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TMI Blog1980 (2) TMI 264X X X X Extracts X X X X X X X X Extracts X X X X ..... ing on the question before us. The reasons which impelled me to write a separate judgment are my inability to agree wholly with the various observations made by Justice Fazal Ali and with some of the propositions which he has formulated as emerging 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 Kerala Education Bill 1957, Rev. Sidhajbhai Sabhai v. State of Bombay Rev. Father W. Proost v. The State of Bihar State of Kerala v. Very Rev. Mother Provincial D. A. V. College v. State of Punjab The Ahmedabad St. Xaviers College Society v. State of Gujarat Gandhi Faizeam College Shahajahanpur v. University of Agra and Lilly Kurian v. Sr. Lewina Almost each succeeding judgment has considered and analysed the previous judgment or judgments. I regard the matter arising before us as well-settled, especially after the 9-Judge Bench decision in Ahmedabad St. Xaviers College Society (supra) and the recent judgment of the Constitution Bench in Lilly Kurian, All that we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does not possess the minimum qualifications is appointed 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 discrimination against them on the ground of language or religion and 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(1). 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 since 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 choice, 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 ensurin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t difficult to read down section 3 (1) so as to limit its operation to these or similar considerations. 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. except with the prior approval of the competent authority. Under the proviso contravention of the section results in a total invalidation of the proposed 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 mala fides and victimisation has seldom any relevance if the services are terminated in accordance with the term ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 confernment of such a power on an 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 the 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 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. Similar provisions were hel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t authority under section 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 provision for an appeal against the order of the competent authority refusing to approve the action proposed by the management, the management is placed in a gravely disadvantageous position vis-a-vis 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 unconstitutional, as being violative of article 30 (1). Section 5 is consequential upon section 4 and must fall with 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at may, accordingly, be left to the High Court to decide in the light of the majority opinion rendered by us. We have, by a majority, held that sections 3 (3) (a), 3 (3)(b), 6 and 7 are valid while sections 3 (1), 3 (2), 4 and 5 are invalid in their application to minority education institutions. It must follow that such institutions cannot be proceeded against for violation of provisions which are not applicable to them. In conclusion, all the Civil Appeals before us will go back to the High Court of Andhra Pradesh for final disposal on merits in the light of our decision. There will be no order as to costs. FAZAL ALI, J.: This batch of civil appeals by special leave is directed against the judgment of the Andhra Pradesh High Court before whom the appellants filed writ petitions under Article 226 of the Constitution challenging the constitutional validity of several sections of the Andhra Pradesh Recognised Private Educational Institutions Control Act, 1975, hereinafter referred to as the Act which contained 21 sections in five Chapters and was brought into force with effect from 5th October, 1974. This Act was also applicable to 19 Educational Institutions situated in the State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rights relied on by or on behalf of any person or body the court may not entirely ignore these directive principles of State policy laid down in Part IV of the Constitution but should adopt the principle of harmonious construction and should attempt to give effect to both as much as possible". Another important factor which has to be noticed is that the terms in which Article 30 is couched are absolute and unconditional as compared to Article 19 which is hedged in by reasonable restrictions which may be imposed by the State in public interest. Thus, in a way the fundamental right contained in Article 30 is more effective and wider than the fundamental rights contained in Part III of the Constitution. This, however, does not mean that the State is completely deprived of even the right to regulate the working of the minority institutions and to make rules in order to improve the standards of education imparted therein so as to achieve excellence and efficiency in the educational standards of these institutions. Regulatory measures cannot in any sense be regarded as placing restrictions or curbing the administrative autonomy of the institutions concerned. But care must be taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the constitutional right to administer an educational institution of their choice does not necessarily militate against the claim of the State to insist that in order to grant aid the State may prescribe reasonable regulations to ensure the excellence of the institutions to be aided". Again, while sounding a note of caution to the Government that no step should be taken by it which amounts to the institution surrendering its personality merely because the institution is receiving aid from the State, said the Chief Justice thus:- "No educational institution can in actual practice be carried on without aid from the State and if they will not get it unless they surrender their rights they will, by compulsion of financial