IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No 9560 of 2006 Anjali Jain, daughter of late Bimal Kishore Jain, resident of Mohalla – Mahajan Toli No 1, Jail Road, Police Station – Ara Town, District – Bhojpur - Petitioner Versus 1 The State of Bihar 2 The Commissioner –cum- Secretary, Human Resources Department, Bihar, Patna 3 The Director, Primary Education, Patna 4 The District Superintendent of Education, Bhojpur at Ara 5 Managing Committee through its Secretary, Sri Jain Kanya Pathshala, Middle School, Jail Road, Ara, Bhojpur 6 The Headmistress, Sri Jain Kanya Pathshala, Middle School, Jail Road, Ara - Respondents WITH CWJC No 9753 of 2006 Rashmi Jain, wife of Satyendra Kumar Jain, resident of Mahadeva Road, Mahajan Toli No 1, P O – Ara, P S – Ara Town, District – Bhojpur (Bihar), Assistant Teacher Sri Jain Kanya Pathshala, Middle School, Ara, Bhojpur - Petitioner Versus 1 The State of Bihar 2 The Commissioner –cum- Secretary, Human Resources Department, Patna 3 The Director, Primary Education, Patna 4 The District Superintendent of Education, Bhojpur, Ara 5 Managing Committee through its Secretary, Sri Jain Kanya Pathshala, Middle School, Jail Road, Ara, Bhojpur 6 The Headmistress, Sri Jain Kanya Pathshala, Middle School, Jail Road, Ara - Respondents *** For the petitioners : Mr Baxi S R P Sinha, Sr Advocate With M/s Sanjay Kumar & Rahul Nath, Advocates For the S t a t e : Mr Abhinay Raj, AC to AAG - 2 *** 9 11.05.2011 These two writ petitioners raise a common issue of law and 2 are similar on facts as well. Pleadings being complete, with consent of parties, these writ petitions have been heard for final disposal at this stage itself. The issue that arises for determination of this Court is whether State is competent to impose its reservation policy in respect of selection and appointment of staff, teacher in present cases, in respect of a recognised minority educational institution like, Schools as in the present cases, where such School is receiving Government aid? The facts are not in controversy and, therefore, the facts, as appearing in the first writ petition, is being noted. In the district of Bhojpur in the State of Bihar at Ara, there is a Middle School which was established in the year 1907 by the Jain Community which is a Minority Community known as Shri Jain Kanya Madhyamik Pathshala. It is not in dispute that it is duly recognised by the State as a minority educational institution. It is governed by its Managing Committee whose members are pre-dominantly of the Jain Community. It appears that pursuant to a vacancy caused amongst the Teachers as against a duly sanctioned post, pursuant to advertisement issued and interview held, petitioner was selected for being appointed Teacher in the said School by the Managing Committee. Petitioner was appointed with effect from 01.12.1994 and pursuant to the said selection and appointment, the Headmistress of the School then sought approval of petitioner’s appointment from the District Inspector of Schools, Bhojpur on or about 05.04.1995. The District Inspector of Schools, Bhojpur at Ara granted approval to the appointment and then apparently recommended it 3 to the District Superintendent of Education. The District Superintendent of Education Bhojpur, on or about 16.12.2004, approved the appointment and fixed the pay scale as well as Matric Trained Assistant Teacher with effect from 01.12.1994. He then forwarded the same alongwith the case of second writ petitioner whose appointment had also been subsequently made on vacant sanctioned post of Assistant Teacher to the Director, Primary Education, Government of Bihar. The Director, Primary Education, by his letter dated 15.11.2005, returned the matter for reconsideration in view of a departmental letter dated 02.05.2005. Thus, the matter of confirmation of petitioners’ appointments as Assistant Teachers having remained pending for such a long time, the petitioners filed these two writ applications independently. During pendency of these writ petitions, the District Superintendent of Education, Bhojpur at Ara, by his communication dated 13.12.2006, passed an order that as per departmental directives issued in the year, 1993 and reiterated in 2005, as reservation policy was not followed nor reservation roster applied, as per orders of the Director, Primary Education, Government of Bihar, the approval granted by the District Superintendent of Education on 16.12.2004 was cancelled. It was directed that as petitioners’ School was receiving Government aid, it must follow the departmental Circulars with regard to reservation policy in all matters of appointment. By amendment application which was allowed, this was challenged. It may be noted that before the District Superintendent of Education had granted approval, he had made certain queries in which the Secretary of the Governing Body of the School 4 clearly replied that in view of Articles-29 and 30 of the Constitution, the School of the petitioners being a recognized minority School, it was competent to independently make appointments and reservation and roster clearances were not required. Thus, though both the writ petitioners had been working for a considerable period duly selected by the Managing Committee of the recognised minority educational institution, the result of the disapproval is that apart from the petitioners not being paid their salary now even work has been stopped to be taken from them. It is in these situations the question as noted above, arises. On the aforesaid facts, it would be seen that the selection and appointment of the petitioners of the two writ petitions was disapproved not because they were not duly selected for appointment on a vacant sanctioned post nor because they were not academically qualified but solely on the ground