JUDGMENT
Srinivasan, J.
1. A “Introduction: In these writ petitions, the Constitutional validity of G.O.Ms. No. 536, Education (UI) Department, dated 17.5.1989 and G.O.Ms. No. 661, Education (UI) Department, dated 12.6.1991 is challenged mainly on the ground that they violate the rights of the petitioners guaranteed under Article 30 of the Constitution of India and they offend the provisions of Article 14 of the Constitution of India. By the two Government Orders the State Government introduced certain amendment to the Tamil Nadu Minority Schools (Recognition and Payment of Grant) Rules, 1977 approved in G.O.Ms. No. 2080, Education, dated 14.9.1977. Before referring to the provisions thereof and the contentions of the parties, a brief peep into the history is necessary.
[After tracing the history of the impugned G. Os. and the compelling circumstances under which they were issued, His Lordship proceeded -Ed.]
2. By the said Government Order (G.O.Ms. No. 536) the Tamil Nadu Minority Schools (Recognition and Payment of Grant) Rules, 1977 are amended. The first part of it contains certain instructions to be followed by the Teacher Training Institutes in addition to the pre-existing rules. The instructions pertain to Library, Craft Skill Development, Teaching practice and Staff requirements. Rule 4(4) is amended by adding the following as Clause (C) after Clause (b):
(c) For the purpose of recognition of Teacher Training Institute the conditions for recognition shall be as specified in “Annexure V”.
Annexure V is added after Annexure IV in the said rules. The annexure contains additional conditions to be satisfied for the purpose of recognition of a Teacher Training Institute. The following are the matters dealt with therein. I. Location, Land and Building. II. Amenities, III. Equipments. IV Laboratory. V. Library. VI. Play Ground, VII. Craft, VIII. Teaching Practice, IX. Strength, X. Certificates to be enclosed XI. Management, XII. Rejection, XIII. Inspection, By G.O.Ms. No. 442, dated 12.4.1991 Clause (d) was added after Clause (c) in Sub-rule (4) of Rule 4 of 1977 Rules and it reads as follows:
(D) No institute which does not enjoy recognition shall be permitted to present students for writing public examination conducted by the Director of Government Examinations.
By G.O.Ms. No. 661, dated 12.6.1991 the following was substituted in Annexure V for the item ” IV Strength”:
There should be economic strength as prescribed by the Education Department”.
“The Teacher Training Institutes should not admit more than forty students in all for the course and should not exceed this limit either in the first or second year.
Originally the item prescribed that the institutes should not admit more than the number of candidates prescribed by government from time to time. By G.O.Ms. No. 1064, dated 13.11.1991 item 1 of Annexure V was amended whereby the requirement of atleast ten acres of land was confined to areas other than Municipal Corporation wherein the extent was reduced to give acres. The provision regarding location and the extent of playground in item VI were also amended. The details of the impugned Government Orders and the amendments will be referred to as and when necessary.
“C” Contentions:
3. The main attack by the petitioners is on the following grounds: The petitioners are minority institutions protected by Article 30(1) of the Constitution of India and their right to establish and administer educational institutions of their choice is sought to be annihilated by the two impugned Government Orders. The Government Orders are arbitrary and unreasonable and they are violative of Article 14. None of the petitioners is receiving any aid from the Government and the Government Orders traverse beyond the parameters fixed by Constitution as interpreted by the Supreme Court of India. When this Court had held the relevant sections of the Statute and the relevant rules to be inapplicable to minority institutions, it is not open to the Government to make non-statutory rules and impose the same conditions thereby. There is total non-application of mind in passing the Government Orders and they are not in the interests of the minorities. The State Government is not competent to frame the rules and it is only the Central Legislature which can frame rules. The rules being non-statutory are no better than administrative instructions and they offend the provisions of Article 19(1) (g) of the Constitution and they cannot be saved by Article 19(6). The Rules are also discriminatory inasmuch as they prescribe different standards for private schools from those for Government schools. As the Government Orders do not make a distinction between aided and unaided institutions, they are treating unequals as equals and thus offending Article 14 of the Constitution.
4. The learned Advocate General argued in support of the validity of the Government Orders and the Additional Government Pleader Mr. P. Shanmugham supplemented his arguments. In short their contentions are as follows: The Government has only taken regulatory measures for furthering excellence of standards of education and there is no restriction or interference with the Fundamental Right of the Minorities guaranteed by Article 30(1) of the Constitution as interpreted by the Supreme Court of India. The Teacher Training Institutes form a class by them-selves and they cannot be compared with the other kinds of educational institutions. The policy of the Government is to weed out inadequacy in training of teachers who in turn are expected to impart knowledge to multitude of young students and to prepare them to meet the hardships of life. Once the Government Orders are supported by proper reasons, the wisdom of the policy of the Government cannot be questioned by Courts and it is beyond judicial review. The Minorities do not have any Fundamental Rights of recognition and if they seek recognition they must comply with the conditions imposed by the Government which are only the purpose of ensuring educational excellence. The Government is entitled to exercise its executive power in the absence of a statute. As the judgment of the Division Bench has made the relevant provisions of the statute inapplicable to minority institutions, the Government is entitled and bound to frame rules administratively. The petitioners have not discharged the initial burden cast on them to prove that the rules affect their Fundamental Rights to establish and administer educational institutions of their own.
“D” Case Law:
5. Before considering the acceptability of the respective contentions we would refer to the decisions cited before us and the principles laid down in chronological order.
(i) Article 30(1), Constitution of India.
6. Article 30(1) of the Constitution of India is in the following terms:
All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.
In The Kerala Education Bill case A.I.R. 1984 S.C. 956, the Supreme Court while answering a reference under Article 143(1) of the Constitution held that Article 30(1) gives two rights to the minorities (1) to establish, and (2) to administer, educational institutions of their choice but the right to administer cannot obviously include the right to maladminister. It observed as follows:
…The first point to note is that the articles gives certain right not only to religious minorities but also to the linguistic minorities. In the next place, the right conferred on such minorities is to establish educational institutions of their choice. It does not say the minorities based on religion should establish educational institutions for teaching religion only, or that linguistic minorities should have the right to establish “educational institutions for teaching their language only. What the article says and means is that the religious and the linguistic minorities should have the right to establish educational institutions of their choice. There is no limitation placed on the subjects to be taught in such educational institutions. As such minorities will ordinarily desire that their children should be brought up properly and efficiently and be eligible for higher university education and go out in the world fully equipped with such intellectual attainments as will make them fit for entering the public services, educational institutions of their choice will necessarily include institutions imparting general secular education also. In other words, the article leaves it to their choice to establish such educational institutions as will serve both purposes, namely, the purpose of conserving their religion, language or culture, and also the purpose of giving a through, good general education to their children. The next thing to note is that the article, in terms, gives all minorities, whether based on religion or language, two rights, namely, the right to establish and the right to administer educational institutions of their choice. The key to the understanding of the true meaning and implication of the article under consideration are the words “of their own choice”. It is said that the dominant word is “choice” and the content of that article” is as wide as the choice of the particular minority community may make. The ambit of the rights conferred by Article 30(1) has, therefore, to be determined on a consideration of the matter from the points of view of the educational institutions themselves. The educational institutions established or administered by the minorities or to be so established or administered by them in exercise of the rights conferred by the Article may be classified into three categories, namely, (1) those which do not seek either aid or recognition from the State. (2) those which want aid, and (3) those which want only recognition but not aid”.
“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 fair standard of teaching or 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 regulation to ensure the excellence of the institutions to be aided”
“The minorities evidently desire that education should be imparted to the children of their community in an atmosphere congenial to the growth of their culture. Our Constitution makers recognised the validity of their claim and to allay their fears conferred on them the fundamental rights referred to above. But the conservation of the distinct language, script or culture is not the only object of choice of the minority communities. They also desire that scholars of their educational institutions should go out in the world well and sufficiently equipped with the qualifications necessary for a useful career in life. But according to the Education Code now in operation to which it is permissible to refer for ascertaining the effect of the impugned provisions on existing state of affairs, the scholars of unrecognised schools are not permitted to avail themselves of the opportunities for higher education in the University and are not eligible for entering the public services. Without recognition, therefore, the educational institutions established or to be established by the minority communities cannot fulfil the “real object of their choice and the rights under Article 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 order and in effect to deprive them of their rights under Article 30(1). We repeat that the legislative power is subject to the fundamental rights and the legislature cannot indirectly take away or abridge the fundamental rights which it could hot do directly and yet that will be the result if the said Bill containing any offending clause becomes law….
7. In Sidhrajbhai v. State of Gujarat A.I.R. 1963 S.C. 540 : 1962 K.L.T. (S.C.) 135 : (1963)2 S.C.A. 394, the principles were reiterated in the following words:
The right established by Article 30(1) is a fundamental right declared in terms absolute. Unlike the fundamental freedoms guaranteed by Article 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 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 Article 30(1) will be but a “teasing illusion”, a promise of unreality, Regulation, 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.
The Court pointed out earlier,
Regulations made in the true interests of efficiency of instruction discipline, health, sanitation, morality, public order and the like may undoubtedly be imposed. Such regulations are not restrictions on the substance of the right which is guaranteed; they secure the proper functioning of the institutions, in matters educational.
In Azeez Basha v. Union of India , the Apex Court held that the words “establish and administer” in Article 30(1) should be read conjunctively and that the minority will have the right to administer only if the educational institution is established by itself.
8. In State of Kerala v. Mother Pronnical , the Court held that for getting the protection of Article 30(1), it does not matter whether a single individual with his own means funds the institution or the community at large contributes the funds and that the intention in either case must be to found an institution for the benefit of a minority community by a member of that community. It was also held that in addition to the minority community others from other minority communities or even from the majority community can take advantage of such institutions and the facts that such other communities bring in income will not prevent the institution from enjoying the protection under the article. It was pointed out that while management of the institution cannot be interfered with, standards of education are not a part of management as such and the standards concern the body politic and are dictated by considerations of advancement of the country and its people. It was observed, “the minority institutions cannot be allowed to fall below the standards of excellence expected of educational institutions or under the guise of exclusive right of management to decline to follow the general pattern while the management must be left to them, they may be compelled to keep in step with others”.
