N Writ Petition Civil Nos
4588 89 of 1983
Under Article 32 of the Constitution of India
FS Nariman Jose P Vergheese and US Prasad for the Petitioners
Jai Narain and Pramod Swarup for the Respondents
The Judgment of the Court was delivered by SINGH J
These petitions under Article 32 of the Constitution of India challenge the constitutional validity of the Bihar Non Government Secondary Schools taking over of Management and Control Act 1981 Bihar Act No 33 of 1982 on the ground that the provisions of the Act are violative of Article 30 of the Constitution
All Bihar Christian Schools  Association petitioner No 1 is a religious minority society registered under the Societies Registration Act
Petitioner No 2 Sister Marianne SCN is the Secretary cum Treasurer of petitioner No 1
The aims and objects of the All Bihar Christian Schools  Association are to promote education including science literature fine arts and libraries according to Christian ideals in the interest of national development to foster moral and spiritual values in education to assist and strengthen the work of Christian 53 schools in Bihar to promote the welfare of teachers and other staff of the member institutions
The petitioner association has set up a number of secondary schools in the State of Bihar which are managed and administered by the Christian diocesessocieties and these institutions are recognised by the Education Department of the State of Bihar
The petitioners aver that they have fundamental right under Article 30 of the Constitution to administer the institutions established by them according to their choice and no interference in the administration of the educational institution is permissible under the Constitution
The petitioners alleged that the provisions of the Bihar Non Government Secondary Schools taking over of Management and Control Act 1981 hereinafter referred to as the Act make serious inroad on the petitioners  right to establish and administer educational institutions of their choice
They have challenged constitutional validity of the provisions of the Act and particularly the provisions contained in Section 3 and Section 18 of the Act which according to them interfere with their fundamental right guaranteed by Article 30 1 of the Constitution
In the State of Bihar a number of private secondary schools were established and managed by private individuals or societies
The State Government considered it necessary to take over the management and control of the Non Government Secondary Schools for better organisation and development of secondary education of the State
It promulgated an ordinance on 1181980 as the Bihar Non Government Secondary Schools Taking over of Management and Control First ordinance
This ordinance was later on replaced by another Bihar ordinance No 74 of 1981 on 2241981
The State legislature converted the ordinance into the Bihar Non Government Secondary Schools Taking over of Management and Control Act 1981
The Act as indicated by the preamble is to provide for the taking over or management and control of the Non Government Secondary Schools by the State Government for improvement better organisation and development of Secondary Education in the State of Bihar
Non Government Secondary School as defined by Section 2 means a secondary school recognised as such by the Bihar Secondary Education Board Act 1976 and the Bihar Secondary Board Second amendment ordinance 1980
Secondary School means a secondary school whose management and control has been taken over by the State Government under Section 3 of the Act Minority Secondary School as defined by Section 2 c means a secondary school established by a minority community based either on religion or language and managed by the minority community 54 and declared and recognised as minority school by the State Government
Section 3 provides for taking over of the management and control of recognised Non Government secondary schools by the State Government
Sub section 1 lays down that all recognised nongovernment secondary schools other than the minority secondary schools based on religion or language shall be deemed to have been taken over by the State Government with effect from October 2 1980
Sub section 2 provides that the State Government may by notification in the official gazette from a specified date take over the management and control of a recognised minority secondary school if the managing committee of the secondary school voluntarily makes an unconditional offer to hand over the school with all moveable or immovable assets and properties owned or possessed by the school
Section 4 provides for the consequences which ensue on the taking over of management and control of non government secondary schools by the Government
It provides that on the taking over of the management and control of the non government secondary schools by the Government all the movable and immovable assets and 1 properties owned and possessed by secondary schools including land building documents books and registers shall stand transferred to the State Government and deemed to have come into its possession and ownership
The services of every Headmaster teacher or other employees of the school taken over by the State Government shall be deemed to have been transferred to the State Government with effect from the date of taking over the school and they become employees of the State Government The age of superannuation of Headmasters teachers and other employees of the schools taken over by the State Government shall be 58 years
However other terms and conditions of their services shall continue to be the same as they existed prior to taking over of the management and control of the school until alteration is made by the State Government
Section S provides that the management and control of the nationalised schools shall be under the Director and his subordinate officers in the manner as prescribed by the State Government
The management of every secondary school shall be under a committee constituted in accordance with the provisions of Section 6 of the Act
Section 7 enumerates powers and functions of the Managing Committee
Section 8 prescribed duties of the Headmaster
Section 9 provides that the service conditions of the Headmaster teachers and non teaching staffs of the nationalised secondary schools shall be determined by the State Government
Section 10 provides for the establishment of a School Service Board a corporate body having perpetual succession and common seal
Its Chairman and the members shall be appointed 55 by the State Government
The Board is empowered to make recommendations for appointment or promotion of Headmasters and teachers of nationalised secondary schools to the Director of Education
Section 11 creates a District Secondary Education Fund Section 12 provides that the fund shall be used for payment of salary and allowances to the Headmaster teachers and other employees of schools including the minority secondary schools and grants for other expenditure of schools
Section 14 provides for the constitution of a Secondary Education Committee for making recommendation to the State Government on the questions relating to the taking over of management of the secondary schools their improvement and upgradation
Section 15 confers power on the State Government to make rules for carrying out the purposes of the Act
Every rule made under this provision is required to be laid before both the Houses of the State Legislature
Section 17 provides for interim arrangement before taking over management and control of Non Government Secondary Schools
Section 18 provides for the recognition of minority secondary schools
Under this provision a minority secondary school already declared a minority school under the provisions of Bihar Secondary Education Board Act 1976 shall be deemed to have been recognised under the provisions of the Act
It further provides that the State Government may by notification recognise a minority secondary school if the same has been established by a minority community on the basis of religion or language for the purposes of meeting the educational requirement and for the protection of culture of their section provided it fulfils conditions prescribed for recognition
A minority secondary school shall be accorded recognition if it is managed and controlled in accordance with the provisions set out in Clauses a to k of Section 183
It requires every minority secondary school to have a managing committee and written bye laws
The managing committee is required to appoint teachers with the concurrence of the School Service Board The managing committee shall prescribe rules regarding the service condition of teachers based on natural justice and prevailing law and it shall have powers to remove dismiss terminate or discharge a teacher from service with the approval of School Service Board
The managing committee shall charge only such fees from the students as are prescribed by the State Government
No higher fees shall be charged unless prior approval of the State Government is obtained
The scheme of the Act as analysed shows that the State Government has taken over non Government secondary schools
After the take over the management and control of the secondary 56 schools shall be carried on in accordance with the provisions of the Act by a managing committee constituted in accordance with the provisions of the Act
All employees including teachers working in the non Government secondary schools have become employees of the State Government
Future appointment in the secondary schools shall be made on the recommendation made by the School Service Board
