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.  Managing Committee, contai Rahamania High Madrasah and Others

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:-

20. 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 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

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.”

5. 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 SK. MD. Rafique vs.  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;

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

11

(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.”

6. 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 SK. MD. Rafique vs.  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 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

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 sub- section, 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.

9. 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 SK. MD. Rafique vs.  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 … … … ”

7. 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 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

15

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.  Managing Committee, contai Rahamania High Madrasah and Others

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”

8. 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 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

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”.   

9. 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.

2. 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.

3. 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

4. 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  Non- Government  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 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

19

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 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

20

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.

…

10. 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,

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

21

the Head Master or the Headmistress or the Teacher- In-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.

11. 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.

12.  (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 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

22

13. 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.

…   … …

18. (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.”

10. 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 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

23

“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 Non- teaching staff’ shall be inserted.”

11. 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 ….”

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

24

RIVAL SUBMISSIONS:

12. 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 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

25

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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

26

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

13. 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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

27

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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

28

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.”

14. 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 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

29

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 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

30

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.”   

15. 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.

16. 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 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

31

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

17. 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,

1957.  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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

32

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)

17. 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 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

33

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)

17. 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 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

34

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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

35

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 subject- matter  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)

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

36

18. 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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

37

“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)

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

38

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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

39

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).”

19. 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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

40

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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

41

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).”

20. In  State of  Kerala,  etc vs.  Very Rev.  Mother Provincial,  etc4,  a

Bench  of  six  Judges  of  this  Court  considered  challenge  to  certain

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

42

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  Sub- section (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 Sub- sections (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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

43

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-a- vis 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.”

21. 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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

44

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).

37. In our view there is no possible justification for the provisions contained in Clauses 2(1)(a) and 17 of

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

45

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).

38. 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.”

22. 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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

46

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 Vice-

Chancellor 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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

47

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.

20. 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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

48

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.

31. Regulations which will serve the interests of the students, regulations which will serve the interests of

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

49

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.

32.  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.

46.  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.

47. 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.

48. The teachers and the taught form a world of their own where everybody is a votary of learning. They

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

50

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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

51

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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

52

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.

91.  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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

53

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.

92.  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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

54

an  effective  vehicle  of  education  for  the  minority community or other persons who resort to it.

… … …

94. 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.

… … …

103. Another conclusion which follows from what has been discussed above is that  a law which interferes

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

55

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.

104.  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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

56

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).

105. 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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

57

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.

175. 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?

176. 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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

58

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.  

… … …

182. It is upon the principal and teachers of a college that the tone and temper of an educational institution

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

59

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:-

197. … … 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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

60

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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

61

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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

62

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.

…  … …

229. 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?”

… … …

232. 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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

63

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.

267. The extent of regulatory power may vary from class to class as well as within a class. For instance,

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

64

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.

268. 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. … … …”

23. 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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

65

“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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

66

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.

… … …

24.  In  all  these  cases  administrative  autonomy  is imperilled  transgressing  purely  regulatory  limits.  In

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

67

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.

42. 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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

68

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.   

24. 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.

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

69

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  Vice- Chancellor 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  sub- sections (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  non- teaching 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.

52.  The  power  of  appeal  conferred  on  the  Vice- Chancellor 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  Vice- Chancellor 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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

70

under  Ordinance  33(4)  was  merely  a  check  on maladministration.

53.  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”.

25. 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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

71

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.   

26. 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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

72

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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

73

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) … … …

23. 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.”

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

74

27. 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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

75

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.”

28. 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 grant- in-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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

76

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.

81. 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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

77

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.

51. 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.”

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

78

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.

102.  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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

79

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)   

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

80

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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

81

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.”

138. 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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

82

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”

29. 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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

83

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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

84

changes  taking  place  in  the  structural  patterns  of education over the years.

19. 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’.”

20.  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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

85

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.”

21. 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).”

22. 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  Vice- Chancellor.  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.”

23. 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.

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

86

24. 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   

30. 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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

87

“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.”

31. 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;

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

88

(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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

89

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,  State- maintained 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.   93. 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?

… … …

105.   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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

90

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.”

 106. 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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

91

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 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 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.”

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

92

107.   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”,

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

93

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.”

120. Explaining the rationale behind Article 30, it was observed at SCR p. 224, as follows: (SCC p. 772, para 77)

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

94

“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.”

 121.  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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

95

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.”

122. 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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

96

and reconciled the two objectives could be considered to  be  reasonable.  This,  in  our  view,  is  the  correct approach to the problem.   123. 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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

97

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.   137. 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).

 138.  As  we  look  at  it,  Article  30(1)  is  a  sort  of guarantee or assurance to the linguistic and religious

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

98

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.

139.  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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

99

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 non- minorities.  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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

100

(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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

101

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.

…   … …

151.  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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

102

community to be admitted, so as to adequately serve the interest of the community for which the institution was established.

152.  At  the  same  time,  the  admissions  to  aided institutions,  whether  awarded  to  minority  or  non- minority 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.

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

103

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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

104

32. 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.

6. 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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

105

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)

72.  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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

106

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  government- owned  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.

73.  There  are  a  large  number  of  educational institutions, like schools and non-professional

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

107

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.   

… … …

10. 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.”

33. 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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

108

“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

27. 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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

109

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 non- minorities 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)

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

110

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  non- professional educational institutions

104. 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.

105.  Dealing  with  unaided  minority  educational institutions,  Pai  Foundation8 holds  that  Article  30

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

111

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.    106.  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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

112

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.”

34. 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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

113

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.

35. 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;

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

114

(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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

115

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).

…   … …

21. 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.”

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

116

35.1 As regards freedom to choose the principal, it was observed:-

22.  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.

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

117

19. 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)

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

118

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.”

36. 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:

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

119

“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.

47. 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:

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

120

“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.

56. 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.   

91. 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).

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

121

92. 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,

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

122

qualification  and  eligibility  and  at  the  same  time ensure better cultural and linguistic  compatibility to the minority institution.   112. 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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

123

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.

37. In  Chandana  Das  (Malakar)   vs.   State  of  West  Bengal  and

others31 the question that arose was set out in para 6 as under:-

6.  … …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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

124

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.

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

125

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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

126

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]

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

127

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

38. 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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

128

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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

129

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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

130

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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

131

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.”

39. 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?”

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

132

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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

133

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. ……..   137.  ……  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 :-

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

134

“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.”

40. 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.  

41. The decisions of this Court rendered after  TMA Pai Foundation8

case, may now be considered.

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

135

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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

136

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.

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

137

(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.  

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

138

(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.  

45. 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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

139

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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

140

had struck down Sections 51-A and 52-A of the Gujrat  University Act,

1949.  

46. 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.   

47. 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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

141

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.

48. 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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

142

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.

49. 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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

143

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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

144

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.  

50. 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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

145

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.   

51. 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.

52. 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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

146

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.

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

147

53. 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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

148

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.   

54. 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.

55. 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

Civil Appeal No.5808 of 2017 SK. MD. Rafique vs.  Managing Committee, contai Rahamania High Madrasah and Others

149

institutions  and  said  provisions  are  not  violative  of  the  rights  of  the

minority educational institutions.

56. 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

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.   

59.  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.