JUDGMENT

Nainar Sundaram, J.

1. In this batch of writ petitions, the challenge is of the constitutional vires of Sections 18-A and 18-B of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 hereinafter referred to as the Private Schools Act; and Sections 14-A and 14-B of the Tamil Nadu Private Colleges (Regulation) Act, 1976, hereinafter referred to as the Private Colleges Act, in so far as they are to be made applicable to the Educational Institutions established and Administered by the petitioners, who are minorities. These provisions are similar. Section 18-A of the Private Schools Act is in pan materia with Section 14-A of the Private Colleges Act. Section 18-A of the Private Schools Act corresponding to the Section 14-A of the Private Colleges Act speaks about appointment of Special Officer in certain cases. Section 18-B of the Private Schools Act, corresponding to Section 14-B of the Private Colleges Act, speaks about appeals to special tribunal as against orders under the preceding provision. Sections 18-A and 18-B, set forth in Chapter IV-A were introduced into the Private Schools Act by the Tamil Nadu Recognised Private Schools (Regulation) Act and Private Colleges (Regulation) Amendment Act, 1982, hereinafter referred to as the Amendment Act, effective from 1.6.1981. So also, Sections 14-A and 14-B, set forth in Chapter III-A, were introduced into the Private Colleges Act by the Amendment Act, effective from 1.6.1981. By the enforcement of Sub-sections (1) and (2) of Section 18-A of the Private Schools Act, corresponding to Sub-sections (1) and (2) of Section 14-A of the Private Colleges Act, there is an obvious inroad into the rights of private schools and private colleges to have management or manager of their own choice, to administer the educational institutions under their control and if these provisions are to be enforced to private schools or private colleges, established and administered by minorities, that will do away with the preservation of the rights of minorities to establish and administer educational institutions of their choice, solemnly protected by Article 30 (1) of the Constitution of India. This is the sum and substance of the submissions made by Mr. T. Martin, learned Counsel appearing for the petitioners. It must be noted that Sub-section (3) of Section 18-A of the Private Schools Act, and the similar provision Sub-section (3) of Section 14-A of the Private Colleges Act are explanatory provisions and Clause (C) of Sub-section (3) in each of the above sections includes a minority institution.' Sub-section (4) of Section 18-A of the Private Schools Act corresponding to Sub-section (4) of Section 14-A of the Private Colleges Act says that Sub-sections (1) and (2) of the respective sections shall apply to a minority institution in so far as they are not repugnant to Clause (1) of Article 30 of the Constitution of India. Chapter IV-A containing Sections 18-A and 18-B of the Private Schools Act stand extracted as 'Appendix A' to this judgment of ours. Correspondingly, Chapter III-A containing Sections 14-A and 14-B of the Private Colleges Act stand extracted as 'Appendix B' to this judgment of ours.

2. The petitioners are indisputably minorities and they have established; and they man and administer educational institutions. Apprehending enforcement of the aforesaid provisions of the Private Schools and Private Colleges Act, they have come to this Court for directions not to apply to their educational institutions the said provisions. The right of the minorities to establish and administer educational institutions of their choice is set forth in Article 30(1) of the Constitution. The set of expressions 'the right to establish and administer' requires an interpretation in tune and harmony with the substances of the right conferred by the Article. The 'right to administer' certainly takes in the right to choose its own management and manager. To our mind, there is no doubt as to what Sub-sections (2) and (3)of Section 18-A of the Private Schools Act and of Section 14-A of the Private Colleges Act would do if they are to be invoked in respect of minority institutions. The right to administer educational institutions of their choice preserved for minorities under Article 30(1) of the Constitution will certainly be set at naught.

3. As to how the rights of the minorities got to be guarded without the width and scope of Article 30(1) of the Constitution of India circumscribed has found expression in St. Xavier's College v. State of Gujarat , in the following terms:

A liberal, generous and sympathetic approach is reflected in the Constitution in the matter of the preservation of the right of minorities so far as their educational institutions are concerned. Although attempts have been made in the past to whittle down the rights of the minorities in this respect, the vigilant sections of the minorities have resisted such attempts. Disputes have consequently arisen and come up before this Court for determining whether the impugned measures violate the provisions of the Constitution embodied in Arts.29 and 30. This Court has consistently upheld the rights of the minorities embodied in those Articles and has ensured that the ambit and scope of the minority rights is not narrowed down. The broad approach has been to see that nothing is done to impair the rights of the minorities in the matter of their educational institutions and that the width and scope of the provisions of the Constitution dealing with those rights are not circumscribed. The principle which can be discerned in the various decisions of this Court is that the catholic approach which led to the drafting of the provisions relating to minority rights should not be set at nought by narrow judicial interpretation. The minorities are as such-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 Arts.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 interests of the minorities amongst sections of population is as important as the protection of the interests 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 civilised nations, therefore, generally contain provision for the protection of those interests. It can, indeed be said to be an index of the level of civilisation and catholicity of a nation as to how far their minorities feel secure and are not subject to any discrimination or suppression.

