WP(C) 4997/2009 BEFORE HON’BLE MR. JUSTICE RANJAN GOGOI HON’BLE MR. JUSTICE HRISHIKESH ROY Heard Mr. A.R. Bhuiyan, learned counsel appearing for the petitioners. Also hear d V.M. Thomas, learned standing counsel for the Education department representin g the respondents. 2. The managing committees of 2 Madrassas through their respective Presiden ts have filed the instant petition challenging the vires of Section 5(1), 5(2) a nd 5(3) of the Assam Madrassa Education Provincialisation Act, 1994. The petitio ners have also challenged the decision of the Government to fill up 323 vacant p osts of the provincialised Title Madrassas, Arabic Colleges and Senior Madrassas , including Posts of Superintendents and Principals, which also includes vacant posts in the writ petitioner’s Institutions. The petitioners have referred to th e advertisement dated 30.11.2008 issued by the Directorate of Madrassa Education , Assam inviting applications for recruitment to posts of Principals in Arabic C olleges and Superintendent in Madrassas (Provincialised) and seeks directions to allow the petitioners to select and appoint Asstt. Teachers and Heads, in their respective Madrassas. The petitioners also challenge the notification dated 24.10.2005 (Annexu re D) whereby a separate Directorate of Madrassa Education under the Department of Secondary Education of Assam Government has been created. 3. In the writ petition it is averred that Madarassa Education in Assam was initiated in 1934 under the control of the then Director of Public Instruction (DPI) and initially in the year 1965, 9 (nine) Madrassas were brought by the Sta te under the full grant-in-aid system. It is also averred that with setting up o f more Madrassas in the State, the Education Department by Notification dated 30 .3.1993 extended full grant-in-aid benefits to 25 more Madrassas with concurrenc e of the Finance Department. Subsequently the Assam Madrassa Education Provinci alisation Act, 1995 (hereinafter referred to as the Madrassas Act’ was enacte d w.e.f 27.10.1995. By applying the provisions of Section 3 & 5 of the Madrassa Act, all exi sting teaching and non-teaching staff of the Madrassas, hitherto covered under t he deficit system of grant-in-aid under the Government of Assam, were made Gover nment employees w.e.f. 15.8.1994. It is further averred that while the affairs o f Muslim Education was earlier supervised by an officer of the rank of Assistant Inspector under the overall control of the DPI, the said post of Assistant Insp ector was re-designated in 1981 as Deputy Director of Madrassa Education. Subseq uently by Notification dated 24.10.2005, a separate Directorate of Madrassa Educ ation under the department of Secondary Education was created by the Government. Subsequently the State Government gave approval to fill up the posts in the pro vincialised Madrassas. 4. It is argued by the petitioners that Article 30(1) of the Constitution c onfers fundamental rights to the minorities to establish and administer educatio nal institutions of their choice and since the Madrassa institutions in the Stat e are minority institutions, the power to make recruitment to the posts in the M adrassas, cannot vest in the Government. Since Section 5 of the Madrassa Act and its various sub-sections empowers the Government to make selection for recruitm ent to the posts of Superintendents of Senior Madrassas and Principals of Title Madrassas or an Arabic College, the said provisions are contended to be ultra-vi res the provisions of Article 30(1) of the Constitution. 5. It appears from the submissions made and also the materials on record th at while the petitioners are agreeable to receive full grant-in-aid from the Gov ernment and are also not opposed to provincialisation of the services of the tea ching and non-teaching staffs of the Madrassas under the provisions of the Madra ssa Act, they are however opposed to selection and appointment by the Government and are very much interested to retain the power of selection and appointment t o the provincialised posts in the Madrassas. The petitioners/Managing Committees claim that their Madrassas have been set up as religious minority institutions and therefore it is the Constitutionally granted right of the minority committee s / managing committees of the said Madrassas, to make recruitment and appointm ent to the posts in the Madrassas, as an integral part of the right to administe r such minority institutions and accordingly, the recruitment process initiated through the impugned advertisement by the Government is challenged by the petiti oners. 6. In so far as the challenge to creation of separate Directorate of Madras sa Education under the Department of Secondary Education by the Notification dat ed 24.10.2005 (Annexure D), it is apparent from the materials made available by the writ petitioners themselves that Madrassa Education even before the pre-Cons titution days in the State of Assam, was under the administrative control of the DPI, Assam. When these existing Madrassas were brought under the full grants-in -aid system in the year 1965 and subsequently in the year 1992, the functioning of the Madrassas remained under the overall control of the DPI through the Deput y Director of Madrassa Education. In this backdrop, creation of a separate Direc torate of Madrassa Education under the Department of Secondary Education, does n ot in any material way change the existing administrative setup operating since last more than several decades and in our view the creation of the separate Dire ctorate of Madrassa Education does not in any way transgress into any perceived rights of the petitioners. The creation of an independent Directorate in adminis trative exigencies would be within the rights of the State as even in respect of minority institutions, the State is not denuded of its rights to provide for re asonable regulation in the interest of educational excellence and fair administr ation in such Institutions. 