Whether the Sections 8, 10, 11 and 12 of the West Bengal Madrasah Service Commission Act, 2008 (“the Commission Act”, for short) are ultra vires. ?We are aware that in Brahmo Samaj Education Society24 , Sindhi Education Society7 and Chandana Das (Malakar)33 , decided after TMA Pai Foundation8 , this Court had also dealt with the question whether the concerned authorities could validly nominate teachers to be appointed in minority educational institutions. Brahmo Samaj Education Society24 did not specifically deal with the question whether rules were valid or not and left it to the authorities to bring the rules and regulations in conformity with the principles in TMA Pai Foundation8 case. Sindhi Education Society7 dealt with the issue in the context of reservation. It also found that the teachers nominated by the concerned authorities would not be compatible to teach in educational institutions run by linguistic minorities. In Chandana Das (Malakar)33 the basic issue was whether the concerned institution was a minority institution or not. Sindhi Education Society7 and Chandana Das (Malakar)33 dealt with statutory regimes which did not have any special features or matters concerning compatibility of teachers Civil Appeal No.5808 of 2017 SK. MD. Rafique vs. Managing Committee, contai Rahamania High Madrasah and Others 150 which could be required going by the special characteristics of the minority educational institutions. However, the additional feature in the present matter shows that the composition of the Commission with special emphasis on persons having profound knowledge in Islamic Culture and Theology, would ensure that the special needs and requirements of minority educational institutions will always be taken care of and thus the present case stands on a different footing. We, therefore, have no hesitation in going by the test culled out in the TMA Pai Foundation8 and hold that the provisions of the Commission Act are not violative of the rights of the minority educational institutions on any count. 57. In the premises, while allowing these appeals, we set aside the view taken by the Single Judge and the Division Bench of the High Court and dismiss Writ Petition No.20650(W) of 2013 and other connected matters. We also hold Sections 8, 10, 11 and 12 of the Commission Act to be valid and constitutional. 58. In the end, we declare all nominations made by the Commission in pursuance of the provisions of the Commission Act to be valid and Civil Appeal No.5808 of 2017 SK. MD. Rafique vs. Managing Committee, contai Rahamania High Madrasah and Others 151 operative. However, if after the disposal of the matters by the High Court any appointments are made by the concerned Madarshas, such appointments of teachers shall be deemed to be valid for all purposes. But the Commission shall hereafter be competent to select and nominate teachers to various Madarshas in accordance with the provisions of the Commission Act and the Rules framed thereunder.

Civil Appeal No.5808 of 2017
SK. MD. Rafique vs.
Managing Committee, contai Rahamania High Madrasah and Others
1
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE/ORIGINAL/INHERENT JURISDICTION
CIVIL APPEAL NO.5808 OF 2017
Sk. Md. Rafique …Appellant
VERSUS
Managing Committee,
Contai Rahamania High Madrasah and Others …Respondents

WITH
C.A. No.6098/2017
CONMT.PET.(C) No.670/2017 In SLP(C) No.6661/2016
CONMT.PET.(C) No.669/2017 In SLP(C) No.6661/2016
CONMT.PET.(C) No.828/2017 In SLP(C) No.6661/2016
C.A. No.5809/2017
C.A. No.5826/2017
C.A. No.5817/2017
C.A. No.5814/2017
CONMT.PET.(C) No.583/2016 In SLP(C) No.6661/2016
C.A. No.5829/2017
W.P.(C) No.723/2016
CONMT.PET.(C) No.846/2016 In SLP(C) No.6661/2016
Civil Appeal No.5808 of 2017
SK. MD. Rafique vs.
Managing Committee, contai Rahamania High Madrasah and Others
2
CONMT.PET.(C) No.1509/2017 in C.A. No.5808/2017
W.P.(C) No.629/2017
CONMT.PET.(C) No.1798/2017 in C.A. No.5808/2017
CONMT.PET.(C) No.937/2018 in C.A. No.5808/2017
CONMT.PET.(C) No.938/2018 in C.A. No.5808/2017
CONMT.PET.(C) No.1219/2018 in C.A. No.5808/2017
CONMT.PET.(C) No.1274/2018 in C.A. No.5808/2017
CONMT.PET.(C) No.1669/2018 in C.A. No.5808/2017
CONMT.PET.(C) No.1921-1922/2018 in C.A. No.5808/2017
J U D G M E N T
Uday Umesh Lalit, J.

  1. These appeals arise out of the Judgment and Order dated
    09.12.2015 passed by the Division Bench of the High Court1
    dismissing
    A.S.T. No.192 of 2014 and other connected matters and thereby affirming
    the decision of the Single Judge of the High Court passed on 12.03.2014 in
    Writ Petition No.20650 (W) of 2013 which in turn had found Sections 8,
    10, 11 and 12 of the West Bengal Madrasah Service Commission Act, 2008
    (“the Commission Act”, for short) to be ultra vires.
    1 The High Court of Judicature at Calcutta
    Civil Appeal No.5808 of 2017
    SK. MD. Rafique vs.
    Managing Committee, contai Rahamania High Madrasah and Others
    3
  2. The aforementioned Writ Petition No.20650(W) of 2013 was filed
    by the Managing Committee of Contai Rahmania High Madrasah
    challenging validity of Sections 8, 10, 11 and 12 of the Commission Act
    submitting, inter alia, that by virtue of the provisions of the Commission
    Act, the process of appointment of teachers in an aided Madrasah, which
    was recognised as a minority institution, was taken over and entrusted to
    the Commission appointed under Section 4 of the Commission Act; and
    that the Commission was empowered under the provisions of the
    Commission Act to make recommendations which would be binding on the
    Managing Committee of an aided Madrasah. It was submitted that the
    provisions of the Commission Act transgressed upon the rights of a
    minority institution of choosing its own teachers. The submission was
    accepted by the Single Judge of the High Court and the Writ Petition was
    allowed. Aggrieved, some of the candidates, including the Appellant
    herein, whose names were recommended by the Commission to be
    appointed as teachers in aided Madrasahs, filed appeal being A.S.T. No.
    192 of 2014 before the Division Bench of the High Court. C.A.N. No.
    3078 of 2014 was filed by the Secretary, West Bengal Madrasah Service
    Commission while M.A.T. No. 473 of 2014 was filed by State of West
    Bengal challenging the very same decision of the Single Judge. All the
    Civil Appeal No.5808 of 2017
    SK. MD. Rafique vs.
    Managing Committee, contai Rahamania High Madrasah and Others
    4
    appeals were dismissed by the Division Bench while affirming the view
    taken by the Single Judge.
  3. The decisions of the Single Judge and the Division Bench have
    given rise to the present set of Appeals wherein number of Intervention
    Applications have also been filed.
    STATUTORY PROVISIONS
  4. The West Bengal Board of Madrasah Education Act, 1994 was
    enacted to establish a Board of Madrasah Education in West Bengal and to
    provide for matters connected therewith or incidental thereto. The
    expressions “Madrasah”, “Madrasah Education”, “Managing Committee”
    and “Senior Madrasah” are defined in Sections 2(f), (g), (h) and (p) as
    under:-
    “2(f) “Madrasah” means an educational
    institution imparting instruction in Madrasah
    Education;
    (g) “Madrasah Education” means a system of
    education in which instruction is imparted in Arabic,
    Islamic history and culture, and theology, and
    includes-
    (i) High Madrasah Education System which,
    in addition to covering Arabic language and
    Islamic history and culture, imparts general
    education including primary education with a
    view to qualifying students for admission to a
    certificate, diploma or degree course instituted by
    Civil Appeal No.5808 of 2017
    SK. MD. Rafique vs.
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    5
    a University or by a Government or by any
    statutory authority, and includes such other type
    of education as the State Government may, in
    consultation with the Board, specify;
    (ii) Senior Madrasah Education System which
    imparts instruction in Arabic language and
    literature, Islamic theology, history, culture and
    jurisprudence and some general education with a
    view to qualifying students for a certificate,
    diploma or degree of the Board or a University or
    a Government or any other statutory authority;
    (h) “Managing Committee” used in reference to an
    Institution means the person or the body of persons
    for the time being entrusted with the management of
    the affairs of the Institution;
    … … …
    (p) “Senior Madrasah” means a Madrasah where the
    Senior Madrasah Education System is followed.”
    4.1 Chapter 2 of the Act inter alia, deals with establishment and
    composition of the Board while Section 18 deals with constitution of
    various Committees. Section 19 then deals with functions of the
    Committees as under:-
    “19.Functions of Committee.-(1) It shall be the duty
    of the Recognition Committee to advise the Board on
    all matters concerning recognition of Institutions.
    (2) It shall be the duty of the Syllabus Committee to
    advise the Board on all matters relating to the
    syllabus, courses of studies to be followed and the
    books to be studied in recognised Institutions and for
    examinations instituted by the Board.
    (3) It shall be the duty of the Examinations
    Committee to advise the Board on –
    Civil Appeal No.5808 of 2017
    SK. MD. Rafique vs.
    Managing Committee, contai Rahamania High Madrasah and Others
    6
    (a) matters relating to selection of paper
    setters, moderators, tabulators, examiners,
    invigilators, supervisors and others to be
    employed in connection with examinations
    instituted by the Board and the rates of
    remuneration to be paid to them;
    (b) the fees to be paid by candidates for such
    examinations; and
    (c) any other matter relating to such
    examinations which may be referred to it by the
    Board for advice
    (4) It shall be the duty of the Finance Committee to
    prepare the budget of the Board and to advise the
    Board on such matters relating to finance as may be
    referred to it by the Board for advice.
    (5) (a) All appeals by the members of the teaching and
    non-teaching staff against the decisions of the
    Managing Committees of the recognised Institutions
    shall be heard and decided by the Appeal Committee.
    (b) The decisions of the Appeal Committee
    under clause (a) shall be final and no suit or
    proceeding shall lie in any Civil or Criminal
    Court in respect of any matter which has been or
    may be referred to, or has been decided by, the
    Appeal Committee.
    (c) Any other Committee or Committees that
    may be constituted under clause (f) of sub-section
    (1) of section 18 shall have such powers or
    functions as the Board may confer or impose on
    such Committee or Committees.”
    4.2 Section 20 deals with functions of the Board as under:-
  5. Functions of the Board. – (1) It shall be the duty
    of the Board to advise the State Government on all
    matters relating to Madrasah Education referred to it
    by the State Government.
    Civil Appeal No.5808 of 2017
    SK. MD. Rafique vs.
    Managing Committee, contai Rahamania High Madrasah and Others
    7
    (2) Subject to any general or special orders of the
    State government, the provisions of this Act and any
    rules made thereunder, the Board shall have generally
    the power to direct, supervise and control Madrasah
    Education and in particular, the power-
    (a) to grant or refuse recognition to Madrasah and
    to withdraw such recognition if it thinks fit and
    necessary, after considering the recommendations
    of the Recognition Committee in accordance with
    such regulations as might be made in this behalf :
    (b) to maintain a register of recognized
    Madrasahs;
    (c) to provide by regulations, after considering
    the recommendations of the Syllabus Committee,
    if any, the curriculum, syllabus, courses or studies
    to be followed and books to be studied in
    recognized Madrasahs for examinations instituted
    by the Board;
    (d) to undertake, if necessary, with the approval of
    the State Government, the preparation,
    publication or sale of text-books and other books
    for use in recognised Madrasahs;
    (e) to maintain and publish list of holidays for
    recognised Madrasahs, list of books approved for
    use in recognized Madrasahs and for
    examinations instituted by the Board and to
    remove the name of any such book from any such
    list;
    (ee) to maintain, print and issue from time to
    time, the Registration Certificate, Admit Card,
    Marksheet, Migration Certificate, Certificates and
    such other papers as it may thinks fit;
    (f) To institute various Madrasah Examinations
    and such other similar examinations as it may
    think fit and to make regulations in this behalf;
    Civil Appeal No.5808 of 2017
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    8
    (g) to set down the conditions to be fulfilled by
    the candidates presenting themselves for
    examinations instituted by the Board;
    (h) to provide by regulations after considering the
    recommendations of the Examinations
    Committee, if any, the rates of remuneration’ to
    be paid to the paper-setters, moderators,
    tabulators, examiners. invigilators, supervisors
    and others employed in connection with the
    examinations instituted by the Board, and, the
    fees to be paid by candidates for such
    examinations with the approval of the State
    Government;
    (i) to grant or refuse permission to candidates to
    appear at examinations instituted by the Board
    and to withdraw such permission if it thinks fit in
    accordance with such regulations as may be made
    in this behalf;
    (j) to provide by regulations the procedure for
    filling and disposal of appeals by the members of
    the teaching and non-teaching staff against the
    decisions of the Managing Committees of
    recognized Madrasahs;
    (k) to administer the West Bengal Madrasah
    Education Board Fund;
    (l) to institute and administer such Provident
    Funds as may be prescribed;
    (m) to make regulations relating to the conduct,
    discipline and appeal in respect of the members of
    the staff ;
    (mm) to make regulations relating to
    conduct and discipline in respect of
    teachers and non-teaching staff of the
    recognised Institutions under the Board;
    (mmm) to make regulations determining
    Civil Appeal No.5808 of 2017
    SK. MD. Rafique vs.
    Managing Committee, contai Rahamania High Madrasah and Others
    9
    the qualification for, and the method of,
    recruitment of teachers in class I to class
    IV of the Senior Madrasah;
    (n) to perform such other functions as may be
    assigned to it by the State Government.
    (3) Subject to the provisions of sub-section (2). the
    Board shall have power to make regulations in respect
    of any matter for the proper exercise of its powers
    under this Act.
    Provided that any decision or action taken or any
    order made by the Board in the discharge of its
    functions under this Act shall not be invalid merely on
    the ground that no regulation has been made under
    this sub-section.
    (4) No regulation shall be valid unless it is approved
    by the State Government and the State Government
    may, in accordance with such approval, make such
    additions, alterations or modifications therein as it
    thinks fit:
    Provided that before making any such addition,
    alteration or modification, the State Government shall
    give the Board an opportunity to express its views
    thereon within such period, not exceeding one month,
    as may be specified by the State Government.
    (5) All regulations approved by the State Government
    shall be published in the Official Gazette.”
  6. The West Bengal Minorities’ Commission Act, 1996 was enacted
    to constitute a Minorities Commission to study and suggest additional
    social, economic, educational and cultural requirements of religious and
    linguistic minorities of West Bengal with a view to equipping them to
    preserve secular traditions of West Bengal and to promote national
    Civil Appeal No.5808 of 2017
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    Managing Committee, contai Rahamania High Madrasah and Others
    10
    integration. Section 3 deals with Constitution of the West Bengal
    Minorities’ Commission and sub Sections (1) and (3) of Section 4 are as
    under:-
    “4. Functions of the Commission.– (1) The
    Commission shall perform the following functions:-
    (a) evaluate the progress of the development of
    minorities of West Bengal and review implementation
    of the policies and. programme of the State
    Government;
    (b) monitor the working of the safeguards provided in
    the Constitution and in laws enacted by Parliament or
    the State Legislature;
    (c) make recommendations for the effective
    enforcement and implementation of safeguards for the
    protection of the interests of minorities provided by
    the Central Government or the State Government;
    (d) look into specific complaints regarding
    deprivation of social, economic, educational, cultural
    and linguistic rights and safeguards of the minorities
    and take up such matters with the-appropriate
    authorities;
    (e) recommend to the State Government to accord
    minority status to religious, linguistic and ethnic
    groups, provided such groups do not enjoy any
    constitutional or statutory benefits or status;
    (f) cause studies to be undertaken into problems
    arising out of any discrimination against minorities
    and recommend measures for their removal;
    (g) conduct studies, research and analysis on the
    issues relating to socio-economic and educational
    development of minorities;
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    (h) make annual report to the State Government on
    any matter pertaining to any of the functions of the
    Commission under this section.
    … …
    (3) The advice of the Commission and, especially, the
    findings of the Commission concerning deprivation of
    any right of the minority or any infringement of any
    well-being of the minority by omission or
    commission, shall ordinarily be binding upon the
    State Government.”
  7. The West Bengal School Service Commission Act, 1997 (“1997
    Act”, for short) was enacted to provide for the constitution of Regional
    School Service Commissions and a Central School Service Commission in
    the State and for matters connected therewith or incidental thereto. The
    definitions of “School” and “Teacher” in Section 2(n) and (p) are as
    under:-
    “(n) “school” means a recognized non-Government
    aided –
    (i) secondary school, or educational institution, or
    part or department of such school or institution,
    imparting instruction in a secondary education or
    (ii) higher Secondary school, or educational
    institution (other than a college), or part or department
    of such school or institution, imparting instruction in
    higher secondary education, or
    and includes a sponsored school.
    Explanation I –“Recognized” with its grammatical
    variations, used with reference to a school, shall mean

    Civil Appeal No.5808 of 2017
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    Managing Committee, contai Rahamania High Madrasah and Others
    12
    (a) recognized or deemed to have been recognized
    under the West Bengal Board of Secondary Education
    Act, 1963 or
    (b) recognized under the West Bengal Council of
    Higher Secondary Education Act, 1975,
    Explanation II – “Aided” with its grammatical
    variations, used with reference to a school, shall mean
    aided by the State Government in the shape of
    financial assistance towards the basic pay of the
    teachers of that school.
    Explanation III – “Basic pay” shall mean the monthly
    pay of a teacher of a school which corresponds to a
    stage in the time-scale of pay of the post, held by the
    teacher in that school.
    Explanation IV – “Secondary Education” shall have
    the same meaning as in clause (1) of section 2 of the
    West Bengal Board of Secondary Education Act,
    1963.
    Explanation V – “Higher Secondary Education” shall
    have the same meaning as in clause (d) of section 2 of
    the West Bengal Council of Higher Secondary
    Education Act, 1975.
    Explanation VI – “Sponsored School” shall mean a
    school declared as a sponsored school by the State
    Government by notification.
    (p) “Teacher” means an Assistant Teacher or any other
    person, holding a teaching post of a school and
    recognized as such by the Board or the Council or the
    Board of Madrasah, as the case may be, and includes
    the Headmaster or the Headmistress 2
    (but shall not
    include the Assistant Headmaster or the Assistant
    Headmistress or the Teacher holding a post against
    short-term vacancy caused by deputation, leave or
    lien).”
    2 The words within brackets were inserted by the West Bengal School Service
    Commission (Second Amendment) Act, 2001.
    Civil Appeal No.5808 of 2017
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    13
    6.1 Section 3 deals with constitution of the Commission and Regional
    Commissions. Section 4(4) dealing with composition of Chairman is as
    under:
    “(4) (a) The office of the Chairman shall be
    whole-time; the other members shall be honorary.
    (b) The Chairman and other members shall hold
    office for a term of four years 3
    [but in the case of
    ex officio member such term shall be one year]:
    (c) Subject to the foregoing provisions of this subsection, the other terms and conditions of service
    of the Chairman and other members shall be such
    as may be prescribed.”
    6.2 Sections 7 and 9 are as under:-
    “7. Functions of Regional Commission. –
    Notwithstanding anything contained in any other law
    for the time being in force or in any contract, custom
    or usage to the contrary, it shall be the duty of the
    Regional Commission to recommend persons for
    appointment to the posts of Teachers or non-teaching
    staff in school within its territorial jurisdiction under
    he supervision and control of the Central Commission
    on the basis of the result of the State Level Selection
    Test conducted by the Central Commission.
  8. Effect of recommendation of Commission – (1)
    Notwithstanding anything contained in any other law
    for the time being in force or in any contract, custom
    or usage to the contrary, appointments to the posts of
    Teachers and non-teaching staff in school shall be
    made by the Board or the ad-hoc committee or the
    administrator of the Board on the recommendation of
    the Regional Commission having jurisdiction.
    (2) Any appointment of a Teacher or a non-teaching
    staff made on or after the commencement of this Act
    3 Words ins. By W.B. Act 5 of 2001.
    Civil Appeal No.5808 of 2017
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    Managing Committee, contai Rahamania High Madrasah and Others
    14
    in contravention of the provisions of this Act shall be
    invalid and shall have no effect and the Teacher or the
    non-teaching staff so appointed shall not be a Teacher
    or a non-teaching staff within the meaning of clause
    (p) or clause (ia) of section 2, as the case may be.”
    6.3 Sub-sections (a) and (b) of Section 15, however, stipulated as
    under:
    “15. Act not to apply in relation to certain
    schools:-
    The provisions of this Act shall not apply to-
    (a) a school established and administered by a
    minority, whether based on religion or language,
    or
    (b) a school under any trust, established and
    administered by a minority, whether based on
    religion or language, or … … … ”
  9. By notification issued on 12.10.2007, Government of West Bengal,
    Minorities Development and Welfare and Madrasah Education Department
    declared and granted to all recognised and aided Madrasahs under the
    control of the Government the status of “Minority Educational
    Institutions”. The text of the Notification was as under:-
    “Government of West Bengal
    Minorities Development & Welfare & Madrasah
    Education Department
    Writers’ Buildings, Kolkata – 700001
    No.1465-MD/07 Dated: 12.10.07
    Civil Appeal No.5808 of 2017
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    NOTIFICATION
    WHEREAS Muslim recognised as Minority
    Community in the State of West Bengal and
    minorities have the right under Article 30 of the
    Constitution of India to establish and administer
    educational institution of their choice;
    AND WHEREAS the State Government is
    competent to declare a particular institution as a
    minority institution and till such time the government
    issue an order declaring that it is a minority institution
    they can not operate as Minority Institutions;
    AND WHEREAS the Supreme Court has held that
    the Government are the Competent Authority to verify
    and determine the minority status of an Educational
    Institution for the purpose of Article 30(1) of the
    Constitution of India;
    AND WEHREAS the Govt. recognised Madrasahs
    including Hooghly Govt. Madrasah and the Calcutta
    Madrasah were originally established by the Muslim
    minority and continuously administered by the
    members of that minority to subserve and promote the
    interests of the minority community concerned;
    AND WEHREAS the abovesaid Madrasahs were, in
    course of times, recognised alongwith liabilities by
    the Government for promoting educational interests
    of the Muslim minority and on verification it has been
    ascertained that more than 90% students are pursuing
    their studies in these institutions and these Madrasahs
    are functioning under supervision of the W.B.
    Madrasah Board constituted with member
    representatives of the Minority Community
    concerned.
    AND WHEREAS the State Govt. having been
    satisfied about the above antecedents of all the
    recognised Madrasahs which are aided and guided by
    the Government prescribed guidelines relating to
    admissions, selections etc. and about their continuing
    Civil Appeal No.5808 of 2017
    SK. MD. Rafique vs.
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    16
    and sustained functioning for promoting the interests
    of the concerned minority have become satisfied that
    these institutions are fit to enjoy minority status of an
    Educational Institution for the purpose of Article
    30(1) of the Constitution of India.
    AND WHEREAS the Govt. in the State of West
    Bengal have also considered expedients to declare
    these recognized and aided Madrasahs and those
    which will be so recognised and aided as such in
    future as Minority Educational Institution.
    NOW, THEREFORE, in accordance with the above
    considerations and in pursuance of the Article 30 of
    the Constitution of India the Government is pleased,
    hereby, to declare that all the recognised and aided
    Madrasahs under control of this Government and
    those Madrasahs which will be recognised on similar
    lines in future, as Minority Educational Institutions.
    These institutions will also be allowed, in
    consequence to have the following effects as agreed
    upon by the State Government.
    i) They will continue to get financial assistance
    as before from the State Government
    ii) Reservation policy for employment etc. shall
    not apply in case of appointment of teachers
    and non-teaching staff in these Madrasahs.
    iii) Selection of teachers may continue to be done
    by West Bengal School Service Commission
    through separate panel.
    By order of the Governor
    (Pawan Agawal)
    Secretary to the Govt. of West Bengal”
  10. Consequent to the aforesaid notification dated 12.10.2007
    conferring status of “Minority Educational Institutions” on all recognised
    and Government aided Madrasahs, another notification was issued on
    Civil Appeal No.5808 of 2017
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    17
    28.12.2007 by the Government of West Bengal, Minorities’ Development
    & Welfare and Madrasah Education Department stating that after being
    conferred such status “the matter of selection of teachers for recognised
    and aided Madrasahs of this State has gone out of the purview of the
    existing West Bengal School Service Commission Act, 1997”.
  11. The Commission Act was thereafter enacted to provide for the
    constitution of Madrasah Service Commission in the State and for matters
    connected therewith or incidental thereto. Statement of Objects and
    Reasons in relation to the Commission Act was as under:-
    “With the declaration of recognised madrasahs as
    minority educational institutions by the State
    Government recently, the West Bengal School Service
    Commission cannot recommend panel of teachers for
    recognised madrasahs as per provisions of Section 15
    of the West Bengal School Service Commission Act,
    1997 (West Bengal Act IV of 1997). Therefore, a
    need has arisen for setting up of a separate body for
    recommending panel of teachers for appointment in
    Recognised Non-Government Aided Madrasahs. In
    view of this, it has been decided to set up the West
    Begal Madrasah Service Commission.
  12. The proposed Commission would ensure the
    preparation of panel of teachers by recruitment in
    free, fair and transparent manner with a quality
    education for madrasahs.