Prior to the take over under this Act it appears that there were five classes of secondary schools functioning in the State of Bihar they were i non Government secondary schools maintained and established and administered by private individuals and societies ii secondary schools established and managed by minorities community and recognised as minority schools by the State Government iii proprietory secondary schools established and maintained entirely by trusts associations or a corporate bodies declared as proprietory schools by the State Government iv centrally sponsored secondary schools established or managed by Government of India or an undertaking owned or controlled by Government of India or by any department of State Government and recognised by the Education Department of the State Government and Iv autonomous secondary schools residential schools recognised by the State Government imparting education in accordance with curriculum prescribed for secondary schools and under the Rules approved by the State Government
All these five categories of secondary schools had been imparting education to students in the State of Bihar
While the impugned Act provides for taking over the management and control of the non government secondary schools the management and control of the remaining categories of schools have not been taken over
Although the Act contains provisions for taking over of other secondary schools if and when circumstances as contemplated by the Act are found to exist but so far as minority secondary schools are concerned the Act does not provide for any compulsory acquisition or taking over of the management and control of such schools
The management and control of non government secondary schools taken over by the State under Section 3 of the Act are required to be carried on in accordance with the provisions contained in Section S to 17 of the Act
So far as minority secondary schools are concerned under section 18 contained special provisions for their recognition and management
Learned counsel for the petitioners contended that the provisions of the Act directly interfere with the management and control of the Christian minority schools
He urged that Section 32 of the Act which provides for the taking over of minority secondary schools 57 by the Government interferes with the petitioners  fundamental right under Article 301 of the Constitution The learned counsel further submitted that provisions of Section 182 are violative of Articles 30 and 14 of the Constitution of India
The learned counsel further urged that clauses a to k of Section 183 of the Act interfere with the management of the minority secondary schools in violation of Article 30 1 of the Constitution
On behalf of the State of Bihar it was urged that the State Government has no intention to interfere with the fundamental rights of the minority community to establish schools of its choice
The provisions of the impugned Act are directed to ensure academic excellence and good management
The managements of the minority institutions have been given free hand in managing their institutions but in order to maintain educational excellence and discipline in their institutions regulatory provisions have been made in Section 18 of the Act and the purpose of regulatory provisions is to ensure that the minority schools are managed by properly constituted managing committees that the members of the staff of the minority institutions are paid proper salaries their security of service is ensured and in the matter of taking disciplinary action the managing committees should conform to the principles of natural justice
It was further urged that these provisions have been made with a view to safeguard the interest of the minority institutions themselves
Before we advert to the submissions raised by the parties we think it necessary to consider the ambit and scope of Article 30 of the Constitution It read as under 30
Right of minorities t o establish and administer educational institutions 1 All minorities whether based on religion or language shall have the right to establish and administer educational institutions of their choice
1A In making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority referred to in clause 1 the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause
2 The State shall not in granting aid to educational 58 institutions discriminate against any educational institution on the ground that it is under the management of a minority whether based on religion or language
 In plain terms Article 301 protect the right of the minorities whether based on religion or language to establish and administer educational institutions of their choice
The Article confers a fundamental right on the minorities to protect their interest
Clause 1A provides that the Legislature while making law for compulsory acquisition of property of any minority educational institution shall ensure that the amount of compensation paid for the acquisition of property is such as would not restrict or abrogate the right guaranteed under Clause 1 of Article 30
Clause 2 of Article 30 enjoins the State not to discriminate a minority institution in granting aid to educational institutions on the ground of it being a minority institution whether based on religion or language
The content and scope of Article 301 of the Constitution has been considered by this Court in detail in a number of cases
In Re
The Kerala Education Bill 1957 1959 SCR 995 this Court construed Article 301 of the Constitution of India and held as under The first point to note is that the Article gives certain rights not only to religious minorities but also to linguistic minorities
In the next place the right conferred on such minorities is to establish educational institutions of their choice
It does not say that minorities based on religion should establish educational institutions for teaching religion only or that linguistic minorities should have the right to establish educational institutions for teaching their language only
What the Article says and means is that the religious and the linguistic minorities should have the right to establish educational institutions of their choice
Pages 1052 1053 
The next thing to note is that the Article in terms gives all minorities whether based on religion or language two rights namely the right to establish and the right to administer educational institutions of their choice
page 1053   Considering the extent of State s power to regulate educational standards service conditions and discipline in the minority institutions the Court observed We have already observed that Article 301 gives two 59 rights to the minorities i to establish and ii to administer educational institutions of their choice
The right to administer cannot obviously include the right to maladministration
The minority cannot surely ask for aid or recognition for an educational institution run by them in unhealthy surroundings without any competent teachers possessing any semblance of qualification and which does not maintain even a fair standard of teaching or which teaches matters sub versive of the welfare of the scholars
It stands to reason then that the constitutional right to administer an educational institution of their choice does not necessarily militate against the claim of the State to insist that in order to grant aid the State may prescribe reasonable regulations to ensure the excellence of the institutions to be aided   In Rev Sidhajbhai Sabhai and others vs State of Bombay  a Constitution Bench of this Court observed All minorities linguistic or religious have by Article 30 l 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 301 would to that extent be void
This however is not to say that it is not open to the State to impose regulations upon the exercise of this right
The fundamental freedom is to establish and to administer educational institutions it is a right to establish and administer what are in truth educational institutions institutions which cater to the educational needs of the citizens or sections thereof
Regulation made in the true interests of efficiency of instruction discipline health sanitation morality public order and the like may undoubtedly be imposed
Such regulations are not restrictions on the substance of the right which is guaranteed they secure the proper functioning of the institution in matters educational Underlining by us In State of Kerala vs Very Rev Mother Provincial  a Constitution Bench of this Court again considered the extent of the minorities  right with regard to the management of the affairs of the 60 institution
The Bench held that the management must be free of control so that the founders or their nominees can mould the institution as they think fit and in accordance with their ideas as to how the interests of the community in general and the institution in particular will be best served The right of management cannot be taken away and vested in another body as that would be encroachment upon the guaranteed right
This right is however not an absolute right
It is open to the State to regulate the syllabus of the examination and discipline in the institution and allied matters
Hidayatullah CJ speaking for the Court observed There is however an exception to this and it is that the standards of education are not a part of management as such
These standards concern the body politic and are dictated by considerations of the advancement of the country and its people
Therefore if universities establish syllabi for examinations they must be followed subject however to special subjects which the institutions may seek to teach and to a certain extent the State may also regulate the conditions of employment of teachers and the health and hygiene of students
Such regulations do not bear directly upon management as such although they may indirectly affect it
Yet the right of the State to regulate education educational standards and allied matters cannot be denied
The minority institutions cannot be allowed to fall below the standards of excellence expected of educational institutions or under the guise of exclusive right of management to decline to follow the general pattern