necessities, be compelled to give up their rights under Article 30(1).................. The State Legislatures cannot, it is clear, disregard or override those provisions merely by employing indirect methods of achieving exactly the same result. Even the Legislature cannot do indirectly what it certainly cannot do directly". Considering the provisions of the Kerala Education Bill particularly Clauses 6, 7, 9, 10, 11, 12, 14 and 15 the Court held tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be violative of Article 30(1) of the Constitution. In this connection, Das, C.J. Observed as follows:- "There is, no doubt, no such thing as fundamental right to recognition by the State but to deny recognition to the educational institutions except upon terms tantamount to the surrender of their Constitutional right of administration of the educational institutions of their choice is in truth and in effect to deprive them of their rights under Article 30(1). We repeat that the legislative power is subject eto the fundamental rights and the legislature cannot indirectly take away or abridge the fundamental rights which it could not do directly and yet that will be the result if the said Bill containing any offending clause becomes law" Again dwelling on the special character of the minority institutions Das, C.J. speaking for the Court observed thus: "It is obvious that a minority community can effectively conserve its language, script or culture by and through educational institutions and, therefore, the right to establish and maintain educational institutions of its choice is a necessary concomitant to the right to conserve its distinctive language, script or cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Department private students in excess of 20% of the total strength in each class. The institution took serious exception to this order of the Government as amounting to A direct interference in the management of the affairs of the institution. The institution filed a writ petition under Article 32 of the Constitution before this Court which was heard by 6 Judges who after considering the facts of the case and the nature of the order passed by the Government observed as follows:- "Unlike Article 19, the fundamental freedom under clause (1) of Article 30, is absolute in terms; it is not made subject to any reasonable restrictions of the nature the fundamental freedoms enunciated in Article 19 may be subjected to. All minorities, linguistic or religious have by Article 30(1) an absolute right to establish and administer educational institutions of their choice; and any law or executive direction which seeks to infringe the substance of that right under Article 30(l) would to that extent be void. This, how ever, is not to say that it is not open to the State to impose regulations upon the exercise of this right.. Regulation made in the true interests of efficiency of instruction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Government of Bombay in the Bombay case (supra) referred to above. In the case of Rev. Father W. Proost & Ors. v. The State of Bihar and Ors. Hidayathullah, C. J. speaking for the Court observed as follows:- "In our opinion, the width of Article 30(1) cannot be cut down by introducing in it consideration on which Article 29(1) is based. The latter article is a general protection is given to minorities to conserve their language, script or culture. The former is a special right to minorities to establish educational institutions of their choice. This choice is not limited to institution seeking to conserve language, script or culture and the choice is not taken away if the minority community having established an educational institution of its choice also admits members of other communities. That is a circumstance irrelevant for the application of Article 30 (1) since, no such limitation is expressed and none can be implied. The two Article create two separate rights, although it is possible that they may meet in a given case." The extent to which the State could interfere with the administrative autonomy of the minority institutions in view of the guarantee contain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Such regulations do not bear directly upon management as such although they may indirectly affect it. Yet the right of the State to regulate education, educational standards and the allied matters cannot be denied. The minority institutions cannot be allowed to fall below the standards of excellence expected of educational institutions, of 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". These observations, therefore, establish three important tests which would determine whether or not the action of the Government amounts to interference with the management of the institution (1) In order that the management of the institution is free from outside control, the founders must be permitted to mould the institution as they think fit; (2) no part of the management could be taken away by the Government and vested in another body without an encroachment upon the guaranteed right enshrined in Article 30(1) of the Constitution; (3) There is however an exception to. this general rule which is that the Government or the University can adopt regulato ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nity has no hand in the administration. The two bodies are vested with the complete administration of the institutions. These bodies have a legal personality distinct from the educational agency or the corporate management. They are not answer- able to the founders in the matter of administration The Constitution contemplates the administration to be in the hands of the particular community. However desirable it might be to associate nominated members of the kind mentioned in ss. 48 and 49 with other members , of the governing body or the managing council nominees, it is obvious that their voice must play a considerable part in management Situations might be conceived when they may have a preponderating voice. In any event, the administration goes to a distinct corporate body which is in no way answerable to the educational