bear directly upon management as such
although they may indirectly affect it. Yet the right of the State to regulate
education, educational standards and allied matters cannot be denied.
The minority institutions cannot be allowed
to fail below the standards of excellence expected of educational institutions,
or under the guise of exclusive right of management, to decline to follow the
general pattern. While the management must be left to them, they may be
compelled to keep in step with others.
260 It is, in my opinion, permissible to make
regulations for ensuring the regular payment of salaries before a particular
date of the month. Regulations may well provide that the funds of the
institution should be spent for the purposes of education or for the betterment
of the institution and not for extraneous purposes. Regulations may also
contain provisions to prevent the diversion of funds of institutions to the
pockets of those incharge of management or their embezzlement in any other
manner. Provisions for audit of the accounts of the institution would be
permissible regulation. Likewise, regulations may provide that no antinational
activity would be permitted in the educational institutions and that those
employed as members of the staff should not have been guilty of any activities
against the national interest.
Minorities are as much part of the nation as
the majority, and anything that impinges upon national interest must
necessarily in its ultimate operation affect the interests of all those who inhibit
this vast land irrespective of the fact whether they belong to the majority or
minority sections of the population. It is, therefore, as much in the interest
of minorities as that of the majority to ensure that the protection afforded to
minority institutions is not used as a cloak for doing something which is
subversive of national interests. Regulations to prevent antinational
activities in educational institutions can, therefore, be considered to be
reasonable.
A regulation which is designed to prevent
maladministration of an educational institution cannot be said to offend clause
(1) of article 30. At the same time it has to be ensured that under the power
of making regulations nothing is done as would detract from the character of
the institution as a minority educational institution or which would impinge
upon the rights of the minorities to establish and administer educational
institutions of their choice. The right conferred by article 30(1) is intended
to be real and effective and not a mere pious and abstract sentiment; it is a
promise of reality and not a teasing illusion. Such a right cannot be allowed
to be whittled down by any measure masquerading as a regulation. As observed by
this Court in the case of Rev.
Sidhajbhai Singh (supra, regulations which
may lawfully be imposed either by legislative or executive action as a
condition of receiving grant or of recognition 261 must be directed to making
the institution while retaining its character as minority institution effective
as an educational institution. Such regulation must satisfy a dual test-the
test of reasonableness, and the test that it is regulative of the educational
character of the institution and is conducive to making the institution an
effective vehicle of education for the minority community or Other persons who
resort to it." Dealing with the right of the management of a minority
educational institution to exercise disciplinary control over the teachers, he
observed:
"Although disciplinary control over the
teachers of a minority educational institution would be with the governing
council, regulations, in my opinion, can be made for ensuring proper conditions
of service of the teachers and for securing a fair procedure in the matter of
disciplinary action against the teachers. Such provisions which are calculated
to safeguard the interest of teachers would result in security of tenure and
this inevitably attract competent persons for the posts of teachers. Such a
provision would also eliminate a potential cause of frustration amongst the
teachers. Regulations made for this purpose should be considered to be in the
interest of minority educational institutions and as such they would not
violate article 30(1)." However, Khanna, J. held that Section 51A which gave
blanket power to the Vice-Chancellor to veto the disciplinary action of the
management body and section 52A which provided for the nomination of an umpire
by the Vice-Chancellor were both objectionable. It is important to note here
that what was considered objectionable in Section 52A was not the provision for
an Arbitration Tribunal but the right given to the Vice-Chancellor to nominate
the Umpire. The Learned Judge said:
"It may also be stated that there is
nothing objectionable to selecting the method of arbitration for settling major
disputes connected with conditions of service of staff of educational
institutions. It may indeed be a desideratum. What is objectionable, apart from
what has been mentioned above, is the giving of the power to the ViceChancellor
to nominate the Umpire. Normally in such dis262 putes there would be hardly any
agreement between the arbitrator nominated by the governing body of the
institution and the one nominated by the concerned member of the staff. The
result would be that the power would vest for all intents' and purposes in the
nominee of the Vice Chancellor to decide all disputes between the governing
body and the member of the staff connected with the latter's conditions of
service. The governing body would thus be hardly in a position to take any
effective disciplinary action against a member of the staff. This must cause an
inroad in the right of the governing body to administer the institution.