  13. The said Commission would also take into
    consideration the special requirement of teachers in
    the madrasahs system in the State.
    Civil Appeal No.5808 of 2017
    SK. MD. Rafique vs.
    Managing Committee, contai Rahamania High Madrasah and Others
    18
  14. The Bill has been framed with the above objects
    in view.”
    9.1 The expressions “Madrasah”, “Teacher” and “vacant post” are
    defined in Section 2(k), (s) and (t) respectively under the Commission Act
    as under:-
    “(k) “Madrasah” means a Recognised NonGovernment Aided Senior Madrasah, Junior High
    Madrasah, High Madrasah or Higher Secondary
    Madrasah imparting instruction in-
    (i) High Madrasah Education System within the
    meaning of sub-clause (i)
    (ii) Senior Madrasah Education System within the
    meaning of sub-clause(ii), of clause (g) of
    Section 2 of the West Bengal Board of
    Madrasah Education Act, 1994; or
    (iii) Higher Secondary Education;
    Explanation1. – “recognised” with its
    grammatical variations, used with reference to
    a Madrasah, shall mean-
    (a) Recognized or deemed to have been
    reconized under the West Bengal Board of
    Madrasah Education Act, 1994, or
    (b) Recognized under the West Bengal
    Council of Higher Secondary Education Act,
    1975
    Explanation II. – “Aided” with its grammatical
    variations, used with reference to a Madrasah, shall
    mean aided by the State Government in the shape of
    financial assistance towards basic pay of the teachers
    of Madrasah.
    Explanation III. – “basic pay” shall mean the monthly
    pay of a teacher of a Madrasah which corresponds to
    Civil Appeal No.5808 of 2017
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    a stage in the timescale of pay of the post held by the
    teacher in that madrasah,
    Explanation IV.- “Madrasah Education” shall have the
    same meaning as in clause (g) of section 2 of the West
    Bengal Board of Madrasah Education Act, 1994;
    Explanation V.- “Higher Secondary Education” shall
    have the same meaning as in clause (d) of section 2 of
    the West Bengal Council of Higher Secondary
    Education Act, 1975.
    (s) “Teacher” means an Assistant Teacher, or any
    other person holding a teaching post of a madrasah
    recognised as such by the Board or the Council, as the
    case may be, and shall include the headmaster, the
    Headmistress or the Superintendent.
    (t) “vacant post” means a vacancy, caused by–
    (i) creation of new post by the State Government,
    or
    (ii) retirement, death, resignation, removal or
    dismissal of any person from the post of teacher,
    the post having been sanctioned by the
    Competent authority or the State Government,
    but shall not include a short-term vacancy due to
    deputation, leave or lien and that of a part time post or
    the post of Assistant Headmaster or Assistant
    Headmistress.”
    9.2 Section 4 deals with composition of the Commission and is to the
    following effect:-
    “4. (i) The Commission shall consist of one Chairman
    and four members.
    (ii) The Chairman shall be an eminent educationist
    having profound knowledge in Islamic Culture and
    well-versed in education and teaching experience,
    either as a teacher of a university, or as a Principal of
    Civil Appeal No.5808 of 2017
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    a college, for a period of not less than twelve years, or
    as a teacher, other than Principal of a college, for a
    period of not less than fifteen years, or an officer of
    the State Government not below the rank of Joint
    Secretary.
    (iii) Of the four members under sub-section (1), one
    shall be a person who, not being an educationist,
    occupies or has occupied, in the opinion of the State
    Government, a position of eminence in public life or
    in Legal or Administrative service, one shall be an
    eminent educationist having profound knowledge in
    Islamic Theology and Culture, and the others shall
    have teaching experience, either as a teacher of a
    university, or as a Principal of a college, for a period
    of not less than ten years, or as a teacher, other than
    Principal of a college, or as a Headmaster or
    Headmistress or Superintendent of a Madrasah, for a
    period of not less than fifteen years.”
    9.3 Sections 8, 10, 11, 12, 13 and 18 of the Commission Act are as
    under:-
    “8. Notwithstanding anything contained in any other
    law for the time being in force or in any contract,
    custom or usage to the contrary, it shall be the duty of
    the Commission to select and recommend persons to
    be appointed to the vacant posts of teachers in
    accordance with the provisions of this Act and the
    rules made thereunder.
  15. Notwithstanding anything contained in any other
    law for the time being in force or any contract, custom
    or usage to the contrary, the Managing Committee,
    the ad hoc Committee or the Administrator, as the
    case may be, shall be bound to appoint the candidate
    recommended by the Commission to the post of
    teacher in the Madrasah concerned as per vacancy
    report.
    Provided that in the absence of the Managing
    Committee, ad hoc Committee or the Administrator,
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    the Head Master or the Headmistress or the TeacherIn-charge is empowered to issue appointment letter to
    the candidate recommended by the Commission.
    Such matter should be ratified at the next available
    meeting of the Managing Committee, ad hoc
    Committee or by the Administrator, as the case may
    be:
    Provided further that the Managing Committee, ad
    hoc Committee, the Administrator or the Headmaster
    or the Headmistress or the Teacher-in-charge as the
    case may be, shall, if any error is detected in the
    recommendation, immediately bring it to the notice of
    the Commission for removal of such error.
  16. Any appointment of a teacher made on or after
    the commencement of this Act in contravention of the
    provision of this Act shall be invalid and shall have no
    effect and teacher so appointed shall not be a teacher
    within the meaning of clause (s) of Section 2.
  17. (i) If the Managing Committee, the ad hoc
    Committee or the Administrator of a Madrasah, as the
    case may be, refuses, fails or delays to issue
    appointment letter to the candidate recommended by
    the Commission within the period stipulated in the
    letter of recommendation by the Commission, without
    any reasonable ground, the State Government may
    direct the Board to dissolve the Managing Committee
    or the ad hoc Committee, or discharge the
    Administrator, as the case may be, or stop all financial
    assistance to such Madrasah recording reasons thereof
    and may also issue direction upon the Board or
    Council, as the case be, to withdraw recognition or
    affiliation of such Madrasah.
    (ii) In case of failure to issue appointment letter to
    the candidate recommended by the Commission is on
    the part of the Superintendent, the Headmaster, the
    Headmistress or the Teacher-in-charge of a Madrasah,
    he shall be subject to such disciplinary proceedings as
    may be prescribed.
    Civil Appeal No.5808 of 2017
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  18. Notwithstanding anything contained elsewhere in
    this Act, the terms and conditions of service of
    teachers in the employment of a Madrasah
    immediately before the commencement of this Act,
    shall not be varied to the disadvantage of such
    teachers in so far as such terms and conditions relate
    to the appointment of such teachers to the posts held
    by them immediately before the commencement of
    this Act.
    … … …
  19. (1) The State Government may, by notification,
    make rules for carrying out the purposes of this Act.
    (2) In particular, and without prejudice to the
    generality of the foregoing power, such rules may
    provide for all or any of the following matters:-
    (a) the terms and conditions of service of the
    Chairman and other members under section 5;
    (b) the manner in which an inquiry is to be made
    for removal of the Chairman or any member
    under section 6;
    (c) the terms and conditions of service of the
    Secretary under section 7;
    (d) the manner and scope of selection of persons
    for appointment to the posts of teachers under
    section 9;
    (e) any other matter which may be, or is required
    to be, prescribed.
    (3) Every rule made by the State Government
    under this Act shall be laid, as soon as may be
    after it is made, before the State Legislature.”
  20. The West Bengal Madrasah Service Commission (Amendment)
    Act, 2010 made certain amendments in the Commission Act. Section 2 of
    the Amendment Act is to the following effect:-
    Civil Appeal No.5808 of 2017
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    “2. In section 8 of the West Bengal Madrasah Service
    Commission Act, 2008 (hereinafter referred to as the
    principal Act), after the words “or the Non-teaching
    staff’, the words “and also to recommend the transfer
    including mutual transfer of the teachers of the Nonteaching staff’ shall be inserted.”
  21. In exercise of power conferred by the provisions of the
    Commission Act, the West Bengal Madrasah Service Commission
    Recruitment (selection and recommendation of persons for appointment
    and transfer to the posts of teaching and non-teaching staff) Rules, 2010
    (“2010 Rules”, for short) were promulgated. Chapter-III of 2010 Rules
    deals with subject “Scope, Method and Manner of Selection” and Rule 8 is
    to the following effect:-
    “8. Manner of selection –
    (1) Selection to any post shall be made on the basis of
    results of the State/Region/Area Level Selection
    Test, as may be decided by the Commission,
    which may comprise any, some or all of the
    following (as the case may be) –
    a) Written Examination
    b) Evaluation of Qualification
    c) Personality Test
    d) Aptitude Test
    of the candidates, as the case may be, in the
    manner as specified in Schedule III
    (2) The Commission may, in its discretion, fix the
    minimum qualifying marks to be scored/obtained
    by the candidates in written examination or in
    aggregate or in both and relax the qualifying
    marks on reasonable ground(s) to be recorded in
    writing ….”
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    RIVAL SUBMISSIONS:
  22. In accordance with the provisions of the Commission Act and 2010
    Rules, the Madrasah Service Commission kept making recommendations
    against vacant posts which had arisen from time to time. Various
    candidates were appointed as teachers. However, a challenge was raised
    by the Respondent No.1 by filing Writ Petition No.20650(W) of 2013 as
    stated hereinabove. It was submitted that in terms of Section 10 of the
    Commission Act, the Managing Committee or the Administrator would be
    bound to appoint the candidates recommended by the Madrasah Service
    Commission and the consequence of not following such recommendation
    would visit penalty as provided for in Section 12; and that if the Writ
    Petitioner, as a minority institution, was entitled to administer institution of
    its choice, it would have a corresponding right to select teachers on its own
    and that any deprivation of such right would be violative of the Right
    conferred by Article 30 of the Constitution.
    On the other hand, it was submitted on behalf of the State that
    under the provisions of the Commission Act, the Commission would
    merely select and recommend teachers and non-teaching staff of
    Civil Appeal No.5808 of 2017
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    Madrasahs but the appointment would be given by the concerned
    institution and the overall control of the Managing Committees of the
    concerned institutes in respect of such staff was not taken away by the
    Respondents and the day-to-day administration of the Madrasahs was not
    interfered with. It was further submitted that the number of Madrasahs in
    the State was 614 and the Madrashs imparted education in accordance
    with the syllabus prescribed by the competent authority in respect of all
    subjects, except Arabic and Urdu; that most of the Madrasahs were
    located in the remote areas of the State and the student population taking
    education in these Madrasahs was about 5,00,000. The submission was
    that the State was rendering necessary aid and help to the Managing
    Committees in finding good quality teachers as per qualifications
    prescribed by the National Council for Teacher Education for imparting
    quality education to the students and the whole purpose behind the
    legislation was to provide the students with good quality teaching. The
    submission was paraphrased by the Single Judge as under:-
    “For the respondents there are primarily two grounds
    justifying the relevant provisions of such a legislation.
    First, the concerned Madrasah is fully aided for its
    financial requirements which is fulfilled by the State
    Government. Therefore, it is bound to follow
    recruitment procedures for fair and comparative
    selection of teachers. Secondly, in terms of the
    provisions of the impugned Act the Commission
    merely selects and recommends a teacher but overall
    control of such staff lies with the Managing
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    Committee where the government does not interfere.
    Thus the role of the Commission is that of a mere
    recommendatory body appointed by the government.”
    DECISIONS OF THE HIGH COURT IN THE PRESENT APPEALS
  23. Relying on the decisions of this Court in State of Kerala, etc vs.
    Very Rev. Mother Provincial, etc4
    and Ahmedabad St. Xavier’s College
    Society and Another vs. State of Gujarat and Another5
    the Single Judge
    observed:-
    “The Supreme Court has also held that the right to
    administer an institution is primarily to consist of four
    principal aspects. First, the right to chose its
    managing or governing body. It is said that the
    founders of the minority institution have faith and
    confidence in their committee or body consisting of
    persons selected by them. Secondly, the right to
    choose its teachers having compatibility with their
    ideals, aims and aspirations. Third is the right not to
    be compelled to refuse admission to the students.
    Fourthly, the right to use its properties and assets for
    the benefit of its institution. This judgment thus
    unambiguously recognizes that the right to select its
    teachers is a part of the right to administer an
    institution which Article 30 has conferred on it. The
    reasons for that has also been very clearly explained
    in the judgment … … …”
    4 (1970) 2 SCC 417
    5 (1974) 1 SCC 717
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    13.1 The Single Judge relied upon the decisions of this Court in
    Secretary, Malankara Syrian Catholic vs. T. Jose and others6
    and
    Sindhi Education Society and another vs. Chief Secretary,
    Government of NCT of Delhi and others7
    and posed following question:-
    “That regulatory measures are permissible to a limited
    extent has been judicially accepted. But does the
    provision impugned in this legislation qualify for
    being passed as a regulatory measure? In view of the
    well defined parameters of the regulatory measures
    can it be said that taking away the right of selection of
    teachers from the jurisdiction of the petitioners is also
    an act to regulate the affairs of the Madrasah and not
    to interfere with its administration? Answers to these
    queries are essentially related to a resolution of the
    present dispute.”
    13.2 Further, after referring to the decision in Ahmedabad St. Xavier’s
    College5
    the Single Judge observed:-
    “… …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 interest of
    efficiency of instructions, discipline, health,
    sanitation, morality, public order and the like may
    undoubtedly be imposed. It has been specifically laid
    down hat such regulations are not restrictions on the
    subsistence of the right which is guaranteed. On the
    other hand, they secure the proper functioning of the
    institution in matters of education. The minority
    institutions cannot be allowed to fall below the
    standards of excellence expected of an educational
    6 (2007) 1 SCC 386
    7 (2010) 8 SCC 49
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    institution or under the guise of exclusive right of
    management to decline to follow the general patern.”
    13.3. The Single Judge then concluded:-
    “Thus, I find that the impugned provisions of the Act
    tend to take away the protected right conferred upon
    the minorities to administer institutions according to
    their choice. The right of the Commission to select
    and recommend teachers for these institutions in a
    very major way interferes with the right to administer
    those institutions rendering a constitutional mandate
    virtually ineffective. The perception of a prevailing
    social reality cannot circuitously circumvent a
    constitutional protection.
    The impugned provisions of the Act are thus not only
    not in consonance with the protection guaranteed by
    the Constitution but are definitely in derogation
    thereof. Section 8 of the Act cannot be read in
    isolation. Read with the subsequent provisions there
    is an element of compulsion in the effect of the
    recommendation made by the Commission which is
    really against the freedom guaranteed in Article 30 of
    the Constitution of India. Section 8 of the said Act is
    hereby declared ultra vires the Constitution. In view
    of what has been discussed before the prayer of the
    petitioner is moulded and Sections 10, 11 and 12 of
    the act are also declared ultra vires the Constitution.”
  24. The challenge raised by the Commission, by the State as well as by the
    teachers who were recommended under the provisions of the Commission Act
    was rejected by the Division Bench of the High Court, while accepting the view
    taken by the Single Judge. The Division Bench observed:-
    “The present enactment is sought to be defended by
    the State on the ground of funding the institutions and
    opinion that it is only recommendatory process and
    not interference with the overall administration of the
    Civil Appeal No.5808 of 2017
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    institutions. We are afraid whatever by the nature of
    recommendations it would definitely touch upon the
    administrative authority or control to be exercised by
    the minority institutions while administering their
    institutions in every aspect and respect since
    institutions would not have the option to choose
    individuals beyond the recommendations so made.
    Hence, the scheme of the Act instead of being
    regulatory, prohibits the freedom of minority
    institutions in selecting its own personnel. It is one
    thing to regulate the process of appointment by
    providing guidelines etc. it is however entirely
    different to clog the right of choice of the minority
    institution by prohibiting them to choose any
    candidate otherwise eligible except from those
    recommended by the Commission. Since
    appointment of teachers etc. is very relevant so far as
    the quality of education is concerned, if there are any
    mala fides statutory infirmities brought to the notice
    of the State Government as it is completely funded by
    the State Government, it is open to the State
    Government to withdraw financial support if mala
    fides/illegalities are found in such process of selection
    of teaching staff etc. Such right is always with the
    State Government irrespective of minority institutions
    or other institutions.
    So far as the present enactment is concerned, we
    cannot deviate from the opinion of the learned Single
    Judge that such act is nothing but violation of the
    Fundamental Rights guaranteed by the Constitution in
    terms of Article 29 and 30 of the Constitution of
    India. Therefore, we decline to interfere with the
    opinion expressed by the learned Single Judge and
    accordingly appeals deserve to be dismissed.
    We have also heard the submissions made by the
    learned Counsel who are appearing for some of the
    teachers who are already appointed and are in service
    for the last five years or waiting for the appointment
    of teachers as empanelled in the list.
    Since the Act of 2008, according to us is nothing
    but violation of the Fundamental Rights guaranteed
    Civil Appeal No.5808 of 2017
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    by the Constitution to the minority institutions, it is
    exclusively left to the concerned Madrasahs either to
    accept contention of such teachers, who are already in
    service and permit them to continue in service and/or
    to provide appointment to the candidates who are
    empanelled by the Commission awaiting such
    appointment.
    With these observations, the appeals are disposed
    of along with the connection applications.”
  25. We heard Mr. Mohan Parasaran, Mr. Kalyan Banerjee, Mr. Huzefa
    Ahmadi, Mr. Jayant Bhushan, Mr. Jaideep Gupta, Mr. Salman Khursheed
    and Mr. P.S. Patwalia, learned Senior Advocates appearing for various
    parties and other learned Advocates who took us through the relevant
    decisions holding the field and also invited our attention to various
    statutory provisions. Since the submissions, to a certain extent, were over
    lapping, we are not dealing with the submissions advanced by the learned
    Counsel individually.
  26. The basic issues which arise for consideration are whether the
    provisions, namely, Sections 8, 10, 11 and 12 of the Commission Act are
    ultra vires as held by the High Court and whether these provisions
    transgress the right of minority institutions guaranteed under the
    Constitution of India. Before we deal with the basic issues raised in these
    appeals, the various decisions touching upon the extent of rights of
    minority institutions as guaranteed by the Constitution, need to be adverted
    Civil Appeal No.5808 of 2017
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    to. Since the decision of this Court in TMA Pai Foundation and others
    vs. State of Karnataka and others8
    was rendered by a Bench of Eleven
    Judges, we have divided the discussion under three headings covering
    relevant decisions:-
    A) Decisions upto TMA Pai Foundation;
    B) Decision in TMA Pai Foundation; and
    C) Decisions after TMA Pai Foundation.
    A) Decisions upto TMA Pai Foundation
  27. In Re: The Kerala Education Bill, 19579
    , a seven Judge Bench of
    this Court dealt with a reference made by the President of India under
    Article 143(1) of the Constitution in respect of the Kerala Education Bill,
  28. Some of the salient features of the Bill were paraphrased in the
    majority opinion delivered by S.R. Das, C.J. and insofar as the present case
    is concerned, the relevant discussion was:-
    “Clause 9 makes it obligatory on the Government to
    pay the salary of all teachers in aided schools direct or
    through the headmaster of the school and also to pay
    the salary of the non-teaching staff of the aided
    schools. It gives power to the Government to
    prescribe the number of persons to be appointed in the
    non-teaching establishment of aided schools, their
    salaries, qualifications and other conditions of service.
    The Government is authorised, under sub-clause (3),
    to pay to the manager a maintenance grant at such
    8 (2002) 8 SCC 481
    9 (1959) SCR 995
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    rates as may be prescribed and under sub-clause (4) to
    make grants-in-aid for the purchase, improvement and
    repairs of any land, building or equipment of an aided
    school. Clause 10 requires Government to prescribe
    the qualifications to be possessed by persons for
    appointment as teachers in Government schools and
    in private schools which, by the definition, means
    aided or recognised schools. The State Public Service
    Commission is empowered to select candidates for
    appointment as teachers in Government and aided
    schools according to the procedure laid down in
    clause 11. Shortly put, the procedure is that before the
    31st May of each year the Public Service Commission
    shall select for each district separately candidates with
    due regard to the probable number of vacancies of
    teachers that may arise in the course of the year, that
    the list of candidates so selected shall be published in
    the Gazette and that the manager shall appoint
    teachers of aided schools only from the candidates so
    selected for the district in which the school is located
    subject to the proviso that the manager may, for
    sufficient reason, with the permission of the
    Commission, appoint teachers selected for any other
    district. Appointment of teachers in Government
    schools are also to be made from the list of candidates
    so published. In selecting candidates the Commission
    is to have regard to the provisions made by the
    Government under clause (4) of Art. 16 of the
    Constitution, that is to say, give representation in the
    educational service to persons belonging to the
    Scheduled Castes or Tribes–a provision which has
    been severely criticised by learned counsel appearing
    for the Anglo-Indian and Muslim communities.”
    (Emphasis supplied)
  29. 1 The grievance as raised was set out as under:-
    “Their grievances are thus stated : The gist of the right
    of administration of a school is the power of
    appointment, control and dismissal of teachers and
    other staff. But under the said Bill such power of
    Civil Appeal No.5808 of 2017
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    management is practically taken away. Thus the
    manager must submit annual statements (cl. 5). The
    fixed assets of the aided schools are frozen and cannot
    be dealt with except with the permission of the
    authorised officer (cl. 6). No educational agency of an
    aided school can appoint a manager of its choice and
    the manager is completely under the control of the
    authorised officer, for he must keep accounts in the
    manner he is told to do and give periodical inspection
    of them, and on the closure of the school the accounts
    must be made over to the authorised officer (cl. 7). All
    fees etc. collected will have to be made over to the
    Government (cl. 8(3)). Government will take up the
    task of paying the teachers and the non-teaching staff
    (clause 9). Government will prescribe the
    qualification of teachers (clause 10). The school
    authorities cannot appoint a single teacher of their
    choice, but must appoint persons out of the panel
    settled by the Public Service Commission (clause 11).
    The school authorities must provide amenities to
    teachers and cannot dismiss, remove, reduce or even
    suspend a teacher without the previous sanction of the
    authorised officer (clause 12).
    (Emphasis supplied)
  30. 2 The majority opinion observed:-
    “We are thus faced with a problem of considerable
    complexity apparently difficult of solution. There is,
    on the one hand the minority rights under Art. 30(1) to
    establish and administer educational institutions of
    their choice and the duty of the Government to
    promote education, there is, on the other side the
    obligation of the State under Art. 45 to endeavour to
    introduce free and compulsory education. We have to
    reconcile between these two conflicting interests and
    to give effect to both if that is possible and bring
    about a synthesis between the two. The directive
    principles cannot ignore or override the fundamental
    rights but must, as we have said, subserve the
    fundamental rights. We have already observed that
    Art. 30(1) gives two rights to the minorities, (1) to
    establish and (2) to administer, educational
    Civil Appeal No.5808 of 2017
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    institutions of their choice. The right to administer
    cannot obviously include the right to mal-administer.
    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. Learned Attorney-General concedes that
    reasonable regulations may certainly be imposed by
    the State as a condition for aid or even for
    recognition….”
    “…..Clauses 6, 7, 9, 10, 11, 12, 14, 15 and 20 relate to
    the management of aided schools. Some of these
    provisions, e.g., 7, 10, 11(1), 12(1)(2)(3) and (5) may
    easily be regarded as reasonable regulations or
    conditions for the grant of aid. Clauses 9, 11(2) and
    12(4) are, however, objected to as going much beyond
    the permissible limit. It is said that by taking over the
    collections of fees, etc., and by undertaking to pay the
    salaries of the teachers and other staff the Government
    is in reality confiscating the school fund and taking
    away the prestige of the school, for none will care for
    the school authority. Likewise clause 11 takes away
    an obvious item of management, for the manager
    cannot appoint any teacher at all except out of the
    panel to be prepared by the Public Service
    Commission, which, apart from the question of its
    power of taking up such duties, may not be qualified
    at all to select teachers who will be acceptable to
    religious denominations and in particular sub-clause
    (2) of that clause is objectionable for it thrusts upon
    educational institutions of religious minorities
    teachers of Scheduled Castes who may have no
    knowledge of the tenets of their religion and may be
    otherwise weak educationally. Power of dismissal,
    removal, reduction in rank or suspension is an index
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    of the right of management and that is taken away by
    clause 12(4). These are, no doubt, serious inroads on
    the right of administration and appear perilously near
    violating that right. But considering that those
    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. We, however, find it impossible to
    support cls. 14 and 15 of the said Bill as mere
    regulations. The provisions of those clauses may be
    totally destructive of the rights under Art. 30(1). It is
    true that the right to aid is not implicit in Art. 30(1)
    but the provisions of those clauses, if submitted to on
    account of their factual compulsion as condition of
    aid, may easily be violative of Art. 30(1) of the
    Constitution. Learned counsel for the State of Kerala
    recognizes that cls. 14 and 15 of the Bill may
    annihilate the minority communities’ right to manage
    educational institutions of their choice but submits
    that the validity of those clauses is not the subjectmatter of question 2. But, as already explained, all
    newly established schools seeking aid or recognition
    are, by clause 3(5), made subject to all the provisions
    of the Act. Therefore, in a discussion as to the
    constitution validity of clause 3(5) a discussion of the
    validity of the other clauses of the Bill becomes
    relevant, not as and by way of a separate item but in
    determining the validity of the provisions of clause
    3(5). In our opinion, sub-clause 3 of clause 8 and cls.