agency or the corporate management. The founders have no say in the selection of the members nominated by them. It is, therefore, clear that by the force of sub sections (2), (4) and (6) of sections 45 and 49 the minority community loses the right to administer the institution it has founded. Sub-section (S) also compels the governing body or the managing counci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the picture of the administration of minority institutions which may not like this interference. When this is coupled with the choice of nominated members left to Government and the University by sub-s.1(d) of ss. 48 and 49 it is clear that there is much room for interference by persons other than those in whom the founding community would have confidence." In the end while making it clear that there was no element of malafides in the Act passed by the Legislature, the provisions of the Act unfortunately robbed the founders of their right of administration and were, therefore, hit by Article 30(1) of the Constitution. In this connection, the Court observed as follows:- "We have no doubt that the provisions of the Act were made bona fide and in the interest of education but unfortunately they do affect the administration of these institutions and rob the founders of that right which the Constitution desires should be theirs. The provisions, even if salutary, cannot stand in the face of the constitutional guarantees". In the case of D.A.V. College etc. v. State of Punjab & Ors this Court was considering the provisions of Chapter V Clauses 2(1)(a), 17 and 18 read wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution situated within the University could be associated in any way with or seek admission to any privilege of any other University save and except with the sanction of the State Government. Section 33A(1)(a) of the Act provided that every college other than a Government college or a college maintained by the Government shall be under the management of a governing body which includes among others, the Principal of the College, a representative of the University nominated by the Vice- Chancellor and (ii) in the case of selection of a member of the teaching staff of the College a selection committee would be constituted consisting of the Principal and a representative of the University nominated by the Vice- Chancellor. Subsection (3) of the section provided that the provisions of section 33A (1) shall be deemed to be a condition of affiliation of every College referred to in that sub-section. In other words, according to this provision, even the Colleges which were minority institutions would fall within the mischief of the section. Section 39 provided that within the University area all post-graduate instruction, teaching and training shall be conducted by the University or by such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resentation to the management of the institution. Before we analyse the decision in St. Xaviers case (supra) we must note that as far back as 1959 in Re Kerala education Bill this Court had clearly pointed out that while the minority institution had no constitutional right to be affiliated to any college or University the right to be affiliated flowed from the language of Article 30(1) of the Constitution and the University concerned could not either refuse affiliation or impose such conditions which may result in complete surrendering of the management of the minority institution. Thus, the central question to be decided in this case was whether by virtue of the provisions of the Act set out above, Article 30(l) had been violated and if so to what extent. So far as the question of affiliation was concerned the entire court held that although there was no fundamental right to affiliation but recognition or affiliation was necessary for meaningful exercise of the right to establish and administer educational institution conferred on the minority institutions under Article 30(l) of the Constitution. In this connection, the Court observed as follows:- "The consistent view of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Article 30". Thus, to a limited extent affiliation of the minority institution to the University or Colleges concerned was held to be a regulatory measures provided it was aimed at improving the educational standards and laying down the conditions of employment of the teachers. This Court repeated that the minority institutions have the right to administer the institution and shorn of some checks and balances in the shape of regulatory measures the right to administer cannot be tampered with. In this connection, Ray, C.J. Observed as follows:- "The minority institutions have the right to administer institutions. The right implies the obligation and duty of the minority institutions to render the very best to the students. In the rights of administration, checks and balances in the shape of regulatory measures are required to ensure the appointment of good teachers and their conditions of service. The right to administer is to be tempered with regulatory measures to facilitate smooth administration. The best administration will reveal no trace or colour of minority. A minority institution should shine in exemplary eclectism in the administration of the institution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an institution will not only be disturbed but also mixed. These provisions in section 33A(1)(a) cannot therefore apply to minority institution". It follows from what had been held in the aforesaid case was that there should be no interference in the right of day to day administration of the institution of in the choice of the personality of the managing committee or governing body of the institution. This Court struck down section 33A(1) (a) of the Gujarat Act on the ground that the management of the college was completely displaced and was substituted by the university authorities. In other words, the position appears to be that although the university to which the minority institution was affiliated may exercise supervision in so far as the syllabi or the courses of studies are