W.P. No.2537 of 1982

4th May, 2001

Petitioner Counsel: P.N. CHANDURKAR,Ms. SAPANA DAS
Respondent Counsel: BHUSHAN GAWAI,SUMANT DEOPUJARI,Mrs. S.P. CHANDURKAR, MANOJ MISHRA,T.B. GOLHAR

Cases Cited:
Khan Abdul Hamid Abdul Razak vs. Mohamed Haji Saboo Siddik Polytechnic, 1985 Mh.L.J. 400 [Para 1]
The State of Maharashtra. W.P. No. 2409 of 1981 [Para 12]
Fr. Anthony Mendonca vs. The State of Maharashtra, Writ Petition No. 1166 of 1980 30th October, 1984 [Para 15]
Rev. Sister Mary Damian and another vs. The Education Officer, Zilla Parishad, Nagpur W.P. No. 1770 of 1980 dt.3rd February, 1981 [Para 17]
Rev. Sidhrajabhai Sabbar vs. State of Gujarat, AIR 1963 SC 540 [Para 18]
Rev. Father W. Proost vs. The State of Bihar, AIR 1969 SC 465 [Para 19]
P. A. V. College, Julundur etc. vs. The State of Punjab and others, AIR 1971 SC 1737 [Para 20]
The Ahmedabad St. Xaviers College Society and another etc. vs. State of Gujarat and another, AIR 1974 SC 1389 [Para 21]
The All Saints High School vs. The Government of Andhra Pradesh, AIR 1980 SC 1042 [Para 22]
St. Stepen's College vs. The University of Delhi, AIR 1992 SC 1630 [Para 23]
Lily Kurian vs. Lewina, 1979(2) SCC 124 [Para 23]
N. Ammad vs. Manager, Emjay High School and others, (1998) 6 SCC 674 [Para 24]
Supreme Court in Indra Sawhney vs. Union of India, AIR 1993 SC 477 [Para 29]
M. R. Balaji vs. State of Mysore, , AIR 1963 SC 649 [Para 29,30]
AIR 1964 SC 179 [Para 29]
State of Kerala vs. N. M. Thomas, AIR 1976 SC 490 [Para 29]
Ajit Singh and others (II) vs. State of Punjab and others, (1999) 7 SCC 209 [Para 30]
P & T Scheduled Caste/Tribe Employees' Welfare Assn. (Regd.) vs. Union of India, (1988) 4 SCC 147 [Para 30]
State Bank of India Scheduled Caste/Tribe Employees' Welfare Assn. vs. State Bank of India, (1996) 4 SCC 119 [Para 30]

JUDGMENT

B.N.SRIKRISHNA, J. :- This Writ Petition has been placed before this Full Bench because of the view expressed by the Division Bench of Justice V.A.Mohta and Dr. B.P.Saraf, JJ. by their order dated 17th October, 1992 doubting the correctness of the view taken by another Division Bench of this Court in Khan Abdul Hamid Abdul Razak vs. Mohamed Haji Saboo Siddik Polytechnic, 1985 Mh.L.J. 400 in the light of subsequent Supreme Court pronouncements and suggesting its reconsideration by a larger bench.

2. The facts of this writ petition insofar as material to the controversy, are as under :

The petitioner is a society run by the Clergy of the Roman Catholic Archdiocese of Nagpur, which is governed by the Code of Canon Law. It is a society registered, under the Societies Registration Act, 1860 and conducts the St.Francis de Sales Higher Secondary School, in Nagpur since 1873. The Head Master of the Petitioner School, is Rev.Fr.Maurice Fernandes, a Roman Catholic Priest. The Petitioner is a minority educational Institution run by the Christian Clergy.

3. The management of the school is in the hands of persons belonging to the minority of Christians and the school is basically run to carry forward the objects of the society.

4. There were certain vacancies of teaching and non-teaching staff which had to be filled and the Petitioner published a notice in the Nagpur Times dated 21-6-1982 seeking to fill up vacancies of four Assistant Teachers, two Laboratory Assistants and one Peon. On 31-7-1982 the School Committee of the petitioner passed a resolution unanimously approving the appointments of the following candidates in the school.

1.	Mrs. Deepti Prasad	--	Asstt. Teacher
2.	Mrs. Reene E.J.D. Morale	--	—”—
3.	Mrs. Tilottma Trivedi	--	—”—
4.	Miss Amita Chabra	--	—”—
5.	Mr. Vikas Ryan Francis	--	Laboratory Attendant
6.	Mr. Francis Xavier Rebello	--	—”—
7.	Mr. Edward Emanuel	--	Peon.

The resolution also approved the promotion of John Guldekar as Jr. Clerk from the post of Laboratory Attendant with effect from 16-6-1982.