    9, 10, 11, 12 and 13 being merely regulatory do not
    offend Art. 30(1), but the provisions of sub-clause (5)
    of clause 3 by making the aided educational
    institutions subject to cls. 14 and 15 as conditions for
    the grant of aid do offend against Art. 30(1) of the
    Constitution.”
    (Emphasis supplied)
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  31. In Rev. Sidhajbhai Sabhai and Others v. State of Bombay and
    Another10
    , a Bench of six Judges of this Court was called upon to decide
    following controversy:-
    “The petitioners moved this Court for a writ in the
    nature of mandamus or other writ directing the State
    of Bombay and the Director of Education not to
    compel the society and the petitioners to reserve 80%
    or any seats in the training, College for “the
    Government nominated teacher” nor to compel the
    society and the petitioners to comply with the
    provisions of Rules 5(2), 11, 12 and 14 and not to
    withdraw recognition of the College or withhold
    grant-in-aid under Rule 14 or otherwise.”
    18.1 The petitioners, members of a religious denomination and
    constituting a religious minority were running a Training College for
    teachers and 80% of the seats in all non-Government Training Colleges
    were directed to be reserved for “the government nominated teachers” so
    that such trained teachers could then be absorbed in Primary and Basic
    Schools in the State run by District School or Municipal Boards.
    18.2 It was submitted on behalf of the State that since the School run
    by the Petitioners was receiving grant from the State, the State was within
    its rights to direct reservation of seats as above. After referring to the
    decision of this Court in Re: The Kerala Education Bill case9
    , it was
    observed by this Court as under:-
    10 (1963) 3 SCR 837
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    “Article 30(1) provides that all minorities have the
    right to establish and administer educational
    institutions of their choice, and Art. 30(2) enjoins the
    State, in granting aid to educational institutions not to
    discriminate against any educational institution on the
    ground that it is under the management of a minority,
    whether based on religion or language. Clause (2) is
    only a phase of the non-discrimination clause of the
    Constitution and does not derogate from the
    provisions made in clause (1). The clause is moulded
    in terms negative : the State is thereby enjoined not to
    discriminate in granting aid to educational institutions
    on the ground that the management of the institution
    is in the hands of a minority, religious or linguistic,
    but the form is not susceptible of the inference that
    the State is competent otherwise to discriminate so as
    to impose restrictions upon the substance of the right
    to establish and administer educational institutions by
    minorities, religious or linguistic. Unlike Art. 19, the
    fundamental freedom under clause (1) of Art. 30, is
    absolute in terms; it is not made subject to any
    reasonable restrictions of the nature the fundamental
    freedoms enunciated in Art. 19 may be subjected to.
    All minorities, linguistic or religious have by Art.
    30(1) an absolute right to establish and administer
    educational institutions of their choice; and any law or
    executive direction which seeks to infringe the
    substance of that right under Art. 30(1) would to that
    extent be void. This, however, is not to say that it is
    not open to the State to impose regulations upon the
    exercise of this right. The fundamental freedom is to
    establish and to administer educational institutions : it
    is a right to establish and administer what are in truth
    educational institutions, institutions which cater to the
    educational needs of the citizens, or sections thereof.
    Regulation 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.
    (Emphasis supplied)
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    18.3 The effect of the opinion in Re: The Kerala Education Bill9
    was
    considered as under:-
    It was therefore held that notwithstanding the
    absolute terms in which the fundamental freedom
    under Art. 30(1) was guaranteed, it was open to the
    state by legislation or by executive direction to
    impose reasonable regulation. The Court did not,
    however, lay down any test of reasonableness of the
    regulation. The Court did not decide that public or
    national interest was the sole measure or test of
    reasonableness : it also did not decide that a
    regulation would be deemed unreasonable only if it
    was totally destructive of the right of the minority to
    administer educational institution. No general
    principle on which reasonableness or otherwise of a
    regulation may be tested was sought to be laid down
    by the Court. The Kerala Education Bill case9
    ,
    therefore, is not an authority for the proposition
    submitted by the Additional Solicitor General that all
    regulative measures which are not destructive or
    annihilative of the character of the institution
    established by the minority, provided the regulations
    are in the national or public interest, are valid.”
    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 an educational institution, the right
    guaranteed by Art. 30(1) will be but a “teasing
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    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.”
    (Emphasis supplied)
    18.4 Finally, it was held,
    “We are, therefore, of the view that the Rule 5(2) of
    the Rules for Primary Training Colleges, and Rules 11
    and 14 for recognition of Private Training institutions,
    insofar as they relate to reservation of seats therein
    under orders of Government, and directions given
    pursuant thereto regarding reservation of 80% of the
    seats and the threat to withhold grant-in-aid and
    recognition of the college, infringe the fundamental
    freedom guaranteed to the petitioners under Art.
    30(1).”
  32. In Rev. Father W. Proost and Others. vs. the State of Bihar and
    Others11
    , a Bench of five Judges of this Court was called upon to consider
    the validity of certain provisions including Section 48-A of the Bihar State
    Universities Act, 1960. In terms of said Section 48-A, no appointments,
    dismissals, removals and termination of service or reduction in rank of
    teachers could be made by the governing body of any college without the
    recommendations of the University Service Commission. By virtue of
    11AIR 1969 SC 465 = (1969) 2 SCR73
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    Section 48A(6), the Commission was empowered to recommend to the
    governing body of a college for appointment to every post of teacher,
    names of two persons arranged in order of preference which were
    considered by the Commission to be the best qualified for such posts.
    While the challenge was pending in this Court, Section 48-B was
    introduced which stated inter alia that notwithstanding anything contained
    in certain provisions including in sub-Section (6) of 48-A, the governing
    body of an affiliated College established by a minority would be entitled to
    make appointments, dismissals, removals, termination of service or
    reduction in rank of teachers or other disciplinary measures subject only to
    the approval of the Commission and the Syndicate of the University. Thus,
    instead of the Commission making the recommendations under the
    unamended provisions, now the governing body established by a minority
    could make appointments which were however subject to the approval by
    the Commission and the Syndicate of the University. While allowing the
    petition this Court observed :-
    “The learned Attorney General seeks to read into the
    protection granted by Art. 30(1) a corollary taken
    from Art. 29(1). He concedes that the Jesuits
    community is a minority community based on religion
    and that, therefore, it has a right to establish and
    administer educational institutions of its choice. But
    he contends that as the protection to minorities in Art.
    29(1) is only a right to conserve a distinct language,
    script or culture of its own, the college does not
    qualify for the protection of Art. 30(1) because it is
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    not founded to conserve them. The question,
    therefore, is whether the college can only claim
    protection of s. 48-B of the Act read with Art. 30(1) of
    the Constitution if it proves that the college is
    furthering the rights mentioned in Art. 29(1).
    In our opinion, the width of Article 30(1) cannot be
    cut down by introducing in it considerations on which
    Article 29(1) is based. The latter article is a general
    protection which is given to minorities to conserve
    their language, script or culture. The former is a
    special right to minorities to establish educational
    institutions of their choice. This choice is not limited
    to institution seeking to conserve language, script or
    culture and the choice is not taken away if the
    minority community having established an
    educational institution of its choice also admits
    members of other communities. That is a
    circumstance irrelevant for the application of Article
    30(1) since no such limitation is expressed and none
    can be implied. The two articles create two separate
    rights, although it is possible that they may meet in a
    given case.
    … … …
    In our judgment the language of Art. 30(1) is wide
    and must receive full meaning. We are dealing with
    protection of minorities and attempts to whittle down
    the protection cannot be allowed. We need not
    enlarge the protection but we may not reduce a
    protection naturally flowing from the words. Here the
    protection clearly flows from the words and there is
    nothing on the basis of which aid can be sought from
    Art. 29(1).”
  33. In State of Kerala, etc vs. Very Rev. Mother Provincial, etc4
    , a
    Bench of six Judges of this Court considered challenge to certain
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    provisions of the Kerala University Act, 1969. The ambit of the concerned
    provisions was set out by this Court as under:-
    “16. Section 53, Sub-sections (1), (2) and (3) confer
    on the Syndicate of the University the power to veto
    even the action of the governing body or the
    managing council in the selection of the principal.
    Similarly, Sub-section (4) takes away from the
    educational agency or the corporate management the
    right to select the teachers. The insistence on merit in
    Sub-section (4) or on seniority-cum-fitness in Subsection (1) does not save the situation. The power is
    exercised not by the educational agency or the
    corporate management but by a distinct and
    autonomous body under the control of the Syndicate
    of the University. Indeed Sub-section (9) gives a right
    of appeal to the Syndicate to any person aggrieved by
    the action of governing body or the managing council
    thus making the Syndicate the final and absolute
    authority in these matters. Coupled with this is the
    power of Vice-Chancellor and the Syndicate in Subsections (2) and (4) of Section 56.”
    20.1 Thereafter, this Court extracted the relevant provisions which took
    away the power to take disciplinary action from the governing body and
    the managing council and conferred it upon the University. The decision
    of the High Court which had found said provisions to be ultra vires was
    affirmed by this Court as under:-
    “19. The result of the above analysis of the provisions
    which have been successfully challenged discloses
    that that High Court was right in its appreciation of
    the true position in the light of the Constitution. We
    agree with the High Court that Sub-Sections (2) and
    (4) of Sections 48 and 49 are ultra vires Article 30(1).
    Indeed we think that Sub-Sections (6) of these two
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    sections are also ultra vires. They offend more than
    the other two of which they are a part and parcel. We
    also agree that Sub-sections (1), (2), (3) and (9) of
    Section 53, Sub-Sections (2) and (4) of Section 56 are
    ultra vires as they fail with Sections 48 and 49. We
    express no opinion regarding these sub-sections vis-avis Article 30(1). We also agree that Section 58 (in so
    far as it removes disqualification which the founders
    may not like to agree to) and Section 63 are ultra vires
    Articles 30(1) in respect of the minority institutions.
    The High Court has held that the provisions (Except
    Section 63) are also offensive to Article 19(1)(f) in so
    far as the petitioners are citizens of India both in
    respect of majority as well as minority institutions.
    This was at first debated at least in so far as majority
    institutions were concerned. The majority institutions
    invoked Article 14 and complained of discrimination.
    However, at a later stage of proceedings Mr. Mohan
    Kumaramangalam stated that he had instructions to
    say that any provision held inapplicable to minority
    institutions would not be enforced against the
    majority institutions also. Hence it relieves us of the
    task of considering the matter under Article 19(1)(f)
    not only in respect of minority institutions but in
    respect of majority institutions also. The provisions of
    Section 63 affect both kinds of institutions alike and
    must be declared ultra vires in respect of both.”
  34. In D.A.V. College, etc.. vs. State of Punjab and Others11
    , a Bench
    of five Judges of this Court considered the challenge to certain provisions
    of the Guru Nanak University, Amritsar, Act, 1969 and notifications issued
    pursuant thereto. Under Section 2(1)(a) of the Act, a College applying for
    admission to the privileges of the University was obliged to have a
    regularly constituted governing body consisting of not more than 20
    persons approved by the Senate which body must also include two
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    representatives of the University. Section 17 required that the staff initially
    appointed must be approved by the Vice Chancellor and any subsequent
    changes be reported to the University for Vice-Chancellor’s approval.
    These Sections were struck down by this Court as affecting the
    fundamental rights of the petitioners. During the course of its discussion
    this Court stated as under:-
    “36.We have already seen that in Rev. Father W.
    Proost and Ors. v. the State of Bihar and Ors.11, the
    provisions of Section 48(A) which required the
    selection of the teachers of all affiliated Colleges
    including the Colleges established by the minorities,
    to be made by the University Service Commission,
    was held to interfere with the rights of the petitioners
    in that case. In that case, while the petition was
    pending in the Court, Section 48 (B) was added to the
    Bihar State University Act whereby notwithstanding
    the provisions of Section 48 (A) exemption was given
    to the minority institutions to make appointments with
    the approval of the Commission and the Syndicate,
    the petitioners claimed exemption under Section
    48(B) and submitted that as an affiliated College
    established by a minority based on religion or
    language they are exempted from Section 48 (A) and
    that if this petition was accepted they will withdraw
    the petition which had become superfluous. Even this
    prayer was not acceded to by the State and
    consequently it was held that they were entitled to the
    exemption claimed. This decision is not therefore an
    authority for the proposition that even the requirement
    that the staff of a minority educational institution be
    appointed, dismissed or removed only with the
    approval of the University or the State does not
    infringe the right to administer the institution
    guaranteed under Article 30(1).
  35. In our view there is no possible justification for
    the provisions contained in Clauses 2(1)(a) and 17 of
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    Chapter V of the statutes which decidedly interfere
    with the rights of management of the petitioners
    colleges. These provisions cannot therefore be made
    as conditions of affiliation, the non-compliance of
    which would involve disaffiliation and consequently
    they will have to be struck down as offending Article
    30(1).
  36. Clause 18 however in our view does not suffer
    from the same vice as Clause 17 because that
    provision in so far as it is applicable to the minority
    institutions empowers the University to prescribe by
    regulations governing the service and conduct of
    teachers which is enacted in the larger interests of the
    Institutions to ensure their efficiency and excellence.
    It may for instance issue an ordinance in respect of
    age of superannuation or prescribe minimum
    qualifications for teachers to be employed by such
    Institutions either generally or in particular subjects.
    Uniformity in the conditions of service and conduct of
    teachers in all non-Government Colleges would make
    for harmony and avoid frustration. Of course while
    the power to make ordinances in respect of the
    matters referred to is unexceptional the nature of the
    infringement of the right, if any, under Article 30(1)
    will depend on the actual purpose and import of the
    ordinance when made and the manner in which it is
    likely to affect the administration of the educational
    institution, about which it is not possible now to
    predicate.”
  37. In Ahmedabad St. Xavier’s College Society and Another vs. State
    of Gujarat and Another5
    the applicability of some of the provisions of the
    Gujarat University Act, 1949 to a college run by a minority was in issue
    before a Bench of nine Judges of this Court. Three sets of provisions were
    impeached as being violative of Article 30, viz. (i) Sections 40 and 41 in
    terms of which all colleges within the University area would be governed
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    by the statutes of the University which may provide for minimum
    educational qualifications for teachers and tutorial staff and the University
    may approve the appointments of teachers and may coordinate and
    regulate the facilities provided and expenditure incurred by such colleges
    for teaching and research; (ii) Sections 33A(1)(a) and 33A(1)(b) under
    which the management of a governing body of every college must include
    amongst others, a representative of the University nominated by the ViceChancellor and three representatives of the teachers of the college and at
    least one representative each of the members of the non-teaching staff and
    the students of the college. Further, under Section 33A(1)(b), for the
    purposes of recruitment of the principal and members of the teaching staff,
    there would be a selection committee, which, in the case of recruitment of
    the principal, must include a representative of the University nominated by
    the Vice-Chancellor and in case of recruitment of a member of teaching
    staff, a representative of the University nominated by the Vice-Chancellor
    and the Head of the Department concerned with the subject taught by such
    teacher; (iii) Sections 51A and 52A in terms of which no member of
    teaching and non-teaching staff of any affiliated college could be dismissed
    or removed from service or reduced in rank, except after an inquiry; no
    termination of service of any such member would be valid unless such
    termination was approved by the Vice-Chancellor; and any dispute
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    between the governing body of the college and any member of the teaching
    or non-teaching staff must be referred to a Tribunal of Arbitration
    consisting of one member nominated by the governing body of the college,
    one member nominated by the concerned member and an Umpire to be
    nominated by the Vice-Chancellor.
    22.1. In the leading Judgment authored by Ray, C.J., for himself and
    Palekar, J., the extent of “right to administer” under Article 30 of the
    Constitution and the effect of regulatory measures upon the width of said
    right was summed up as under:-
    “19. … … The right to administer is said to consist of
    four principal matters. First is the right to choose its
    managing or governing body. It is said that the
    founders of the minority institution have faith and
    confidence in their own committee or body consisting
    of persons elected by them. Second is the right to
    choose its teachers. It is said that minority institutions
    want teachers to have compatibility with the ideals,
    aims and aspirations of the institution. Third is the
    right not to be compelled to refuse admission to
    students. In other words, the minority institutions
    want to have the right to admit students of their
    choice subject to reasonable regulations about
    academic qualifications. Fourth is the right to use its
    properties and assets for the benefit of its own
    institution.
  38. The right conferred on the religious and linguistic
    minorities to administer educational institutions of
    their choice is not an absolute right. This right is not
    free from regulation. Just as regulatory measures are
    necessary for maintaining the educational character
    and content of minority institutions similarly
    regulatory measures are necessary for ensuring
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    orderly, efficient and sound administration. Das, C.J.,
    in the Kerala Education Bill case summed up in one
    sentence the true meaning of the right to administer
    by saying that the right to administer is not the right to
    mal-administer.
    22.1.1 While considering the importance of teachers in an educational
    institution, Ray, C.J., stated:-
    “30. Educational institutions are temples of learning.
    The virtues of human intelligence are mastered and
    harmonised by education. Where there is complete
    harmony between the teacher and the taught, where
    the teacher imparts and the student receives, where
    there is complete dedication of the teacher and the
    taught in learning, where there is discipline between
    the teacher and the taught, where both are
    worshippers of learning, no discord or challenge will
    arise. An educational institution runs smoothly when
    the teacher and the taught are engaged in the common
    ideal of pursuit of knowledge. It is, therefore,
    manifest that the appointment of teachers is an
    important part in educational institutions. The
    qualifications and the character of the teachers are
    really important. The minority institutions have the
    right to administer institutions. This right implies the
    obligation and duty of the minority institutions to
    render the very best to the students. In the right of
    administration, checks and balances in the shape of
    regulatory measures are required to ensure the
    appointment of good teachers and their conditions of
    service. The right to administer is to be tempered with
    regulatory measures to facilitate smooth
    administration. The best administration will reveal no
    trace or colour of minority. A minority institution
    should shine in exemplary eclectism in the
    administration of the institution. The best compliment
    that can be paid to a minority institution is that it does
    not rest on or proclaim its minority character.
  39. Regulations which will serve the interests of the
    students, regulations which will serve the interests of
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    the teachers are of paramount importance in good
    administration. Regulations in the interest of
    efficiency of teachers, discipline and fairness in
    administration are necessary for preserving harmony
    among affiliated institutions.
  40. Education should be a great cohesive force in
    developing integrity of the nation. Education develops
    the ethos of the nation. Regulations are, therefore,
    necessary to see that there are no divisive or
    disintegrating forces in administration.”
    (Emphasis supplied)
    22.1.2 The conclusion arrived at by the learned Chief Justice was:-
    “45. For these reasons the provisions contained in
    Sections 40, 41, 33-A(1)(a), 33-A(1)(b), 51-A and 52-
    A cannot be applied to minority institutions. These
    provisions violate the fundamental rights of the
    minority institutions.
  41. The ultimate goal of a minority institution too
    imparting general secular education is advancement
    of learning. This Court has consistently held that it is
    not only permissible but also desirable to regulate
    everything in educational and academic matters for
    achieving excellence and uniformity in standards of
    education.
  42. In the field of administration it is not reasonable to
    claim that minority institutions will have complete
    autonomy. Checks on the administration may be
    necessary in order to ensure that the administration is
    efficient and sound and will serve the academic needs
    of the institution. The right of a minority to administer
    its educational institution involves, as part of it, a
    correlative duty of good administration.
  43. The teachers and the taught form a world of their
    own where everybody is a votary of learning. They
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    should not be made to know any distinction. Their
    harmony rests on dedicated and disciplined pursuit of
    learning. The areas of administration of minorities
    should be adjusted to concentrate on making learning
    most excellent. That is possible only when all
    institutions follow the motto that the institutions are
    places for worship of learning by the students and the
    teachers together irrespective of any denomination
    and distinction.”
    (Emphasis supplied)
    22.2 While agreeing with the view taken by the learned Chief Justice
    with respect to aforestated provisions, Jaganmohan Reddy J., speaking for
    himself and Alagiriswami J., also juxtaposed provisions in various statutes
    which had come up for consideration before this Court from time to time.
    As regards the opinion in Re: The Kerala Education Bill, 19579
    , it was
    observed:-
    “The scope and ambit of the rights under Articles
    29(1) and 30(1) were first considered and analysed by
    this Court while giving its advice on the Presidential
    Reference under Article 143 of the Constitution in Re
    the Kerala Education Bill, 1957. The report which
    was made to the President in that Reference, it is true,
    is not binding on this Court in any subsequent matter
    wherein in a concrete case the in fringement of the
    rights under any analogous provision may be called in
    question, though it is entitled to great weight. Under
    Article 143 this Court expresses its opinion if it so
    chooses and in some cases it might even decline to
    express its opinion, vide In Re Levy of Estate Duty12
    cited with approval by Das, C.J. in In re The Kerala
    Education Bill, 1957. In some cases the opinion may
    be based on certain stated contingencies or on some
    assumed or hypothetical situations whereas in a
    concrete case coming before this Court by way of an
    12 1944 FCR 317
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    appeal under Article 133, or by special leave under
    Article 136 or by a petition under Article 32, the law
    declared by it by virtue of Article 141 is binding on all
    courts within the territory of India. Nonetheless the
    exposition of the various facets of the rights under
    Article 29(1) and Article 30(1) by Das, C.J. speaking
    for the majority, with the utmost clarity, great
    perspicuity and wisdom has been the text from which
    this Court has drawn its sustenance in its subsequent
    decisions. To the extent that this Court has applied
    these principles to concrete cases there can be no
    question of there being any conflict with what has
    been observed by Das, C.J. The decisions rendered on
    analogous provisions as those that are under challenge
    in this case would prima facie govern these cases,
    unless this larger Bench chooses to differ from them.”
    22.3 Khanna, J. in his concurring opinion, considered the extent to
    which regulations could be prescribed, as under:-
    “90. We may now deal with the scope and ambit of
    the right guaranteed by clause (1) of Article 30. The
    clause confers a right on all minorities, whether they
    are based on religion or language, to establish and
    administer educational instructions of their choice.
    The right conferred by the clause is in absolute terms
    and is not subject 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
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    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 Sabhai10 p. 850]. Further as observed
    by Hidyatullah, C.J. in the case of Very Rev. Mother
    Provincial4
    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 fall 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.
  44. 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
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    institution would be permissible regulation. Likewise,
    regulations may provide that no anti-national 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 inhabit
    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 anti-national
    activities in educational institutions can, therefore, be
    considered to be reasonable.
  45. A regulation which is designed to prevent
    maladministration of an educational institution cannot
    be said to offend clause (1) of Article 30. At the
    sametime 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
    Sabhai, 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 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
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    an effective vehicle of education for the minority
    community or other persons who resort to it.
    … … …
  46. If a request is made for the affiliation or
    recognition of an educational institution, it is implicit
    in the request that the educational institution would
    abide by the regulations which are made by the
    authority granting affiliation or recognition. The said
    authority can always prescribe regulations and insist
    that they should be complied with before it would
    grant affiliation or recognition to an educational
    institution. To deny the power of making regulations
    to the authority concerned would result in robbing the
    concept of affiliation or recognition of its real
    essence. No institution can claim affiliation or
    recognition until it conforms to a certain standard.
    The fact that the institution is of the prescribed
    standard indeed inheres in the very concept of
    affiliation or recognition. It is, therefore, permissible
    for the authority concerned to prescribe regulations
    which must be complied with before an institution can
    seek and retain affiliation and recognition. Question
    then arises whether there is any limitation on the
    prescription of regulations for minority educational
    institutions. So far as this aspect is concerned, the
    authority prescribing the regulations must bear in
    mind that the Constitution has guaranteed a
    fundamental right to the minorities for establishing
    and administering their educational institutions.
    Regulations made by the authority concerned should
    not impinge upon that right. Balance has, therefore, to
    be kept between the two objectives, that of ensuring
    the standard of excellence of the institution and that of
    preserving the right of the minorities to establish and
    administer their educational institutions. Regulations
    which embrace and reconcile the two objectives can
    be considered to be reasonable.
    … … …
  47. Another conclusion which follows from what has
    been discussed above is that a law which interferes
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    with a minority’s choice of qualified teachers or its
    disciplinary control over teachers and other members
    of the staff of the institution is void as being violative
    of Article 30(1). It is, of course, permissible for the
    State and its educational authorities to prescribe the
    qualifications of teachers, but once the teachers
    possessing the requisite qualifications are selected by
    the minorities for their educational institutions, the
    State would have no right to veto the selection of
    those teachers. The selection and appointment of
    teachers for an educational institution is one of the
    essential ingredients of the right to manage an
    educational institution and the minorities can plainly
    be not denied such right of selection and appointment
    without infringing Article 30(1). In the case of Rev.
    Father W. Proost11 this Court while dealing with
    Section 48-A of the Bihar Universities Act observed
    that the said provision completely took away the
    autonomy of the governing body of the college and
    virtually vested the control of the college in the
    University Service Commission. The petitioners in
    that case were, therefore, held entitled to the
    protection of Article 30(1) of the Constitution. The
    provisions of that section have been referred to earlier.
