ALL SAINTS HIGH SCHOOL, HYDERABAD ETC. ETC. v. GOVERNMENT OF ANDHRA PRADESH & ORS. ETC

Citation: [1980] 2 S.C.R. 924

Court: Supreme Court of India

Bench: Y.V. CHANDRACHUD, S. MURTAZA FAZAL ALI, P.S. KAILASAM

Case summary

The 'appellants are particularly aggrieved by the provisions of sections 3 t() 7 of the Act, the validity whereof in challenged on the ground that they deprive the appellants of their right to administer the affairs of minority institutions by vesting th....

Judgment text

ALL SAINTS HIGH SCHOOL, HYDERABAD ETC. ETC. v. GOVERNMENT OF ANDHRA PRADESH & ORS. ETC. February 4, 1980 [Y. V. CHANDRACHUD, C. J. , S. MURTAZA fAZAL ALI AND • P. s. KAlLASAM, JJ. ] Andhra Pradesh Recognised Private Educational Institutions Control Act 1975-Sections 3 to 1-Validity of-Provisions if violate constitutional guarantee in Art. 30(1). Constitution of India 1950-Article 30(1)-Andhra Pradesh Recognised Private Educational Institutions Control Act, 1915-lf offends against Art. 30(1). The purported object of the Andhra Pradesh Recognised Private Educational Institutions Control Act 1975 was to regulate the service conditions of teachers in private educational institutions and for ensuring the security of service of the teachers.

Section 3(I) of the Act provides : "Subject to any rule that may be made in this behalf, no teacher employed in any private educa· tional institution shall be dismissed, removed or reduced in rank nor shall his appointment be otherwise terminated except with the prior approval of the competent authority". The proviso to this sub-section states that if any educational • management etc. contravenes the provisions of this sub-section, the teacher affected shall be deemed to be in service. Where a proposal to dismiss etc. any teacher is communicated to the competent authority, according to sub-section 1 (2) of this section, that authority shall, if satisfied that there are adequate and • reasonable grounds for such proposal, approve such dismissal, removal or reduction in rank or termination of appointment.

Clause (a) of sub-section (3) of this section states that no teacher employed in any private educational institution shall be placed under suspension, except when an enquiry into the gross 'misconduct of such teacher is conten1plated. Clause (b) provides that no such suspension shall remain in force for more than a period of two months from the date of suspension and if such inquiry is not completed within that period, such teacher shall, without prejudice to the inquiry, be deemed to have been restored as teacher. The proviso states that the competent authority may, for reasons to be recorded in writing, extend the said period of two months for a further period not exceeding two months, if in his opinion, the inquiry could not be completed within the said period of two months for reasons directly attnbutable to each teacher. Section 4 gives a right of appeal to teachers employed in private educational institutions against orders of punishment imposed on them.

Section 5 deals with special provisions regarding appeal in certain past dis· ciplinary cases. f Section 6 which deals with retrenchment of teachers provides that where retrenchment of any teacher is rendered necessary consequent on any order of the Government relating to education or course of instructions or to any other matter, such retrenchment may be effeoted with the prior approval of the competent authority. Section 7·provides for payment of pay and allowances to teachers in the ¥-·- ALL SAINTS ! IlGH SCHOOL V. GOVT. OF A. P. 92 5 The appellants who were minority educational institutions established by members of the Christian commnnity filed writ petitions before the High Court impugning various provisions of the Act as being violative of the &'llarantee con· 1ained in Article 30(I) of the Constitution by permitting or compelling interference with the internal administration of their private educational institutiions.

In particular they challenged the provisions of sections 3 to 7 of the Act on the gronnd that they deprive them of their right to administer the affairs Of • minority institutions by vesting the ultimate administrative control in an out· side authority. The contentions having been rejected by the High Court they filed appeals by special leave. HELD s Permajorily-(Chandrachud, CJ. , and Fazal Ali, J. -Kailasam, J. , dissenting. ) : Sub-sections (I) and (2) of section 3 are invalid and cannot be applied to minority institutions. Per majorily-(Chandrachnd, C. J. , and Kailasam J. -Fazal Ali, J. dissent. mg). Clauses (a) and (b) of section 3(3) do not offend against Art. 30(1) and are valid. By the Court: Sections 4 &. 5 are unconstitutional as being Yiolative of Art. l' SO(IJ. Per majority IChandrachnd, C. J. , and Kailasam J-Fao:al Ali, J, dissenting)• • Section 6 is valid. By the Court : Section 7 is valid. ) Per Chandrachud, C. J.

Section 3 ( 1) and 3(2) are unconstitutional in so far as they are made applicable to minority institutions since in practice these provisions are bound to interfere substantially With their right to administer institutions of their choice. [937E] I. (a) Section 3(I) gives an unqualified mandate that no teache" shall be dismissed etc. except with the prior approval of the competent authority. Under the proviso, contravention of the ! ection results in a total invalidation of the proposed action. lf the section is contravened the teacher shall be deemed to be in service. Secondly, the sub-section applies not only to cases in which the teacher is punished by an order of dismissal etc. but to cases in which the appointment is otherwise terminated. An order of termination simpliciter is _> , also required to be submitted for the prior approval of the competent autbo~ rity.

All this shows that the true object of the sub-section is not that which one could liberally assume by reading down the section. [935H; 936ABJ (b) In the absence of any rules furnishing guidelines on the subject, it is difficult to predicate that in practice the operation of the section would be limited to a certain class of cases only. The absence of rules on the subject makes the unguided discretion of the competent authority the sole arbiter of the question as to which cases would fall within the section and which would fall outside it. [936 B-F] (c) Section 3(2), nnder the guise on coaferring the power of approval, confers upon the competent authority an appellate power of great magnitude. That authority is made a judge both 'll facts and on law by the conferment upon it of a power to test the validity of the proposal on the vastly subjective touch- A stone of adequacy and reasonableness. The sub-section leaves no scope for reeding down the provision of section 3( 1).

The two sub-sections together confer upon the competent authority, in. the absence of proper rules, a wide and untrammelled discretion to interfere with the proposed orde. r whenever in its opinion the order is based on grounds \Vhich do not appear to it either adequate or reasonable. [936G-H; 937Al B (d) Though the section provides that the competent authority "shall" • approve. the proposed order if it is satisfied th11t it is based on adequate and reasonable grounds, its plain and necessary implication is that it shall not approve the proposal unless it is satisfied. The conferment of such a power on an outside authority, the exercise of which is ma. de to depend purely on subjective consideration 0rising out of twin formula of adequacy and reasonableness, cannot but constitute an infringement of the right guaranteed by article 30(1). c [937C] State of Ker(lfu v. Very. Rev. Mothe1· Provincicil [197 lj 1 SCR 734, D. A. V. College v. State of Punjab [1971] Suppl. S. C. R.

688 and Alimedabad St. Xaviers College Society' v. State of Gujarat [1975] I S. C. R. 173; referred to. 2. (a) Section 3(3)(a) and 3(3)(b) of the Act do not offond against the D provisions of article 30(1) and are valid. [939B-Cl (b) Clause (a) contains but an elementary guarantee of freedom from • arbitrariness to the teachers. The provision is regulatory in character since it neither denies to the management the right to proceed against an erring teacher nor does it place an unreasonable restraint on its pov. 'er to do so. It aBsumes the right of the managenient to suspend a teacher but regulates that E right by directing that a teacher shall not be suspended unless an inquiry into his conduct is contemplated and unless the inquiry is in respect of a charge of gross misconduct. These restraints which bear a reasonable nexus irwith attainment of educational excellence cannot be considered to be/viola- } tive of the right given by article 30(1).

The limitation of the period of suspension initially to two months, which can in appropriate cases be extended by another two months, as provided in clause (b) and its proviso, partakes of .. F the same character as the provisions contained in clause (a). A provision y founded so patently on plain reason is difficult to construe as an invasion of the right to administer an institution unless that right carried with it the right to maladminister. [938G-H] 3. Section 4 is unconstitutional as being violative of article 30(1) of the constitution. The section confers upon the government the power to provide by mies that an appeal might lie to such authority or officer as it desig- G nates, regardless of the standing or status of that authority or officer.

Secondly an appeal is provided for on all questions of fact and law, thereby throwing open the order passed by the management to the unguided scrutiny and unlimited review of the appellate authority, which would mean that, in the exercise of the appellate power, the prescribed authority or officer can substitute his own view for that of the management even in cases in which two views are reasonably possible. Lastly, while a right of appenl i! given to the aggrieved teacher ~ainst the order passed by the management, R no corresponding right is conferred on the management against the order passed by the competent authority under section 3(2) of the Act. In the absence of a provision for appeal against the order of the competent autho- ALL SAINTS HIGH SCHOOL V. GOVT. OF A. P. 927 rit. f{' refusing to approve the action proposed by the management, tbc Am-. agemcnt is pleased in a gravely dis-advantageous position vis-a-vis the teadier who is given the right of appeal by section 4.

[939D·H] Section 5 must fall with section 4. [940B] 4. Section 6 is valid. The section aims at affording a minimal guarantee of ie. Curity of tenure to teachers by eschewing the passing of 1nala-fide orders in the garb of retrenchment. It is implicit in the provisions of this section tkat the limited jurisdiction which it confers upon the con1petent authority is to examine whether, in cases \vhere 1he retrenchment is stated to have become necessary by reason of an order passed by the Goven1ment, it has in fact so hecon1e necessary. The conferment of a guided and limited pov. er on the competent authority for the purpose of finding out whether, in fact the retrenchment has bC:come necessary by reason of a Govemmentci1 order can4 net constitute an interference with the right of administration conferred by c· article 30(1 ). [940D-F] Section 7 is regulatory in its character and is valid. [940H] Per Fazal Ali, /.

On an exhaustive analysis of the authorities of this Court on the various aspects of the fundamental right· enshrined in article 30(1) of the ConstitutiOB the following propositions of law emerge :- [)· (i) Article 30(1) enshrines th:e fundamental right of the miaority institutions to manage and administer their educational institutions. [967H] (ii) Although, the right conferred by this article is absolute, unfettered and unconditional, it does not mean that it gives a licence for maladministration so as to defeat the avowed object of the article, namely to advance excellence and perfection in the field. of education. [968B] (iii) \Vhile the State or any other statutory authority has no right to interfere with the internal administration of the 1ninority institution, it could take regulatory measures to pron1ote the efl:iciency and excellence of educational standards and issue guidelines for ensuring the security of the services of the tt:achers and other employees of the institution.

[968C] (iv) Under the garb of adopting regulatory measures. the State or any other authority cannot destroy the administrative a·ulonomy of the institution or interfere with the management ... _)f the institution so as to render the right of adn1inistration of the management of the institution illnsory. [968E] (v) By its very nature article 30 implies that where an affiliation is asked for, the university cannot refuse the same without sufficient reason or try to in1pose such conditions as \Vou! d cornplctely destroy the autonomott>; administration of the educational institution. [968G] (vi) Induction of an outside authority in the governing body of the minority institution to conduct the affairs of the institution \\'ould. Il be completely destructive of the fundamental right under f the Bill to introduce the same and Iha extent of urgency and the e"11 songht to be remedied.

Clearly the legislation was intended to regulate the service conditions of teachers employed in the private educational institutions and for the security of service of the teachers. Tile power contained in section 3(t) and 3(2) is reStricted to regulating the service conditions of teachers and for ,, ensuring their security of se-rvice. [1001C; 998A-B] ,r 3. While interpreting a provision of law the Court will presume that the legislation was intended to be intra vires and also reasonable. The section ought to be interpreted consiste-nt with the presumption which imputes to the legislature an intention of limiting the direct operation of its enactmerit to the extent that is permissible. A reading down of a provision of a statute puts into operation the principle that so far as it is reasonably possible to do so, the legislation should be construed as being within its power. It has the principle effect • ALL SAINTS HIGH SCHOOL V. GOVT. OF A. P. 931 questiOlll!

bly minority educational institutions, having been established by members of . the Christian community. . My learned Brothers, Murtaza Fazal Ali and Kailasam, have examined the authorities bearing on the question before us. The reilSons which impelled me to write a separa~ judgment are my in- • ability to agree wholly with the various observations made by Justice Fazal Ali and with some of the prO]JOsitions which he has formulated , as etlh,"t"ging from the decisions referred to by him, as also with the conclusion to which Justice Kailasam has come. I do not consider it necessary to examine all the decisions of this Court in which Art. 30(1) has received a full and careful consideration. These decisions are reported in Re Kera/a Education Bill(! ) 1957,, Rev. Sidhaj- 2 bhai Sabhai v. State of Bombay( ) Rev. Father W. Proost v. The 4 State of Bihar(') State of Kera/av. Very Rev. Mother PrGvincial( ) D. A. V. College v. State of Pu'njab(') The Ahmedabad St. Xaviers College Society v.

State of Gujarat(") Gandhi Faizeam College Shahajalzanpur v. University of Agra(') and Lilly Kurian v. Sr. Lewina(') u Almost each succeeding judgment has considered and analysed the • previow judgment or judgments. I regard the matter arising before us as well-settled, especially after the 9-Judge Bench decision in Alunedabad St. Xaviers College Society (supra) and the recent judgment of the CQ! lstitution Bench in Lilly Kuria11,(') All that we have to do iil this case is to apply the law laid down in these decisions. 0L- / Tiie. se decisions show that while the right of the religious and "" linguistic minorities to establish and administer educational institutions of their choice cannot be interfered with, restrictions by way of regulations for the purpose of ensuring educational standards ond maintaining the excellence thereof can be validly prescribed. For maintaining educational standards of an institution, it is necessary to ensure that it is competently staffed.

Conditions of service which prescrif:le minimum qualifications for the staff, their pay scales. their entillcment to other benefits of service and the laying down of safeguaids which must be observed before they are removed or dismisse([ G' from service or their services are terminated are all pcrmis>ib! e measures ({j [1959] S. C. R. 995. (2) (1963] 3 S. C. R. 837. (3) [1969] 2S. C. R. 73. (4) [1971] l S. C. R. 734. (SJ [1971] Supp. S. C. R. 688. (lij [1975] 1 S. C. R. 173. (7) [1975] 3 S. C. R. 810. (8) (1979] l S. C. R. 820. of a regulatory character. As observed by Das C. J. , in Re : Kera/a Education Bill, (supra) "Right to administer cannot obviously include the right to mal-administer", and in the words of Shah J. , in Rev. Sidhajbhai, (supra) "The right is subject to reasonable restrictions in the interest of efficiency of instruction, discipline, health, sanitation, morality, public order and the like". Hidayatnllah C. J. . JI • said in Very Rev.

Mother Provincial (supra) that "Standards of education are not a part of management as such", that the "minority institutions cannot be permitted to fall below the standard of excel- • lence expected of educational institutions" and that "the right of the State to regulate education, educational standards and the allied matters cannot be denied". Justice Jaganmohan Reddy, in D. A. V. College (supra) reiterated while upholding clause 18 of the Guru Nanak University, Amritsar Act, 1961 that regulations governing recruitment and service conditions of teachers of minority institutions, which are made in order to ensure their efficiency and excellence do not offend ·against their right to administer educational institutions of their choice fl In the case of institutions that receive State aid, it is the duty and • obligation of the Government which grants aid to see that pablic funds are usefully and properly expended.

If the expenditure incurred for paying the emoluments of the staff is subsidised or financed from out of State funds, it becomes the duty of the State to se~ that no one who does not possess the minimum qualifications is zppointed on the staff, the pay and other emoluments of the staff are guaranteed and their service conditions secured. Minority institutions which receive State aid cannot complain of conditions subject to which the aid is granted, so long as such conditions do not amount to discrimi- . nation against them on the ground of language or religion nnd so long as the aid is not made to depend upon the performance or observance of conditions which amount to deprivation of the right guaranteed by article 30( l). There is also no doubt that minority institutions cannot be discriminated against in the matter of granting State aid.

No institution, minority or majority, has a fundamental right to recognition by the State or affiliation to the University, but ~ince recognition and affiliation are indispensable for an effective and fruitful exercise Of the fundamental right of minorities to establish and administer educational institutions of their choic_e, they are entitled to recognition and affiliation if they agree to accept and comply with regulatory measures which are relevant for granting recognition and affiliation, which are directed to ensuring educational excellence of • ALL SAINTS HIGH SCHOOL I'. GOVT. OF A. P. (Chandrachud, C. J. ) 935 the institution concerned and which, largely and substantially, leave J uJlimpaired the right of administration in regard to internal affairs of the institution. The impugned Act, by reason of section 1 (3), applies to all private educational institutions, whether or not they are established by minorities.

The appellants' contention is that several provisions ·of the Act violate the guarantee contained in Art. 30(1) by permitting or compelling interference with the internal administration of private edncational institutions established by minorities. The 'appellants are particularly aggrieved by the provisions of sections 3 t() 7 of the Act, the validity whereof in challenged on the ground that they deprive the appellants of their right to administer the affairs of minority institutions by vesting th. e ultimate administrative control in an outside authority. These contentions having been rejected by the High Court of Andhra Pradesh, the appellants hav~ filed these appeals by special leave.

Section 3 (1) of the Act provides that, subject to any rule that may be made in this behalf, no teacher employed in any private educational institution shall be dismissed, removed or reduced in rank nor shall his appointment be otherwise terminated, except with the prior approval of the competent authority. The proviso to the section says that if any educational institution contravenes the aforesaid provision, the teacher affected by the contravention shall be deemed to be in service. Section 3 (2) requires that where the proposal to dismiss, remove or reduce in rank or otherwise terminate the appointment of any teacher employed in any private educational institution is communicated to the competent authority, that authority shall approve the proposal, if it is satisfied that there are adequate and . reasonable grounds for the proposal. For appreciating their trne meaning and effect, sections 3 (1) and 3 (2) have to be read together.

The requirement of prior approval of the competent authority to an order of dismissal, removal, etc. may not by itself be violative of article 30 (1) because it may still ~e possible to say, on a reasonable construction of the provision laymg down that requirement, that its object is to ensure compliance with the principles of natural justice or the elimination of malll fide;j or victimisation of teachers. But I find it difficult to read down section 3 (I) so as to limit its operation tn these or similar considet'ations. In the first place, the section does not itself limit its operation in that manner; on the contrary, it gives an unqualified mandate that no teacher shall be dismissed, removed, etc. exc~pt with the prior approval of the competent authority. Under the proviso,. contravention of the section results in a total invalidation of the pro-· posed action. If the section is contravened the teacher shall be; deemed to be in service. Secondly, section 3 (1) not only applies.

to cases in which a teacher is, what is generally termed as 'punished', by an order of dismissal, removal or reduction in rank, but it also applies to cases in which an appointment is otherwise terminated. An order of termination simpliciter which involves no stigma or aspersion and which does not result in any evil consequences is also required to be submitted for the prior approval of the competent authority. The argument that the principles of natural justice have· not been complied with or the argument of ma/a fide~ andi victimisation has seldom any relevance if the services are terminated in accordance with the terms of a contract by which the tenure of the employment is limited to a specified period. This shows that the true object of section 3 ( 1) is not that which one could liberally assume· py reading down the section. Section 3 (1) is subject to any rules that may be made in behalf of the matter covered by it.

If the State Government were to frame rules governing the matter, there would have been some tangible. circumstances or situations in relation to which the practical opecation of section 3(1) could have been limited. But in the abselll:e of any rules furnishing guidelines on the subject, it is difficult to predicate that, in practice, the operation of the section will be limited to a certain class of cases only. The absence of rules on the subject makes the unguided discretion of the competent authority the sole. arbiter of the question as to which cases would fall within the section· and which would fall outside it. Any doubt as to the width of the area in which section 3(1) operates and is intended to operate, is removed by the provision contained in section 3 (2), by virtue of which the competent authority "shall" approve the proposf! ), "if it is satisfied that there are adequate· and reasonable grounds" for the proposal.

This provision, under the guise of conferring the power of approval, confers upon the competent authority an appellate power of great magnitude. The competent authority is made by that provision the sole judge of the propriety of the proposed order since it is for that authority to see whether there are reasonable grounds for the proposal. The authority is indeed made a judge both of facts and law by the conferment upon it of a power to test the validity of the proposal on the vastly subjective touch-stone of adequacy and reasonableness. Section 3 (2), in my opinion, leaves no scope for reading down the provisions of sectioro ' ALL SAINTS HIGH SCHOOL v. GOVT. OF A. P. (Chandrachud, C. J. ) 937 3 ( ! ) . The two sub-sections together confer upon the competent authority, in the absence of proper rules, a wide and untrammelled discretion to interfere with the proposed order, whenever, in its opinion, the order, is based on grounds which do not appear to it either adequate or reasonable.

The form in which Section 3 (2) is couched is apt to mislead by creating an impression that its real object is to cast an obligation on the competent authority to approve a proposal under certain condi- , tions. Though the section provides that the competent authority "shall" approve the proposed order if it is satisfied that it is based on adequate and reasonable grounds, its plain and necessary implication is that it shall not approve the proposal unless it is so satisfied. The j confernment of such a power on 1lll outside authority, the exercise of which is made to depend on purely subjective considerations arising out of the twin formula of adequacy and reasonableness, cannot but constitute an infringement of ! )le right guaranteed by Art. 30 (1). • I find it difficult to save sections 3 (1) and 3 (2) by reading • them down in the light of the objects and reasons of the impugned Act.

The object of the Act and the reasons that led to its passing are laudable but the Act, in its application to minority institutions, has to take care that it does not violate the fundamental right of the > minorities under Art. 30(1). Sections 3(1) and 3(2) are in my opinion unconstitutional in so far as th~ made applicable to minority institutions since, in praetice) 1hese. provisions are bound to interfere substantially with their riglit to administer institutions of their choice. Similar provisions were held to be void in Vrry l? ev. Mother Provincial, D. A. V. College and Lilly Kurian. (supra) There is no distinction in principle between those provisions and the ones contained in sections 3 (1) and 3 (2). For these reasons, I am in agreement with Brother Fazal Ali that Sections 3 (1) and 3 (2) of the impugned Act cannot be applied to minority institutions, since to do so will offend against Article 30 (1 ).

Section 3 (3) (a) provides that no teacher employed in any private educational institution shall be placed under suspension except when an inquiry into the gross misconduct of such teaci1er is contemplated. Section 3 (3) (b) provides that no such suspension sball remain in force for more than a period of two months and if H. the inquiry is not completed within that period the teacher shall, without prejudice to the inquiry, be deemed to have been restored as -.. ---- . -- ----... -~·---=----=----=-· "111:11:" -~·~,.......... _-y. _... ,,.... ...... - -~--- . A a teacher. The proviso to the sub-section confers upon the e-0mpetent authority the power, for reasons to be recorded in writing, to extend the period of two months for a further period not exceeding two months if, in its opinion, the inquiry could not be completed within the initial period of two months for reasons directly attributable to the teacher.

With respect, I find it difficult to agree with Brother Fazal Ali ' that these provisions are violative of article 30 (1). The question which one has to ask oneself is whether in the normal course of affairs, these provisions are likely to interfere with the freedom of minorities to administer and manage educ:,itional institutions of their choice. It is undoubtedly true that no educational institution can function efficiently and effectively unless the teachers observe at least the commonly accepted norms of good behaviour. Indisciplined teachers can hardly be expected to impress upon the students the value of discipline, which is a sine qua non of educational excellence. They can cause incalculable; harm not only to the cause of education but to the society at large by generating a wrong sense of values in the minds of young and impressionable students. But discipline is • not to be equated with dictatorial methods in the treatment of teachers.

The institutional code of discipline must therefore conform to acceptable norms of fairness and cannot be arbitrary or fanciful. I do not think that in the name of discipline and in the purported exercise of the fundamental right of administration and management, any educational institution can be given the right to 'hire and fire' its teachers. After all, though the management may be left free to evolve administrative policies of an institution, educational instruction has to be imparted through the instrumentality of the teachers; and unless, they have a constant assurance of justice, security and fair play it will be impossible for them to give of their best which alone can enable the institution to attain the ideal of educational excellence.

Section 3 (3) (a) contains but an elementary guarantee of freedom from arbitrariness to the teachers, The provision is regulatory in character since it neither denies to the management the right to proceed against an erring teacher nor indeed does it place an unreasonable restraint on its power to do so. It assumes the right of the management to suspend a teacher but regulates that right by directing that a teacher shall not be suspended unless an inquiry into his conduct is contemplated and unless the inquiry is in respect of a charge of gross misconduct. Fortunately, suspension of teachers is not the order of the day, for which reason I do not think that these restraints which bear a reasonable nexus with the attainment of educational excellence can be C-Onsidered to be violative of the right given ALL SAINTS HIGH SCHOOL v. GOVT. OF A. P. (Chandrachud, C. J. ) 939 by Art. 30 (1).

The limitation of the period of suspension initially to two mo)lths, which can in appropriate cases be extended by another two months, partakes of the sa.!! le character as the provision contained in section 3 (3) (a). In the _generality of cases, a domestic inquiry against a teacher ought to be completed within a period of two months or say, within another two months. A provision • founded so patently on plain reason is difficult to construe as an invasion of the right to [ldminister an institution, unless that right . carried with it the right to maladminister. I therefore agree with Brother Kai! asam that sections 3 (3) (a) and 3 (3) (b) of the Act do not offend against the provisions of Art. 30 (1) and are valid. Section 4 of the Act provides that any teacher .

employed in a private educational institution (a) who is dismissed, removed or reduced in rank or whose appointment is otherwise terminated; or (b) whose pay or allowances or any of whose conditions of service are altered or interpreted to his disadvantage, may prefer an appeal • to such authority or officer as may be prescribed. This provision in my opinion is too broadly worded to be sustained on the touchstone • of the right conferred upon the minorities by Art. 30 ( l). In the first place, the section confers upon the Government the power to provide by rules that an appeal may lie to such authority or officer as it designates, regardless of the standing or status of that authority or officer. Secondly, the appeal is evidently provided for on all E. questions of fact and law, thereby throwing open the order passed by the management to the unguided scrutiny and unlimited review of the appellate authority.

It would be doing no violence to the language of the section to interpret it to mean that, in the exercise of the appellate power, the prescribed authority or officer can substitute his own view for that of the management, even in cases in which two views are reasonably possible. Lastly, it is strange, and perhaps an oversight may account for the lapse, that whereas a right of appeal is given to the aggrieved teacher against an order passed by the management, no corresponding right is conferred on lhe management against an order passed by the competent authority under sec- Gtion 3 (2) of the Act. It may be recalled that by section 3 (1), no teacher can be dismissed, removed, etc. except with the prior approval of the competent authority. Section 3 (2) confers power on the competent authority to refuse to accord its approval if there are no adequate and reasonable ground for the proposal.

In the absence of the μrovision for an appeal against the order of the competent authority refusing to approve the '¥'lion proposed by the management, the management is placed in a gravely disadvantageou§ position vis-a-vis ' .. 940 SP~REME COURT REPORTS [1980] 2 s. c. R. · the teacher who is given the right of appeal by section 4. By reason of these infirmities I agree with the conclusion of my learned Brothers ~,_. _ that section 4 of the impugned Act is unconstitutionai, as being violative of article 30 (1). Section 5 is consequential upon section 4 and must fall witk it. Section 6 provides that where any retrenchment of a teacher is rendered necessary consequent on any order of the Government relating to education or course of instruction or to any other matter, such retrenchment may be effected with the prior approval of the competent authority.

With respect, I find myself unable to share the view of Brother Fazal Ali that retrenchment of teachers is a purely domestic affair of minority institutions and that the decisions of the management in the matter of retrenchment of teachers is beyond the scope of statutory interference by reason of Art. 30 (1). Section 6 aims at affording a minimal guarantee of security of tenure to teachers by eschewing the passing of mnla fide orders in the garb of retrench- • ment. As I look at the section, I consider it to be implicit in its provisions that the limited jurisdiction which it confers upon the • competent authority is to examine whether, in cases where the retrenchment it stated to have become necessary by reason of an order passed by the Government, it has in fact so become necessary. It is a matter of common knowledge that Governmental orders relating to courses of instruction are us~d as a pretence for terminating the services of teachers.

The conferment of a guided and limited power on the competent authority for the purpose of finding out whether, in fact, a retrenchment has become necessary by reason of a Government order, cannot constitute an interference with the right of administration conferred by Art. 30 (1). Section 6 is therefore valid. I would, however, like to add that in the interests of equal justice, the legislature ought to provide for an appeal against the orders passed by the competent authority under section 6. If and when the provision for an appeal is made, care must be taken to ensure that the appeal lies to an officer not below the prescribed rank. Section 7 provides that the pay and allowances of a teacher shall be paid on or before such day of a month, in such manner and by or through such authority, officer or person, as may be prescribed. I agree with my learned Brothers that this provision is regulatory In character and is, therefore, valid.

These are all the sections the validity of which was questioned in the Writ Petitions filed in the Hjgh Court. It is therefore not neces" • ALL SAINTS HIGH SCHOOL v. GOYT, OF A,P, (Fazal Au, ! ,) 941 osary to consider whether the ot]! er provisions of the Act are valid } rities are as much children of the soil as the ma1ority 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 Articles 29 and 30 as marked the deliberations of the Constitution-makers in drafting these Articles and making them part of the fundamental rights".

The learned Judge held that although it was permissible for the authority concerned to prescribe regulations but such regulations should not impinge upon the right conferred on the minority insti- ·tutions under Article 30(1). A just balance had to be struck between the two objectives, namely, passing of regulatory measures and preserving the fundamental rights of the minority institutions. The learned Judge observed as follows :- "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 can arise whether there is any limitation on the prescription of regulations for minority edu- ·cational institutions. So f,ar 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 bas, 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 estab- 1ish and administer their educational institutions. Regula- A tions which embrance and reconcile the two objectives can be considered to be reasonable. " The learned Judge further held that any law which inter£eres with the minorities choice of a governing body would be violative of Article 30(1) and observed thus :- 8 "In the light of the above principles, it can be stated that a law which interferes with the minorities choice of a governing body or management council would be violative of the right guaranteed by Article 30(1) . " Criticising the constitutional validity of Section 52A of the Gujarat Act Khanna, J. shared the view taken by Ray, C. J. which has been . c referred to above.

The learned Judge observed as follows :- "The provisions of section 52A would thus not as a spoke in the wheel of effective administration of an educational institution. It may also be stated that there is nothing objectionable to selecting the method of arbitration for settling major disputes connected with conditions of ser- . D vice of staff of educational institutions. It may indeed be a desideratum. What is objectionable, apart from what has been mentioned above, is the giving of the power to the Vice. Chancellor to nominate the Umpire. Normally in such disputes there would be hardly any E agreement between the arbitrator nominated by the governing body of the institution and the one nominated by the concerned member of the staff. The result would be that the power would vest for all intents and purposes in the nominee of the Vice-Chancelloc to decide all disputes between the governing body and the member of the staff F connected with the latter's conditions of service. The .

governing body would thus be hardly in a position to take any effective disciplinary action against a member of the staff. This must cause an inroad in the right of the governing body to administer the institution. Section 52A should, therefore, be held to be violative of Article 30(1) so far as G minority educational institutions are concerned. " Similarly, while striking down sections 40 and 41 of the Gujarat Act, the learned Judge found that the affiliated colleges would become constituent colleges as a result of the provisions of these sections and 11eld that these provisions could not apply to the minority institutions. B In this connection, Khanna, J. observed as follows :- "A provision which makes it imperative that teaching in under-graduate courses can be conducted only by the Uni- ··• ALL SAINTS HIGH SCHOOL v. GOVT. OF A. P. (Fazal Ali, J.

) 963 versify and can be imparted only by the teachers of the University plainly violates the rights of minorities to establish and administer their educational institution. Such ·a provision must consequently be held qua minority institutions to resqlt in contravention of Article 30(1). I would, therefore, strike down section 40 so far as minority edncational institutions are concerned as being violative of Article 30(1)". · Mathew, J. while striking down the constitutional validity of lieCtion 33A(l) of the Gujarat Act observed as follows :- "The heart of the matter is that no educational institution 1 . J 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 ........

In every case, when the reasonableness of a regulation comes up for consideration before the court, the question to be asked and answered is whet11er 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 report 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, ex-hypothesi, the only permissible regulations are those which secure the effectiveness of the purpose of the facility, namely, the excel- , lence of the educational institutions in respect of their educational standards.

" Similarly, the learned Judge took strong exception to the provisions of section 33A which required that the college should have a governing body which should include persons other than those who are members of the society of Jesus, struck provisions of section 33A • and observed as follows :- "We think that the provisions of sub-sections (l)(a) and (l) (b) of section 33A abridge the right of ! he religious minority to administer edncational institutions of their choice. The requirement that the college shollld have a governing body which shall include persons other than those who are members of the governing body of the society of Jesus would take away the management of the college from ' the governing body constituted by the Society of Jesus and vest it in a different body. The right to administer the educational institution established by a religious minority is vested in it.

It is in the governing body of the Society of Jesus that the religious minority which established the college has vested the right to >! dminister the same. The requirement that the college should have a governing body including persons other than those who constitute the governing body of the Society of Jesus has the effect of divesting that body of its exclusive right to manage the educational institution ....... . The learned Judge further pointed out that under the guise of preventing ma1-administration the right of the governing body to manage the affairs of the minority institution should not be taken away and in the same token observed as follows :- - "Under the guise of preventingi mal-administration, the right of the governing body of the college constituted by the re- ' ligious minority to administer the institution cannot be taken away. The effect of the provision is that the religious minority virtually loses its right to administer the institution it has founded.

"Administration" means 'management of the affairs' of the in~titution. This management must be free of control so that the founders or their nominees can mould the institution according to their way of thinking and in accordance with their idea of how the interests of the community in general and the institution in particular will be best served. No part of this management can be taken away and vested in another body without an encroachment upon the guaranteed right. " Similarly, analysing various provisions of the Gujarat Act like ). . sections 51A(l) (a) and 51A(l)(b) etc. the learned Judge observed as follows :- • "The relationship between the management and a teacher is that of an employer and employee and it passes one's understanding why the management cannot terminate the servicei; of a teacher on the basis of the contrac~ of employment.

Of course, it is open to the State in the exerft cise of its regulatory power to require that before the services of a teacher are terminated he should he given an opportunity of being heard in his defence. But to requir t is not a very high authority such as; the Director of Public Instruction or the Vice-Chancellor which may be presumed to act objectively and reasonably. Another material defect in section 3 (2) is that no time limit has been fixed by the statute within which the competent authority D is to give its approval. If the competent authority either due to over work endeavours or some other reason chooses to sit over the matter for a pretty long time a stalemate would be created which will seriously impair the smooth running of the institution.

Indeed if sub-section (2) would have been cast in a negative form so as to provide that the sanctioning authority was bound to give approval to any action taken by the E institution against its teachers unless it was, after hearing the teacher and the management of the institution, satisfied that the order passed by the institution or the action taken by it was in violation of the principles of natural justice, against the statutory provisions of law or tainted with factual or legal malice no objection could be taken. If the section would have been worded in this manner, then its validity could have F been upheld on the ground that it was a sound regulatory measure which does not destroy the administrative autonomy of the institution but is meant to ensure the security of tenure of the teaching staff of the institution. But as this is not so, the validity of the provision cannot . be supported.

For these reasons, therefore, I am satisfied that sub- G section (2) is unconstitutional being violative of Article 30(1) of the Constitution and would have no app! i'Cation to any minority institution. • 1 Sub-section (3) ad' section 3 runs thus:- H "3 (3) (a) No teacher employed in any private educational institution shall be placed under suspension, except when an inquiry into the gross misconduct of such teacher is contempleted. (b) No such suspension shall remain in force for more than a period of two months from the date of suspension and if such inquiry is not completed within that period, such teacher shall, without prejudice to the inquiry, be deemed to have beeu restored as teacher.

Provided that the competent authority may, for reasons to be recorded in writing, extend the said period of two months, for a further period not exceeding two months, if, in the opinion of such competent authority, the inquiry could not be completed within the said period of two months for reasons directly attributable to such teacher". These provisions deprive the minority institution of the power to suspend any teacher unless an inquiry into the gross misconduct of such teacher is contemplated. One could understand if the word 'misconduct' alone was used in sub-section (3) (a) but as it is qualified by the adjective gross, it almost destroys the power of suspension which the minority institution might possess. Even so, subsection (3)(b) makes it clear that no suspension shall remain in force for a period of more than two months from the date of suspension ahd if no inquiry is completed within this period, the teacher WOl! ld have to be reinstated.

This is indeed a most peculiar provision and gives an unqualified right to a teacher in the matter of supension. Even a Government servant to whom Article 311 of the CrnJstitution or the statutory rules apply does not enjoy such a liberal facility. Moreover, the rules make a mockery of any order of suspe'nsion passed pending an inquiry. It is very difficutt to predicate how long an inquiry would last and yet to limit the period of suspension to two months irrespective of the nature, length and the scope of the inquiry to only two months is really to completely cnrb the power of suspension. The proviso to section 3(3) again empowers the competent authority to extend the, period of suspension.

Thus the cumulative effect of sub-sections (3) (a), 3(b) and the proviso is to interfere · with the internal administration of the minority institution and curb the power of suspension a'ng thus deprive the institution of the right of or taking any discipli'nary action against the teacher to such an extent that the inslit,ution becomes almost a figure-head. Such a provision, therefore, cannot be upheld as it is clearly violative , ALL SAINTS HIGH SCHOOL v. GOVT. OF A. P. (Fazal Ali, !. ) 975 of Article 30 (1) of the Constitution of India. It is obvious that whenever an institution suspends a teacher, it is bound to pay subsistance allowahce and any express provision like sub-section (4) of section 3 is wholly unnecessary and makes a serious inroad on the internal autonomy of the institution. Thus, in our op1mon, section 3 in its entirety is ultra vires as being violative of Article 30(1) of the Constitution and is wholly inapplicable to the appellants .

B who are admittedly minority institutions. Section 4 of the Act may be quoted thus :- "4. Any teacher employed in any private education institution- (a) who is dismissed, removed or reduced in rank or whose appointment is otherwise terminated; or (b) whose pay or allowances or any of whose conditions or service are altered or interpreted to his disadvantage, by any order; may prefer an appeal against the order to such authority or officer as may be prescribed; and different authorities or officers _may be prescribed for different classes of private educational institutions. Explanation : In this section, the expression 'Order' includes any order made on or after the date of the commencement of this Act in any disciplinary proceeding which was pending on that date". This section gives a right of appeal to a teacher who is dismissed, removed or reduced in rank and whose services are terminated.

No guidelin•cs arc provided in which manner this pow~r is to be exercised nor does it contain any provision which may entitle the minority in,titution '. o be heard by the appellate authority. No principles or norms are laid down on the basis of which the order passed by the institution could be examined by the appellate authority. Even what would amount to misconduct has not been defined or qualified in sections 2, 3 or 4. I: is, 1hercfc1'e, difficult to understand how the appellate court would exercise this power in deciding whether or not the teacher was guilty of misconduct and what is the correlation between the degree of misconduct and the appropriate punishment which may have been awarded by the institution and approved by the competent authority. The conferment of such an 8-138 SC!

/80 ' • absolute and unguided power on the appellate authority which if passed against the management it cannot even file a civil snit to set aside ;his order amounts not only to a direct interference with the right e11shrined in Article 30(1) of the Constitution but makes the minority institution a limp, lifeless and powerless body incapable of effective teaching and/or attaining excellence in the standards of B education. Such a course of action is bound to hurt ti;~ feelings of the founders of the institution. For these reasons, therefore, I am of the opinion that scctio'n 4 is also ultra vires as violative of Article 30 of the Constitution and would, therefore, have no application to the minority institutions who are appellants in this case. Section 5 merely provides for transfer of an appeal pending c before any authority to the appellate authority and if section 4.

falls and is inapplicable to the minority institution section 5 also follows the same fate and will not apply to the minority institution. Section 6 runs thus :- D "6. Where any retrenchment of any teacher employed in any private educational institution is rendered necessary consequent on any order of the Government relating to education or course of instruction or to any other matter, such retrenchment may be effected with the prior approval of the competent authority". This section deals with the contingencies under which the i'nStitu· tion may be compelled to retNnch any teacher employed in the school. Whatever be the position in other private educational institutions so far as the minority institution is concerned, this is purely a domestic matter of the institution and cannot be interfered with by any statute.

The words "administer educational institutions of their F choice" clearly indicate that the institution has an absolute right to · select teachers, retain them or retrench them at its sweet will accord· ing to the norms prescribed by the institution or by the religious Order which has founded the ins'itution. As almost all the minority institutions in the present case are not receiving any substantial aid G from the Government but have established the institution by their own moneys and are bearing all the expenses themselves, it is none of the business of any outside authority to interfere with or dictate to the institution as to which member of the staff should be retrenched and which should be retained. The provisions of section 6 directly interfere with this valuable right of the institution by pro- H viding that the retrenchment shall be made with the approval of the competent au'hority.

The power is uncanalised and unguided and suffers from the same vices as has been pointed out in the case of ;; -- ALL SAINTS HIGH SCHOOL v. GOVT. OF A. P. (Fawl Ali, J. ) 9'17 aection 3 of the Act. For these reasons, therefore, section 6 will fiave no application to the institution. Section 7 may be extracted thns :- "7. The pay and allowances of any teacher employed in any private educational institntion shall be paid on or a1 before such day of every month, in such manner and by or through such authority, officer or person, as may be prescribed". This is purely an innocuous provision which is meant for the benefit of the institution itself by providing how the salaries of the employees of the institution should be paid and is purely a regulatory measure which does not at all touch or effect the administrative autonomy of the mi'nority institution.

So far as sections 8 and 9 are concerned, they wonld obviously not apply to the minority institutions because these institutions do not receive any aid from the Government and are, therefore, not liable to maintain or furnish accounts to the University authorities or to the Goven1111ent, nor the prescribed anthority has any right to inspect or pass audit of the accounts kept by the institution. For these reasons, sections 8 and 9 also do not apply to the minority institutions. Section 10 relates to the inspection or inquiry in respect or private educational institution, its buildings, laboratories etc. , or any other matter connected with the institution which may be necessary. Subsections (2), (3) and (4) of section 10 provide the mode in which the inspection or inquiry is· to be made a'nd a report submitted to the concerned authority.

These provisions are also in the nature of sound regulatory measures and appear to be in the larger interest of the functioning of the institution itself and, therefore, do not offend Article 30 of the Constitution. Section 11 runs thus :- "11. Every educational agency shall, within such time or within such extended time as may be fixed by the competent authority in this behalf, furnish to the competent authority such returns statistics and other information as the competent authority may, from time to time require. " This section also contains purely a regulatory measure and is in the best interest of the institution and cannot be said to violate Article 30(1) of the Constitution. 1A Section 12 and 13 relate to penalties for contravention of the provisions of the Act which have been held by me to be violative of Article 30 and, therefore, inapplicable to the appellants because that would amol! nt to destroying the very foundation and personality of the minority institution.

These sections are also not applicable to the minority institl! tion except n respect of provisions of the Act which have been upheld by me. Section 15 contains the revisional power and provides that the Government may delegate its powers, or make rules regarding the exercise of such a power. I have already pointed out that the setting up of a competent authority to sanction or approve the order passed by the institution in respect of a member of the staff where sufficient guidelines and grounds for approval have been prescribed is purely a regulatory measure and does not attract Art. 30 of the Constitution. The conferment of a right of revision against any order of the minority institution under the Rules framed which provide sufficient guidelines and allow the minority institutions an opportunity to be ,D heard, is an innocuous provision and does not impinge on the autonomy of the minority imtitution.

I am, therefore, of opinion that such a provision is in the best interests of the institution and does not in any way harm the personality of the institution or destroy the image so as to interfere with its autonomous functioning. I, therefore, hold that section 15 is constitutionally valid and I might hasten to add that its constitutionality was not challenged before this Court. 'section 16 bars a civil court from deciding the questions which fall under this Act and section 17 contains an indemnity clause. As I have held that almost all the operative and important provisions of this Act are ultra vires, these sections also would have no application to the minority institution. In fact, section 16 suffers from a serious defect, viz. , that if it was held by me that the provision regarding appeal to the appellate authority was valid then section 16 completely bars the right of the management to file a suit to challenge the validity of the order of the appellate authority.

To this extent, therefore, this Section makes a serious inroad on the fundamental right of the minority institution and must be held to be inapplicable to the minority institution. I have gone through the judgment of the High Court which does 11 not apear to have comidered the various aspects and features of the matter set out by me, 'nor has it properly applied the propositions summarised by me as culled out from the various decisions of this ALL SAINTS HIGH SCHOOL v. GOVT. OF A. P. (Kailasam, !. ) 979 Court starting from 1959 (Re: Kerala Education Bill's case) (supra) to 1979 (Lily Kurian's case) (supra). For these reasons, I hold the sections 3 (alongwith its sub-section), 4, 5, 6, 8, 9, 12, 13, 16 and 17 are violative of Article 30 of the Constitution and have no application to the appellants which • are minority instilutions and which fall withih the protection gnarante- ·ed by the Constitution under Article 30.

I accordingly allow all these appeals, set aside the order of the High Court and quash all the directions which may have been issned by the Government or other authorities under the Act to the appeCants except such steps as are taken under those provisions of the Act which have been upheld by me, viz. , sectiohs 7, JO, 11, 14 and 15. In the peculiar circumstances of the case, I leave the parties to bear their own costs. KAILASAM, J. These appeals are by special leave against the judgment of the High Court of Judicature at Andhra Pradesh. Several writ petitions questioning the validity of certain provisions of the Andhra Pradesh Recognised Private Educational Institutions Control Act, 1975 (hereinafter called the Act) were heard. These writ petitions were disposed of by a common judgment by the Andhra Pradesh High Court.

Aggrieved by the judgment of the High Court holding that the impugned sections of the Act is intra vires of the Constitution, not void and operative on schools and institutions of the minorities, the present appeals by special leave have been preferred. The purpose of the legislation is set out in the Statement of Objects and Reasons to the Bill. It is statod :- "Of late, several instances have come to the notice of the State Government regarding the various irregularities committed by the managements of private educational institutions in matters relatir. g to suspension, dismissal, removal or otherwise termination, of members of the teaching staff on flimsy grounds without framing charges and without giving an opportunity to explain. The said managements are . also flouting the orders or instructions of Director of Pubiic Instruction or the Universities or the Government in respect of such matters.

Having regard to the above circumstances, the Government have decided to regulate the service conditions of teachers employed in the private educational institutions to ensure security of service of the said teachers, and also to exercise certain control on such institutions in the matter of their accounts, etc. , by undertaking suitable legislation in this regard. " 980 SUPREME cot. RT REPORTS [1980] 2 s. c. R..

The salient features of ·the Bill are given as under :- (i) to safeguard the service cohditions of teaching staff in the recognised private educational institutions in the matter of suspension, removal, dismissal and retrenchment; (ii) to make it compulsory for the private managements to obtain the prior permission of the competent authority before a teacher is visited with any of the aforesaid majar penalties; (iii) to provide that the suspension of a teacher pending enquiry, should be for a period of two months only after which the teacher should be deemed to have been restored to duty, unless the competent authority extends the suspension period by another two months; thereby making it specific that in any case the teachers shall not be under suspension for more than four months; (iv) to provide that no teacher should be retrenched without the prior permission of the competent authority; (v) to provide for payment of salaries to teachers on the ..

specified day of the month in such manner and by or through such authorities, officer or persons, as may be laid down in the rules; (vi) to provide for conducting enquiries into the affairs of the recognised private educational institutions and also for issue of suitable directions to the managements of such institutions based on such enquiry, which shall be binding on the monagcments. The writ petitions challenged the validity of sections 3 to 7 of the Act. Sections 3 to 7 occur in Chapter II relating to terms and conditions of service of. teachers. It is necessary to set out the impugned sections ;..... "Dis1nissal, ren1oval or reduction in rank or suspension of teachers. employed in private educational institutions. 3(1).

Subject to any rule that may be made in this behalf, no teacher employed in any private educational institution shall be dis- R missed, removed or reduced in rank nor shall bis appointment be otherwise terminated, except with the prior approval of the comDetent authority. ALL SAINTS HIGH SCHOOL v. GOVT. OF A. P. (Kailasam, J. ) 981 Provided that if any educational management, agency or institution contravenes the provisions of this sub-section, the teachers affected shall be deemed to be in service. (2) Where the proposal to dismiss, remove or reduce in rank or otherwise terminate the appointment of any teacher employed in any • private educational institution is communicated to the competent authority, that authority shall, if it· is satisfied that there are adequate and reasonable grounds for such proposal, approve such dismissal, removal, reduction in rank or termination of appointment.

(3a) No teacher employed in any private educational institution shall be placed under suspension, except when an inquiry into the. gross misconduct of such teacher is contemplated. (b) No such suspension shall remain in force for more than a period of two months from the date of suspension and if such inquiry is not completed within that period, such teacher shall, without prejudice to the inquiry, be deemed to have been restored as teacher. Provided that the competent authority may, for reasons to be recorded in writing, extend the said period of two months for a further period not exceeding two months, if, in the opinion of such competent authority, the inquiry could not be completed within the said period of two months for reasons directly attributable to such teacher. (4) Every such teacher as is placed under suspension under snbsection (3) shall be paid subsistence allowance at such rates as may be prescribed during the period of his suspension.

Appeal against orders of punishment imposed on teachers employed in private educational institutions. 4. Any teacher employed in any private educational institution- (a) who is dismissed, removed or rednced in rank or whose appoinment is otherwise terminated; or (b) whose pay or allowances or any of whose conditions of '). service are altered or interpreted to his disadvantage, by any order; may prefer an appeal against the- order to such authority or officer as may be prescribed; and different auth_9Jities or officers may be prescribed for different classes of private educational institutions. Explanation-In this section, the expression 'order' includes any order made on or after the date of the commencement of this Act in any disciplinary proceeding which was pending on that date. Special provision regarding appeal in certain past disciplinary cases. [1980] 2 s. c. R. 5.

(I) If, before the date of the commencement of this Act, any teacher employed in any private educational institution has been dismissed or removed or reduced in rank or his appointment has been otherwise terminated and any appeal preferred before that date- (a) by him against such dismissal or removal or reduction in rank or termination; or • (b) by him or the educational agency against any order made before that date in the appeal referred to in clause (a); is pending on ihat date, such appeal shall stand transferred to the appellate authority prescribed under section 4. (2) If any such appeal as is preferred in sub-section (1) has been disposed of before the date of the commencement of this Act, the order made in any such appeal shall be deemed to be an order made under this Act and shall have effect accordingly. Retrenchment of teachers. 6.

Where any retrenchment of any teacher employed in private educational institution is rendered necessary consequent on any order of the Government relating to education or course of instruction or to any other matter, such retrenchment may be affected with the prior approval of the competent authority. Pay and allowances of teachers employed in private educational institution to be paid in the prescribed manner. 7. The pay and allowances of any teacher employed in any private educational institution shall be paid on or before such day of every month, in such mauuer and by or through such authority, officer or person, as may be prescribed. " The object of the legislation in general and the impugned provisions in particnlar is to regulate the service conditions of the teachers and to ensure their security of service.

The main attack on the validity ot the impugned sections is that the provisions are violative of the rights conferred on the minorities to establish and administer their institutions under Arts. 29 and 30 of the Constitution. The plea is that their right to administer their institutions is taken away by imposing unjustified and complete control with the authorities specified in the Act. Before considering the provisions of each of the sections impugned it is necessary to refer to the nature of the right conferred on the minorities. The relevant article is Art. 30 of the Constitution and it is necessary to refer to the Art. and the important decisions rendered by this Court under the Article. ' Al. 1 SAINTS HIGH SCHOOL v. GOVT. OF A. P. (Kailasam, !. ) 9S3 "Right of minorities to establish and' administer educational institutions. Art. 30.

(I) All minorities, whether based on religion or language, ·shall have the right to establish and administer educational institutions of their choice. • (2) The State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language. " The educational institutions established and administered by the minorities in the exercise of the rights conferred under Art. 30 may be classified into 3 categories (1) those which do not seek either aid or recognition from the State or affiliation from the University; (2) those which seek aid and (3) those that seek either recognition or affiliation but not aid. We are not concerned with institutions which do not seek either aid or recognit'on from the State or affiliation from the University.

The institutions which require aid may again be classified into > two classes namely those which are by Constitution expressly made eligible for receiving grants and (2) which are not entitled to any grant by virtue of the express provisions of the Constitution. Here again we are not concerned with the first category. We are only concerned with the institutions which are no: entitled to any grant by any express provision in the Constitution. Articles 28(1), 29(2) and 30(2) deal v1ith educational institutions receiving aid out of State Funds. Certain restrictions are placed and obligations cast on institutions recognised by the State or receiving aid ~.. Art.

28(3) provides "No person attending any educational institutional F recognised by the State or receiving aid out of State funds shall be required to take part in any religious instrucfons that may be imparted in such institutions or to attend any religious worship that may be conducted in such institution or in any premises attached thereto unless such person or, if such person is a minor. his guardian has given his consent thereto. Under the sub-article a peroan attend:ng an institution recognised by the State or receiving aid cannot be compelled by the institution to take part in any religious instruction or to attend relig'ous worship without his consent. Art. 29(2) provides that no citizen shall be denied admission 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. Under Art.

29(2) in institu- H tions receiving aid, a citizen is entitled to seek admission and the institutions is forbidden to deny admission to a citizen on grounds of religion, race, caste or language. While Art. 28(3) and 29(2) impose certain restrictions on institutions receiving aid, Art. 30(2) forbids the State from discriminating against any educational institution in granting aid on the ground that it is under the management of a minority, whether based on religion or language. The Constitution does not confer any right on the institution to receive any aid. It however forbids the State in granting aid to educational institutions from discriminating an educational institution on the ground that it is under the management of a minority whether based on religion or language. This would • imply that the State has right to grant or not to grant aid. It may be that the State is not in a position to grant aid to education institutions.

In such circumstances nobody can force the State to grant aid. But if the State grants aid to educational institutions there should not be any discrimination. It is open to the State to prescribe relevant conditions and insist on their being fulfilled before any institution becomes entitled to aid. No institution which fails to1 conform to the requirements thus validly prescribed would be entitled to any aid. Educational institutions receiving aid whether they are' managed and administered by minorities or not have to conform to the requirements prescribed by the State in order to enable the institutions to receive aid. The requirements prescribed shall not be discriminatory on the ground that it is under the management of a minority whether based on religion or language. The character of the minority institution should not also be destroyed. The right of the State to ensure that its funds are properly spent cannot be denied. In Re: Kera/a Education Bill,(') at p.

1062 Chief Justice Das ruled that "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. " The learned Chief Justice proceeded to observe :--- "It stands to reason, then, that the constitutional right to administer an educational institution of their choice docs not necessarily milita•e 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 institution to be aided. " The scope of the reasonable regulations that can be imposed is clearly ff explained by the question framed by the Attorney General and the answer furnished by the Court at p. 1063. The State cannot say "I ! l) ! l959] S. C. R. 995. ALL SAINTS HIGH SCHOOL v. GOVT.

OF A. P. (Kailasam, J. ) 9g5, have money and I shall not give you any aid unless you surrender to A. me your right of administration" (emphasis supplied) The Court held that regulations prescribed under the various clauses except sub-clause (5) of CL 3 which made the educational institutions subject to clauses 14 and 15, valid. • The Kerala Education Bill which was referred to this Court for the purpose of opinion contained several clauses. A summary of the , clauses is given in the judgment from pages 1023 to 1030 of the Reports, Clauses 6, 7, 9, 10, 11, 12, 14, 15 and 20 relate to the management of aided schools. The Court expressed its view that the provisions in clauses 7, 10, 11(1), 12(1), (2), (3) and (5) may easily be regarded as reasonable regulations or conditions for the grant of aid- (Vide p. 1064) . Clause 7 is extracted at p. 1025. It confers powers enumerated in the clause on the managers.

Clause 10 requires the 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 cl. 11. Clause 12 prescribes the conditions of service of the teachers of aided schools obviously intended to afford some security of tenure to the teachers of aided schools. It provides that the scales of pay applicable to the teachers of Government schools shall apply to all the teachers of aided schools whether appointed before or after the commencement of this clause. Rules applicable to the teachers of the Government schools arc also to apply to certain teachers of aided schools as mentioned in sub-cl, (2). Sub-cl.

(4) provided that no teachers of an aided school shall be dismissed, removed or reduced in rank or suspended by the Manager without the previous sanction of the authorised oflker. With regard to sub-cl. l2(1) (2) and (3) which related to conditio. ns of service and security of tenure, the Court held that the purpose may easily be regarded as reasonable regulations or conditions for grant of the aid. It was submitted that claus,s 9, 11 (2) and 12(4) went beyond the permissible limit as by taking over the collections of fees, etc. and by undertaking to pay the salaries of the G • teachers and other staff the Government is in reality confiscating the -;chool fund and under cl. 11 the power of management is taken away by providing that the appointment of a teacher should be out of the panel to be prepared by the Public Service Commission.

Similarly it was submitted that by requiring previous sanction by the authorised officer before dismissal, removal or reduction in rank of a teacher, the n right to administer was taken away. Chief Justice Das observed at p. 1064 of the Reports : "These are no doubt serious inroads on the right ' of administration and appear perilonsly near violating that right. Bm considering that those provisions arc applicable to all educational institutions and that the impugned parts of els. 9, II and 12 are designed to give protection and security to the ill paid teachers who arc 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 the'r educational institutions.

" It is clear that so far as aided institutions are concerned conditions similar to those that are mentioned can be validly imposed on the institutions. The only prohibition is that the conditions should not be of such a nature as to deprive the character of the minority institutions in their exercise of the rights conferred on them as minority institutions. So long as there are rules for the purpose of maintaining the excellence of educational institutions and not discriminating against the minority educational institutions they will be valic!. The decisions rendered (ubsequent to the Kcrala Education Bill case may now be referred to see how for the views exprcss·od had been < modified. In Rev. Sidhajbhai Sabhai & Ors. v. State of Bombay & Anr. CJ a Bench of 6 Judges held that the order of the Government directing that 80% of seats in the training coH..

~gcs should be re~crved for Government nominee with a threat that if the order was disobeyed, grant and recognition would be withdrawn, was invalid. The Court ! aid down that reasonable restrictions in ! lie interest of the cffici<':ncy of instruction, discipline, health, sanitation and the like may be imposed as those regulations will not be restrictions on the substance of the right guaranteed, for they secured the proper functioning of the institution in educational matters. The Court held that "if every order which while maintaining the formal character of a minority institution destroys the power of administration is held justifiable because it is in ! he public or national interest, though not in its interest as an educational institutions, the right guaranteed by Art. 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- The dual test prescribed is the test of reasonableness and the test that is regulat:ve of the educational character of the institution and is conducive to making the institution an effective vehicle of the education of the minority community or the persons who resort to it. The requirements of reservation of 80% o