5. On 3-8-1982, the Head Master of the petitioner School addressed a letter to the Education Officer, Zilla Parishad, Nagpur, seeking approval to the appointment of the teaching and non-teaching staff mentioned above from the academic year 1982-1983 onwards. The letter gave full particulars of the vacancies, the reasons leading to the vacancies and the names and particulars of the incumbents who were appointed therein. The Additional Education Officer, Zilla Parishad, Nagpur addressed a letter dated 23-8-1982 to the Head Master of the petitioner School seeking further particulars of the caste of each teacher and information as to whether there was any backlog of backward class candidates remained to be appointed. Information with regard to backlog was sought in a tabulated form as suggested. The petitioner forwarded the information sought for by its letter of 8-9-1982 in which it was specifically pointed out that the petitioner School was run by the management of minority people and the rules of backlog were not applicable to the minority run schools. By another letter dated 24-9-1982, formal proposal for approval of the appointment of teachers for the year 1982-1983 was also forwarded to the Education Officer along with information as to the backlog. By a further letter dated 1-10-1982, the Additional Educational Officer, Zilla Parishad sought further particulars as to the community (whether S.C., S.T., D.T./N.T., O.B.C. and others) of the staff. The petitioner by its letter dated 44-10-1982 pointed out that all the seven persons about whom information was sought belonged to open category.

6. On 14-10-1982, the Additional Educational Officer informed the petitioner that the proposal submitted by the petitioner for approval of teaching and non-teaching staff had been examined, that backlog of 6 Scheduled Caste, 3 Scheduled Tribes, 2 N.T. and 2 O.B.C. teachers existed in the school and similarly there was a backlog of one member of non-teaching staff also. The additional Educational Officer indicated that the appointment should have been made only of those backward class candidates after consultation with the Social Welfare Officer and Employment Exchange Officer which had not been done. Consequently, he stated that it was not possible for his office to give approval for the proposal. The Additional Education Officer while acknowledging that the petitioner school was a minority school, hinted that the school was not exempt from appointing teaching and non-teaching staff from backward classes and that the school was free to exercise its choice for appointing Head Master or 3 members according to their choice.

7. Consistent with the stand taken, the Additional Education Officer refused to approve the proposal for appointments forwarded by the petitioner on the ground that they did not comply with Section 3(2) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 read with sub-rules (7), (8), (9) and (10) of Rule 9 framed thereunder.

8. As the proposal for appointment had not been approved, the salaries of the concerned staff were not released from July, 1982.

9. The petitioner being aggrieved by the stand taken by the Education Officer, filed the present petition on 20-12-1982 contending that the action of the Additional Education officer was in breach of the fundamental right guaranteed to it under Article 30 of the Constitution of India to establish and administer educational institutions of its choice. It is contended in the writ petition that the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (hereinafter referred to as 'the Act') and rules 9(7) to 9(10) framed thereunder, which make it obligatory upon the private schools covered by the Act to follow certain procedure with regard to reservation of posts in favour of backward classes were unconstitutional, and inconsistent with Article 30(1) of the Constitution as they were sought to be enforced against the petitioners. It is also contended that the action of the respondents in refusing to give approval to the appointments made by the school committee as detailed in the petitioners' letter dated 3-8-1982 is illegal, unconstitutional and an infringement of the fundamental right of the petitioners guaranteed under Article 30 of the Constitution of India. The petitioners therefore seek striking down of sub-rules (7), (8), (9) and (10)of rule 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 framed under Section 16 of the Act; insofar as they are sought to be applied to minority institutions, as being violative of the fundamental rights guaranteed to minority institutions under Article 30 of the Constitution of India. The petitioners also pray for quashing and setting aside the orders of the respondent refusing approval and seek a direction to the respondents to grant approval to the appointments as proposed.

10. This petition came up for hearing on 21-12-1982 on which date rule was issued together with rule on stay made returnable on 10-1-1983. When the petition came up for interim order on 14-2-1983 before the Bench of Ginwala and Jamdar, JJ., ad-interim stay in terms of clauses (iv), (v) and (vii) was granted on the petitioners furnishing a bank guarantee with respect to the salary, which would be paid to the teachers named in prayer clauses (v) and (vii). The said order was made on the undertaking given by the petitioners that the salary paid to the teachers would not be recovered from them by the petitioners in case the petition failed. Bank guarantee as directed has been furnished.

11. The petition came up for hearing before the Bench of V. A. Mohta and Dr. B. P. Saraf, JJ. The judgment of another Division Bench of this Court in Khan Abdul Hamid Abdul Razak (supra) was cited in support. The learned Judges constituting the Division Bench were of the view that subsequent Supreme Court judgments had taken different view and, therefore, the authority in Khan Abdul Hamid Abdul Razak (supra) was shaken and they found it difficult to agree with the view expressed by the Division Bench in Khan Abdul Hamid Abdul Razak (supra). The Division Bench opined that the controversy needs separate scrutiny and further detailed examination as the rights of the minorities to establish educational institutions of their choice and the laws enacted for the welfare of the backward classes both have laudatory objectives. Both, according to the Division Bench, can co-exist in perfect harmony. The Division Bench, therefore, directed that the matter be placed before the learned Chief Justice for referring the matter to a larger Bench so that the entire controversy can be examined uninhibited by the earlier judgments of this Court. That is how this Full Bench has been constituted to go into the matter in depth and decide the controversy.