While the management must be left to them they may be compelled to keep in step with others
These propositions have been firmly established in State of Bombay vs Bombay Education Society The State of Madras vs section C Dorairajan In re the Kerala Education a Bill 1957 Sidharajbahi vs State of Gujarat Katra Education Society vs State of UP  Ors
Gujarat University Ahmedabad vs Krishna Ranganath Mudholkar  Ors
and Rev Father W Proost  Ors
vs State of Bihar
In the last case it was said that the right need not be enlarged nor whittled down
The Constitution speaks of administration and that must fairly be left to the minority institutions and no more Underlining by us The scope of Article 301 of the Constitution of India was 61 again considered by a nine Judges Constitution Bench of this Court in the Ahmedabad St Xavier s College Society  Anr etc
vs State of Gujarat  Anr
  Ray CJ Observed thus The minority institutions have the right to administer institutions
This right implies the obligation and duty of the minority institutions to render the very best to the students
In the right of administration checks and balances in the shape of regulatory measures are required to ensure the appointment of good teachers and their conditions of service
The right to administer is to be tempered with regulatory measures to facilitate smooth administration
The best administration will reveal no trace or colour of minority A minority institution should shine in exemplary eclecticism 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
Regulations which will serve the interest 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 Pages 196 197          
In the field of administration it is not reasonable to claim that minority institutions will have complete autonomy
Checks on the administration may be necessary in order to ensure that the administration is efficient and sound and will serve the academic needs of the institution
The right of a minority to administer its educational institution involves as part of it a correlative duty of good administration
Page 200 Underlining by us Mathew J discussing what type of action by the State would amount to the abridgement of the right guaranteed under Article 301 of the Constitution of India observed at pages 265 266 thus The application of the term abridge  may not be 62 difficult in many cases but the problem arises acutely in certain types of situations
The important ones are where a law is not a direct restriction of the right but is designed to accomplish another objective and the impact upon the right is secondary or indirect
Measures which are directed at other forms of activities but which have a secondary or direct or incidental effect upon the right do not generally abridge a right unless the content of the right is regulated
As we have already said such measures would include various types of taxes economic regulations laws regulating the wages measures to promote health and to preserve hygiene and other laws of general application
By hypothesis the law taken by itself is a legitimate one aimed directly at the control of some other activity
The question is about its secondary impact upon the admitted area of administration of educational institutions
This is especially a problem of determining when the regulation in issue has an effect which constitutes an abridgement of the constitutional right within the meaning of Article 132
In other words in every case the court must undertake to define and give content to the word abridge  in Article 1321
The question to be asked and answered is whether the particular measure is regulatory or whether it crosses the zone of permissible regulation and enters the forbidden territory of restrictions or abridgement
So even if an educational institution established by a religious or linguistic minority does not seek recognition affiliation or aid its activity can be regulated in various ways provided the regulations do not take away or abridge the guaranteed right
Regular tax measures economic regulations social welfare legislation wage and hour legislation and similar measures may of course have some effect upon the right under Article 30 l
But where the burden is the same as that borne by others engaged in different forms of activity the similar impact on the right seems clearly insufficient to constitute an abridgement
If an educational institution established by a religious minority seeks no recognition affiliation or aid the state may have no right to prescribe the curriculum syllabi or the qualification of the teachers
 In Lilly Kurian vs Sr Lewine  Ors 1979  SCR 820 another Constitution Bench of this Court considered the scope ambit and the 63 nature of right of linguistic and religious minorities under Article 301 of the Constitution
AP Sen J speaking for the Court held thus  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 301 means management of affairs  of the institution
This right is however subject to the regulatory power of the State
Article 301 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 in the interference cannot be justified by pleading the interest of the general public the interests justifying interference can only be the interest of the minority concerned
 In view of these decisions it is now well settled that minorities based on religion or language have fundamental freedom to establish and manage educational institutions of their own choice but the State has right to provide regulatory provisions for ensuring educational excellence conditions of employment of teachers ensuring health hygiene and discipline and allied matters
Such regulatory provisions do not interfere with the minorities  fundamental right of administering their educational institutions instead they seek to ensure that such institution is administered efficiently and that students who come out of minority institution after completion of their studies are well equipped with knowledge and training so as to stand at par in their avocation in life without any handicap
If regulatory provisions indirectly impinge upon minorities  right of administration of their institution it would not amount to interference with the fundamental freedom of the minorities as the regulatory provisions are in the interest of the minority institutions themselves
If the minority institution seeks affiliation or recognition from the State or Education Board the State has the right to prescribe syllabi and terms and conditions for giving such affiliation or recognition or extending grants in aid
Minority institutions may be categorised in three classes i educational institutions which neither seek aid nor recognition from the State ii institutions that seek aid from the State and iii educational institutions which seek recognition but not aid
Minority institutions which fall in the first category 64 are free to administer their institution in the manner they like the State has no power under the Constitution to place any restriction on their right of administration This does not mean that an unaided minority institution is immune from operation of general laws of the land
A minority institution cannot claim immunity from contract law tax measures economic regulations social welfare legislation labour and industrial laws and similar other measures which are intended to meet the need of the society But institutions falling within the second and third categories are subject to regulatory provisions which the State may impose It is open to the State to prescribe conditions for granting recognition or disbursing aid
These conditions may require a minority institution to follow prescribed syllabus for examination
courses of study they may further regulate conditions of employment of teachers discipline of students and allied matters
The object and purpose of prescribing regulations is to ensure that minority institutions do not fall below the standard of excellence expected of an educational institution and that they do not fall outside the main stream of the nation
A minority institution must also be fully equipped with educational excellence to keep in step with others in the State otherwise the students coming out of such institutions will not be fully equipped to serve the society of the nation
While the State has every right to prescribe conditions for granting recognition or disbursing aid it cannot under the guise of that power prescribe onerous conditions compelling the minority institution to surrender their rights of administration to the Government
On the one hand the State is under an obligation to ensure that educational standards in the recognised institutions must be according to the need of the society and according to standards which ensure the development of personality of the students in turning out to be civilized useful members of the society and to ensure that the public funds disbursed to the minority institutions are properly utilised for the given purpose
On the other hand the State has to respect and honour minority rights under Article 301 in the matter of establishing and carrying of administration of institution of their choice
In order to reconcile these two conflicting interests the State has to strike a balance and statutory provisions should serve both the objects and such statutory provisions have to withstand the test of Article 301 of the Constitution
These principles have to be borne in mind in considering the question of validity of statutory provisions relating to minority educational institutions
Since the petitioners challenge the Constitutional validity of Sections 3 and 18 of the Act we consider it necessary to reproduce the same
65 3
Taking over of the management and control Taking over of the management and control of Non Government secondary schools by the state government 1 All non government secondary schools other than the minority secondary schools based on religion or language declared as such by the State Government and Centrally sponsored autonomous and proprietary secondary schools recognised by the State Government recognised permanently provisionally or partially by the Board of Secondary Education under the Bihar Secondary Education