concerned, it cannot be allowed to be associated with the managing committee or the governing body of the institution so as to have a controlling voice in the matters at issue and thereby destroy the very administrative autonomy of the minority institution. This appears to be the main reason why Ray, C.J. was of the opinion that section 33A(1)(a) was violative of Article 30(1), and, therefore, not a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion will be created in administration. The provisions contained in section 52A of the Act cannot, therefore, apply to minority institution." Jaganmohan Reddy, J. agreeing with the majority judgment delivered by the Hon'ble Chief Justice endorsed his conclusions regarding the constitutional validity to sections 40, 41, 33A(1) (a), 33A(1) (b), 51A and 52A of the Act and observed thus:- "We agree with the Judgment of Hon'ble the Chief Justice just pronounced and with his conclusions that sections 40, 41, 33A(1) (a), 33A(1) (b), 51A and 52A of the Act violate the fundamental rights of minorities and cannot, therefore, apply to the institutions established and administered by them." Dwelling on the importance of the fundamental right enshrined in Article 30, the learned Judge held that the right under Article 30 7-138 SCT/80 could not be exercised in vacuo, and in this connection observed as follows:-. "The right under Article 30 cannot be exercised m vacuo. Nor would it be right to refer to affiliation or recognition as privileges granted by the State. In a democratic system of Government with emphasis on education and enlightenment of its citizens, ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rities are as much children of the soil as the majority and the approach has been to ensure that nothing should be done as naught 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 institutions under Article 30(l). 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 reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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(l) so far as 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 held that these provisions could not apply to the minority institutions. 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 University 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 result in contravention of Article 30(1). I would, therefore, strike down section 40 so far as minority educational instit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 mal-administration the right of the governing body to manage the affairs of the minority institution should not be take away and in the same token observed as follows:- "Under the guise of preventing mal-administration, the right of the governing body of the college constituted by the religious 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 institution. 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iated if that is their necessary consequence or effect." Even Dwivedi, J. who had sounded a discorded note held that so far as section 33A(1) (a) was concerned it was obnoxious to Article 30(1) of the Constitution. In the case of Gandhi Faizeam College Shahajahanpur v. University of Agra and Anr. the majority judgment consisting of V. R. Krishna Iyer and A.C. Gupta, JJ. Observed as follows:- "What is the core of the restriction clamped down by Statute 14-A? What is the conscience and tongue of Article 30 ? If the former is incongruous with the latter, it withers as void; otherwise, it prevails and binds. That is the crux of the controversy." "The thrust of the case is that real regulations are desirable, necessary and constitutional but, when they operate on the 'administration' part of the right, must be confined to chiselling into shape, not cutting down out of shape, the individual personality of the minority." Mathew, J. who gave a dissenting opinion and whose opinion follows the principles laid down by the Court in St. Xavier's case (supra) observed as follows:- "The determination of the composition of the body to administer the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o veto the actions of the management." "The power of appeal conferred on the Vice-Chancellor under ordinance 33(4) is not only a grave encroachment on the institution's right to enforce and ensure discipline in its administrative affairs but it is uncanalised and unguided in the sense that no restrictions are placed on the exercise of the power. The extent of the appellate power of the Vice- Chancellor is not defined; and, indeed, his powers arc unlimited. The grounds on which the Vice-Chancellor can interfere in such appeals are also not defined. He may not only set aside an order of dismissal of a teacher and order his reinstatement, but may also interfere with any of the punishments enumerated in items (ii) to(v) of ordinance 33(2); that is to say, he can even interfere against the infliction of minor punishments. In the absence of any guidelines, it cannot be held that the power of the Vice-Chancellor under ordinance 33 (4) was merely a check on maladministration. As laid down by the majority in St. Xavier College's case (supra) such a blanket power directly interferes with the disciplinary control of the managing body of a minority educational institution ov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utside authority however high it may be either directly or through its nominees in the governing body or the managing committee of the minority institution to conduct the affairs of the institution would be completely destructive of the fundamental right guaranteed by Article 30(1) of the Constitution and would reduce the management to a helpless entity having no real say in the matter and thus destroy the very personality and individuality of the institution which is fully protected by Article 30 of the Constitution. Perhaps there may not be any serious objection to the introduction of high authorities like the Vice-Chancellor or his nominee in the administration particularly that part of it which deals with the conditions of service of the teachers yet such authorities should not be thrust so as to have a controlling