Case: Rev. Sidhajbhai Sabhai &amp; Others Vs. State of Bombay &amp; Another

1. The petitioners profess the Christian faith and belong to the United Church of Northern India. They are members of the Gujarat and Kathiawar Presbyterian Joint Board hereinafter called the society-which conducts in the areas which now form the State of Gujarat, forty-two primary schools and a Training College for teachers, known as the Mary Brown Memorial Training College," at Borsad, District Kaira. The teachers framed in the college are absorbed in the primary schools conducted by the society and those not so absorbed are employed by other Christian Mission Schools conducted by the United Church of Northern India. The cost of maintaining the Training College and the primary schools is met out of donations received from the Irish Presbyterian Mission, fee from scholars and grant-in-aid under the Education Code of the State Government. The primary schools and the College are conducted for the benefit of the religious denomination of the United Church of Northern India and Indian Christians generally, though admission is not denied to students belonging to other communities. The training course in the college is of the duration of two years and originally 25 students were admitted in the First Year and 25 in the Second Year. Till the year 1952 surplus accommodation after admitting students who were to qualify as teachers required for the societys primary, schools, was available for other students. The College was recognized by the Government of Bombay for training students for the examinations held by the Education Department for granting certificates for trained teachers2. In each District of the State of Bombay there is maintained a District School Board and in a Municipal area a Municipal School Board. These School Boards attend to matters relating to primary education and conduct schools in the areas in which they function. To provide trained teachers for the schools run and conducted by the School Boards, the State maintains Training Colleges for teachers3. In November 1952 the Government of Bombay ordered all private Training Colleges in the State to reserve 60% of "seats for training Boards" School teachers nominated by the Government." The society protested against the order. There were negotiations between the Education Department of the Government and the society and it was agreed that the society should admit every year 20 students, 10 in each class. Accordingly, in June 1953. 10 students were nominated by the Government and another batch of ten students was nominated in June, 1954. On May 28, 1955, the Government of Bombay issued another order that with effect from the academic year 1955-56, 80% of the seats should be reserved by the Management in non-Government Training Colleges for the District and Municipal School Board teachers to be nominated by the Government. It was recited in the order that there were 40,000 untrained primary teachers employed by District School Boards and Authorised Municipalities, and some more untrained teachers were likely to be selected and appointed as primary teachers during the next academic year and in order that untrained teachers should have the necessary training as soon as possible, Government had decided to expand the existing training facilities with a view to increasing "the output of trained teachers" by opening new Training Colleges and by directing that 80% of the seats in non-Government Training Colleges should be reserved for School Board teachers with effect from the next academic year (1955-56). On June 13, 1955, the Educational Inspector, Kaira District addressed a letter to the Principal of the College informing him that 80% of the total number of seats in the training college be reserved for school Board teachers "deputed by the Government", and ordered the Principal not to admit private students in his institution in excess of 20% of the total strength in each class without specific permission of the Education Department. The Principal of the College, by letter dated June 15, 1955, expressed his inability to comply with the order. There was correspondence between the society and the Education Department in the course of which the Department insisted that 80% of the seats should be reserved by the College for school Board teachers and that no fresh admissions should be made. By letter dated December 27, 1955, the Educational Inspector, Kaira District informed the management of the College that the action taken by them in refusing admission to the School Board teachers was highly irregular and against the Government policy, that the management was severely warned for disregarding the orders issued in that connection, and that in view of the managements defiant attitude it had been decided that no grant would be paid to the College for the current year unless the management agreed to reserve 80% seats for School Board teachers from 1956-57 and that the management should maintain only one division of the IInd Year class during the year 1956-57 and that it should not admit fresh candidates to the Ist Year without specific permission from the Director of Education, Poona, failing which severe disciplinary action such as withdrawal of recognition of the institution would be taken. The society submitted on February 10, 1956, a memorial to the Minister for Education, Government of Bombay protesting against the threat to take disciplinary action and to withdraw recognition. By letter dated March 12, 1956, the society was informed that in view of the refusal of the society to reserve seats for the School Board teachers, grant for the current year was withheld. By letter dated March 22, 1956, the society wrote to the Minister for Education requesting that they be permitted to fill twelve places in each year and the remaining places (which amounted to 60% of the total strength) be reserved for School Board teachers. By letter dated March 29, 1956, the Educational Inspector called upon the Principal of the College not to admit private candidates to the Ist year class without obtaining previous permission from the Director of Education, and informed him that the provisional grant of Rs. 8,000/- sanctioned to the College was on "the distinct understanding that 80% of the seats are reserved for School Board teachers from 1956-57 and necessary residential accommodation is made available for them". On April 18, 1956, the society was informed that 80% of the seats for the 1st year should be reserved for the School Board teachers annually and the same be continued next year in the IInd year, that due hostel accommodation be provided for those teachers, that the College students should be allowed to observe important festivals of all religions not "involving rituals as part of cultural programmes under community living", and the College should provide some place where all teachers, staff and students can meet and recite common prayers. By letter dated May 9, 1956, the Director of Education informed the society in continuation of letter dated April 18, 1956 that the Society having failed to assure the Government that they will abide by the conditions set out in the earlier letter no deputations of teachers were made to the 1st year of the College during the year 1956-57 and that the College will not be paid the grant. On June 9, 1956, the Director of Education again wrote to the society calling upon it to admit all the School Board teachers as may be deputed up to 80% of the seats in the Ist year class for the year 1956-57, and to provide adequate hostel accommodation for them and if the society failed to communicate its willingness to comply therewith within seven days from the receipt of the letter, the Government would be constrained to withdraw recognition accorded to the 1st year class of the Training College under R. 11 for recognition of non-primary Training College framed by the Government under G. R. II dated November 9, 1949. This letter was written in pursuance of the authority assumed under two seals of Rules framed by the Government of Bombay- (1) Rules for Primary Training Colleges, and (2) Rules for the recognition of the Private Training Institutions. By R. 5 (2) of the first set of Rules, it was prescribed that in non-Governmental institutions, percentage of seats reserved for Board deputed teachers shall be fixed by the Government and the remaining seats shall be filled by students deputed by private schools or by private students.