Section 52A should, therefore, be held to be violative of article 30(1) so far
as minority educational institutions are concerned." Mathew, J. speaking
for himself and Chandrachud, J. observed:
"In considering the question whether a
regulation imposing a condition subserves the purpose for which recognition or
affiliation is granted, it is necessary to have regard to what regulation the
appropriate authority may make and impose in respect of an educational
institution established and administered by a religious minority and receiving
to recognition or aid. Such an institution will, of course, be subject to the
general laws of the land like the law of taxation,' law relating to sanitation,
transfer of property, or registration of documents, etc., because they are laws
affecting not only educational institutions established by religious minorities
but also all other persons and institutions. It cannot be said that by these
general laws, the State in any way takes away or abridges the right guaranteed
under Article 30(1). Because article 30(1) is couched in absolute terms, it
does not follows that the right guaranteed is not subject to regulatory laws
which would not amount to its abridgement. It is a total misconception to say
that because the right is couched in absolute terms, the exercise of the right
cannot be regulated or that every regulation of that right would be an
abridgement of the right." Again he said:
"The question to be asked and answered
is whether the particular measure is regulatory or whether it crosses the 263
zone of permissible regulation and enters the forbidden territory of
restrictions or abridgement. So, even if an educational institution established
by a religious or linguistic minority does not seek recognition, affiliation or
aid, its activity can be regulated in various ways provided the regulations do
not take away or abridge the guaranteed right.
Regular tax measures, economic regulations,
social welfare legislation, wage and hour legislation and similar measures may,
of course have some effect upon the right under article 30(1). But where the
burden is the same as that borne by others engaged in different forms of
activity, the similar impact on the right seems clearly insufficient to
constitute an abridgement, if an educational institution established by a
religious minority seeks no recognition, affiliation or aid, the state may have
no right to prescribe the curriculum, syllabi or the qualification of the
teachers.
We find it impossible to subscribe to the
proposition that State necessity is the criterion for deciding whether a
regulation imposed on an educational institution takes away or abridges the
right under Article 30(1): If a legislature can impose any regulation which it
thinks necessary to protect what in its view is in the interest of the State or
society, the right under Article 30(1) will cease to be a fundamental right. It
sounds paradoxical that a right which the Constitution makers wanted to be
absolute can be subjected to regulations which need only satisfy the nebulous
and elastic test of state necessity. The very purpose of incorporating this
right in Part III of the Constitution in absolute terms in marked contrast with
the other fundamental fights was to withdraw it from the reach of the majority.
To subject the right today to regulations dictated by the protean concept of
state necessity as conceived by the majority would be to subvert the very
purpose for which the right' was given." The learned Judge also pointed
out that where besides recognition or affiliation, an educational institution
conducted by a religious minority is granted aid, further regulations for
ensuring that the aid is utilized for the purpose for which it is granted would
be permissible. "The heart of the matter" said the learned Judge.
"is that no educational institution established by a religious or
linguistic minority can claim total immunity from regulations by the legislature
or the university if it 264 wants affiliation or recognition; but the character
of the permissible regulations must depend upon their purpose. As we said, such
regulations will be permissible if they are relevant to the purpose of securing
or promoting the object of recognition or affiliation." Referring to
Section 51A Mathew, J. said that uncanalized power without any guideline to
withhold approval would be a direct abridgement of the right of the management
to dismiss or remove a teacher or inflict any other penalty after conducting an
enquiry. He, however, took care to point out that it would be open to the State
in the exercise of its regulatory power to require that before the services of
a teacher are terminated, he should be given an opportunity to be heard in his
defence.
The objection was to the blanket power given
to the ViceChancellor without any guideline as to the manner of its exercise.