8. In Regina v. St., A.H.E. School , the power of the State Government to issue administrative instructions containing rules relating to grant of recognition and aid educational institutions was recognised and the Court said,
But it cannot also be gainsaid that as the Government has the power, to admit schools to recognition and grants-in-aid, it can, de hors the Act, lay down conditions under which it would grant recognition and aid. To achieve uniformity and certainty in the exercise of such executive power and to avoid discrimination, the Government would have to frame rules which, however, would be in the form of administrative instructions to its officers dealing with the matters of recognition and aid. If such rules were to lay down conditions the Government can insist that satisfaction of such conditions would be condition precedent to obtaining recognition and aid and that a breach or non compliance of such conditions would entail either the denial or withdrawal of recognition and aid. The management of a school, therefore, would commit a breach or non-compliance of the conditions laid down in the rules oh pain of deprivation of recognition and aid. The rules thus govern the terms on which the Government would grant recognition and aid and the Government can enforce these rules upon the management.
9. A nine Judge Bench of the Supreme Court had to consider the scope of Articles 29 and 30 of the Constitution in St. Xaviers College v. State of Gujarat , when the validity of the provisions of the Gujarat University Act, 1949 was challenged. The court reiterated that Article 30(1) covers institutions imparting general secular education and the object of the Article is to enable children of minorities to go out in the world fully equipped. It was categorically laid down that it will be wrong to read the Article as restricting the right only to cases where such institutions are concerned with language, script or culture of the minorities. The power of the State to impose regulatory measures for furthering the excellence of the standards of education was reiterated. Khanna, J. said,
If a request is made for the affiliation or recognition of an educational institution, it is implicit in the request that the educational institution would abide by the regulations which are made by the authority granting affiliation or recognition. The said authority can always prescribe regulations and insist that they should be complied with before it would grant affiliation or recognition to an educational institution. To deny the power of making regulations to the authority concerned would result in robbing the concept of affiliation or recognition of its real essence. No institution can claim affiliation or recognition until it conforms to a certain standard. The fact that the institution is of the prescribed standard indeed inheres in the very concept of affiliation or recognition. It is, therefore, permissible for the authority concerned to prescribe regulations which must be complied with before an institution can seek and retain affiliation and recognition, Question then arises whether there is any limitation on the prescription of regulations for minority educational institutions. So far as this aspect is concerned, the authority prescribing the regulations must bear in mind that the Constitution has guaranteed a fundamental right to the minorities for establishing and administering their educational institutions. Regulations made by the authority concerned should not impinge upon that right. Balance has, therefore, to be kept between the two objectives, that of ensuring the standard of excellence of the institution and that of preserving the right of the minorities to establish and administer their educational institutions. Regulations which embrace and reconcile the two objectives can be considered to be reasonable.
Mathew, J. said,
Recognition or affiliation creates an interest in the University to ensure that the educational institution is maintained for the purpose intended and any regulation which will subserve or advance that purpose will be reasonable and no educational institution established and administered by a religious or linguistic minority can claim recognition or affiliation without submitting to those regulations. That is the price of recognition or affiliation; but this does not mean that it should submit to are regulation stipulating for surrender of a right or freedom guaranteed by the Constitution, which is unrelated to the purpose of recognition or affiliation. In other words, recognition or affiliation is a facility which the university grants to an educational institution, for the purpose of enabling the students there to sit for an examination to be conducted by the university in the prescribed subjects and to obtain the degree conferred by the university, and therefore, it stands to reason to hold that no regulation which is unrelated to the purpose can be imposed.
10. In The Gandhi Faiz-e-am College v. University of Agra , the court while holding that provisions of a regulatory character intended to secure the better administration of an institution said that abridgement of the constitutional right guaranteed under Article 30(1) is as obnoxious as annihilation and “to cripple is to kill”.
11. In Lilly Kurian v. Sr. Lewina , the question was whether a minority educational institution was bound by the provisions of an ordinance made by the Syndicate of the University of Kerala under Section 19(j) of the Kerala University Act. The Court referred to its previous rulings and observed thus:
Protection of the minorities is an article of faith in the Constitution of India. The right to the administration of institutions of minority’s choice enshrined in Article 30(1) means ‘management of the affairs’ of the institution. This right is, however, subject to the regulatory power of the State. Article 30(1) is not a charter for maladministration; regulation, so that the right to administer may be better exercised for the benefit of the institution is permissible; but the moment one goes beyond that and imposes, what is in truth, not a mere regulation but an impairment of the right to administer, the Article comes into play and the interference cannot be justified by pleading the interests of the general public; the interests justifying interference can only be the interests of the minority concerned.
12. In All Saints High School v. Government of Andhra Pradesh , the case-law on the subject was analysed and the principles and propositions were summarized. Out of the nine propositions set out therein, the following are relevant for the purpose of this case;
(1)–
(2) That although unlike Article 19 the right conferred on the minorities is absolute, unfettered and unconstitutional but this does not mean that this right gives a free licence for maladministration so as to defeat the avowed object of the Article, namely, to advance excellence and perfection in the field of education.
(3) While the State or any other statutory authority has no right to interfere with the internal administration or management of the minority institution, the State can certainly take regulatory measures to promote the efficiency and excellence of educational standards and issue guidelines for the purpose of ensuring the security of the services of the teachers or other employees of the institution.
(4) At the same time, however, the State or any University authority cannot under cover or garb of adopting regulatory measures tend to destroy the administrative autonomy of the institution or start interfering willy nilly with the core of the management of the institution so as to render the right of the administration of the management of the institution concerned nugatory or illusory. Such a blatant interference is clearly violative of Article 30(2) and would be wholly inapplicable to the institution concerned.
(5) Although Article 30 does not speak of the conditions under which the minority educational institution can be affiliated to a College or University yet the section by its very nature implies that where, an affiliation is asked for the University concerned cannot refuse the same without sufficient reason or try to impose such conditions as would completely destroy the autonomous administration of the educational institution.
(6) xxx xxx xxx
(7)XXX XXX XXX
(8) Where a minority institution is affiliated to a University the fact that it is enjoined to adopt the courses of study or the syllabi or the books prescribed and the holding of examination to test the ability of the students of the institution concerned does not violate the freedom contained in Article 30 of the Constitution.
(9)—
13. In Managing Board, M.T.M. v. State of Bihar A.I.R. 1984 S.C. 1757, the court reiterated the principles already laid down and observed that the State or the University, as the case may be, cannot, while considering the application for grant of affiliation impose conditions which if accepted would destroy the individuality and personality of the institution and apart from being wholly arbitrary and unreasonable it would amount to clear infraction of the provisions of Article 30.
14. In A.P. Christian Medical Educational Society v. Government of Andhra Pradesh , it was held that the Government, University and the court, can pierce the minority veil to find out whether an institution is a minority institution. Referring to the provisions in Article 30(1) of the Constitution the court said,
It was seriously contended before us that any minority, even a single individual belonging to a minority, could found a minority institution and had the right so to do under the Constitution and neither the Government nor the University could deny the society’s right to establish a minority institution at the very threshold as it were, howsoever they may impose regulatory measures in the interests of uniformity, efficiency and excellence of education. The fallacy of the argument in so far as the instant case is concerned lies in thinking that neither the Government nor the University has the right to go behind the claim that the institution is a minority institution and to investigate and satisfy itself whether the claim is well founded or founded. The Government the University and ultimately the court have the undoubted right to pierce the minority veil with due apologises to the corporate Lawyers and discover whether there is lurking behind it no minority at all and in any case, no minority institution. The object of Article 30(1) is not to allow bogies to be raised by pretenders but to give the minorities a sense of security and a feeling of confidence not merely by guaranteeing the right to profess, practise and propagate religion to religious minorities and the right to conserve their language, script and culture to linguistic minorities, but also to enable all minorities, religious and linguistic, to establish and administer educational institutions of their choice. These institutions must be educational institutions of the minorities in truth and reality and not mere masked phantoms. They may be institutions intended to give the children of the minorities the best general and professional education, to make them complete men and women of the country and to enable them to go out into the world fully prepared and equipped. They may be institutions where special provision is made to the advantage and for the advancement of the minority children. They may be institutions where the parents of the children of the minority community may expect that education in accordance with the basic tenets of their religion would be imparted by or under the guidance of teachers, learned and steeped in the faith. They may be institutions where the parents expect their children to grow in a pervasive atmosphere which is in harmony with their religion or conducive to the pursuit of it. What is important and what is imperative is that there must exist some real positive index to enable the institution to be identified as an educational institution of the minorities. We have already said that in the present case apart from the half a dozen words as a Christian minorities institution occurring in one of the objects recited in the memorandum of association, there is nothing whatever, in the memorandum or the articles of association or in the actions of the society to indicate that the institution was intended to be a minority educational institution. As already found by us these half a dozen words were introduced merely to found a claim on Article 30(1). They were a smokescreen.
It was contended before us that the permission to start a new medical college could not be refused by the Government nor could affiliation be refused by the University to a minority institution on the ground that the Government of India and the Medical council of India had taken a policy decision not to permit the starting of new medical colleges. It was said that such a policy decision would deny the minorities their right to establish an educational institution of their choice, guaranteed by Article 30(1) of the Constitution. The argument was that the right to establish an educational institution was an absolute right of the minorities and that no restriction, based on any ground of the public interest or State or societal necessity could be placed on that right so as to destroy that right itself. It was said that to deny permission to a minority to start a medical college on the ground that there were already enough medical colleges in the country was tantamount to denying the right of the minority guaranteed under Article 30(1). On the other hand, it was said, when in the pursuit of general or professional educational for its members, a minority community joins the mainstream of national life, it must subject itself to the national interest. The right guaranteed by Article 30(1) gives the minority the full liberty to establish educational institutions of its own choice. If the minority community expresses its choice and opts to join the scheme of national educational policy, it must naturally abide by the terms of that policy unless the terms require the surrender of the right under Article 30(1). It was said that a medical college needed very heavy investment and that to produce doctors beyond need would be a national waste apart from creating a problem, of unemployment in a sphere where there should be none. It appears, if one may borrow the words of Sir Roger de Coverlev, there is much to be said on both sides. In view of our conclusion on the other issues we do not want to venture an opinion on this question.
15. In Frank Anthony Public School Employees’ Association v. Union of India , the court had to consider the provisions of Delhi School Education Act 18 of 1973. After referring to the earlier rulings of the court, it was observed:
Thus, there, now appears to be a general and broad consensus about the content and dimension of the Fundamental Right guaranteed by Article 30(1) of the Constitution. The right guaranteed to religious and linguistic minorities by Article 30(1) is two fold, to establish and to administer educational institutions of their choice. The key to the article lies in the words “of their own choice’. These words indicate that the extent of the right is to be determined, not with reference to any concept of State necessity and general societal interest but with reference to the educational institutions themselves, that is, with reference to the goal of making the institutions “effective vehicles of education for the minority community or other persons who report to them”. It follows that regulatory measures which are designed towards the achievement of the goal of making the minority educational institutions effective instruments for imparting education cannot be considered to impinge upon the right guaranteed by Article 30(1) of the Constitution. The question in each case is whether the particular measure is, in the ultimate analysis, designed to achieve such goal, without of course nullifying any part of the right of management in substantial measure.
