Skip to content


Ahmedabad Jesuit Schools Society Vs. State of Gujarat - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtGujarat High Court
Decided On
Judge
Reported in(1985)2GLR724
AppellantAhmedabad Jesuit Schools Society
RespondentState of Gujarat
Cases ReferredState of Madras v. Sm. Champakam Dorairajan
Excerpt:
- - if they wanted to join professional courses like engineering or medicine they had necessarily to take the science stream in their higher secondary classes and to enable them to take such science stream they should take higher mathematics and higher science in their xth standard. according to them every management had a fundamental right to choose students for admission into their schools and any interference with that choice would be bad even though it may be reasonable if such interference is now by way of a law. all the institutions in question being state aided it was contended that any restriction in the matter of seeking admission in any of those institutions would be bad. the freedom under article 30(1) being absolute it is not capable of being restricted even by law and if.....p.s. poti, c.j.1. the question raised in both these petitions is identical, and is common to the minority character of the institutions in respect of which these petitions are filed. we are therefore referring for the sake of convenience only to one of the two petitions, viz. sca no. 3336 of 1984. whatever is said in regard to that will apply to the other case also.2. the petitioner is a public charitable trust registered under the bombay public trusts act, 1950 and is also a society registered under the societies registration act, i860. it is engaged in promoting education for which purpose it has established (1) st. mary's high school, rajkot and (2) st. xavier's high school, jamnagar. the trustees of the petitioner-trust profess the catholic faith and belong to a minority community.....
Judgment:

P.S. Poti, C.J.

1. The question raised in both these petitions is identical, and is common to the minority character of the institutions in respect of which these petitions are filed. We are therefore referring for the sake of convenience only to one of the two petitions, viz. SCA No. 3336 of 1984. Whatever is said in regard to that will apply to the other case also.

2. The petitioner is a Public Charitable Trust registered under the Bombay Public Trusts Act, 1950 and is also a society registered under the Societies Registration Act, I860. It is engaged in promoting education for which purpose it has established (1) St. Mary's High School, Rajkot and (2) St. Xavier's High School, Jamnagar. The Trustees of the petitioner-Trust profess the Catholic faith and belong to a minority community within the meaning of Article 30(1) of the Constitution of India. The resort to this Court has been necessitated by reason of a resolution passed by the State Government on 23rd April, 1984 laying down rules for admission to the students in the science stream of the Higher Secondary Education classes. According to the petitioner this revolution imposes restrictions on its right to administer its educational institutions and therefore is unconstitutional and void.

3. To understand the background of the Government resolution it may be necessary to state a few facts. In 1973 the Government decided to alter the existing pattern of education known as 11 plus 4 and convert it into a pattern of 10 plus 2 plus 3. While a student had to pass his secondary school examination at the XIth standard under the existing pattern, under the proposed pattern he had to pass the secondary school examination at the 10th standard, study two more standards in the Higher Secondary and passing the Higher Secondary take to college education of three years. This proposal was brought into force in 1976.