Referring to Section 52A, the learned Judge felt that it subserves no purpose
and would lead to needless interference with the day-to-day management of the
institution. Every petty dispute raised by the teaching or nonteaching staff
would have to be referred to arbitration if it seemed to touch the service
conditions. "Arbitration, not in parting education, will become the
business of educational institutions", said the learned Judge. Beg, J. and
Dwivedi, J. who appeared to constitute the minority delivered separate opinions
and it is sufficient to say that both of them upheld the vires of Section 51A
and Section 52-A.
In All Saints High School etc. v. The
Government of Andhra Pradesh, A.I.R. 1980 SC 1042. Chandrachud, C.J. after
referring to several earlier decisions of the Court said, 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 of a regulatory character." 265
Section 3(1) of the impugned Act in that case provided that no teacher employed
in any private educational institution shall be dismissed, removed or reduced
in rank nor his appointment otherwise terminated except with the prior approval
of the competent authority. The provision was struck down on the ground that it
gave wide and untrammelled discretion to interfere with the management's right
to dismiss, remove, reduce in rank or otherwise terminate the teacher's
services. However Section 3(3) (which provided that no teacher shall be placed
under suspension except when an inquiry into the gross misconduct of such
teacher was contemplated) was upheld as not violative of Article 30(1) of the
Constitution. Chandrachud, C.J. observed that the provision was founded so
patently on plain reason that it was impossible to construe it as an invasion
of the right to administer an institution, unless that right carried with it
the right to maladminister. Section 4 of the Act made a provision for an appeal
against an order of dismissal, removal, reduction in rank or otherwise
termination of appointment or alteration to the teacher's disadvantaged of pay
or allowances or any other conditions of service. This provision was also
struck down as unconstitutional as it gave a right of appeal both on fact and
law thereby throwing open the order of the management to the Unguided scrutiny
and unlimited review of the appellate authority. Section 8 required the
management to obtain prior approval of the competent authority if retrenchment
of teacher rendered necessary by any order of the Government relating to education
or course of instruction or any other matter. This provision was upheld as
valid. Section 7 which provided 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 as may be prescribed was held to regulatory in character. Fazal Ali,
J. after quoting in extenso from the earlier judgments of the Court and culling
out the principles which according to him emerged from the earlier decisions
say, "It is, therefore, 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 armed with
sufficient guidance to see that the said rules are not vitiated or the members
of the staff are not arbitrarily treated or innocently victimised. In such a
case the purpose is not to interfere with the internal administration or
autonomy of the institution but it is merely to improve the excellence and
efficiency of the education because a really good education can be received
only if the tone and temper of the teachers are 266 so flamed as to make them
teach the students With devotion and dedication and put them above all
controversy. But while setting up such an authority care must be taken to see
that the said authority is not given blanket and uncanalised and arbitrary
powers so as to act at their own sweet will ignoring the very spirit and
objective of the institution. It would be better if the authority concerned
associates the members of the governing body or its nominee in its deliberation
so as to instil confidence in the founders of the institution or the committees
constituted by them." Fazal Ali, J. held that Section 3(2) was violative
of Article 30(1) of the Constitution and would have no application to minority
institutions. He was of the view that Section (3), Sub-section (3), sub-clauses
(a) and (b) were also violative of Article 30(1) of the Constitution. The provision
for an appeal in Section 4 and the provision against retrenchment contained in
Section 6 were both held to be inapplicable to minority institutions. Section 7
was upheld as innocuous. Kailasam, J. after referring to the earlier cases
stated as follows:-"A reading of the decisions referred to above makes it
clear that while the right to establish and administer a minority institution
cannot be interferred with restrictions by way of regulations for the purpose
of maintaining the educational standards of the institution can be validly
imposed. For maintaining the educational standard of the institution as a whole
it is necessary to ensure that it is properly staffed. Conditions imposing the
minimum qualifications of the staff, their pay and other benefits, their
service conditions, the imposition of punishment will all be covered and
regulations of such a nature have been held to be valid. In the case of institutions
that receive aid it is the duty of the Government who grants aid to see that
the funds are properly utilised. As the Government pays for the staff it is
their bounden duty to see that well-qualified persons are selected, their pay
and other emoluments are guaranteed and service conditions secured. So far as
the institutions receiving aid are concerned if the regulations are made for
the purpose of safeguarding the rights of the staff the validity cannot be questioned
as long as the regulations do not discriminate the minority institution on the
ground of religion or language." 267 Kailasam, 1. was of the view that the
whole of section 3 was valid. There were sufficient guidelines indicated in the
Act for the exercise of the powers under Section 3(1) and (2).