that the Management did not conform to the departmental circulars extending and applying reservation policy and reservation roster while making the selection. Thus, it is clear that, but for non-compliance of the reservation policy, they were otherwise fit and qualified to be appointed as Assistant Teachers. On behalf of petitioners, Shri Baxi S R P Sinha, learned Senior Counsel submits that in terms of Article-30 (1) and Article-30 (2) of the Constitution of India, Minorities have a fundamental right to establish and administer educational institution of their choice. This fundamental right is an absolute right and cannot be restricted unlike Article-19 of the Constitution where reasonable restrictions are 5 permissible. With reference to Article-30 (2), it is submitted that even in respect of educational institutions run by minority, State cannot, in granting aid, discriminate against them on the ground that they are minority institutions, meaning thereby, that if there be a policy of the State to grant aid to Schools then merely because an educational institution is a minority institution, aid, similar to other Schools, cannot be refused. In other words, it is submitted that no condition can be attached to grant of aid which would take away or interfere with the right to establish and administer the minority educational institution. On the other hand, on behalf of the State, it is urged that the departmental circulars are clear. They do not discriminate between minority educational institutions or other educational institutions in matter of Government aid and similarly they do not discriminate between them in matters of implementation of reservation policy concerning employment in those institutions. Government is competent to impose reservation policy for the purposes of appointment of teaching and non- teaching staff even in minority institutions if they are receiving aid from the Government. It is the correctness of these contradictory stands taken by either side that has to be decided. The first thing that is to be noted is Article-30 of the Constitution is in Part-III of the Constitution and it deals with fundamental rights. It is not subject to reasonable restriction as is the case with Article 19 (1). The second thing that has to be kept in mind is that the right of the State or for that matter, the Parliament to provide for 6 reservations under Article 16 (4) in matters of employment is an exception to the general rule of equal opportunity of employment to all citizens as enshrined under Article 16 (1) of the Constitution and is limited to employment or appointment to any office under the State. Surely and rightly, it is not contended that employment of petitioners in the minority educational institution governed by its own Governing Body is employment under the State. The first case that I would refer is the case of Sidharajbhai Sabbai and others –Versus- State of Gujarat and another since reported in AIR 1963, Supreme Court 540 being the judgment of the Constitution Bench of six Judges of the Supreme Court, relevant parts of paragraph-10 is quoted hereunder : “Unlike Art 19, the fundamental freedom to establish and administer educational institutions by minorities guaranteed under cl (1) of Art 30, is absolute in terms : it not made subject to any reasonable restrictions of the nature the fundamental freedoms enunciated in Art 19 may be subjected to. All minorities, linguistic or religious have by Art 30 (1) 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 Art 30 (1) would to that extent be void. … … .” I may then refer to what their Lordships say and hold further in paragraph-15 of the reports which is quoted hereunder : “The right established by Art 30 (1) is intended to be a real right for the protection of the minorities in the matter of setting up of educational institutions of their own choice. The right is intended to be effective and is not to be whittled down by so-called regulatory measures conceived in the interest not of the minority educational institution but of the public or the nation as a whole. If every order 7 which while maintaining the formal character of a minority institution destroys the power of administration is held justifiable because it is in the public or national interest, though not in its interest as an educational institution the right guaranteed by Art 30 (1) will be but a “teasing illusion”, a promise of unreality. Regulations which may lawfully be imposed either by legislative or executive action as a condition of receiving grant or of recognition must be directed to making the institution while retaining its character as a minority institution effective as an educational institution. Such regulation must satisfy a dual test – the test of reasonableness, and the test that it is regulative of the educational character of the institution and is conducive to making the institution an effective vehicle of education for the minority community or other persons who resort to it.”(emphasis supplied) The above propositions clearly bring about distinction between Articles-19 and 30. It further clearly points out that though the administrative measures through regulation may be deemed to be in public or national interest but if it affects the right of Minority Institution in powers of administration, it would be bad. The third thing to be noticed is that the regulation may be lawfully imposed but the said regulation must be to regulate the educational character of the institution. Then I deem it proper to refer the next decision of the Supreme Court upon presidential reference known as In re The Kerala Educational Bill, 1957 since reported in AIR 1958 Supreme Court 956. First, in this connection, I may refer to what is said in paragraph-31 of the reports, relevant portions of which is quoted hereunder : “… … … The directive principles cannot ignore or override the fundamental rights but must, as we have said, subserve the fundamental rights. We have already observed that Art 30 (1) gives two rights to the minorities. (1) to establish and (2) to 8 administer, educational institutions of their choice. The right to administer cannot obviously include the right to maladminister. 