IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

Civil Appeal No. 5244 OF 2008 With

Civil Appeal No. 5245 of 2008 With

Civil Appeal No. 5246 of 2008 With

Civil Appeal No. 5247 of 2008 With

Civil Appeal No. 5248 of 2008 With

Civil Appeal Nos. 5249-5250 of 2008 With

Civil Appeal Nos. 5251-5252 of 2008

Colvin School Society      ... Appellant

Versus

Anil Kumar Sharma & Ors.  ...Respondents

With

Contempt Petition (C) No. 170 of 2005

Dr. B.P. S Chauhan & Ors.   … Petitioners Versus

Dr. Sanjay Singh, Manager of the Committee of Management of Colvin Talqukdars’ Inter College and Ors. ….Respondents

J U D G M E N T

H.L. Gokhale J.   

Civil Appeal Nos. 5247, 5244, 5248, 5245, 5246 of 2008 arise out  

of a common order and judgment dated 17.11.2004 passed by a Division Bench

of the Allahabad High Court at Lucknow on five Writ Petitions bearing Nos. 6415  

(S/S) of 2002, 2759 (PIL) of 2003, 2049 (M/S) of 2003, 4704 (S/S) of 2003 and  

7179 (M/B) of 2002.  The appellant is an educational society registered under  

the Societies  Registration Act,  1860.  The issue in these five appeals  is  with  

respect  to  the  decision  of  the  appellant  to  shift  the  secondary  and  higher  

secondary courses of education conducted in its school and intermediate college,  

affiliated  to  the  Board  of  High  School  and  Intermediate  Education  of  Uttar  

Pradesh (‘U.P. State Board’ for short), to the Indian Certificate for Secondary  

Education  course (‘ICSE course’ for short) by seeking affiliation with the Council  

for the Indian School Certificate Examination, New Delhi (‘Council’ for short).

2. Civil Appeal Nos.5249-5250 of 2008 and 5251-5252 of 2008 arise  

out of Writ Petition Nos.119 and 120 (S/S) of 2005 which were filed by a few  

teachers seeking salary as a consequence of the above order dated 17.11.2004.  

A  learned  Single  Judge  of  Lucknow Bench  of  the  Allahabad  High  Court  had  

passed a common interim order dated 7.1.2005, on those two writ petitions in  

favour of the teachers, and the appellant had filed Special Appeal Nos. 59 and 60  

of 2005 from those interim orders.  A Division Bench of the High Court hearing  

those two Special Appeals had left the interim orders undisturbed by its common  

order dated 8.2.2005.  These interim orders as well as the orders on the Special  

Appeals have been challenged by the appellant in Appeal Nos.5249-5250 and  

5251-5252 of 2008.  

2

3.  The Contempt Petition (C) No.170/2005 has been filed by a few  

teachers alleging a breach of the interim order passed by this Court in these Civil  

Appeals.

Short facts leading to all these matters are this wise:-

4. The appellant is running a school and an intermediate college by  

name Colvin Taluqdar’s Inter College in the City of Lucknow, U.P..  The college  

was established in the year 1889, and as the name of the college indicates, as  

per  the social  circumstances  existing  in  those days,  erstwhile  Zamindars  and  

Taluqdars had a great sway in the management of this college. After the U.P.  

Intermediate Education Act, 1921 came to be passed to regulate the secondary  

education in the State, the school and Inter-college got affiliated with the U.P.  

State Board constituted under the said Act.  The students from this school and  

college have been appearing for the X and XII standard examination, also known  

as the Secondary School Certificate and the Higher Secondary School Certificate  

Examination conducted by this Board. Presently the college and the school run  

by the appellant are situated on a piece of land admeasuring about 89 acres (in  

the  prime  area  of  the  city  of  Lucknow)  which  has  been  leased  out  to  the  

appellant society by the Government of U.P. in 1964 on a nominal yearly rent of  

a few hundred rupees.  The college and the school initially imparted education  

from classes VI to XII, but later on, a primary section was also added in 1967-

68. The Government of U.P. sanctioned a recurring grant of Rs. 25,000/- for  

maintenance to the college in the year 1952, and it was increased from time to  

time.  The College received the grants till 1993-94.

