1. When the order of the Government requires that Higher Grade Teachers should be appointed to the particular posts in question, and when the petitioner appointed a Secondary Grade Teacher and when such appointment was not approved by the Inspecting Officers, the petitioner has come to this Court with the present Writ Petition. The petitioner contends that the right of a religious minority to establish and maintain its own educational institution guaranteed by Article 30 of the Constitution of India cannot be interfered with by such direction of the Government to appoint only Higher Grade Teachers in such vacancies and they cannot disapprove of the action of the petitioner when he had appointed a Secondary Grade Teacher who has a better qualification than Higher Grade Teachers. The Government Orders produced by the learned Assistant Government Pleader show that this decision was taken by the Government in order to see that Higher Grade Teachers are not unemployed and the Secondary Grade Teachers who are appointed to such posts do not make a claim for upgrading those posts later. In support of this action of the Government and the Inspecting Officers the learned Assistant Government Pleader relied upon paragraph 18 of the judgment of the Supreme Court in The Ahmedabad St. Xaviers College Society v. State of Gujarat wherein it is stated:
Therefore, measures which will regulate the courses of study, the qualifications and appointment of teachers, the conditions of employment of teachers, the health and hygiene of students, facilities for libraries and laboratories are all comprised in matters germane to affiliation of minority institutions. These regulatory measures for affiliation are for uniformity, efficiency and excellence in educational courses and do not violate any fundamental right of the minority institutions under Article 30.
2. On the other hand, Mr. Martin relied upon a number of general observations contained in the other portions of the judgment and contends that any regulatory measure made by the Government can be only in the interests of the minority concerned and no regulatory action intended for the benefit of the general public or any other section can be imposed on the minority institution even for the purpose of achieving uniformity. The problem thus posed raises a very important and general question affecting different kinds of minorities in the country and therefore, I am of the view that it is desirable that the question is decided by a Bench of this Court. Therefore I direct that the papers be placed before My Lord the Chief Justice for directions as to the posting of this case before a Bench.
K. Veeraswami, C.J.
3. We are concerned with St. Joseph Elementary School, Vikramasingapuram, which is the denominational institution covered by Article 26 (1) of the Constitution. By an order dated 21st June, 1973, of the Deputy Inspector of Schools, the Correspondent of the school was informed that, according to the prescribed rules, secondary grade teachers should not be appointed in higher grade vacancies and that, therefore, the appointments made by the school of secondary grade teachers in higher grade vacancies were not approved. It is the validity of this, that is under attack. The rules referred to by the Deputy Inspector of Schools apparently refer to G. O. Ms. No. 262, Education Department, dated 23rd February, 1972, and the Government Memorandum No. 65265/B-2/72-5 Education dated 16th November, 1972 which amended the Government Order. The crux of the Order of the Government is that, since there were about 7679 secondary grade teachers working in the higher grade posts as on 1st April, 1971, who have to be upgraded in the future years, it was necessary to direct that secondary grade teachers should not be appointed in higher grade posts in Elementary and Higher Elementary Schools under any of the managements with effect from the date of the issue of the order. In the course of the order of the Government it was mentioned that the number of secondary grade teachers working in the higher grade posts was increasing and the scheme approved by the Government in G. O. Ms. No. 1355, Education, dated 3rd August, 1967, had to be continued indefinitely and that the existing higher grade teachers who were awaiting employment would not get employment in future. Stopping there for a moment, we would like to observe that this order by itself appears to be rather unreasonable, inasmuch as nothing was stated in the Government order as to how many higher grade teachers were awaiting employment and that in view of such a large number it was unnecessary to make a direction in the Government Order. As a matter of fact, the memorandum of the Government, which we have already referred to, stated that, in the working, the school managements were finding it difficult to get sufficient number of higher grade teachers in spite of the fact that they had exhausted resort to the employment exchange. Noticing this fact, the Government in the said memorandum said that, if no higher grade teachers were available for appointment, a certificate to that effect should be obtained from the employment exchange and the same should be sent to the District Educational Officer concerned with a request for permission to appoint secondary grade teachers in higher grade vacancies and that prior permission of the District Educational Officer concerned was absolutely necessary for the filling up of the higher grade vacancies by the secondary grade teachers.
4. It seems to us that, having regard to the protection afforded by the Constitution to denominational institutions like the one with which we are concerned, whose rights under the Constitution this Court had occasion to point out in Director of School Education, Tamil Nadu Government v. G. Arogiasamy : AIR1971Mad440 , it will be an unreasonable interference to tell the institution before us that it could not employ a more highly qualified teacher in the interests of better standards of education in its schools because it would not assist the scheme of the Government to find employment for higher grade teachers.
5. The Government, for the purpose of the petition, may be taken to have the right to prescribe the qualifications. But this does not mean that, though it has prescribed the minimum qualification, and quite rightly, too for a teacher, it can insist that a protected institution, such as we are concerned with, cannot take a more highly qualified teacher in the interests of higher standards of education in the institution. That will be an uncalled for, unreasonable and arbitrary interference with the management of the school. If teachers of lower standards than those prescribed are entertained by the institution, that will be a different matter.
6. The learned Government Pleader strenuously contends that, though the petitioner-institution is a protected institution, inasmuch as it receives aid from the Government, and as all the teachers whether they are in protected or unprotected institutions are paid by the Government through the aid, the Government have a right, in order to do social justice inasmuch as it has to provide employment for the higher grade teachers, to tell the institution that it should not employ a secondary grade teacher in higher grade vacancies. We are unable to accept this contention so far it relates to protected institutions. The Ahmedabad St. Xavier's College Society v. State of Gujarat : 1SCR173 , as well as earlier decisions go a long a way to recognise the freedom of management on the part of denominational institutions and the management includes also appointment of teachers of their choice. It is not necessary to say more than that in this case. Here, it happens to be a case of employment of more qualified teachers in the interests of higher standards of education and the Education Department cannot insist that that should not be done by the institution. This has nothing to do with the aid given. The aid given by the Government does not clothe the Government with any right of the type they have claimed to interfere with the freedom of management of the institution to employ teachers of their choice, who have a higher qualification than that prescribed by the Department. On that view, the petition is allowed. No costs.