4. The new scheme necessitated dropping of the XIth standard in the secondary classes and the commencement of 'Higher Secondary Schools comprising of standards XI and XII. All the Schools which had secondary classes were not prepared to start Higher Secondary section. This resulted in more students seeking admission to higher secondary classes in places they could be accommodated in the existing schools. Under the new pattern students had to decide at the commencement of the Xth standard as to what their future career was likely to be. If they wanted to join professional courses like engineering or medicine they had necessarily to take the science stream in their higher secondary classes and to enable them to take such science stream they should take higher mathematics and higher science in their Xth standard. Since many aspired to join the professional courses naturally there was pressure in the matter of entry into the science stream in the higher secondary classes. Many of the students who passed out of the Xth standard from schools where there were no higher secondary classes found it difficult to get admission anywhere as schools in which there were higher secondary classes gave preference to their own students and particularly in the science stream. It was this situation that was attempted to be tackled by the Government by the Government resolution in question. There is a long history behind such resolution, but we are not going into it because we had occasion to consider this in detail in our judgment in Special Civil Application No. 2863 of 1984 (Proprietary High School v. State of Gujarat : AIR1985Guj146 and other connected cases where this Court was called upon to consider the validity of the Government Resolution. Though the case here is also similar to those cases we have chosen. to take up this case independently because there is a further question arising for decision here, viz. how in regard to a minority institution any resolution in the nature of a direction given to schools by the resolution would operate? We may state here that in those cases we considered the contention of the school managements by way of challenge to the resolution of the Government which directed them to reserve 20% seats for admission in accordance with the resolution while giving freedom to them to fill 80% seats as they chose from among eligibles. It was contended by the management in those cases -the question of minority right of an educational institution did not arise in those cases - that the fundamental right of the petitioners therein would be infringed by reason of the impugned circular. According to them every management had a fundamental right to choose students for admission into their schools and any interference with that choice would be bad even though it may be reasonable if such interference is now by way of a law. In other words, it was contended that the fundamental right under the various clauses of article 19 being available to the petitioners if any restrictions were to be imposed on them even if such restrictions be reasonable that could be done only by making a law in accordance with Articles 19(2) to (6), whichever clause may be applicable to the particular right. There were also petitions by some students of these institutions. They contended that they had a right to admission based on their merit - subject of course to permissible reservations - in any educational institution run by the State or financed by the State. All the institutions in question being State aided it was contended that any restriction in the matter of seeking admission in any of those institutions would be bad. Evidently the students were not content with the 20% reservation of the seats in the various institutions. According to them for no fault of theirs they were unable to pursue their education in the science stream in the higher secondary classes and if such classes were not available in the institutions from which they had passed there was no reason why in the higher secondary schools, wherever in the State they may be, the petitioners should not have the right to seek admission and to obtain admission on the basis of their merit. This really meant that the managements of Higher Secondary schools had no right to prefer students of lesser merit in the matter of admission merely because such students passed the secondary examinations from secondary educational institutions belonging to them. This Court held in those cases that the parties before the Court were trustees, that the trustees were not litigating on the basis of any personal rights, that except in the case of those trustees who have a personal or beneficial interest such as Mathadhipatis the fact that they are citizens will have no relevance in considering the question of infringement of fundamental right and therefore no infringement of fundamental right could be alleged by them. It was further found that the case of the students that there ought to be no unequal treatment in the matter of admission to State or State aided institutions was liable to be upheld. Consequently, it was found that the admission in those institutions should have been on the basis of merit. The resolution concerned the academic year 1983-84. Since admissions had already been effected for the academic year the Court found it not advisable to disturb the admissions made to 80% of the seats. With regard to the reservation of 20% of the seats, all excepting one of the petitioner-managements undertook to implement the resolution for the year in question and further agreed that in each of the classes six persons belonging to the Scheduled Castes, Scheduled Tribes and other backward classes would be given admission for which purpose extra seats will be provided. This was to meet a contention by petitioners in two cases that reservation had not been made to the Scheduled Castes, Scheduled Tribes and other backward classes and that was unfair bearing in mind that it was only a study in the science stream that will enable members of these categories to obtain admission into professional courses in due course. It was contended by the petitioner in this petition, which petition also came up along with the other petitions, that the question here will have to be considered independently bearing in mind the right of the minorities and that is the reason why we have chosen to hear this case after the decision in the other batch of cases.

5. For the petitioner it is contended that the Government resolution is an encroachment on the rights of the minorities inasmuch as the minorities have under Article 30(1) of the Constitution of India a right to establish and administer educational institutions of their choice and any interference with such administration by the State would be violative of the guarantee under Article 30(1) of the Constitution of India. In elucidation of this plea it is said for the petitioner that a right to administer an educational institution includes a right to give admission to students of their own choice and that any interference with that freedom would be an infringement of the right to administer. The freedom under Article 30(1) being absolute it is not capable of being restricted even by law and if so a restriction by the Executive order of the Government in the nature of the impugned resolution should be found to be bad and unenforceable That would mean that in the 20% seats also the petitioner should be permitted to admit students of its choice. We may notice here that the question of reservation for scheduled castes, and scheduled tribes does not arise particularly in this case because such a contention has not been set up here and in the petitions filed by members of the scheduled castes and scheduled tribes which were disposed of the present petitioner has not been made a party. Therefore we are not concerned with that question here.