Sections 3(3)(a)(b) and 3(4) were intended to
safeguard the teachers from suspension for unduly long periods without there
being an enquiry into gross misconduct and could not be said to interfere with
the right of administration of the private institutions. With regard to Section
3(4) the learned Judge said it was purely regulatory. Sections 6 and 7 were
also upheld.
Thus, there, now, appears to be a general and
broad consensus about the content and dimension of the Fundamental Right
guaranteed by Article 30(1) of the Constitution. The right guaranteed to
religious and linguistic minorities by Art. 30(1) is two fold, to establish and
to administer educational institutions of their choice. The key to the Article
lies in the words "of their own choice". These words indicate that
the extent of the right is to be determined, not with reference to any concept
of State necessity and general societal interest but with reference to the
educational institutions themselves, that is, with reference to the goal of
making the institutions "effective vehicles of education for the minority
community or other persons who resort to them". It follows that regulatory
measures which are designed towards the achievement of the goal of making the
minority educational institutions effective instruments for imparting education
cannot be considered to impinge upon the right guaranteed by Article 30(1) of
the Constitution.
The question in each case is whether the
particular measure is, in the ultimate analysis, designed to achieve such goal,
Without of course nullifying any part of the right of management in substantial
measure. The provisions embodied in Sections 8 to 11 of the Delhi Schools
Education Act may now be measured alongside the Fundamental Right guaranteed by
Article 30(1) of the Constitution to determine whether any of them impinges on
that fundamental right. Some like or analogous provisions have been considered
in the cases to which we have referred. Where a provision has been considered
by the Nine Judge Bench in Ahmedabad St. Xaviers College v. State of Gujarat
(supra), we will naturally adopt what has been said therein and where the Nine
Judge Bench is silent we will have recourse to the other decisions.
The principal controversy between the parties
centred around Section 10 which requires that "the scales of pay and
allowances, medical facilities, pension, gratuity, provident fund, and other
prescribed benefits of the employees of the recognised private school shall not
be less than these of the corresponding status run by the appro268 priate
authority". The submission on behalf of the respondents was that the right
to appoint members of staff being an undoubted right of the management and the
right to stipulate their salaries and allowances etc. being part of their right
to appoint, such right could not be taken away from the management of a
minority institution. The learned Solicitor-General very fairly stated before
us that there was no case in which it had been held that the right to pay
whatever salaries and allowances they liked and stipulate whatever conditions
they liked was part of the right to administer the minority institutions under
Article 30(1) of the Constitution. On the other hand as we shall immediately
point out there are observations to the contrary.
In the Nine Judge Bench case, Ray, CJ. and
Palekar, J. as we have already seen, expressed the view that the conditions of
employment of teachers was a regulatory measure conducive to uniformity,
efficiency and excellence in educational courses and did not violate the
fundamental right of the minority institutions under Article 30. Jaganmohan
Reddy, J. and Alagiriswami, J. who agreed with the conclusions of Ray, C.J. did
not say anything expressly about salary, allowances and other conditions of
employment of teachers. Khanna, J. expressed the view that to a certain extent
the State may also regulate the conditions of employment of teachers and added
that it would be permissible to make regulations for ensuring the regular
payment of salaries before a particular date of the month. The latter statement
of Khanna, J., it was a contended for the respondents, limited the extent of
the right of the State. to regulate the conditions of employment of teachers.
We cannot agree with this contention. The statement that the State may make
regulations for ensuring the regular payment of salaries before a particular
date of the month was in addition to what was said earlier that to a certain
extent the State may also regulate the conditions of employment of teachers.