16. In All Bihar Christian School Association v. State of Bihar , the , court referred to the earlier rulings in detail and said,
In view of these decisions it is now well settled that minorities based on religion or language have fundamental freedom to establish and manage educational institutions of their own choice, but the State has right to provide regulatory provisions for ensuring educational excellence, conditions of employment of teachers, ensuring health, hygiene and discipline and allied matters. Such regulatory provisions do not interfere with the minorities’ fundamental right of administering their educational institutions instead, they seek to ensure that such institution is administered efficiently, and that students who come out of minority institution after completion of their studies are well equipped with knowledge and training so as to stand at par in their avocation in life without any handicap. If regulatory provisions indirectly impinges upon minorities ‘right of administration of their institutions, it would not amount to interference with the fundamental freedom of the minorities as the regulatory provisions are in the interest of the minority institutions themselves. If the minority institution seeks affiliation or recognition from the State or Education Board the State has the right to prescribe syllabi and terms and conditions for giving such affiliation or recognition or extending grants in aid. Minority institutions may be categorised in three classes, (i) educational institutions which seek neither aid nor recognition front the State; (ii) institutions that, seek aid from the State, (iii) educational institutions which seek recognition but not aid. Minority institutions which fall in the first category are free to administer their institutions in the manner they like. The State has no power under the constitution to place any restriction on their right of administration. This does not mean that an unaided minority institution is immune from operation of general laws of the land. A minority institution cannot claim immunity from contract law, tax measures, economic regulations, social welfare legislation, labour and industrial laws and similar other measures which are intended to meet the need of the society. But institutions falling within the second and third categories are subject to regulatory provisions which the State may impose. It is open to the State to-prescribe conditions for granting recognition or disbursing aid. These conditions may require a minority institution to follow prescribed syllabus for examination, courses of study, employment of teachers, discipline of students and allied matters. The object and purpose of prescribing regulations are to ensure that minority institutions do not fall below the standard of excellence expected of an educational institution and that they do not fall outside the main stream of the nation. A minority institution must also be fully equipped with educational excellence to keep in step with others in the State; otherwise the students coming out of such institutions will not be fully equipped to serve the society or the nation. While the State has every right to prescribe conditions for granting recognition or disbursing aid, it cannot under the guise of that power prescribe onerous conditions compelling the minority institutions to surrender their rights of administration to the Government. On the one hand the State is under an obligation to ensure that educational standards in the recognised institutions must be according to the need of the society and according to standards which ensure the development of personality of the students in turning out to be civilized, useful members of the society, and to ensure that the public funds disbursed to the minority institutions are properly utilised for the given purpose. On the other hand the State has to respect and honour minority rights under Article 30(1) in the matter of establishing and carrying of administration of institution of their choice. In order to reconcile these two conflicting interests the State has to strike a balance and statutory provisions should serve both the objects and such statutory provisions have to withstand the test of Article 30(1) of the Constitution. These principles have to be borne in mind in considering the question of validity of statutory provisions relating to minority educational institutions.
17. In St. Stephen’s College v. University of Delhi , the Constitution Bench of the Supreme Court held that proof of establishment of the institution is a condition precedent for claiming the right to administer the institution and observed that Article 30(1) is a protective measure only for the benefit of religious and linguistic minority and not to enable ill-fit or camouflaged institutions to get away with the constitutional protection. While rejecting the contention that the petitioner before it had lost its minority character on being affiliated to the Delhi University, the Court observed:
In the first place, it may be stated that the State or any instrumentality of the State cannot deprive the character of the institution, founded by a minority community by compulsory affiliation since Article 30(1) is a special right to minorities to establish educational institutions of the choice. The minority institution has a distinct identity and the right to administer with continuance of such identity cannot be denied by coercive action. Any such coercive action would be void being contrary to the constitutional guarantee. The right to administer is the right to conduct and manage the affairs of the institution. This right is exercised by a body of persons in whom the founders have faith and confidence. Such a management body of the institution cannot be displaced or recognised if the right is to be recognised and maintained. Reasonable regulations, however, are permissible but regulations should be of regulatory nature and not of abridgement of the right guaranteed under Article 30(1).
The following passages in the judgment are also relevant.
Equally, it would be difficult to accept the second submission that the minorities are entitled to establish and administer educational institutions for their exclusive benefit. The choice of institution provided in Article 30(1) does not mean that the minorities could establish educational institution for the benefit of their own community people. Indeed, they cannot. It was pointed out In re: Kerala Education Bill A.I.R. 1984 S.C. 956, that the minorities cannot establish educational institution only for the benefit of their community. If such was the aim, Article 30(1) would have been differently worded and it would have been differently worded and it would have contained the words “for their own community”. In the absence of such words it is legally impermissible to construe the article as conferring the right on the minorities to establish educational institution for their own benefit”, (vide para 81).
“Even in practice, such claims are likely to be met with considerable hostility. It may not be conducive to have relatively a homogenous society. It may lead to religious bigotry which is the bane of mankind. In the “nation building with secular character sectarian schools or colleges; segregated faculties or universities for imparting general secular education are undesirable and they may undermine secular democracy. They would be inconsistent with the central concept of secularism and equality embedded in the Constitution. Every educational institution irrespective of community to which it belongs is a ‘melting-pot’ in our national life. The students and teachers are the critical ingredients. It is there they develop respect for, and tolerance of, the cultures and beliefs of others. It is essential therefore, that there should be proper mix of students of different communities in all educational institutions.(vide para 82).
“The minorities cannot be treated in a religious natural way in the educational institutions established and administered by them. Clearly that was not the aim of Article 30(1). Article 30(1) was incorporated to secure to the minorities a fair deal in the name of religion only. It was guaranteed to them as a fundamental right after a great deal of deliberations by the framers. It should not be nullified by narrow judicial interpretation or crabbed pedantry. There must be a “broad approach and the Statesman-like vision. The catholic approach that led to the drafting of the provisions dealing with the minority rights, as discussed earlier, should not be set at naught. It must be ensured that nothing is done to deprive the minorities of a sense of belonging and of a feeling of security (See. the observations of Khanna, J., in St. Xavier’s case, (at 234)).” (vide para 92).
In the light of all these principles and factors, and in view of the importance which the Constitutions attaches to protective measures to minorities under Article 30(1) the minority aided educational institutions are entitled to prefer their community candidates to maintain the minority character of the institutions subject of course in conformity with the University standard. The State may regulate the intake in this category with due regard to the need of the community in the area which the Institution is intended to serve. But in no case such intake shall exceed fifty percent of the annual admission. The minority institutions “shall make available at least fifty per cent of the annual admission to members of communities other than the minority community. The admission of other community candidates shall be done purely on the basis of merit.
18. In the latest judgment of the Supreme Court in Unni Krishnan, J.P. and Ors. v. State of Andhra Pradesh and others, W.P.(C) No. 607 of 1992 etc., batch, order dated 4.2.1993, a Constitution Bench had to consider the right of private educational institutions to collect capitation fee from the students. It is held in that case that right to higher education and in particular professional courses is not a fundamental right flowing from Article 21 of the Constitution. While considering that question the Court made the following observations which are relevant in this case.
Per B.P. Jeevan Reddy, J.: “The hard reality that emerges is that private educational institutions are a necessity in the present day context. It is not possible to do without them because the Governments are in no position to meet the demand particularly in the sector of medical and technical education which call for substantial outlays. While education is one of the most important functions of the Indian State is has no monopoly therein, Private Educational institutions-including minority educational institutions too have a role to play” vide para 61).
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…But one thing is clear, commercialisation of education cannot and should not be permitted. The Parliament as well as State Legislatures have expressed this intention in unmistakable terms. Both in the light of our tradition and from the standpoint of interest of general commercialisation is positively harmful; it is opposed to public policy ….”
(vide para 63)
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“…While we do not wish to express any opinion on the question whether the right to establish an educational institution can be said to be carrying on any “occupation” within the meaning of Article 19(1)(g), perhaps-it is-we are certainly of the opinion that such activity can neither be a trade or business nor can it be a profession within the meaning of Article 19(1)(g)… …
(vide para 64)
…Reliance is then placed upon the Seven Judge Bench decision in Bangalore Water Supply and Sewerage Board v. K. Rajappa , Krishna Iyer, J. dealing with the meaning of the expression ‘industry’ in I.D. Act observed that even educational institutions would fall within the purview of “industry”. We do not think the said observation in a different context has any application here”, (vide para 66). “For the purpose of these cases, we shall proceed on the assumption that a person or body of persons has a right to establish on educational institution in this country. But this right, we must make it clear, is not an absolute one. It is subject to such law as may be made by the State in the interest of general public”. (vide paragraph 68).
“We must, however, make it clear, and which is of crucial importance herein, that the right to establish an educational institution does not carry with it the right to recognition or the right to affiliation….(vide para 69)
“A citizen of this country may have a right to establish an educational institution but no citizen, person or institution has a right much less a fundamental right, to affiliation or recognition, or to grant-in-aid from the State. The recognition and/or affiliation shall be given by the State subject only to the conditions set out in, and only accordance with the scheme contained in Part III of this Judgment. No Government University or authority shall be competent to grant recognition or affiliation except in accordance with the said scheme. The said scheme shall constitute a condition of such recognition or affiliation, as the case may be, in addition to such other conditions and terms which such Government, University or other authority may choose to impose.. … ..(vide para 126(3)
Justice S. Rathinavel Pandian concurred with Justice B.P. Jeevan Reddy.
Per Mohan, J.: …Certainly, it cannot be contended that establishment of an educational institution would be “business”. Nor again, could that be called trade since no trading activities carried on. Equally it is not a profession. It is one thing to say that teaching is a profession but it is a totally different thing to urge that establishment of an educational “institution would be a profession. It may perhaps fall under the category of occupation provided no recognition is sought from the State of affiliation from the University is asked on the basis that it is a fundamental right”. The position is explained below:
However, some of the learned Counsel relied on Bangalore Water Supply and Sewerage Board v. R. Rajappa , to urge that the activity of running and educational institution was an industry. In that case, Krishna Iyer, J., observed:
“To Christian education as a mission, even if true, is not to negate it being an industry, we have to look at education activity from the angle of the Act and so viewed the ingredients of education are fulfilled. Education is, therefore, an industry nothing can stand in the way of that conclusion.
