Chandrasekhara Sastri, J.
1. This is a petition under Article 226 of the Constitution of India praying to issue a writ of mandamus or any other appropriate writ, order or direction restraining the Director of Public Instruction, Andhra Pradesh, Hyderabad (respondent 1), from enforcing his order in Proceedings R.C. No. 216-D2/61 dated 31 August 1961 and 2 January 1962 and from taking any action referred to in his order dated 2 April 1962. There are four other respondents, who ware subsequently imploded as party respondents as per the order dated 20 July 1962 in C.M.P. No. 5865 of 1862. They were teachers working in the Methodist Boys' Multipurpose Higher Secondary School, Hyderabad, on 31 May 1961 and who were not entertained as teachers in the school on and from 1 June 1961 by the board of management of the School which is the petitioner in this writ petition. The facts that led to the filing of the writ petition are as follows as disclosed in the affidavit of Ch. Luke, principal and correspondent of the School. The Methodist Christians of Hyderabad or Telangana form a small minority of the population of the erstwhile Hyderabad State and are also a minority in the State of Andhra Pradesh. The Methodist Boys' Multipurpose Higher Secondary School was established by the South India Annual Conference of 1921 for the spiritual and secular benefit of the Methodist Christians of Hyderabad Episcopal area. The legislative organ for the Methodist Church is called 'Conference,' and the South India Annual Conference was succeeded to by the Hyderabad Annual Conference, which set up a Board of Christian Education that control the educational policy of all its educational institutions within its area. The presiding bishop is the administrative head of the conference and also the chairman of the board of management of the school. The principal and correspondent of the school is appointed by the bishop from among the ordained ministerial members of the conference. The school was set up to receive and educate the students passing out of the mission's middle school located at Vikarabad and also to receive and educate children coming from the various primary schools of the mission in the villages around Hyderabad. The school was established as a residential School. In the year 1923 recognition was accorded to this school by the then British Residency and the same was continued by the Government of His Exalted Highness the Nizam of Hyderabad in about the year 1947. The school was established with the funds of the Methodist Church at a cost of about 18 lakhs of rupees and about 2 lakhs of rupees were granted by the Government towards capital investment. The annual budget is about Rs. 3 lakhs out of which the State and Central Governments contribute about Be. 93,000. It is alleged that the School is thus established, maintained and administered by and on behalf of the minority belonging to the Methodist Christians in Hyderabad. In the year 1953, the total strength of the school was 1,194. A kindergarten section comprising one class was started as an experimental measure. In addition to this, the School was converted in 1955 into a multipurpose higher secondary School in implementation of the scheme of education of the Government of India. On account of the introduction of the multipurpose scheme, new buildings and equipment had to be added at a cost of about Ra, 5.75 lakhs out of which the Government of India contributed a sum of Rs. 1,76,000 which amount is included in the figure of Bs. 2,00,000 already referred to. As a result of the opening of the kindergarten section and the introduction of the multipurpose courses, the strength of the School rose from 1,604 in 1955 to 3,158 in 1961. It is further alleged that as the kindergarten section was an experimental measure, the teachers to teach in that section were being recruited only on a temporary basis. Farther, the growing strength of the School and the difficulty of accommodation to meet the increasing demands made it impossible for the management to entertain any additional staff on a permanent basis. By 1981, the kindergarten section had grown to eight sections with a strength of 360 children.
2. In view of the above circumstances, the management reviewed the situation and found that the continuance of kindergarten section would create problems of admisson into the higher classes and also of accommodation. Therefore, the management decided that in the best interests of the school, the kindergarten action should be closed down altogether and this decision was duly communicated to the Director of Public Instruction, It was pointed out farther that the quota of teachers prescribed by the departmental rules is only 78 whereas the actual number of teachers employed in the school was 109. But the management felt that the services of all the 31 teachers need not be dispensed with; and they decided to abolish 12 posts in the kindergarten Section because of the closure of the section, 1 post of Hindi teacher in the lower primary section, 1 post of music teacher which was already under suspension from November 1958, 3 posts of laboratory assistants in the multipurpose section and 3 posts of workshop assistants in the technical departments of the multipurpose section. It is stated that these assistants were superfluous since the technical instructors, who were hitherto handling only theory classes and henoe did not have full permissible load of work, could handle the practical classes also. As a result, the services of 31 teachers were dispensed with. Oat of these the services of 28 teachers terminated on 31 May 1961 as per the agreements of service; but they were asked to apply for reappolntments so that the management might be enabled to study the actual requirements and decide whether any of them could be given re-employment. Of these, 28 teachers applied for reappointment, but only 15 out of them could be subsequently re-employed. By his letter dated 20 May 1961, the principal and correspondent of the School intimated to the Director of Public Instruction that the board of management, considered the situation at a meeting held on 21 April 1961 and decided to close down the kindergarten section. In that letter, it was pointed out that the closing of the kindergarten section would involve the school in a loss