3

5. It is the case of the appellant, that the strata of the society from  

which the students were attending this school and intermediate college slowly  

started preferring  the schools  affiliated  to the ICSE Course.   The number of  

students went on dwindling, and therefore the appellant decided to switch over  

to  the  ICSE  course  run  by  the  Council.  The  management  sought  the  No  

Objection from the State of U.P. for this switch over, and the Joint Secretary of  

the Education Department of the State of U.P. informed the appellant by his  

letter  dated  26.4.1980  that  the  State  Government  had  no  objection  to  the  

appellant-college getting affiliated to the course run by the Council subject to the  

following two conditions:-

“(1) An  officer  of  the  Education  Department   nominated by the State Government will be included in   the  Managing  Committee  by  the  Institution  as  the   representative of the State Government.

(2) 10% of the seats will be kept reserved for the   wards  of  the  officers  of  the  State  Government  and   admission to other students against such seats will only   be possible in case of said students (wards) not being   available.”

It is the case of the appellant that consequently the ICSE Board, New Delhi,   

granted them certificate of affiliation on 25.11.1980 as a result  of  which the  

appellant–college started imparting education in two wings, viz. a wing attached  

to the ICSE Board, and another with the U.P. State Board.

6. As the time passed further, the management of the appellant noted  

that the strength of the students taking the course run by the U.P. State Board  

was going down rapidly.  Whereas, in 1995-96 the students enrolled with the  

4

U.P. State Board were in the range of 1800-1900, by the academic year 2000-01  

the number of such students went down to just about 700.  It also noticed that it  

was  becoming  uneconomical  to  run  the  U.P.  State  Board  Section.  The  

management, therefore, thought that it would be advisable to close down the  

U.P. State Board Section.   

7. The appellant  accordingly  wrote  to  the authorities  of  U.P.  State  

Board on 18.1.2002 that it had resolved that its affiliation with the U.P. State  

Board  under  Section  7(a)  of  the  U.P.  Intermediate  Education  Act,  1921  be  

surrendered at the end of the academic year 2001-02.  The management of the  

appellant wrote a letter to the authorities concerned on 18.8.2002, wherein they  

stated that they will continue to run the IX and XI standard classes for those  

students who will be appearing for the U.P. State Board examination later, but  

would like to close down the classes of VI to VIII with immediate effect.  After  

sending this letter, the appellant stopped giving admissions for classes VI to VIII.  

8. In the meanwhile, the District Inspector of Schools (DIOS) wrote to  

the appellant on 19.7.2002 that classes VI to VIII will  have to be run by the  

management  for  the  U.P.  State  Board  Examination.   In  the  letter  dated  

19.7.2002 he specifically stated as follows:-

“The N.O.C. issued by the State Govt. for its affiliation   to ICSE, New Delhi contains a provision under which   the college would continue to conduct class of 6,7,   and 8. The Govt. has directed the institution to allow  the students to  appear  for the examination of  U.P.  Board  of  High  School  and  Intermediate  Education  alongwith  examinations  of  ICSE.   Under  the  

5

circumstances,  it  is  indispensable  to  conduct  the  classes of 6, 7 and 8 by this Institution.”

This was followed by another letter dated 7.8.2002, directing the appellant to  

continue the admissions failing which an appropriate action will have to be taken  

against the appellant.

9. (i) This  led  the  committee  of  management  of  the  appellant  to  file  Writ  

Petition  No.  6415/2002,  wherein  they  challenged  the  communications  dated  

19.7.2002 and 7.8.2002.  In that matter a Single Judge of the High Court passed  

an  interim  order  dated  14.11.2002,  wherein  he  recorded  that  the  counsel  

appearing  for  the  opposite  parties  had  made  a  statement  on  the  basis  of  

instructions,  that  he  had  no  objection  against  the  appellant  giving  up  the  

affiliation with the U.P. State Board.  Accordingly, operation of the letters dated  

19.7.2002 and 7.8.2002 was stayed.  

