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All Bihar Christian Schools ... vs State Of Bihar And Others on 26 November, 1987
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instead they seek to ensure that such institution is administered efficiently, and that students who come out of minority institution after completion of their studies are well equipped with knowledge and training so as to stand at par in their avocation in life without any handicap. If regulatory provisions indirectly impinge upon minorities' right of administration of their institution, it would not amount to interference with the fundamental freedom of the minorities as the regulatory provisions are in the interest of the minority institutions themselves. If the minority institution seeks affiliation or recognition from the State or Education Board the State has the right to prescribe syllabi and terms and conditions for giving such affiliation or recognition or extending grants in aid. Minority institutions may be categorised in three classes, (i) educational institutions which neither seek aid nor recognition from the State, (ii) institutions that seek aid from the State, and (iii) educational institutions which seek recognition but not aid. Minority institutions which fall in the first category 64 are free to administer their institution in the manner they like, the State has no power under the Constitution to place any restriction on their right of administration This does not mean that an unaided minority institution is immune from operation of general laws of the land. A minority institution cannot claim immunity from contract law tax measures, economic regulations, social welfare legislation, labour and industrial laws and similar other measures which are intended to meet the need of the society But institutions falling within the second and third categories are subject to regulatory provisions which the State may impose It is open to the State to prescribe conditions for granting recognition or disbursing aid. These conditions may require a minority institution to follow prescribed syllabus for examination. courses of study, they may further regulate conditions of employment of teachers, discipline of students and allied matters. The object and purpose of prescribing regulations is to ensure that minority institutions do not fall below the standard of excellence expected of an educational institution and that they do not fall outside the main stream of the nation. A minority institution must also be fully equipped with educational excellence to keep in step with others in the State; otherwise the students coming out of such institutions will not be fully equipped to serve the society of the nation. While the State has every right to prescribe conditions for granting recognition or disbursing aid, it cannot under the guise of that power prescribe onerous conditions compelling the minority institution to surrender their rights of administration to the Government. On the one hand the State is under an obligation to ensure that educational standards in the recognised institutions must be according to the need of the society and according to standards which ensure the development of personality of the students in turning out to be civilized, useful members of the society, and to ensure that the public funds disbursed to the minority institutions are properly utilised for the given purpose. On the other hand the State has to respect and honour minority rights under Article 30(1) in the matter of establishing and carrying of administration of institution of their choice. In order to reconcile these two conflicting interests the State has to strike a balance and statutory provisions should serve both the objects and such statutory provisions have to withstand the test of Article 30(1) of the Constitution. These principles have to be borne in mind in considering the question of validity of statutory provisions relating to minority educational institutions.

Learned counsel for the petitioner placed reliance on the 74 decision of this Court in State of Kerala v. Very Rev. Mother Provincial, [1971] 1 SCR 734; Ahmedabad St. Xaviers College Society & Anr. v. State of Gujarat and Anr., [1975] 1 SCR 173 and Liliy Kurian v. Sr. Lewina & Ors., [1979] 1 SCR 820 and All Saints High School, Hyderabad v. Government of Andhra Pradesh & Ors., [1980] 2 SCR 924 in support of his contention that the clauses (c) and (d) of Section 18(3) interfere with the minorities right of managing their institution. On a careful consideration of the ratio of these decisions we are of the opinion that these authorities do not support the petitioners' submissions. In State of Kerala v. Very Rev. Mother Provincial, [1980] 2 SCR 924 the High Court of Kerala had declared Sections 48 and 49 of the Kerala University Act 1969 unconstitutional on the ground that those provisions violated fundamental right of a minority institution guaranteed under Article 30(1) of the Constitution. In appeal this Court upheld the view taken by the High Court on the ground that Sections 48 and 49 contained provisions regulating the constitution of governing body of an affiliated college in accordance with the statutes and ordinances framed by the University. The statutes and ordinances so framed designated and nominated persons to function as members of the governing body of an affiliated college. The effect of those provisions was that outside agencies were inducted into the managing committee of a minority institution. This Court held that effect of Sections 48 and 49 was to displace the administration of the college by giving it to a distinct corporate body which was in no way answerable to the minority institution. The Court further held that the managing committee constituted under the statute and the ordinances was an alien authority, for the management of the minority institution which was in clear violation of Article 30(1) of the Constitution.