6. The learned Advocate General appearing for the State Government resisted the claim of the petitioner-Trust. According to him right to administer did not include any right to admit students of the institutions' choice without regard to merit or other relevant consideration. It was the case of the State that this right to admit students of their own choice was not secured to a minority under Article 30(1) of the Constitution and it was outside the scope of the term 'administer' occurring in Article 30(1). Assuming, without conceding, that right to administer comprehended the right to choose candidates for admission, it was contended by the State, such right was liable to be regulated and the impugned resolution evidences nothing other than such regulation. Article 29(2) of the Constitution was relied on by the State to support its plea that this article gave a right to every candidate not to be discriminated on the ground of caste, community, creed or religion, that this article operated even in the case of minority institutions and therefore Article 30(1) could not be understood independent of Article 29(2), that both must be allowed to operate and if so there cannot be an absolute or unrestricted right to admission. For this reason also it was said that the challenge to the impugned circular must fail. In reply to the State's case the petitioner's approach was that the right to regulate cannot be understood as annihilating the right itself and such regulation can only be in the interest of excellence of the institution concerned and not in public interest. In this case the justification of the State for the impugned circular was evidently public interest and such a plea would not be available as against a minority institution.

7. The question of the nature and extent of the right of a minority to administer educational institutions of their choice has been the subject of controversy in courts for many years now. It can also be said that the principles governing this matter have become more or less settled. Ever since the Supreme Court expressed its opinion in the reference made to it concerning the Kerala Education Bill under Article 143 of the Constitution of India reported in AIR 1958 SC 956-repeated occasions have arisen to examine the ambit and scope of Article 30(1) of the Constitution. Minorities require protection to preserve their language in the case of linguistic minorities and their culture in the case of cultural minorities. Any democracy should properly envisage a scheme of constitutional protection to its minorities as otherwise the will of the majority may at times operate to encroach upon their culture and language which they are entitled to preserve. This is the reason for treating the fundamental right under Article 30(1) of the Constitution differently from the fundamental rights in Article 19 of the Constitution. While the latter rights are liable to be reasonably restricted by law for a purpose the Parliament has no right to pass any such law restricting the absolute right under Article 30(1) of the Constitution even in public interest. That is why the right under Article 30(1) is termed as 'absolute'. But this does not mean that the State is powerless to protect against maladministration of such institutions. The protection envisaged in favour of the minority institutions is not to confer an additional right or privilege in those institutions which normally other institutions may not enjoy, but to secure to them a guarantee against encroachment into their rights which may happen because they do not have a predominant voice in the Assembly or other representative institutions, necessarily because they are minorities. Once it is borne in mind that the freedom under Article 30(1) is assured to them for this purpose, viz. to see that they do not suffer from a handicap, are not victimised and are not subjected to an approach which would not happen in the case of others, it would be plain that in the interest of their institution, in the interests of excellence of education in their institution there could be regulations. All regulations need not operate as restrictions. Regulations may promote the interest of the institutions themselves. Such regulations are permissible if they do not destroy the core of the rights of the minority institutions. The minority runs an institution with a different orientation from that of other institutions. Its emphasis would be on retaining its culture and how best that could be done must necessarily be left to the institution. So long as the educational standards are maintained by the institution, by complying with the directions in that behalf given by the Government, and by adhering to the standards generally prescribed, they are free to administer their institutions in the way they consider best. The right of choice of teachers in the case of a minority institution should necessarily differ from the right of choice of teachers in other institutions like the Government institutions. These principles are now well settled (Vide : In Re: Kerala Education Bill, 1957 AIR 1958 SC 956; Rev. Sidharajbhai Sabbai and Ors. v. State of Gujarat and Anr. AIR 1963 SC 540; State of Kerala v. Very Rev. Mother Provincial 0065/1970 : [1971]1SCR734 ; The Ahmedabad St. Xavier's College Society and Anr. v. State of Gujarat and Anr. : [1975]1SCR173 ; The Gandhi Faiz-e-am College, Shahjahanpur v. University of Agra and Ors. : [1975]3SCR810 Benson Knock Semual v. State of Gujarat and Ors. (XXV(I) Aldo Maria Patroni and Anr. v. E.C. Kesavan and Ors. : AIR1965Ker75 .