This ruling was relied on in Miss. Sundarambal v. Govemment of Goa (1988)1 S.C.R. (Supp.) 604. It was held:
Thus it is seen that even though an educational institution has to be treated as an industry in view of the decision in the Bangalore Water Supply and Sewerage Board v. R. Rajappa (1978)3 S.C.R. 207, the question whether teachers in an educational institution can be considered as workmen still remains to be decided.” “It requires to be carefully noted that while considering as to what would constitute an industry under the Industrial Disputes Act, these observations came to be made. Certainly, that is very different from claiming a fundamental right under Article 19(1)(g) (vide pages 33 and 34).
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“There is absolutely no fundamental right to recognition in any citizen. The right to establishment and run the educational institutions with State’s recognition arises only on the State permitting, pursuant to a policy decision or on the fulfilment of the conditions of the Statute.” (vide page 35) xxx xxx xxx
“By implication also a fundamental right of the nature and character conferred under Article 30 cannot be read into Article 19(1) (g). The conferment of such a right on the minorities in a positive way under Article 30 negative the assumption of a fundamental right in this behalf in every citizen of the country” (vide page 36).
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“The argument that every activity or occupation” “by the mere fact of its not being obnoxious or harmful to society, cannot by itself be entitled to protection as fundamental right. As pointed out above, some rights, by the very nature, cannot be qualified to be protected as fundamental rights.
Accordingly, it is held that there is no fundamental right under Article 19( 1) (g) to establish an educational institution, if recognition or affiliation is sought for such an educational institution. It may be made clear that any one desirous of starting an institution purely for the purposes of educating the students he could do so but Sections 22 arid 23 of the University Grants Commission Act which prohibits the award of degrees except by a University must be kept in mind”, (vide page 38)
Applying these tests, we find it impossible to hold that a private educational institution either by recognition or affiliation to the University could ever be called an instrumentality of State. Recognition is for the purposes of conforming to the standards laid down by the State. Affiliation is with regard to the syllabi and the course of study. Unless and until they are in accordance with the prescription of the University, degrees would not be conferred. The Educational Institutions prepare the students for the examination conducted by the University. Therefore, they are obliged to failure the syllabi and the course of the study. (vide pages 41 & 42).
19. On an analysis of the above rulings the following principles can be culled out:
(1) The fundamental right declared by Article 30(1) of the Constitution is absolute in terms, but subject to regulatory measures;
(2) There is no fundamental right under Article 19(1)(g) of the Constitution to establish or administer an educational institution, if recognition is sought therefor;
(3) The institutions must be educational institutions of the minorities in truth and reality and not mere masked phantoms;
(4) There is no fundamental right to recognition and any institution seeking recognition should abide by the regulations prescribed by the State as conditions therefor;
(5) The minority institutions must be fully equipped with educational excellence to keep in step with other institutions in the State;
(6) The regulations framed by the State cannot abridge the fundamental right of the minorities and they should be in the interests of the minority institutions themselves and not based on State necessity or general societal necessities,
(7) The regulations should be with a view to promoting excellence of educational standards and ensuring security of the services of teachers and other employees of the institutions and in the true interests of efficiency of institutions, discipline, health, sanitation, morality, public order and the like;
(8) Even unaided institutions are not immune from the operations of general laws of the land such as Contract Law, Tax measures, Economic Laws, Social Welfare Legislations, Labour and Industrial Laws and similar other laws which are intended to meet the need of the Society.
(ii) Article 14 of the Constitution of India:
20. It is not in dispute that impugned rules are only administrative instructions. They have to satisfy the test of reasonableness in order to meet the requirement of Article 14 of the Constitution of India.
20-A The question has been considered in detail in Shrilekha Vidyarthi v. State of U.P. . The relevant case law is discussed and it is held that a State action should not be arbitrary or unreasonable. It is advantageous to refer to the following passages in the judgment:
It can be longer be doubted at this point of time the Article 14 of the Constitution of India applies also to matters of governmental policy and if the policy or any action of the Government, even in contractual matters, fails to satisfy the test of reasonableness, it would be unconstitutional. (See: Ramana Dayaram Chetty v. The International Airport Authority of India and Kasturi Lal Lakshmi Ready v. State of Jammu and Kashmir . In Col. A.S. Sangawan v. Union of India , while the discretion to change the policy in exercise of the executive power, when not trammelled by the statute or rule, was held to be wide, it was emphasised as imperative and implicit in Article 14 of the Constitution that a change in policy must be made fairly and should not give the impression that it was so done arbitrarily or by any ulterior criteria. The wide sweep of Article 14 and the requirement of every State action qualifying for its validity on this touch-stone, irrespective of the field of activity of the State, has long been settle. Later decisions of this Court have reinforced the foundation of the tenet and it would be sufficient to refer only to two recent decisions of this Court for this purpose”. (vide para 29).
xxx xxx xxx
…The basic requirement of Article 14 is fairness in action by the State and we find it difficult to accept that the State can be permitted to act otherwise in any field of the activity, irrespective of the nature of its function, when it has the uppermost duty to be governed by the rule of law. Non-arbitrariness, in substance, is only fair play in action, We have no doubt that this obvious requirement must be satisfied by every action of the State or its instrumentality in order to satisfy the test of validity (vide para 30).
“No doubt, it is true, as indicated by an earlier, that there is a presumption of validity of the State action and the burden is on the persons who alleges violation of Article 14 to prove the assertion. However, where no plausible reason or principle is indicated nor is it discernible and the impugned State action, therefore, appears to be ex facie arbitrary, the initial burden to prove the arbitrariness is discharged shifting onus on the State to justify its action as fair and reasonable. If the State is unable to produce material to justify its action as fair and reasonable, the burden on the person alleging arbitrariness must be held to be discharged. The scope of judicial review is limited as indicated in Dwarkadas Marfatia’s Case A.I.R. 1989 S.C. 1642 to over-see the State action for the purpose of satisfying that it is not vitiated by the vice of arbitrariness and no more. The wisdom of the policy or the lock of it or the desirability of a better alternative is not within the permissible scope of judicial review in such cases. It is not for the courts to recast the policy or to substitute it with another which is considered to be more appropriate, once the attack on the ground of arbitrariness is successfully repelled by showing that the act which was done, was fair and reasonable in the facts and circumstances of the case, As indicated by Diplock, L.J. in Council of Civil Service Union v. Minister for the Civil Service (1984)3 All. E.R. 935, the power of judicial review is limited to the ground of illegality, irrationality and procedural impropriety. In the case of arbitrariness, the defect of irrationality is obvious (vide para 33)
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“The meaning and true import of arbitrariness is more easily visualized than precisely stated or defined. The question, whether an impugned act is arbitrary or not, is ultimately to be answered on the facts and in the circumstances of a given case. An obvious test to apply is to see whether there is any discernible principle energing from the impugned act and if so, does it satisfy the test of reasonableness. Where a mode is prescribed for doing an act and there is no impediment in following that procedure, performance of the act otherwise and in a manner which does not disclose any discernible principle which is reasonable, may itself attract the vice of arbitrariness. Every State action must be informed by reason, is arbitrary. Rule of law contemplates governance by laws and not by humour, whims or caprices of the men to whom the governance is entrusted for the time being. It is “trite that ‘be you ever so high, the laws are above you’. This what men in power must remember, always
(vide para 36).
21. In this connection it is worthwhile to refer to two diets of two famous English Judges. In Kruse v. Johnson, (1898)2 Q.B. 91 at 98-100, after considering what a by-law was and what safeguard the statutes had provided with reference to the making of the by-law Lord Russel, C.J. stated:
I have thought it well to deal with these points in some detail, and for this reason that the great majority of the cases in which the question of by-laws has been discussed are not cases of by-laws of bodies of a public representative character entrusted by Parliament with delegated authority, but are for the most part cases of railway companies, dock companies or other like companies, which carry on their business for their own profit, although incidentally for the advantage of the public. In this class of cases it is right that the courts should jealously watch the exercise of these powers, and guard against their unnecessary or unreasonable exercise to the public disadvantage. But, when the court is called upon to consider the by-laws of public representative bodies clothed with the ample authority which I have described, and exercising that authority accompanied by the checks and safeguards which have been mentioned I think the consideration of such by-laws ought to be approached from a different standpoint. They ought to be supported if possible. They ought to be, as has been said, “benevolently” interpreted, and credit ought to be given to those who have to administer them that they will be reasonably administered. This involves the introduction of no new canon of construction. But, further, looking to the character of the body legislating under the delegated authority of Parliament, to the subject-matter of such legislation, and to the nature and extent of the authority given to deal with matters which concern them, and in the manner which to them shall seem meet, I think courts of justice ought to be slow to condemn as invalid any by-law, so made under such conditions, on the ground of supposed unreasonableness. Notwithstanding what Cockburn, C.J. said in Bailey v. Williamson, (1873) L.R. 8. Q.B. 118 at 124, an analogous case, I do not mean to any that there may not be cases in which it would be the duty of the court to condemn by-laws, made under such authority as these were made, as invalid because unreasonable. But unreasonable in what sense, If, for instance, they were found to be partial and unequal in their operations between different classes, if they were manifestly unjust; if they disclosed bad faith, if they involved such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men, the court might well say, ‘Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires’. But it is in this sense, and in this case only, as I conceive, that the question of unreasonableness can properly be regarded. A by-law is not unreasonable merely because particular judges may think that it goes further then is prudent or necessary or convenient, or because it is not accompanied by a qualification or an exception which some judges may think ought to be there. Surely it is not too much to say that in matters which directly and mainly concern the people of the country, who have the right to choose those whom they think best fitted to represent them in their local Government bodies, such representatives may be trusted to understand their own requirements better than judges. Indeed, if the question of validity of by-laws were to be determined by the opinion of judges as to what was reasonable. “In the narrow sense of that word, the cases in the books on this subject are no guide; for they x reveal as indeed one would expect, a wide diversity of judicial opinion, and they lay down no principle or definite standard by which reasonableness or unreasonableness may be tested.
22. In Cumings and Ors. v. Birkenhead Corporation (1971)2 All. E.R. 881 at 885, Lord Denning, M.R., said:
So, here, if this education authority were to allocate boys to particular schools according to the colour of their hair or, for that matter, the colour of their skin, it would be so, unreasonable, so capricious, so irrelevant to any proper system of education that it would be ultra vires altogether, and this Court would strike it down at once. But, if there were valid educational reasons for a policy, as for instance, in an area where immigrant children were backward in the English tongue and needed special teaching, then it would be perfectly right to allocate those in need to special schools where they would be given extra facilities for learning English. In short, if the policy is one which could reasonably be upheld for good educational reasons, it is valid. But, if it is so unreasonable that no reasonable authority could entertain it, it is invalid.
