pvr 1 wp2545-99 IN THE HIGH COURT JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.2545 OF 1999 1.Maharashtra Association of Minority Educational Institutions and Anr. ...Petitioners vs. 1.State of Maharashtra & Ors. ...Respondents --- Mr.Gaurav Joshi with Mr.Aditya Thakkar i/b. Federal & Rashmikant, for Petitioners. --- CORAM: D.K.DESHMUKH & K.K.TATED, JJ. DATED: 4th March,2011 P.C.: 1. This petition has been filed by the Association of Minority Educational Institutions. According to the averments in the petition, the members of the petitioners Association are of minority institutions either linguistic and religious minorities. The institutions run senior colleges affiliated to Bombay University. pvr 2 wp2545-99 They have filed this petition challenging circulars issued by the Director of Higher Education dated 1.4.1999 and 7.5.1999. By circular dated 1.4.1999 the Director of Higher Education has directed that all the educational institutions including the minority institutions who are receiving grant-in-aid from the State Government, before making appointment of any teacher shall obtain a certificate from the office of the Director of Education (Higher Education), Maharashtra State, that candidates in surplus cell is not available for appointment against the vacancy in the college and it would be after obtaining such a certificate that they can follow the procedure for appointment of teacher. The petitioners also claim that the provisions of Section 79(4) of the Maharashtra Universities Act, 1994, which also imposes similar condition on the management of the affiliated colleges, do not apply in relation to the minority institutions. The petitioners association also challenges circular dated pvr 3 wp2545-99 7.5.1999 issued by the Director of Higher Education. By that circular which is addressed to the Principals of all Aided/Unaided, Non Government, Arts, Science and Commerce Colleges, it is directed that if a post of teacher is newly created on the establishment of the College in the year 1999-2000 or a post of teacher falling vacant in the year 1999-2000 and in the advertisement it is shown reserved for a candidate belonging to backward class then it is to be specifically mentioned that the post is reserved , and if a person from that category i.e. backward class is available, such a candidate be appointed. It is further directed that If a person from the open category is appointed on such a post then no grant-in-aid will be made available. The learned Counsel appearing for Petitioners submitted that both these circulars are not applicable to the minority institutions. He submits that Section 79 of the Act is also not applicable to the minority institutions. He submitted that if the circulars pvr 4 wp2545-99 and the provisions of Section 79(4) of the Act are made applicable to the minority institutions, it will violate Article 30 of the Constitution of India. The learned Counsel in support of his submission relied on two judgments of the Supreme Court viz. (i) a judgment of the Bench of the Supreme Court consisting of 9 Hon ble Judges of the Supreme Court in the case The Ahmedabad St.Xavier s College Society & Anr. Vs. State of Gujarat & Anr. , (1974)1 Supreme Court Cases 717 , and (ii) a judgment of the Supreme Court in the case Sindhi Education Society & Anr. Vs. Chief Secretary, Government of NCT of Delhi and others, (2010)8 Supreme Court Cases 49 . 2. The Respondents have been served but none appears for them. There is no affidavit in reply filed. We have heard the learned Counsel appearing for the petitioners. 3. In the petition, the petitioners have, as stated above, challenged the provisions of pvr 5 wp2545-99 Section 79(4) of the Maharashtra Universities Act, which reads as under:- 79.Selection committees for officers and employees of university and principals, teachers and other employees of affiliated colleges:- (4) The management of any affiliated college, shall before proceeding to fill in vacancies of teachers and other employees in accordance with the prescribed procedure shall ascertain from the university and the Director of Higher Education whether there is any suitable person available on the list of surplus persons maintained by the university for absorption in other colleges and in the event of such person being available the management shall appoint that person. Perusal of the above provision shows that it obliges the management of all affiliated colleges to ascertain from the University and the Director of Higher Education whether there is any suitable person available on the list of surplus persons maintained by the University for absorption in pvr 6 wp2545-99 the vacant post in the college and if such a person is available, the college is obliged to appoint such a person in the vacancy. The college cannot advertise the post and appoints any other candidate. Perusal of Circular dated 1.4.1999 shows that similar requirement is included in that circular also. The relevant portion of that circular reads as under:- Before making appointments on the new post due to retirement, resignations, etc. and also by reason of promotion, opening of new division in the Colleges which are newly given grant and the colleges which are already given grants in the Arts, Science and Commerce faculties of the Colleges to which grant is given in the academic year 1999-2000, it is compulsory to option no objection Certificates from this office and the Director of Educations (Higher Education), Maharashtra State, Pune-1, if the teacher from the list of surplus teachers are available and they have no objection. If a College appoints teachers directly from outside without pvr 7 wp2545-99 obtaining no objection certificates then the College shall not be eligible for the grant of expenditure on the salaries of such teachers, which please note. Thus both, Section 79(4) of the Act and the Circular dated 1.4.1999 make it obligatory on the aided and non-aided educational