(ii) Thereafter  the  college  management  published  a  notice  in  a  Lucknow  

Newspaper Dainik Hindustan on 31.11.2002 for the information of the public at  

large that the classes affiliated with the U.P. State Board were going to be closed  

down.   A few teachers and the Parent-Teachers Association filed a PIL bearing  

No.2759/2003  to  challenge  this  notice,  and  seek  the  appointment  of  an  

authorized controller to run the institution.   

(iii) One more  Writ  Petition  bearing  No.  2049/2003  was filed  by  some 14  

teachers to issue a direction that classes VI to VIII should be directed to be run  

for the U.P. State Board Examination.   

6

(iv) Some junior teachers came to be relieved by the college management by  

order dated 30.7.2003, which led to the filing of one more Writ Petition bearing  

W.P.No.4704/2003 to challenge the said decision and to seek salaries.   

(v) Thereafter, a PIL bearing Writ Petition No. 7179/2002 was filed praying  

that  the  Government  should  take  over  the  management  of  the  school,  and  

should not renew the lease of the land given to the institution.

10. All these five writ petitions came to be heard together by a Division  

Bench.  The principle submission of the appellant was that the objection of the  

respondents to the switch-over to the ICSE course was unjustified and untenable  

in law.  The respondents on the other hand contended that the permission of the  

U.P. State Board for closing down the U.P. State course was necessary under  

Regulation No.10 of the U.P. Intermediate Education Act, 1921.  The petitions  

were decided by a Division Bench of the High Court by its judgment and order  

dated 17.11.2004.  The operative para 63 thereof reads as under:-

“63. In view of the conclusion reached above,  all   the five writ petitions are finally disposed of as under:

1. The order dated 30.7.2003 (annexure-1 to 11)   by  which  the  services  of  the  petitioners  of  writ   petition No.4704 of 2003 were dispensed with,  are   quashed with a direction to the College/Management   to ensure payment of salary etc. to these teachers as   if  the  orders  dated  30.7.2003  were  never  in   existence.

2. The  opposite  parties  are  directed  to  ensure   that  so long as  the UP Board Wing of  the College   continues  to  be  recognized  one,  education  to  the   students from classes VI to XII is imparted, as was   being done prior to the filing of these writ petitions.

7

3. The  Board  of  High  School  and  Intermediate   Education is hereby directed to take an early decision   and  to  communicate  the  decision  so  taken  to  the   College, within a period of two months from today,   under Regulation 10 of Chapter VII of the Regulation   on  the  notice/letter  dated  14/18.1.2002  of  the   management proposing to close down UP Board Wing   of the College.

4. In the  event  of  permission  for  closing  down  the  UP  Board  Wing  is  refused  by  the  Board,  the   Director  of  Secondary  Education  will  take  action   under  sub-section  (3)  of  Section  16-D  of  the  Act,   either  for  withdrawing  the  recognition  or  for   appointment of Authorized Controller and the Board   or  the Government,  as  the case  may be,  will  take   suitable action according to law as early as possible,   keeping in view the next ensuing academic session.

5. In case the Board refuses to closing down of   the  institution  under  Regulation  10 of  Chapter  VII,   the  Govt.  of  UP will  take necessary  steps  within  a   period of two months from the date of decision of the   Board, for bringing the teachers and the staff of UP   Board Wing within the purview of the Act of 1971 and   will also take steps within the same period to take the   College in the list  of  Colleges  receiving grant-in-aid   and this arrangement shall  continue so long as the   recognition of the UP Board Wing continues.

6. The Director of Secondary Education and the   Government of UP are commanded to ensure in due   course that the affairs of the UP Board Wing of the   College run in accordance with the Approved Scheme   of  Administration  consistent  with  the  principles   enumerated in Third Schedule of the Act of 1921.