In fact, while dealing with the question of
disciplinary control, Khanna, J., also said that provisions calculated to
safeguard the interest of teachers would result in security of the tenure and
that would inevitably attract competent persons for the posts of teachers. The
same thing may be said about better scales of pay and decent conditions of
service. Mathew, J. with whom Chandrachud, J. agreed also indicated that
economic regulations, social welfare legislation, wage and hour legislation and
similar measures, where the burden was the same as that borne by others would
not be considered an abridgement of the right guaranteed by Article 30(1).
Thus, we see that most of the learned Judges who constituted the Nine Judge
Bench were inclined to the view that prescription of conditions of service
which would. have the effect of attracting better 269 and competent teachers
would not be considered violative of the fundamental right guaranteed by
Article 30(1) of the Constitution. That would rightly be so because the mere
prescription of scales of pay and other conditions of service would not
jeopardise the right of the management of minority institutions to appoint
teachers of their choice.
The excellence of the instruction provided by
an institution would depend directly on the excellence of the teaching staff,
and in turn, that would depend on the quality and the contentment of the
teachers. Conditions of service pertaining to minimum qualifications of
teachers, their salaries, allowances and other conditions of service which
ensure security, contentment and decent living standards to teachers and which
will consequently enable them to render better service to the institution and
the pupils cannot surely be said to be violative of the fundamental right
guaranteed by Art. 30(1) of the ConstitutionThe management of a minority
Educational institution cannot be permitted under the guise of the fundamental
right guaranteed by Art.
30(1) of the Constitution, to oppress or
exploit its employees any more than any other private employee. Oppression or
exploitation of the teaching staff of an educational institution is bound to
lead, inevitably, to discontent and deterioration of the standard of
instruction imparted in the institution affecting adversely the object of
making the institution an effective vehicle of education for the minority
community or other persons who resort to it. The management of minority
institution cannot complain of invasion of the fundamental right to administer
the institution when it denies the members of its staff the opportunity to
achieve the very object of Art. 30(1) which is to make the institution an
effective vehicle of education.
Apart from the learned Judges who constituted
the Nine Judge Bench, other learned Judges have also indicated the same view.
In the leading case of the Kerala Education Bill, the Constitution Bench
observed that, as then advised, they were prepared to treat the clauses which were
designed to give protection and security to the ill paid teachers who were
engaged in rendering service to the nation as permissible regulations. The
observations were no doubt made in connection with the grant of aid to
educational institutions but that cannot make any difference since, aid, as we
have seen, cannot be made conditional on the surrender of the right guaranteed
by Article 30(1). In State of Kerala v. Mother Provincial, (supra), it was said
that to a certain extent the State may regulate conditions of employment of
teachers. In All Saints High School. v. Government of Andhra Pradesh, 270
Chandrachud, C.J., expressly stated that for the maintenance of educational
standards of an institution it was necessary to ensure that it was competently
staffed and therefore, conditions of service prescribing minimum qualifications
for the staff, their pay-scales, their entitlement other benefits of-service
and the safeguards which must be observed before they were removed or dismissed
from service or their services terminated were permissible measures of a
regulatory character. Kailasam, J. expressed the same view in almost identical
language. We, therefore, hold that Section 10 of the Delhi Education Act which
requires that the scales of pay and allowances, medical facilities, pension,
gratuity, provident fund and other prescribed benefits of the employees of a
recognised private school shall not be less than those of the employees of the
corresponding status in schools run by the appropriate authority and which
further prescribes the procedure for enforcement of the requirement is a
permissible regulation aimed at attracting competent staff and consequently at
the excellence of the educational institution. It is a permissible regulation
which in no way 'detracts from the fundamental right guaranteed by Art.
30(1), to the minority institutions to
administer their educational institutions. Therefore, to the extent that
Section 12 makes Section 10 inapplicable to unaided minority institutions, it is
clearly discriminatory.
Section 8(1) merely empowers the
Administrator to make rules regulating the minimum qualifications for
recruitment, and the conditions of service of recognised private schools.