Board Act 1976 Bihar Act 25 of 1976 and the Bihar Secondary Education Board Second amendment ordinance 1980 Bihar ordinance No 82 of 1980 shall notwithstanding anything contained in the said Act or the said ordinance be deemed to have been taken over by the State Government with effect from the 2nd October 1980
2 The State Government may by notification in the official gazette from a specified date take over the management and control of such recognised minority or proprietary or autonomous secondary schools the managing committee trust association or corporate body of which voluntarily makes an unconditional offer to make over the schools with all movable or immovable assets and properties owned or possessed by the school which include land building documents books and registers also
The State Government may lay down its conditions for taking over management and control of schools and before making over the management and control it shall be binding for the managing committee trust association or corporate body of the said schools to comply with and carry out the said conditions and it shall be valid
3 The State Government may by notification in the official gazette take over the management and control of such schools and on such terms and conditions as the government may deem proper which have already received permission of establishment from the Bihar Secondary Education Board or of such schools imparting Secondary Education which have applied for permission of establish 66 ment to the said Board immediately before the date of promulgation of this Act and the utility of such school is proved in the eye of the government and which fulfil within 3 years of the promulgation of the ordinance the conditions lay down by the State Government with regard to land building furniture equipments and enrollment
The qualification and suitability of teachers working against 9 posts of the school one clerk and two orderlies of such school before the promulgation of this ordinance shall be examined by a Committee constituted by the State Government for the purpose and if found suitable for appointment in government service they shall be appointed in the government service along with taking over the management and control of the school  Section 18 Recognition of minority Secondary schools 1 The schools declared a minority school under the provision of the Bihar Secondary Education Board Act 1976 Bihar Act 25 1976 and the Bihar Secondary Education Board Second Amendment ordinance 1980 Bihar ordinance 82 of 1980 shall be deemed to have been recognised under the provisions of this Act
2 The State Government may by notification recognise as a minority secondary school such secondary school which has been established by a minority community on the basis of religion or language for the purposes of meeting the educational requirement and for the protection of culture of their section and which fulfils the prescribed condition of recognition
3 The minority Secondary school accorded recognition under sub sections 1 and 2 shall be managed and controlled under the following provisions a Every minority secondary school shall have a managing committee registered under the societies registration Act 1862 and shall have written bye laws regarding its constitution and function b According to the prescribed qualification laid down 67 by the State Government for the teachers of the nationalised secondary schools and within the number of sanctioned posts the managing committee of the minority secondary schools shall appoint the teacher with the concurrence of the school service board constituted under section 10 of this Act
Provided that while considering the question of giving approval to appointment of any teacher under this sub section the board shall only scrutinise as to whether the proposed appointment is in accordance with the rules laying down the qualification and the manner of making appointment framed by the State Government has been followed or not and no more
c There shall be rules regarding the service condition of teachers of minority schools based on natural justice and the prevailing law a copy of which shall be sent to the State Government
d The Managing Committee with the approval of the School Service Board shall have powers to remove a teacher to terminate his services to dismiss and to discharge him from service
Provided that for the purpose of approval any disciplinary action against the teacher by the managing committee the Board shall scrutinise whether disciplinary proceedings have been in accordance with the rules and no more e Mentally and physically in capacitated person shall not be appointed as teacher or non teaching staff of the school f No grant shall be admissible for payment of salary of a teacher or a non teaching staff if appointed or retained beyond 58 years of age
g only such fees shall be charged from the students as are prescribed by the State Government
Prior approval of the State Government shall be necessary to charge higher fees than what is prescribed
h The schools shall be open to inspection on any working day by the authorised inspecting officers of the Education Department the civil authority and authorised 68 officers of Health Department
i It shall be their duty to obey instructions regarding admission and transfer of the students discipline and punishment records and accounts curricular and co curricular activity rules regarding health and cleanliness issued or made by the State Government
j The State Government shall have powers to issue instructions not inconsistent with the provisions of Articles 29 and 30 of the Constitution for efficient management and for improving and standard of teaching and it shall be obligatory for the recognised minority schools to comply with them
k In the event of violation of this section and the rules made thereunder and the instruction issued under it the said managing committee may make an application within sixty days of the date of the order to the officer authorised by the State Government against the withdrawal of recognition or withholding or stopping grants and the authorised officer shall after hearing the case take his decision and it shall be binding
Section 3 of the impugned Act provides for compulsory acquisition or taking over of the administration or assets of non Government secondary schools
Section 31 lays down that all government secondary schools other than minority secondary schools shall be deemed to have been taken over by the State Government with effect from 2nd October 1980
There were five categories of secondary schools P functioning in the State of Bihar and out of them the management and control of only non government secondary schools have been taken over by the State
The minority secondary schools proprietary secondary schools centrally sponsored schools and autonomous secondary schools have not been taken over by Section 31 of the Act
It does not affect a minority secondary school at all
As regards Section 32 it confers power on the State Government to take over the management and control of recognised minority schools proprietary or autonomous secondary schools by issuing a notification in the official Gazette provided the managing committee trust association or the corporate body which may have been maintaining such schools makes an unconditional offer to the State Government to make over the school with all assets and properties
If the State Government 69 accepts the offer and considers it necessary to take over the management of such a school it may lay down terms and conditions for the take over of the management and control of the school
Section 32 does not confer any power on the State to compulsorily acquire or take over the management of a minority school instead the management is free to maintain and carry on the administration of its school and the State has no power to interfere with its administration
The State is entitled to take over the school only if an un conditional offer is made by the management of the school
There is however no compulsion on the management of a minority school to make over the school to the Government
If the management of a minority school finds it difficult to maintain its school instead of closing down it may in the larger interest of the educational need of the area hand over the control and management of the institution to the State
Section 32 does not interfere with minority s rights to maintain or administer its school it merely enables the State to take over the control and management of a minority institution only when an unconditional offer is made to it by the management of the minority institution
There is therefore no question of Section 32 infringing the rights of minority institutions
Section 33 confers power on the State Government to take over the management and control of the secondary schools which may not have been recognised on the date of the enforcement of the ordinance of the Act
It provides that the State Government may take over the management and control of such schools on terms and conditions which the Government may deem proper
These schools include those which may have received permission for establishment of the school from the Bihar Secondary Education Board or schools which may have applied for permission of establishment immediately before the date of the promulgation of the ordinance provided the State Government is satisfied with regard to the utility of such schools
Section 33 relates to the taking over of management and control of unrecognised schools other than minority schools
These provisions do not affect the fundamental right of minority institution
