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All Saints High School, Hyderabad ... vs Government Of Andhra Pradesh & ... on 4 February, 1980
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Beg, J. speaking in the same strain observed as follows :
"It is true that, if the object of an enactment is to compel a minority institution even indirectly, to give up the exercise of its fundamental rights, the provisions which have this effect will be void or inoperative against the minority institution. The price of affiliation cannot be a total abandonment of the right to establish and administer a minority institution conferred by Article 30(1) of the Constitution. This aspect of the matter, therefore, raises the question whether any of the provisions of the Act are intended to have that effect upon a minority institution. Even if that intention is not manifest from the express terms of statutory provisions, the provisions may be vitiated if that is their necessary consequence or effect."

Section 5 merely provides for transfer of an appeal pending before any authority to the appellate authority and if section 4 falls and is inapplicable to the minority institution section 5 also follows the same fate and will not apply to the minority institution.

Section 6 runs thus:-

"6. Where any retrenchment of any teacher employed in any private educational institution is rendered necessary consequent on any order of the Government relating to education or course of instruction or to any other matter, such retrenchment may be effected with the prior approval of the competent authority". I This section deals with the contingencies under which the institution may be compelled to retrench any teacher employed in the school. Whatever be the position in other private educational institutions so far as the minority institution is concerned, this is purely a domestic matter of the institution and cannot be interfered with by any statute. The words "administer educational institutions of their choice" clearly indicate that the institution has an absolute right to select teachers, retain them or retrench them at its sweet will according to the norms prescribed by the institution or by the religious order which has founded the institution. As almost all the minority institutions in the present case are not receiving any substantial aid from the Government but have established the institution by their own moneys and are bearing all the expenses themselves, it is none of the business of any outside authority to interfere with or dictate to the institution as to which member of the staff should be retrenched and which should be retained. The provisions of section 6 directly interfere with this valuable right of the institution by providing that the retrenchment shall be made with the approval of the competent authority. The power is uncanalised and unguided and , suffers from the same vices as has been pointed out in the case of 977 section 3 of the Act. For these reasons, therefore, section 6 will have no application to the institution.

978

Section 12 and 13 relate to penalties for contravention of the provisions of the Act which have been held by me to be violative of Article 30 and, therefore, inapplicable to the appellants because that would amount to destroying the very foundation and personality of the minority institution. These sections are also not applicable to the minority institution except n respect of provisions of the Act which have been upheld by me.

Section 15 contains the revisional power and provides that the Government may delegate its powers, or make rules regarding the exercise of such a power. I have already pointed out that the setting up of a competent authority to sanction or approve the order passed by the institution in respect of a member of the staff where sufficient guidelines and grounds for approval have been prescribed is purely a regulatory measure and does not attract Art. 30 of the Constitution. The conferment of a right of revision against any order of the minority institution under the Rules framed which provide sufficient guidelines and allow the minority institutions an opportunity to be heard, is an innocuous provision and does not impinge on the autonomy of the minority institution. I am, therefore, of opinion that such a provision is in the best interests of the institution and does not in any way harm the personality of the institution or destroy the image so as to interfere with its autonomous functioning. I, therefore, hold that section 15 is constitutionally valid and I might hasten to add that its constitutionality was not challenged before this Court.

The decisions rendered subsequent to the Kerala Education Bill case may now be referred to see how for the views expressed had been modified. In Rev. Sidhajbhai Sabhai & Ors. v. State of Bombay & Anr.(1) a Bench of 6 Judges held that the order of the Government directing that 80% of seats in the training colleges should be reserved for Government nominee with a threat that if the order was disobeyed, grant and recognition would be withdrawn. was invalid. The Court laid down that reasonable restrictions in the interest of the efficiency of instruction, discipline, health, sanitation and the like may be imposed as those regulations will not be restrictions on the substance of the right guaranteed, for they secured the proper functioning of the institution in educational matters. The Court held that "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 institutions, the right guaranteed by Art. 30(l) 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 elective as an educational institution. The dual test prescribed is the test of reasonableness and the test that is regulative of the educational character of the institution and is conducive to making the institution an effective vehicle of the education of the minority community or the persons who resort to it. The requirements of reservation of 80% of the seats will 987 destroy the right to management as a minority institution and as such cannot be imposed even in the case of institutions receiving aid. Conditions of such a nature that would result in surrender of the fundamental right to administer cannot be imposed. After referring to the decision in the Kerala Educational Bill case, the Court observed that it did not decide that a regulation would be deemed unreasonable only if it was totally destructive of the right of the minority to administer n the educational institution. This view was affirmed in the St. Xavier's College case [1975] 1 SCR 173. The test laid down requires that the regulation must be for regulating the educational institution for the minority committee as well other persons who resort to it. (emphasis supplied) The case of Rev. Father W. Proost and ors. v. The State of Bihar and Ors.(1) relates to affiliation. This Court was considering the validity of s. 48-A of the Bihar University Act. Under s. 48-A a University Service Commission for affiliated Colleges was established. It was provided amongst others that subject to the approval of the University, appointments, dismissals, removals, termination of service or reduction in rank of teachers of an affiliated college not belonging to the State Government shall be made by the governing body of the College on the recommendation of the Commission. While the petition was pending before this Court the Governor of Bihar promulgated an ordinance by inserting Sec. 48-B which exempted Colleges established and administered by the minorities from the operation of the provisions of clauses (6), (7), (8), (9), (10) and (11) of s. 48-A. After the introduction of s. 48-B the petitioners before this Court claimed protection under S. 48-B and submitted that affiliated Colleges established by minorities are exempt from the operation of the impugned provisions of s. 48-A. It may be noted that under s. 48-B the governing body of an affiliated college established by a minority shall be entitled to make appointments, dismissals, removals, termination of service or reduction in rank of teachers or take other disciplinary action subject only to the approval of the Commission and the Syndicate of the l university. The petitioners did not challenge the provisions which provided that appointments, dismissals, removals, termination of service and reduction in rank of teachers or other disciplinary measures will be subject to the approval of the Commission and the Syndicate of the University. What was objected to was the provisions under s. 48-A which established an University Service Commission on whose recommendations alone appointments, dismissals, removals, terminations of service or reduction in rank of teachers of an affiliated college 988 can be effected. A provision requiring prior approval of the Commission or Syndicate was not challenged as objectionable.