Section 8(1) is innocuous and in fact Section
13 which applies to unaided minority schools is almost on the same lines as
Section 8(1). The objection of the respondents is really to Section 8(2), 8(3),
8(4) and 8(5) whose effect is (1) to require the prior approval of the Director
for the dismissal, removal, reduction in rank or other termination of service
of an employee of a recognised private school, (2) to give a right of appeal to
a Tribunal consisting of a single member who shall be a District Judge or who
has held an equivalent judicial office, (3) to require prior approval of the
Director if it is proposed to suspend an employee unless immediate suspension
is necessary by reason of the gross misconduct of the employee in which case
the suspension shall remain in force for not more than 15 days unless approval
of the Director is obtained in the mean while. In the Nine Judge Bench case
Ray, C.J. and Palekar, J. took the view that Section 51A of the Gujarat Act
which provided that no member of the staff of an affiliated college shall be
dismissed, removed or reduced in rank except with the approval of the
Vice-Chancellor was violative of Article 30(1) as it conferred arbitrary power
on the Vice-Chancellor to take away rights of the minority institutions. Simi271
larly, Section 52A which contemplated reference of any dispute connected with
conditions of service between the governing body and any member of the staff to
an Arbitration Tribunal consisting of one member nominated by the governing
body, one member nominated by the member of the staff and an umpire appointed
by the Vice Chancellor was also held to be violative of Article 30(1). It was
said that this provision would introduce an area of litigious controversy in
educational institutions and displace the domestic jurisdiction of the
management. Jaganmohan Reddy, J. and Alagiriswami, J., agreed with the
conclusions of Ray, C.J. Khanna, J.
thought that the blanket power given by
Section 51A to the Vice-Chancellor to veto the disciplinary action and the
power given by Section 52A to the Vicechancellor to nominate an umpire were
both objectionable, though he observed that there was nothing objectionable in
selecting the method of arbitration for settling major disputes. Mathew, J.,
also objected to the blanket power given to the Vice-Chancellor by Section 51A.
He also thought that Section 52A was too wide and permitted needless
interference in day-to-day affairs of the institution by providing for
arbitration in petty disputes also. Keeping in mind the views of the several
learned Judges, it becomes clear that Section 8(2) must be held to be
objectionable. Section 8(3) provides for an appeal to the Tribunal constituted
under Section 11, that is, a Tribunal consisting of a person who has held
office as a District Judge or any equivalent judicial office. The appeal is not
to any departmental official but to a Tribunal manned by a person who has held
office as a District Judge and who is required to exercise his powers not
arbitrarily but in the same manner as a court of appeal under the Code of Civil
Procedure. The right of appeal itself is confined to a limited class of cases,
namely, those of dismissal, removal or reduction in rank and not to every
dispute between an employee and the management. The limited right of appeal,
the character of the authority constituted to hear the appeal and the manner in
which the appellate power is required to be exercised make the provision for an
appeal perfectly reasonable, in our view. The objection to the reference to an
Arbitration Tribunal in the Nine Judge Bench case was to the wide power given
to the Tribunal to entertain any manner of dispute and the provision for the appointment
of umpire by the Vice-Chancellor. Those defects have been cured in the
provisions before us. Similarly, the provision for an appeal to the Syndicate
was considered objectionable in State of Kerala. v Mother Provincial, (supra),
as it conferred the right on the university.
Section 8(4) would be inapplicable to
minority institutions if it had conferred blanket power on the Director to
grant or withhold 272 prior approval in every case where a management proposed
to suspend an employee but we see that it is not so. The management has the
right to order immediate suspension of an employee in case of gross misconduct
but in order to prevent an abuse of power by the management a safeguard is
provided to the employee that approval should be obtained within 15 days. The
Director is also bound to accord his approval if there are adequate and
reasonable grounds for such suspension. The provision appears to be eminently
reasonable and sound and the answer to the question in regard to this provision
is directly covered by the decision in All Saints High School, where
Chandrachud, C.J. and Kailasam, J. upheld Section 3(3) (a) of the Act impugned
therein. We may also mention that in that case the right of appeal conferred by
Section 4 of the Act was also upheld. How necessary it is to afford some
measure of protection to employees, without interfering with the management's
right to take disciplinary action, is illustrated by the action taken by the
management in this very case against some of the teachers. These teachers took
part along with others in a 'silent march', first on April 9, 1986 and again on
April 10, 1986, despite warning by the principal. The march was during the
break when there were no classes. There were no speeches, no chanting or
shouting of slogans, no violence and no disruption of studies. The behaviour of
the teachers appears to have been orderly and exemplary. One would have thought
that the teachers were, by their silent and dignified protest, setting an
example and the soundest of precedents to follow to all agitators everywhere.