In this view Section 3 which provides for taking over of management and control of non government secondary schools does not in any manner encroach upon the fundamental right of a minority institution
This brings us to the question as to whether the provisions of Section 18 violate Article 301
Section 181 provides that a school declared as a minority institution under the provisions of the Bihar Secondary Education Act 1976 or under the Bihar Secondary 70 Education Board Second Amendment ordinance 1980 shall be deemed to have been recognised under the provisions of the Act
This provision ensures the continuity of recognition of a minority school
Sub section 2 provides for future recognition of a minority school it lays down that the State Government may recognise a minority secondary school which may have been established by a minority community on the basis of religion or language for the purpose of meeting the educational requirement and for the protection of their culture provided it fulfils the prescribed conditions
Section 183 lays down conditions under which a recognised minority secondary school shall be managed and controlled
These terms and conditions are specified in clauses a to k
This section requires a recognised minority school to comply with the terms and conditions set out therein and in accordance with rules framed by the managing committee regulating employment of teachers and disciplinary matters
It was urged that clauses a to k of Section 183 make Serious inroad on the right of a minority institution to carry on its administration according to its own choice
The terms and conditions prescribed therein regulate and control the administration of a minority school which are violative of Article 301 of the Constitution
We would examine each of the clauses a to k in detail to determine the crucial question whether any of these clauses violate petitioners  fundamental right guaranteed to them under Article 30  1 of the Constitution
Section 183 provides that recognised minority secondary schools shall be managed and controlled in accordance with the provisions contained in clauses a to k
Clause a requires a minority secondary school to have a managing committee registered under the Societies Registration Act 1862 and to frame written bye laws regulating constitution and functions of the managing committee
The bye laws regarding the constitution of the managing committee are required to be framed by the minority institution itself
The State or any other authority has no power or authority to impose any terms or conditions for the constitution of the managing committee
If a society running a minority institution frames written bye laws providing for the constitution of managing committee entrusted with the function of running and administering its school it would ensure efficient administration
This clause is in the interest of the minority institution itself as no outsider is imposed as a member of the Managing Committee there is no interference with the minorities right to administer its school
Clause b provides for two things firstly it requires the managing committee of a minority school to 71 appoint teachers possessing requisite qualifications as prescribed by the State Government for appointment of teachers of other nationalised schools secondly the managing committee is required to make appointment of a teacher with the concurrence of the School Service Board constituted under Section 10 of the Act
Proviso to clause b lays down that the School Service Board while considering the question of granting approval to the appointment of a teacher shall ascertain if the appointment is in accordance with the rules laying down qualifications and manner of making appointment framed by the State Government
The proviso makes it clear that the School Service Board has no further power to interfere with the right of managing committee of a minority school in the appointment of a teacher
Under clause b the managing committee is required to make appointment of a teacher with the concurrence of the school service board
The expression concurrence  means approval
Such approval need not be prior approval as the clause does not provide for any prior approval
Object and purpose underlying clause b is to ensure that the teachers appointed in a minority school should possess requisite qualifications and they are appointed in accordance with the procedure prescribed and the appointments are made for the sanctioned strength
The selection and appointment of teachers is left to the management of the minority school there is no interference with the managerial rights of the institution
In granting approval the School Service Board has limited power
The appointment of qualified teachers in a minority school is a sine qua non for achieving educational standard and better administration of the institution
Clause b is regulatory in nature to ensure educational excellence in the minority school
Clause c requires a minority school to frame rules regulating conditions of service of its teachers such rules should be consistent with principles of natural justice and the prevailing law
The clause further requires the minority institution to submit a copy of such rules to the State Government
This clause in substance lays down that the management of a recognised minority school shall frame Rules regulating conditions of service of teachers and such rules shall conform to principles of natural justice and prevailing law
These provisions are directed to avoid uncertainty and arbitrary exercise of power
If Rules are framed by the management those rules would bring uniformity in administration and there would be security of employment to teachers
In a civilised society the observance of principles of natural justice is an accepted rule these principles contain basic rules of fair play and justice and it is too late in the day to contend that while administering a minority school the management should have right to act in contravention of the princi 72 ples of natural justice
Clause c is regulatory in nature which requires the managing committee to frame rules of employment consistent with principles of natural justice and the prevailing law
No outside agency is required to frame rules of employment of teachers instead the management itself is empowered to frame rules
There is therefore no element of interference with the management s right to administer a minority school
Learned counsel for the petitioner took serious objection to the provisions contained in clause d of Section 183 which lays down that the managing committee of a minority institution shall have power to remove terminate dismiss or discharge a teacher with the approval of the School Service Board
It was urged that School Service Board has been imposed as a higher authority over the management if the Board refused to grant approval to the disciplinary action taken by the management against a teacher the management s right of administration would be affected adversely
The School Service Board enjoys blanket power on the management s right to take disciplinary action against its employees and therefore clause d infringes with the minority s right of management
We do not find any substance in the submissions
Indisputably power to remove dismiss terminate or discharge a teacher from service is an essential attribute of management s right but clause d does not invest that power on any outside agency
The power to take disciplinary action vests in the managing committee of the minority school it is required to exercise that power in accordance with the rules framed by it
Clause d requires that the managing committee shall take approval of the School Service Board in removing terminating dismissing or discharging a teacher from service
The managing committee is not required to obtain prior approval from the School Service Board instead it may seek approval of the School Service Board after taking action
The School Service Board while considering the question of granting approval does not enjoy any unlimited power it is required to consider if the managing committee has taken the disciplinary action in accordance with the rules framed by the managing committee itself
If the Board finds that managing committee has taken action in accordance with Rules the School Service Board has no option but to accord approval but if the disciplinary action is taken contrary to the rules framed by the minority school itself the School Service Board will be justified in refusing to accord approval
The School Service Board is not invested with any veto or blanket power without any guidance on the other hand it has limited power and guidelines are prescribed for the 73 exercise of such powers
Such a provision is reasonable to ensure that rules framed by the minority school are followed and security of employment of teachers is maintained and there be no arbitrary exercise of power
Clause d of Section 183 expressly provides that while considering the question of granting approval to the disciplinary action taken by the management of a minority institution the School Service Board shall scrutinise whether disciplinary proceedings had been taken in accordance with the rules and no more
Regulatory provisions requiring approval of disciplinary action taken by the management of a minority institution have been upheld by this Court in a number of cases
In Re Kerala Education Bill case this Court upheld the validity of clauses 11 and 124 of the Bill
Clause 111 required a recognised minority institution to appoint teachers selected by the State Public Service Commission
While Clause 124 laid down that no teacher of an aided school shall be dismissed removed reduced in rank or suspended by the management without previous sanction of the authorised officer
This Court held that these clauses were designed to give protection and security to the teachers who are engaged in rendering service to the nation and were permissible regulations which the State could impose on the minorities as a condition for granting aid to their educational institutions