7. As to the challenge to legality of the provisions of Section 5 of the Ma drassa Act, it is seen from Sub-Section (2) of Section 5 that, selection to teac hing and non-teaching posts in a Madrassas (except the post of Superintendent of a senior Madrassa and Principals of an Arabic College), are to be made by selec tion board constituted by the managing committee of the concerned Madrassas. How ever selection and appointment to the posts of Superintendent of senior Madrassa s and Principals of Arabic College is to be made by a State Selection Board to b e constituted by the Government. 8. The petitioners claim that as per the right to administer minority insti tutions granted by Article 30(1), they have a right to select and make appointme nt of Principals and Superintendents in the Madrassas. But is such exclusive rig ht claimed by the petitioners is authorized by the provisions of Article 30, is the question that has to be answered to resolve the claim of the petitioners. 9. Regulations by State in case of unaided minority institutions have to be minimal though conditions of recognization and of affiliation have to be compli ed with. In unaided institutions, appointment of teaching and non-teaching staff s and administrative control by the State over such staff may perhaps be beyond the authority of the State. But for aided institutions, where entire salary burd en of the provincialised staff comes from the State’s exchequer, the State can a lways prescribe the minimum qualification, experience and other conditions beari ng on the merit of the appointee. 10. It has been held by the Supreme Court in T. M. A. Pai Foundation vs. Sta te of Karnataka reported in 2002 (8) SCC 481 that; 135. We agree with the contention of the learned Solicitor-General that the Con stitution in Part III does not contain or give any absolute right. All rights co nferred in Part III of the Constitution are subject to at least other provisions of the said Part. It is difficult to comprehend that the framers of the Constit ution would have given such an absolute right to the religious or linguistic min orities, which would enable them to establish and administer educational institu tions in a manner so as to be in conflict with the other Parts of the Constituti on. We find it difficult to accept that in the establishment and administration of educational institutions by the religious and linguistic minorities, no law o f the land, even the Constitution, is to apply to them. 136. Decisions of this Court have held that the right to administer does not inc lude the right to maladminister. It has also been held that the right to adminis ter is not absolute, but must be subject to reasonable regulations for the benef it of the institutions as the vehicle of education, consistent with national int erest. General laws of the land applicable to all persons have been held to appl icable to the minority institutions also - for example, laws relating to taxatio n, sanitation, social welfare, economic regulation, public order and morality . It has also been held by the Supreme Court that whether of the majority or the minority, all conditions that have relevance to the proper utilization of the grants-in-aid by the receiving institution, can be imposed by the State. Th e state can always prescribe regulation governing service conditions for teachin g and other staffs for whom aid is provided by the State, without interfering wi th over all administrative control of the staff. The Supreme Court culled out su ch right of the State in the interest of excellence of education and to prevent maladministration. 11. In T M A Pai (Supra) the Supreme Court rejected the contentions made on behalf of the minorities that the right to establish and administer educational institutions in Article 30 (1) be considered an absolute right and that State wh ich gives aid cannot impose reasonable conditions. Discussing the earlier judgme nts of the Supreme Court in the previous 5 decades, the Supreme Court in T M A P ai (Supra) observed that the rights under Article 30(1) are subject to general s ecular laws of the country and the right granted to the management of the minori ty institution is not superior but is equal to the rights enjoyed by the majorit y community. Educational Institutions receiving state aid cannot claim to have c omplete autonomy in the matter of administration and would be equally bound like the others by various statutory provisions enacted by the State to protect the interest of the education, students and teachers. 12. Keeping in mind the law laid down by the Supreme Court as noted above in the celebrated case of T M A Pai (Supra), the impugned process of recruitment f or the post of Principals and Superintendents cannot be understood as transgress ing on the rights of the petitioners guaranteed under Article 30(1) of the Const itution. Article 30 gives a right to the minorities to administer educational in stitutions and the right to administer would refer to the process and not the pe rsons in management of minority institutions. As is already noted under Sub-Sect ion (2) of Section 5 of the Madrassa Act, participation of the Managing Committe es of the Madrassas in recruitment process of teaching and non-teaching staffs i s envisaged and such power conferred by the statute, in our considered view, giv es adequate right to the petitioners to administer their institutions. 13. Services of these Madrassa staffs have been provincialised and it is dif ficult for us to agree to the submissions that the impugned action for making se lection by the advertisement of the posts of Principals and Superintendents of M adrassas, interferes with any constitutional rights of the petitioners. 14. The petitioners as is noted are not averse to provincialisation of the t eaching and non-teaching staffs serving under the Madrassas, where some control of the Madrassas in the State have been exercised all along by the State Authori ties and nothing is shown to us to hold that by initiating the process of recrui tment of Principals and Superintendents, the State is intruding into the rights of the Madrassa Authorities, to administer their respective institutions. 15 In the above circumstances, we do not find any merit in the instant writ petition and the same is accordingly dismissed.