12. In Sindhu Education Society vs. The State of Maharashtra and others (Writ Petition No. 2409 of 1981) two learned Judges of the Division Bench of this Honourable Court, V. A. Mohta, J. and H. W. Dhabe, J. differed in their views as to whether a provision made in the rules with regard to reservation in favour of backward classes could be enforced as against minority educational institutions. Mohta, J. took the view that even minority institutions were bound by the reservation policy referred to in the Rules as another guaranteed right under Article 15(4), having its roots in the national policies which are binding upon everybody; and limitations imposed by it had to be read in Article 30(1) of the Constitution. He was, therefore, inclined to dismiss the challenge in the petition to the rules. Dhabe, J. however, took the view that there was no fundamental right with regard to reservations and that the reservation envisaged by the rules was a statutory right which had to yield in a conflict with the absolute fundamental right guaranteed under Article 30(1) upon the minorities while Article 15(4) operates in the limited field of immunising against a challenge on the ground of discrimination for the advancement of backward classes. The learned Judge, was therefore inclined to allow the writ petition and direct the authorities not to enforce sub-rules (7), (8) and (9) of Rule 9 of the Rules framed as against minority institutions. In view of the differences between the two learned Judges, the following questions were framed and referred for the opinion of a third Judge.

"(1) Whether the right of linguistic or religious minorities "to establish and administer educational institutions of their choice" under Article 30(1) of the Indian Constitution is subject to the limitations placed by Article 15(4) dealing with the power of the State to make "any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes"?

(2)Whether the provisions of sub-rules (7), (8) and (9) of Rule 9 are violative of Article 30(1)?"

13. While the third Judge, Puranik, J. was seized of the matter, another Division Bench of this Court in Khan Abdul Hamid Abdul Razak (supra) expressed opinions which were exactly in terms of what Dhabe, J. had expressed. Consequently, Puranik, J. was of the view that he was bound by the Division Bench judgment in Khan Abdul Hamid Abdul Razak (supra) and agreed with the view of Dhabe, J. and answered the first" question referred to him in the negative and the second question in the affirmative.

14. Thus, we have Khan Abdul Hamid Abdul Razak (supra) and Sindhu Education Society (supra) both holding that minority run institutions cannot be subjected to reservation policy. It is only the doubt expressed by the Division Bench of this Court comprising V. A. Mohta and Dr. B. P. Saraf,JJ. that the issue needs to be looked at again in the light of certain Supreme Court judgments which has put the matter before us.

15. Before we proceed to consider what change, if any, has taken place as a result of subsequent Supreme Court judgments, we might usefully refer to the judgment of the learned Single Judge of this Court (Bharucha, J. as His Lordship then was) dated 30th October, 1984 in Writ Petition No. 1166 of 1980, Fr. Anthony Mendonca vs. The State of Maharashtra and others (1985 Mh.L.J. 148).

16. In Fr. Anthony Mendonca a public trust registered under the Bombay Public Trust Act which was running a Christian minority school for giving education to catholic children and others was called upon by the resolution of the State Government to implement Rule 57.4 of the Secondary Schools Code brought into force from 1979. The effect of the regulation was to require the managements of aided secondary school to make certain reservations in favour of backward classes. The learned Single Judge took the view that Article 30(1) guarantees the right of minorities to administer their educational institutions. The selection and appointment of teaching and non-teaching staff thereof is an important ingredient of the administration. The State can regulate the educational qualifications of teaching staff to ensure the high standard of the education imparted, but the amended rule and the circular are not regulatory in character but impinge upon the administrative autonomy guaranteed by Article 30(1). The learned Judge was, therefore, of the opinion, that the restriction was not valid even though the minority educational institution was aided. In this view of the matter, the learned Single Judge struck down the resolution in its application to the minority institution as infringing Article 30(1) of the Constitution.

17. In Rev. Sister Mary Damian and another vs. The Education Officer, Zilla Parishad, Nagpur and others, (Writ Petition 1770 of 1980 decided on 3rd February, 1981, per Tulpule and Padhye, JJ, also the same view was expressed by striking down the government resolution which compulsorily required the minority educational institutions to make reservations in the matter of admission of students as violative of the fundamental right guaranteed under Article 30(1) of the Constitution.

18. In Rev. Sidhrajabhai Sabbar and others vs. State of Gujarat and another, AIR 1963 SC 540, a Bench of six Judges of the Supreme Court was required to consider the validity of an order of the Government which required all private training colleges in the State of Bombay to reserve 60% of the seats for training Boards' school teachers nominated by the Government. This order was challenged before the Supreme Court. The Supreme Court observed that 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 sought to infringe the substance of that right under Article 30(1) would to that extent be void. This, however, was not to say that it was not open to the State to impose regulations upon the exercise of that right. The fundamental freedom was to establish and administer educational institutions; it was a right to establish and administer what was in truth educational institutions - institutions which cater to the educational needs of the citizens or sections thereof. It was pointed out that unlike Article 19, on which reasonable restrictions could be placed. 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. This, however, did not mean that it is not open to the State to impose regulations upon the excise of this right. The fundamental freedom is to establish and administer what are in truth educational institutions - institutions which cater to the educational needs of the citizens or sections thereof. The Supreme Court says :-

"Regulations made in the true interests of efficiency of instruction, discipline, health, sanitation, morality, public order and the like may undoubtedly be imposed. Such regulations are not restrictions on the substance of the right which is guaranteed; they secure the proper functioning of the institutions, in matters educational."