voice in the matter and thus over-shadow the powers of the managing committee. Where educational institutions have set up a particular governing body or the managing committee in which all the powers vest, it is desirable that such powers should not be curbed or taken away unless the Government is satisfied that these powers are grossly abused and if allowed to conti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion is not constitutionally permissible so far as minority institution is concerned because it directly interferes with the administrative autonomy of the institution. A provision for an appeal or revision against the order of the authority by the aggrieved member of the staff alone or the setting up of an Arbitration Tribunal is also not permissible because Ray, C.J. pointed out in St. Xaviers case (supra) that such a course of action introduces an arena of litigation and would involve the institution in unending litigation, thus imparing educational efficiency of the institution and create a new field for the teachers and thus draw them out of purely educational atmosphere of the minority institutions for which they had been established. In other words, nothing should be done which would seek to run counter to the intentions of the founders of such institutions. These are some of the important principles that have been clearly laid down by the Supreme Court in the cases discussed above. I shall now endeavour to examine the provisions of the impugned Act in the light of the principles enunciated above. I shall point out hereafter that some of the provisions of the Act are so har ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government. The proviso enjoins that any contravention of the provisions would not affect the teachers who would be deemed to be in service. It is manifest that in the absence of any rules the proviso would have no application. Even if the proviso applies it would amount to a serious inroad on the fundamental right of the minority institutions to administer or manage their own affairs. Thus s. 3(1) as also the proviso is clearly violative of own affairs Art. 30 is wholly inapplicable to the minority institutions. Serious exception on has been taken by counsel for the appellants to sub-sections (2), (3) and (4) of section 3. Section 3(2) may be extracted thus :- "3 (2) Where me 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". This sub-section seeks to control the power of the institution concern ed in the matter of dismissal, removal or reduct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reduces the institution to a helpless position. Such a provision, therefore, not only interferes with the right of the management of the institution but is completely destructive of the right conferred on the institution under Article 30(1) of the Constitution. Even C the competent authority mentioned in the sub-section is merely the District Educational officer and it appears from the record that it 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 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 institution against its teachers unless it was, after hearing the teacher and the manage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eacher in the matter of suspension. Even a Government servant to whom Article 311 of the Constitution or the statutory rules apply does not enjoy such a liberal facility. Moreover, the rules make a mockery of any order of suspension passed pending an inquiry. It is very difficult 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 curb 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 and thus deprive the institution of the right of or taking any disciplinary action against the teacher to such an extent that the institution becomes almost a figure-head. Such a provision, therefore, cannot be upheld as it is clearly violative Of Article 30(1) of the Constitution of India. It is obvious that whenever an institution suspends a teacher, it is bound to pay subsistence allowance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hing and/or attaining excellence in the standards of education. such a course of action is bound to hurt the feelings of the founders of the institution. For these reasons, therefore, I and of the opinion that section 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 before any authority to the appellate authority and if section 4 falls and is inapplicable to the minority institution section 5 also follows the same fate and will not apply to the minority institution. Section 6 runs thus:- "6. Where any retrenchment of any teacher employed in any private educational institution is rendered necessary consequent on any order of the Government relating to education or course of instruction or to any other matter, such retrenchment may be effected with the prior approval of the competent authority". I This section deals with the contingencies under which the institution may be compelled to retrench any teacher employed in the school. Whatever be the position in other private educational institu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct 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 and 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. 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 appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me as culled out from the various decisions of this 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 institutions and which fall within the protection guaranteed 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 issued by the Government or other authorities under the Act to the appellants except such steps as are taken under those provisions of the Act which have been upheld by me, viz., sections 7, 10, 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 managements. 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 :- "Dismissal, removal 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 he dismissed, removed or reduced in rank nor shall his appointment be other wise terminated, except with the prior approval of the competent authority. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nated 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 that 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticles 28(3), 29(2) and 30(2) deal with educational institutions receiving aid out of State Funds. Certain restrictions are placed a obligations cast on institutions recognised by the State or receiving aid Art. 28(3) provides "No person attending any educational institutional recognised by the State or receiving aid out of State funds shall be required to take part in any religious instructions 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 person attending 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 religious 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) institutions receiving aid, a citizen is entitled to seek admission and the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst 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 explained by the question framed by the Attorney General and the answer furnished by the Court at p. 1063. The State cannot say "I have money and I shall not give you any aid unless you surrender to 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 institution subject to clauses 14 and 15, valid. The Kerala Education Bill which was referred to this Court for the n 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 (S) may easily be regarded as reasonable regulations or conditions for the grant of aid. (Vide p. 1064). Clause 7 is extracted a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hers who are engaged in rendering service to the nation and protect the backward classes, we are prepared, as at present advised, to treat these clauses 9, 11(2) and 12(4) as permissible regulations which the State may impose on the minorities as a condition for granting aid to their educational institutions." It is clear that so far as aided institution are concerned conditions similar to those that are mentioned can be validly imposed on the institutions. The only prohibiting 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 valid. The decisions rendered subsequent to the Kerala Education Bill case may now be referred to see how for the views expressed had been modified. In Rev. Sidhajbhai Sabhai & Ors. v. State of Bombay & Anr.(1) a Bench of 6 Judges held that the order of the Government directing that 80% of seats in the training colleges should be reserved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Act. Under s. 48-A a University Service Commission for affiliated Colleges was established. It was provided amongst others that subject to the approval of the University, appointments, dismissals, removals, termination of service or reduction in rank of teachers of an affiliated college not belonging to the State Government shall be made by the governing body of the College on the recommendation of the Commission. While the petition was pending before this Court the Governor of Bihar promulgated an ordinance by inserting Sec. 48-B which exempted Colleges established and administered by the minorities from the operation of the provisions of clauses (6), (7), (8), (9), (10) and (11) of s. 48-A. After the introduction of s. 48-B the petitioners before this Court claimed protection under S. 48-B and submitted that affiliated Colleges established by minorities are exempt from the operation of the impugned provisions of s. 48-A. It may be noted that under s. 48-B the governing body of an affiliated college established by a minority shall be entitled to make appointments, dismissals, removals, termination of service or reduction in rank of teachers or take other disciplinary action subj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (9) and of s. 53, sub-ss. (.2) and (4) of s. 56 as ultra vires. In D.A.V. College etc. v. State of Punjab & ors(2) the validity of cl. 18 which required that non-governmental Colleges shall comply with the requirements laid down in the ordinances governing service of teachers in non-governmental Colleges as may be framed by the University was considered. Clause 18 so far as it is applicable to the minority institutions empowered the University to prescribe by regulation governing the service of teachers which is enacted in the larger interest of the institution to ensure their efficiency and excellence. Tho Court held: "It may for instance issue an ordinance in respect of age of superannuation or prescribe minimum qualifications for teachers to be employed by such institutions either generally or in particular subjects. Uniformity in the conditions of service and conduct of teachers A in all non-Government Colleges would make for harmony and avoid frustration." A reading of the decisions referred to above make it clear that while the right to establish and administer a minority institution cannot be interfered with restrictions, by way of regulations for the purpose of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the 9 Judges were unanimous that the right to aid or recognition was not a fundamental right but that aid or recognition cannot be offered on conditions which would involve a surrender of those rights. But the rights of recognition and affiliation are subject to regulations which are necessary for maintenance of the educational institutions. In the St. Xaviers College case (supra), S. 33A(1) was challenged. It provided that every college was to be under the management of a governing body which must include a representative of the University and representatives of teachers, non-teaching staff and students of the college. Eight of the nine Judges held that S. 33A (1)(a) violated Art. 30(l) and could not be applied to minority institutions. This Court in a subsequent decision in G.F. College Shahajahanpur v. University of Agra and Anr.