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 of which teaches matters subversive 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. … … … The State must not grant aid in such manner as will take away the fundamental right of the minority community under Art 30 (1). … … … No educational institution can in actual practice be carried on without aid from the State and if they will not get it unless they surrender their rights they will, by compulsion of financial necessities, be compelled to give up their rights under Art 30 (1). The legislative powers conferred on the legislature of the States by Arts 245 and 246 are subject to the other provisions of the Constitution and certainly to the provisions of Part III which confers fundamental rights which are, therefore, binding on the State legislature. The State legislature cannot, it is clear, disregard or override those provisions merely by employing indirect methods of achieving exactly the same result. Even the Legislature cannot do indirectly what it certainly cannot do directly. … … … Likewise Cl 11 takes away an obvious item of management, for the manager cannot appoint any teacher at all except out of the panel to be prepared by the Public Service Commission, which, apart from the question of its power of taking up such duties, may not be qualified at all to select teachers who will be acceptable to religious denomination and in particular sub- cl (2) of that clause is objectionable for it thrusts upon educational institutions of religious minorities teachers of Scheduled Castes who may have no knowledge of the tenets of their religion and may be otherwise 9 weak educationally.” Then in paragraph-32, it has been observed thus : “… … … Without recognition, the educational institutions established or to be established by the minority communities cannot fulfil the real objects of their choice and the rights under Art 30 (1) cannot be effectively exercised. The right to establish educational institutions of their choice must, therefore, mean the right to establish real institutions which will effectively serve the needs of their community and the scholars who resort to their educational institutions. There is, no doubt, no such thing as fundamental right to recognition by the State but to deny recognition to the educational institutions except upon terms tantamount to the surrender of their constitutional right of administration of the educational institutions of their choice is in truth and in effect to deprive them of their rights under Art 30 (1). The legislative power is subject to the fundamental rights and the legislature cannot indirectly take away or abridge the fundamental rights which it could not do directly and yet that be the result if the said Bill containing any offending clause becomes law.” Then I may refer to the submission as referred to in the judgment in paragraph-41 of the reports which is quoted hereunder : “… … … (1) The State is under a positive obligation to give equal treatment in the matter of aid or recognition to all educational institutions, including those of the minorities, religious or linguistic. (2) The State is under a negative obligation as regards those institutions, not to prohibit their establishment or to interfere with their administration. … … …” Thus, from the judgments aforesaid, it would be seen that any infringement on the right of the minority to establish or administer their educational institution would be bad if they are not restricted to 10 regulating and enforcing excellence in education and efficiency in management. No strings can be attached to grant of aid which would take away the vital right to administer a minority educational institution. Next, I may refer to the Constitution Bench judgment of the Apex Court in the case of DAV College –Versus- State of Punjab and others since reported in AIR 1971 Supreme Court 1737. In that case, the Court was considering the validity of the provisions of Guru Nanak University Amritsar Act, 1969 and the statutes made thereunder. Statute 2 (1) (a) dealt with constitution of the Managing Committee of a College seeking affiliation to the University. It, inter alia, provided for approval of the constitution of Governing Body by the Senate which Governing Body would also include University representatives. Clause-17 provides that staff initially appointed shall be by approval of the Vice Chancellor and all subsequent changes shall be with the approval of the Vice Chancellor. The consequence of non-compliance of these conditions was disaffiliation. The Court unanimously held in paragraph-37 of the report that these conditions decidedly interfered with the right of Management and, thus, provisions would, therefore, not be made condition of affiliation. They were, accordingly, struck down as offending Article-30 (1) of the Constitution but when it came to Clause-18 of the Regulations which provided that non-Government Colleges shall comply with the requirement laid down in the Ordinances governing service and conduct of Teachers as may be framed by the University, Court upheld the validity thereof. Paragraph-38 of the reports is quoted hereunder : “Clause 18, however, in our view does not 11 suffer from the same vice as Clause 17 because that provision in so far as it is applicable to the minority institutions empowers the University to prescribe by regulations governing