The Supreme Court indicated the philosophy behind the absolute fundamental freedom right granted to minorities under Article 30 in the following words:-

"15. The right established by Article 30(1) is a fundamental right declared in terms absolute. Unlike the fundamental freedoms guaranteed by Article 19 it is not subject to reasonable restrictions. It is intended to be a real right for the protection of the minorities in the matter of setting up of educational institutions of their own choice. The right is intended to be effective and is not to be whittled down by so-called regulative measures conceived in the interest not of the minority educational institutions, but of the public or the nation as a whole. If every order which while maintaining the formal character of a minority institution destroys the power of administration is held justifiable because it is in the public or national interest, though not in its interest as an educational institution the right guaranteed by Article 30(1) will be but a "teasing illusion", a promise of unreality. Regulations which-may lawfully be imposed either by legislative or executive action as a condition of receiving grant or of recognition must be directed to making the institution while retaining its character as a minority institution effective as an educational institution. Such regulation must satisfy a dual test - the test of reasonableness and the test that it is regulative of the educational character of the institution and is conducive to, making the institution an effective vehicle of education for the minority community or other persons who resort to it."

19. In Rev. Father W. Proost and others vs. The State of Bihar and others, AIR 1969 SC 465, a Five Member Bench of the Supreme Court took the view that the amplitude of Article 30(1) could not be whittled down by introducing into it considerations on which Article 29(1) was based. Article 30(1) is couched in wide language and must receive its full meaning and any attempt to whittle down the protection to the minorities thereunder could not be allowed.

20. In P. A. V. College, Julundur etc. vs. The State of Punjab and others, AIR 1971 SC 1737, the Supreme Court was called upon to examine the validity of a provision in a statute made in exercise of powers under an University Act. One of the provisions in the Act required that the staff initially appointed to the college should be approved by the Vice Chancellor and that all subsequent changes should be reported to the University for Vice Chancellor's approval and this was made a condition for affiliation. The Supreme Court held that there was no justification for this provision as it decidedly interfered with the rights of the management of the minority college. Consequently, it was held that such a provision cannot be made a condition of affiliation to the University, the non-compliance with which would involve disaffiliation. Consequently, those provisions were struck down as being violative of Article 30(1).

21. In judgment of the Supreme Court decided by a Bench of nine Judges in The Ahmedabad St. Xaviers College Society and another etc. vs. State of Gujarat and another, AIR 1974 SC 1389, Ray, C.J. for himself and Palekar, J. observed that the appointment of teacher was an important part in educational institutions. Qualifications and character of the teachers are really important. Right of minority institution to administer the institution 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. Regulations are, therefore, necessary to see that there are no divisive or disintegrating forces in the administration. Upholding the right of the State to impose regulations prescribing qualifications for the teachers, it was pointed out that in the right of administration, checks and balances in the shape of regulatory measures are required under the conditions of service. The right to administer is to be tempered with regulatory measures to facilitate smooth administration. The best administration would reveal no trace or colour of minority. A minority institution should shine in exemplary eclectism in the administration of the institution. The best compliment that can be paid to a minority institution is that it does not rest on or proclaim its minority character. Hence, it was held :

"Regulations which will serve the interests of the students, regulations which will serve the interests of the teachers are of paramount importance in good administration. Regulations in the interest of efficiency of teachers, discipline and fairness in administration are necessary for preserving harmony among affiliated institutions."

(Vide paragraph 31 )

The Supreme Court, therefore, was of the view that in the field of administration it was not reasonable to claim that minority institutions would have complete autonomy without any checks and balances and that checks on the administration might be necessary in order to ensure that the administration was efficient and sound so as to subserve the academic need of the institution. The right of a minority institution to administer its educational institution, involves, as a part of it, a correlative duty of good administration. Jaganmohan Reddy J.,speaking for himself and Alagiriswamy J., observed that the right of a linguistic or religious minority to administer educational institutions of their choice, though couched in absolute terms, is subject to regulatory measures which the State might impose for furthering the excellence of standards of education. Khanna, J. noted that the right of minorities to administer educational institutions did not prevent the making of reasonable regulation in respect of those institutions. Such regulations had necessarily to be made in the interest of the institution themselves as minority educational institution. They had to be so designed as to make the institution an effective vehicle for imparting education. The State .could prescribe regulations to ensure the excellence of the institution and the regulations made in the true interests of efficiency of instruction, discipline, health, sanitation, morality, public order and the like were not restrictions on the substance of the right to secure the proper functioning of the institution, in matters educational. Regulation which was designed to prevent maladministration of an educational institution could not be said to offend Article 30(1). But it had to be ensured that, under the garb of exercising the power to make regulations, nothing was done which would detract from the character of the institution as a minority educational institution or which would impinge upon the rights of the minorities to establish and administer educational institutions of their choice. A law which interfered with minorities' choice of qualified teachers was void as being violative of Article 30(1). It was of course permissible to prescribe the qualifications of teachers. But once the teachers possessing the requisite qualification were selected for their institution, the State would have no right to veto the selection of those teachers. The selection and appointment of teachers for an educational institution was one of the essential ingredients of the right to manage an educational institution and the minorities could not be denied such right of selection and appointment to infringe Article 30(1). Mathew, J. speaking for himself and Chandrachud, J. pointed out that recognition or affiliation creates an interest in the University to ensure that the educational institution is maintained for the purpose intended and any regulation which will subserve or advance that purpose will be reasonable and no educational institution established and administered by a religious or linguistic minority can claim recognition or affiliation without submitting to those regulations. That is the price of recognition or affiliation but this does not mean that it should submit to a regulation stipulating for surrender of a right or freedom guaranteed by the Constitution, which is unrelated to the purpose of recognition or affiliation. Such regulations will be permissible "if they are relevant to the purpose of securing or promoting the object of recognition or affiliation". There will be borderline cases where it is difficult to decide whether a regulation really subserves the purpose of recognition or affiliation. But, that does not affect the question of principle. It was therefore postulated that, in every case, when the reasonableness of a regulation comes up for consideration before the Court, the question to be asked and answered is whether the regulation is calculated to subserve or will in effect subserve the purpose of recognition or affiliation, namely, the excellence of the institution as a vehicle for general secular education to the minority community and to other persons who resort to it. "The question whether a regulation is in the general interest of the public has no relevance, if it does not advance the excellence of the institution as a vehicle for general secular education as, ex-hypothesis, 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. " (emphasis ours ). It was further pointed out in the said judgment that the right to choose the principal and to have the teaching conducted by teachers appointed by the management, after an overall assessment of their outlook and philosophy, was perhaps the most important facet of the right to administer an educational institution.