8. Now we come to the consideration of the controversy before us. The scope of the right of a minority to administer an institution established by it and the right of students to seek admission to such an institution maintained by State aid call for consideration by us. These are matters covered by Article 30(1) and Article 29(2) of the Constitution. For the sake of convenience we will pose the controversy in the form of the following questions:

(a) What is the scope of the term 'administer' in Article 30(1) of the Constitution Does it envisage a right to admit students of the institution's choice ?

(b) Is right to administer liable to be regulated ?

(c) Have the students a right to seek admission in minority institutions maintained by State funds ?

(c) Can the students complain of discrimination against a minority institution?

(e) Does Article 29 restrict the freedom of minority institution in the matter of admission and if so to what extent ?

(f) If the right of admission to a minority institution could be regulated by the State what could be the nature and extent of the regulations ?

9. Having posed the questions we will now consider them in seriatim. The first of the questions posed presents no problem. The extent of the rights of the religious and linguistic minorities to administer their educational institions has been examined and the principles lucidly stated in St. Xavier's College v. State of Gujarat : [1975]1SCR173 of the report A. N. Ray, C.J. states:

The right to administer is said to consist of four principal matters. First is the right to choose its managing or governing body. It is said that the founders of the minority institution have faith and confidence in their own committee or body consisting of persons selected by them. Second is the right to choose its teachers. It is said that minority institutions want teachers to have compatibility with the ideals, aims and aspirations of the institution. Third is the right not to be compelled to refuse admission to students. In other words, the minority institutions want to have the right to admit students of their choice subject to reasonable regulations about academic qualifications. Fourth, is the right to use its properties and assets for the benefit of its own institution.

This is a principle on which there cannot be a different view.

10. That the right to admission is liable to be regulated is also equally well settled. We have already indicated that the right of minorities under Article 30(1) is an absolute right and that is the right to establish and administer educational institutions of their choice and any law or executive direction which infringes upon the substance of that right would be void. Referring to this the Supreme Court in Sidhrajbhai v. State of Gujarat AIR 1963 SC 540 explained the principle thus:

This however, is not to say that it is not open to the State to impose regulations upon the exercise of this right. The fundamental freedom is to establish and to administer educational institutions: it is a right to establish and administer what are in truth educational institutions - institutions which cater to the educational needs of the citizens, or sections thereof. Regulation 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.

This principle has been restated in the subsequent decisions to which it may not be necessary to advert as there is no controversy on this score. The controversy concerns the nature and extent of the regulation to which we will advert in due course.

11. The third and fourth questions though posed independently may be considered together. It is the contention of the State that such of the student community as are citizens of this country have a right to seek admission in minority institutions and they cannot be discriminated against in the matter of admission in such institutions. While all minorities, linguistic and religious, have the fundamental right to establish and administer educational institutions of their choice, by reason of the Constitutional guarantee under Article 30(1) of the Constitution of India every citizen has the right not to be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them. It may be that minority institutions are receiving aid out of State funds as in the case of the petitioners here. Once it is found that they are institutions which receive aid of State funds even though the institutions are minority institutions they cannot practise discrimination on grounds only of religion, race, caste, language or any of them. Unlike the injunction, in Article 15(1) that there shall be no discrimination against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them the injunction in Article 29(2) is directed not only against the State, but against all concerned in the matter of admission into educational institutions maintained out of State funds also though the prohibited grounds of discrimination are different under Articles 15(1) and 29(2). It cannot be said that Article 30(1) of the Constitution is independent of Article 29(2). Article 29(2) would operate notwithstanding the absolute right of the minority community to administer the institutions established by it and in the process of such administration admit students of its choice. In regard to the question of right of admission these two articles have to be read and understood harmoniously as imposing a duty upon a minority institution as much as on the State to 'be guided by Article 29(2) and therefore not to discriminate on grounds only of religion, race, caste, language or any of them. In the opinion furnished under Article 143 of the Constitution on the Kerala Education Bill (AIR 1958 SC956) the Supreme Court, dealing with Article 30(1) of the Constitution expressed the view that:

It is obvious that a minority community can effectively conserve its language. script or culture by and through educational institutions and, therefore, the right to establish and maintain educational institutions of its choice is a necessary concomitant to the right to conserve its distinctive language, script or culture and that is what is conferred on all minorities by Article 30(1) which has hereinbefore been quoted in full. This right, however, is subject to Clause (2) of Article 29 which provides that no citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.