of about Rs. 30,000 a year. It was also pointed out that the Government auditors repeatedly remarked that the staff in the school was very much over and above the prescribed quota and snggested that the staff be reduced. Then the letter referred to the method adopted to carry out the decision of the board of management sad intimated that they were able to absorb 13 out of 31 teachers and that it might be possible to absorb a few more. Finally, the services of 13 teachers could not be taken by the management. But this writ petition is concerned only with ten teachers two of whom only were in permanent service. Then the management received a letter dated 25 May 1931 from respondent 1 stating that it bad been brought to his notice that the management had served notices of termination of services with effect from 1 June 1961 of about 30 teachers of the school. Respondent 1 directed the management to maintain the status quo pending farther consideration and to report compliance immediately. To this, the management replied by its letter dated 27 May 1961 setting out the details of the reorganization of the school and the resultant termination of the services. It was pointed out in this reply that eleven of the teachers had been employed only on a temporary basis and that their services terminated by 31 May 1961 and that the permanent teachers, whose services were dispensed with, were offered salary in lieu of notice as per the agreement. But by his order R.C. No. 216-D2/61 dated 31 August 1961, respondent 1 directed that the ten teachers mentioned in that order should be reinstated with retrospective effect from 1 Jane 1961. There was further correspondence between the petitioner and respondent 1. But respondent 1 by his letter dated 2 January 1962 ordered that the management should reinstate the ton teachers immediately and send a compliance report urgently so as to reach respondent l's office not later than 16 January 1962 and intimated that if the management failed to do so, the department will take such action as it deems fit without any further notice. Against that order, the management submitted a petition dated 15 January 1962 to the Secretary to Government, Education Department, Government of Andhra Pradesh, Hyderabad, but no reply was received. It was further alleged in the affidavit that respondent 1 finally informed on 28 June 1962 that unless the ten teachers were reinstated by 8 July 1962, action would be taken as per the letter dated 2 January 1962. This writ petition was filed on 4 July 1962.
3. It is alleged that respondent 1 had no Jurisdiction to pass the orders in question directing the re-employment of the ten teachers. It is also alleged that neither the Rules for the Recognition of Schools nor Grant-in-aid Rules of 1952 conferred any jurisdiction on respondent 1 to pass the orders in Question. It is also claimed that the management in question has the fundamental right as a minority to establish and administer its educational institutions and therefore even assuming that there is any rule empowering respondent 1 to order the management to re-employ the ten teachers, such a power conflicts with the fundamental right guaranteed to the minority under Article 30 of the Constitution of India and is therefore void.
4. The material allegations in the affidavit filed in support of the writ petition are denied in the counter-affidavit of Mr. N. VenugopalNaidu, Deputy Director of Public Instruction In charge of Secondary Education. Some allegations are made in this counter-affidavit against the principal and correspondent to the effect that he was mismanaging the funds of the institution. It is stated that some teacher complained to the Director of Public Instruction about the mismanagement by the principal and correspondent with a view to victimize those teachers terminated their services. It is claimed that the orders of respondent 1 are quite in accordance with the rules in force and that they do not in any manner infringe the rights guaranteed under the Constitution. It is further pleaded in Para. II of the counter as follows:
The contention that the Director has no Jurisdiction to direct reinstatement has no substance. It is true that the aided schools in the Telangana area are governed by the instructions laid down in the Education Code. These are only administrative instructions. The teachers are given right of appeal under the agreement to go in appeal to the competent authority. In this case the Director of Public Instruction is the competent authority to entertain the appeal. All the teachers who are affected by the retrenchment have appealed to the Director. Moreover, the Director is in overall charge of the education in the State. Outside the provisions of the Code, the Director has power to set right the affairs of the school, which is receiving aid from the State. When irregularities andmala administration is brought to his notice, he is empowered to interfere so that the school may be run on the approved lines. The Director of Public Instruction is the authority who is empowered to give recognition to high schools. Under the provisions of the Code, the Director is vested with the administration and control of the aided schools in the area. The order passed by the Director is within powers and no writ of mandamus can be asked for. The petitioner is adamantly sticking to his stand of not reinstating the teachers with a view to punish them. This dishonest conduct of the petitioner cannot be allowed. So the jurisdiction under Article 226 being discretionary cannot be exercised in favour of such a person as the petitioner.
It is alleged that nineteen new teachers were appointed and that such an action is clear proof of the mala fides of the management in dispensing with the services of the ten teachers in question.
5. The following extract from the proceedings dated 27 January 1961 of respondent 1 fairly reflects the stand taken by him:
* * *It is incumbent on the managements of educational institutions enjoying and desiring to continue to enjoy recognition and aid from Government's Education Department to comply with all orders and instructions issued by the department. There can be no question of the instructions or orders, not having legal force or validity for the purpose of their compliances by the managements.