22. In The All Saints High School, etc. etc. vs. The Government of Andhra Pradesh and others etc. etc., AIR 1980 SC 1042, the Full Bench of Three Judges of the Supreme Court Y. V. Chandrachud, C.J., S. Murtaza Fazal Ali and P. S. Kailasam, JJ. delivered separate judgments but they were agreed on the basic principles. Chandrachud, J. held that the earlier decisions of the Supreme Court showed that though the rights of religious and linguistic minorities to establish and administer educational institutions of their choice could not be interfered with, it was permissible for the State to impose restrictions by way of regulations for the purpose of ensuring educational standards and maintaining excellence thereof. For maintaining educational standards of an institution it was necessary to ensure that it was competently staffed. Hence, rules made by the State which prescribe minimum qualifications, their pay scales and their conditions of service were held to be permissible measures of a regulatory character which advance the purpose for which the minority institutions were established. Fazal Ali, J. while dealing with the contents of Article 30(1) took the view that it enshrines, the fundamental right on the minority institutions to manage and administer their educational institutions. The State could make regulatory measures to promote the efficiency and excellence of educational standards and issue guidelines for the purposes of ensuring the security of the services of the teachers or other employees of the Institution. However, the State or the University could not under the garb of adopting regulatory measures tend to destroy the administrative autonomy of the institution or start interfering with the management of the institution so as to render the right of the administration of the management of the institution nugatory or illusory.

23. In St. Stepen's College etc. etc. vs. The University of Delhi, etc. "etc., AIR 1992 SC 1630 the issue came up for consideration of the Constitutional Bench of the Supreme Court. The majority view was taken by Kania M. H., K. Jagannath Shetty, F. Fatima Beevi and Yogeshwar Dayal, JJ. The Supreme Court was examining the question as to whether the St. Stephen's College, which was held to be a minority institution, was bound by the university circulars directing that the college should admit students on the basis of percentage of marks secured in qualifying examination. It may be mentioned here that the college gave preference to students belonging to the minority (Christians). The majority judgment observes :-

"In the first place, it may be stated that the State or any instrumentality of the State cannot deprive the character of the institution, founded by a minority community by compulsory affiliation since Article 30(1) is a special right to minorities to establish educational institutions of their choice. The minority Institution has a distinct identity and the right to administer with continuance of such identity cannot be denied by coercive action. Any such coercive action would be void being contrary to the constitutional guarantee. The right to administer is the right to conduct and manage the affairs of the institution. This right is exercised by a body of persons in whom the founders have faith and confidence. Such a management body of the institution cannot be displaced or recognised if the right is to be recognised and maintained. Reasonable regulations, however, are permissible but regulations should be of regulatory nature and not of abridgment of the right guaranteed under Article 30(1)."

The judgment holds that the minorities who are based on religion or language have a right to establish and administer educational institutions of their choice. The administration of educational institutions of their choice under Article 30(1) means "management of the institution". This management must be free from control so that the founder or their nominees can mould the institution as they think fit and in accordance with their ideas of how the interests of the community in general and the institution in particular will be best served. At the same time, the Supreme Court observed :-

".......the standards of education are not part of the management as such. The standard concerns the body politic and is governed by considerations or the advancement of the country and its people. Such regulations do not bear directly upon management although they may indirectly affect it. The State, therefore, has the right to regulate the standard of education and allied matters. Minority institutions cannot be permitted to fall below the standards of excellence expected of educational institutions. They cannot decline to follow the general pattern of education under the guise of exclusive right of management. While the management must be left to them, they may be compelled to keep in step with others." (vide para 55)

The Court, quoted with approval the observations of Khanna, J. in Ahmedabad St. Xaviers College Society (supra) and Mathew, J. in the same Judgment and the observations in Lily Kurian vs. Lewina, 1979(2) SCC 124, where it was emphasized :-

"Protection of the minorities is an article of faith in the Constitution of India. The right to the administration of institutions of minority's choice enshrined in Article 30(1) means 'management of the affairs' of the institution. This right is, however, subject to the regulatory power of the State. Article 30(1) is not a charter for maladministration; regulation, so that the right to administer may be better exercised for the benefit of the institution is permissible; but the moment one goes beyond that and imposes, what is in truth, not a mere regulation but an impairment of the right to administer, the Article comes into play and the interference cannot be justified by pleading the interests of the general public; the interests justifying interference can only be the interests of the minority concerned."