7. The Government of  UP is further  directed to   ensure  that  classes  VI,  VII  and  VIII  which  were   running  earlier,  run  further  unless  closing  down of   those classes is permitted by it  or by the authority   competent to do so.”

11. The  appellant–committee  of  management  felt  aggrieved  by  this  

order and, therefore, filed Civil Appeal Nos. 5244, 5245, 5246, 5247, 5248 of  

8

2008 to challenge the said common order.  When the Special Leave Petitions  

leading  to  these appeals  first  came up for  consideration  on 17.12.2004,  this  

Court issued notice and passed an order of status-quo in the following terms:-

“Status-quo in regard to the services of the teachers   shall continue till further orders in terms of direction   contained  in  paragraph  63(1),  subject  to  the   condition that the teachers would teach the course as   directed by the petitioner-management.

Other directions of the High Court are stayed.”

12. Thereafter, when these Special Leave Petitions came up for further  

consideration  on  14.3.2005,  a  grievance  was  made  by  the  appellant-

management that some of the teachers were misusing the order passed by this  

Court,  and were  disturbing  the  conduct  of  the  classes.   This  allegation  was  

denied  by  the  counsel  for  the  teachers.   Thereupon,  this  Court  passed  the  

following order:-

“On  behalf  of  the  petitioner-Management,  with   reference to the order dated 17th December, 2004, it   is submitted that the teachers have been directed to   teach ISCE course but, instead of so doing, they are   disturbing the conduct of classes and continue to sit   outside the room of the principal and others.  It is   seriously  disputed  by  learned  counsel  representing   teachers.  By order dated 17th December, 2004, the  order of status-quo in regard to the services of the   teachers  was  continued  in  terms  of  directions   contained in para 63(1) of the impugned judgment,   subject  to  the  condition  that  the  teachers  would   teach  their  courses  as  directed  by  the  petitioner- management.   If  the  teachers,  in  violation  of  that   order, decline to teach the courses as directed by the   Management, they would do so at their own peril.   

9

It  has  been  submitted  on  behalf  of  the   teachers  that  without  any  reservation,  they  are   prepared to teach ISCE course.  In order to obviate   any  dispute  at  a  later  stage,  let  the  Management   supply to the advocate on record appearing for the   teachers  the  details  of  the  course  required  to  be   taught by the teachers and the time table.”

13. (i) Subsequently, all these five Special Leave Petitions were admitted  

and converted into Civil  Appeals.  The interim order was directed to continue  

until further orders.  Later, the appellant took out I.A. No.8/2010 to point out the  

indiscipline on the part of some of the teachers, and sought modification of the  

order dated 17.12.2004.  This Court declined to modify that order.  However, by  

its order dated 5.7.2010 it granted liberty to the appellant-management to take  

disciplinary action against those teachers, if there was any violation as per the  

statute applicable to them.  The consequence of all these orders has been that  

the interim stay granted by a Single Judge of the High Court  on 14.11.2002  

against the operation of the letters dated 19.7.2002 and 7.8.2002 is continuing  

to  operate,  since  all  the  directions  in  paragraphs  63(2)  to  63(7)  in  the final  

judgment have been stayed by this Court.  However, it must be noted that this  

Court has passed the above order subject to the rider that the status-quo with  

respect  to  the  teachers  will  continue  till  further  orders.   It  means  that  the  

teachers will continue in this college subject to the condition that they will have  

to teach the course as directed by the appellant-management.  Thereafter, there  

has been a grievance that some of the teachers were creating disturbances and  

the  management  has  been  granted  liberty  to  take  disciplinary  actions,  if  

necessary.   

10

(ii) One  more  consequence  of  these  proceedings  has  been  that  some  

teachers have contended that the college management is not implementing the  

interim order dated 17.12.2004 passed by this Court since they were not being  

given the regular work and were kept in the reserve pool.  They filed a Contempt  

Petition (C) bearing No.170/2005 which has been directed to be heard with the  

Civil Appeals.   

(iii) Since all these matters raise questions which are inter connected, all of  

them are heard and are being disposed of together.  C.A Nos. 5249-5250 and  

5251-5252 of 2008 are also heard and are being decided together with them.

