1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION NO. 81 OF 2005 1. Yateemkhana & Madrasa ] Anjuman Khairul Islam, ] Baitul Aman Co-op Hsg. ] Soc.,2 Maulana Azad Rd ] Nagpada, Mumbai-400 008. ] ] 2.Anjuman Khairul Islam ] Urdu High School ] At Post Dabhol, Taluka: ] Dapoli, Dist: Ratnagiri. ] ...Petitioners ] Versus ] ] 1.The Education Officer (Secondary) ] Ratnagiri Zilla Parishad ] Ratnagiri. ] ] 2.The State of Maharashtra ] Through Govt. Pleader, ] High Court, (A.S.) ] Mumbai. ] ...Respondents Mr. Arvind Kothari for Petitioners Mrs. Thakur, AGP for State 2 CORAM: SMT.RANJANA DESAI & SMT.ROSHAN DALVI, JJ. DATED: 10TH JANUARY, 2008 ORAL JUDGMENT (Per Smt. Ranjana Desai,J.) 1. The petitioner is a Trust registered under the Bombay Public Trusts Act, 1950 and also a Society Registered under the Societies Registration Act 1860. Petitioner 2 is a school catering to and imparting education to Urdu Medium Students and is run by petitioner 1. 2. It is the case of the petitioners that the petitioner Trust was established in 1927 by trustees who are professing and practicing Islam religion. The management and control of the petitioners is vested in the Board of Trustees. Petitioner 1 is a religious and linguistic Minority Institution as defined under Article 30(1) of the Constitution of India. 3. According to the petitioners in exercise of their minority rights they appointed certain staff members and notified their names under Section 3(2) of the Maharashtra Employees of Private Schools (Condition of Service) Regulation Act 1977. According to the 3 petitioners the Education Officer vide his order dated 29th August 1994 approved the appointment of their Headmaster Sheikh Anwar Ali and he confirmed that the Registration Certificate to the effect that the Institution was a Minority Institution has been obtained from the Deputy Director Kolhapur Division. A copy of the same is annexed to the petition at Exhibit-C. 4. By way of abundant caution action however, the petitioners addressed a formal letter to respondent 1, so as to obtain Minority Status for their future record. Respondent 1 vide his letter dated 30th October 2002 recognised the petitioner institution as a Minority Institution. 5. According to the petitioners in exercise of their minority rights they appointed Karajgi Asad Ali Moula Ali as a Shikshan Sevak vide Resolution dated 8th June, 2003 of the School Committee with effect from 10th June, 2003. Petitioner 2 vide letter dated 14th October 2003 forwarded the proposal for approval of the said Shikshan Sevak to the first respondent. The first respondent vide his letter dated 15th October 2003 raised certain queries which were mainly confined to maintenance of roster and approval of roster by the Competent Authority. 4 6. Petitioner 1 addressed letter dated 28th June 2004 to the first respondent informing him that in view of the judgment of the Full Bench of this Court in the case of St. Francis Desales Education Society Vs. State of Maharashtra (2001(3) ALL MR 384) the concept of reservations was not applicable to the petitioners. First respondent vide his order dated 23rd August 2004 rejected the proposal of the petitioners for appointment of Karajgi Asad Ali Moula on the ground that the backlog had not been certified by the Commissioner, Backward Cell and that backlog has been made applicable to Urdu Medium Schools. Thereafter, there was further correspondence between the petitioners and the respondents. However, the first respondent again vide his order dated 3rd September 2004 declined to grant approval to the Shikshan Sevak on the ground of reservations. Being aggrieved by this action of the respondents the petitioners have filed the present petition. The petitioners have prayed for quashing of order dated 23rd August 2004 and 3rd September 2004. 7. We have heard at great length Mr. Kothari and Mrs. Thakur, AGP. We have also carefully perused the relevant Government Resolutions, orders and copy of the Scheme of the Trust settled by the Charity Commissioner. We have also gone through the affidavit of Vrunda Pawar, Under Secretary to the Government School Education and Sports Department, Government of Maharashtra. 5 8. Learned Counsel for the petitioners contend that the action of the respondents in not granting approval to the appointment of Shikshan Sevak Karajgi Asad Ali Moula Ali is illegal and is contrary to the authoritative pronouncement of the Supreme Court in T.M.A. Pai Foundation Vs. Karnataka State 2002 8 SCC, 481. Decisions of this Court in St. Francis De Sales Education Society case (supra) and in Sindhu Education Society Vs. State of Maharashtra 2006(1) BCR 898 are also relied upon. 9. Learned A.G.P Mrs. Thakur submitted that if there are eligible backward class candidates in the minority category, the reservation policy of the State shall apply to those candidates and therefore the stand taken by the respondents is correct. 