III. Teachers’ Training Institutes:
23. It cannot be denied that Teachers Training Institutes form a class by themselves. They differ from the other educational institutions inasmuch as they train persons who in turn impart education to students. It goes without saying that the requirements for running a Teachers’ Training Institute should be not only different but also on a higher level than those prescribed for other educational institutions. In Nageshwaramma v. State of Andhra Pradesh , the vires of Sections 20 and 21 of the Andhra Pradesh Education Act of 1982 was challenged and the petitioners sought to get the Government Orders declining to grant them permission to run Teachers Training Institutes run by private managements quashed. While taking note of the fact that since 1982 there has been a rush of unauthorised educational institutions in Andhra Pradesh and in particular, Teachers’ Training Institutes run by private managements, the Court rejected the contentions of the petitioners that after the passing of the Andhra Pradesh Education Act, 1982 and before the framing of the statutory rules the Government had no power to deny permission and recognition to such institutes. On facts the Court upheld the Orders passed by the Government rejecting the applications for permission. The Court also rejected a request made that the students of the institutes should be permitted to appear the Government examinations as they had already undergone training. The Court observed as follows:
…We are unable to accede to these requests. These institutions were established and the students were admitted into these institutes despite a series of press notes issued by the Government. If by a fiat of the Court we direct the Government to permit them to appear at the examination we will practically be encouraging and condoning the establishment of unauthorised institutions. It is not appropriate that the jurisdiction of the Court either under Article 32 of the Constitution or Article 226 should be frittered away for such a purpose. The Teachers Training Institutes are meant to teach children of impressionable age and we cannot let loose on the innocent and un-wary children, teachers who have not received proper and adequate training (sic). True they will be required to pass the examination but that may not be enough. Training for a certain minimum period in a properly organised and equipped Training Institute is probably essential before a teacher may be duly launched.(vide para 3)
24. In Andhra Kesari Education Society v. Director of School Education , the Court said:
Before parting with the case, we should like to add a word more. Though teaching is the last choice in the job market, the role of teachers is central to all processes of formal education. The teacher alone could bring out the skills and intellectual capabilities of students. He is the ‘engine’ of the educational system. He is a principal instrument in awakening the child to cultural values. He needs to be endowed and energised with needed potential to deliver enlightened source expected of him. His quality should be such as would inspire and motivate into action the benefiter. He must keep himself abreast of ever changing conditions. He is not to perform in a wooden and unimaginative way. He must eliminate fissiparous tendencies and attitudes and infuse nobler and national ideas in younger minds. His involvement in national integration is more important. Indeed indispensable. It is, therefore, needless to state that teachers should be subjected to rigorous training with rigid scrutiny of efficiency. It has greater relevance to the needs of the day. The ill trained or sub-standard teachers would be detrimental to our educational system; if not a punishment on our children. The Government and the University must, therefore take care to see that inadequacy in the training of teachers is not compounded by any extraneous consideration.(vide para 20)
25. In Rahmania Primary Teachers Training College v. State of Bihar , a Full Bench of the Patna High Court discussed the right of minorities under Article 30(1) of the Constitution of India and observed with reference to Teachers Training Institutes as follows:
Two things are clear: firstly, that the minorities based on religion or language are entitled to establish educational institutions of their choice. But such educational institutions must be truly educational institutions. Secondly, they have right to administer such educational institutions, but they have no right to maladminister. Merely because a person claims to be religious or linguistic minority, he cannot claim fundamental right to establish educational institutions. Which cannot be said to be truly an education institution. For example, if a medical college is established, not only there must be class rooms but there must be facility of hospital. If the minimum infrastructure for teachers training institution or medical college or engineering college are not available it cannot be said that a truly teachers training institution or a medical college or an engineering college has been established. The State, therefore, is entitled to lay down that no teachers training institution or medical college shall be established even by minorities based on religion or language unless they provide for imparting teaching as is expected to be imparted of a truly teachers training institute or a truly medical college or a truly engineering college. (vide para 12)
26. In State of Maharashtra v. Vikas Sahebrao Roundale , the Apex Court emphasized the need for maintaining high standards in Teacher Training Institutions and said,
Article 51-A enjoins every citizen by Cl.(h) to develop the scientific temper, humanism, the spirit of inquiry and reform and Cl.(j) enjoins as fundamental duty to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement; (a) respect for national flag and national anthem; (e) to promote harmony and spirit of common brother-hood amongst all the Indian people transcending religious, linguistic and regional or sectional diversities to renounce practice derogatory to the dignity of woman; (f) to value and preserve rich heritage of our composite culture, etc., are some of the basic duties which the budding students need to be inculcated and imbibed. They should be sowed in the receptive minds in their formative periods so that they take deep roots at maturity. The teacher needs, not only the training at the inception, but also periodical orientations in this behalf so that the children would reap the rich benefit thereof. The ill-equipped-and ill-housed institutions and substandard staff therein are counter productive and detrimental to inculcate spirit of enquiry and excellence to the students. The disregard of statutory compliance would amount to let loose of innocence and unwary children (sic.). The proceedings of the recent seminar held in Delhi, as published by the Times of India dated 4th August, 1992, would demonstrate the admission by the teachers that they are not properly trained to cope up with the growing needs of the society and are unsuited to the duties they have to shoulder in imparting teaching to the children. The teacher plays pivotal role in moulding the career, character and moral fibres and aptitude for educational excellence in impressive young children. The formal education needs proper equipment by the teachers to meet the challenges of the day to impart lessons with latest technics to the students on secular, scientific and national outlook. A well equipped teacher could bring the needed skills and intellectual capabilities of the students in their pursuits. The teacher is, adorned as Gurudevob hava, next after parents, as he is a principal instrument to awakening the child to the cultural ethos, intellectual excellence and discipline. The teachers, therefore, must keep abreast ever changing technics, the needs of the society and to cope up with the psychological approach to the aptitudes of the children to perform that pivotal role. In short, teachers need to be endowed and energised with needed potential to serve the needs of the society. The qualitative training in the training colleges or schools would inspire and motivate them into action to the benefit of the students. For equipping such trainee students in a school or a college, all facilities and equipments are absolutely necessary and institutions bereft thereof have no place to exist nor entitled to recognition. In that behalf compliance of the statutory requirements is insisted upon. Slackening the standard and judicial fist to control the mode of education and examining system are detrimental to the efficient management of the education. The directions to the appellants to disobey the law is subversive of the rule of law, a breeding ground for corruption and feeding source for indiscipline. The High Court, therefore, committed manifest error in law, in exercising its prerogative power conferred under Article 226 of the Constitution, directing the appellants to permit the students to appear for the examination etc.,(vide para 11).
IV. Executive Power:
27. We have already referred to the judgment of a Division Bench of this Court in W.P. Nos. 4478 of 1974 etc., holding several provisions of the Tamil Nadu Private Schools (Regulation) Act and Rules inapplicable to minority institutions which necessitated the amendment of rules by the Government for governing the minority schools vis-a-vis grant of recognition and aid. One of the contentions urged before us is that the State Government cannot frame rules when the Court has struck down the provisions of the statute and the statutory rules. There is no merit in this contention. The right of the State Government to frame rules in the absence of any statutory provision has been recognized beyond doubt. It has been held in Ml s. Bishamber Deyal Chandra Mohan v. State of U.P. , that if there is no enactment covering a particular aspect the Government can carry on the administration by issuing administrative directions or instructions until the legislature makes a law in that behalf, as otherwise the administration would come to a standstill. We have also referred to the fact that appeals are pending in the Supreme Court at the instance of the Government against the judgment of the Division Bench. Obviously the Government is awaiting disposal of the said appeals for initiating other legislative measures. For the interregnum the Government has chosen to issue administrative instructions and the power to do so cannot be questioned. The matter has been further clarified by the Supreme Court in State of Sikkim v. Dorjee Tshering Bhutia A.I.R. 1991 S.C. 1993. The court said, “…The executive power of the State under Article 162 of the Constitution of India extends to the matters with respect to which the legislature of the State has power to make laws. The Government Business is conducted under Article 166(3) of the Constitution in accordance with the Rules of Business made by the Governor. Under the said Rules the Government business is divided amongst the ministers and specific functions are allocated to different ministries. Each ministry can, therefore, issue orders or notifications in respect of the functions which have been allocated to it under the Rules of Business.” (vide para 14) “The executive power of the State cannot be exercised in the field which is already occupied by the laws made by the legislature. His settled law that any order, instruction, direction or notification issued in exercise of the executive power of the State which is contrary to any statutory provisions, is without jurisdiction and is a nullity. But in this case we are faced with a peculiar situation. The Rules, though enforced, remained unworkable for about five years. The Public Service Commission, which was the authority to implement the Rules, was not in existence during the said period. There is nothing on the record to show as to why the Public Service Commission was not constituted during all those five years. In the absence of any material to the contrary we assume that there were justifiable reasons for the delay in constituting the Commission. The executive power of the State being divided amongst various functionaries under Article 166(3) of the Constitution of India there is possibility of lack of co-ordination amongst various limbs of the Government Working within their respective spheres of allocation. The object of regulating the recruitment and conditions of service by statutory provisions is to rule out arbitrariness, provide consistency and crystalise the rights of employees concerned. The statutory provisions which are unworkable and inoperative cannot achieve these objectives. Such provisions are non est till made operational. It is the operative statutory provisions which have the effect of ousting executive power of the State from the same field. When in a peculiar situation, as in the present case, the statutory provisions could not be operated there was no bar for the State Government to act in exercise of its executive power.” (vide para 15).
28. We may also notice here an argument advanced by one of the counsel appearing in these cases that it is only Central Legislature which is competent to make laws with reference to Teachers Training Institutes. He places reliance on a statement found in a counter affidavit filed by the Government that the Teachers Training Courses are similar to professional courses. On that basis a contention is advanced with reference to the Special Fields under Entry 65 in List I of the Seventh Schedule to the Constitution of India. The Entry reads as follows:
65. Union agencies and institutions for. (a) Professional, vocational or technical training, including the training of police officers; or
(b) the promotion of Special studies or research; or
(c) Scientific or technical assistance in the investigation or detection of crime.
There is no substance in this contention. Entry 25 in List III – Concurrent List reads thus:
Education, including technical education, medical education and universities, subject to the provisions of Entries 63,64,65 and 66 of List I; vocational and technical training of Labour.
The said Entry is very wide and it will include undoubtedly teachers training institutions whether they are similar to professional institutions or not. It is nobody’s case that there is already a Central legislation occupying the field and the State Legislature or the Government for that matter cannot frame any law on that subject. Hence the said contention is rejected.