In Ahmedabad St. Xaviers College Society & Anr. etc. v. State of Gujarat and Anr., this Court held that Sections 51A and 52 of the Gujarat University Act 1949 as amended in 1972 could not be made applicable to a minority institution as under the aforesaid provisions no punishment could be inflicted by the management of an affiliated college on a member of the staff unless it obtained approval of the Vice- Chancellor or an officer authorised by him. The Court held that the provision relating to grant of approval conferred blanket power on an outside authority without laying down any guidelines, it directly interfered with the minorities right to administer their institution. In Lilly Kurian v. Sr. Lewina & Ors., this Court again held that ordinance 33 framed under the Kerala University Act 1969 conferring right of appeal against the disciplinary action taken by a minority 75 institution to the Vice-Chancellor was constitutionally invalid as it interfered with the disciplinary power of a minority educational institution. The Court further held that ordinance 33 conferred a right of veto in disciplinary matters of minority institution, it did not lay down any guidelines instead, it conferred an uncanalised and unguided power on the appellate authority. The Court held that conferment of uncanalised and unguided appellate power on the Vice-Chancellor resulted into grave encroachment on the right of the minority institution to enforce and cover its discipline in its administration. The Court emphasised that since the Vice-Chancellor's power was unlimited and undefined he could interfere with the orders of the minority institution inflicting punishment without there being any justified ground. The ordinance was struck-down as it contained no guidelines for the exercise of the appellate power. In All Saints High School, Hyderabad v. Government of Andhra Pradesh & Ors., this Court held that Section 3(l) and (2) of the Andhra Pradesh Recognised Private Educational Institution Control Act, 1975 could not be applied to a minority institution as the provisions contained therein encroached upon the fundamental right of minorities guaranteed to them under Article 30(1) of the Constitution. Section 3(1) contained an unqualified mandate that no teacher shall be dismissed except with the prior approval of the competent authority. Section 3(2) conferred appellate power on an outside authority to interfere with the disciplinary action taken by the managing committee of an educational institution. This Court (majority) held that the unqualified power conferred on an outside authority which was made a judge of both, facts and law, the exercise of which was made to depend purely on subjective considerations, constituted an infringement' of the right guaranteed by Article 30(1) of the Constitution. These decisions do not affect the view taken by us. As already discussed clauses (c) and (d) of Section 18(3) of the Act are regulatory in nature to ensure the educational standard of security of employment of teachers and no unguided, uncanalised, blanket power in the nature of veto or appellate power has been conferred on any outside agency against the disciplinary action taken by the management of a minority institution. The School Service Board is vested with limited power to see that the person proposed to be appointed possesses the requisite qualifications prescribed and that the prescribed method of selection was followed by the management.

Clause (e) of Section 18(3) merely provides that mentally and physically in-capacitated person shall not be appointed as teacher or non-teaching staff of the school. If mentally and physically incapacitated person are appointed to a minority institution it will serve no useful purpose instead the institution will suffer, therefore appointment of disabled persons will not be. in the interest of the administration of a minority school itself. Clause (f) of Section 18(3) provides that the State shall not pay any grant towards the payment of salary of a teacher or other employee of a minority institution if he is appointed or permitted to be retained beyond 58 years of age. In 1) the State of Bihar the age of superannuation is fixed at 58 years for its employees. Consistent with that policy this clause provides that public funds of the State shall not be used for the employment of a person in service who may have crossed 58 years of age. This however, does not place any restriction on the right of the management of the minority institution to employ or retain a person beyond 58 years of age, the management is free to do so but if the management does so, the State shall not be responsible for paying grants towards the salary of such teacher or employee. This provision does not in any way interfere with the minorities right of administration of its institution. Clause (g) provides that only such fees shall be charged from the students as prescribed by the State Government P and the management is not permitted to charge higher fees except with prior approval of the State Government. In the counter affidavit filed on behalf of the State it has been stated that education upto matriculation is free in the State and therefore no fees is charged from the students. Consistent with the general policy the State has made it a condition of recognition to a minority school in providing that fees shall be charged from the students as prescribed by the State Government and if the management decides to charge higher fees it must seek the approval of the State Government. This provision is regulatory in nature it would not be in the interest of the minority schools to charge higher fees as that would be against the interest of the institution itself. If the managing committee finds that circumstances exist to charge higher fees to meet the need of the institution.