10. In Sindhu Education Society Vs. The State of Maharashtra (Writ Petition No.2409 of 1981 decided on 27th June 2005) the Division Bench of this Court, V.A. Mohta, J and H.W. Dhabe, J differed in their views as to whether provisions made in the Maharashtra Employees of Private Schools Rules, 1981 (“the said Rules” for short) with regard to reservation in favour of backward classes could be enforced as against minority educational institutions. While Mohta, J took a view that even minority institutions were bound by the reservation policy referred to in the rules Dhabe, J took the 6 view that the reservation envisaged in the rules was a statutory right which had to yield in a conflict with the absolute fundamental right guaranteed under Article 30(1). Dhabe, J was, therefore, inclined to allow the writ petition and direct the authorities not to enforce sub- rules (7),(8) & (9) of Rule 9 of the said Rules as against the minority institutions. It must be stated here that Rule 7 directs the Management of a school to reserve 34 percent of total number of posts of teaching as well as non-teaching staff for the members of Scheduled Castes, Other Backward Classes etc. Rule (8) and (9) inter alia provide the procedure and modalities for effecting the reservation policy. In view of this conflict the matter was referred to the third Judge, Puranik J, who agreed with view taken by Dhabe, J. 11. In St. Francis De Sale's case, the petitioner institution was a minority educational institution run by the Christian Clergy. The Head Master of the petitioner school addressed a letter to the Education Officer Zilla Parishad, Nagpur seeking approval to the appointment of the teaching and non-teaching staff. The Education Officer sought particulars of caste of each teacher and information as to whether there was any backlog of backward class candidates. The petitioner forwarded the information but it was also pointed out that the rules of backlog were not applicable to the minority run schools. The Additional Education Officer while acknowledging that the petitioner was a minority school, hinted that it was not exempt from 7 appointing teaching and non-teaching staff from backward classes. He refused to approve the proposal forwarded by the petitioner on the ground that it did not comply with the said Rules. 12. The petitioner challenged the stand taken by the Education Officer by filing a writ petition. The petition came up for hearing before the Division Bench of this Court which expressed doubt about the view expressed by the Division Bench in Sindhu Education Society' s case (supra). The petition was, therefore, placed before the Full Bench. The Full Bench held that considering the reason why Article 30(1) has been enacted, the power of appointment of every teacher, from the junior most to the Principal/Headmaster, must be considered to be an integral facet of the power of administration of a minority institution guaranteed under Article 30(1). The Full Bench upheld the view taken by this Court in Sindhu Education Society's case that minority run institutions cannot be subjected to reservation policy. 13. After this judgment came, the judgment of the Supreme Court in TMA Pai Foundation' s case (supra). We may quote the relevant observations of the Supreme Court. “The right to establish an educational institution can be regulated; but such regulatory measures must, in general be to ensure the maintenance of proper academic standards, atmosphere and infrastructure (including qualified staff) and the prevention of maladminstration by those in charge of management. The finding of a 8 rigid fee structure, dictating the formation and composition of a governing body, compulsory nomination of teachers and staff for appointment or nominating students for admissions would be unacceptable restrictions.” The Supreme Court further observed as under : “ in case of an unaided minority educational institution, the regulatory measure of control should be minimal and the conditions of recognition as well as the conditions of affiliation to a University or Board have to be complied with, but in the matter of day-to-day management, like the appointment of staff, teaching and non-teaching, and administrative control over them, the management should have the freedom and there should not be any external controlling agency. However, a rational procedure for the selection of teaching staff and for taking disciplinary action has to be evolved by the management itself.” 