The court further held that since these aforesaid clauses of the Bill were regulatory they do not violate Article 301 of the Constitution
Section 84 of the Delhi School Education Act 1973 which require a managing committee of recognised private school to obtain approval of the Director for suspending an employee was upheld in its application to the minority institutions by this Court in Frank Anthony Public School Employees  Association  case and Mrs Y Theclamma s  case
In the latter case this Court observed that while the right of the minority to establish and administer educational institutions of their choice cannot be interfered with restrictions by way of regulations for the purpose of ensuring educational standards and maintaining excellence thereof can validly be prescribed
Regulations can be made for ensuring proper conditions of service for the teacher and also for ensuring a fair procedure in the matter of disciplinary action
Section 84 of Delhi Act was designed to afford some measure of protection to teachers of the minority institutions without interfering with the management s right to take disciplinary action
Learned counsel for the petitioner placed reliance on the 74 decision of this Court in State of Kerala vs Very Rev Mother Provincial   Ahmedabad St Xaviers College Society  Anr
vs State of Gujarat and Anr
  and Liliy Kurian vs Sr
Lewina  Ors
  and All Saints High School Hyderabad vs Government of Andhra Pradesh  Ors  in support of his contention that the clauses c and d of Section 183 interfere with the minorities right of managing their institution
On a careful consideration of the ratio of these decisions we are of the opinion that these authorities do not support the petitioners  submissions
In State of Kerala vs Very Rev Mother Provincial  the High Court of Kerala had declared Sections 48 and 49 of the Kerala University Act 1969 unconstitutional on the ground that those provisions violated fundamental right of a minority institution guaranteed under Article 301 of the Constitution
In appeal this Court upheld the view taken by the High Court on the ground that Sections 48 and 49 contained provisions regulating the constitution of governing body of an affiliated college in accordance with the statutes and ordinances framed by the University
The statutes and ordinances so framed designated and nominated persons to function as members of the governing body of an affiliated college
The effect of those provisions was that outside agencies were inducted into the managing committee of a minority institution
This Court held that effect of Sections 48 and 49 was to displace the administration of the college by giving it to a distinct corporate body which was in no way answerable to the minority institution
The Court further held that the managing committee constituted under the statute and the ordinances was an alien authority for the management of the minority institution which was in clear violation of Article 301 of the Constitution
In Ahmedabad St Xaviers College Society  Anr etc
vs State of Gujarat and Anr this Court held that Sections 51A and 52 of the Gujarat University Act 1949 as amended in 1972 could not be made applicable to a minority institution as under the aforesaid provisions no punishment could be inflicted by the management of an affiliated college on a member of the staff unless it obtained approval of the Vice Chancellor or an officer authorised by him
The Court held that the provision relating to grant of approval conferred blanket power on an outside authority without laying down any guidelines it directly interfered with the minorities right to administer their institution
In Lilly Kurian vs Sr
Lewina  Ors this Court again held that ordinance 33 framed under the Kerala University Act 1969 conferring right of appeal against the disciplinary action taken by a minority 75 institution to the Vice Chancellor was constitutionally invalid as it interfered with the disciplinary power of a minority educational institution
The Court further held that ordinance 33 conferred a right of veto in disciplinary matters of minority institution it did not lay down any guidelines instead it conferred an uncanalised and unguided power on the appellate authority
The Court held that conferment of uncanalised and unguided appellate power on the Vice Chancellor resulted into grave encroachment on the right of the minority institution to enforce and cover its discipline in its administration
The Court emphasised that since the Vice Chancellor s power was unlimited and undefined he could interfere with the orders of the minority institution inflicting punishment without there being any justified ground
The ordinance was struck down as it contained no guidelines for the exercise of the appellate power
In All Saints High School Hyderabad vs Government of Andhra Pradesh  Ors this Court held that Section 3l and 2 of the Andhra Pradesh Recognised Private Educational Institution Control Act 1975 could not be applied to a minority institution as the provisions contained therein encroached upon the fundamental right of minorities guaranteed to them under Article 301 of the Constitution
Section 31 contained an unqualified mandate that no teacher shall be dismissed except with the prior approval of the competent authority
Section 32 conferred appellate power on an outside authority to interfere with the disciplinary action taken by the managing committee of an educational institution
This Court majority held that the unqualified power conferred on an outside authority which was made a judge of both facts and law the exercise of which was made to depend purely on subjective considerations constituted an infringement  of the right guaranteed by Article 301 of the Constitution
These decisions do not affect the view taken by us
As already discussed clauses c and d of Section 183 of the Act are regulatory in nature to ensure the educational standard of security of employment of teachers and no unguided uncanalised blanket power in the nature of veto or appellate power has been conferred on any outside agency against the disciplinary action taken by the management of a minority institution
The School Service Board is vested with limited power to see that the person proposed to be appointed possesses the requisite qualifications prescribed and that the prescribed method of selection was followed by the management
The choice of the person for appointment continues to vest in the managing committee of the minority school
Similarly in disciplinary matters also the managing committee of a minority school has 76 full power to remove terminate or discharge a teacher but it has to obtain the approval of the School Service Board here again the Service Board has a limited power to ascertain whether the disciplinary proceedings have been taken in accordance with the rules framed by the management itself the School Service Board has No Other power in the matter
These provisions do not suffer from the legal infirmities as pointed out in the aforesaid decisions
Clause e of Section 183 merely provides that mentally and physically in capacitated person shall not be appointed as teacher or non teaching staff of the school
If mentally and physically incapacitated person are appointed to a minority institution it will serve no useful purpose instead the institution will suffer therefore appointment of disabled persons will not be
in the interest of the administration of a minority school itself
Clause f of Section 183 provides that the State shall not pay any grant towards the payment of salary of a teacher or other employee of a minority institution if he is appointed or permitted to be retained beyond 58 years of age
In 1 the State of Bihar the age of superannuation is fixed at 58 years for its employees
Consistent with that policy this clause provides that public funds of the State shall not be used for the employment of a person in service who may have crossed 58 years of age
This however does not place any restriction on the right of the management of the minority institution to employ or retain a person beyond 58 years of age the management is free to do so but if the management does so the State shall not be responsible for paying grants towards the salary of such teacher or employee
This provision does not in any way interfere with the minorities right of administration of its institution
Clause g provides that only such fees shall be charged from the students as prescribed by the State Government P and the management is not permitted to charge higher fees except with prior approval of the State Government
In the counter affidavit filed on behalf of the State it has been stated that education upto matriculation is free in the State and therefore no fees is charged from the students
Consistent with the general policy the State has made it a condition of recognition to a minority school in providing that fees shall be charged from the students as prescribed by the State Government and if the management decides to charge higher fees it must seek the approval of the State Government
This provision is regulatory in nature it would not be in the interest of the minority schools to charge higher fees as that would be against the interest of the institution itself
If the managing committee finds that circumstances exist to charge higher fees to meet the need of the institution
77 it may place the necessary facts and circumstances before the State Government and in that event the State Government shall consider the question of granting permission
Clause h provides for the inspection of minority secondary school by the authorised inspecting officer of Education Department and officers of Health Department