After referring to its own observations in Lily Kurian (supra), the majority judgment holds in paragraph 60 as under :-

"The right to administer does not include the right to maladminister. The State being the controlling authority has right and duty to regulate all academic matters. Regulations which will serve the interests of students and teachers, and to preserve the uniformity in standards of education among the affiliated institutions could be made. The minority institutions cannot claim immunity against general laws such as laws relating to law and order, health, hygiene, labour relations, social welfare legislations, contracts, torts etc. which are applicable to all communities. So long as the basic right of minorities to manage educational institution is not taken away, the State is competent to make regulatory legislation. Regulations, however, shall not have the effect of depriving the right of minorities to educate their children in their own institution. That is a privilege which is implied in the right conferred by Article 30(1)."

The Supreme Court held that the right to select students for admission was a part of administration and the impugned circular refusing permission for admission of girl students.in the boys minority school, crosses the barrier of regulatory measures and comes in the region of interference with the administration of the institution, a right which is guaranteed to the minority under Article 30(1). Thus, it was held that in view of the importance which the Constitution attaches to protective measures to minorities under article 30(1), the minority aided educational institutions are entitled to prefer their community candidates to maintain the minority character of the institutions subject of course in conformity with the University standard. The State may regulate the intake in this category with due regard to the need of the community in the area which the institution is intended to serve. But in no case such intake shall exceed fifty per cent, of the annual admission.

24. In N. Ammad vs. Manager, Emjay High School and others, (1998) 6 SCC 674, it was held that the minority educational institution would continue to be so irrespective of whether Government declared it as such or not Declaration by the Government is at best only a recognition of an existing fact. The Supreme Court reiterated the law laid down by the Constitutional Bench of Seven Judges in Kerala Education Bill, - 1957, Re.,AIR 1958 SC 956 and pointed out that the right guaranteed under Article 30(1) is a right that is absolute and any law or executive direction which infringes the substance of that right is void to the extent of infringement. But the absolute character of the right will not preclude making of regulations in the true interests of efficiency of instruction, discipline, health, sanitation, morality, public order and the like, as such regulations are not restrictions on the substance of the right guaranteed by the Constitution. It was held that the right to appoint a Headmaster was an important facet of the right of administration as the Headmaster is the key post in the running of the school. He is the hub around which all the spokes of the school revolve to generate result. Consequently, it was held that the restriction on the choice of the Headmaster amounted to an infringement of the fundamental right guaranteed under Article 30(1).

25. Thus, we see that right from the Kerala Education Bill (supra) to Sidhrajbhai (supra) to St. Xaviers College (supra) to St. Stephen's College (supra), to N. Ammad (supra) the law has been enumerated to the following effect:-

(a) the fundamental right guaranteed under Article 30(1) is absolute and not subject to reasonable restrictions as under Article 19.

(b) Notwithstanding the absolute character of the fundamental right under Article 30(1), it is permissible for the State to make regulations in the interest of efficiency, instruction, discipline, health, sanitation, morality, public order and the like; such regulations are not restrictions on the substance of the right guaranteed by the Constitution, but are intended to advance that right;

(c) the right of selection of the head of the minority education institution or teachers therein or the right of admission of students thereto is facet of right to administer the minority educational institution. Consequently, any restriction thereupon would impinge on the fundamental right guaranteed under Article 30(1).

26. In the light of these principles it appears to us that the judgment in Khan Abdul Hamid Abdul Razak (supra) is wholly unexceptionable. In fact, Khan Abdal Hamid Abdal Razak echoes and follows the observations of Shah, J. of the Supreme Court in Rev. Sidhrajbhai Sabbar (supra), which are not only not doubted but reiterated and reemphasised right through to N. Ammad (supra). Khan Abdul Hamid Abdul Razak (supra) was also followed by the judgment in Rev. Sister Father Mary W. Proost and others vs. The State of Bihar and others (supra) and Rev. Sister Mary Damian (supra), both in the same light. We would have thought that the matter required no further debate. Mr. Bhushan, learned Government Pleader raised an interesting argument and in fairness to him we need to deal with the merit of that contention.