The same view was expressed by the Supreme Court in D.A.V. College, Jullundur v. State of Punjab : AIR1971SC1737 . Referring to Articles 29(1) and 30(1) of the Constitution the court said:

A reading of these two Articles together would lead us to conclude that a religious or linguistic minority has a right to establish and administer educational institutions of its choice for effectively conserving its distinctive language, script or culture, which right however is subject to the regulatory power of the State for maintaining and facilitating the excellence of its standards. This right is further subject to Clause (2) of Article 29 which provides that no citizen shall be denied admission into any educational institution which is maintained by the State or receives aid out of State funds, on grounds only of religion, race, caste, language or any of them. While this is so these two articles are not inter-linked nor does it permit of their being always read together.

The scope of Article 29(2) came up for examination before the Supreme Court in the decision in State of Bombay v. Bombay Education Society : [1955]1SCR568 . That case arose in the context of a circular issued by the Government of Bombay which, inter alia, directed that 'no primary or secondary school shall, from the date of the order, 'admit to a class, where English is used as a medium of instruction, any pupil other than pupil belonging to a section of citizens under Article 29(2) of the Constitution. It was the case of the State of non-Asiatic descent'. One of the Anglo-Indian schools challenged the circular in as much as the order debarred admission to a school where English is used as medium of instruction to all citizens other than those whose language was English. The order offended against the fundamental right guaranteed to all citizens under Article 29(2) of the Constitution. It was the case of the State that there is a laudable objective behind this order, viz. the promotion of the national language and this necessitated restriction of English medium classes only to those whose language was English. Even so S.R. Das, J., speaking for the Court, said:

Adapting the language of Lord Thankerton, it may be said that the laudable object of the impugned order does not obviate the prohibition of Article 29(2) because the effect of the order involves an infringement of this fundamental right, and that effect is brought about by denying admission only on the ground of language.

Examining the scope of Article 29(2) S.R. Das, J. observed:

Nor do we see any reason to limit Article 29(2) to citizens belonging to a minority group other than the section or the minorities referred to in Article 29(1) or Article 30(1), for the citizens, who do not belong to any minority group, may quite conceivably need this protection just as much as the citizens of such other minority groups.

The learned Judge again observed:

The language of Article 29(2) is wide and unqualified and may well cover all citizens whether they belong to the majority or minority group. Article 15 protects all citizens against the State whereas the protection of Article 29(2) extends against the State or anybody who denies the right conferred by it. Further Article 15 protects all citizens against discrimination generally but Article 29(2) is a protection against a particular species of wrong namely denial of admission into educational institutions of the specified kind.

In the next place Article 15 is quite general and wide in its terms and applies to all citizens, whether they belong to the majority or minority groups, and gives protection to all the citizens against discrimination by the State on certain specific grounds. Article 29(2) confers a special right on; citizens for admission into educational institutions maintained or aided by the State. To limit this right only to citizens belonging to minority groups will be to provide a double protection for such citizens and to hold that the citizens of the majority group have no special educational rights in the nature of a right to be admitted into an educational institution for the maintenance of which they make contributions by way of taxes. We see no cogent reason for such discrimination.

(emphasis supplied).

We may notice here that the earliest reported cases in which the Supreme Court examined the scope of Article 29(2) is State of Madras v. Sm. Champakam Dorairajan : [1951]2SCR525 to which advertance was made in the judgment of S.R. Das, J. There, reservation of seats in a professional college, communitywise, was under challenge. Evidently such reservation displaced students of specified communities from seeking admission to seats other than those reserved for those communities despite higher merit. That was found to be a case of denial of admission to them solely on discrimination falling within the scope of Article 29(2) of the Constitution. In that context S.R. Das, J., speaking for the Bench, referred to the right of a student for admission to a college in these terms:

The right to get admission into any educational institution of the kind mentioned in Clause (2) is a right which an individual citizen has as a citizen and not as a member of any community or class of citizens.