(l) held that it would not be unconstitutional to direct that the Principal and the Senior Teacher appointed by the Governing body itself be taken into the managing committee. The Court in St. Xavier's College case also considered the validity of S. 51-A(l) (a), (2) (a) and 51-A(1) (b) . Section 51-A(1)(a) and (2)(a) provided that no member of the te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liated, it expresses its choice to participate in the system of general education and courses of instruction prescribed by that University: * * * * * * There fore, the measures which will regulate the courses of study the qualifications and appointment of teachers, the condition of employment of teachers,* * * * * * * are all comprised in matters germane to affiliation of minority institutions. These regulatory measures for affiliation arc for uniformity efficiency and excellence in educational] courses and do not violate any fundamental right of the minority institutions under Art. 30" (emphasis supplied) Ray C.J. held that s. 51A(1) (b) and S. 51A(2) (b) is not applicable to minority institutions as they "cannot be said to be permissive regulatory measures in as much as it confers arbitrary power on the Vice-Chancellor to take away the right of administration of the minority institutions ." Agreeing with the view of the Chief Justice, regarding his conclusion about S. 51A(1) (a) and (2) (b), Khanna, J. at p. 243 observed : "Although disciplinary control over the teachers of a minority educational institution would be with the governing council, regulations i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enalty after conducting an enquiry." (emphasis sup plied) The learned Judge proceeded to observe: "Of course it is open to the State in the exercise of its regulatory power to require that before the service of a teacher are terminated, he should be given opportunity of being heard in his defence. But to require that for terminating the services of a teacher after an enquiry has been conducted, the management . should have the approval of an outside agency like the Vice- Chancellor or of his nominee would be an abridgement of its right to administer the educational institution. No guidelines are provided by the legislature to the Vice- Chancellor for the exercise of his power. The fact that the power can be delegated by the Vice-Chancellor to any officer of the university means that any petty officer to whom the power is delegated can exercise a general power of veto. There is no obligation under the sub-sections 1(b) and 2(b) that the Vice-Chancellor or his nominee should give any reason for disapproval. As we said a blanket power with- out any guideline to disapprove the action of the management would certainly encroach upon the right of the management to dismiss or ter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion and protect the backward classes we are prepared, "as at present advised to treat clauses 9, 11 (2) and 12 (4) as permissible regulations the State may impose on the minorities as a condition for granting aid to their educational institutions. Ray C.J. in St. Xavier College case, observed that though the opinion was given in Kerala Education Bill on an order of reference under Art. 143 is not binding on this court in any subsequent matter wherein a concrete case the infringement of the rights under any analogous; provision may be called in question, it is entitled to great weight. Ray C.J. proceeded to observe that nonetheless the exposition of the various facets of the rights under Art. 29(1) and 30 by Das, C.J. speaking for the majority, with utmost clarity, great perspicuity and wisdom has been the text from which Court has drawn its sustenance in the subsequent decisions. To the extent that this Court has applied these principles to concrete cases there can be no question of there being any conflict with what has been observed by Das, C.J. Ray, C.J. was of the view that similar provisions were held to be invalid as they fell with S. 48 and 49 of the Kerala Education A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncil constituted under the Act and a provision was made requiring the previous sanction on the Vice- Chancellor and provided an unrestricted right to the Syndicate. It will be noted that the Chief Justice found Ss. 56(2) and (4) ultra vires as they had to fail alongwith Ss. 48 and 49 which deprived the institution of the right to manage its own affairs. In the case of D.A.V. College v. State of Punjab (supra), cl. 17 provided that the staff initially appointed shall be approved by the Vice-Chancellor and all subsequent changes shall be reported to the University for Vice- Chancellor's approval. S. 17 does not, in fact, confer on the Vice-Chancellor the power to veto the disciplinary action taken by the private institution. In St. Xavier College case, also the management of the institution was completely taken away under Ss. 40 and 41 of the Act. The Private Institution was required to be a constituent College of the University and was to be governed by the Statutes that may be framed by the University. Ss. 31A (1) (a) set up a Governing Body which to include amongst its Principals the representatives of the University nominated by the Vice-Chancellor and representatives of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30 was that the right of appeal was provided without defining the scope of the appellate authority. In the cases referred to, namely, Very Rev. Mother Provincial, D.A.V. College and Lilly Kurian, the powers conferred on the Vice-Chancellor were held to be blanket power, unguided and uncanalised. The back ground of the decisions was that the minority institutions were deprived of the powers of administration by forming a body which deprived the institution of all its powers. In such circumstances, it was found that the power was uncanalised. In the case of Rev. Father W. Proost and Ors. (supra), S. 48 was enacted providing that the minority institution shall be entitled to make appointments, dismissal, removal, termination of service and reduction in rank of teachers, subject only to the approval of the Syndicate of the University, which was not challenged. The institution claimed exemption under s. 48B. Bearing the facts of the cases set out above, we have to consider the impugned Act and determine whether the impugned provisions infringe the rights conferred on the minority institutions under Art. 30. The statements of object and reasons and the salient features of the bill as