(E) Impugned Government Orders:
G.O.Ms. No. 536, Education, dated 17.5.1989 and G.O.Ms. No. 661, Education, dated 12.6.1991.
Before referring to the actual contents of the G.Os. and the arguments advanced by counsel on both sides, His Lordship referred to the situation prevailing in this country on the educational front, and the new educational policy adopted by the Government and proceeded as follows. 38. Now we shall proceed to set out the various clauses in the Government orders and deal with the arguments advanced by counsel under the respective clauses which are challenged.
[Contents of G.Os. omitted – Ed.]
29.(i)Craft Skill Development: It is contended that the provisions relating to Craft Skill Development are vague and they disclose a complete non-application of mind on the part of the Government. A comment is made with reference to ‘Dairy Farming’ and ‘Creative Work’, which are items 4 and 10 respectively of the productive work suggested in Clause (2) of the Government order. It is also argued that there is absolutely no necessity for the same in a Teachers Training Institution, We do not find any substance in the contention. The purpose of including training in Craft Skill Development has been clearly mentioned in paragraph VII of Annexure V that the teacher trainees should be trained in socially useful productive work. The provisions do not in any way affect the right conferred on the minorities by Article 30 of the Constitution. The provisions are intended only to enhance excellence of Educational standards in teacher training institution. (ii) Minimum Educational qualification: The next attack is against the minimum educational qualification prescribed for Principal/Headmaster, the Teacher, Tamil Pandit and Non-teaching staff. The contention is that the qualifications fixed are very high and absolutely unnecessary for a Teacher Training Institution. A comparison is made with the qualifications prescribed for Headmasters and Teachers in Secondary Grade Schools and Higher Secondary Schools. It is submitted that the condition requiring 10 years of teaching experience in recognized schools for Principal/Headmaster and 5 years teaching experience in recognized schools for Subject Teacher is onerous and arbitrary. It is pointed out that in the counter affidavit filed by the Government in W.P. No. 13357 of 1989 there is a mention of large number of unemployed holders of Master’s Degrees. It is submitted that persons with experience of teaching in recognised schools will not be available in sufficient numbers. It is, therefore, argued that the condition has been prescribed only with a view to make it impossible for the minorities to establish Teachers Training Institutions and administer the same. Reliance is also placed on the judgment of the Supreme Court in Mohd. Shujat Ali v. Union of India, . Our attention is drawn to the following passage in the judgment at page 1655.
To permit discrimination based on educational attainments not obligated by the nature of the duties of the higher post is to stifle the social thrust of the equality clause.
It is argued that when the post of Principal/Headmaster or Subject Teacher in a Teacher Training [Institution does not require high qualifications i and the Government has fixed very high qualifications and the Government has fixed very high qualifications and made it impossible for the minorities to get persons with such qualifications, the provision is arbitrary and unreasonable and thus violative of Article 14 of the Constitution of India. We do not accept this contention. In the first place, it is fallacious to compare a teacher training institution with other educational institutions. We have already referred to the fact that teacher training institutions form a class by them-selves. The qualifications required for the persons I who handle the trainees in such institutions with a view to make them fit to become teachers, should be necessarily higher than the qualifications fixed for the teachers in the other institutions. As a matter of policy the Government has fixed higher qualifications for meeting the standards of teacher training institutions. The action of the Government is well within the parameters of Article 30(1) of the Constitution.
30. Learned Additional Government Pleader invited our attention to the judgment of the Kerala High Court in The Manager, Loyola College v. University of Kerala, 1989 Lab.I.C. (Noc.) 118 (Ker.). Justice Viswanatha Iyer has upheld the validity of a regulation framed by the University prescribing 25 years of service in a College or University for appointment to the Post of Principal as not violative of the right guaranteed under Article 30 of the Constitution. The relevant part of the Judgment is as follows:
Article 30(1) does not confer on the minority any right to have particular categories or classes of persons included in the field of choice for principal. Their choice can only be from among persons who possess the qualifications prescribed. The selection of the Principal has to conform to the qualifications, which are of uniform and general application to all institutions” minority or non-minority. The minority cannot insist on the qualifications being tailored to suit their needs. Article 30(1) cannot be read as conferring any such freedom enabling the minority to dictate to expert academic bodies as to what qualifications they should prescribe to enable the minority to have a field of his own choice. Prescription of relevant qualifications, for such appointments does not violate any fundamental right of the minority under Article 30(1). Further, a person with along period of experience behind him can certainly be expected to bring to bear on his task, the skill and the acquaintance with student teacher aspirations so necessary to make the institution a true temple of learning. Any qualification geared to achieve this end cannot be carped upon as offending Article 30(1). The qualification has been set by the University guided by per-sons well acquainted with the necessities of the educational field and well aware of the availability of qualified man power to occupy the post of Principal.
31. Learned Advocate General has referred to a judgment of the Karnataka High Court in Sri Kari Thimmarayaswamy Education Society (Regd.) v. State of Karnataka A.I.R. 1990 (Noc.) 150 (Karn.). It was held in that case that the Government order enhancing educational qualification from S.S.L.C. to P.U.C. for admission of students to C.P.Ed. course is not violative of Article 14 and there is no element of arbitrariness in the order. It is pointed out that no statistical data is required for the purpose of enhancement of the educational qualification, and in such cases it is best left to the wisdom of the executive in laying down its educational policy in this regard. It is worth-while referring to the following passage in the judgment.
Regulatory measures for the purpose of admission of students to C.P.Ed. course are clearly governed by policy considerations in consonance with the National Policy on Education, 1986. It is not necessary that the Government should demonstrate the basis for enhancement of the educational qualification and prove its credentials by supporting the enhancement on a statistical basis to disprove arbitrariness. To apply the data and statistics test to the instant cases, would be less than proper. Periodic review and alteration of educational qualifications have to be made in keeping with the temper of the times, tide of events and mores of the day demanding flexibility in order to avoid impediments to progress in qualitative improvement of education in this country.
“Policy is understood to mean goals or purposes of governmental programmed. It is also interpreted as state craft, political sagacity, course of action adopted by Government for public group, and to sub-serve public interest. In the process in recent years major efforts to enlarge or alter policies have left their mark on education, transportation etc. In our country commonly known goals and purposes of governmental programme are elimination of poverty, elimination of illiteracy etc. The power of the State under Article 162 of the Constitution to regulate the standards of education as well as the quality of education by fixing qualifications for admission by altering the existing standards, cannot be viewed as violation of Article 14. Unless the policy laying down P.U.C. as minimum qualification for admission to C.P.Ed. course is repugnant either to any constitutional provision or to any law, judicial wisdom commends non-interference with such policy decisions however far reaching the consequence of the decisions taken by the Government.
32. (in) Location, Land and Building: Petitioners’ counsel next challenged the provision requiring to acres of suitable land owned by an institution to be used for construction of building for institution, etc. The requirement to provide for class room with roughly 60 sq.ft. of carpet area per inmate is also attacked. The contention in short is that the extent of land fixed by the Government order is totally out of proportion to any known norms and in particular, having regard to the student strength fixed by the Government Order itself, there is absolutely no warrant for insisting upon such a large extent of land being owned by the institution. It is not necessary for the institution to own the land and it is sufficient if the institution owns a legal right to possess the land and utilise it for the purpose of educational institution. It is also contended that the requirement to satisfy ‘aesthetic tastes’ is vague and it gives arbitrary power to the authorities concerned. It is also submitted that the provisions are opposed to the provisions contained in Grant-in-Aid Code. It is further submitted that the requirement of space for agricultural activities is totally unconnected with the education institutions and therefore, invalid. It is pointed out by the learned Advocate General that the area is reduced to 5 acres with reference to Municipal Corporations by G.O.Ms. No. 1063, Education Department, dated 13.11.1991. An argument is advanced one of the learned Counsel that the distinction made between municipal Corporations and other areas is unreasonable and there is no nexus between the object of the rules and provision made.
33. The Government placed reliance on the guidelines issued for District Institutes of Education and Training (DIET) and submitted that the Government has had the benefit of expert advice before framing the rules. It is submitted that as a matter of policy, the large extent is fixed almost throughout the country for such educational institutions. Reference is made to a similar provision in the Rules under the Andhra Pradesh Education Act 1 of 1982. In Rayalaseema Navodaya Minorities Christian Educational Society v. State , a challenge to the validity of the rules framed under the Andhra Pradesh Act was rejected. It is seen from the relevant part of the judgment in that case that Clause (b)(i) of Sub-rule (4) of Rule 2 is almost similar and it requires a total area of 10 acres of land for construction of building and that it should be owned by the management which runs the institution.
34. We do not find any infirmity in the policy of the Government in insisting upon a vast extent of land for housing the educational institution. It should not be forgotten that in ancient days this country was accustomed to have forest Universities or Gurukulams which were mostly situated on the outskirts of towns and villages in the midst of groves. The importance of proper environment was realised in those days and that was the main reason for having educational institutions in such places where the very atmosphere was throbbing with learning. In fact, there is a hue and cry by the modern educationists stressing on the need for beautiful surroundings in educational institutions that they should be placed where there is no distracting factor. The students should live in close contact with nature which is beautiful in all its aspects. Of course, it is not possible to bring back the old Gurukulams into existence. But it is certainly within our reach and aims to locate the educational institutions in quiet and peaceful surroundings and make them aweinspiring. Such requirement will only enable the improvement of educational standards and the excellence aimed I by the Society.
35. A comment is also made that it is ridiculous to prescribe a class room with roughly 60 sq.ft. of carpet area per inmate. No doubt, the requirement of 60 sq.ft. per inmate is on the high side. But taking into account the intention of the Government that there should be a big hall of an extent of about 2,400 sq.ft. for holding classes, we do not think it so unreasonable or arbitrary to be interfered with in exercise of our judicial powers. We find that such a requirement is prescribed uniformly with reference to the Teacher Training Institutions run by the Government or private managements other than minorities. As the object is to maintain uniform standards we are unable to accept the contention of the petitioners in this regard.
36. (iv) Provision for equipments: The next contention relates to the provision for equipments. The argument is that the requirement of furniture and office-equipment, etc., for a value of atleast one lakh of rupees and laboratory equipments worth atleast a lakh of rupees, besides other equipments worth Rs. 50,000 under each category is wholly unreasonable. Having regard to the present day prices we do not find any substance in this contention.
37. Learned Advocate General has furnished a list of teaching appliances, charts and maps to be kept in an educational institution. The list mentions the numbers required in each category and the value thereof. The total value comes to Rs. 53,610. Similar lists of sports materials and music instruments are also furnished. Their value comes to Rs. 51,490. Hence we do not find any justification to accept the contention of the petitioners in this regard.