We are particularly emphasising this to indicate that the Supreme Court as early as in 1951 envisaged the right of a student to get admission even in respect of the educational institution of the kind mentioned in Clause (2) of Article 29, viz. a State aided institution. Question of denial of any right would naturally arise only if there is a right. Our discussion here is sufficient to indicate that Article 29(2) would survive even against the claims of a minority institution to make admissions of students of their own choice. If the students who are citizens are discriminated against on any ground falling within Article 29(2) even against a minority institution their plea would succeed.

12. The extent of the restriction imposed by Article 29(2) in the case of a minority institution does not call for any discussion in the light of what we have already stated earlier. The freedom of admission or freedom of choice would necessarily be restricted in the case of a minority institution by Article 29(2) in the same manner it would be restricted by the reservation contemplated under Article 15(4) of the Constitution as against the State.

13. Now we have to examine the all important question as to the nature of the permissible regulations on the absolute right of a minority institution guaranteed under Article 30(1) of the Constitution. It goes without saying that no regulation which would destroy the core of the right to administer would survive. Every institution of a minority character should have freedom to a certain extent to regulate its own affairs so that there is no interference with the planning it adopts for the promotion of the culture or language it seeks to preserve. But this is not to say that they will not be subject to any restrictions. The nature of restrictions about which there could be no controversy are restrictions in regard to the curriculum of studies, the qualification required of the teachers, the regulation of the courses, the eligibility of students and similar other matters which call for uniformity in regard to institutions, minority or otherwise. Similarly regulations to enforce discipline in educational institutions, discipline which is required to prevent abuse of the right to administer would also be permissible, for as the Supreme Court has said more than once the right to administer does not guarantee a right to mal-administer and any regulation seeking to protect the institution from mal-administration, so long as it does not destroy the core of the right of the administration, will be within the contours of permissible regulations. Coming to the question of the right to admit students we have necessarily to notice that this has been treated as a facet of the right to administer as we have indicated earlier. Even so if the regulations imposed are intended to secure the excellence of education in the institution, intended to secure that the educational institution functions as a very effective unit and thereby promotes itself such regulation will not infringe the right of the minority institution.

14. The nature of the permissible or desirable regulations is indicated in the Kerala Education Bill case (AIR 1958 SC 956) by the Supreme Court this way:

We have already observed that Article 30(1) gives two rights to the minorities, (1) to establish and (2) to administer educational institutions of their choice. The right to administer cannot obviously include the right to mal-administer. 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 not necessarily militate against the claim of the State to insist that in order to grant aid the State may prescribe reasonable regulations to ensure the excellence of the institutions to be aided.

The same idea is conveyed in Sidhrajbhai v. State of Gujarat AIR 1963 SC 540 in these words:

The fundamental freedom is to establish and to administer educational institutions : it is a right to establish and administer what are in truth educational institutions - institutions which cater to the educational needs of the citizens, or sections thereof. Regulation 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.

The idea has been elaborated further in State of Kerala v. Mother Provincial 0065/1970 : [1971]1SCR734 . Hidayatullah, C.J., as he then was, after stating that the management must be free of control so that the founders or their nominees can mould the institution as they think fit, and in accordance with their ideas of how the interest of the community in general and the institution in particular will be best served indicated the lines in which such right is liable to be regulated. In this context the learned Judge, speaking for the Bench, said:

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.

The view expressed by Hidayatullah, C.J. in the passage to which we have adverted has evidently found approval by the Supreme Court in the decision of the Constitution Bench in St. Xavier's College v. State of Gujarat : [1975]1SCR173 . After referring to the decision in State of Kerala v. Mother Provincial 0065/1970 : [1971]1SCR734 , already adverted to the Court noticed that in that decision the necessity and importance of regulatory measures of the system and standard of education in the interest of the country and the people had been explained. After reiterating that the right to administer consists of four principal matters, viz. the right to choose its managing or governing body, the right to choose its teachers, the right not to be compelled to refuse admission to students and the right to use its properties and assets for the benefit of its own institution the Court went on to state that this right is not free from regulation. The Court remarked:

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. Das, C.J., in the Kerala Education Bill case 1959 SCR 995 : AIR 1958 SC 956 (supra) summed up in one sentence the true meaning of the right to administer by saving that the right to administer is not the right to maladminister.