Reasoning: 7. Article 19(1) (f) on which reliance has been placed on behalf of the society does not come to its aid. By that clause all citizens are declared to have the fundamental freedom to acquire, hold and dispose of property. But by the rules and orders impugned no right to acquire, hold or dispose of property is violated. Interference with the right of bare management of an educational institution does not amount to infringement of the right to property under Art. 19(1) (f). The decision of this Court in Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, 1954 SCR 1005  : (AIR 1954 SC 282  ) on which reliance is placed by the society does not lay down any proposition to the contrary. The Court was dealing in that case with the alleged infringement of the right of a Mahant in a religious institution by the enactment of the Madras Hindu Religious and Charitable Endowments Act, XIX of 1951. It was observed that a Mathadhipati of a Math is not a mere manager and that it would not be right to describe mahantship as a mere office: a superior of a Math has not only duties to dischargeThe word "property" in Art. 19(1) (f) must doubtless be extended to all those recognised types of interest which have the insignia or characteristics of proprietary rights, and a Mathadhipati has those rights, but it cannot be said that the petitioners in this case have any such proprietary rights as are vested in the Mahant of a Math Nor does the principle of Sri Dwarka Nath Tewari v. State of Bihar, AIR 1959 SC 249   apply to this case. In Dwarka Naths case AIR 1959 SC 249   by an executive order the Government of Bihar purported to divest the trustees of a school of their right to land and building belonging to the school. The Court held that the applicants in whom the land and the building of the school were vested as the Managing Committee of the school could not be divested of their rights by the mere fist of an official of the Government. No attempt is made by the order of the State to deprive the petitioners of their right to property, and fundamental freedom guaranteed by Art. 19(1) (f) of the Constitution is therefore not violated. Nor is the right of the petitioners to practice any profession, or to carry on any occupation, trade or business guaranteed under Art. 19(1) (g) of the Constitution infringed by the impugned rules and directions8. Article 26 occurs in a group dealing with freedom of religion and is intended to protect the right "to manage religious affairs". By clause (a) of Art. 26. every religious denomination or any section thereof, has subject to public order, morality and health, the right to establish and maintain institutions for religious and charitable purposes, and in a larger sense an educational institution may be regarded as charitable. But in the view we take of the protection of Art. 30(1), we do not think it necessary to express any opinion on the plea that the right of the petitioners granted by Art. 26 to manage the college is infringed by the impugned rules and orders issued by the Government of BombayIt was therefore held that notwithstanding the absolute terms in which the fundamental freedom under Art. 30(1) was guaranteed, it was open to the State by legislation or by executive direction to impose reasonable regulations. The Court did not, however, lay down any test of reasonableness of the regulation. The Court did not decide that public or national interest was the sole measure or test of reasonableness: it also did not decide that a regulation would be deemed unreasonable only if it was totally destructive of the right of the minority to administer the educational institution. No general principle on which reasonableness or otherwise of a regulation may be tested was sought to be laid down by the Court. 1959 SCR 995  : (AIR 1958 SC 956  ), therefore, is not an authority for the proposition submitted by the Additional Solicitor General that all regulative measures which are not destructive or annihilative of the character of the institution established by the minority, provided the regulation are in the national or public interest, are valid17. The right established by Art. 30(1) is a fundamental right declared in terms absolute. Unlike the fundamental freedoms guaranteed by Art.19 it is not subject to reasonable restrictions. It 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 regulative measures conceived in the interest not of the minority educational institution, but of the public or the nation as a whole. If every order which while maintaining the formal character of a minority institutions 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 an 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 it18. We are, therefore of the view that the R.3(2) of the Rules for Primary Training Colleges, and Rr.11 and 14 for recognition of Private Training institutions, in so far as they relate to reservation of seats therein under orders of Government, and directions given pursuant thereto regarding reservation of 80% of the seats and the threat to withhold rant-in-aid and recognition of the College, infringe the fundamental freedom guaranteed to the petitioners under Art. 30(1).