Ali Sha Vs. Mohamed Abdul Kalam & Ors  INSC 137 (9 April 1999)
V. Manohar, R.C. Lahoti. Mrs, Suiata V. Manohar. J.
appellant, Madrasa Islamia Darululoom, Gope, District Pun, Orissa, is a
minority educational institution set up to Impart education upto standard eight
in the State of Orissa. It is a government aided
institution. Aid is paid by the Government in lump sum to the institution to be
distributed amongst the teachers and staff. The appellant's school is under the
control of the Director of Education through the special officer for Mohammedan
No.1 was the Head Master (head Maulbi) of the appellant's school and the second
respondent was the Assistant Teacher of the appellant's school at the material
16.11.1986, a show cause notice was issued to respondents and 2 in respect of
various irregularities committed by respondents 1 and 2. Thereafter, the
Managing Committee considered the conduct and activities of respondents 1 and 2
at its meetings held on 22.5.1987 and 27.9.1987. Ultimately on 14.10.1987, the
Managing Committee resolved to remove the respondents from service. In the
resolution, the committee also explained the reasons for removal. Accordingly,
by an order dated 15.10.1987 issued by the Secretary of the said school,
services of respondents 1 and 2 were terminated.
termination was challenged by respondents 1 and 2 by filing a writ petition
before the High Court. The High Court has found that no approval of the
Director of Education was obtained prior to the order of termination as
prescribed under Section 10-A of the Orissa Education Act, 1969. Hence the
termination is bad in law. The High Court also directed reinstatement of
respondents 1 and 2, and payment of a lump sum of Rs.5,000/- to each of the
respondents in lieu of back wages.
appeal appellant - school before us has pointed out that since the appellant's
school is a minority educational institution, the Orissa Education Act, 1969 is
not applicable to the school. The appellant has drawn our attention to Section
2 of the Orissa Education Act, 1959 which provides as follows:
Act not to apply to certain institutions:- Nothing contained in this Act shall
apply to educational institutions of their choice established and administered
by minorities having the right under Clause (1) of Article 30 of the
that the State Government may by notification apply or adapt to an educational
institution established and administered by minorities, such of the provisions
of the Act, so however that the rights under Article 30 of the Constitution are
not infringed." Section 10-A of the Orissa Education Act which requires
prior approval of the Director before termination of the services of a teacher
of an aided institution, therefore, has no application to a minority
institution such as the , appellant's institution. While the Directorate of
Education, Orissa may have power to supervise the functioning of the said
school in order to ensure that it does not mat-function or is not
mal-administered, in view of Article 30(1) of the Constitution the Directorate
has no control over the actual management of the school including hiring or
termination of services of teachers. This is entirely within the control of the
Managing Committee of the minority institution. In the case of Bihar State madarsa Education Board v. Anjuman Ahle-Hadees and Anr.
(1884 Supp. (2) SCC 509), this Court struck down Sections 7(2)(n) and 24 of the
Bihar State Madarsa Education Board Act
as violative of Article 30(1). Section 24 provided, inter alia, that no teacher
of a Madarsa shall be discharged or dismissed from service without the prior
approval of the State Madarsa Education Board. This Court considered the
provision as interfering with the management of the said school. In The Ahmedabad
St. Xaviers College Society and Anr. etc. v. State of Gujarat and Anr. ( AIR 1974 SC 1389) a
provision requiring approval of the Vice-Chancellor for termination of a
teacher's services was held as interfering with the minority institutions
disciplinary control over the staff. (See also Lilly Kurian v. Sr. Lewins and
Ors. (AIR 1979 SC 52).
us a counter-affidavit has been filed by the Inspecting Officer, Urdu
Education, Directorate of Secondary Education, Bhubaneswar, Orissa on behalf of respondents 11 and 12 pointing out
that the appellant's institution is a religious minority institution which is
covered by Section 2 of the Orissa Education Act. In view thereof, it is stated
in the affidavit that the State Government ordinarily does not interfere with
the internal management of such an institution. The payment to the teachers of
this institution is not made under the direct payment scheme but.
grant is released in favour of the Secretary of the said school. The management
of the appellant's Institution is by an independent body with full control over
the appointment, termination and disciplinary action against the employees.
can be done without obtaining prior approval of the Director or the Inspector
of Schools unlike in the case of other aided educational institutions.
to the minority status of the educational institution, the Managing Committee
of the institution was entitled to terminate the services of respondents 1 and
2 without obtaining prior approval of the Director or Inspector of Schools
since the management and discipline of such an institution is entirely under
the control of the Managing Committee of the minority institution.
appeal is, therefore, allowed and the impugned judgment and order of the High
Court is set aside and the termination of respondents 1 and 2 is upheld. There
will however, be no order as to costs.