38. (v) Library: There is no argument regarding the requirement for item IV. ‘Laboratory’ mentioned in the Annexure. However, item V regarding library has come under severe attack. It is submitted that the requirement of atleast 10,000 volumes of books and reference books worth atleast a lakh of rupees is wholly unwarranted. It is also contended that such number of books will not be available in the State at all. It is also argued that the persons who are trained in these institutions are only going to handle students of Standards 1 to 8 and it is not necessary for them to have a library containing 10,000 books. There is no merit in this contention at all. The rules are based on the guidelines prescribed for DIET institutions. A teacher’s knowledge of any subject should have depth and width. No useful purpose will be served by teachers to merely mug-up the notes published in the market and disgorge the same in the classrooms. The teacher must be ready and well equipped to answer any question which may be put to him by a student and clear any doubt that may arise in the mind of his pupil. Hence the requirement of a big library with books on all subjects is absolutely essential for a teacher training institution. It is not as if the requirement is to have books of 10,000 titles. It is only to have 10,000 volumes of books. The institutions may have also books of 1,000 titles or a little more than that. The prescription is only with a view to ensure the standards of the institution and maintain uniformity among the teacher training institutions. Hence we reject the contention of the petitioners in this regard.
39. (vi) Playground: It is next argued that the requirement of an area of about 5 acres for the playground is unjustified. Learned Advocate General points out that the extent of 5 acres is only part of the total extent of 10 acres required in Paragraph (I) relating to ‘Location, Land and Building’. We are unable to find anything unreasonable in the provision. Our ancient scriptures have recognized the importance of good health of a student. In Taittiriyopanisad it is said.
;qok LHkkîlk/kq ;qZok M/;k;y%A
vkf’k”Bks% nzf<"Bks cfy"B% A rL;s;a i`fFkoh
lokZ fo=L; iw.kkZ% L;kr~A
(A student, who is a noble youth shall be diligent at learning and he shall be most swift and alert; very firm and resolute and most vigorous. To such a student the entire world will be full of wealth and achievement) (free translation).
There is emphasis on not only learning but also good health. A student who emerges from pupilage should have a strong body as it is said “healthy mind in a healthy body.
40. Further, a cricket ground requires an area of about four acres. A hockey ground would require nearly two acres. A football ground requires similar extent. It is not as if all the trainees will participate in the same game. There are other games like volleyball, tennis, badminton, etc. Hence the requirement of 5 acres for the playground is not unreasonable or arbitrary.
41. (vii) Teaching Practice-Middle School: The next target of attack is the requirement of a middle school under the same management under the heading “VIII. Teaching Practice.” Vehement arguments were advanced on behalf of the petitioners with reference to this requirement. It is contended that by insisting upon the same management running a middle school the Government is depriving the minorities of their right to establish an educational ‘institution of their choice.’ as provided in Article 30(1) of the Constitution. The minorities cannot be compelled to have any educational institution by any other body. It is entirely left to their choice to commence an educational institution. It is further argued that in any event, there is absolutely no necessity for having a middle school under the same management. If there is an arrangement with any middle school by the management of the teacher training institution, that will be sufficient to serve the purpose of providing teaching practice to the trainees. Thus it is contended that the provision is unreasonable and violative of Article 14 of the Constitution while it is also violative of Article 30 thereof. There is a fallacy in the contention. It is not as if the Government compels the minorities to establish a middle school independently. The requirement of a middle school for the purpose of providing teaching practice to the trainees is a basic need for conducting a teacher training institution. It is an essential part of the training institution, just as a laboratory where students get practical training with reference to the theories learnt by them in the classrooms. We have already referred to the dire need of training teachers before they are appointed in any educational institution to impart knowledge to children of impressionable age as warned by Justice Chinnappa Reddy in Nageswaramma’s case A.I.R. 1986 S.C. 1188. The untrained teachers cannot be let loose on the innocent and unwary children and training for a certain minimum period in a properly organised and equipped training institute is essential before a teacher is duly launched. Only with that aim the requirement of a middle school is prescribed.
42. There is also no merit in the contention that a training institution can have arrangement with a middle school run by another management to enable their trainees to get teaching practice. Obviously the Government does not want to give any loophole to managements which will enable them to escape compliance with the requirement by bringing in some fake arrangements in collusion with other institutions. A middle school is necessarily to be an essential concomitant to the teachers training institution. There is, therefore, no unreasonableness in the rule prescribing a middle-school being conducted by the same management so that the trainees in the teachers training institution can have practical experience in teaching.
43. It is also brought to our notice by the learned Advocate General that the requirement of a middle-school has been upheld by the Supreme Court in Nageswaramma’s case A.I.R. 1986 S.C. 1188 and in Andhra Kesari Education Society’s case A.I.R. 1989 S.C. 183 In Nageshwaramma’s case A.I.R. 1986 S.C. 1188, the fact that the petitioners in that case did not have model-school for their pupils to practise teaching is referred to. In the later case the High Court of Andhra Pradesh had issued directions to the petitioners before it to be complied with for obtaining permission and recognition. One such direction was that all other requirements including the Model school subject to which permissions were initially granted to the petitioners should be complied with by them not later than 31st of July, 1986. The Supreme Court observed, “The contention, however, was that the college is a minority institution and, therefore, it need not comply with all those requirements. The High Court did not accept that contention and in our opinion very rightly”. Hence we reject this contention of the petitioners.
44. (viii) Strength: The next target of attack is the ‘strength’ of the institution fixed in para IX at forty students. As per the earlier G.O. the number could be prescribed by Government from time to time. The later G.O. deleted that provision and fixed it at 40. The argument is that an occasion for fixing the maximum limit would arise only if aid is sought from the Government. According to learned Counsel none of the petitioners has obtained any aid from the Government and the latter is trying to abridge the right of the petitioners by fixing the maximum strength. It is pointed out that if the Government fixes the strength for each section at 40 it will be regulatory and when it is fixed for the entire school, it is a restriction. Reference is also made to G.O.Ms. No. 906, dated 16.6.1987 prescribing that there shall be only one section of 40 candidates for each aided Teachers Training Institute under private management. The same strength has been fixed for Government teachers Training Institutes. Learned Counsel for some of the petitioners contended that the Government has treated unequals as equals by placing unaided minority institutions on par with aided private institutions and therefore, the impugned G.O. is violative of Article 14 of the Constitution. Per contra, the learned Advocate General argued that the strength has been fixed on the basis of DIET guidelines as well as Tamil Nadu educational Rules. He drew our attention to the norms for a DIET wherein the annual intake for pre-service Teacher Education Course of two years has been fixed at 30.50. He also referred to Rule 111 of Educational Rules which reads thus, “The number under training in no class of training school shall exceed forty without the express sanction of the District Educational Officer.” The Government has in its counter affidavit stated that the number has been limited so as to provide the students with the best training possible. It is also contended that the employment potential and economic viability have been taken into consideration. The fact that the limiting of the total number will enable the students to get better training cannot be denied. Hence the fixation of maximum strength is only for the betterment of educational standards and in the interests of the institutions themselves. As it is a provision aiming at better standards of education, it can and will apply to all kinds of institutions aided or unaided. There is no merit in saying that unequals are treated as equals. In fact the Supreme Court has repeatedly held that minority institutions must keep in step with the other institutions in the State. (See Principle No. 5 in para 26 supra). 57. ‘ix’ Management: No argument was advanced with respect to the provisions under para X prescribing the certificates to be enclosed. Under para XI ‘Management’ Clause 3 preventing the institution from collecting or donations compulsorily other than the special fees permitted by the authorities is challenged. We do not find any merit in the contentions. The question has been considered in All Bihar Christian Schools Association v. State of Bihar . A similar provision in Section 18(3) of Bihar Non-Government Secondary Schools (Taking over of Management and Control) Act (33 of 1982) was considered and uphelp as constitutionally valid. The relevant part of the judgment reads thus:
…Clause (g) provides that only such fees shall be charged from the students as prescribed by the State Government and the management is not permitted to charge higher fees except with prior approval of the State Government. In the counter-affidavit filed on behalf of the State it has been stated that education up to matriculation is free in the State and therefore no feels charged from the students. Consistent with the general policy, the State has made it a condition of recognition to a minority school in providing that fees shall be charged from the students as prescribed by the State Government and if the management decides to charge higher fees it must seek the approval of the State Government. This provision is regulatory in nature it would not be in the interest of the minority schools to charge higher fees as that would be against the interest of the institution itself. If the managing committee finds that circumstances exist to charge higher fees to meet the need of the institution, it may place the necessary facts and circumstances before the State Government and in that event the State Government shall consider the question of granting permission.
45. As regards collection of donations, the principles laid down by the latest judgment of Supreme Court dated 4.2.1993 in the capitation fee case Unnikrishan, J.P. and Ors. v. State of Andhra Pradesh and Ors. W.P. No. 607 of 1992, etc. batch, may apply. No serious argument was advanced by counsel for petitioners in this regard.
46. The arguments were focussed on Clauses 8 and 9 which provide for assessment of the need for opening the institution in the area and the taking into consideration the trained teachers already available and waiting for appointment and the potential to absorb the teachers to be trained in future in the service of Government and private schools. It is argued that these provisions practically annihilate the right of the minorities declared by Article 30(1). Reliance is placed on the rulings of the Supreme Court Lilly Kurian’s case , Frank Anthony’ case and All Bihar Christian Schools Association’s case , in which it was held that any regulation framed by the State should be in the interests of the minority concerned and not in the interests of the general public and it cannot be based on any concept of the State necessity and general societal interest. It is ‘submitted that the two provisions in Clauses 8 and 9 prevent the petitioners from establishing and administering educational institutions of their own choice and the conditions not being in the interests of the institutions are unconstitutional.