14.  The question  which  arises  in  this  matter  is  as  to  whether  the  

appellant was entitled to close down the U.P. State Board Section in the manner  

in  which  it  did,  and  if  not  what  should  be  the  order,  and  whether  the  

consequential order of the High Court was justified.

15. The  principle  submission  of  the  appellant  has  been  that  the  

Government’s earlier letter dated 30.11.1991 granted an implied permission to all  

those managements which did not seek any grant but wanted a switch-over.  

The appellant particularly relied on sub-paragraph (d) thereof.  It is submitted  

that so long as the management is not seeking any grant from the Government,   

the recognition with the Madhyamik Shiksha Parishad (i.e U.P. State Board) will  

automatically get cancelled in view of paragraph (d).  The moment, the college  

obtained the affiliation either from the Central Board of Secondary Education,  

New Delhi or the Council for the Indian School Certificate Examination, nothing  

11

further is required to be done. The two letters from the DIOS directing running  

of the classes VI to VIII were contrary to this direction issued by the Deputy  

Secretary, U.P. Government and have to be set-aside.  

16. As against this, the submission of the State of U.P. has been that a  

huge portion of land in the prime area of Lucknow city has been leased out to  

this institution on a nominal rent.  It was for running the classes for the U.P.  

State Board Examination.  The Government did not have any objection to the  

switch over to the ICSE Board provided, however, the classes for the U.P. State  

Board Examination were also to run simultaneously.  The benefits of having the  

prime land in the city cannot be confined only to the elite section of the society  

who would prefer go to the ICSE Board where the fees were not regulated by  

the Government.  It cannot be left to the sweet will of the college management  

to deny its facilities to the other sections of the society who will join the classes  

for the U.P. State Board Examination with regulated fees.  It will also affect the  

teachers who were teaching the course for the U.P. State Board Examination.  

17. Shri Rakesh Dwivedi, Senior Advocate appeared for the appellant  

society.  Shri Shirish Kumar Misra, learned Advocate appeared for the State of  

U.P and Shri P.S. Narshima, Senior Advocate appeared for the teachers.   

18. There has been some controversy as to whether the Government’s  

NOC  dated  26.4.1980  permitting  the  affiliation  to  ICSE  Board  contained  a  

condition that the appellant should continue to conduct classes of VI, VII and  

VIII with the State U.P. Board.  There has also been a controversy as to whether  

12

the State and the teachers would be bound by the alleged concession by the  

counsel for the State as recorded in the interim order of a single Judge of the  

High Court dated 14.11.2002 in Writ Petition No. 6415/2002.  There is also an  

allegation against the management of the appellant society that its Institution  

did not have any approved scheme of administration as required by the law, and  

the appointment of a manager to run the institution was devoid of any legal  

authority.  In our view it will be desirable to deal with the main question raised in  

this group of appeals rather than to get bogged down into these details.

19. It was submitted on behalf of the appellants that the respondents  

have not objected to the appellant starting classes which are to be affiliated to  

the ICSE course.  What the State is insisting upon, is that alongwith the ICSE  

classes the appellant ought to run the classes for the U.P. State Board course  

also.  It was therefore, submitted on behalf of the appellant that the appellant  

was required to take this decision basically because they found that the parents  

of the students had a preference for the ICSE course.  ICSE board is also listed  

as an examining body under the Delhi Education Act, 1973, and as such the U.P.  

State Board had no objection.  What is important is imparting good education to  

the students and there was nothing wrong in accepting the aspirations of the  

parents and the students to shift to the ICSE board.

20. In  view  of  the  Government’s  NOC  dated  26.4.1980,  the  

management  had  shifted  classes  I  to  V  initially  to  the  ICSE  board,  and  

subsequently the higher classes.  The appellant was not receiving any grants  

from the Government from 1993 onwards.  The teachers had to adjust to this  

13

change.  The learned counsel for the appellant informed us that out of twenty  

two teachers whose services were required to be terminated, eleven had retired,  

and one teacher had joined another college as a principal, and ten teachers who  

were taking the U.P.  State Board course remained with  the institution.   The  

appellant’s college has not been running the U.P. Board classes since the interim  

order dated 14.11.2002 granted by the High Court which has been continued in  

view of the stay granted by this Court.