the service and conduct of teachers which is enacted in the larger interests of the Institutions to ensure their efficiency and excellence. It may for instance issue an ordinance in respect of age of superannuation or prescribe minimum qualifications for teachers to be employed by such Institutions either generally or in particular subjects. Uniformity in the conditions of service and conduct of teachers in all non-Govt Colleges would make for harmony and avoid frustration. Of course while the power to make ordinances in respect of the matters referred to is unexceptional the nature of the infringement of the right, if any, under Article 30 (1) will depend on the actual purpose and import of the ordinance when made and the manner in which it is likely to affect the administration of the educational institution, about which it is not possible now to predicate.” (emphasis supplied) Thus, it is clear that the Apex Court pointed out that in matters of constitution of the Managing Committee, State could not interfere in so far as minority institutions were concerned. In respect of staff, it could interfere but in a limited manner that is with regard to service conditions. Next we come to the case of The Ahmedabad St Xaviers College Society and another –Versus- State of Gujarat and another since reported in AIR 1974 Supreme Court 1389. In this case, which was decided by Constitution Bench of nine Judges, the question was with regard to various amendments being made to the Gujarat University Act, 1949 as offending Article-30 (1) of the Constitution and, as such, not applicable to minority institutions. In paragraph-41 of the reports, the 12 Court held thus ; “Autonomy in administration means right to administer effectively and to manage and conduct the affairs of the institutions. The distinction is between a restriction on the right of administration and a regulation prescribing the manner of administration. The right of administration is day to day administration. The choice in the personnel of management is a part of the administration. The university will always have a right to see that there is no mal-administration. If there is mal- administration, the university will take steps to cure the same. There may be control and check on administration in order to find out whether the minority institutions are engaged in activities which are not conducive to the interest of the minority or to the requirements of the teachers and the students.” (emphasis supplied) In paragraph-103, the Court held thus : “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 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). … … …” (emphasis supplied) From the aforesaid, it would be clear that so far as choice of qualified Teachers for appointment is concerned, that would be the 13 prerogative of minority institution and anything which restricts or interferes with that would be void as being violative of Article-30 (1) of the Constitution affecting the right to administer the institution. Now we come to a more pertinent observation which is to be found in paragraph-177 of the said judgment with regard to institutions which receive Government grants : “… … … If, besides recognition or affiliation, an educational institution conducted by a religious minority is granted aid, further regulations for insuring that the aid is utilised for the purpose for which it is granted will be permissible. The heart of the matter is that no educational institution established by a religious or linguistic minority can claim total immunity from regulations by the legislature or the University if it wants affiliation or recognition; but the character of the permissible regulations must depend upon their purpose. As we said, such regulations will be permissible if they are relevant to the purpose of securing or promoting the object of recognition or affiliation. There will be borderline cases where it is difficult to decide whether a regulation really subserves the purpose of recognition or affiliation. But that does not affect the question of principle. In every case, when the reasonableness of a regulation comes up for consideration before the Court, the question to be asked and answered is whether the regulation is calculated to subserve or will in effect subserve the purpose of recognition or affiliation, namely, the excellence of the institution as a vehicle for general secular education to the minority community and the other persons who resort to it. The question whether a regulation is in the general interest of the public has no relevance, if it does not advance the excellence of the institution as a vehicle for general secular education as, ex- hypothesi, the only permissible regulations are those which secure the effectiveness of the purpose of the facility, namely, the excellence of the educational institutions in 14 respect of their educational standards. This is the reason why this Court has time and again said that the question whether a particular regulation is calculated to advance the general public interest is of no consequence if it is not conducive to the interests of the minority community and those persons who resort to it.” (emphasis supplied) From the above passage, it is clear that even so far as Government aided institutions are concerned, no regulation can be made in general public interest if it is of no consequence to the excellence of educational standards or to the efficiency in management thereof. This is further clarified in paragraph-183 of the reports which is quoted hereunder : “It is upon the principal and teachers of a college that the tone and temper of an educational institution depend. On them would depend its reputation, the maintenance of discipline and its efficiency in teaching. The right to choose the principal and to