28. Drawing inspiration from the observations made in Kerala Education Bill (supra) (vide paragraph 10), the learned Government Pleader contended that the Supreme Court has recognised the power of the State to take regulatory measures in the interest of efficiency and instructions, health, hygiene, sanitation, law and order or social and welfare measures and apply them to institutions run by minorities. It has been held by the Supreme Court, that such measures do not infringe the fundamental right guaranteed under Article 30(1). Our attention was drawn to observations in paragraphs 174 and 177 of the judgment (Mathew, J.) in St. Xaviers College (supra). It was contended that the general rule of the Constitution against discrimination contained in Article 14 is subject to exception in favour of backward classes. It is pointed out that Article 16(4)and Article 16(4A) are not merely recognised as exceptions to the rule of non-discrimination in Article 16, but have been recognised as independent facets of the fundamental right guaranteed under Article 16. It is contended that Article 16(4) read with Article 46 of the Constitution creates a positive fundamental right in favour of backward classes and if the State legislates in furtherance of these positive fundamental rights there would arise a conflict between such a fundamental right and the fundamental right guaranteed under Article 30(1). In such circumstances, the Court must balance the conflict between the two fundamental rights, both equally guaranteed under the Constitution, in such a way that the interest of society at large is advanced and the philosophy of the Constitution is subserved. Reference was also made to the minority judgment (vide para 31) of Kasliwal, J. in St. Stephen's College (supra).

29. We are afraid that the issue is really not res Integra. It is true that in some of the judgments of the Supreme Court the view was expressed that Article 16(4) was a condition or facet of the fundamental right under Article 16, but the issue has now been set to rest by the judgment of the Supreme Court in Indra Sawhney etc. etc. vs. Union of India and others etc. etc., AIR 1993 SC 477. One of the issues raised before the Supreme Court was, "whether clause (4) of Article 16 is an exception to clause 16(1)?" In paragraph 57 this question is answered and it is pointed out that the view that Article 16(4) is an exception to Article 16(1) articulated in Balaji, AIR 1963 SC 649 and following it in Devadasan, AIR 1964 SC 179 was shaken the majority decision in State of Kerala vs. N. M. Thomas, AIR 1976 SC 490. The majority judgment in Stale of Kerala vs. N. M. Thomas (supra) took the view that Article 16(1) being a facet of the doctrine of equality enshrined in Article 14 permits reasonable classification just as Article 14 does. The Supreme Court approved the view taken in Thomas by observing as follows:-

"We too believe that Article 16(1) does permit reasonable classification for ensuring attainment of the equality of opportunity assured by it. For assuring equality of opportunity, it may well be necessary in certain situations to treat unequally situated persons. unequally. Not doing so, would perpetuate and accentuate inequality. Article 16(4) is an instance of such classification, put in to place the matter beyond controversy. The "backward class of citizens" are classified as a separate category deserving a special treatment in the nature of reservation of appointments/posts in the services of the State. Accordingly, we hold that clause (4) of Article 16 is not exception to clause (1) of Article 16. It is an instance of classification implicit in and permitted by clause (1)........ Indeed, even without clause (4), it would have been permissible for the State to have evolved such a classification and made a provision for reservation of appointments/posts in their favour. Clause (4) merely puts the matter beyond any doubt in specific terms."

30. The Constitutional Bench of the Supreme Court, had occasion to go into this issue once again in a recent judgment in Ajit Singh and others (II) vs. State of Punjab and others, (1999) 7 SCC 209. The Supreme Court noticed the language used in Article 16(4) and 16(4-A) and held that there was a marked difference in the language employed in Article 16(1) on the one hand and Article 16(4) and Article 16(4-A) on the other and, therefore, there is no directive or command in Article 16(4) or Article 16(4-A) as in Article 16(1). On the face of it, the above language in each of Articles 16(4) and 16(4-A) is in the nature of an enabling provision and it has been so held in judgments rendered by Constitution Benches and in other cases right from 1963." The Supreme Court pointed out that in Rajendran vs. Union of India, AIR 1968 SC 507, a Five Judge Bench has held that Article 16(4) was only an enabling provision, that Article 16(4) was not a fundamental right and that it did not impose any constitutional duty. It only conferred a discretion on the State. This principle is reiterated in P & T Scheduled Caste/Tribe Employees' Welfare Assn. (Regd.) vs. Union of India, (1988) 4 SCC 147 and State Bank of India Scheduled Caste/Tribe Employees' Welfare Assn. vs. State Bank of India, (1996) 4 SCC 119 and that as long back as in 1963 in M. R. Balaji vs. State of Mysore, AIR 1963 SC 649, decided by a Bench of Five learned Judges the Court had said the same thing in connection with Article 15(4) and Article 16(4) that they were merely enabling provisions and did not impose an obligation on the State. In Ajit Singh (supra) the Supreme Court also negatived the argument that Articles 16(4) and 16(4-A) conferred a power coupled with the duty on the State and that it would be permissible to enforce such a duty by issuing a writ of mandamus by relying on the observations in Rajendran (supra). The observations in Indra Sawhney (supra) made by Jeevan Reddy, J. about how the fundamental right of the citizens as declared in Article 16(4) had to be balanced against the claim of reserved candidates under Article 16(4) was reiterated in Indra Sawhney (supra). Says the Supreme Court, (vide paragraph 94A) in Indra Sawhney (supra) :-

"It needs no emphasis to say that the principle aim of Articles 14 and 16 is equality and equality of opportunity and that clause (4) of Article 16 is but a means of achieving the very same objective. Clause (4) is a special provision though not an exception to clause (1). Both the provisions have to be harmonised keeping in mind the fact that both are but the restatements of the principle of equality enshrined in Article 14. The provisions under Article 16(4) conceived in the interest of certain sections of society - should be balanced against the guarantee of equality enshrined in clause (1) of Article 16 which is a guarantee held out to every citizen and to the entire society. " (Emphasis supplied)