institutions to obtain a certificate that a candidate suitable for appointment against the vacant post of teacher is not available on the surplus list before they make appointment of any other person in the vacant post. The submission of the learned Counsel appearing for petitioners is that obliging a minority institution to which the provision of Article 30 of the Constitution of India applies, to obtain such a certificate amounts to prohibiting minority institutions from making appointment of candidate of its choice in the vacant post in its college is violative of Article 30 of the Constitution of India. We find that in so far as the right of minority pvr 8 wp2545-99 institutions of appointment of teachers is concerned, the Supreme Court in its judgment delivered by the bench consisting of Nine Hon ble Judges of the Supreme Court in the case The Ahmedabad St.Xavier s College Society & Anr. Vs. State of Gujarat & Anr., (1974)1 Supreme Court Cases 717 has observed in paragraph 103 thus:- 103. Another conclusion which follows from what has been discussed above is that a law which interferes with a minority s choice of qualified teachers or its disciplinary control over teachers and other members of the staff of the institution is void as being violative of Article 30(1). It is, of course, permissible for the State and its educational authorities to prescribe the qualifications of teachers, but once the teachers possessing the requisite qualifications are selected by the minorities for their educational institutions, the State would have no right to veto the selection of those teachers. The selection and appointment of teachers for an pvr 9 wp2545-99 educational institution is one of the essential ingredients of the right to manage an educational institution and the minorities can plainly be not denied such right of selection and appointment without infringing Article 30(1). The Supreme Court has, thus, held that any law which interferes with the minorities choice of qualified teacher is void being violative of Article 30 of the Constitution of India. The Supreme Court has further observed that right to have the teaching conducted by teachers appointed by the management after an overall assessment of their outlook and philosophy is perhaps the most important facet of the right to administer an educational institution. It is further observed that So long as the persons chosen have the qualifications prescribed by the University, the choice must be left to the management. That is part of the fundamental right of the minorities to administer the educational institution established by them. Thus, it appears that the pvr 10 wp2545-99 minority institutions because of Article 30 of the Constitution of India, have right to choose a candidate which, according to it, is suitable to fill in the vacancy. A Two Judges bench of the Supreme Court in its judgment in the case Sindhi Education Society & Anr. Vs. Chief Secretary, Govt. of NCT of Delhi & Ors., (2010)8 Supreme Court Cases 49. , after taking review of the law laid down by the Supreme Court in various judgments including its judgment in the case The Ahmedabad St.Xavier s College Society & Anr. referred to above, on this aspect of the matter has observed thus:- 101. To appoint a teacher is part of the regular administration and management of the school. Of course, what should be the qualification or eligibility criteria for a teacher to be appointed can be defined and, in fact, has been defined by the Government of NCT of Delhi and within those specified parameters, the right of a linguistic minority institution to appoint a teacher cannot be pvr 11 wp2545-99 interfered with. The paramount feature of the above laws was to bring efficiency and excellence in the field of school education and, therefore, it is expected of the minority institutions to select the best teacher to the faculty. To provide and enforce any regulation, which will practically defeat this purpose would have to be avoided. A linguistic minority is entitled to conserve its language and culture by a constitutional mandate. Thus, it must select people who satisfy the prescribed criteria, qualification and eligibility and at the same time ensure better cultural and linguistic compatibility to the minority institution. 102. At this stage, at the cost of repetition, we may again refere to the judgment of this Court in T.M.A. Pai case, where in para 123, the Court specifically noticed that while it was permissible for the State and its educational authorities to prescribe qualifications of a teacher, once the teachers possessing pvr 12 wp2545-99 the requisite qualifications were selected by the minorities for their educational institutions, the State would have no right to veto the selection of the teachers. Further, the Court specifically noticed the view recorded by Khanna, J. in reference to Kerala Education Bill, 1957 case, and to Clauses 11 and 12 of the Bill in particular, where the learned Judge had declared that, it is the law declared by the Supreme Court in subsequently contested cases as opposed to the Presidential Reference, which would have a binding effect and said: (T.M.A. Pai Case, SCC p.571, para 123) 123. ... 