21. Shri  Rakesh  Dwivedi  learned  Senior  Counsel  appearing  for  the  

appellant submitted that the recognition and affiliation with the board is basically  

for the purpose of the examination conducted by the board, and affiliation to the  

board is completely voluntary.  The board cannot compel the college to continue  

to be affiliated with it.  The appellants had relied upon the Government order  

dated  30.11.1991  and  particularly  para  (d)  thereof,  to  submit  that  once  an  

affiliation with ICSE was obtained, the recognition with the U.P. State Board will  

get cancelled automatically.

22. The  subject  of  this  communication  of  the  Deputy  Secretary  

(Education)  of  Government  of  U.P.  dated  30.11.1991  was  granting  of  No  

Objection Certificates to educational institutions in the State for their affiliation to  

ICSE  New  Delhi/Central  Board  of  Secondary  Education,  New  Delhi.   The  

conditions in this behalf laid down in paragraph 4 thereof were as follows:-

“It has been decided of late that while giving No Objection Certificate   to  educational  institutions,  the  No  Objection  Certificate  should  be   issued  under  following  conditions  according  to  present  procedure   under general conditions.

14

(a)Renewal  of  the registered  society  of  the college  will  be   done from time to time.

(b)  There  will  be  member  nominated  by  the  Education   Director in the Managing Committee of the College.

(c) Atleast 10 percent seats will  be reserved for meritorious   children belonging to schedule caste/schedule tribes and fees   more than the prescribed fees for various classes will not be   charged  from  them  by  schools  conducted  by  Madhyamik   Shiksha Parishad U.P./Basic Shiksha Parishad.

(d) No grant will be demanded from the State Government by   the institution and if the college is already recognized by the   Madhyamik  Shiksha  Parishad  but  if  the  college  obtains  an   affiliation  from  the  Central  Board  of  Secondary  Education,   New Delhi,  Council for Indian School Certificate Examination,   New Delhi, the recognition of the Parishad and the grant of   State Government will automatically get cancelled.

(e)  The  teaching  and  non-teaching  employees  of  the   institution will not be paid salary and allowances less than the   pay-scale and allowances paid to employees of government   aide education institutions.

(f)  Service  Rules  of  the  employees  to  employees  of  non- government and aided High Secondary Schools.

(g)  Institutions  will  follow the  orders  as  are  issued by the   State Government from time to time.

(h) The record of the School/College will be maintained in   prescribed forms and registers.”

23. This submission of the appellant was countered on behalf of the  

State by pointing out that these guidelines of 30.11.1991 will have to be looked  

into in their totality.  Before granting any such disaffiliation, the board is required  

to consider the interest of the students and the teachers.  That apart, regulation  

10  framed  under  the  U.P.  Intermediate  Education  Act,  1921,  required  such  

application to be furnished one year in advance alongwith reasons for closure of  

the institution.  The board may permit the closure subject to some appropriate  

15

conditions, and transfer of records of the institution to some other institution as  

the authority may deem fit.  This regulation 10 reads as follows:-

“10. No institution which is recognized by the Board as High School   or  Intermediate  College  shall  be  closed  down  without  prior   permission of the Board and unless a written notice by registered   post  is  given to the Secretary  of  the Board with a copy to the   Director at least one year prior to the proposed date of closure,   setting forth the reasons for the closure of the institution.  The   Board may permit  the closure of  the institution  subject  to  such   conditions and transfer of records of the institution to any other   institution or authority as it may deem fit.”  