31. Faced with these observations, the learned Government Pleader gracefully conceded that it may not be possible for him to support the contention that Article 16(4) creates a fundamental right, which could be enforced against the State. Thus, we come back to the situation which was envisaged by Dhabe, J. in Sindha Education Society (supra). There is an enforceable fundamental right couched in absolute terms, guaranteed in favour of minority institutions. There is a discretion left - not an obligation in the State to make reservations in favour of backward classes of citizens. Even if we were to accept the principles of balancing, as canvassed by the learned Government Pleader, we have no doubt, that in a conflict between a recommendatory principle of nature of Article 16(4), which has been expressly held not to be enforceable and not creating an obligation on the State, and a guaranteed fundamental right couched in absolute terms, the latter must prevail. To that extent, therefore, the Judgment Sindhu Education Society correctly lays down the law.

32. Mr. Bhushan,learned Government Pleader, relied upon the observations of the Supreme Court in N. Ammad (supra) and sought to derive a negative proposition therefrom. He contended that in N. Ammad (supra) the Supreme Court has emphasised the right of a headmaster and taken a view that the appointment of a headmaster was an integral part of the power of management of the minority institution. Conversely, he contends that, with regard to other teachers, the situation would not be so. There are two difficulties in accepting the argument of the learned counsel. In the first place, as observed by Lord Chancellor Halsbury in Quinn vs. Leathem, H.L.(I),1901 495, a judgment is an authority for what it decides and not for any proposition which may flow from it logically. As far as the judgment in N. Ahmed (supra) is concerned, the Supreme Court was concerned only with the power of appointment of headmaster and not of other teachers. It is, therefore, not possible to accept that the Supreme Court has held in N. Ammad (supra) that with regard to other teachers, the power of appointment was not an integral facet of the guaranteed fundamental right, under Article 30(l). Secondly, we are of the view that considering the reason why Article 30(1) has been enacted, the power of appointment of every teacher, from the junior most to the principal/headmaster, must be considered to be an integral facet of the power of administration of a minority institution guaranteed under Article 30(1). In this connection, we may point out that in St. Xaviers College (supra) the Supreme Court was considering a law which interfered with minorities choice of qualified teacher or its disciplinary control over the teachers and other staff and in terms observed that such a law would be void as violative of Article 30(1).

33. Mr. Bhusan, learned Government Pleader, fairly informed us that the issue as to whether reservations could be enforced in minority run institutions was referred for the advice and opinion of the Minority Commission and the Minority Commission was also of the opinion that the institutions run by minorities could not be compelled to make reservation in favour of backward class candidates. This advice/opinion of the Minorities Commission is not binding on us, but we take note that even the Minorities Commission has said the same thing that the Supreme Court has said.

34. One last contention of the learned Government Pleader needs to be dealt with before parting. The learned Government Pleader contended that the Supreme Court judgments, right from Kerala Education Bill through Sidhrajbhai down to the year 2000 have upheld the power of the State to make regulations "for social welfare measures". He contends that reservations in favour of backward classes is certainly of national importance and a social welfare measure. We have already pointed out that a measure, even if salutary or of paramount importance, cannot be upheld if it conflicts with the guaranteed fundamental right under Article 30(1), unless it is intended to directly or indirectly advance the right guaranteed under Article 30(1). That is the crux of the text repeatedly laid down by the Supreme Court from Kerala Education Bill through Sidhrajbhai till N. Ammad. However necessary, important, or salutary the principle of reservation may be, and however enshrined it may be in the Constitution of our country, we are unable to hold that is a measure intended to advance the interests of the minorities and the fundamental right granted to them and guaranteed under Article 30(1) of the Constitution of India. We are, therefore, unable to accept the contention of the learned Government Pleader.

35. In the result, we are of the view that the Sindhu Education Society Judgment by Dhabe, J. and Puranik, J. and Fr. Anthony Mendonca and Rev. Sister Mary Damian (supra) lay down the law correctly. Even after giving our utmost careful attention to the contentions raised by the learned Government Pleader and carefully considering the subsequent judgments of the Supreme Court cited at the bar, we are unable to hold that there is any need to reconsider or review the law laid down by this Court in the aforesaid Judgments we have approved of.

36. In our judgment, the petitioner, being a minority institution, cannot be directed to appoint teachers or other staff on the basis of the reservation policy followed by the State as evidenced in rules 9(7) to 9(10) of the Maharashtra Employees of Private Schools (Conditions of Services) Rules, 1981. We therefore hold that the said rules 9(7) to 9(10), if applied to the petitioner, would violate the fundamental right guaranteed to the petitioner as a minority institution under Article 30(1). Hence, we allow the writ petition.

37. When we come to the reliefs, we note that the learned counsel for the petitioners does not press for prayer (i). In the result, rule is made absolute in terms of prayers, (iii),(v),(vi) and (vii). The Bank Guarantee given shall stand discharged.

38. Rule accordingly made absolute. No order as to costs.

Petition allowed.