47. Our attention is also drawn to the judgment of a Division Bench of this Court in The Society of the Brothers of the Sacred Heart of Jesus, Palayamkottai and Anr. v. The Director of School Education W.P. No. 2022 of 1982, Order dated 3.1.1985. In that case an application for recognition was rejected by the authorities on two grounds one of which was that the requirement of trained teachers in the minority institutions could be easily met from out of the prevalent large scale of unemployed but trained secondary grade teachers. The Bench held that Rule 4(a) of the Tamil Nadu Minority Schools (Recognition and Payment of Grant) Rules, 1977 did not contain any such condition so as to enable the authorities to reject the application on such a ground even though the applicant had satisfied the conditions prescribed in Clauses 1 to 5 of Rule 4(a). The relevant passages in the judgment reads as follows:
…The Rules, therefore, clearly contemplate that when an application for recognition of a minority school has been made to the appropriate authority, the authority has to satisfy itself that the requirements in Clauses 1 to 5 of Rule 4(a) are satisfied. If any one of these requirements is not satisfied, the authority has power to reject the application. Admittedly, as matters stand today, the condition with regard to the structural stability certificate and the sanitary certificate is now satisfied. It is not the case of the State Government or the authorities concerned that any other conditions in Rule 4(a) is not satisfied.” (vide para 7) “But the learned Government Pleader, however contends that there is large unemployment of trained teachers and the State Government did not want the number of unemployed teachers to increase and, the Government wanted to restrict the opening of Teachers Training Institutes. The contention of the learned Government Pleader was that, it is open to the authorities to reject the application for recognition or conditions which are relevant, though they may be outside the conditions specified in Rule 4(a). Therefore, according to the learned Government Pleader, the Government having taken the view and having declared a policy that new institutions for the training of teachers should not be opened, the petitioners were not entitled to a recognition of their institutions.” (vide para 8) “It is not possible for us to accept this contention. The State Government having framed the Rules, the decision with regard to the grant of recognition or refusal of the application for recognition must be made solely with reference to these rules. The rules are obviously intended to give notice to the public with regard to the circumstances on which the Government will either grant recognition or reject recognition. After having framed these rules and made them known to the public, it is not now open to the State Government to reject an application on a ground which falls outside these rules. It is clear, therefore, that one of the grounds on which the application for recognition was rejected is wholly untenable(vide para 9)
48. Thus the decision turned on the rules then enforce and the question of validity of any rule did not arise in that case.
49. Reliance was also placed on the judgment in K. Anthony Savarimuthu v. Director of School Education, 1985 Writ L.R. 178, in which the refusal by me authorities to evaluate the Karnataka Teachers Certificate on the ground that there were number of unemployed teachers in Tamil Nadu was held to be unjustified and violative of Article 16 of the Constitution of India. That ruling is of no assistance to the petitioners in this case. So also is the judgment of another Bench in Madras English Baptist Church v. The State of Tamil Nadu, 1991 Writ. L.R. 419, wherein the Government order insisting on the creation of an endowment of Rs. 25,000 as a pre-condition for recognition was held to be violative of Articles 14 and 30(1) of the Constitution.
50. Article 30 undoubtedly recognises the Fundamental Right of the minorities to establish and administer educational institutions of their choice. The crucial words are “their choice.” In the context those words would mean choice with reference to the type or kind of educational institution. It may be elementary school, high school, ordinary college, professional college or teachers training institute. It may be of any kind. There can be no limitation regarding the course to be conducted or the medium of instruction. But the choice cannot extend over any place and time. If the minorities do not want recognition it is open to them to establish an institution at any time and at any place, they like. Even in such cases, the location will have to be subject to general laws based on public order, health and hygiene. We have already referred to the relevant rulings of the Supreme Court. In the present context the following passages are relevant In St. Xaviers College case , Ray, C.J. said on behalf of himself and Palekar, J.:
…All institutions of general secular education whether established by the minorities or the non-minorities must impart to the students education not only for their intellectual attainment but also for pursuit of careers. Affiliation of minority institutions is intended to ensure the growth and excellence of their children and other students in the academic field. Affiliation mainly pertains to the academic and educational character of the institution. Therefore, measures which will regulate the courses of study, the qualifications and appointment of teachers, the conditions of employment of teachers, the health and hygiene of students, facilities for libraries and laboratories are all comprised in matters germane to affiliation of minority institutions. These regulatory measures for affiliation are for uniformity, efficiency and excellence in educational courses and do not violate any fundamental right of the minority institutions under Article 30.(vide para 18).
In the same case, Khanna, J. said-
The regulations have necessarily to be made in the interest of the institution as a minority educational institution. They have to be so designed as to make it an effective vehicle for imparting education”, (underlining ours) “Regulations can be made to prevent the housing of an educational in unhealthy surroundings. (vide para 90)
51. In Mark Netto v. Government of Kerala , the Constitution Bench of the Supreme Court referred to the above case and observed thus:
In the case of St. Xaviers College, Ahmeddbad, the majority decision although by separate judgments, has converged to the view that the right conferred on the religious and linguistic minorities to administer educational institutions of their choice is not an absolute right. This right is not free from regulation. Just as regulatory measures are necessary for maintaining the educational character and content of minority institutions, similarly regulatory measures are necessary for ensuring orderly, efficient and sound administration of the school in the matter of maintaining discipline, health, morality and so on and so forth.(vide para 5)
52. In Frank Anthony’s case , the Court while emphasising the Rule that the regulations should not be based on the concept of State necessity and general societal interest reiterated that the regulations should be with the goal of making the institutions effective vehicles of education for the minority community or other persons who resort to them. Viewed in that background the regulations providing for the assessment of the needs of the locality and the flooding of trained teachers in the State without any employment for years together are undoubtedly in the interests of the minority institutions themselves. The educational institutions will cease to be effective vehicles of education and the very object with which they are sought to be established may get defeated and remain unfulfilled if they are located in a particular place or at a particular time. The facts and circumstances in each case as and when an application is made for recognition, have to be considered by the authorities,
53. A Full Bench of the Kerala High Court has considered this question in Fr. Mathew Munthiri Thinthyil Vicar v. State and upheld the validity of a similar rule in Kerala Education Rules. The relevant passage in the judgment reads thus:
…It was stressed that just as considerations of national interest and public interest cannot affect the content of the fundamental right of the minorities, the needs of the locality for a School should also be left out, and it should be assessed only on the interests of the minorities themselves. The argument is attractive but we are afraid, should break-down on an analysis. That the fight is not absolute and unqualified, but one capable of regulation in the matter and manner of its exercise, is now beyond dispute. In the course of the argument, we had asked the petitioner’s counsel whether the minorities would claim a right to establish educational institutions whenever and wherever demanded. Although with hesitation, petitioner’s counsel was obliged to admit that this extreme right cannot be maintained. We think too, that such an extreme position entitling the minority to ask, and to be given, the educational institution, wherever it wants to establish, at any moment when the cry is raised, is not the scope and the content of Article 30. Regulation of the right in time as well as in space, must, it appears, be permissible. Rule 2 seems to provide for nothing more than such a regulation. It provides for the assessment of the educational needs of the locality by a competent authority after taking into account the relevant considerations. In weighing the educational needs of the locality, the authority, we have no doubt, is bound to consider, and will indeed consider, the requirements of the minority communities in establishing educational institutions of their choice. Before finalising the list of Schools to be opened in any locality, applications are to be invited, objections are to be received, and only after consideration of these, is the list to be finalised. The minority community therefore gets abundant opportunity of urging and putting forward its needs for serving the cause of education in a locality. Quite apart from the opportunity that it gets, the authorities are themselves bound to consider on their own the educational needs of the locality from the point of view of the interests of the minority, community, We cannot, therefore, in the nature of things, regard Rule 2 as passing beyond the pale of permissible regulations and trenched on the offending sphere of restrictions on the fundamental right. We are of the opinion, that the Rule is well within the borderland of regulation of the right sanctioned by judicial decisions…(vide para 3)
That decision has been followed by a single Judge of the Andhra Pradesh High Court in Rayalaseema Navodaya Minorities Christian Educational Society’s case A.I.R. 1992 A.P. 54, who said-
I am therefore of the opinion that the minority educational agency applying for permission to establish an educational institution of its choice is bound to satisfy the competent authority of the need to provide educational facilities to the people in the locality…(vide para 36)
We agree with the view expressed by the Kerala and Andhra Pradesh High Courts and reject the contentions of the petitioners.
54. It should also be noted that para XII provides for an appeal against the rejection of the application by the competent authority and the order of rejection should itself specify the grounds of rejection. No argument was advanced against para XIII providing for inspection of the recognised institutions by the authorities from time to time.
‘F’ Miscellaneous contentions:
55. One of the contentions urged is that the Government Orders run counter to Tamil Nadu Education Rules. In particular our attention was drawn to the qualifications for teaching staff prescribed in the Educational Rules, under Rule 107 therefore. It is contended that the qualifications prescribed in the said Rule are different and much lower than the qualifications prescribed in the impugned Government Order. There is no merit in this contention. After the passing of the Government Order the rules framed thereby will govern and the Educational Rules in so far as they are inconsistent with the new rules cannot subsist.
56. Another contention is that the rules framed by the impugned Government Orders will not have retrospective effect and they will not affect the recognition already granted. Normally, rules framed by the Government will not have retrospective effect. Reliance is also placed on the judgment in Bahseer Ahmed v. Govindarajulu (1982)2 M.L.J. 307. It was a case under the Motor Vehicles Act. It was observed that it is well settled in law that delegated legislation will have no retrospective operation. Normally rules framed by the Government will have only prospective operation. But they will certainly apply to pending applications. Learned Additional Government Pleader has invited our attention to the ruling in State of Tamil Nadu v. M/s. Hind Stone . That case arose under Tamil Nadu Minor Mineral Concession Rules, The Supreme Court held that the concerned Government Order, viz., G.O.Ms. No. 1312, dated 2.12.1977, which introduced Rule 8-C was applicable to pending applications. It was held that the applications should be disposed of on the basis of the rules in force on the date of the disposal of the applications despite the fact that such applications were made long prior to the introduction of the rule and there was a long delay thereafter before consideration of the same. Hence the impugned Government Orders will govern the pending applications for recognition. The institutions which did not have permanent recognition before the passing of the Government Orders should also apply passing of the Government Orders should also apply under the Government Orders and the rules framed thereby will govern them.
57. The contention that different standards are prescribed for Government schools and that a discrimination has been made by the impugned Government Orders has no substance. It is brought to our notice by the learned Advocate General that the standards prescribed for Government schools are same or similar. Even if it is otherwise, there is certainly a difference between private institutions and Government institutions. They cannot be equated for all purposes.
‘G Findings’
58. In the result, we hold that the impugned Government Orders are constitutionally valid. They do not violate Article 14 or Article 30(1) of the Constitution of India.
59. On the basis of the above finding we have to dispose of each of the writ petitions. If there is any independent contention in any of the writ petitions depending on the facts and circumstances of that case, we will consider the same and pass appropriate orders.
60. We will now consider each writ petition separately on its facts and pass orders. This finding will be attached to each of such orders. W.P. No. 13357 of 1989 and 14025 of 1991. These two writ petitions have to be dismissed in view of our finding that G.O.Ms. No. 536, dated 17.5.1989 and G.O.Ms. No. 661, dated 12.6.1991 are valid. Hence dismissed. No costs.