The object and purpose of inspection is to ensure that the money from the public funds given to a minority school as grants in aid is utilised for the purpose it is given and inspection by officers of Health Department would ensure hygiene cleanliness and health of the students in the institution
Clause h in our opinion does not in any way trespass upon the minorities fundamental right
Clause i of Section 183 provides that it shall be the duty of the minority institution to obey instructions regarding admission and transfer of the students discipline and punishment records and accounts curricular and co curricular activities rules regarding health and cleanliness issued or made by the Government
This clause is wide and general in nature it contemplates framing of rules by the State Government regarding health cleanliness and accounts
It further requires the minority institution to obey instructions issued by the State regarding admission and transfer of students discipline and maintenance of accounts
The instructions which may be issued under this clause relating to admission transfer of students and discipline punishment or maintenance of accounts must be in confirmity with the minorities freedom under Article 30 I of the Constitution
Under the guise of this power the State Government cannot trespass on the forbidden field of minorities right of administration of their schools
These instructions must relate to secure the efficiency in educational standard and should be regulatory in nature to achieve efficiency in the administration
Laying down principles and methods relating to admission and transfer of students and discipline and punishment and maintenance of record and accounts and essential to maintain the efficiency in the administration of the institution and no exception can be taken to instructions relating to these matters unless they interfere with the right of administration
No instructions or rules as contemplated by clause i of Section 183 were placed before us by the petitioners which may have tendency to interfere with the minorities right of administration of their institutions
However we would like to express our view that if the State Government in exercise of its powers under clause i of Section 183 issues instructions or frames rules interfering with the minorities right such instructions or rules would be violative of Article 301 of the Constitution but if the 78 instructions and rules are issued with the object and purpose of securing efficiency in the administration or in securing the educational standard the same would be valid
It must be borne in mind that as the aided minority institutions receive money from public revenues the State Government is entitled to issue instructions or frame rules for the maintenance of records and accounts and such instructions or rules would not interfere with the minorities right under Article 30l of the Constitution
Similarly no exception can be taken to instructions or rules regarding health and cleanliness such instructions or rules would be in the interest of the institution itself
Clauses j and k of Section 183 confer power on the State Government to issue instructions consistent with the provisions of Articles 29 and 30 of the Constitution for efficient management and for improving the standard of teaching and a minority school is required to comply with those instructions
The State Government has no unrestricted power to issue instructions on the other hand these clauses expressly refer to Articles 29 and 30 and provide that instructions shall not be inconsistent with the constitutional provisions
The State Government has power to make regulatory provisions for achieving efficiency in the management and improving the standard of education in the minority schools it may therefore issue instructions for securing that purpose
If instructions are issued for the better management of the minority schools no grievance to their validity can be raised as now it is well settled by a number of authorities of this Court that a minority institution has right to administer its educational institution but it has no right to maladministration
Any rule or instruction issued by the Government to prevent mal administration would be valid
Clause k provides that if any instructions are issued by the State or any of its authority or rules are framed or if any officer authorised by the State Government issues any order for the withdrawal or recognition or withholding or stopping of grants to a minority school the managing committee of the minority school has right to raise a grievance before an officer authorised by the State Government within sixty days
It further provides that the authorised officer shall after hearing the case take his decision which shall be binding on the parties
This clause confers a right on the management of the minority school to challenge any arbitrary exercise of power by an authority of the State in withdrawing recognition or with holding or stopping the disbursement of aid to the institution
Apparently clause k has been enacted by the Legislature to safeguard the interest of the minority school and it does not in any manner violate Article 301 of the Constitution 79 Clauses a to k of Section 183 lay down terms and conditions for granting recognition to a minority school
and these are regulatory in nature which seek to secure excellence in education and efficiency in management of schools
These provisions do not confer any unguided blanket or veto power on any outside agency or authority to veto the decision of the management of the school
Instead minority s right to manage its school in accordance with rules framed by it is fully preserved
The Legislature has taken care to confer a limited power on the School Service Board for granting approval to appointment and dismissal of a teacher which are necessary in the interest of educational need and discipline of the minority school itself
The terms and conditions applicable to a recognised minority school do not compel the management of a minority school to surrender its right of administration instead the management is free to administer its school in accordance with the rules framed by it
Guarantee of freedom to a minority institution under Article 301 of the Constitution does not permit the minority institution to act contrary to law and order law of contract industrial laws or other general laws which are enacted for the welfare of the society
If the minorities claim for immunity from the law of the land is upheld that would be unreasonable and against the interest of the minority institutions themselves
In Christian Medical College Hospital Employees  Union  Anr vs Christian Medical College Vellore Association  Ors Civil Appeal No 8818 of 1983 decided on 20th October 1987 a question arose whether Sections 9A 10 11A 12 and 33 of the were applicable to educational institutions established and administered by minorities which are protected by clause 1 of Article 30 of the Constitution
This Court answered the question in affirmative
The Court held that the labour legislation was applicable to the management of a minority educational institution and it observed thus These rights which are enforced through the several pieces of labour legislation in India have got to be applied to every workman irrespective of the character of the management
Even the management of a minority educational institution has got to respect these rights and implement them
Implementation of these rights involves the obedience to several labour laws including the Act which is under consideration in this case which are brought into force in the country
Due obedience to those 80 laws would assist is the smooth working of the educational institutions and would facilitate proper administration of such educational institutions
If such laws are made inapplicable to minority educational institutions there is every likelihood of such institutions being subjected to mal administration
Merely because an impartial tribunal is entrusted with the duty of resolving disputes relating to employment unemployment security of work and other conditions of workmen it cannot be said that the right guaranteed under Article 301 of the Constitution of India is violated
If a creditor of a minority educational institution or a contractor who has built the building of such institution is permitted to file a suit for recovery of the money or damages as the case may be to him against such institution and to bring the properties of such institution to sale to realise the decretal amount due under the decree passed in such suit is Article 301 violated Certainly not
Similarly the right guaranteed under Article 301 of the Constitution is not violated if a minority school is ordered to be closed when an epidemic breaks out in the neighbourhood if a minority school building is ordered to be pulled down when it is constructed contrary to town planning law or if a decree for possession is passed in favour of the true owner of the land when a school is built on a land which is not owned by the management of a minority school
In the same way if a dispute is raised by an employee against the management of a minority educational institution such dispute will have necessarily to be resolved by providing appropriate machinery for that purpose
Laws are now passed by all the civilised countries providing for such a machinery
 We accordingly hold that the impugned Act does not violate petitioners  rights guaranteed under Article 30 l of the Constitution
In the result petitions fail and are accordingly dismissed but there will be no order to costs
SL Petitions dismissed


Summary:
These petitions on behalf of certain newspaper establishments challenged the constitutional validity of the Working journalists Conditions of Service and Miscellaneous Provisions Act 1955 and the legality of the decision of the Wage Board constituted thereunder purporting to act under section 9 of the Act