A Bench of this Court, to which one of us (Nainar Sundaram, J.) had been a party in Maryna Memorial High School Bethelpuram v. Government of Tamil Nadu W.P. No. 1628 of 1985, etc. order dated 10.9.1990, had occasion to advert to the above passage. The invoking of the aforesaid provisions of the Private Schools Act and the Private Colleges Act would undoubtedly do violence to the above principles. Sub-section (4) of Section 18-A of the Private Schools Act and of Section 14-A of the Private Colleges Act, of course, sounds a word of caution that the concerned provisions shall apply to a minority institution in so far they are not repugnant to Article 30(1) of the Constitution of India. This will only tend to keep the controversy alive and the position of the minority institutions in a nebulous stage and legitimately the petitioners have come to this Court to have a declaration that the provisions could not apply to their educational institutions, as they are patently violative of Article 30(1) of the Constitution of India. There is no need to strain further over this point, because the answer to this point has been given by pronouncements of the highest Court in the land construing similar provisions. In Kerala Education Bill (1957) In the matter of (1959) 2 S.C.J. 321, Clause 14 of the Kerala Education Bill, (1957), came up for consideration as to whether it could be construed as regulatory or totally destructive of the rights under Article 30(1) of the Constitution of India. It must be noted here that the right conferred on minorities to establish and administer educational institutions of their own is not absolute right, and is subject to regulatory measures. The scope of Clause 14 of the Kerala Education Bill, 1957 was discussed in the above pronouncement in the following terms:

Clause 14 is of considerable importance in that it provides, by Sub-cluase (1) that the Government, whenever it appears to it that the manager of any aided school has neglected to perform any of the duties imposed by or under the Bill or the Rules made thereunder, and that in the public interest it is necessary so to do, may, after giving a reasonable opportunity to the manager of the Educational agency for showing cause against the proposed action, take over the management for a period of not exceeding five years. In cases of emergency the Government may, under Sub-cluase (2), take over the management after the publication of notification to that effect in the Gazette without giving any notice to the Educational agency or the manager. Where any school is thus taken over without any notice the Educational agency or the manager may, within three months of the publication of the notification, apply to the Government for the restoration of the school showing the cause therefor. The Government is authorised to make orders which may be necessary or expedient in connection with the taking over of the management of an aided school. Under Sub-cluase (5) the Government is to pay such rent as may be fixed by the Collector in respect of the properties taken possession of. On taking over any school the Government is authorised to run it affording any special educational facilities which the school was doing immediately before such taking over. Right of appeal to the District Court is provided against the order of the Collector fixing the rent. Sub-clause (8) makes it lawful for the Government to acquire the school taken over under this clause if the Government is satisfied that it is necessary so to do in the public interest, in which case compensation shall be payable in accordance with the principles laid down in Clause 15 for payment of compensation.

The comment on the provision has been expressed as follows:

We, however find it impossible to support Clauses 14 and 15 of the said Bill as mere regulations. The provisions of those clauses may be totally destructive of the rights under Article 30(1).

4. In State of Kerala v. Very Rev. Mother Provincial (1971) 1 S.C.J. 641, provisions similar to Section 18-A of the Private Schools Act and Section 14-A of the Private Colleges Act came up for scrutiny as to whether they offend Article 30(1) of the Constitution of India. The relevant portion of Section 63 of the Kerala University Act 60 of 1969, which was the subject matter of scrutiny by the Supreme Court ran as follows:

63. Power to regulate management of private colleges:- (1) Whenever Government are satisfied on receipt of a report from the University or upon other information that a grave situation has arisen in which the working of a private college cannot be carried on for all or any of the following reasons namely:

(a) default in the payment of the salary of the members of the staff of the college for a period of not less than three months;

(b) wilful closing down of the College for a period of not less than one month except in the case of the closure of the College during a vacation;

(c) persistent default or refusal to carry out all or any of the duties imposed on any of the authorities of the College by this Act or the Statutes or Ordinances or Regulations or Rules or Bye-laws or lawful orders passed thereunder; and that in the interest of private college it is necessary so to do, the Government may, after giving the governing body or managing council, as the case may be, the manager appointed under Sub-section (1) of Section 50 and the education agency, if any, of the college a reasonable opportunity of showing cause against the proposed action and after considering the cause, if any, shown, by order, appoint the University to manage the affairs of such private College temporarily for a period not exceeding two years; Provided that in cases where action is taken under this Sub-section otherwise than on a report from the University, it shall be consulted before taking such action.

This is what the Supreme Court observed over that provision:

We have no doubt that the provisions of the Act were made bona fide and in the interest of education but unfortunately they do affect the administration of these institutions and rob the founders of that right which the Constitution desires should be theirs. The provisions, even if salutary cannot stand in the face of the Constitutional guarantee. We do not, therefore, find it necessary to refer to the two reports.

Ultimately, it was held that Section 63 of the Kerala University Act 60 of 1969 is ultra vires Article 30(1) of the Constitution of India.

5. However, Mr. P. Sadasivam, learned Special Government Pleader, would submit that the provisions, dealt with by the pronouncements, referred to above, are much more rigorous in that they severed the connection of the minorities from the educational institutions established and administered by them, once and for all and the present provisions of the Private Schools Act and the Private Colleges Act do provide sufficient safeguard for the minorities to get back what they may lose only for a temporary phase. First of all, we are not able to indulge in such a distinction. If a particular provision of enacted law offends Article 30(1) of the Constitution of India, it is not possible to sustain it on a theory that it is only a temporary phase. Even otherwise, the provisions dealt with in the pronouncement of the Supreme Court, which we have adverted to, have only covered situations for temporary phases only. Hence, this distinction has got to be rejected as a puerile one. For the reasons expressed above, the writ petitions, covered in this batch, are allowed and Sections 18-A and 18-B of the Private Schools Act and Sections 14-A and 14-B of the Private Colleges Act are held to be not applicable to the Educational Institutions of the petitioners. We make no order as to costs.