But instead of sympathy and appreciation they were served with orders of
immediate suspension, something which would have never happened if all the
provisions of Section 8 were applicable to the institution.
Thus, Sections 8(1), 8(3), 8(4) and 8(5) do
not encroach upon any right of minorities to administer their educational
institutions. Section 8(2), however, must, in view of the authorities, be held
to interfere with such right and, therefore, inapplicable to minority
institutions. Section 9 is again innocuous since Section 14 which applies to
unaided minority schools is virtually on the same lines as Section
9. We have already considered Section 11
while dealing with Section 8(3). We must, therefore, hold that Section 12 which
makes the provisions of Chapter IV inapplicable to unaided minority schools is
discriminatory not only because it makes Section 10 inapplicable to minority
institutions, but also because it makes sections 8(1), 8(3), 8(4), 8(5), 9 and
11 inapplicable to unaided minority institutions. That the Parliament did not
understand Sections 8 to 11 as offending the fundamental right guaranteed to
the minorities under Article 30(1) is 273 evident from the fact that Chapter IV
applies to aided minority institutions and it cannot for a moment be suggested
that surrender of the right under Article 30(1) is the price which the aided
minority institutions have to pay to obtain aid from the Government.
The result of our discussion is that Section
12 of the Delhi School Education Act which makes the provisions of Chapter IV
inapplicable to unaided minority institutions is discriminatory and void except
to the extent that it makes Section 8(2) inapplicable to unaided minority
institutions.
We, therefore, grant a declaration to that
effect and direct the Union of India and the Delhi Administration and its
officers, to enforce the provisions of Chapter IV (except 'Section 8(2) in the
manner provided in the Chapter in the case of the Frank Anthony Public School.
The management of the school is directed not to give effect to the orders of
suspension passed against the members of the staff.
After the arguments of both sides were fully
heard, Shri Sushil Kumar who appeared for the institution along with Mr.
Anthony submitted that according to the
instructions of the Council for the Indian School Certificate Examination,
"the staff must be paid salaries and allowances not lower than those paid
in comparable to Government schools in the State in which the school is
located" and in view of this instruction it was not necessary for us to go
into the question of the applicability of Section 10 to minority institutions.
We do not attach any significance to this last minute, desperate submission. It
is not clear whether the instruction is a condition imposed by the Council
pursuant to S. 10 of the Delhi School Education Act. There is no way by which
the staff can seek to enforce the instruction. Nor is the instruction of any
relevance since it is not the case of the respondents that the institution is
paying or is agreeable to pay the scales of pay stipulated in the instruction.
We must refer to the submissions of Mr. Frank
Anthony regarding the excellence of the institution and the fear that the
institution may have to close down if they have to pay higher scales of salary
and allowances to the members of the staff. As we said earlier the excellence
of the institution is largely dependent on the excellence of the teachers and
it is no answer to the demand of the teachers for higher salaries to say that
in view of the high reputation enjoyed by the institution for its excellence,
it is unnecessary to seek to apply provisions like Section 10 of the Delhi
School Education Act to the Frank Anthony Public School. On the other hand, we
should think that the very contribution made by the teachers to earn for the
institution the 274 high reputation that it enjoys should spur the management
to adopt at least the same scales of pay as the other institutions to which
Section 10 applies. Regarding the fear expressed by Shri Frank Anthony that the
institution may have to close down we can only hope that the management will do
nothing to the nose to spite the face, merely to 'put the teachers in their
proper place'. The fear expressed by the management here has the same ring as
the fear expressed invariably by the management of every industry that disastrous
results would follow which may even lead to the closing down of the industry if
wage scales are revised.
S.R. Petition allowed.
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