* * *The question is whether this is correct.
6. The following two points are argued by Mr. Nambiar, the learned Counsel for the petition:
(1) Respondent 1, the Director of Public Instruction, has no authority of law. to order re-employment of the ten teachers either under the Education Code of His Exalted Highness the Nizam's Dominions, Hyderabad Deccan 1344 Fasli or the Rules, for Recognition of Schools or under the Revised Grant-in-aidRules of 1952.
(2) In any view, even assuming that there is such a power conferred by the Education Code or any other rule, it would be violatlve of the fundamental rights preserved by Article 30 of the Constitution of India on the minorities which in this case are the Methodist Christians.
7. I shall consider the first point argued by the learned Counsel. It is necessary to refer to some more facts for that purpose. Out of the ten teachers to which this writ petition relates, eight teachers were appointed temporarily for one year. Two were permanent teachers. Mrs. M. M. Quadri, the first of the teachers appointed temporarily was first appointed on 5 July 1955. Initial appointment was for one year only and at the end of that year, she applied to be reappointed. The last order of appointment was again for one *year ending with. 31 May 1961. By letter dated 3 May 1960, she requested that her service might be extended. By a post-script to this letter, she added:
Please kindly put me on probation again during 1960-61 as another trial.
(Sd.) Mrs. M. M. Quadrl,
To this, she received a reply dated 14 May 1960 from the principal and correspondent intimating that he was glad to inform her that as requested she was given a chance for another year 1960-61. At the end of the year she again applied by her letter dated 3 May 1961 requesting to be reappointed for the year 1961-62. But she received a reply dated 8 May 1981 intimating that since it was contemplated to reduce the staff, the principal and correspondent was not able to say definitely whether she could be reappointed. Therefore, it was suggested to her to look for a job elsewhere. The other seven temporary teachers also were appointed temporarily from year to year previously. All their appointments terminated by 31 May 1961. They also applied for reappointment for another year, but were informed that they could not be reappointed. Then there are the two permanent teachers, One of them, Mr. George Solomon, was a workshop assistant and it is claimed that the termination of his services was on the ground that the post itself was abolished. The second permanent teacher was a Hindi teacher. The management offered these two teachers compensation in lieu of notice as provided for in the terms of the agreement of employment. As regards the eight temporary teachers, they were employed only for one year and the period expired by 31 May 1961. The argument of Mr. Nambiar is that there is no question of management terminating their services for the reason that their services terminated automatically by the end of the term of their employment. As regards the two permanent teachers, reliance is placed upon the agreement entered into between the concerned teachers and the management under which their services can be dispensed with on giving the requisite notice of two months or two months' salary in lieu thereof. The Director of Public' Instruction, Hyderabad, prescribed the draft agreement between the teachers and the institution, and it is in accordance with this draft agreement that agreement were entered into between the teachers and the management. Clause 7 of the draft agreement provided that the school authority shall have the power to terminate the services of a permanent member of the staff of the School with three month a notice or three months' salary in lieu thereof for incompetence, retrenchment, physical unfitness or any other good cause. Thus the stand taken by the management in the present case is that the services of the eight temporary teachers ceased because the term of their service was over by 31 May 1961 and that so far as the two permanent teachers are concerned, the requisite notice or salary in lieu thereof is offered to them in view of the retrenchmenteffeced in the institution. The agreement also provided that in the event of either party to the agreement falling to observe the terms thereof, the aggrieved party shall have a right to appeal to the competent educational officer (sic) shall be final and binding on the parties. This is 01. 10 of the draft agreement. The further contention of Mr. Nambiar is that the management did not act contrary to the terms of the agreement and that if the teachers felt that the management acted in breach of the agreements their remedy was only to appeal to the competent educational officer as provided in the agreement, it is also pointed out by the learned Counsel that there is no rule in the Rules for the Recognition of Schools (General andTechnical), 1952, which gives any power to the Director of Public Instruction to exercise a sort of supervisory jurisdiction over the privately managed schools and to issue orders like the one in question directing re-employment of teachers whose services terminated. It is also pointed out that these rules do not provide for any rights of appeal to the Director of Public Instruction by the concerned teachers.
8. I am referred to the Revised Grant-in-aid Rules, 1952. These rules came into force from September 1953 and they applied to all schools getting' grant from the Government. Under Rule 14, the Director of Public Instruction is empowered to sanction grant or increase or reduce the existing grant admissible under the rules and Rule 17 prescribed that the aided School teachers shall nave a right to appeal to their respective educational officer for redress of grievances and for safeguarding their claims. Rule 19 is as follows:
The terms of employment of teachers in aided schools should invariably take the form of a written agreement a copy of which will be sent to the concerned educational officer and a copy given to the teachers.
It may be remembered that Clause 10 of the draft agreement also stated that the aggrieved party shall have a right of appeal to the competent educational officer. The learned Counsel are not agreed as to who is the competent educational officer mentioned in the agreement or respective educational officer mentioned in Rule 17 or the concerned educational officer mentioned in Rule 19 of the Grant-in-aid Rules. I shall refer to this question presently.
9. The further argument of Mr. Nambiar, the learned Counsel for the petitioner, is that there were in face no appeals by these ten teachers to the officer referred to in Rule 17 and that as such the orders of respondent 1 are wholly without jurisdiction. The order dated 25 May 1961 passed by respondent 1 refers to a petition dated 25 May 1931 from the teachers of the school. The complaint on behalf of the petitioner is that a copy of the said petition was not furnished to the management at any time nor was it stated who were the teachers who filed the petition. Their names were not disclosed nor did the order discloses under what provision of law or of rules it was passed by respondent 1. During the hearing of the writ petition also, the learned Counsel for the petitioner made a very serious complaint that even at this stage a copy of that petition was not given to him and the names of the teachers, who sent the petition were not disclosed. According to the learned Counsel, the information is necessary in order to find out whether any of these ten teachers filed appeals before respondent 1 and if so under what provision of law and on what grounds. The argument is that, if any of the teachers filed appeals before the Director of Public Instruction assuming without admitting that such appeals lay, respondent 1 has to furnish the copies of the same to the petitioner so that the petitioner would have adequate opportunity of meeting the charges. It is argued that this method of deciding an appeal against the petitioner without even furnishing the copy of appeal petition to it, is opposed to principles of natural Justice. During the course of arguments, I asked the learned Advocate-General, who appeared for respondent 1 as to why, If that petition was treated as an appeal by the teachers against the orders terminating their services, a copy of that petition was not given to the management. The answer is that respondent 1 apprehended that the teachers, who sent the petition might be victimized. But at about the time when the learned Counsel for the petitioner closed his arguments, a copy of the petition was given to him and was also placed before me. It shows that out of ten teachers with which this writ petition is concerned, only three teachers signed it. In this context, I have to refer to the specific allegation in Para. II of the counter-affidavit already quoted that 'all the teachers who are affected by the retrenchment Save appealed to the Director.' This statement is obviously in correct and is not borne out by the petition dated 25 May 1961. As already pointed out, only three oat of the ten teachers signed that petition. I would also prima facieindicate that there is no justification (sic) for the service of these ten teachers amounts to victimization of teachers, who complained to the Director of Public Instruction.
10. Before considering the question as to who is the concerned educational officer to whom appeals lay, I shall consider one argument of the learned Advocate-General that the institution is subject to the general superintendence of respondent 1. In support of the argument that respondent 1 has such power of general superintendence, reliance is placed upon the declaration to be signed by the manager or the secretary of the institution when applying for recognition of the school. The declaration is as follows:
On behalf of the managers of the School, I hereby declare that the School fulfils the conditionsprescribed by the Educational Department and I promise that it shall continue to do so and that such returns as may be required by the department will be duly furnished and I also promise that no pupil shall be compelled to receive religious instruction in this School which the pupil's parents or lawful guardians signify their unwillingness in writing for him to receive.
This declaration relates only to the conditions prescribed by the Educational Department and obviously relates to the rules framed for the recognition of schools and the articles mentioned In the Education Code, but does not Imply that the Director of Public Instruction has any power of general superintendence over these institutions which empower him to issue orders of the nature In question in this writ petition. Article 19 of the Education Code prescribed that for purposes of inspection and administration of institutions other than those placed under the direct charge of either the Director or the Inspectors, the dominions are divided into five divisions, the first of which is the Balda division consisting of the City of Hyderabad and the Atraf-i-Balda district, and each of these divisions is placed in charge of an officer called the divisional inspector. Article 20 provided that under the divisional inspectors are district inspectors, each holding charge of a revenue district. Under Article 23, the administration and control of Government educational institutions, the administration of grants to aided institutions and the power of granting permission to open private institutions of the middle and high standards rest with the Director. This article implies that the Director has no right to administer or control educational institutions other than the Government institutions. Article 25 enumerates the powers of the Director. Article 27 states that the divisional inspectors are the chief executive officers of the department and that it is their function to enforce the rules and carry out the policy of the department, bat they should not, without the previous sanction of the Director, issue any circulars, orders or notifications which lay down general administrative principles or have a bearing on matters of political importance Article 29 prescribed that divisional inspectors are responsible for the general supervision and administration of all educational institutions in their jurisdiction other than schools placed directly under the Director of Public instruction or the inspectors of Girls' Schools. Under Article 86, the inspecting officer of an aided school is empowered to recommend to the school authorities the dismissal or removal of any teacher with whose work he is dissatisfied or whose presence on the staff he considers undesirable and to make such other recommendations with regard to the constitution of the managing committee, the provision of suitable buildings and equipment as may seem to him necessary. None of these rules which have been referred to confers authority on the Director of Public Instruction to issue a mandate to an aided educational institution to employ any particular teacher or to re-employ a teacher whose services are terminated as per the terms of the agreement of service or whose services are terminated by reason of the expiry of the term for which the appointment is made.
11. The learned Advocate-General strongly relied upon Article 134 and contended that the appellate authority is the Director of Public Instruction and that, therefore, he validly entertained the appeal of the teachers and issued the orders in question. Article 134 is as follows:
When a written agreement has been entered into between a teacher and the manager of an aided school, the latter shall send to the district inspector, the divisional inspector or the Director of Public Instruction a certified copy of such agreement within a week after the agreement is signed, according as the Institution is a primary, a middle or a high school.
The argument of the learned Advocate-General is that this school being a high School, a certified copy of the agreement had to be sent to the Director of Public Instruction, who will be the competent educational officer for purposes of appeal under Clause 10 of the draft agreement and the educational officer referred to in Rule 17 and the concerned educational officer referred to in Rule 19 of the Revised Grant-in-aid Rules of 1952. But Mr.Nambiar contended that Article 134 only refers to the officer to whom a certified copy of the agreement of service has to be sent and does not prescribe before whom the appeal has to be filed. On the other hand, he contended that the divisional inspector for the division mentioned in Article 19 of the Education Code would be the appellate authority. Having regard to the expressions used in Rules 17 and 19 of the Grant-in-aid Rules and the language of Clause 10 of the agreement and what is prescribed by Article 134 of the Education Code, I am inclined to accept the contention of the learned Advocate-General that the appellate authority in the case of high schools is the Director of Public Instruction to whom under that article a certified copy of the agreement of service had to be sent in the case of high School. Otherwise, there is no point in prescribing that certified copies of the agreements of service have to be sent to the district inspector, the divisional inspector or the Director of Public Instruction in the case of a primary School, a middle School or a high School respectively. Therefore, I hold that appeals lay to the Director of Public Instruction as per the rules and the terms of the agreements.
12. But still the question is whether any such appeals were preferred by the ten teachers to the Director of Public Instruction and if they were so filed, whether they were disposed of in accordance with the rules or in accordance with the principles of natural justice by respondent l.
13. As already mentioned, out of the ten teachers about whom this writ petition is concerned, only three of them were signatories to the petition dated 25 May 1931 referred to in the Director's proceedings dated 26 May 1961. The proceedings referred to the proposal of the management to abolish the kindergarten section on the reorganisation of the school and gave only an interim direction to the board of management. The final order is dated 31 August 1961 and it directed the management to reinstate the ten teachers referred to therein with retrospective effect from 1 June 1961. If it purported to be an order passed in any appeals filed by the concerned teachers. it is to be noted that seven of the ten teachers are not parties to that petition dated 25 May 1961.. The Director of Public Instruction would have no jurisdiction to pass any orders in their favour in the absence of any appeal by them. A perusal of the order itself leaves the impression upon my mind that it is an order purporting to have been passed by respondent 1 in exercise of some power of general Superintendence and not in disposing of any appeals filed by individual teachers, who felt aggrieved by the termination of their services. But, if the Director of Public Instruction was entertaining any appeal by the teachers, he should have served a copy of the same on the management before calling upon them to answer. On the other hand, what I find is that respondent 1 refused to furnish a copy of the petition to the board of management.
14. Further, the orders passed by respondent 1 do not show that the board of management committed any breach of the agreements of service entered into between the management of the institution and the teachers. The orders purported to have been passed on the basis of some general policy and not in order to enforce the rights of individual teachers based upon their agreements of service. Such a power of general superintendence in respondent 1, I am unable to find, in any of the rules. There is also this fact that the board of management acted in accordance with the terms of the agreement. Even if there are appeals properly presented by the concerned teachers before respondent 1, be would have jurisdiction to interfere with the orders of the management only if the board of management failed to observe the terms of the agreement and not otherwise. It is not suggested before me on behalf of respondent 1 that the board of management of the institution committed any breach of agreement of service. For these reasons, I am of the view that respondent 1 had no jurisdiction to issue to the petitioner his orders dated 31 August 1961 and 2 January 1962 inRo. No. 216-D2/61.
15. The learned Advocate-General drew my attention to the Revised Grant-in-aid Rules which provided that the Education Department will have power to dissolve the management of a private school receiving grant-in-aid from the Government and manage the school until satisfactory alternative arrangements are made under the circumstances mentioned below:
(1) Administrative or financial breakdown of the institution.
(2) Serious irregularities in observing the instructions issued from the department from time to time.
(3) An emergency, which in the opinion of Government demands immediate intervention of Government.
16. Next I am referred to an instruction from the department to the effect that no appointment should be kept on a temporary basis for longer than three years and that any appointment retained beyond that period should be made permanent. It is contended that in the case of Mrs.M.M. Qadri one of the ten teachers, she was being appointed only from year to year for more than three years, in each case the term of appointment being one year, and that this action of the board of management is contrary to the instruction referred to above. The stand taken by the petitioner is that she was appointed only for the year 1960-61 at the express request of the concerned teacher, that her right is governed by the order of appointment. She was holding one of the posts in kindergarten section merely as a probationer, that her probationary appointment terminated on 31 May 1961 and that therefore she had no right to be appointed for a farther period or permanently. It also appears that the department itself agreed that the institution should maintain only one section in the kindergarten section and abolish the remaining seven. Under these circumstances, I am unable to hold that the Director of Public Instruction, in exercise of the power conferred on him under the Revised Grant-in-aid Rules referred to above, has any jurisdiction to issue the orders in question. The learned Advocate-General drew my attention to some of the articles in Chap. IV of the Education Code which apply to all Government, board and municipal schools and schools recognized by the department and private schools. Article 100 requires that applications for recognition of institutions under private management; Should be made in the prescribed form (appendix IX). Article 101 specifies that respective officers will be authorized to recognize the schools.' Under Article 102, the authority empowered to recognition in whose or of any department of the institution (sic). If the conditions of recognition thereof have ceased to be fulfilled (sic). Article 105 prescribed that the recognizing officer should, among other things mentioned in Chap. IV, satisfy himself as to:
(a) The organization and development of the school upon approved lines.
(b) The constitution of the managing body.
(c) The financial stability of the school.
(d) The scale of fees charged as compared with those charged in other institutions in the same locality and this with a view to guard against undesirable competition among schools in the way of reduction of fees at the sacrifice of efficiency.
Article 107 authorizes the department to inspect the accounts, registers and other records of the recognized school. I do not find anything in these articles which vests Jurisdiction in respondent 1 to exercise a power of generalsuperintendence over the private schools which are recognized by and get aid from the Government.
17. I have to refer to one other matter brought to my notice by Mr. Nambiar. He read to me five letters which are stated to have been written by five of the ten teachers to whom this writ petition relates to the principal and correspondent of the school stating that they did not make any complaint against the management to respondent 1. In these letters they stated that their appointments were only temporary and that the periods of their appointments terminated and that they had no complaint in that regard. These letters are relied upon by Mr. Nambiar for showing that respondent 1 was not exercising any appellate or provisional jurisdiction, assuming that he had any such jurisdiction at the instance of these teachers, who were not re-employed or whose services were dispensed with.
18. It is also contended by Mr. Nambiar that in any view respondent 1 has no power to order reinstatement and that if the management is guilty of any breach of agreement, the concerned member of the staff will have to file a suit for samagea. It is argued that in the absence of any rule or any other provision of law empowering him to do so, respondent 1 will have no jurisdiction to order re-employment of the ten teachers. I see force in this contention.
19. For all the reasons mentioned above, I hold that respondent 1 had no jurisdiction to issue the orders dated 31 August 1961 and 2 January 1962 directing the petitioner to re-employ the ten teachers mentioned in those orders.
20. Now I shall consider the second point argued by the learned Counsel for the petitioner. The argument is as follows:-The Methodist Boys' Multipurpose Higher Secondary School, Hyderabad, is an educational institution established and administered by the Methodist Christians who are a minority in Hyderabad, in Andhra Pradesh and in India and therefore the State had no right to interfere with the administration of the institution. The orders in question amount to interference by the State in the administration of the institution by the minority and therefore they offend Article 30 of the Constitution of India. Though in Para. 7 of the counter-affidavit filed on behalf of respondent 1 it is stated that the petitioner is not entitled to any protection under Article 80 and that the Methodist Christians are not a minority community within the meaning of Article 30 of the Constitution since they do not have any distinct language, script or culture of their own to be preserved under the special protection of Article 30 of the Constitution, it is stated by the learned Advocate-General before me that the Methodist Christians are a minority within the meaning of Article 30 and that they are entitled to the protection afforded by the said article. Therefore, it remains only to consider whether the orders in question violate Article50 of the Constitution. The nature and content of the right conferred by Article 30 is considered by the Supreme Court in In re Kerala Education Bill 1957 A.I.R. 1958 S.C. 956. The case was before the Supreme Court on a reference made by the President of India for the opinion of the Supreme Court on certain Questions of law of considerable public importance that had arisen out of or touching certain provisions of the Kerala Education Bill, 1957. First it was pointed out that the article gives certain rights not only to the religious minorities but also to linguistic minorities and that the rights conferred on such minorities is to establish educational institutions of their own choice. There is no limitation placed on the subjects to be taught in such educational institutions. It was further pointed out 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. Then it was observed as follows:
The right to administer cannot obviously include the right tomaladminister. The minority cannot surely ask for aid or recognition for an educational institution run by them in unhealthy surroundings, without any competent teachers possessing any semblance of qualification, and which does not maintain even a fair standard of teaching 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 notnecessarily militate against the claim of the State to insist that in order to grant aid, the State may prescribe reasonable regulations to ensure the excellence of the institutions to be aided. Learned Attorney-General concedes that reasonable regulations may certainly be imposed by the State as a condition for aid or even for recognition. There is no right in any minority, other than Anglo-Indians, to get aid, but, he contends, that if the State chooses to grant aid, then it must not say-
I have money and I shall distribute and but I shall not give you any aid unless you surrender to me your right of administration. The State must not grant aid in such manner as will take away the fundamental right of the minority community under Article 30 (1).
21. Next it is necessary to refer to the relevant clauses of the Kerala Educational Bill and to point out the actual opinion expressed by the Supreme Court. Clause 12 of the Bill prescribed the conditions of service of the teachers of aided schools obviously intended to afford some security of tenure to the teachers of aided schools. It provided that the scales of pay applicable to the teachers of Government schools shall apply to all the teachers whether appointed before or after the commencement of this clause. Rules applicable to the teachers of the Government schools are also to apply to certain teachers of aided schools as mentioned in Sub-clause (2). Sub-clause (4) provided that no teachers of an aided school be dismissed, removed, reduced in rank or suspended by the manager without the previous sanction of the authorized officer. Other conditions of service of the teachers of aided Schools are to be as prescribed by rules. Clause 14 of the Bill provided that the Government whenever it appeared to it that the manager of any aided school had neglected to perform any of the duties imposed by or under the Bill or the rules made there under, and that in the public interest it is necessary so to do, might, after giving a reasonable opportunity to the manager of the educational agency for showing cause against the proposed action, take over the management for a period not exceeding five years. The Supreme Court was of the opinion that this Clause 14 might be totally destructive of the right under Article 30 of the Constitution and therefore could not be supported. Clause 11 of the Bill may also be referred to. Under that clause, the State Public Service Commission was empowered to select candidates for appointment as teachers in Government and aided schools according to the procedures laid down in that clause. Referring to the provisions of Clauses 11 and 12(4), the Supreme Court observed as follows:
Power of dismissal, removal, reduction in rank or suspension is an Index of the right of management and that is taken away byClause 12(4). These are, no doubt, serious inroads on the right of administration and appear perilously near violating' that right. But considering that those provisions are applicable to all educational Institutions and that the impugned parts of Cls.9, 11 and 12 are designed to give protection and security to the ill-paid teachers who are engaged in rendering service to the nation and protect the backward classes, we are prepared, as at present advised, to treat these Cls.9, 11(2) and 12(4) as permissible regulations which the State may impose on the minorities as a condition for granting aid to their educational institutions.
The ambit and limits of the right of minorities to establish and administer educational institutions under Article 30 of the Constitution came up for discussion again in Sidhraj Bhai v. State of Gujarat A.I.R. 1963 B.C. 540. It was observed as follows:
The right established by Article 30 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 canceled 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 will be but a ' teasing illusion' a promise of unreality. Regulations which may lawfully be imposed either by legislative or executive action as a condition of receiving grant or of recognition must be directed to making the institution while retaining its character of a minority institution effective as an educational institution. Such reification must satisfy a dual test the test of reasonbleness and the test that 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,
22. The opinion of the Supreme Court in In re Kerala Education Bill 1957 A.I.R. 1958 B.C. 956 was referred to and it was pointed out that the Supreme Court expressed the view that the constitutional right to administer an educational institution of their choice does not necessarily militate against the claim of the State to insist that in order to grant aid the State may prescribe reasonable regulations to ensure the excellence of institutions to be aided, but the State could not grant aid in such a manner as to take away fundamental right of the minority community under Article 30 and that the State could not disregard or override the fundamental right by employing indirect methods of achieving exactly the same result. Relying upon these observations, the learned Advocate-General contended that in the present case the orders passed by respondent 1 were only in the nature of regulations conducive to making the institution an effective vehicle of education for the minority community or other persons who resort to it and are designed ' to ensure the excellence of the institution.' In my opinion, the orders in Question, if they were passed by respondent 1 is exercise of any power vested in him under any rule or regulation in the Education Code or under the rules for the recognition of schools or the Grant-in-aid Rules, would not offend Article 30 of the Constitution of India. But, as pointed out earlier in this judgment when discussing the first question, there is no such rule or regulation which confers such power on respondent 1.