The impugned Act which was passed in order to implement the recommendations of the Press Commission and had for its object the regulation of the conditions of service of working journalists and other persons employed in newspaper establishments provided inter alia for the payment of gratuity to a working journalist who had been in continuous service whether before or after the commencement of the Act for not less than three years even when he voluntarily resigned from service regulated hours of work and leave provided for the payment of retrenchment compensation with retrospective effect in certain cases and by section 91 laid down the principles that the Wage Board was to follow in fixing the rates of wages of working journalists
Under those principles the Wage Board was to have regard to the cost of living the prevalent rates of wages for comparable employments the circumstances relating to the newspaper industry in different regions of the country and to any other circumstances which it might consider relevant
The petitioners contended on various grounds that the provisions of the impugned Act violated their fundamental rights under articles 191a 191g 14 and 32 Of the Constitution and that the decision of the Wage Board fixing the rates and scales of wages which was arrived at without any consideration whatsoever as to the capacity of the newspaper industry to pay the same imposed too heavy a financial burden on the industry and spelled its total ruin was vitiated by a wrong approach and non application of the proper criteria and transgressed the principles of natural justice and was therefore illegal and void Held that the constitutional validity of the impugned Act with the sole exception of section 51aiii of the Act which infringed 13 article 191g of the Constitution was beyond question and as that section severable as it was from the rest of the Act must alone be declared ultra vires
Section 91 of the Act properly construed made it incum bent on the Wage Board to take into consideration the capacity of the newspaper industry to pay the rates and scales of wages recommended by it and as there was nothing to indicate that it bad done so its decision was void and inoperative
Held further that there could be no doubt in view of the interpretation put upon article 191a of the Constitution by this Court that liberty of the press was an essential part of the freedom of speech and expression guaranteed by that Article and the press had thereunder the right of free propagation and free circulation without any previous restraint on publication
Ramesh Thaper vs The State of Madras  and Brij Bhushan vs The State of Delhi   referred to
It was legitimate and proper to refer in this connection to the decisions of the Supreme Court of the United States of America since article 191a of the Constitution was based on Amendment 1 of the Constitution of that country and the rules that could be deduced therefrom made it clear that although freedom of the press included freedom from restriction in respect of employment in the editorial staff the press was not immune from ordinary forms of taxation or from the application of general laws relating to industrial relations or laws regulating payment of wages
Case law reviewed
But if a law were to single out the press for laying prohibitive burdens on it that would restrict the circulation penalise its freedom of choice as to personnel prevent newspapers from being started and compel the press to seek Government aid it would be violative of article 191a and would fall outside the protection afforded by article 192 of the Constitution
The impugned Act judged by its provisions was not such a law but was a beneficent legislation intended to regulate the conditions of service of the working journalists and the consequences aforesaid could not be the direct and inevitable result of it
Although there could be no doubt that it directly affected the press and fell outside the categories of protection mentioned in article 192 it had not the effect of taking away or abridging the freedom of speech and expression of the petitioners and did not therefore infringe article 191a of the Constitution
AK Gopalan vs The State of Madras   Ram Singh vs The State of Delhi Minnesota Ex Rel
Olson   and Dwarkadas Shrinivas of Bombay vs The Sholapur Spinning and Weaving Co Ltd   considered
14 Nor could the impugned Act be held to be violative of article 191g of the Constitution in view of the test of reason ableness laid down by this Court
Chintaman Rao vs The State of Madhya Pradesh 1950 SCR 759 The State of Madras vs V G Rao   a State of West Bengal vs Subodh Gopal Bose 1954 section C R 587 and Virendra vs State of Punjab   referred to
It was not correct to say that section 9i of the Act did not lay down the relevant criteria for the fixation of rates of wages
On a true construction of that section it must be held that the criterion of prevalent rates of wages for comparable employment could be consistent only with the wages higher than the bare subsistence or minimum wages and since rates of wages must be held to include scales of wages as well it was essential that the Wage Board should take into consideration the capacity of the newspaper industry to pay before it could fix the rates of wages
Although the Act did not specifically say so it was possible to hold that the third criterion laid down by the section namely the circumstances relating to the newspaper industry in different regions of the country included such a consideration
The provisions of the section were not therefore unreasonable and violative of article 191g of the Constitution
The provisions of section 91 of the impugned Act did not vest uncontrolled power in the Wage Board
The last criterion of that section which empowered the Board to take into consideration any other circumstances that it might think relevant must be read ejusdem generis with the other criteria that preceded it and as they laid down with sufficient clarity and particularity the principles for the guidance of the Board the Legislature was perfectly justified in leaving such considerations as might arise in course of the enquiry to the subjective satisfaction of the Board constituted as it was of equal number of representatives of both the employers and employees
Thakur Raghbir Singh vs Court of Wards Ajmer 1953 SCR 1049 considered
It was not correct to say having regard to the provisions of sections 11 and 202d of the impugned Act that the Act did not lay down any procedure for the Board to follow or that it was open to the Board to follow any arbitrary procedure violating the principles of natural justice
There could be no substance in the contention of the peti tioners that the provisions of the impugned Act relating to proofreaders whom it included within the definition of working journalists period of notice under section 32 retrospective operation in cases specified by section 4 and hours of work imposed unreasonable restrictions on their fundamental right to carry on business
Gratuity however was a reward for good efficient and faithful service rendered for a considerable period and there could be 15 no justification for awarding the same when an employee voluntarily resigned except in certain exceptional circumstances
The award of gratuity therefore to an employee who voluntarily resigned from service after a period of only three years under section 51aiii of the Act must be held to be unreasonable and wholly unjustified
The impugned Act was not discriminatory in character and did not violate article 14 of the Constitution
Working journalists formed a separate class by themselves and could be classified apart from the rest of the newspaper employees on a perfectly intelligible differentia rationally related to the object which the Act had in view
Nor could the provisions of either section 12 or section 17 of the Act therefore be said to be discriminatory in character
Budhan Choudhary vs The State of Bihar 1955 1 SCR 1045 applied
The impugned Act contained no prohibition nor did it in any way prevent the Wage Board from giving reasons for its decision and thus passing a speaking order where it chose to do so and it could not therefore be said to have violated the fundamental right of a citizen to move the Supreme Court for a writ of certiorari under article 32 of the Constitution
Rex vs Northumberland Com
Appeal Tribunal Ex Parte Shaw and Rex vs Northumberland Compensation Appeal Tribunal Ex Parte Shaw   held inapplicable
AK Gopalan vs The State of Madras   relied on
The question whether a particular body was exercising legislative administrative or judicial or quasi judicial functions has to be determined in the light of the statute under which it was constituted and an administrative body functioning as such can also be acting in a quasi judicial capacity
The test would be whether it had to decide on evidence and decide judicially
So judged there could be no doubt that the Wage Board under the impugned Act was functioning in a quasi judicial capacity
Nagendra Nath Bora vs Commissioner of Hills Division and Appeals Assam   referred to
Case law reviewed
Although this Court would not normally enter into questions of fact in this case the Wage Board had wholly ignored an essential condition for the exercise of its function and imposed a very heavy financial burden on the newspaper industry
Although the Classification of the newspaper industry on the basis of grossrevenue fixation of scales of wages provisions as to the hours of work leave retrospective operation in specified cases and grouping of newspapers into chains or multiple units could not be said to be improper or unjustified they made the burden heavier still
16 The Board made no enquiry whatsoever as to the ability of the industry to pay either as a whole or region wise and did not call for or hear representations from them before finalising its decision
Its decision was therefore ultra vires the Act and contrary to the principles of natural justice