We may now advert to the decision in G.F. College, Shahjahanpur v. Agra University : [1975]3SCR810 . We notice that differing views have been expressed on the several matters which arose for decision in that case by the Judges composing of the Bench which heard that case. Justice Krishna Iyer and Justice Gupta in that case found that the induction of the Principal and the seniormost teacher of the College into the Governing Body did not destroy the right of administration of the college though Justice Mathew who was in a minority took a contrary view. Justice Krishna Iyer, in his characteristic way, epitomizes the right to regulate in these terms:

Hands off Administration altogether' is a tall call today: but hand-cuff managements into uniformity' is also not the correct rule. A benignantly regulated liberty which neither abridges nor exaggerates autonomy but promotes better performance is the right construction of the constitutional provision. Such an approach enables the fundamental right meaningfully to fulfil its tryst with the minorities' destiny in a pluralist polity. That is the authentic voice of Indian democracy. To regulate, be it noted, is not to restrict, but to facilitate effective exercise of the very right. The constitutional estate of the minorities should not be encroached upon, neither allowed to be neglected nor mal-administered. This quintessence of the decision may now be aptly borne out by pertinent excerpts from the various judgments.

It follows from the above discussion that Article 30(1), while conferring an absolute right, envisages Governmental exercise intended to regulate the right of the minority. Such regulatory measures are primarily in the interests of the institution itself, they may be intended to promote the excellence of the educational institution concerned or may be they are the regulatory measures intended for uniformity and efficiency or they may be intended to compel the management to keep in step with others. Article 30(1) does not envisage a right so exclusive as to enable the minority institution to decline to follow the general pattern. While regulations to secure these would be permissible equally permissible would be regulations to secure the right of students under Article 29(2) of the Constitution to see that the 'right to admission' of students referred to in State of Madras v. Sm. Champakam Dorairajan : [1951]2SCR525 is not infringed as envisaged in Article 29(2) of the Constitution. This necessarily outlines the contours of regulation by the State Government by law or executive action.

15. Having stated the law as above we have to examine the facts of this case to see whether the regulation here is a regulation which will be justified as a permissible imposition of restriction within Article 30(1) of the Constitution or justified under Article 29(2) of the Constitution.

16. The 20% reservation of seats is not entirely for the students who are unable to get admission despite merit on account of absence of Higher Secondary classes in the school from which they come out. That reservation is only with regard to 10% out of the 20%. Another 5% goes to students whose guardians are transferred from outside and yet another 5% goes to students who have studied in schools where there is Higher Secondary scheme, but due to other reasons they want to join some other school. The regulation in regard to a minority institution can be in the interests of excellence of education, but such a test should fail in regard to the students in the two categories for which 5% reservation each are made, for it can in no way be said that by admitting them into the institution the excellence of the institution could be improved or maintained. It could possibly be said, as argued by the Advocate General, that in regard to the 10% reservation for students from other schools who have no facility of education in those schools, the admission directed to be made being on the basis of the merits of the students, that would be conducive to the promotion of the excellence of the education since students of more merit than those that are sought to be admitted are coming in that qupta.

17. But then the regulation by the impugned resolution cannot be said to have been intended for that purpose. It may perhaps achieve that purpose to some extent. The said regulation would have been permissible if its object had been maintaining the excellence of the institution. It is not as if admission to the school has been directed to be made on the basis of merit. The resolution cannot therefore be justified as against the minority institutions. Regulation in respect of a minority institution cannot be of the same character as regulation in respect of other institutions, for in the case of the latter public interest would necessarily be relevant, but that by itself would not be relevant in the case of a minority institution. In the form in which the resolution has appeared it would not be possible to sustain it even under Article 29(2) of the Constitution for it is not intended as a measure to secure against discrimination under that Article.

18. Therefor the impugned resolution will not be operative against the institutions which are the petitioners in these cases. Consequently we hold that the resolution shall not be enforced against these institutions.

The rule is made absolute. No costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //