SK. MD. RAFIQUE v. MANAGING COMMITTEE, CONTAI RAHAMANIA HIGH MADRASAH AND OTHERS

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A such institution, without his/her consent (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 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 H

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

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 H

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A 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 B 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 C 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. 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 H

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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 D

32Copy pinpoint32. 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 E 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 F 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 G 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 ne7cessary to decide the issue of minority/denominational status 24 (2004) 6 SCC 224 H

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A 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 B 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 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, G 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 H many States, there are various statutory provisions to regulate

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the functioning of such educational institutions where the States A give, as a grant or aid, a substantial proportion of the revenue 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 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 H

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A 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 B 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. … … …

C 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.”

33Copy pinpoint33. 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: “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 F 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 G unaided professional institutions; (ii) the holding of examinations for admissions to such colleges, that is, who will hold the entrance tests; and 25 (2005) 6 SCC 537 26 (2004) 8 SCC 139 27 H (2004) 8 SCC 135

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(iii) the fee structure. A 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: B (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 C 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 admission in such institutions, can be sustained in light of the law laid down in Pai Foundation? D (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

28 (2003) 6 SCC 697 H

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A 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) 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: D “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 G 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.

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105. Dealing with unaided minority educational institutions, Pai A Foundation8 holds that Article 30 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. F 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 G scheme. Education aimed at imparting professional or technical qualifications stands on a different footing from other educational instruction. Apart from other 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 H

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A 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 B 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 C 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 D 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.”

34Copy pinpoint34. In Kanya Junior High School, Bal Vidya Mandir, Etah, E 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 this Court that since the school was recognised as a Minority F 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.

35Copy pinpoint35. In Secretary, Malankara Syrian Catholic College v. T. G 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 29 (2006) 11 SCC 92 H

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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; C (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 D 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 H

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A 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). B (iv) Subject to the eligibility conditions/qualifications prescribed by the State being met, the unaided minority educational institutions will have the 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 C 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). … … …

D 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 E 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, F (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 G 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

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establish and administer educational institutions, such regulations, to that extent, will be inapplicable to minority institutions.” 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:- C

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 F 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. G

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 30. Chief Justice M.S. Menon has, in a style which is inimitable, stated thus: 30 AIR 1965 Ker 75 : 1964 KLT 791 (FB) H

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A ‘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 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. F 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 G 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 H

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of the Principal/Headmaster is also covered by State aid will make no difference.”

36Copy pinpoint36. 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: C “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, H

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A 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: “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.

D 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

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to establish and administer educational institution of its own choice under Article 30(1).

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 E 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, 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 H

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A 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.” D 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: E “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 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 F 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. G 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. H

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37Copy pinpoint37. In Chandana Das (Malakar) vs. State of West Bengal and A 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 B 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 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. F 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 institution and religious are entitled to establish and administer their institutions. Such right of administration includes the right of appointing teachers of its choice G 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 31 (2015) 12 SCC 140 32 Constituted in forms of 1997 Act – as dealt with in para 6 hereinabove. H

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33 Reported in 2019 SCC OnLine SC 1253 [Chandana Das (Malakar) vs. State of H West Bengal and others]

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referred to in clause (c) of Section 2 of the West Bengal Minorities’ A 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. 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

38Copy pinpoint38. 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:- 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

34 Expression used by Krishna Iyer J. in the Gandhi Faiz – e-am College case13 H

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A 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. B 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 C 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 - D “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.” E C) (i) In Ahmedabad St. Xavier ’s College 5 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 H

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word of caution was also expressed while observing, “The minority A 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.” B 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.”; C

(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 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.”

39Copy pinpoint39. We now turn to TMA Pai Foundation8 case and consider the principles that it laid down and whether there was reiteration of the H

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A 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 (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 C private minority institutions to administer be regulated?” 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 D 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 H

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the Government regulations cannot destroy the minority character of A 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 — B 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 :- “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.”

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40Copy pinpoint40. 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 B 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 C 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.

41Copy pinpoint41. The decisions of this Court rendered after TMA Pai D Foundation8 case, may now be considered. 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 E 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 F 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 G 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 H As observed in para 41 of Chandana Das – (2019) SCC Online SC 1253

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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. (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. F 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 G 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. H

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A (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. D

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 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

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judicial officer of the rank of a District Judge. To that extent, there was A a definite departure from the law laid down in Ahmedabad St. Xavier’s College5 case which 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 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, F 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. G 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. H

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A 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 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 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

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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 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 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 F 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. G

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 H

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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 B 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 C 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 D 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 E 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.

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 H

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appointment letter to the candidate recommended by the Commission if A 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 B 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 the error which would then be rectified by the Commission but the Managing Committee may also be within its rights in terms of Section C 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 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. G 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 H

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A 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 B 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 which could be required going by the special characteristics of the minority educational institutions. C 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. D 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 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 G 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.

H Kalpana K. Tripathy Appeal disposed of.