    According to the section, subject to the approval of
    University appointment, dismissals, removals,
    termination of service or reduction in rank of teachers
    of an affiliated college not belonging to the State
    Government would have to be made by the governing
    body of the college on the recommendation of the
    University Service Commission. The section further
    provided that the said Commission would be
    consulted by the governing body of a college in all
    disciplinary matters affecting teachers of the college
    and no action would be taken against or any
    punishment imposed upon a teacher of a college
    otherwise than in conformity with the findings of the
    Commission.
  48. In the case of D.A.V. College which was
    affiliated to the Guru Nanak University, Statute 17
    framed under the Guru Nanak University (Amritsar)
    Act inter alia provided that the staff initially appointed
    shall be approved by the Vice-Chancellor and that all
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    subsequent changes shall be reported to the University
    for Vice-Chancellor’s approval. This Court held that
    Statute 17 interfered with the right of management of
    the petitioner colleges and, as such, offended Article
    30(1).
  49. 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 thus 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).”
    (Emphasis supplied)
    22.4 In his concurring view, Mathew, J. speaking for himself and
    Chandrachud, J. (as the learned Chief Justice, then was) also dealt with
    the extent to which the regulations could be prescribed, as under:-
    “174. 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
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    of the Constitution in absolute terms in marked
    contrast with the other fundamental rights 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.
  50. What then are the additional regulations which
    can legitimately be imposed upon an educational
    institution established and administered by a religious
    or linguistic minority which imparts general secular
    education and seeks recognition or affiliation?
  51. Recognition or affiliation is granted on the basis
    of the excellence of an educational institution,
    namely, that it has reached the educational standard
    set up by the university. Recognition or affiliation is
    sought for the purpose of enabling the students in an
    educational institution to sit for an examination to be
    conducted by the university and to obtain a degree
    conferred by the university. For that purpose, the
    students should have to be coached in such a manner
    so as to attain the standard of education prescribed by
    the university. Recognition or affiliation creates an
    interest in the university to ensure that the educational
    institution is maintained for the purpose intended and
    any regulation which will subserve or advance that
    purpose will be reasonable and no educational
    institution established and administered by a religious
    or linguistic minority can claim recognition or
    affiliation without submitting to those regulations.
    That is the price of recognition or affiliation: but this
    does not mean that it should submit to a regulation
    stipulating for surrender of a right or freedom
    guaranteed by the Constitution, which is unrelated to
    the purpose of recognition or affiliation. In other
    words, recognition or affiliation is a facility which the
    university grants to an educational institution, for the
    purpose of enabling the students there to sit for an
    examination to be conducted by the university in the
    prescribed subjects and to obtain the degree conferred
    by the university, and therefore, it stands to reason to
    hold that no regulation which is unrelated to the
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    purpose can be imposed. If, 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 will be permissible. The heart of
    the matter 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 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. There will be border line cases where it is
    difficult to decide whether a regulation really
    subserves the purpose of recognition or affiliation.
    But that does not affect the question of principle. In
    every case, when the reasonableness of a regulation
    comes up for consideration before the Court, the
    question to be asked and answered is whether the
    regulation is calculated to subserve or will in effect
    subserve the purpose of recognition or affiliation,
    namely, the excellence of the institution as a vehicle
    for general secular education to the minority
    community and to other persons who resort to it. The
    question whether a regulation is in the general interest
    of the public has no relevance, if it does not advance
    the excellence of the institution as a vehicle for
    general secular education as, exhypothesi, the only
    permissible regulations are those which secure the
    effectiveness of the purpose of the facility, namely,
    the excellence of the educational institutions in
    respect of their educational standards. This is the
    reason why this Court has time and again said that the
    question whether a particular regulation is calculated
    to advance the general public interest is of no
    consequence if it is not conducive to the interests of
    the minority community and those persons who resort
    to it.
    … … …
  52. It is upon the principal and teachers of a college
    that the tone and temper of an educational institution
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    depend. On them would depend its reputation, the
    maintenance of discipline and its efficiency in
    teaching. The right to choose the principal and to have
    the teaching conducted by teachers appointed by the
    management after an overall assessment of their
    outlook and philosophy is perhaps the most important
    facet of the right to administer an educational
    institution. We can perceive no reason why a
    representative of the University nominated by the
    Vice-Chancellor should be on the Selection
    Committee for recruiting the Principal or for the
    insistence of head of the department besides the
    representative of the University being on the Selection
    Committee for recruiting the members of the teaching
    staff. So long as the persons chosen have the
    qualifications prescribed by the University, the choice
    must be left to the management. That is part of the
    fundamental right of the minorities to administer the
    educational institution established by them.”
    (Emphasis supplied)
    22.5 In his concurring opinion, Beg, J. (as the learned Chief Justice
    then was) however struck a slightly different chord. At the outset he
    stated:-
  53. … … I would, however, like to point out that, as
    rights and duties are correlative, it follows, from the
    extent of this wider right of a minority under Article
    30(1) to impart even general or non-denominational
    secular education to those who may not follow its
    culture or subscribe to its beliefs, that, when a
    minority Institution decides to enter this wider
    educational sphere of national education, it, by reason
    of this free choice itself, could be deemed to opt to
    adhere to the needs of the general pattern of such
    education in the country, at least whenever that choice
    is made in accordance with statutory provisions. Its
    choice to impart an education intended to give a
    secular orientation or character to its education
    necessarily entails its assent to the imperative needs
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    of the choice made by the State about the kind of
    “secular” education which promotes national
    integration or the elevating objectives set out in the
    preamble to our Constitution, and the best way of
    giving it. If it is part of a minority’s rights to make
    such a choice it should also be part of its obligations,
    which necessarily follow from the choice, to adhere to
    the general pattern. The logical basis of such a choice
    is that the particular minority Institution, which
    chooses to impart such general secular education,
    prefers that higher range of freedom where, according
    to the poet Rabindranath Tagore, “the narrow
    domestic walls” which constitute barriers between
    various sections of the nation will crumble and fall.
    … …”
    22.5.1 In his view, third set of provisions namely Sections 51A and
    52A did not constitute any unreasonable encroachment on the essence of
    the rights under Article 30(1) of the Constitution. It was observed:-
    “212. Section 51-A of the Act appears to me to lay
    down general conditions for the dismissal, removal,
    reduction in rank and termination of services of
    members of the staff of all colleges to which it
    applies. Again, we have not to consider here either the
    wisdom or unwisdom of such a provision or the
    validity of any part of Section 51-A of the Act on the
    ground that it violates any fundamental right other
    than the ones conferred by Article 30(1) of the
    Constitution. If, as I have indicated above, a greater
    degree of interference with the right to administer or
    manage an institution can be held to be permissible as
    a logical consequence of the exercise of an option of a
    minority for an institution governed by a statute, with
    all its benefits as well as disadvantages, it seems to
    me that provisions of Section 51-A do not constitute
    an unreasonable encroachment on the essence of
    rights of a minority institution protected by Article
    30(1) of the Constitution which consists of freedom of
    choice. For similar reasons, I do not think that Section
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    52-A of the Act constitutes an infringement of the
    special minority rights under Article 30(1) of the
    Constitution when the institution opts for a statutory
    right which necessarily involves statutory restrictions.
    Of course, if these provisions could be held to be
    invalid on any grounds as against all affiliated
    colleges, whether they are administered by minorities
    or majorities in a State, they could be held to be
    invalid against the petitioning College too on those
    grounds. But, as I have already said, we are not
    concerned here with such grounds or questions at all.”
    22.5.2 Beg, J., then considered all previous decisions of this Court
    and made following observations:-
    “221. Evidently, what was meant was that the right to
    exclusive management of the institution is separable
    from the right to determine the character of education
    and its standards. This may explain why “standards”
    of education were spoken as “not part of
    management” at all. It meant that the right to manage,
    having been conferred in absolute terms, could not be
    interfered with at all although the object of that
    management could be determined by a general pattern
    to be laid down by the State which could prescribe the
    syllabi and standards of education. Speaking for
    myself, I find it very difficult to separate the objects
    and standards of teaching from a right to determine
    who should teach and what their qualifications should
    be. Moreover, if the “standards of education” are not
    part of management, it is difficult to see how they are
    exceptions to the principle of freedom of management
    from control. Again, if what is aimed at directly is to
    be distinguished from an indirect effect of it, the
    security of tenure of teachers and provisions intended
    to ensure fair and equitable treatment for them by the
    management of an institution would also not be
    directly aimed at interference with its management.
    They could more properly be viewed as designed to
    improve and ensure the excellence of teachers
    available at the institution, and, therefore, to raise the
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    general standard of education. I think that it is enough
    for us to distinguish this case on the ground that the
    provisions to be interpreted by us are different,
    although, speaking for myself, I feel bound to say,
    with great respect, that I am unable to accept every
    proposition found stated there as correct. In that case,
    the provisions of the Kerala University Act 9 of 1969,
    considered there were inescapable for the minority
    institutions which claimed the right to be free from
    their operation. As I have already observed, in the
    case before us, Section 38-B of the Act provides the
    petitioning College before us with a practically certain
    mode of escape from the compulsiveness of
    provisions other than Sections 5, 40 and 41 of the Act
    if claims made on its behalf are correct.
    … … …
  54. It may be that Article 30(1) of the Constitution is
    a natural result of the feeling of insecurity entertained
    by the minorities which had to be dispelled by a
    guarantee which could not be reduced to a “teasing
    illusion”. But, is it anything more than an illusion to
    view the choice of a minority as to what it does with
    its educational institution as a matter of unconcern
    and indifference to the whole organised society which
    the State represents?”
    … … …
  55. Even if Article 30(1) of the Constitution is held
    to confer absolute and unfettered rights of
    management upon minority institutions, subject only
    to absolutely minimal and negative controls in the
    interests of health and law and order, it could not be
    meant to exclude a greater degree of regulation and
    control when a minority institution enters the wider
    sphere of general secular and non-denominational
    education, largely employs teachers who are not
    members of the particular minority concerned, and
    when it derives large parts of its income from the fees
    paid by those who are not members of the particular
    minority in question. Such greater degree of control
    could be justified by the need to secure the interests of
    those who are affected by the management of the
    minority institution and the education it imparts but
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    who are not members of the minority in management.
    In other words, the degree of reasonably permissible
    control must vary from situation to situation. For the
    reasons already given above, I think that, apart from
    Sections 5, 40 and 41 of the Act, which directly and
    unreasonably impinge upon the rights of the
    petitioning minority managed college, protected by
    Article 30(1) of the Constitution, I do not think that
    the other provisions have that effect. On the situation
    under consideration before us, the minority institution
    affected by the enactment has, upon the claims put
    forward on its behalf, a means of escape from the
    impugned provisions other than Sections 5, 40 and 41
    of the Act by resorting to Section 38-B of the Act.”
    22.6 In his dissenting view, Dwivedi, J. expressed with regard to
    the extent of regulatory power as under:-
    “266. The extent of regulatory power of the State
    would vary according to various types of educational
    institutions established by religious and linguistic
    minorities. Educational institutions may be classified
    in several ways: (1) According to the nature of
    instruction which is being imparted by the minorities.
    It may be religious, cultural and linguistic instruction
    or secular general education or mixed; (2) According
    to grant of aid and recognition by the State. Some
    institutions may receive aid; the others may not.
    Similarly, some institutions may receive recognition;
    the others may not. There may be some others which
    may receive both aid and recognition; some others
    may receive neither aid nor recognition. (3)
    According to the standard of secular general
    education which is being imparted in the institutions
    — primary, secondary and higher. (4) According to
    the nature of education such as military academy,
    marine engineering in which the State is vitally
    interested for various reasons.
  56. The extent of regulatory power may vary from
    class to class as well as within a class. For instance,
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    institutions receiving aid and recognition may be
    subject to greater regulation than those which receive
    neither. Similarly, institutions imparting secular
    general education may be subject to greater regulation
    than those which are imparting religious, cultural and
    linguistic instruction solely.
  57. An educational institution would consist of: (1)
    the managing body of the institution, (2) teaching
    staff, (3) non-teaching staff, (4) students; and (5)
    property of various kinds. Here again, the extent of
    the regulatory power may vary from one constituent
    to another. For instance, the teaching staff and
    property may be subject to greater regulation than the
    composition of the managing body. Plainly, no
    minority educational institution can be singled out for
    treatment different from one meted out to the majority
    educational institution. A regulation meeting out such
    a discriminatory treatment will be obnoxious to
    Article 30(1).”
    22.7 The operative part of the Order passed by this Court was:-
    “304. By majority Sections 33-A, 40, 41, 51-A(1)(b),
    51-A(2)(b) and 52-A of the Gujarat University Act,
    1949 as amended do not apply to institutions
    established and administered by linguistic and
    religious minorities. … … …”
  58. In The Gandhi Faiz-e-am College, Shahjahanpur v. University of
    Agra and Another13, a Bench of three Judges of this Court considered
    whether Statute 14A framed by University of Agra infringed fundamental
    rights of the minority community under Article 30 of the Constitution. The
    facts as set out in para 3 were as under:-
    13 (1975) 2 SCC 283
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    “3. The appellant is a registered society formed by the
    members of the Muslim community at Shahjahanpur.
    Indubitably, the community ranks as a minority in the
    country and the educational institution run by it has
    been found to be what may loosely be called a
    “minority institution”, within the constitutional
    compass of Article 30. The earlier history of the
    institution need not detain us and a rapid glance at its
    evolution is enough. The A.V. Middle School was the
    offspring of the effort of the Muslim minority resident
    in Shahjahanpur district. It, later became a high
    school and afterwards attained the status of an
    Intermediate college. Eventually it blossomed into a
    degree college affiliated to the University of Agra. In
    1948, on the assassination of the Father of the Nation,
    this college was commemoratively renamed as
    Gandhi Faiz-e-am College. In August 1964, an
    application was made on behalf of the college
    management to the University for permission to start
    teaching in courses of study including Sociology,
    Sanskrit, Arabic, Military Studies, Drawing and
    Painting. The University entertained the thought that a
    new organisational discipline must be brought into the
    institution and insisted, as a condition of recognition
    of these additional subjects as course of study, on
    certain mutations in the administrative body of the
    college. The bone of contention before us, as was
    before the High Court, is that this prescription by the
    University, in tune with Statute 14A framed by it, is
    an invasion of the fundamental right guaranteed to the
    minority community under Article 30 of the
    Constitution of India. The High Court has negatived
    the plea of the management and the appeal issues
    from that decision.”
    23.1 Statute 14A as quoted in para 6 was to the following effect:-
    “14A. Each college, already affiliated or when
    affiliated, which is not maintained exclusively by
    Government must be under the Management of a
    regular constituted Governing body (which term
    includes Managing Committee) on which the staff of
    the college shall be represented by the Principal of the
    college and at least one representative of the teachers
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    of the college to be appointed by rotation in order of
    seniority determined by length of service in the
    college, who shall hold office for one academic year.”
    23.2 Krishna Iyer, J. speaking for himself and Gupta, J. found the
    provision calculated to promote excellence of the Institution and therefore
    rejected the challenge. The relevant observations were:-
    “16. The discussion throws us back to a closer study
    of Statute 14A to see if it cuts into the flesh of the
    management’s right or merely tones up its health and
    habits. The two requirements the University asks for
    are that the managing body (whatever its name) must
    take in (a) the Principal of the College; (b) its
    seniormost teacher. Is this desideratum dismissible as
    biting into the autonomy of management or tenable as
    ensuring the excellence of the institution without
    injuring the essence of the right? On a careful
    reflection and conscious of the constitutional
    dilemma, we are inclined to the view that this case
    falls on the valid side of the delicate line. Regulation
    which restricts is bad; but regulation which facilitates
    is good. Where does this fine distinction lie? No rigid
    formula is possible but a flexible test is feasible.
    Where the object and effect is to improve the tone and
    temper of the administration without forcing on it a
    stranger, however superb his virtues be, where the
    directive is not to restructure the governing body but
    to better its performance by a marginal catalytic
    induction, where no external authority’s fiat or
    approval or outside nominee is made compulsory to
    validate the Management Board but inclusion of an
    internal key functionary appointed by the autonomous
    management alone is asked for, the provision is
    salutary and saved, being not a diktat eroding the
    freedom of the freedom.
    … … …
  59. In all these cases administrative autonomy is
    imperilled transgressing purely regulatory limits. In
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    our case autonomy is virtually left intact and
    refurbishing, not restructuring, is prescribed. The core
    of the right is not gouged out at all and the regulation
    is at once reasonable and calculated to promote
    excellence of the institution — a text book instance of
    constitutional conditions.”
    23.3. Mathew, J. authored a dissenting opinion. Relying upon various
    views expressed in Ahmedabad St. Xavier’s College5 including one
    rendered by the learned Judge himself, it was observed :-
    “41. The determination of the composition of the
    body to administer the educational institution
    established by a religious minority must be left to the
    minority as that is the core of the right to administer.
    Regulations to prevent maladministration by that
    body are permissible. As the right to determine the
    composition of the body which will administer the
    educational institution is the very essence of the right
    to administer guaranteed to the religious or linguistic
    minority under Article 30(1), any interference in that
    area by an outside authority cannot be anything but an
    abridgment of that right. The religious or linguistic
    minority must be given the freedom to constitute the
    agency through which it proposes to administer the
    educational institution established by it as that is what
    Article 30(1) guarantees. The right to shape its
    creation is one thing: the right to regulate the manner
    in which it would function after it has come into being
    is another. Regulations are permissible to prevent
    maladministration but they can only relate to the
    manner of administration after the body which is to
    administer has come into being.
  60. The provisions of Statute 14A are in pari materia
    with those of Section 33-A(1)(a) of the Act which fell
    for consideration in Ahmedabad St. Xavier’s College
    case (supra) except that only the principal and the
    seniormost member of the staff alone are required to
    be included in the managing committee of the college
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    in question here. But, in principle, that makes no
    difference. The principle, as I said, is that the minority
    community has the exclusive right to vest the
    administration of the college in a body of its own
    choice, and any compulsion from an outside authority
    to include any other person in that body is an
    abridgment of its fundamental right to administer the
    educational institution.”
    23.4 In terms of the decision of the majority, the challenge was negated
    and Statute 14A was not found to be vulnerable or void.
  61. In Lily Kurian v. Sr. Lewina and Others14
    , a Bench of five Judges
    of this Court was called upon to consider whether the appellate power
    conferred upon the Vice Chancellor of the University15 would encroach
    upon the rights of a minority institution to enforce and ensure discipline
    over its teachers.
    The matter was considered by this Court as under:-
    “51. An analysis of the judgments in St. Xaviers
    College case clearly shows that seven out of nine
    judges held that the provisions contained in clause (b)
    of sub-sections (1) and (2) of Section 51-A of the Act
    were not applicable to an educational institution
    established and managed by religious or linguistic
    minority as they interfere with the disciplinary control
    of the management over the staff of its educational
    institutions. The reasons given by the majority were
    that the power of the management to terminate the
    services of any member of the teaching or other
    academic and non-academic staff was based on the
    14 (1979) 2 SCC 124
    15 By Ordinance 33 against any order passed by the Management taking disciplinary
    action against a teacher.
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    relationship between an employer and his employees
    and no encroachment could be made on this right to
    dispense with their services under the contract of
    employment, which was an integral part of the right to
    administer, and that these provisions conferred on the
    Vice-Chancellor or any other officer of the University
    authorised by him, uncanalised, unguided and
    unlimited power to veto the actions of the
    management. According to the majority view, the
    conferral of such blanket power on the ViceChancellor and his nominee was an infringement of
    the right of administration guaranteed under Article
    30(1) to the minority institutions, religious and
    linguistic. The majority was accordingly of the view
    that the provisions contained in clause (b) of subsections (1) and (2) of Section 51-A of the Act had the
    effect of destroying the minority institution’s
    disciplinary control over the teaching and nonteaching staff of the college as no punishment could
    be inflicted by the management on a member of the
    staff unless it gets approval from an outside authority
    like the Vice-Chancellor or an officer of the
    University authorised by him. On the contrary, the
    two dissenting Judges were of the view that these
    provisions were permissive regulatory measures.
  62. The power of appeal conferred on the ViceChancellor under Ordinance 33(4) is not only a grave
    encroachment on the institution’s right to enforce and
    ensure discipline in its administrative affairs but it is
    uncanalised and unguided in the sense that no
    restrictions are placed on the exercise of the power.
    The extent of the appellate power of the ViceChancellor is not defined, and, indeed, his powers are
    unlimited. The grounds on which the Vice-Chancellor
    can interfere in such appeals are also not defined. He
    may not only set aside an order of dismissal of a
    teacher and order his reinstatement, but may also
    interfere with any of the punishments enumerated in
    Items (ii) to (v) of Ordinance 33(2), that is to say, he
    can even interfere against the infliction of minor
    punishments. In the absence of any guide-lines, it
    cannot be held that the power of the Vice-Chancellor
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    under Ordinance 33(4) was merely a check on
    maladministration.
  63. As laid down by the majority in St. Xaviers
    College case, such a blanket power directly interferes
    with the disciplinary control of the managing body of
    a minority educational institution over its teachers.
    The majority decision in St. Xaviers College case
    squarely applies to the facts of the present case and
    accordingly it must be held that the impugned
    Ordinance 33(4) of the University of Kerala is
    violative of Article 30(1) of the Constitution. If the
    conferral of such power on an outside authority like
    the Vice-Chancellor, which while maintaining the
    formal character of a minority institution destroys the
    power of administration, that is, its disciplinary
    control, is held justifiable because it is in the public
    and national interest, though not in its interest as an
    educational institution, the right guaranteed by Article
    30(1) will be, to use the well-known expression, a
    “teasing illusion”, a “promise of unreality”.
  64. In All Saints High School, Hyderabad and Others v. Government
    of Andhra Pradesh and Others16
    , the question that arose for consideration
    before a Bench of three Judges of this Court, was whether certain
    provisions of Andhra Pradesh Recognised Private Educational Institutions
    (Control) Act, 1975 offended fundamental rights conferred on minorities
    by Article 30(1). In terms of Sections 3(1) and 3(2), no teacher employed
    in any private educational institution could be dismissed or removed or
    reduced in rank except with the prior approval of the competent authority;
    and in terms of Section 3(2) such approval could be granted if the
    16 (1980) 2 SCC 478
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    competent authority was satisfied that there were adequate and reasonable
    grounds. Section 3(3)(a) provided that no teacher could be placed under
    suspension except when an enquiry into the gross misconduct of such
    teacher was contemplated and as per terms of Section 3(3)(b), no
    suspension could remain in force for more than two months if the enquiry
    was not completed within that period.
    25.1. Chandrachud, C.J. agreed with Fazal Ali, J. that Sections
    3(1) and 3(2) would offend Article 30(1) and as such could not be applied
    to minority institutions. The learned Chief Justice however did not agree
    with Faizal Ali, J. insofar as Sections 3(3)(a) and 3(3)(b) but agreed with
    Kailasam, J. to hold that those provisions did not offend Article 30(1).
    Faizal Ali, J. had found all the provisions to be invalid while Kailasam, J.
    had found the concerned provisions to be valid and not violative of Article
    30(1) of the Constitution.
  65. In Frank Anthony Public School Employees’ Assoication v.
    Union of India and others17 validity of Section 12 of Delhi School
    Education Act on the strength of which certain provisions of said Act
    would not apply to an unaided minority school, was under challenge. It
    was submitted by the petitioners that the teachers and other employees
    17 (1986) 4 SCC 707
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    working in an unaided school were entitled to same pay-scale, allowances
    and benefits as were enjoyed by persons employed in schools governed by
    the provisions of said Act and to the extent Section 12 excluded
    applicability of some of the provisions of the Act, said Section was hit by
    Article 14 of the Constitution. The argument raised on behalf of the
    institution was :-
    “14. … …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.”
    26.1 While allowing the petition this Court observed:
    “16. 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 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 to lead, inevitably, to discontent
    and deterioration of the standard of instruction
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    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 Article 30(1) which is to
    make the institution an effective vehicle of education.
    (Emphasis supplied)
    … … …
  66. 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 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.”
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  67. In Bihar State Madarasa Education Board, Patna v. Madarasa
    Hanfia Arabic College, Jamalia and others18 the declaration by the High
    Court that Section 7(2)(n) was unconstitutional as it conferred power on
    the Board to dissolve the Managing Committee of a Madarasa, was under
    challenge. The decision was upheld by this Court observing as under:
    “6. The question which arises for consideration is
    whether Section 7(2)(n) which confers power on the
    Board to dissolve the Managing Committee of an
    aided and recognised Madarasa institution violates the
    minorities constitutional right to administer its
    educational institution according to their choice. This
    Court has all along held that though the minorities
    have right to establish and administer educational
    institution of their own choice but they have no right
    to maladminister and the State has power to regulate
    management and administration of such institutions in
    the interest of educational need and discipline of the
    institution. Such regulation may have indirect effect
    on the absolute right of minorities but that would not
    violate Article 30(1) of the Constitution as it is the
    duty of the State to ensure efficiency in educational
    institutions. The State has, however, no power to
    completely take over the management of a minority
    institution. Under the guise of regulating the
    educational standards to secure efficiency in
    institution, the State is not entitled to frame rules or
    regulations compelling the management to surrender
    its right of administration. In State of Kerala v. Very
    Rev. Mother Provincial, Section 63(1) of the Kerala
    University Act, 1969 which conferred power on the
    government to take over the management of a
    minority institution on its default in carrying out the
    directions of the State Government was declared ultra
    vires on the ground that the provisions interfered with
    the constitutional right of a minority to administer its
    institution. Minority institutions cannot be allowed to
    18 (1990) 1 SCC 428
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    fall below the standard of excellence on the pretext of
    their exclusive right of management but at the same
    time their constitutional right to administer their
    institutions cannot be completely taken away by
    superseding or dissolving Managing Committee or by
    appointing ad hoc committees in place thereof. In the
    instant case Section 7(2)(n) is clearly violative of
    constitutional right of minorities under Article 30(1)
    of the Constitution insofar as it provides for
    dissolution of Managing Committee of a Madarasa.
    We agree with the view taken by the High Court.”
  68. In St. Stephen’s College vs. University of Delhi19 a Bench of five
    Judges of this Court had an occasion to consider the admission process
    adopted by two aided minority institutions viz. St. Stephen’s College at
    Delhi and Allahabad Agricultural Institute at Naini. The factual context as
    summed-up in the majority judgment authored by Shetty, J., was as under:-
    “68. It is not in dispute that St. Stephen’s College and
    Allahabad Agricultural Institute are receiving grantin-aid from the government. St. Stephen’s College
    gives preference to Christian students. The Allahabad
    Agricultural Institute reserves 50 per cent of the seats
    for Christian students. The Christian students
    admitted by preference or against the quota reserved
    are having less merit in the qualifying examination
    than the other candidates. The other candidsates with
    more merit are denied admission on the ground that
    they are not Christians.
  69. It was argued for the University and the Students
    Union that since both the institutions are receiving
    State aid, the institutional preference for admission
    based on religion is violative of Article 29(2) of the
    Constitution. The institutions shall not prefer or deny
    19 (1992) 1 SCC 558
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    admission to candidates on ground of religion. For
    institutions, on the other hand, it was claimed that any
    preference given to the religious minority candidates
    in their own institutions cannot be a discrimination
    falling under Article 29(2). The institutions are
    established for the benefit of their community and if
    they are prevented from admitting their community
    candidates, the purpose of establishing the institutions
    would be defeated. The minorities are entitled to
    admit their candidates by preference or by
    reservation. They are also entitled to admit them to
    the exclusion of all others and that right flows from
    the right to establish and administer educational
    institutions guaranteed under Article 30(1).”
    28.1 The majority judgment dealt with the submissions raised by the
    institution as under:-
    “80. Equally, it would be difficult to accept the second
    submission that the minorities are entitled to establish
    and administer educational institutions for their
    exclusive benefit. The choice of institution provided
    in Article 30(1) does not mean that the minorities
    could establish educational institution for the benefit
    of their own community people. Indeed, they cannot.
    It was pointed out in Re, Kerala Education Bill that
    the minorities cannot establish educational institution
    only for the benefit of their community. If such was
    the aim, Article 30(1) would have been differently
    worded and it would have contained the words “for
    their own community”. In the absence of such words
    it is legally impermissible to construe the article as
    conferring the right on the minorities to establish
    educational institution for their own benefit.
  70. Even in practice, such claims are likely to be met
    with considerable hostility. It may not be conducive to
    have a relatively homogeneous society. It may lead to
    religious bigotry which is the bane of mankind. In the
    nation building with secular character sectarian
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    schools or colleges, segregated faculties or
    universities for imparting general secular education
    are undesirable and they may undermine secular
    democracy. They would be inconsistent with the
    central concept of secularism and equality embedded
    in the Constitution. Every educational institution
    irrespective of community to which it belongs is a
    ‘melting pot’ in our national life. The students and
    teachers are the critical ingredients. It is there they
    develop respect for, and tolerance of, the cultures and
    beliefs of others. It is essential therefore, that there
    should be proper mix of students of different
    communities in all educational institutions.”
    28.2 The relaxation given by St. Stephen’s College to Christian
    students was dealt with as under:-
    “50. To Christian students, relaxation up to 10 per
    cent is given. The Scheduled Castes/Scheduled Tribes
    candidates who are having a minimum of 50 per cent
    of marks are called for interview for selection to
    Honours courses. For B.A. pass course, a further
    concession to them is granted and the qualifying
    marks are reduced even below 50 per cent. As far as
    sportsmen and sportswomen are concerned, national
    or State level players are given concession normally
    up to 10 per cent and in exceptional cases up to 15 per
    cent or even more. However, a Christian student, who
    is below the cut-off percentage by more than 10 per
    cent is never called for interview.
  71. The actual working of the concession given by the
    College and the result achieved thereon in several
    years are set out in Annexure I to Writ Petition No.
    1868 of 1980. The Christian students who get
    concession up to 10 per cent and thereby get
    preferential admission are only 6 per cent to 10 per
    cent. They are also admitted in accordance with the
    standard prescribed by the University and none who
    falls below the standard has ever been admitted to the
    College.”
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    28.3 The majority Judgment, then, considered the matter from the
    perspective of “Rights of Minorities and Balancing Interest” and
    observed:-
    “101. Laws carving out the rights of minorities in
    Article 30(1) however, must not be arbitrary,
    invidious or unjustified; they must have a reasonable
    relation between the aim and the means employed.
    The individual rights will necessarily have to be
    balanced with competing minority interests. In
    Sidhajbhai case10
    the government order directing the
    minority run college to reserve 80 per cent of seats for
    government nominees and permitting only 20 per cent
    of seats for the management with a threat to withhold
    the grant-in-aid and recognition was struck down by
    the Court as infringing the fundamental freedom
    guaranteed by Article 30(1). Attention may also be
    drawn to Article 337 of the Constitution which
    provided a special concession to Anglo-Indian
    community for ten years from the commencement of
    the Constitution. Unlike Article 30(2) it conferred a
    positive right on the Anglo-Indian community to get
    grants from the government for their educational
    institutions, but subject to the condition that at least
    40 per cent of annual admission were made available
    to members of other communities.
  72. In the light of all these principles and factors,
    and in view of the importance which the Constitution
    attaches to protective measures to minorities under
    Article 30(1), the minority aided educational
    institutions are entitled to prefer their community
    candidates to maintain the minority character of the
    institutions subject of course to conformity with the
    University standard. The State may regulate the intake
    in this category with due regard to the need of the
    community in the area which the institution is
    intended to serve. But in no case such intake shall
    exceed 50 per cent of the annual admission. The
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    minority institutions shall make available at least 50
    per cent of the annual admission to members of
    communities other than the minority community. The
    admission of other community candidates shall be
    done purely on the basis of merit.”
    28.4 It was also observed that regulations which serve the interest of
    students and teachers and preserve the uniformity in standards of
    education amongst the affiliated institutions could validly be made. The
    relevant discussion in para 59 was as under:-
    “59. The need for a detailed study on this aspect is
    indeed not necessary. The right to minorities whether
    religious or linguistic, to administer educational
    institutions and the power of the State to regulate
    academic matters and management is now fairly well
    settled. The right to administer does not include the
    right to maladminister. The State being the controlling
    authority has right and duty to regulate all academic
    matters. Regulations which will serve the interests of
    students and teachers, and to preserve the uniformity
    in standards of education among the affiliated
    institutions could be made. The minority institutions
    cannot claim immunity against such general pattern
    and standard or against general laws such as laws
    relating to law and order, health, hygiene, labour
    relations, social welfare legislations, contracts, torts
    etc. which are applicable to all communities. So long
    as the basic right of minorities to manage educational
    institution is not taken away, the State is competent to
    make regulatory legislation. Regulations, however,
    shall not have the effect of depriving the right of
    minorities to educate their children in their own
    institution. That is a privilege which is implied in the
    right conferred by Article 30(1)”.
    (Emphasis supplied)

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28.5 The dissenting opinion of Kasliwal, J. quoted a passage from
the Constituent Assembly Debates (CAD) touching upon the matter
in issue as under :-
“137. These were Articles 23(1) on the one hand and
23(3)(a) and 23(3)(b) on the other hand in the Draft
Constitution. Firstly, Dr B.R. Ambedkar said in
relation to draft Article 23(2) corresponding to the
present Article 28 of the Constitution that even in
relation to Articles 30 and 29 the State was
completely free to give or not to give aid to the
educational institutions of the religious or linguistic
minorities. He said20:
“Now, with regard to the second clause I think it
has not been sufficiently well understood. We
have tried to reconcile the claim of a community
which has started educational institutions for the
advancement of its own children either in
education or in cultural matters, to permit to
give religious instruction in such institutions;
notwithstanding the fact that it receives certain
aid from the State. The State, of course, is free
to give aid, is free not to give aid; the only
limitation we have placed is this, that the State
shall not debar the institution from claiming aid
under its grant-in-aid code merely on the ground
that it is run and maintained by a community
and not maintained by a public body. We have
there provided also a further qualification, that
while it is free to give religious instruction in
the institution and the grant made by the State
shall not be a bar to the giving of such
instruction, it shall not give instruction to, or
make it compulsory upon, the children
belonging to other communities unless and until
they obtain the consent of the parents of these
20 VII CAD 884
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children. That, I think, is a salutary provision. It
performs two functions…
Shri H.V. Kamath: On a point of clarification what
about institutions and schools run by a community or
a minority for its own pupils — not a school where all
communities are mixed but a school run by the
community for its own pupils?
The Hon’ble Dr B.R. Ambedkar: If my friend, Mr
Kamath will read the other article he will see that
once an institution, whether maintained by the
community or not, gets a grant, the condition is that it
shall keep the school open to all communities. That
provision he has not read.”

  1. He reaffirmed the freedom of the State to give or
    not to give aid to these schools when directly referring
    to draft Article 23 which is the precursor of the
    present Articles 29 and 30 as follows21:
    “I think another thing which has to be borne
    in reading Article 23 is that it does not impose
    any obligation or burden upon the State. It
    does not say that, when for instance the
    Madras people come to Bombay, the Bombay
    Government shall be required by law to
    finance any project of giving education either
    in Tamil language or in Andhra language or
    any other language. There is no burden cast
    upon the State. The only limitation that is
    imposed by Article 23 is that if there is a
    cultural minority which wants to preserve its
    language, its script and its culture, the State
    shall not by law impose upon it any other
    culture which may be either local or
    otherwise.”
    And, went on to observe that once an institution was receiving aid,
    “it must abide by the rigor of Article 29(2) in the matter of admission of
    21 VII CAD 923
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    students in the college” and “as already held by me, St. Stephen’s College
    and Allahabad Agricultural Institute are not entitled to claim any
    preferential right or reservation in favour of students of Christian
    community as they are getting grant-in-aid and as such I do not consider it
    necessary to labour any more on the question of deciding as to what
    percentage can be considered as reasonable”
  2. We must also refer to two decisions of this Court after the decision
    in Ahmedabad St. Xaviers College5
    where the appointment of Principal of
    a minority educational institution was in question.
    29.1 In Board of Secondary Education and Teachers Training v. Jt.
    Director of Public Instructions, Sagar and others22, a Bench of two
    Judges of this Court observed:
    “3. The decisions of this Court make it clear that in
    the matter of appointment of the Principal, the
    management of a minority educational institution has
    a choice. It has been held that one of the incidents of
    the right to administer a minority educational
    institution is the selection of the Principal. Any rules
    which take away this right of the management have
    been held to be interfering with the right guaranteed
    by Article 30 of the Constitution. In this case, both
    Julius Prasad selected by the management and the
    third respondent are qualified and eligible for
    appointment as Principal according to rules. The
    22 (1998) 8 SCC 555
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    question is whether the management is not entitled to
    select a person of their choice. The decisions of this
    Court including the decision in State of Kerala v. Very
    Rev. Mother Provincial and Ahmedabad St. Xavier’s
    College Society v. State of Gujarat make it clear that
    this right of the minority educational institution
    cannot be taken away by any rules or regulations or
    by any enactment made by the State. We are,
    therefore, of the opinion that the High Court was not
    right in holding otherwise. The State has undoubtedly
    the power to regulate the affairs of the minority
    educational institutions also in the interest of
    discipline and excellence. But in that process, the
    aforesaid right of the management cannot be taken
    away, even if the Government is giving hundred per
    cent grant. We need not go into any other question in
    this appeal.”
    (Emphasis supplied)

29.2 In N. Ammad v. Manager, Emjay High School and others23 a
Bench of two Judges of this Court, while dealing with the issue “whether
the management of a minority school was free to choose and appoint any
qualified person as Headmaster” observed as under:
“18. Selection and appointment of Headmaster in a
school (or Principal of a college) are of prime
importance in administration of that educational
institution. The Headmaster is the key post in the
running of the school. He is the hub on which all the
spokes of the school are set around whom they rotate
to generate result. A school is personified through its
Headmaster and he is the focal point on which
outsiders look at the school. A bad Headmaster can
spoil the entire institution, an efficient and honest
Headmaster can improve it by leaps and bounds. The
functional efficacy of a school very much depends
upon the efficiency and dedication of its Headmaster.
This pristine precept remains unchanged despite many
23 (1998) 6 SCC 674
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changes taking place in the structural patterns of
education over the years.

  1. How important is the post of Headmaster of a
    school has been pithily stated by a Full Bench of the
    Kerala High Court in Aldo Maria Patroni v. E.C.
    Kesavan. Chief Justice M.S. Menon has, in a style
    which is inimitable, stated thus:
    “The post of the headmaster is of pivotal
    importance in the life of a school. Around him
    wheels the tone and temper of the institution;
    on him depends the continuity of its
    traditions, the maintenance of discipline and
    the efficiency of its teaching. The right to
    choose the headmaster is perhaps the most
    important facet of the right to administer a
    school, and we must hold that the imposition
    of any trammel thereon — except to the
    extent of prescribing the requisite
    qualifications and experience — cannot but
    be considered as a violation of the right
    guaranteed by Article 30(1) of the
    Constitution. To hold otherwise will be to
    make the right ‘a teasing illusion, a promise
    of unreality’.”
  2. The importance of the key role which a
    Headmaster plays in the school cannot be better
    delineated than that. The nine-Judge Bench in the
    Ahmedabad St. Xavier’s College Society has
    highlighted the importance of the role of the Principal
    of a college. In support of majority view in that
    decision K.K. Mathew, J. has observed thus: (SCC pp.
    815-16, para 182)
    “182. It is upon the principal and teachers of a
    college that the tone and temper of an
    educational institution depend. On them would
    depend its reputation, the maintenance of
    discipline and its efficiency in teaching. The
    right to choose the principal and to have the
    teaching conducted by teachers appointed by
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    the management after an overall assessment of
    their outlook and philosophy is perhaps the
    most important facet of the right to administer
    an educational institution.”
  3. H.R. Khanna, J. has adopted a still broader view
    that even selection of teachers is of great importance
    in the right to manage a school. Learned Judge has
    stated thus: (SCC p. 789, para 103)
    “The selection and appointment of teachers for
    an educational institution is one of the essential
    ingredients of the right to manage an
    educational institution and the minorities can
    plainly be not denied such right of selection
    and appointment without infringing Article
    30(1).”
  4. Krishna Iyer, J. who dissented from the majority
    view in Gandhi Faiz-E-Am College v. University of
    Agra has, nevertheless, emphasised the importance of
    the post of the Principal in the following words: (SCC
    p. 293, para 21)
    “21. An activist principal is an asset in
    discharging these duties which are
    inextricably interlaced with academic
    functions. The principal is an invaluable
    insider — the Management’s own choice —
    not an outsider answerable to the ViceChancellor. He brings into the work of the
    Managing Committee that intimate
    acquaintance with educational operations and
    that necessary expression of student-teacher
    aspirations and complaints which are so
    essential for the minority institution to
    achieve a happy marriage between
    individuality and excellence.”
  5. Whatever is said about the importance of the post
    of Principal of a college vis-à-vis the administration
    of the institution would in pari materia apply to the
    Headmaster of a school with equal force.
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  6. If management of the school is not given very
    wide freedom to choose the personnel for holding
    such a key post, subject of course to the restrictions
    regarding qualifications to be prescribed by the State,
    the right to administer the school would get much
    diminished.”
    (Emphasis supplied)
    B) Decision in TMA Pai Foundation
  7. A Bench of Eleven Judges was constituted to consider questions
    touching upon the rights of Minority Educational Institutions under
    Articles 29 and 30 of the Constitution. The reasons why the Bench of that
    strength was constituted were set out in brief in paragraph No.3 of the
    leading Judgment authored by Kirpal, C.J. as under:
    “3. The hearing of these cases has had a chequered
    history. Writ Petition No. 350 of 1993 filed by the
    Islamic Academy of Education and connected
    petitions were placed before a Bench of five Judges.
    As the Bench was prima facie of the opinion that
    Article 30 did not clothe a minority educational
    institution with the power to adopt its own method of
    selection and the correctness of the decision of this
    Court in St. Stephen’s College v. University of Delhi
    was doubted, it was directed that the questions that
    arose should be authoritatively answered by a larger
    Bench. These cases were then placed before a Bench
    of seven Judges. The questions framed were recast
    and on 6-2-1997, the Court directed that the matter be
    placed before a Bench of at least eleven Judges, as it
    was felt that in view of the Forty-second Amendment
    to the Constitution, whereby “education” had been
    included in Entry 25 of List III of Seventh Schedule,
    the question of who would be regarded as a
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    “minority” was required to be considered because the
    earlier case-law related to the pre-amendment era,
    when education was only in the State List. When the
    cases came up for hearing before an eleven-Judge
    Bench, during the course of hearing on 19-3-1997, the
    following order was passed:
    “Since a doubt has arisen during the course of
    our arguments as to whether this Bench would
    feel itself bound by the ratio propounded in —
    Kerala Education Bill, 1957, In Re and
    Ahmedabad St. Xavier’s College Society v.
    State of Gujarat it is clarified that this sized
    Bench would not feel itself inhibited by the
    views expressed in those cases since the
    present endeavour is to discern the true scope
    and interpretation of Article 30(1) of the
    Constitution, which being the dominant
    question would require examination in its
    pristine purity. The factum is recorded.”
  8. The Bench framed 11 questions. For the present discussion we are
    principally concerned with discussion relevant to question Nos.4 and 5.
    Under heading- “3. In case private institutions can be governmental
    regulations and if so, to what extent?”, the discussion was under various
    sub-headings. The first sub-heading was “private unaided non-minority
    educational institutions”. Under this sub-heading para 50 of the leading
    Judgment enumerated what “the right to establish and administer”
    comprises of, as under:

“50. The right to establish and administer broadly
comprises the following rights:
(a) to admit students;
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(b) to set up a reasonable fee structure;
(c) to constitute a governing body;
(d) to appoint staff (teaching and non-teaching);
and
(e) to take action if there is dereliction of duty on
the part of any employees.”
The other sub-headings were “private unaided professional
colleges”, “private aided professional institutions (non-minority)” and
“other aided institutions”. Since the discussion under these sub-headings
as well as the next heading does not strictly deal with the matter in the
context of minority educational institutions, we may turn to the next
heading “5. To what extent can the rights of aided private minority
institutions to administer be regulated?”
31.1. After discussing about the extent of right under Article 30 of the
Constitution, the leading Judgment considered all the relevant cases on the
point. The following paragraphs are noteworthy:
“90. In the exercise of this right to conserve the
language, script or culture, that section of the society
can set up educational institutions. The right to
establish and maintain educational institutions of its
choice is a necessary concomitant to the right
conferred by Article 30. The right under Article 30 is
not absolute. Article 29(2) provides that, where any
educational institution is maintained by the State or
receives aid out of State funds, no citizen shall be
denied admission on the grounds only of religion,
race, caste, language or any of them. The use of the
expression “any educational institution” in Article
29(2) would (sic not) refer to any educational
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institution established by anyone, but which is
maintained by the State or receives aid out of State
funds. In other words, on a plain reading, Statemaintained or aided educational institutions, whether
established by the Government or the majority or a
minority community cannot deny admission to a
citizen on the grounds only of religion, race, caste or
language.

  1. Can Article 30(1) be so read as to mean that it
    contains an absolute right of the minorities, whether
    based on religion or language, to establish and
    administer educational institutions in any manner they
    desire, and without being obliged to comply with the
    provisions of any law? Does Article 30(1) give the
    religious or linguistic minorities a right to establish an
    educational institution that propagates religious or
    racial bigotry or ill will amongst the people? Can the
    right under Article 30(1) be so exercised that it is
    opposed to public morality or health? In the exercise
    of its right, would the minority while establishing
    educational institutions not be bound by town
    planning rules and regulations? Can they construct
    and maintain buildings in any manner they desire
    without complying with the provisions of the building
    bye-laws or health regulations?
    … … …
  2. In Rev. Sidhajbhai Sabhai v. State of Bombay
    this Court had to consider the validity of an order
    issued by the Government of Bombay whereby from
    the academic year 1955-56, 80% of the seats in the
    training colleges for teachers in non-government
    training colleges were to be reserved for the teachers
    nominated by the Government. The petitioners, who
    belonged to the minority community, were, inter alia,
    running a training college for teachers, as also
    primary schools. The said primary schools and college
    were conducted for the benefit of the religious
    denomination of the United Church of Northern India
    and Indian Christians generally, though admission
    was not denied to students belonging to other
    communities. The petitioners challenged the
    government order requiring 80% of the seats to be
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    filled by nominees of the Government, inter alia, on
    the ground that the petitioners were members of a
    religious denomination and that they constituted a
    religious minority, and that the educational
    institutions had been established primarily for the
    benefit of the Christian community. It was the case of
    the petitioners that the decision of the Government
    violated their fundamental rights guaranteed by
    Articles 30(1), 26(a), (b), (c) and (d), and 19(1)(f) and
    (g). While interpreting Article 30, it was observed by
    this Court at SCR pp. 849-50 as under:
    “All minorities, linguistic or religious have
    by Article 30(1) an absolute right to establish
    and administer educational institutions of
    their choice; and any law or executive
    direction which seeks to infringe the
    substance of that right under Article 30(1)
    would to that extent be void. This, however,
    is not to say that it is not open to the State to
    impose regulations upon the exercise of this
    right. The fundamental freedom is to
    establish and to administer educational
    institutions: it is a right to establish and
    administer what are in truth educational
    institutions, institutions which cater to the
    educational needs of the citizens, or sections
    thereof. Regulation 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.”
  3. While coming to the conclusion that the right of
    the private training colleges to admit students of their
    choice was severely restricted, this Court referred to
    the opinion in Kerala Education Bill, 1957 case but
    distinguished it by observing that the Court did not, in
    that case, lay down any test of reasonableness of the
    regulation. No general principle on which the
    reasonableness of a regulation may be tested was
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    sought to be laid down in Kerala Education Bill,
    1957 case and, therefore, it was held in Sidhajbhai
    Sabhai case that the opinion in that case was not an
    authority for the proposition that all regulative
    measures, which were not destructive or annihilative
    of the character of the institution established by the
    minority, provided the regulations were in the national
    or public interest, were valid. In this connection it was
    further held at SCR pp. 856-57, as follows:
    “The right established by Article 30(1) is a
    fundamental right declared in terms absolute.
    Unlike the fundamental freedoms guaranteed
    by Article 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 socalled 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 an
    educational institution, the right guaranteed by
    Article 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.”

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  1. The aforesaid decision does indicate that the
    right under Article 30(1) is not so absolute as to
    prevent the Government from making any regulation
    whatsoever. As already noted hereinabove, in
    Sidhajbhai Sabhai case it was laid down that
    regulations made in the true interests of efficiency of
    instruction, discipline, health, sanitation, morality and
    public order could be imposed. If this is so, it is
    difficult to appreciate how the Government can be
    prevented from framing regulations that are in the
    national interest, as it seems to be indicated in the
    passage quoted hereinabove. Any regulation framed in
    the national interest must necessarily apply to all
    educational institutions, whether run by the majority
    or the minority. Such a limitation must necessarily be
    read into Article 30. The right under Article 30(1)
    cannot be such as to override the national interest or
    to prevent the Government from framing regulations
    in that behalf. It is, of course, true that government
    regulations cannot destroy the minority character of
    the institution or make the right to establish and
    administer a mere illusion; but the right under Article
    30 is not so absolute as to be above the law. It will
    further be seen that in Sidhajbhai Sabhai case no
    reference was made to Article 29(2) of the
    Constitution. This decision, therefore, cannot be an
    authority for the proposition canvassed before us.”
    (Emphasis supplied)
    31.2. The leading Judgment thereafter considered the decision of this
    Court in Ahmedabad St. Xavier’s College5
    , and while quoting certain
    passages therefrom, it was observed:
    “119. In a concurrent judgment, while noting (at SCC
    p. 770, para 73) that “clause (2) of Article 29 forbids
    the denial of admission to citizens into any
    educational institution maintained by the State or
    receiving aid out of State funds on grounds only of
    religion, race, caste, language or any of them”,
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    Khanna, J. then examined Article 30, and observed at
    SCR p. 222, as follows: (SCC p. 770, para 74)
    “74. Clause (1) of Article 30 gives right to all
    minorities, whether based on religion or
    language, to establish and administer
    educational institutions of their choice.