24. Shri Dwivedi, submitted that this regulation speaks about closure of  

the institution, and not shifting of the institution to the course run by some other  

board.  Shri Misra, learned counsel for the State on the other hand submitted  

that this shifting in fact amounts to closure of the institution as far as U.P. State  

Board  is  concerned,  and therefore,  the  regulation  will  have  to  be  construed  

appropriately.  Shri Narsimha, learned senior counsel appearing for the teachers  

supported the submissions on behalf of the State Government.  He contended  

that the teachers who were taking the course of State Board cannot suddenly be  

asked to take the course of ICSE Board.

25. Shri Dwivedi, then submitted that the right to run an educational  

institution  has  been  considered  as  an  occupation  within  the  meaning of  the  

expression under Article 19(1) (g) of the Constitution (see para 20 of T.M.A Pai  

Foundation and ors. Vs. State of Karnakata and Ors. reported in  [2002  

(8) SCC 481].  He drew our attention to paragraph 66 of this judgment which is  

to the following effect:-

16

“66. In  the  case  of  private  unaided  educational   institutions,  the  authority  granting  recognition  or  affiliation  can   certainly  lay  down  conditions  for  the  grant  of  recognition  or   affiliation;  these conditions  must pertain  broadly  to  academic and   educational matters and welfare of students and teachers – but how   the  private  unaided  institutions  are  to  run  is  a  matter  of   administration  to  be  taken  care  of  by  the  management  of  those   institutions.”

He submitted that the authority granting recognition or affiliation can lay down  

conditions  which  are  relevant  for  academic  or  educational  purpose  but  not  

beyond that.  

26. The above quoted paragraph 66 of T.M.A. Pai Foundation which  

has been relied upon by Shri Dwivedi however, permits the authority granting  

recognition or affiliation to lay down conditions for the grant of recognition or  

affiliation,  and they  are  expected  to  be  for  the  welfare  of  the  students  and  

teachers.  Shri Dwivedi, relied upon the judgment of a Constitution Bench of this  

Court in Pathumma and Ors. Vs. State of Kerela and Ors. reported in 1978  

(2) SCC 1, to submit that this particular Regulation No.10 must not be read as an  

obstructive one or else it  would become excessive and would go beyond the  

requirements of the interest of general public. In paragraph 14 of this judgment  

this Court had observed:-

  “14. Another test which has been laid down by this Court is   that  restrictions  must  not  be  arbitrary  or  of  an  excessive   nature so as to go beyond the requirement of the interest of   the general public. In the case of  Chintaman Rao v.  State of  Madhya Pradesh* this Court observed as follows:

 “The phrase ‘reasonable  restriction’  connotes  that   the limitation imposed on a person in enjoyment of   the right should not be arbitrary or of an excessive   nature, beyond what is required in the interests of the  public. The word ‘reasonable’ implies intelligent care   

17

and deliberation, that is, the choice of a course which   reason  dictates.  Legislation  which  arbitrarily  or   excessively invades the right cannot be said to contain   the quality of reasonableness and unless it strikes a   proper  balance  between  the  freedom guaranteed  in   Article  19(1)(g) and the social  control  permitted  by   clause (6) of Article 19, it must be held to be wanting   in that quality.”

What is required is that the Legislature takes intelligent care   and  deliberation  in  choosing  a  course  which  is  dictated  by   reason  and  good  conscience  so  as  to  strike  a  just  balance   between the freedom contained in Article 19(1) and the social   control permitted by clauses (5) and (6) of Article 19.”  

       * (AIR 1951 SC 118)   

27. We quite see that the shifting of an institution from the course of  

one board to another course is not closing down of an institution as such, but at  

the same time in the context of an affiliation with the State Board it comes to a  

closing down of the institution.  All that Regulation No.10 requires is that the  

concerned High School or Intermediate College has to give a written notice one  

year in advance setting forth the reasons for the closure of the institution. The  

board  may  examine  them  and  permit  the  closure  subject  to  appropriate  

conditions and transfer of records of the institution to another institution as the  

occasion may require.   This is because the record of the students who were  

attending the institution earlier is required to be preserved.  It is also implicit  

that the interest of the teachers is also to be taken into consideration, and they  

are required to be adjusted appropriately.  In our view, this provision is by way  

of a regulation and cannot be read in any way as an arbitrary restriction.     

28. We may as well note in this connection that in paragraph 7 of the  

Additional  Affidavit  of  Shri  Mayankeshwar  Sharan  Singh,  Manager  of  the  

18

appellant’s college affirmed on 1.8.2010 in C.A No. 5427/2008 it  is stated as  

follows:-

“That the college at this stage is ready to start a High School &   Intermediate Wing in the college which would be affiliated to the   Board of High School and Intermediate Examination, Allahabad.  In   this High School & Intermediate Wing Classes from 6 to 12 would be   re-started in some section of the college building, which is at present   available with the Petitioner College.  For this purpose a section of   existing building would be ear marked for conducting Classes from 6   to 12 under the U.P. Intermediate Education Act.”

29. We have noted the submissions of the counsel for the parties.  As a  

matter  of  fact,  the  State  of  U.P.  or  the  U.P.  State  Board  did  not  have any  

objection as such to the starting of the ICSE course by the appellant society.  

What they were insisting was that the course run by the U.P. State Board also  

should  be  run  simultaneously.   With  respect  to  these  submissions  of  the  

respondents it was pointed out by the appellant that the parents were expressing  

their preference for the ICSE course, the number of students opting for the State  

board  course  in  the  appellant’s  school  and  college  was  dwindling,  and  the  

appellant was finding it uneconomical to run both the courses, since from 1993 it  

was  not  receiving  any grants  from the State  Government.   In  any case the  

appellant  had expressed willingness to continue the services of  the teachers,  

who were teaching the State Board’s Course, and it appears that some of the  

teachers  who  were  earlier  teaching  in  the  State  Board  Syllabus  have  been  

continued in the appellant institution for ICSE Course.  It is also to be noted that  

though for over seven years the course of the U.P. State Board is not being run  

by the appellant institution, it has offered to restart the course once again.  In  

19

view of this scenario in the facts of the present case, it would be rather academic  

to go into the controversy which is raised before us.  All these proceedings can  

be disposed of by giving appropriate directions to the U.P. State Board and the  

appellants.   

30. In view of what is stated above we pass the following order:-

(i) The directions contained in paragraph 63 (2), (3), (5) and (6) of  

the judgment and order of the High Court dated 17.11.2004 are modified, and  

the U.P. State Board is directed to take a decision within two months from the  

receipt of this order on appellant’s letter dated 18.1.2002 with respect to their  

decision  to close down the U.P.  State Board Wing.   The Board will  however  

consider whether appellant’s original request is now altered in view of paragraph  

7 of their affidavit dated 1.8.2010 in Civil Appeal No.5747/2008 to restart the  

High School and Intermediate wing in some appropriate section of the college  

building for conducting classes from VI to XII under the U.P. State Board.

(ii) If such a decision to restart the State Board’s course is taken, it  

shall be started from the academic year 2012-13.  The State Government will  

issue necessary grants to this section, and the above-mentioned ten teachers  

earlier  teaching  the  State  Board’s  Course and continuing  to  remain  with  the  

appellant society, may be shifted to the classes taking State Board’s Course.

(iii) The direction in paragraph 63 (1) is confined to the ten teachers  

presently remaining with the appellant, though the appellant society shall  at the  

20

earliest settle in accordance with law, if not settled so far, all the dues of other  

teachers who have left the institution, in the meanwhile.

(iv) The direction contained in paragraph 63 (4) is no longer required.

(v) The direction contained in paragraph 63 (7) is modified, and it is  

directed that  if  the U.P.  Board  accepts  that  running of  the U.P.  State Board  

course is no longer feasible, then, it will be open to the U.P. State Board to issue  

a  direction not to restart that course anymore.

31. This order disposes of all the Civil Appeals as well as the Contempt  

Petition.  There will be no order as to costs.

…………..……………………..J.  (  R.V. Raveendran )

  …………………………………..J.  ( H.L. Gokhale  )

New Delhi

Dated: October 11, 2011

21