14. In Sindhu Education Society, Nagpur Vs. State of Maharashtra, 2006(1) B.C.R. 898, a Division Bench of this Court had to decide whether the judgment of this Court in Sindhu Education Society's case in Writ Petition No.2409 of 1981 decided on 27th June 2005 requires reconsideration. The Division Bench referred to the judgment of the Supreme Court in TMA Pai's case and also the judgment of the Full Bench of this Court in Francis De Sales case (Supra) and held that right to select a teacher in a minority institution is an integral part of the right to administer under Article 30(1) of the Constitution and it cannot be whittled down by external regulation. 9 The only restrictions which could be imposed would be on the merits of an individual offering himself for being appointed as a teacher or a principal and no other. This Court reiterated that the appointment of staff and teachers is in the sole discretion of minority institution and any tinkering with the said right would amount to whittling down and denying the right under Article 30(1) of the Constitution of India. This Court reiterated that there is an enforceable fundamental right couched in absolute terms, guaranteed in favour of minority institution. There is a discretion left and not an obligation in the State to make reservations in favour of backward class citizen. But in case there is a conflict between that discretion and a guaranteed fundamental right couched in absolute terms in Article 30(1) of the Constitution enabling the minorities to establish and administer educational institutions of their choice, the latter shall prevail. This court, therefore, directed respondents not to enforce sub-rules (7), (8) and (9) of the said Rules against the petitioner therein who was a minority institution. 15. Examined in the light of the above mentioned judgment of the Supreme Court and judgments of this Court in our opinion the petitioner's contention has to be upheld. The impugned orders cannot be sustained in view of the law laid by the Supreme Court and this Court. 10 16. We must however, refer to judgment of the Supreme Court in Secretary Malankara Syrain Catholic College Vs. T. Joses 2007 (1) SCC 386 on which reliance is placed by learned AGP. Relevant paragraph runs as under: “(ii) The right conferred on minorities under Article 30 is only to ensure equality with the majority and not intended to place the minorities in a more advantageous position vis-a-vis the majority. There is no reverse discrimination in favour of minorities. The general laws of the land relating to national interest, national security, social welfare, public order, morality, health, sanitation, taxation, etc., applicable to all, will equally apply to minority institutions also. (iii) The right to establish and administer educational institutions is not absolute. Nor does it include the right to maladminister. There can be regulatory measures for ensuring educational character and standards and maintaining academic excellence. There can be checks on administration as are necessary to ensure that the administration is efficient and sound, so as to serve the academic needs of the institution. Regulations made by the State concerning generally the welfare of students and teachers, regulations laying down eligibility criteria and qualifications for appointment, as also conditions of service of employees (both teaching and non-teaching), regulations to prevent exploitation or oppression of employees, and regulations prescribing syllabus and curriculum of study fall under this category. Such regulations do not in any manner interfere with the right under Article 30(1).” 17. In our opinion there can be no doubt that State can exercise control over the administration of the minority school to ensure that 11 they are run properly. Maladministration of the minority school cannot be tolerated. Eligibility criteria and required qualifications for appointment cannot be sidetracked. But surely reservation policy cannot be imposed on minority schools. It would be in violation of the right of the minority school under Article 30(1) of the Constitution of India. 18. In the circumstances we set aside the impugned orders dated 23rd August, 2004 and 3rd September, 2004. Accordingly, the petition is made absolute in terms of prayer clause (b). 19. Petition is disposed of. 20. At this stage learned Counsel for the State of Maharashtra prays that operation of this order be stayed. In the circumstances of the case we stay the operation of this order for 12 weeks. (SMT. ROSHAN DALVI, J.) (SMT.RANJANA DESAI, J.) 12