    Analysing that clause it would follow that the
    right which has been conferred by the clause
    is on two types of minorities. Those
    minorities may be based either on religion or
    on language. The right conferred upon the
    said minorities is to establish and administer
    educational institutions of their choice. The
    word ‘establish’ indicates the right to bring
    into existence, while the right to administer
    an institution means the right to effectively
    manage and conduct the affairs of the
    institution. Administration connotes
    management of the affairs of the institution.
    The management must be free of control so
    that the founders or their nominees can
    mould the institution as they think fit and in
    accordance with their ideas of how the
    interest of the community in general and the
    institution in particular will be best served.
    The words ‘of their choice’ qualify the
    educational institutions and show that the
    educational institutions established and
    administered by the minorities need not be of
    some particular class; the minorities have the
    right and freedom to establish and administer
    such educational institutions as they choose.
    Clause (2) of Article 30 prevents the State
    from making discrimination in the matter of
    grant of aid to any educational institution on
    the ground that the institution is under the
    management of a minority, whether based on
    religion or language.”
  2. Explaining the rationale behind Article 30, it was
    observed at SCR p. 224, as follows: (SCC p. 772, para
    77)
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    “77. The idea of giving some special rights 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. The
    great leaders of India since time immemorial
    had preached the doctrine of tolerance and
    catholicity of outlook. Those noble ideas were
    enshrined in the Constitution. Special rights
    for minorities were designed not to create
    inequality. Their real effect was to bring about
    equality by ensuring the preservation of the
    minority institutions and by guaranteeing to
    the minorities autonomy in the matter of the
    administration of those institutions. The
    differential treatment for the minorities by
    giving them special rights is intended to bring
    about an equilibrium, so that the ideal of
    equality may not be reduced to a mere abstract
    idea but should become a living reality and
    result in true, genuine equality, an equality not
    merely in theory but also in fact.”
  3. While advocating that provisions of the
    Constitution should be construed according to the
    liberal, generous and sympathetic approach, and after
    considering the principles which could be discerned
    by him from the earlier decisions of this Court,
    Khanna, J., observed at SCR p. 234, as follows: (SCC
    p. 781, para 89)
    “The minorities are as much children of the
    soil as the majority and the approach has been
    to ensure that nothing should be done as might
    deprive the minorities of a sense of belonging,
    of a feeling of security, of a consciousness of
    equality and of the awareness that the
    conservation of their religion, culture,
    language and script as also the protection of
    their educational institutions is a fundamental
    right enshrined in the Constitution. The same
    generous, liberal and sympathetic approach
    should weigh with the courts in construing
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    Articles 29 and 30 as marked the deliberations
    of the Constitution-makers in drafting those
    articles and making them part of the
    fundamental rights. The safeguarding of the
    interest of the minorities amongst sections of
    population is as important as the protection of
    the interest amongst individuals of persons
    who are below the age of majority or are
    otherwise suffering from some kind of
    infirmity. The Constitution and the laws made
    by civilized nations, therefore, generally
    contain provisions for the protection of those
    interests. It can, indeed, be said to be an index
    of the level of civilization and catholicity of a
    nation as to how far their minorities feel secure
    and are not subject to any discrimination or
    suppression.”
  4. The learned Judge then observed that the right of
    the minorities to administer educational institutions
    did not prevent the making of reasonable regulations
    in respect of these institutions. Recognizing that the
    right to administer educational institutions could not
    include the right to maladminister, it was held that
    regulations could be lawfully imposed, for the
    receiving of grants and recognition, while permitting
    the institution to retain its character as a minority
    institution. The 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”. (SCC p.
    783, para 92) It was permissible for the authorities to
    prescribe regulations, which must be complied with,
    before a minority institution could seek or retain
    affiliation and recognition. But it was also stated that
    the regulations made by the authority should not
    impinge upon the minority character of the institution.
    Therefore, a balance has to be kept between the two
    objectives — that of ensuring the standard of
    excellence of the institution, and that of preserving the
    right of the minorities to establish and administer their
    educational institutions. Regulations that embraced
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    and reconciled the two objectives could be considered
    to be reasonable. This, in our view, is the correct
    approach to the problem.
  5. After referring to the earlier cases in relation to
    the appointment of teachers, it was noted by Khanna,
    J., that the conclusion which followed was that a law
    which interfered with a minority’s choice of qualified
    teachers, or its disciplinary control over teachers and
    other members of the staff of the institution, was void,
    as it was violative of Article 30(1). While it was
    permissible for the State and its educational
    authorities to prescribe the qualifications of teachers,
    it was held that once the teachers possessing the
    requisite qualifications were selected by the
    minorities for their educational institutions, the State
    would have no right to veto the selection of those
    teachers. The selection and appointment of teachers
    for an educational institution was regarded as one of
    the essential ingredients under Article 30(1). The
    Court’s attention was drawn to the fact that in Kerala
    Education Bill, 1957 case this Court had opined that
    clauses 11 and 12 made it obligatory for all aided
    schools to select teachers from a panel selected from
    each district by the Public Service Commission and
    that no teacher of an aided school could be dismissed,
    removed or reduced in rank without the previous
    sanction of the authorized officer. At SCC p. 792,
    Khanna, J., observed that in cases subsequent to the
    opinion in Kerala Education Bill, 1957 case9 this
    Court had held similar provisions as clause 11 and
    clause 12 to be violative of Article 30(1) (sic in the
    case) of the minority institutions. He then observed as
    follows: (SCC p. 792, para 109)
    “The opinion expressed by this Court in Re
    Kerala Education Bill, 1957 was of an
    advisory character and though great weight
    should be attached to it because of its
    persuasive value, the said opinion cannot
    override the opinion subsequently expressed
    by this Court in contested cases. It is the law
    declared by this Court in the subsequent
    contested cases which would have a binding
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    effect. The words ‘as at present advised’ as
    well as the preceding sentence indicate that the
    view expressed by this Court in Re Kerala
    Education Bill, 1957 in this respect was
    hesitant and tentative and not a final view in
    the matter.”
    (Emphasis supplied)
    31.3. After considering all the decisions, the matter was summed up as
    under:
    “135. We agree with the contention of the learned
    Solicitor-General that the Constitution in Part III does
    not contain or give any absolute right. All rights
    conferred in Part III of the Constitution are subject to
    at least other provisions of the said Part. It is difficult
    to comprehend that the framers of the Constitution
    would have given such an absolute right to the
    religious or linguistic minorities, which would enable
    them to establish and administer educational
    institutions in a manner so as to be in conflict with the
    other Parts of the Constitution. We find it difficult to
    accept that in the establishment and administration of
    educational institutions by the religious and linguistic
    minorities, no law of the land, even the Constitution,
    is to apply to them.
  6. It follows from the aforesaid decisions that even
    though the words of Article 30(1) are unqualified, this
    Court has held that at least certain other laws of the
    land pertaining to health, morality and standards of
    education apply. The right under Article 30(1) has,
    therefore, not been held to be absolute or above other
    provisions of the law, and we reiterate the same. By
    the same analogy, there is no reason why regulations
    or conditions concerning, generally, the welfare of
    students and teachers should not be made applicable
    in order to provide a proper academic atmosphere, as
    such provisions do not in any way interfere with the
    right of administration or management under Article
    30(1).
  7. As we look at it, Article 30(1) is a sort of
    guarantee or assurance to the linguistic and religious
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    minority institutions of their right to establish and
    administer educational institutions of their choice.
    Secularism and equality being two of the basic
    features of the Constitution, Article 30(1) ensures
    protection to the linguistic and religious minorities,
    thereby preserving the secularism of the country.
    Furthermore, the principles of equality must
    necessarily apply to the enjoyment of such rights. No
    law can be framed that will discriminate against such
    minorities with regard to the establishment and
    administration of educational institutions vis-à-vis
    other educational institutions. Any law or rule or
    regulation that would put the educational institutions
    run by the minorities at a disadvantage when
    compared to the institutions run by the others will
    have to be struck down. At the same time, there also
    cannot be any reverse discrimination. It was observed
    in St. Xavier’s College case5 at SCR p. 192 that :
    (SCC p. 743, para 9)
    “The whole object of conferring the right on
    minorities under Article 30 is to ensure that
    there will be equality between the majority and
    the minority. If the minorities do not have such
    special protection they will be denied
    equality.”
    In other words, the essence of Article 30(1) is to
    ensure equal treatment between the majority and the
    minority institutions. No one type or category of
    institution should be disfavoured or, for that matter,
    receive more favourable treatment than another. Laws
    of the land, including rules and regulations, must
    apply equally to the majority institutions as well as to
    the minority institutions. The minority institutions
    must be allowed to do what the non-minority
    institutions are permitted to do.
  8. Like any other private unaided institutions,
    similar unaided educational institutions administered
    by linguistic or religious minorities are assured
    maximum autonomy in relation thereto; e.g. method
    of recruitment of teachers, charging of fees and
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    admission of students. They will have to comply with
    the conditions of recognition, which cannot be such as
    to whittle down the right under Article 30.”
    (Emphasis supplied)
    31.4. The matter was then considered in the context where aid was
    being received by the concerned minority institution and to what extent its
    autonomy in administration, could be curtailed or regulated. It was
    observed:
    “144. It cannot be argued that no conditions can be
    imposed while giving aid to a minority institution.
    Whether it is an institution run by the majority or the
    minority, all conditions that have relevance to the
    proper utilization of the grant-in-aid by an educational
    institution can be imposed. All that Article 30(2)
    states is that on the ground that an institution is under
    the management of a minority, whether based on
    religion or language, grant of aid to that educational
    institution cannot be discriminated against, if other
    educational institutions are entitled to receive aid. The
    conditions for grant or non-grant of aid to educational
    institutions have to be uniformly applied, whether it is
    a majority-run institution or a minority-run institution.
    As in the case of a majority-run institution, the
    moment a minority institution obtains a grant of aid,
    Article 28 of the Constitution comes into play. When
    an educational institution is maintained out of State
    funds, no religious instruction can be provided
    therein. Article 28(1) does not state that it applies only
    to educational institutions that are not established or
    maintained by religious or linguistic minorities.
    Furthermore, upon the receipt of aid, the provisions of
    Article 28(3) would apply to all educational
    institutions whether run by the minorities or the nonminorities. Article 28(3) is the right of a person
    studying in a State-recognized institution or in an
    educational institution receiving aid from State funds,
    not to take part in any religious instruction, if
    imparted by such institution, without his/her consent
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    (or his/her guardian’s consent if such a person is a
    minor). Just as Articles 28(1) and (3) become
    applicable the moment any educational institution
    takes aid, likewise, Article 29(2) would also be
    attracted and become applicable to an educational
    institution maintained by the State or receiving aid out
    of State funds. It was strenuously contended that the
    right to give admission is one of the essential
    ingredients of the right to administer conferred on the
    religious or linguistic minority, and that this right
    should not be curtailed in any manner. It is difficult to
    accept this contention. If Articles 28(1) and (3) apply
    to a minority institution that receives aid out of State
    funds, there is nothing in the language of Article 30
    that would make the provisions of Article 29(2)
    inapplicable. Like Article 28(1) and Article 28(3),
    Article 29(2) refers to “any educational institution
    maintained by the State or receiving aid out of State
    funds”. A minority institution would fall within the
    ambit of Article 29(2) in the same manner in which
    Article 28(1) and Article 28(3) would be applicable to
    an aided minority institution. It is true that one of the
    rights to administer an educational institution is to
    grant admission to the students. As long as an
    educational institution, whether belonging to the
    minority or the majority community, does not receive
    aid, it would, in our opinion, be its right and
    discretion to grant admission to such students as it
    chooses or selects subject to what has been clarified
    before. Out of the various rights that the minority
    institution has in the administration of the institution,
    Article 29(2) curtails the right to grant admission to a
    certain extent. By virtue of Article 29(2), no citizen
    can be denied admission by an aided minority
    institution on the grounds only of religion, race, caste,
    language or any of them. It is no doubt true that
    Article 29(2) does curtail one of the powers of the
    minority institution, but on receiving aid, some of the
    rights that an unaided minority institution has, are also
    curtailed by Articles 28(1) and 28(3). A minority
    educational institution has a right to impart religious
    instruction — this right is taken away by Article
    28(1), if that minority institution is maintained wholly
    out of State funds. Similarly on receiving aid out of
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    State funds or on being recognized by the State, the
    absolute right of a minority institution requiring a
    student to attend religious instruction is curtailed by
    Article 28(3). If the curtailment of the right to
    administer a minority institution on receiving aid or
    being wholly maintained out of State funds as
    provided by Article 28 is valid, there is no reason why
    Article 29(2) should not be held to be applicable.
    There is nothing in the language of Articles 28(1) and
    (3), Article 29(2) and Article 30 to suggest that, on
    receiving aid, Articles 28(1) and (3) will apply, but
    Article 29(2) will not. Therefore, the contention that
    the institutions covered by Article 30 are outside the
    injunction of Article 29(2) cannot be accepted.
    … … …
  9. The right of the aided minority institution to
    preferably admit students of its community, when
    Article 29(2) was applicable, has been clarified by
    this Court over a decade ago in St. Stephen’s College
    case. While upholding the procedure for admitting
    students, this Court also held that aided minority
    educational institutions were entitled to preferably
    admit their community candidates so as to maintain
    the minority character of the institution, and that the
    State may regulate the intake in this category with due
    regard to the area that the institution was intended to
    serve, but that this intake should not be more than
    50% in any case. Thus, St. Stephen’s endeavoured to
    strike a balance between the two articles. Though we
    accept the ratio of St. Stephen’s which has held the
    field for over a decade, we have compelling
    reservations in accepting the rigid percentage
    stipulated therein. As Article 29 and Article 30 apply
    not only to institutions of higher education but also to
    schools, a ceiling of 50% would not be proper. It will
    be more appropriate that, depending upon the level of
    the institution, whether it be a primary or secondary
    or high school or a college, professional or otherwise,
    and on the population and educational needs of the
    area in which the institution is to be located, the State
    properly balances the interests of all by providing for
    such a percentage of students of the minority
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    community to be admitted, so as to adequately serve
    the interest of the community for which the institution
    was established.
  10. At the same time, the admissions to aided
    institutions, whether awarded to minority or nonminority students, cannot be at the absolute sweet will
    and pleasure of the management of minority
    educational institutions. As the regulations to promote
    academic excellence and standards do not encroach
    upon the guaranteed rights under Article 30, the aided
    minority educational institutions can be required to
    observe inter se merit amongst the eligible minority
    applicants and passage of common entrance test by
    the candidates, where there is one, with regard to
    admissions in professional and non-professional
    colleges. If there is no such test, a rational method of
    assessing comparative merit has to be evolved. As
    regards the non-minority segment, admission may be
    on the basis of the common entrance test and
    counselling by a State agency. In the courses for
    which such a test and counselling are not in vogue,
    admission can be on the basis of relevant criteria for
    the determination of merit. It would be open to the
    State authorities to insist on allocating a certain
    percentage of seats to those belonging to weaker
    sections of society, from amongst the non-minority
    seats.”
    (Emphasis supplied)
    31.5. Finally, as regards Question No.5(c), the leading judgment gave its
    answer as under:-
    “Q. 5. (c) Whether the statutory provisions which
    regulate the facets of administration like control over
    educational agencies, control over governing bodies,
    conditions of affiliation including
    recognition/withdrawal thereof, and appointment of
    staff, employees, teachers and principals including
    their service conditions and regulation of fees, etc.
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    would interfere with the right of administration of
    minorities?
    A. So far as the statutory provisions regulating the
    facets of administration are concerned, in case of an
    unaided minority educational institution, the
    regulatory measure of control should be minimal and
    the conditions of recognition as well as the conditions
    of affiliation to a university or board have to be
    complied with, but in the matter of day-to-day
    management, like the appointment of staff, teaching
    and non-teaching, and administrative control over
    them, the management should have the freedom and
    there should not be any external controlling agency.
    However, a rational procedure for the selection of
    teaching staff and for taking disciplinary action has to
    be evolved by the management itself.
    For redressing the grievances of employees of aided
    and unaided institutions who are subjected to
    punishment or termination from service, a mechanism
    will have to be evolved, and in our opinion,
    appropriate tribunals could be constituted, and till
    then, such tribunals could be presided over by a
    judicial officer of the rank of District Judge.
    The State or other controlling authorities, however,
    can always prescribe the minimum qualification,
    experience and other conditions bearing on the merit
    of an individual for being appointed as a teacher or a
    principal of any educational institution.
    “Regulations can be framed governing service
    conditions for teaching and other staff for whom aid is
    provided by the State, without interfering with the
    overall administrative control of the management over
    the staff.
    Fees to be charged by unaided institutions cannot be
    regulated but no institution should charge capitation
    fee.”
    C) Decisions after TMA Pai Foundation
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  11. In Brahmo Samaj Education Society vs. State of West Bengal24
    ,
    a Bench of two Judges dealt with the issue that arose as under:-
    “5. The main question for consideration is, whether
    the appointment of teachers through the selection of
    the College Service Commission is permissible or not,
    in other words, to decipher the role of the State in the
    matter of appointment of teachers. To establish and
    administer an educational institution is held to be a
    right coming under Article 19(1)(g) of the
    Constitution as enunciated in T.M.A. Pai Foundation
    v. State of Karnataka8
    . According to Article 19(6) of
    the Constitution, the right to establish and maintain an
    educational institution is subject to the reasonable
    restrictions imposed by the State in the interest of
    general public. At the same time, subject to public
    order, morality and health, every religious
    denomination or any section thereof can establish and
    maintain educational institutions under Article 26(a)
    of the Constitution. Reading Article 19(1)(g) and
    Article 26(a) of the Constitution together, the
    petitioners have a right to establish and maintain
    educational institutions and hence we do not think it is
    necessary to decide the issue of
    minority/denominational status of Brahmo Samaj to
    decide the issue in hand. In our view, this issue does
    not arise in the context of the present case.
  12. The question now before us is to decide whether
    the appointment of teachers in an aided institution by
    the College Service Commission by restricting the
    petitioners’ right to appointment is a reasonable
    restriction in the interest of general public or not. The
    petitioners have a right to establish and administer
    educational institution. Merely because the petitioners
    are receiving aid, their autonomy of administration
    cannot be totally restricted and institutions cannot be
    treated as a government-owned one. Of course the
    State can impose such conditions as are necessary for
    the proper maintenance of standards of education and
    24 (2004) 6 SCC 224
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    to check maladministration. It is stated in T.M.A. Pai8
    that:
    “71. While giving aid to professional
    institutions, it would be permissible for the
    authority giving aid to prescribe by rules or
    regulations, the conditions on the basis of
    which admission will be granted to different
    aided colleges by virtue of merit, coupled with
    the reservation policy of the State. The merit
    may be determined either through a common
    entrance test conducted by the university or the
    Government followed by counselling, or on
    the basis of an entrance test conducted by
    individual institutions — the method to be
    followed is for the university or the
    Government to decide. The authority may also
    devise other means to ensure that admission is
    granted to an aided professional institution on
    the basis of merit. In the case of such
    institutions, it will be permissible for the
    Government or the university to provide that
    consideration should be shown to the weaker
    sections of the society. (SCC at p. 550, para
    71)
  13. Once aid is granted to a private
    professional educational institution, the
    Government or the State agency, as a condition
    of the grant of aid, can put fetters on the
    freedom in the matter of administration and
    management of the institution. The State,
    which gives aid to an educational institution,
    can impose such conditions as are necessary
    for the proper maintenance of the high
    standards of education as the financial burden
    is shared by the State. The State would also be
    under an obligation to protect the interest of
    the teaching and non-teaching staff. In many
    States, there are various statutory provisions to
    regulate the functioning of such educational
    institutions where the States give, as a grant or
    aid, a substantial proportion of the revenue
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    expenditure including salary, pay and
    allowances of teaching and non-teaching staff.
    It would be its responsibility to ensure that the
    teachers working in those institutions are
    governed by proper service conditions. The
    State, in the case of such aided institutions, has
    ample power to regulate the method of
    selection and appointment of teachers after
    prescribing requisite qualifications for the
    same. Ever since in Kerala Education Bill,
    1957, Re9 this Court has upheld, in the case of
    aided institutions, those regulations that served
    the interests of students and teachers. Checks
    on the administration may be necessary in
    order to ensure that the administration is
    efficient and sound and will serve the
    academic needs of the institutions. In other
    words, rules and regulations that promote good
    administration and prevent maladministration
    can be formulated so as to promote the
    efficiency of teachers, discipline and fairness
    in administration and to preserve harmony
    among affiliated institutions. At the same time
    it has to be ensured that even an aided
    institution does not become a governmentowned and controlled institution. Normally,
    the aid that is granted is relatable to the pay
    and allowances of the teaching staff. In
    addition, the management of the private aided
    institutions has to incur revenue and capital
    expenses. Such aided institutions cannot obtain
    that extent of autonomy in relation to
    management and administration as would be
    available to a private unaided institution, but at
    the same time, it cannot also be treated as an
    educational institution departmentally run by
    Government or as a wholly owned and
    controlled government institution and interfere
    with constitution of the governing bodies or
    thrusting the staff without reference to
    management.
  14. There are a large number of educational
    institutions, like schools and non-professional
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    colleges, which cannot operate without the
    support of aid from the State. Although these
    institutions may have been established by
    philanthropists or other public-spirited
    persons, it becomes necessary, in order to
    provide inexpensive education to the students,
    to seek aid from the State. In such cases, as
    those of the professional aided institutions
    referred to hereinabove, the Government
    would be entitled to make regulations relating
    to the terms and conditions of employment of
    the teaching and non-teaching staff whenever
    the aid for the posts is given by the State as
    well as admission procedures. Such rules and
    regulations can also provide for the reasons
    and the manner in which a teacher or any other
    member of the staff can be removed. In other
    words, the autonomy of a private aided
    institution would be less than that of an
    unaided institution.
    … … …
  15. When a larger Bench consisting of eleven Judges
    of this Court in T.M.A. Pai has declared what the law
    on the matter is, we do not want to dilute the effect of
    the same by analysing various statements made
    therein or indulge in any dissection of the principles
    underlying it. We would rather state that the State
    Government shall take note of the declarations of law
    made by this Court in this regard and make suitable
    amendments to their laws, rules and regulations to
    bring them in conformity with the principles set out
    therein.”
  16. In P.A. Inamdar and others v. State of Maharashtra and others25
    a Bench of Seven Judges of this Court culled out the issues which arose for
    its consideration as under:
    25 (2005) 6 SCC 537
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    “26. These matters have been directed to be placed for
    hearing before a Bench of seven Judges under orders
    of the Chief Justice of India pursuant to the order
    dated 15-7-2004 in P.A. Inamdar v. State of
    Maharashtra26 and order dated 29-7-2004 in
    Pushpagiri Medical Society v. State of Kerala27. The
    aggrieved persons before us are again classifiable in
    one class, that is, unaided minority and non-minority
    institutions imparting professional education. The
    issues arising for decision before us are only three:
    (i) the fixation of “quota” of admissions/students in
    respect of unaided professional institutions;
    (ii) the holding of examinations for admissions to
    such colleges, that is, who will hold the entrance tests;
    and
    (iii) the fee structure.
    The questions spelled out by orders of reference
  17. In the light of the two orders of reference, referred
    to hereinabove, we propose to confine our discussion
    to the questions set out hereunder which, according to
    us, arise for decision:
    (1) To what extent can the State regulate admissions
    made by unaided (minority or non-minority)
    educational institutions? Can the State enforce its
    policy of reservation and/or appropriate to itself any
    quota in admissions to such institutions?
    (2) Whether unaided (minority and non-minority)
    educational institutions are free to devise their own
    admission procedure or whether the direction made in
    Islamic Academy28 for compulsorily holding an
    entrance test by the State or association of institutions
    and to choose therefrom the students entitled to
    26 (2004) 8 SCC 139
    27 (2004) 8 SCC 135
    28 (2003) 6 SCC 697
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    admission in such institutions, can be sustained in
    light of the law laid down in Pai Foundation?
    (3) Whether Islamic Academy could have issued
    guidelines in the matter of regulating the fee payable
    by the students to the educational institutions?
    (4) Can the admission procedure and fee structure be
    regulated or taken over by the Committees ordered to
    be constituted by Islamic Academy?”
    33.1. While dealing with real purpose of Article 30 of the Constitution, it was
    stated:-
    “70. The real purpose of Article 30 is to prevent
    discrimination against members of the minority
    community and to place them on an equal footing
    with non-minority. Reverse discrimination was not the
    intention of Article 30. If running of educational
    institutions cannot be said to be at a higher plane than
    the right to carry on any other business, reasonable
    restrictions similar to those placed on the right to
    carry on business can be placed on educational
    institutions conducting professional courses. For the
    purpose of these restrictions both minorities and nonminorities can be treated at par and there would not be
    any violation of Article 30(1), which guarantees only
    protection against oppression and discrimination of
    the minority from the majority. Activities of education
    being essentially charitable in nature, the educational
    institutions both of a non-minority and minority
    character can be regulated and controlled so that they
    do not indulge in selling seats of learning to make
    money. They can be allowed to generate such funds as
    would be reasonably required to run the institute and
    for its further growth.”