109 ... The words as at present advised as well as the preceding sentence indicate that the view expressed by this Court in Kerala Education Bill, 1957, in this respect was hesitant and tentative and not a final view in the matter. What the Court had expressed in para 123 above, appears to have found favour with the Bench dealing with pvr 13 wp2545-99 T.M.A. Pai. In any case, nothing to the contrary was observed or held in the subsequent judgment by the larger Bench. Thus, according to the Supreme Court, to appoint a teacher is part of the regular administration and management of the college and therefore, minority institution has right to appoint a teacher selected and chosen by it. Nobody can force it to appoint a particular person who is not selected by it as a teacher. The same aspect has been clarified by the Supreme Court in paragraphs (111) and (112) of its judgment in the case Sindhi Education Society referred to above, which reads as under:- 111. A linguistic minority has constitution and character of its own. A provision of law or a circular, which would be enforced against the general class, may not be enforceable with the same rigours against the minority institution, particularly where it relates to establishment and management of the pvr 14 wp2545-99 school. It has been held that founders of the minority institution have faith and confidence in their own committee or body consisting of the person selected by them. Thus, they could choose their managing committee as well as they have a right to choose its teachers. Minority institutions have some kind of autonomy in their administration. This would entail the right to administer effectively and to manage and conduct the affairs of the institution. There is a find distinction between a restriction on the right of administration and a regulation prescribing the manner of administration. What should be prevented is the maladministration. Just as regulatory measures are necessary for maintaining the educational character and content of the minority institutions, similarly, regulatory measures are necessary for ensuring orderly, efficient and sound administration. 112. Every linguistic minority may have its own social, economic and cultural limitations. It has a pvr 15 wp2545-99 constitutional right to conserve such culture and language. Thus, it would have a right to choose teachers, who possess the eligibility and qualifications, as provided, without really being impressed by the fact of their religion and community. Its own limitations may not permit, for cultural, economic or other good reasons, to induct teachers from a particular class or community. The direction, as contemplated under Rule 64(1)(b), could be enforced against the general or majority category of the government-aided schools but, it may not be appropriate to enforce such condition against linguistic minority schools. This may amount to interference with their right of choice and, at the same time, may dilute their character of linguistic minority. It would be impermissible in law to bring such actions under the cover of equality which in fact, would diminish the very essence of their character or status. Linguistic and cultural compatibility can be legitimately claimed as one of the desirable features of a linguistic pvr 16 wp2545-99 minority in relation to selection of eligible and qualified teachers. It is, thus, clear that the petitioners are right in contending that both, Section 79(4) of the Act and Circular dated 1.4.1999 do not apply to the minority institutions. 4. So far as the Circular dated 7.5.1999 and making the policy of reservation of seats for the candidates belonging to the backward class to the minority institutions is concerned, that aspect has been considered by the Supreme Court in its judgment in the case Sindhi Education Society & Anr. referred to above. The Supreme Court in that case was considering the validity of the provisions of Rule 64 of Delhi School Education Act,1973, which has been quoted by the Supreme Court in paragraph 31 of its judgment, it reads as under:- 64.(1) No school shall be granted aid unless its managing committee pvr 17 wp2545-99 gives an undertaking in writing that: (a) it shall comply with the provisions of the Act and these Rules; (b) it shall fill in the posts in the school with the Scheduled Caste and the Scheduled Tribe candidates in accordance with the instructions issued by the Central Government from time to time and also maintain the roster and other connected returns in this behalf; The observations of the Supreme Court in paragraph 90, in our opinion, are relevant, they read as under:- 90.The right to establish and administer includes a right to appoint teachers. Thus, except providing grant-in-aid as per the DSE Rules and having no power to discriminate in terms of Article 30(2) of the Constitution, the Government has a very limited regulatory control over the minority institutions and no control whatsoever on the managing committee, internal management of the school pvr 18 wp2545-99 and, of court, has no power to take over such an institution. This Court has also expressed the view in some judgments that in respect of minority or even non-minority institutions, steps can be taken even for closure of such institutions, in the national interest which of course may be a rare exception. Once the State lacks basic power of jurisdiction to make special provisions and reservations in relation to minority institutions, which do not form part of service under the State, it will be difficult for the Court to hold that Rule 64(1) (b) can be enforced against aided minority institution. There are still other aspects which can usefully be examined to analyse this issue in a greater detail. In the concluding paragraph i.e. paragraph 120 the Supreme Court has held that Rule 64(1)(b) which provides for reservation for backward class is not enforceable against the minority institutions. Paragraph 120 of the judgment reads as under:- pvr 19 wp2545-99 120. For the reasons aforestated, we allow the appeal and hold that Rule 64(1)(b) and the Circular of September 1989, are not enforceable against the linguistic minority school in the NCT of Delhi. There shall be no order as to costs. Therefore, in our opinion, Circular dated 7.5.1999 is also not enforceable against the members of the petitioners association. In the result, therefore, the petition succeeds and is allowed. It is held that neither Section 79(4) of the Act nor Circulars dated 1.4.1999 and 7.5.1999 can be enforced against the members of the petitioners association which are minority institutions. Rule is made absolute accordingly. No order as to costs. (D.K.DESHMUKH,J.) (K.K.TATED,J.)