23. In support of his argument that the orders in question do not infringe Article 30 of the Constitution, the learned Advocate-General further relied upon the decision of the Supreme Court of the United States in Minersville School District v. Walter Gobbets United States S.O.R. 84 Law Edn. 1375 wherein it was held that:
The requirement of participation by pupils in public schools in the ceremony of saluting the national fiat does not, in the case of a pupil who refuses participation upon sincere religious grounds, infringe, without due process of law, the liberty guaranteed by the Fourteenth Amendment;.
24. Particular reliance is placed upon certain observations of Frankfurter, J., who delivered the judgment of the majority, and who, after referring to certain earlier decisions, observed as follows:
In all these cases the general laws in question, upheld in their application to those who refused obedience from religious conviction, were manifestations of specific powers of Government deemed by the legislature essential to secure and maintain that orderly tranquil, and free solute without which religious toleration itself is unattainable. Nor does the freedom of speech assured by due process move in a more absolute circle of immunity than that enjoyed by religious freedom.
25. Then the learned Judge pointed out that in that particular case:
Unlike the instance we have cited, the case before us, I am not concerned with an exertion of legislative power for the promotion of some specific need or interest of secular society the protection of the family, the promotion of health, the common defense, the raising of public revenues to defray the cost of Government. But all these specific activities of Government presuppose the existence of an organized political society. The ultimate foundation of force society is the binding tie of cahesive sentiment.
But it is pointed out by the learned Counsel for the petitioner, in reply, that this decision was overruled in West Virginia State Board of Education v. Walter Barnette United States S.C.R. 87 Law Edn. 1628, wherein it was held that:
The action of a State Board of Education in requiring Public school pupils to salute the flag of the United States while reciting a pledge of allegiance, under penaity of expulsion entailing a liability of both pupil and parents to be proceeded against for unlawful absence, transcends constitutional limitations and invades the sphere of intellect and spirit of which it is the purpose of the First and Fourteenth Amendments of the Constitution to reserve from all official control.
Referring to the earlier case, it was observed as follows:
The Gobitis decision, however, assumed, as did the argument in that case and in this, that power exists in the State to impose the flag salute discipline upon school children in general. The canonry examined and rejected a claim based on religious beliefs of immunity from an unquestioned general rule.
26. It is not necessary for me to pursue this question further in the view I have taken above of the scope of Article 30 having regard to the two decisions of the Supreme Court of India in re Kerala Education Bill 1957 A.I.R. 1958 8.0.956, and Sidharaj Bhai v. State of Gujarat : AIR1963SC640 .
27. In the counter-affidavit Sled on behalf of respondent 1, reference is made to a report submitted by the Deputy Director of Public Instruction about the way in which certain funds belonging to the teachers were being mismanaged or maladministered by the principal and correspondent. Several other allegations are also made against him. I found it somewhat difficult to appreciate how that report and the other allegations against the principal and correspondent are relevant to this writ petition. It was also suggested in the counter-affidavit that the termination of the services of the ten teachers in question amounts to victimization of those teachers because there were complaints to the Director of Public Instruction against the principal and correspondent that the latter was not properly administering the funds belonging to the teachers. A reference was also made to a complaint dated 18 November 1960 made by some of the teachers. I looked into the petition dated 18 November 1960 as well as the petition dated 26 May 1961. I find that only two out of the ten teachers, who were not re-employed, signed both the petitions. In the earlier petition, another of these ten teachers signed and in the later petition one other signed. Therefore, there does not seem to be any basis for the suggestion that the act of the principal and correspondent in refusing to re-employ eight teachers and in dispensing with the services of two teachers amounts to an act of victimization. The allegations in the counter-affidavit are refuted by the affidavit of the bishop and the two affidavits of the principal and correspondent filed in reply. It is not necessary for me and I do not express any opinion on the truth or otherwise of the various allegations. But I feel that those allegations and the reference to the report are not really called for in this writ petition.
28. Allegations are also made that the principal and correspondent acted in a very unjust; manner in dispensing with the services of these ten teachers and the board of management in its tarn sought to explain and justify this action. It is not necessary for me to express any opinion on the merits of these allegations.
29. It is hard on the two permanent teachers, whose services are dispensed with and the eight temporary teachers, who are not re-employed, though five teachers of the latter category wrote letters to the principal and correspondent stating that they made no complaint. Farther, Mr. M.M. Quadri was serving in this institution from the year 1956 though on a temporary basis from year to year. But in the view I have taken of the powers of respondent 1 in this regard, I have no alternative but to set aside his orders. I only hope that the board of management will see its way to re-employ such of these teachers who may be willing to farther serve in this institution.
30. The writ petition is therefore allowed and an order will issue restraining respondent 1 in the writ petition from enforcing his orders in Proceedings Rc. No. 216-D2/61 dated 31 August 1961 and 2 January 1962 and from taking any action referred to in his order dated 2 January 1062. The petitioner is entitled to its costs from respondent 1. Advocate's fee Rs. 100. The other respondents will bear their own costs.