    (Emphasis supplied)
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    33.2 The discussion shows that the matter was considered in the context
    of the rights of unaided institutions and not with regard to “minority
    educational institutions receiving State aid” as is evident from para No.123
    of the decision. Para No.103 of the decision shows that minority
    educational institutions were classified in three categories and para No.104
    onwards points difference between professional and non-professional
    educational institutions. Paragraph Nos.104 to 107 were as under:
    “Difference between professional and nonprofessional educational institutions
  18. Article 30(1) speaks of “educational institutions”
    generally and so does Article 29(2). These articles do
    not draw any distinction between an educational
    institution dispensing theological education or
    professional or non-professional education. However,
    the terrain of thought as has developed through
    successive judicial pronouncements culminating in
    Pai Foundation is that looking at the concept of
    education, in the backdrop of the constitutional
    provisions, professional educational institutions
    constitute a class by themselves as distinguished from
    educational institutions imparting non-professional
    education. It is not necessary for us to go deep into
    this aspect of the issue posed before us inasmuch as
    Pai Foundation has clarified that merit and excellence
    assume special significance in the context of
    professional studies. Though merit and excellence are
    not anathema to non-professional education, yet at
    that level and due to the nature of education which is
    more general, the need for merit and excellence
    therein is not of the degree as is called for in the
    context of professional education.
  19. Dealing with unaided minority educational
    institutions, Pai Foundation8
    holds that Article 30
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    does not come in the way of the State stepping in for
    the purpose of securing transparency and recognition
    of merit in the matter of admissions. Regulatory
    measures for ensuring educational standards and
    maintaining excellence thereof are no anathema to the
    protection conferred by Article 30(1). However, a
    distinction is to be drawn between unaided minority
    educational institution of the level of schools and
    undergraduate colleges on the one side and
    institutions of higher education, in particular, those
    imparting professional education, on the other side. In
    the former, the scope for merit-based selection is
    practically nil and hence may not call for regulation.
    But in the case of the latter, transparency and merit
    have to be unavoidably taken care of and cannot be
    compromised. There could be regulatory measures for
    ensuring educational standards and maintaining
    excellence thereof. (See para 161, answer to Question
    4, in Pai Foundation.) The source of this distinction
    between two types of educational institutions referred
    to hereinabove is to be found in the principle that
    right to administer does not include a right to
    maladminister.
  20. S.B. Sinha, J. has, in his separate opinion in
    Islamic Academy described (in para 199) the situation
    as a pyramid-like situation and suggested the right of
    minority to be read along with the fundamental duty.
    Higher the level of education, lesser are the seats and
    higher weighs the consideration for merit. It will,
    necessarily, call for more State intervention and lesser
    say for the minority.
    107 Educational institutions imparting higher
    education i.e. graduate level and above and in
    particular specialised education such as technical or
    professional, constitute a separate class. While
    embarking upon resolving issues of constitutional
    significance, where the letter of the Constitution is not
    clear, we have to keep in view the spirit of the
    Constitution, as spelt out by its entire scheme.
    Education aimed at imparting professional or
    technical qualifications stands on a different footing
    from other educational instruction. Apart from other
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    provisions, Article 19(6) is a clear indicator and so are
    clauses (h) and (j) of Article 51-A. Education up to
    the undergraduate level aims at imparting knowledge
    just to enrich the mind and shape the personality of a
    student. Graduate-level study is a doorway to
    admissions in educational institutions imparting
    professional or technical or other higher education
    and, therefore, at that level, the considerations akin to
    those relevant for professional or technical
    educational institutions step in and become relevant.
    This is in the national interest and strengthening the
    national wealth, education included. Education up to
    the undergraduate level on the one hand and education
    at the graduate and postgraduate levels and in
    professional and technical institutions on the other are
    to be treated on different levels inviting not identical
    considerations, is a proposition not open to any more
    debate after Pai Foundation. A number of legislations
    occupying the field of education whose constitutional
    validity has been tested and accepted suggest that
    while recognition or affiliation may not be a must for
    education up to undergraduate level or, even if
    required, may be granted as a matter of routine,
    recognition or affiliation is a must and subject to
    rigorous scrutiny when it comes to educational
    institutions awarding degrees, graduate or
    postgraduate, postgraduate diplomas and degrees in
    technical or professional disciplines. Some such
    legislations are found referred in paras 81 and 82 of
    S.B. Sinha, J.’s opinion in Islamic Academy.”
  21. In Kanya Junior High School, Bal Vidya Mandir, Etah, U.P. v.
    U.P. Basic Shiksha Parishad, Allahabd, U.P. and others29 one of the issues
    that arose was whether the school established and administered by
    individuals professing – Jain Religion could be said to be a Religious
    Minority Educational Institution in the State of U.P. It was concluded by
    29 (2006) 11 SCC 92
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    this Court that since the school was recognised as a Minority Educational
    Institution by the Division Bench of the High Court of Judicature at
    Allahabad, it could not be denied that status and as such before terminating
    the services of a teacher, prior approval of the District Basic Education
    Officer was not necessary.
  22. In Secretary, Malankara Syrian Catholic College v. T. Jose and
    others6
    the principal question that arose for consideration was whether
    right to choose a Principal is part of the right of a minority institution
    under Article 30(1) of the Constitution. This Court considered the relevant
    decisions on the point and also quoted para No.16 of the decision of this
    Court in Frank Anthony Public School case17. The general principles
    relevant to establishment and administration of educational institutions by
    minorities were summed up as under:-
    “19. The general principles relating to establishment
    and administration of educational institution by
    minorities may be summarised thus:
    (i) The right of minorities to establish and administer
    educational institutions of their choice comprises the
    following rights:
    (a) to choose its governing body in whom the
    founders of the institution have faith and
    confidence to conduct and manage the affairs of
    the institution;
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    (b) to appoint teaching staff (teachers/lecturers
    and Headmasters/Principals) as also non-teaching
    staff, and to take action if there is dereliction of
    duty on the part of any of its employees;
    (c) to admit eligible students of their choice and
    to set up a reasonable fee structure;
    (d) to use its properties and assets for the benefit
    of the institution.
    (ii) The right conferred on minorities under Article 30
    is only to ensure equality with the majority and not
    intended to place the minorities in a more
    advantageous position vis-à-vis the majority. There is
    no reverse discrimination in favour of minorities. The
    general laws of the land relating to national interest,
    national security, social welfare, public order,
    morality, health, sanitation, taxation, etc. applicable to
    all, will equally apply to minority institutions also.
    (iii) The right to establish and administer educational
    institutions is not absolute. Nor does it include the
    right to maladminister. There can be regulatory
    measures for ensuring educational character and
    standards and maintaining academic excellence. There
    can be checks on administration as are necessary to
    ensure that the administration is efficient and sound,
    so as to serve the academic needs of the institution.
    Regulations made by the State concerning generally
    the welfare of students and teachers, regulations
    laying down eligibility criteria and qualifications for
    appointment, as also conditions of service of
    employees (both teaching and non-teaching),
    regulations to prevent exploitation or oppression of
    employees, and regulations prescribing syllabus and
    curriculum of study fall under this category. Such
    regulations do not in any manner interfere with the
    right under Article 30(1).
    (iv) Subject to the eligibility conditions/qualifications
    prescribed by the State being met, the unaided
    minority educational institutions will have the
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    freedom to appoint teachers/lecturers by adopting any
    rational procedure of selection.
    (v) Extension of aid by the State does not alter the
    nature and character of the minority educational
    institution. Conditions can be imposed by the State to
    ensure proper utilisation of the aid, without however
    diluting or abridging the right under Article 30(1).
    … … …
  23. We may also recapitulate the extent of regulation
    by the State, permissible in respect of employees of
    minority educational institutions receiving aid from
    the State, as clarified and crystallised in T.M.A. Pai
    The State can prescribe:
    (i) the minimum qualifications, experience and other
    criteria bearing on merit, for making appointments,
    (ii) the service conditions of employees without
    interfering with the overall administrative control by
    the management over the staff,
    (iii) a mechanism for redressal of the grievances of
    the employees,
    (iv) the conditions for the proper utilisation of the aid
    by the educational institutions, without abridging or
    diluting the right to establish and administer
    educational institutions.
    In other words, all laws made by the State to regulate
    the administration of educational institutions and
    grant of aid will apply to minority educational
    institutions also. But if any such regulations interfere
    with the overall administrative control by the
    management over the staff, or abridges/dilutes, in any
    other manner, the right to establish and administer
    educational institutions, such regulations, to that
    extent, will be inapplicable to minority institutions.”
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    35.1 As regards freedom to choose the principal, it was observed:-
  24. The Principal or Headmaster of an educational
    institution is responsible for the functional efficiency
    of the institution, as also the quality of education and
    discipline in the institution. He is also responsible for
    maintaining the philosophy and objects of the
    institution.
    35.2 It also relied upon the passage from the decision of this Court in N.
    Ammad23
    , as under:-
  25. In N. Ammad the appellant contended that he
    being the seniormost graduate teacher of an aided
    minority school, he should be appointed as the
    Headmaster and none else. He relied on Rule 44-A of
    the Kerala Education Rules which provided that
    appointment of Headmaster shall ordinarily be
    according to seniority from the seniority list prepared
    and maintained under clauses (a) and (b) of Rule 34.
    This Court held: (SCC p. 680, paras 18-19)
    “18. Selection and appointment of
    Headmaster in a school (or Principal of a
    college) are of prime importance in
    administration of that educational institution.
    The Headmaster is the key post in the
    running of the school. He is the hub on which
    all the spokes of the school are set around
    whom they rotate to generate result. A school
    is personified through its Headmaster and he
    is the focal point on which outsiders look at
    the school. A bad Headmaster can spoil the
    entire institution, an efficient and honest
    Headmaster can improve it by leaps and
    bounds. The functional efficacy of a school
    very much depends upon the efficiency and
    dedication of its Headmaster. This pristine
    precept remains unchanged despite many
    changes taking place in the structural patterns
    of education over the years.
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  26. How important is the post of Headmaster
    of a school has been pithily stated by a Full
    Bench of the Kerala High Court in Aldo
    Maria Patroni v. E.C. Kesavan30. Chief
    Justice M.S. Menon has, in a style which is
    inimitable, stated thus:
    ‘The post of the headmaster is of pivotal
    importance in the life of a school.
    Around him wheels the tone and temper
    of the institution; on him depends the
    continuity of its traditions, the
    maintenance of discipline and the
    efficiency of its teaching. The right to
    choose the headmaster is perhaps the
    most important facet of the right to
    administer a school, and we must hold
    that the imposition of any trammel
    thereon—except to the extent of
    prescribing the requisite qualifications
    and experience—cannot but be
    considered as a violation of the right
    guaranteed by Article 30(1) of the
    Constitution. To hold otherwise will be
    to make the right “a teasing illusion, a
    promise of unreality”.’
    Thereafter, this Court concluded that the management
    of minority institution is free to find out a qualified
    person either from the staff of the same institution or
    from outside, to fill up the vacancy; and that the
    management’s right to choose a qualified person as
    the Headmaster of the school is well insulated by the
    protective cover of Article 30(1) of the Constitution
    and it cannot be chiselled out through any legislative
    act or executive rule except for fixing up the
    qualifications and conditions of service for the post;
    and that any such statutory or executive fiat would be
    violative of the fundamental right enshrined in Article
    30(1) and would therefore be void. This Court further
    observed that if the management of the school is not
    30 AIR 1965 Ker 75 : 1964 KLT 791 (FB)
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    given the wide freedom to choose the person for
    holding the key post of Principal subject, of course, to
    the restriction regarding qualifications to be
    prescribed by the State, the right to administer the
    school would get much diminished.
    35.3 It was, thereafter, concluded:-
    “27. It is thus clear that the freedom to choose the
    person to be appointed as Principal has always been
    recognised as a vital facet of the right to administer
    the educational institution. This has not been, in any
    way, diluted or altered by T.M.A. Pai. Having regard
    to the key role played by the Principal in the
    management and administration of the educational
    institution, there can be no doubt that the right to
    choose the Principal is an important part of the right
    of administration and even if the institution is aided,
    there can be no interference with the said right. The
    fact that the post of the Principal/Headmaster is also
    covered by State aid will make no difference.”
  27. In Sindhi Education Society and another v. Chief Secretary,
    Government of NCT of Delhi and others7
    a Bench of two Judges of this
    Court considered inter alia whether under Rule 64(1)(b) of the Delhi
    School Education Rules, 1973, instructions could be issued to fill in the
    posts of teachers in an aided Minority Educational Institution in accordance
    with the policy of reservation by candidates from the categories of
    Scheduled Casts and Scheduled Tribes. The ratio of the cases decided by
    this Court in Re: The Kerala Education Bill, 19579
    and in Ahmedabad St.
    Xaviers’ College5
    was considered as under:
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    “46. In the said case, the Court held that right of the
    minorities to some extent was restricted in the sense
    that general control still could be exercised by the
    authorities concerned, but in accordance with law.
    That is how Clause 11 of the Bill, which has been
    very heavily relied upon by the respondents before us,
    completely puts an embargo on the appointment of
    teachers of their choice and the teachers could only be
    appointed out of the panel selected by the Public
    Service Commission. This clause was held not to be
    in violation of the Constitution, but Clauses 14 and
    15, which related to taking over of the management of
    an aided school for the conditions stipulated therein,
    were held to be unconstitutional and bad. This was in
    view of the law stated under the Bill and its scheme
    that weighed with the Court to record the findings
    aforenoticed.
  28. Still another seven-Judge Bench of this Court, in
    Ahmedabad St. Xavier’s College Society5 was
    primarily concerned with the scope of Articles 29 and
    30 of the Constitution, relating to the rights of
    minorities to impart general education and
    applicability of the concept of affiliation to such
    institutions. Of course, the Court held that there was
    no fundamental right of a minority institution to get
    affiliation from a university. When a minority
    institution applies to a university to be affiliated, it
    expresses its choice to participate in the system of
    general education and courses of instructions
    prescribed by that university, and it agrees to follow
    the uniform courses of study. Therefore, measures
    which will regulate the courses of study, the
    qualifications and appointment of teachers, the
    conditions of employment of teachers, the health,
    hygiene of students and the other facilities are
    germane to affiliation of minority institutions.
    36.1 In the context of the decision in TMA Pai Foundation8
    , it was
    observed:
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    “55. The respondents have placed reliance upon the
    law stated by the Bench that any regulation framed in
    the national interest must necessarily apply to all
    educational institutions, whether run by majority or
    the minority. Such a limitation must be read into
    Article 30. The rule under Article 30(1) cannot be
    such as to override the national interest or to prevent
    the Government from framing regulations in that
    behalf. It is, of course, true that government
    regulations cannot destroy the minority character of
    the institution or make a right to establish and
    administer a mere illusion; but the right under Article
    30 is not so absolute as to be above the law.
  29. The appellant also seeks to derive benefit from the
    view that the courts have also held that the right to
    administer is not absolute and is subject to reasonable
    regulations for the benefit of the institutions as the
    vehicle of education consistent with the national
    interest. Such general laws of the land would also be
    applicable to the minority institutions as well. There is
    no reason why regulations or conditions concerning
    generally the welfare of the students and teachers
    should not be made applicable in order to provide a
    proper academic atmosphere. As such, the provisions
    do not, in any way, interfere with the right of
    administration or management under Article 30(1).
    Any law, rule or regulation, that would put the
    educational institutions run by the minorities at a
    disadvantage, when compared to the institutions run
    by the others, will have to be struck down. At the
    same time, there may not be any reverse
    discrimination.
  30. In T.M.A. Pai case8 the right to establish an
    institution is provided. The Court held that the right to
    establish an institution is provided in Article 19(1)(g)
    of the Constitution. Such right, however, is subject to
    reasonable restriction, which may be brought about in
    terms of clause (6) thereof. Further, that minority,
    whether based on religion or language, however, has a
    fundamental right to establish and administer
    educational institution of its own choice under Article
    30(1).
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  31. The right under clause (1) of Article 30 is not
    absolute but subject to reasonable restrictions which,
    inter alia, may be framed having regard to the public
    interest and national interest of the country.
    Regulation can also be framed to prevent
    maladministration as well as for laying down
    standards of education, teaching, maintenance of
    discipline, public order, health, morality, etc. It is also
    well settled that a minority institution does not cease
    to be so, the moment grant-in-aid is received by the
    institution. An aided minority educational institution,
    therefore, would be entitled to have the right of
    admission of students belonging to the minority group
    and, at the same time, would be required to admit a
    reasonable extent of non-minority students, to the
    extent, that the right in Article 30(1) is not
    substantially impaired and further, the citizen’s right
    under Article 29(2) is not infringed.”
    36.2 While considering the amplitude of the Rule in question, it was
    observed:
    “101. To appoint a teacher is part of the regular
    administration and management of the school. Of
    course, what should be the qualification or eligibility
    criteria for a teacher to be appointed can be defined
    and, in fact, has been defined by the Government of
    NCT of Delhi and within those specified parameters,
    the right of a linguistic minority institution to appoint
    a teacher cannot be interfered with. The paramount
    feature of the above laws was to bring efficiency and
    excellence in the field of school education and,
    therefore, it is expected of the minority institutions to
    select the best teacher to the faculty. To provide and
    enforce any regulation, which will practically defeat
    this purpose would have to be avoided. A linguistic
    minority is entitled to conserve its language and
    culture by a constitutional mandate. Thus, it must
    select people who satisfy the prescribed criteria,
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    qualification and eligibility and at the same time
    ensure better cultural and linguistic compatibility to
    the minority institution.
  32. Every linguistic minority may have its own
    social, economic and cultural limitations. It has a
    constitutional right to conserve such culture and
    language. Thus, it would have a right to choose
    teachers, who possess the eligibility and
    qualifications, as provided, without really being
    impressed by the fact of their religion and community.
    Its own limitations may not permit, for cultural,
    economic or other good reasons, to induct teachers
    from a particular class or community. The direction,
    as contemplated under Rule 64(1)(b), could be
    enforced against the general or majority category of
    the government-aided schools but, it may not be
    appropriate to enforce such condition against
    linguistic minority schools. This may amount to
    interference with their right of choice and, at the same
    time, may dilute their character of linguistic minority.
    It would be impermissible in law to bring such actions
    under the cover of equality which in fact, would
    diminish the very essence of their character or status.
    Linguistic and cultural compatibility can be
    legitimately claimed as one of the desirable features
    of a linguistic minority in relation to selection of
    eligible and qualified teachers.”
    36.3 It was also observed that despite Rule 64(1)(b), a circular was
    issued on 21.03.1986 exempting Minority Institutions from complying with
    the requirements of said Rule; and that the subsequent insistence through
    circular of September 1989 did not disclose any reason for such departure
    and it was, therefore, observed:
    “117. Thus, the framework of reservation policy
    should be such, as to fit in within the constitutional
    scheme of our democracy. As and when the
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    Government changes its policy decision, it is expected
    to give valid reasons and act in the larger interest of
    the entire community rather than a section thereof. In
    its wisdom and apparently in accordance with law the
    Government had taken a policy decision and issued
    the Circular dated 21-3-1986 exempting the minority
    institutions from complying with the requirements of
    Rule 64(1)(b) of the DSE Rules. Despite this and the
    judgment of the High Court there was a change of
    mind by the State that resulted in issuance of the
    subsequent Circular of September 1989. From the
    record before us, no reasons have been recorded in
    support of the decision superseding the Circular dated
    21-3-1986.”
    36.4 In the aforesaid circumstances, the appeal was allowed and it was
    held that Rule 64(1)(b) and the circular of 1989 would not be enforceable
    against Linguistic Minority Schools in the NCT of Delhi.
  33. In Chandana Das (Malakar) vs. State of West Bengal and
    others31 the question that arose was set out in para 6 as under:-
  34. … …whether the Institution’s right to select and
    appoint teachers is in any way affected by the
    provisions of the Rules of Management of Recognised
    Non-Government Institutions (Aided and Unaided),
    1969 framed under the provisions of the West Bengal
    Board of Secondary Education Act, 1963?”
    In terms of Rule 28 teachers on permanent or temporary basis,
    against permanent or temporary vacancies, could be appointed only on the
    recommendation of the West Bengal Regional School Service
    31 (2015) 12 SCC 140
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    Commission32. However, according to Rule 33, on the application by any
    institution to which the provisions of Articles 26 and 30 of the Constitution
    apply, rules could be framed by the State Government. According to the
    State, the concerned institution had never claimed minority status and was
    never recognised as minority institution. Reliance was also placed on Rule
    8(3) of the Rules for Management of Recognised Non-Government
    Institutions (Aided and Unaided), 1969 whereunder permission for special
    constitution was granted to the institution and, therefore, it was submitted
    that having accepted the special constitution, it could not turn around and
    contend that it was a minority institution as per special rules framed in
    terms of Rule 33.
    37.1 There was disagreement between the Judges constituting the Bench.
    According to Thakur, J, as the learned Chief Justice then was, since the
    institution was set up by Punjabi speaking Sikh community, a linguistic
    minority in the State, the mechanism provided for making appointments
    under Rule 28 had no application to minority educational institutions for
    whom there could be special dispensation under Rule 33. During the
    course of his Judgment, Thakur, J. observed:-
    “21. It is unnecessary to multiply decisions on the
    subject for the legal position is well settled. Linguistic
    32 Constituted in forms of 1997 Act – as dealt with in para 6 hereinabove.
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    institution and religious are entitled to establish and
    administer their institutions. Such right of
    administration includes the right of appointing
    teachers of its choice but does not denude the State of
    its power to frame regulations that may prescribe the
    conditions of eligibility for appointment of such
    teachers. The regulations can also prescribe measures
    to ensure that the institution is run efficiently for the
    right to administer does not include the right to
    maladministration. While grant-in-aid is not included
    in the guarantee contained in the Constitution to
    linguistic and religious minorities for establishing and
    running their educational institutions, such grant
    cannot be denied to such institutions only because the
    institutions are established by linguistic or religious
    minority. Grant of aid cannot, however, be made
    subservient to conditions which deprive the institution
    of their substantive right of administering such
    institutions. Suffice it to say that once Respondent 4
    Institution is held to be a minority institution entitled
    to the protection of Articles 26 and 30 of the
    Constitution of India the right to appoint teachers of
    its choice who satisfy the conditions of eligibility
    prescribed for such appointments under the relevant
    rules is implicit in their rights to administer such
    institutions. Such rights cannot then be diluted by the
    State or its functionaries insisting that the
    appointment should be made only with the approval
    of the Director or by following the mechanism
    generally prescribed for institutions that do not enjoy
    the minority status.”
    (Emphasis supplied)
    37.2 Banumathi, J., however, found that the concerned institution had
    never claimed to be a minority institution and had, in fact, accepted the
    special constitution in terms of Rule 8 (3). It was, therefore, observed:-
    “52. The fourth respondent school has accepted the
    special constitution and it has not chosen to challenge
    the same. As rightly held by the High Court, when the
    fourth respondent school has accepted the special
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    constitution and has not claimed to be a minority
    institution, the appellants who are merely employees
    of such an institution, cannot contend that the
    institution was a minority institution entitled to
    appoint its own teachers.”
    37.3 Because of the disagreement, the matter was directed to be placed
    before a Bench of three Judges of this Court, which has since then rendered
    its decision on 25.09.201933. It was noted that Rule 32 specifically
    declared that nothing in the concerned Rules would apply to an educational
    institution established and administered by a minority referred to in clause
    (c) of Section 2 of the West Bengal Minorities’ Commission Act, 1996,
    which had, in turn, defined expression “minority” to mean a community
    based on religion such as Muslim, Christian, Sikh, Buddhist, or Zorastrian
    (Parsee). As regards the first question, it was, therefore, observed in
    paragraphs 17 to 20 that the Institution was a minority educational
    institution. It was also considered whether declaration as to status of the
    minority institution by the competent authority was necessary before the
    institution could claim the status of being a minority institution. Both the
    issues which had led to disagreement between two Judges were thus,
    squarely answered and the decision of Thakur, J. was accepted to be the
    correct view on both counts.
    33 Reported in 2019 SCC OnLine SC 1253 [Chandana Das (Malakar) vs. State of
    West Bengal and others]
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    37.4 During the course of its discussion, this Court also considered the
    decision in Ahmedabad St. Xavier’s College5
    case and observed:-
    “30. A reading of the aforesaid judgment would leave
    no manner of doubt that if Respondent No. 4 is a
    minority institution, Rule 28 of the Rules for
    Management of Recognized Non-Government
    Institutions (Aided and Unaided) 1969, cannot
    possibly apply as there would be a serious infraction
    of the right of Respondent No. 4 to administer the
    institution with teachers of its choice.”
    DISCUSSION AND CONCLUSION
  35. In the backdrop of the decisions of this Court referred to
    hereinabove, we must now consider whether the relevant provisions of the
    Commission Act transgress upon the rights of a minority institution or said
    provisions can be termed as “tenable as ensuring the excellence of the
    institution without injuring the essence of the right”34 of a minority
    institution. Right from Re: The Kerala Education Bill9 Case the issue that
    has engaged the attention of this Court is about the content of rights of
    minority educational institution and the extent and width of applicability of
    regulations and what can be said to be permissible regulations. If the cases
    in the first segment i.e. upto the decision in TMA Pai Foundation8
    are
    considered, the following principles emerge:-
    34 Expression used by Krishna Iyer J. in the Gandhi Faiz – e-am College case13
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    A) In Re: The Kerala Education Bill9
    Case, Clause 11(2) in terms of
    which the State Public Services Commission was empowered to select
    candidates for appointment as teachers in Government and aided schools,
    was found to be a permissible regulation. It was observed that such
    provision, inter alia, was applicable to all educational institutions and was
    designed to give protection and security to the teachers engaged in
    rendering service to the nation.