st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re relevant for deciding whether the restrictions were reasonable within the meaning of Art. 19(2) to (6). The object and reasons for the legislation make it very clear that the legislation was intended to regulate the service conditions of teachers employed in private educational institutions and for the security of service of the said teachers. The preamble is also an aid in construing the provisions of the Act. The House of Lords in Att. Gen. v. H.R.H. Prince Earnest Augustus of Hanover, held that when there is a preamble it is generally in its recitals that the mischief to be remedied and the scope of the Act are described. It is, therefore, permissible to have recourse to it as an aid to construing the enacting provisions. The preamble states that the Act it to provide for terms and service conditions of teachers. If the power conferred under S. 3 (1) and s. 3(2) is restricted to regulating the service conditions of teachers and for ensuring their security of service, the power conferred would be valid. It was submitted by Mr. Lal Narain Sinha the learned counsel for the appellants that the power is uncanalised because the approval can be withheld even on merits which would in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rising out of what appears to be the general scheme of the Act." To the same effect are the observations of this Court in Kedar Nath Singh v. State of Bihar : "It is well settled that in interpreting an enactment the Court should have regard not merely to the literal meaning of the words used, but also take into consideration the antecedent history of the legislation, its purpose and the mischief it seeks to suppress. (The Bengal Immunity Co. Ltd. v. The State of Bihar [1955] 2 S.C.R. 603 and R.M.D. Chamaurbaugwalla v. The Union of India [1957] S.C.R. 930 cited with approval." This Court has in several cases adopted the principle of reading down the provisions of the Statute. The 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 that where an Act. is expressed in language of a generality which makes it capable, if read literally, of applying to matters beyond the relevant legislative power, the Court will construe it in a more limits sense so as to keep it within power. Applying the principles laid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ult in considerable mischief and would result in depriving the protection that is available to the poor teacher regarding their security of service. The legislation was for the specific purpose of regulating the service conditions and providing security of service and for preventing teachers from being punished on flimsy grounds without framing charges and without giving an opportunity to explain. lt is very different from other cases, in which the legislation was aimed at depriving the minority institutions of all its powers. The only aim of the impugned legislation is to provide security of service. As pointed out there are sufficient guidelines in the objects and reasons in the legislation as well as in the preamble. In the circumstances, it is not only reasonable but proper that a restricted meaning is given to the power of prior approval conferred on the competent authority under s.3. S.3(1) and (2) will have to be read together. The procedure contemplated is that when the educational institution proposes to dismiss, remove or reduce in rank or otherwise terminate the appointment of any teacher it should communicate to the competent authority its proposal. The latter part of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cumstances under which the proceedings of the tribunal can be interfered with has been clearly laid down. Sufficient guidelines are discernible from the Statements of objects and reason which state that the enactment was for the purpose of preventing private institutions from laking disciplinary action on flimsy grounds without framing charges and without giving an opportunity to explain and for regulating the service conditions of teachers and for ensuring their security of service. We are satisfied that sufficient guidelines are indicated in the Act. The words "adequate and reasonable" should be given a restricted meaning so as to validate the provisions of the section. Thus, understood, the objection raised by Mr. Lal Narain Sinha, learned counsel for the appellant, that S.3(1) and (2) lack guidelines and have conferred a blanket power, cannot be upheld. It was next contended by Mr. Lal Narain Sinha that no question of principles of natural justice arised when the conditions of service between the institution and the teacher are regulated by contract. We are unable to accept this contention for the legislature is competent to enact provisions limiting the power of dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , removed or reduced in rank or whose appointment is otherwise terminated or whose pay and allowances or any of the whose conditions o service are altered or interpreted to his disadvantage may prefer an appeal to such authority as may be prescribed. This section was challenged by Mr. L. N. Sinha, learned counsel, on the ground that the right of appeal conferred is a blanket power without any restriction. In any event, the submission that the right of appeal is conferred only on the teacher and not on the institution. Though no restriction are placed on the appellate power, we feel it may be possible to read down the section. But the learned counsel is on firm ground when he submits that the right of appeal is confined only to the teachers and not available to institution. This infirmity invalidates S.4.Section 5 is consequential of S.4 in which power is conferred on the competent authority to hear appeal in certain past disciplinary cases. S.5 also will have to fail alongwith S.4. S.6 relates to retrenchment of teachers under certain conditions. It provides that when any retrenchment is rendered necessary, consequent on any order of the Government relating to educational instituti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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