    B) The decision in Sidhajbhai Sabhai10
    , however, observed, “Unlike
    Art. 19, the fundamental freedom under clause (1) of Art. 30, is absolute in
    terms; it is not made subject to any reasonable restrictions of the nature the
    fundamental freedoms enunciated in Art. 19 may be subjected to.” It went
    on to add “Regulation made in the true interests of efficiency of
    instruction, discipline, health, sanitation, morality, public order and the
    like may undoubtedly be imposed.” It read the decision in Re: The Kerala
    Education Bill9
    case as “not an authority for the proposition submitted by
    the Additional Solicitor General that all regulative measures which are not
    destructive or annihilative of the character of the institution established by
    the minority, provided the regulations are in the national or public interest,
    are valid.” It however laid down a test – “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
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    institution an effective vehicle of education for the minority community or
    other persons who resort to it.”
    C) (i) In Ahmedabad St. Xavier’s College5
    case, while considering the
    importance of teachers in an educational institution, Ray C.J. in his leading
    judgment observed, “The minority institutions have the right to administer
    institutions. This right implies the obligation and duty of the minority
    institutions to render the very best to the students. In the right of
    administration, checks and balances in the shape of regulatory measures
    are required to ensure the appointment of good teachers and their
    conditions of service.” It was further stated that “regulations which will
    serve the interests of the teachers are of paramount importance in good
    administration.”
    (ii) According to Khanna, J., “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.”; and “Regulations made in the true interests of
    efficiency of instruction, discipline, health, sanitation, morality, public
    order and the like may undoubtedly be imposed.” A word of caution was
    also expressed while observing, “The minority institutions cannot be
    allowed to fall below the standards of excellence expected of educational
    institutions, or under the guise of exclusive right of management, to decline
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    to follow the general pattern. While the management must be left to them,
    they may be compelled to keep in step with others.”
    Khanna, J. then laid down “Balance has, therefore, to be kept
    between the two objectives, that of ensuring the standard of excellence of
    the institution and that of preserving the right of the minorities to establish
    and administer their educational institutions. Regulations which embrace
    and reconcile the two objectives can be considered to be reasonable.”;
    (iii) Mathew, J. however stated, “The question whether a
    regulation is in the general interest of the public has no relevance, if it
    does not advance the excellence of the institution as a vehicle for general
    secular education as, exhypothesi, the only permissible regulations are
    those which secure the effectiveness of the purpose of the facility, namely,
    the excellence of the educational institutions in respect of their
    educational standards. This is the reason why this Court has time and
    again said that the question whether a particular regulation is calculated
    to advance the general public interest is of no consequence if it is not
    conducive to the interests of the minority community and those persons
    who resort to it.”
    D) In Gandhi Faiz-e-am College13, Krishna Iyer, J. found “In our case
    autonomy is virtually left intact and refurbishing, not restructuring, is
    prescribed. The core of the right is not gouged out at all and the regulation
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    is at once reasonable and calculated to promote excellence of the
    institution — a text book instance of constitutional conditions.” The
    regulation was, however, not found to be permissible by Mathew, J.
    E) In Frank Anthony Public School17 case, it was emphasized, “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.”
  36. We now turn to TMA Pai Foundation8
    case and consider the
    principles that it laid down and whether there was reiteration of the
    principles laid down in the decisions of this Court in the earlier segment or
    whether there was any change or shift in the emphasis.
    A) In para 50, five incidents were stated to comprise the “right to
    establish and administer” and three of them were stated to be :-
    (a) right to admit students;
    (b) right to appoint staff – teaching and non-teaching; and
    (c) right to take disciplinary action against the staff.
    The discussion in the leading judgment was under various headings
    and the important one being “5. To what extent can the rights of aided
    private minority institutions to administer be regulated?”
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    B) The earlier decisions of the Court were considered and while
    considering the judgment of this Court in Sidhajbhai Sabhai10 case it was
    observed:-
    “If this is so, it is difficult to appreciate how the
    Government can be prevented from framing
    regulations that are in the national interest, as it
    seems to be indicated in the passage quoted
    hereinabove. Any regulation framed in the national
    interest must necessarily apply to all educational
    institutions, whether run by the majority or the
    minority. Such a limitation must necessarily be read
    into Article 30. The right under Article 30(1) cannot
    be such as to override the national interest or to
    prevent the Government from framing regulations in
    that behalf. It is, of course, true that government
    regulations cannot destroy the minority character of
    the institution or make the right to establish and
    administer a mere illusion; but the right under Article
    30 is not so absolute as to be above the law.”
    C) Thus, the principle laid down in Sidhajbhai Sabhai10 that the right
    under Article 30(1) cannot 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 was not accepted in
    TMA Pai Foundation8
    . The emphasis was clear that any regulation framed
    in the national interest must necessarily apply to all educational
    institutions, whether run by the majority or the minority and put the matter
    beyond any doubt. A caveat was however entered and it was stated that the
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    Government regulations cannot destroy the minority character of the
    institution.
    D) The leading judgment then observed that the correct approach
    would be – what was laid down by Khanna, J. in Ahmedabad St. Xavier’s
    College5
    case:-
    “A balance has to be kept between the two objectives
    — that of ensuring the standard of excellence of the
    institution, and that of preserving the right of the
    minorities to establish and administer their
    educational institutions. Regulations that embraced
    and reconciled the two objectives could be considered
    to be reasonable. This, in our view, is the correct
    approach to the problem.”
    E) The majority judgment then summed up the matter and stated:-
    “It is difficult to comprehend that the framers of the
    Constitution would have given such an absolute right
    to the religious or linguistic minorities, which would
    enable them to establish and administer educational
    institutions in a manner so as to be in conflict with
    the other Parts of the Constitution. ……..
  37. …… The right under Article 30(1) has,
    therefore, not been held to be absolute or above other
    provisions of the law, and we reiterate the same. By
    the same analogy, there is no reason why regulations
    or conditions concerning, generally, the welfare of
    students and teachers should not be made applicable
    in order to provide a proper academic atmosphere, as
    such provisions do not in any way interfere with the
    right of administration or management under Article
    30(1).”
    It was further laid down :-
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    “In other words, the essence of Article 30(1) is to
    ensure equal treatment between the majority and the
    minority institutions. ….. Laws of the land, including
    rules and regulations, must apply equally to the
    majority institutions as well as to the minority
    institutions.”
  38. The decision in TMA Pai Foundation8
    , rendered by Eleven Judges
    of this Court, thus put the matter beyond any doubt and clarified that the
    right under Article 30(1) is not absolute or above the law and that
    conditions concerning the welfare of the students and teachers must apply
    in order to provide proper academic atmosphere, so long as the conditions
    did not interfere with the right of the administration or management. What
    was accepted as correct approach was the test laid down by Khanna, J. in
    Ahmedabad St. Xavier’s College5
    case that a balance be kept between two
    objectives – one to ensure the standard of excellence of the institution and
    the other preserving the right of the minorities to establish and administer
    their educational institutions. The essence of Article 30(1) was also stated
    – “to ensure equal treatment between the majority and the minority
    institutions” and that rules and regulations would apply equally to the
    majority institutions as well as to the minority institutions.
  39. The decisions of this Court rendered after TMA Pai Foundation8
    case, may now be considered.
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    A) In Brahmo Samaj Education Society24
    , the argument that the
    appointment of teachers through College Service Commission would
    maintain equal standard of education for all throughout the State was not
    accepted and it was observed that the equal standards would be maintained
    by insistence on qualifying tests or examinations. This Court, however, did
    not consider whether the Rules in question were valid or not and left it to
    the authorities to bring the rules and regulations in conformity with the
    principles laid down in TMA Pai Foundation8
    . It may be stated here that a
    review petition has since then been allowed and the matter now stands
    referred to a Constitution Bench.35
    B) The decision of this Court in P.A. Inamdar25 was not directly
    concerned with the rights of the minority educational institutions receiving
    aid. It, however, dealt with the matter regarding admission of students in
    unaided professional educational institutions and observed that the
    admission of students in minority unaided professional educational
    institutions must also be governed on the basis of merit. It thus did not
    accept the right to admit students to be an unqualified right inhering in a
    minority professional educational institution. The discussion in that case
    shows that the admissions based on merit in professional educational
    35 As observed in para 41 of Chandana Das – (2019) SCC Online SC 1253
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    institutions were found to be in the national interest and strengthening the
    national welfare.
    (C) Malankara Syrian Catholic College6
    was concerned with selection
    and appointment of a Principal in an unaided minority educational
    institution. It was stated in para 19 that the right conferred on minorities
    under Article 30 was only to ensure equality with majority and was not
    intended to place the minorities in a more advantageous position vis-à-vis
    the majority and that there was no reverse discrimination in favour of
    minorities and that the general laws of the land relating to national interest,
    would equally apply to minority institutions. It was also observed that the
    Principal or Headmaster of any educational institution would be
    responsible for functional efficiency of the institution and also for the
    quality of education and discipline in the educational institutions as well as
    maintaining the philosophy and objects of the institution. On that premise,
    the right to choose a Principal was accepted to be part of the right of a
    minority educational institution. It also relied upon the decision in N.
    Ammad23 case which in turn had relied upon the Full Bench decision of the
    Kerala High Court. It was, therefore, stated that the power to choose a
    Headmaster was always recognised as an important facet of the right to the
    administer the educational institutions.
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    (D) Sindhi Education Society7
    was concerned with the issue whether
    instructions could be issued to fill up the posts of teachers in an unaided
    minority institution in accordance with the principles and policy of
    reservation. The concerned rules empowered the authority to issue such
    instructions. However, a Circular was issued on 21.03.1986 exempting
    minority institutions from complying with the said Rule. The subsequent
    insistence through Circular of September, 1989, which did not disclose any
    reason for departure was not held to be enforceable. The discussion in the
    case undoubtedly deals with the issue whether the minority educational
    institutions have a right to choose persons to be appointed as teachers and
    could there be any regulations and could that right be in any way affected
    by regulations. However, in the context of a Linguistic Minority Schools it
    was observed that such institutions must have a right to select the best
    teachers who not only satisfy the prescribed criteria, qualification and
    eligibility but also ensure better cultural and linguistic compatibility.
    Since, the candidates nominated in terms of powers conferred by Rule
    64(1)(b) and the instructions issued in Circular of September, 1989 would
    not satisfy such requirements and ensure compatibility, the appeal was
    allowed.
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    (E) In Chandana Das31
    , the principal issue was whether the concerned
    institution was a minority institution or not. On that issue, there was a
    disagreement between two Judges of this Court and the matter was referred
    to a Bench of three Judges which accepted the view of Thakur, J. and held
    that the institution was a minority educational institution33. The issue arose
    in the context whether recommendations of the West Bengal School
    Service Commission as regards appointments of teachers against
    permanent or temporary vacancies could be validly issued in so far as a
    minority educational institution was concerned. It may be stated that in
    terms of Section 15 of 1997 Act, nothing in that Act would apply to “a
    School established and administered by a minority whether based on
    religion or language” and as such the recommendations of the West Bengal
    School Service Commission could never apply to a minority institutions.
    Once the view taken by Thakur, J. was accepted and it was held that the
    institution was a minority institution, by virtue of said Section 15, the West
    Bengal School Commission could not be competent to issue any direction.
  40. Thus, going by the decision of eleven Judges of this Court in TMA
    Pai Foundation8
    , so long as the principles laid down therein (as culled out
    in para 40 hereinabove) are satisfied, it is permissible if any regulations
    seek to ensure the standard of excellence of the institutions while
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    preserving the right of the minorities to establish and administer their
    educational institutions.
    Out of five incidents which constitute “the right to establish and
    administer” an educational institution as noted in para 50 of the leading
    judgment in TMA Pai Foundation8
    , the right to admit students has not
    been considered to be an absolute and an unqualified right. The decision in
    P.A. Inamdar25 shows that in professional educational institutions or those
    imparting higher education, merit based selection has been taken to be in
    the interest of the nation and subserving and strengthening the national
    welfare. Selection of meritorious students has been accepted to be in the
    national interest. A minority institution cannot in the name of right under
    Article 30(1) of the Constitution, disregard merit or merit-based selection
    of students as regards professional and higher education. The right to take
    disciplinary action against the staff has also not been accepted to be an
    unqualified right. TMA Pai Foundation8
    itself lays down that even in an
    unaided minority educational institution, a mechanism must be evolved
    and appropriate Tribunal must be constituted to consider the grievances
    and till then the Tribunals could be presided over by a judicial officer of
    the rank of a District Judge. To that extent, there was a definite departure
    from the law laid down in Ahmedabad St. Xavier’s College5
    case which
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    had struck down Sections 51-A and 52-A of the Gujrat University Act,
    1949.
  41. When it comes to the right to appoint teachers, in terms of law laid
    down in TMA Pai Foundation8
    a regulation framed in the national interest
    must necessarily apply to all institutions regardless whether they are run by
    majority or minority as the essence of Article 30(1) is to ensure equal
    treatment between the majority and minority institutions. An objection can
    certainly be raised if an unfavourable treatment is meted out to an
    educational institution established and administered by minority. But if
    ensuring of excellence in educational institutions is the underlying
    principle behind a regulatory regime and the mechanism of selection of
    teachers is so designed to achieve excellence in institutions, the matter may
    stand on a completely different footing.
  42. The test accepted in TMA Pai Foundation8
    , and the balance
    between two objectives can well be considered in the context of two
    categories of institutions; one imparting education which is directly aimed
    at or dealing with preservation and protection of the heritage, culture,
    script and special characteristics of a religious or a linguistic minority;
    while the second category of institutions could be those which are
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    imparting what is commonly known as secular education. When it comes
    to the institutions in the former category, the teachers who believe in the
    religious ideology or in the special characteristics of the concerned
    minority would alone be able to imbibe in the students admitted in such
    educational institutions, what the minorities would like to preserve, profess
    and propagate. But, if the subjects in the curriculum are purely secular in
    character, that, is to say, subjects like Arithmetic, Algebra, Physics,
    Chemistry or Geography, the intent must be to impart education availing
    the best possible teachers. In the first category, maximum latitude may be
    given to the managements of the concerned minority institutions as they
    would normally be considered to be the best judges of what would help
    them in protecting and preserving the heritage, culture, script or such
    special features or characteristics of the concerned minorities. However,
    when it comes to the second category of institutions, the governing criteria
    must be to see to it that the most conducive atmosphere is put in place
    where the institution achieves excellence and imparts best possible
    education.
  43. As laid down in the leading judgment in Ahmedabad St. Xavier’s
    College5
    case, regulations which will serve the interest of the students so
    also regulations which will serve the interest of the teachers are of
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    paramount importance in good administration; that regulations in the
    interest of efficiency of teachers are necessary for preserving harmony
    amongst the institutions; and that the appointment of teachers is an
    important part in educational institutions. It is quite natural that
    qualitatively better teachers will ensure imparting of education of the
    highest standard and will help in achieving excellence. As accepted in
    Frank Anthony Public School17 case, the excellence of the instruction
    provided by an institution would depend directly on the excellence of the
    teaching staff and would in turn depend inter alia on the quality of
    teachers.
  44. Thus, if the intent is to achieve excellence in education, would it be
    enough if the concerned educational institutions were to employ teachers
    with minimum requisite qualifications in the name of exercise of Right
    under Article 30 of the Constitution, while better qualified teachers are
    available to impart education in the second category of institutions as
    stated hereinabove. For example, if the qualifying percentile index for a
    teacher to be appointed in an educational institution, considering his
    educational qualifications, experience and research, is required to be 50,
    and if teachers possessing qualifications far greater and higher than this
    basic index are available, will it be proper exercise for a minority
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    educational institution to select teachers with lower index disregarding
    those who are better qualified? Will that subserve pursuit of excellence in
    education? One can understand if under the regulatory regime candidates
    who are otherwise less qualified are being nominated in the minority
    educational institution and the minority educational institution is forced to
    accept such less meritorious candidates in preference to better qualified
    candidates. In such cases, the minority educational institution can
    certainly be within its rights to agitate the issue and claim a right to choose
    better teachers. But if the candidates who are selected and nominated
    under the regulatory regime to impart education which is purely secular in
    character, are better qualified, would the minority institution be within its
    rights to reject such nomination only in the name of exercise of a right of
    choice? The choice so exercised would not be in pursuit of excellence. Can
    such choice then be accepted?
    If the right is taken to be absolute and unqualified, then certainly such
    choice must be recognised and accepted. But, if the right has not been
    accepted to be absolute and unqualified and the national interest must
    always permeate and apply, the excellence and merit must be the governing
    criteria. Any departure from the concept of merit and excellence would not
    make a minority educational institution an effective vehicle to achieve
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    what has been contemplated in various decisions of this Court. Further, if
    merit is not the sole and governing criteria, the minority institutions may
    lag behind the non-minority institutions rather than keep in step with them.
    Going back to the example given above, as against index of 50 i.e.
    the minimum qualifying index, if a candidate nominated under the
    regulatory regime is at an index of 85, selection by a minority educational
    institution of a candidate at an index 55 may certainly be above the
    minimum qualifying mark, but in preference to the one at the index of 85
    who is otherwise available, the appointment of a person at the index level
    of 55, will never give the requisite impetus to achieve excellence. A
    meritorious candidate at the index level of 85 in the above example, if
    given the requisite posting will not only help in upholding the principle of
    merit but will in turn generate an atmosphere of qualitative progress and
    sense of achievement commensurate with societal objectives and ideology
    and such posting will, therefore, be in true national interest.
  45. At the cost of repetition, it needs to be clarified that if the minority
    institution has a better candidate available than the one nominated under a
    regulatory regime, the institution would certainly be within its rights to
    reject the nomination made by the authorities but if the person nominated
    for imparting education is otherwise better qualified and suitable, any
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    rejection of such nomination by the minority institution would never help
    such institution in achieving excellence and as such, any such rejection
    would not be within the true scope of the Right protected under Article
    30(1) of the Constitution.
  46. With these basic principles in mind, we may now consider the
    statutory provisions under which the teachers could be nominated under
    the Commission Act and see whether the concerned regulations help in
    achieving excellence or whether those provisions are violative of the
    Rights of the minority institutions.
  47. In terms of Section 4 of the Commission Act, the Commission is to
    consist of a Chairman and four Members. The Chairman of the
    Commission has to be an eminent educationist having profound knowledge
    in Islamic Culture and must be well versed in education with teaching
    experience inter alia as a teacher of a University or as a Principal of a
    college, for a period of not less than twelve years. It is true that the latter
    part of Section 4(ii) speaks of an officer of the State Government not
    below the rank of Joint Secretary who could also be appointed as the
    Chairman of the Commission. But in our view, considering the nature of
    duties that the Chairman is to discharge, even an officer of the State
    Government has to be a person with profound knowledge in Islamic
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    Culture. Apart from the Chairman, there are four Members who are to be
    appointed in terms of Section 4(iii) of the Commission Act. Out of these
    four Members, one has to be an eminent educationist having profound
    knowledge in Islamic Theology and Culture, while the other two Members
    must have teaching experience inter alia as a teacher of a University, or a
    Principal of a College for a period of not less than ten years. The fourth
    member could be a non-educationist, but he must have held the position of
    eminence in public life or in Legal or Administrative Service.
    Predominant composition of the Commission is thus of educationists and
    two of them have to be persons with profound knowledge in Islamic
    Culture and Islamic Theology. The provisions of the Commission Act are
    thus specially designed for Madrasahs and Madrasah Education System in
    the State. Rule 8 of the 2010 Rules stipulates fair and transparent process
    of merit based selection and the statutory mechanism would ensure that
    only those teachers would be selected who would be best suited to impart
    education in Madrasah Education System. The State Legislature has taken
    care to see that the composition of the Commission would ensure
    compatability of the teachers who would be selected to impart education in
    Madrasah Education System, which is also emphasized in the Statement of
    Objects and Reasons.
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  48. It is true that the recommendations or nominations of teachers
    made by the Commission are otherwise binding on the Managing
    Committees of concerned Madrasahs, but, in terms of second proviso to
    Section 10 of the Commission Act, if there be any error, it is open to the
    Managing Committee of the concerned Madrasah to bring it to the notice
    of the Commission for removal of such error. The concept of ‘error’ as
    contemplated must also include cases where the concerned Madrasah could
    appoint a better qualified teacher than the one nominated by the
    Commission. If any such error is pointed out, the Commission will
    certainly have to rectify and remove the error. The further protection is
    afforded by Section 12 of the Commission Act, under which the concerned
    Madrasah could be within its rights to refuse to issue appointment letter to
    the candidate recommended by the Commission if any better qualified
    candidate is otherwise available with the managing committee of the
    concerned Madrasah. Such refusal may also come within the expression
    ‘any reasonable ground’ as contemplated in Section 12(i) of the Act.
    The legislature has thus taken due care that the interest of a minority
    institution will always be taken care of by ensuring that i) in normal
    circumstances, the best qualified and suitable candidates will be nominated
    by the Commission; ii) and in case there be any error on part of the
    Commission, the concerned Managing Committee could not only point out
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    the error which would then be rectified by the Commission but the
    Managing Committee may also be within its rights in terms of Section 12
    (i) to refuse the nomination on a reasonable ground.
  49. The regime put in place by the State legislature thus ensures that
    the Commission comprising of experts in the field would screen the talent
    all across the State; will adopt a fair selection procedure and select the best
    available talent purely on merit basis; and even while nominating, the
    interest of the minority institution will also be given due weightage and
    taken care of. The statutory provisions thus seek to achieve ‘excellence’ in
    education and also seek to promote the interest of the minority institutions.
    The provisions satisfy the test as culled out in the decision of this Court in
    TMA Pai Foundation8
    case.
  50. In our considered view going by the principles laid down in the
    decision in TMA Pai Foundation case8
    , the concerned provisions cannot,
    therefore, be said to be transgressing the rights of the minority institutions.
    The selection of the teachers and their nomination by the Commission
    constituted under the provisions of the Commission Act would satisfy the
    national interest as well as the interest of the minority educational
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    institutions and said provisions are not violative of the rights of the
    minority educational institutions.
  51. The aforesaid conclusions have been arrived at by us in keeping
    with the principles laid down by this Court in TMA Pai Foundation8
    case.
    We are aware that in Brahmo Samaj Education Society24
    , Sindhi
    Education Society7
    and Chandana Das (Malakar)33
    , decided after TMA
    Pai Foundation8
    , this Court had also dealt with the question whether the
    concerned authorities could validly nominate teachers to be appointed in
    minority educational institutions. Brahmo Samaj Education Society24 did
    not specifically deal with the question whether rules were valid or not and
    left it to the authorities to bring the rules and regulations in conformity
    with the principles in TMA Pai Foundation8
    case. Sindhi Education
    Society7
    dealt with the issue in the context of reservation. It also found that
    the teachers nominated by the concerned authorities would not be
    compatible to teach in educational institutions run by linguistic minorities.
    In Chandana Das (Malakar)33 the basic issue was whether the concerned
    institution was a minority institution or not. Sindhi Education Society7
    and Chandana Das (Malakar)33 dealt with statutory regimes which did not
    have any special features or matters concerning compatibility of teachers
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    which could be required going by the special characteristics of the minority
    educational institutions. However, the additional feature in the present
    matter shows that the composition of the Commission with special
    emphasis on persons having profound knowledge in Islamic Culture and
    Theology, would ensure that the special needs and requirements of
    minority educational institutions will always be taken care of and thus the
    present case stands on a different footing.
    We, therefore, have no hesitation in going by the test culled out in
    the TMA Pai Foundation8
    and hold that the provisions of the Commission
    Act are not violative of the rights of the minority educational institutions
    on any count.
  52. In the premises, while allowing these appeals, we set aside the
    view taken by the Single Judge and the Division Bench of the High Court
    and dismiss Writ Petition No.20650(W) of 2013 and other connected
    matters. We also hold Sections 8, 10, 11 and 12 of the Commission Act to
    be valid and constitutional.
  53. In the end, we declare all nominations made by the Commission in
    pursuance of the provisions of the Commission Act to be valid and
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    operative. However, if after the disposal of the matters by the High Court
    any appointments are made by the concerned Madarshas, such
    appointments of teachers shall be deemed to be valid for all purposes. But
    the Commission shall hereafter be competent to select and nominate
    teachers to various Madarshas in accordance with the provisions of the
    Commission Act and the Rules framed thereunder.
  54. With the aforesaid observations these appeals are allowed. No
    separate orders are required to be passed in respect of Writ Petitions and
    contempt petitions which stand disposed of in terms of declaration as
    above. No orders as to costs.
    ……………………..J.
    [Arun Mishra]
    ……………………..J.
    [Uday Umesh Lalit]
    New Delhi;
    January 6, 2020.